Beregi v Department of Planning, Industry and Environment

Further background to the Public Inquiry and role of OLG

1. Further background to the Public Enquiry and the role of OLG was provided in a statement filed in these proceedings by Lynette Brown, Manager, Investigations Team, Sector Performance and Intervention Group, OLG and in evidence given by Ms Brown at the hearing. That evidence was not challenged. Ms Brown stated that from around 2013 onwards OLG received a number of complaints relating to the Council. The complaints were made by councillors, council staff and others and were about councillors and council staff. Ms Brown states that OLG conducted preliminary inquiries in relation to the complaints and monitored the relevant activities of the Council.
2. Ms Brown states that her role requires her to oversee the inquiries and investigations undertaken by the Investigations Team and to provide advice to the Chief Executive of OLG on pecuniary interest, councillor misconduct, dysfunction and maladministration in relation to local councils and council officials. She states that when complaints about councillor conduct are received her team investigates such complaints and then provides advice to the Chief Executive of OLG and the Minister. Her team also monitors the outcome of action taken in relation to complaints.
3. On 15 September 2014 the then Minister for Local Government (Minister) issued a Notice of Intention to Suspend the Council pursuant to section 438K of the Local Government Act. The Minister did not in fact suspend the Council and, instead, on 31 October 2014 issued a Notice of Intention to Issue a Performance Improvement Order in relation to the Council. A Performance Improvement Order was issued by the Minister pursuant to section 438A of the Local Government Act on 8 December 2014. Ms Brown states that, despite the Performance Improvement Order, it was evident that matters at the Council were not improving and there were further complaints from the public. This then led to the establishment of the Public Inquiry.
4. Miss Brown also gave evidence that OLG assisted the Public Inquiry and two investigators from her office were seconded and appointed as Officers assisting the Public Inquiry. She stated that, as was usual practice, OLG created a specific file for the Public Inquiry in the OLG document system (known as Objective). The file was caveated so that only officers assisting the Public Inquiry had access to the file during the course of the enquiry. All files relevant to the Public Inquiry were saved to the specific file for that enquiry. Following completion of the Public Inquiry, the caveat was taken off the file which meant that anyone in the office then had access to the file.

The decisions under review

1. As noted above, the documents which contain information in dispute in relation to both access applications are set out in the Schedule attached to these reasons. The primary reason for the respondent's decisions that the information in dispute should not be disclosed to Ms Beregi is that the information relates to the respondent's complaint handling and investigative functions and thus falls within the definition in the GIPA Act of "excluded information".
2. In the alternative, the respondent submits that, in respect of each piece of information in dispute, the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure and thus there is an overriding public interest against disclosure.
3. It is convenient to deal firstly with the respondent's submissions that the information is "excluded information".

