Beveridge v Cessnock City Council - [2020] NSWCATAD 306 - NSWCATAD 2020 case summary — Zoe

NSWNSWCATAD

Beveridge v Cessnock City Council

[2020] NSWCATAD 306

NCAT Administrative and Equal Opportunity|2020-07-01

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NCAT Administrative and Equal Opportunity

Decision date

2020-07-01

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Judgment (43 paragraphs)

[1]

ant, or in respect of which the Tribunal has determined are to be released to the applicant, the respondent is to redact the names and addresses of employees of the respondent (other than the applicant) not previously released, before releasing those items to the applicant; (b) in respect of the draft reports prepared by Pinnacle Integrity in items 40, 51,60 and 65: (i) the information redacted from the final report which was released in part to the Applicant in response to access application 43/2018/16, be redacted; (ii) any information which identifies a complainant or person who provided information in response to the investigation by Pinnacle Integrity, and which has not already been released, be redacted; (iii) the respondent is to consider any information which is contained in the draft reports prepared by Pinnacle Integrity but is not contained in the Final Pinnacle Report and whether such information should be released to the applicant; (c) in respect of items 48, 55, 56 and 59, the applicant be provided with access to the information which comprises parts of the Final Pinnacle Report and which is available to the applicant: (i) following reconsideration of items 40, 51, 60 and 65; or (ii) because it has previously been provided to the applicant; (d) such reconsideration is to be completed within 35 days of the date of these orders. (4) The decision of the respondent is otherwise affirmed. 3 In respect of proceedings 2020/83318, the decision under review is set aside and remitted to the respondent for reconsideration on the basis that the access application is an access application for all correspondence between the respondent and the United Services Union in relation to: (1) complaints or grievances made by persons other than employees of the respondent against the applicant, which took place between 30 December 2015 and 3 November 2017; (2) internal investigations of the applicant, which took place between 30 December 2015 and 3 November 2017; (3) external investigations of the applicant, other than the investigation conducted by Pendlebury Workplace, which took place between 30 December 2015 and 3 November 2017; (4) with such reconsideration to be completed within 35 days of the date of these orders. 4 The applicant's application for review is to be listed for directions on 28 January 2021 at 9.30am in respect to orders 2 and 3 Catchwords: ADMINISTRATIVE LAW - access to government information - access application - public interests in favour of disclosure - public interests against disclosure - whether overriding public interest against disclosure - whether to refuse to deal with application on the basis of a previous application for the information concerned Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009 Privacy and Personal Information Protection Act 1998 Cases Cited: Brady v Commissioner of Police, NSW Police Force [2013] NSWADT 53 Commissioner of Police v Danis [2017] NSWCATAP 7 Fire Brigade Employees' Union v Fire and Rescue (NSW) [2014] NSWCATAD 113 Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 Forbidden Foods Pty Ltd v Rice Marketing Board of New South Wales [2020] NSWCATAD 18 Hurst v Wagga Wagga City Council [2011] NSWADT 307 Luxford v Department of Education and Communities (NSW) [2016] NSWCATAD 118 Macquarie University v Howell (No 2) [2009] NSWADTAP 19 Martin v Commissioner of Police, NSW Police [2005] NSWADT 23 McMahon v Director General, Department of Fair Training [2003] NSWADT 164 at [25] McMillan v Commissioner of Police, NSW Police Force Meacham v Commissioner of Police [2020] NSWCATAP 107 Miskelly v Transport for NSW [2