The conclusive presumption against disclosure

1. The objects of the GIPA Act as set out in s 3 are to open government to the public. This is done by authorising and encouraging the proactive release of information by agencies and by giving members of the public an enforceable right to access government information. Access to government information is to be restricted only when there is an overriding public interest against disclosure.
2. A person aggrieved by a "reviewable decision" may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (ADR Act) of that decision. A decision not to provide access in the way requested by an applicant is a reviewable decision for the purposes of the GIPA Act (s 80(1)). The Tribunal's function under s 63 of the ADR Act is to determine, based on the material before it, what is the correct and preferable decision, and may affirm, vary, or set aside the decision and make a substitute decision, or set aside the decision and remit it to the agency for further determination.
3. There is a presumption in favour of the disclosure of government information unless there is an "overriding public interest against disclosure" (s 5 of the GIPA Act). Under the GIPA Act a person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an "overriding public interest against disclosure" (s 9). Under s 14(1) of the GIPA Act, it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.
4. Clause 6 of Schedule 1 provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of information that is "excluded information" of an agency, other than information that the agency has consented to the disclosure of. "Excluded information" is defined as being information of an agency specified in Schedule 2 that relates to any functions specified in that Schedule in relation to the agency (cl 1 of Schedule 4). Schedule 2 to the GIPA Act specifies that information relating to the "complaint handling and investigative functions conferred by or under any Act" on the respondent is "excluded information".
5. The consequence of information being subject to a conclusive presumption against disclosure is that an agency is not required to balance the public interests in favour of and against disclosure before refusing access to it and the Tribunal is precluded from considering the public interest test in relation to that information (Yee v Medical Council of NSW [2017] NSWCATAD 370 at [41]). As set out above, "excluded information" is defined as being information "that relates to any function specified… in relation to the agency". The expression "relate to" has been held to be one of broad import: see, for example, Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 11. This Tribunal has generally held that the phrase "relating to" and similar expressions is a broad one to be construed with the widest import (Miller v Director of Public Prosecutions [2012] NSWADT 38 at [19] - [23]; Pertsinidis v Illawarra Shoalhaven Local Health District [2014] NSWCATAD 130 at [59]). As the Tribunal noted in Watson v NSW Trustee and Guardian [2015] NSWCATAD 139 at [15], in each case, the question is the extent to which the information in issue has a connection with the specified function.
6. Ms Beregi submits that the respondent has failed to show that the information in question relates to the complaint handling and investigative functions conferred by or under any Act on the OLG as required by Schedule 2. She also submits that there is a clear distinction between any complaint handling and investigative functions of the OLG and a public inquiry established under s 438U of the Local Government Act. In light of this distinction, the information to which she seeks access, as it relates to a public inquiry, is unrelated to any complaint handling and investigative functions which may be conferred on OLG.
7. The GIPA Act does not define the terms "investigative function" or "complaint handling function". There has been little consideration of the construction of these terms and they should be given their natural meanings. Drawing on cases in other related fields, however, a significant breadth of information is capable of falling within the definition of "investigative and complaint handling functions" (Broadribb v Medical Council of New South Wales [2018] NSWCATAD 213 at [45] - [62]; DF v Director General, Attorney General's Department [2002] NSWADT 164 at [25]; Miller v Director of Public Prosecutions [2012] NSWADT 38 at [19] - [32]).
8. Section 430 of the Local Government Act provides that the Chief Executive may, at the request of the Minister or on the Chief Executive's own initiative, conduct an investigation into any aspect of a council or of its work and activities. Section 430 is a very broad general investigative power and is in addition to specific complaint and investigative powers conferred in relation to public interest disclosures (s 429A) and pecuniary interests (s 460). The Minister has various powers in relation to councils and can issue a performance improvement order specifying the reason for the making of the order and the actions the Minister requires a council to take to improve performance (s 438A). The Minister can also temporarily suspend a council if the Minister believes that the appointment of an interim administrator is necessary to restore the proper or effective functioning of the council (s 438I). The Governor or the Minister may also appoint a Commissioner or Commissioners to hold a public inquiry into matters relating to the performance of the functions of a council or councillor (s 438U).
9. The evidence of Ms Brown is that OLG receives complaints about councils from a variety of sources and also receives referrals from other agencies, such as the Ombudsman and Independent Commission Against Corruption. She states information obtained from such complaints is subject to a preliminary inquiry in order to inform a decision about whether or not particular investigations should be conducted. Her area within OLG is responsible for providing advice about how certain complaints might be resolved as part of the investigation of a particular complaint. Her evidence is that the powers of the Minister to suspend a council or to issue a Performance Improvement Order are extensions of the complaints and investigative functions conferred on OLG. In her evidence she described the process, in the case of the Council, as more or less a continuum ultimately leading to a public inquiry as no other steps that had been taken had been effective to deal with the issues the subject of the complaints.
10. A brief description of all of the information in dispute is contained in Ms Brown's statement. I was also supplied with a complete copy of the information which has been withheld from Ms Beregi and had the opportunity in a confidential session of the hearing to hear further submissions from the respondent in relation to the information and to ask questions accordingly.
11. I am of the view, contrary to the submissions of Ms Beregi, that the complaint handling and investigative functions of the respondent encompass matters from the receipt of a complaint up to and including its resolution. These functions will include the broad complaint handling powers in section 430 of the Local Government Act and extend to the more serious functions concerning the suspension of a council, the making of a Performance Improvement Order and to the very serious undertaking of the conduct of a public inquiry into allegations against a council or councillors. I do not agree with Ms Beregi's submission that use of the information in the course of the Public Inquiry by Mr Howard means that the information was no longer related to any function of the OLG. In my view, such a secondary use of the information does not remove its fundamental character as information of the relevant kind. Such a view is in accordance with the broad interpretation which has been given to the term information that relates to the complaint handling and investigative functions conferred by or under any Act on OLG.
12. The information in question concerns matters such as details of the complaints; information provided to Mr Howard about complaints which had been dealt with by OLG; submissions and file notes prepared by OLG staff containing their observations of Council meetings prepared as part of the process of ascertaining whether various complaints should be investigated; notes of confidential conversations between OLG staff and persons from or related to Council; documents which were generated as part of the OLG investigation of the complaints; responses to requests from Mr Howard for information relating to matters the subject of the public inquiry; and submissions, recommendations and emails concerning steps to be taken to deal with the complaints made about the Council and assessments of steps already taken in relation to those issues.
13. I am therefore satisfied that the information relates to the complaint handling and investigative functions conferred by or under the Local Government Act on OLG and, as such, is therefore prima facie excluded information.
14. Information will only be excluded information, however, if the relevant agency has not consented to its release. There is some information which would fall into the category of excluded information but which in fact has been released by the respondent in response to the access applications by Ms Beregi. The advice provided by the respondent is that the information so provided was not particularly sensitive and it is therefore reasonable to infer that the respondent consented to its release.
15. Ms Beregi submits that all the information withheld in relation to her first access application was in fact freely disclosed to Mr Howard for the purpose of the Public Inquiry. She notes that the Public Inquiry was called pursuant to section 438U of the Local Government Act and was therefore governed by the provisions of the Royal Commissions Act 1923 and section 24 of the Local Court Act 2007. These Acts required the Public Inquiry to be conducted in public, although a direction under section 12B of the Royal Commissions Act could be made that certain information was provided to the Commissioner in confidence. She states that no such request for non-publication in respect of any of the disputed information was made by OLG and no order made by Mr Howard.
16. Ms Beregi also notes that some of the disputed information was provided to the Minister and states that, having previously consented to the disclosure of the information to the Minister, OLG cannot now assert that the information is subject to a conclusive presumption against disclosure. Ms Beregi also states that she has in fact been provided with some of the disputed information through other avenues.
17. Ms Beregi submits that the caveat in relation to whether information is excluded information concerning consent to its release needs to be interpreted widely and should include past consents to release of the information.
18. Information can be sought and obtained under a variety of means. The fact that information may have already been released in other circumstances does not change the character of the information as "excluded information" under the GIPA Act. The provisions which apply to the characterisation of the relevant information are to be found solely within the GIPA Act. The issues for determination concern whether or not under that Act the information is "excluded information". While the respondent has in fact consented to the provision to Ms Beregi of some information which is "excluded information", there has been no consent by the respondent to the provision of the balance of that information in response to the access applications under the GIPA Act. The information in dispute is therefore excluded information within the meaning of the GIPA Act.
19. As noted above, further information has been provided to Ms Beregi during the course of these proceedings. The appropriate orders of therefore to vary the decisions to take account of the information so released but to otherwise affirm the decisions under review.

Orders 1. The name of the respondent is amended to Department of Planning, Industry and Environment. 2. In matter 2018/00205665 information previously withheld and not contained in the Schedule attached to this Decision is released to the applicant. 3. The decision in matter 2018/00205665 is otherwise affirmed. 4. In matter 2018/00349983 information previously withheld and not contained in the Schedule attached to this Decision is released to the applicant. 5. The decision in matter 2018/00349983 is otherwise affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar

Schedule of Documents NOT TO BE RELEASED Number Description of Record Bases for non-disclosure 2018/205665 - the first access application - documents referred to in the Schedule to the September decision 1-15a 15a - A488616 - code of conduct matters referred by Council Excluded information in the alternative, items 1(d), 1(e), 1(f) and 3(a) of Table to s 14 1-15t 15t - Attachment Q - File Note of observations of meeting October 2013 Excluded information in the alternative, items 1(e), 1(f) and 3(a) of Table to s 14 1-15ze 15ze - Attachment ZB - File Note of observations of meeting 20 July 2015 Excluded information in the alternative, items 1(e), 1(f) and 3(a) of Table to s 14 1-15zh 15zh - Attachment ZE - File note of observations of meeting 17 August 2015 Excluded information in the alternative, items 1(e), 1(f) and 3(a) of Table to s 14 1-15zi 15zi - Attachment ZF - File note of observations of meeting 16 November 2015 Excluded information in the alternative, items 1(e), 1(f) and 3(a) of Table to s 14 1-15zk 15zk - Attachment ZH - Notes of meeting with North Sydney Council staff - 7 July 2014 Excluded information in the alternative, items 1(d), 1(e), 1(f) and 3(a) of Table to s 14 1-15zm 15zm - Attachment ZK - Framework For Managing Councillor Misconduct Allegations February 2013 Excluded information in the alternative, items 1(d), 1(e), 1(f) and 3(a) of Table to s 14 1-19 19 - North Sydney - Clr Gibson - Misconduct - investigation - DS (qA45100) (and investigation file attached) Excluded information in the alternative, remitter is appropriate for consideration of the information at a more granular level by the Department 1-23 23 - RE: further submissions (and investigation file attached) Excluded information in the alternative, remitter is appropriate for consideration of the information at a more granular level by the Department 1-26 26 - Response to Commissioner Howard Excluded information in the alternative, items 1(d), 1(e), 1(f) and 3(a) of Table to s 14 1-29 29 - A515260 - North Sydney PI - Sear (OLG) - Complaint statistics - 16-09-16 Excluded information in the alternative, items 1(d), 1(e), 1(f) and 3(a) of Table to s 14 2018/205665 - the first access application - additional documents attached to Document 1-23 (Annexure J to Brown Statement) 1 A489896 - OLG - North Sydney - Request for additional information - conduct investigation - submission.pdf Excluded information in the alternative, item 3(a) of Table to s 14 1a A489896 - Attachment A - Approval to conduct an investigation - Terms of Reference.pdf Excluded information in the alternative, item 3(a) of Table to s 14 1b A489896 - Attachment B - Submission to commence misconduct investigation.PDF Excluded information in the alternative, items 1(d), 1(e), 1(f) and 3(a) of Table to s 14 1c A489896 - Attachment C - Submission outlining assessment of matter 1.PDF Excluded information in the alternative, items 1(d), 1(e), 1(f) and 3(a) of Table to s 14 1d A489896 - Attachment D - Letter to Council regarding matter 1.PDF Excluded information in the alternative, item 3(a) of Table to s 14 2018/349983 - the second access application 2-1 A429679 - OLG - North Sydney - options following PIO - CE comment Excluded information in the alternative, items 1(f) and 3(a) of Table to s 14 2-2 A429679 - OLG - North Sydney - Submission on options following PIO - LB Excluded information in the alternative, items 1(d), 1(e), 1(f) and 3(a) of Table to s 14 2-2c Attachment 3 - Report of Mr Kirby on Conflict resolution process outcome Excluded information in the alternative, items 1(d), 1(f) and 3(a) of Table to s 14 2-2e Attachment 5 - Meeting observations - 20 July 2015 Excluded information in the alternative, items 1(e), 1(f) and 3(a) of Table to s 14 2-2f Attachment 6 - Meeting observations - 17 August 2015 Excluded information in the alternative, items 1(e), 1(f) and 3(a) of Table to s 14 2-3 A438693 - OLG - North Sydney - Sub for PI and Suspension 17 September 2015 Excluded information in the alternative, items 1(d), 1(e), 1(f) and 3(a) of Table to s 14 2-4 A438717 - North Sydney - Final submission recommending Public Inquiry and Suspension Excluded information in the alternative, items 1(d), 1(e), 1(f) and 3(a) of Table to s 14 2-4a1 A393380 - North Sydney Intervention Summary - one page table - Sept 2014 Excluded information in the alternative, items 1(d), 1(f) and 3(a) of Table to s 14 2-4a A454407 - North Sydney - Public Inquiry - Attachment A - Events leading to PIO Excluded information in the alternative, items 1(d), 1(e), 1(f) and 3(a) of Table to s 14 2-5 A441798 - OLG - North Sydney - Revised Final Submission to Minister on Public Inquiry January 2016 - SUB Excluded information in the alternative, items 1(d), 1(e), 1(f) and 3(a) of Table to s 14 2-6 Enclosure 1 - A438717 - OLG - North Sydney - submission - December 2015 Excluded information in the alternative, items 1(d), 1(e), 1(f) and 3(a) of Table to s 14 2-7 A452077 - North Sydney - Options for further intervention - December 2015 Excluded information in the alternative, items 1(e) and 1(f) of Table to s 14

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 December 2019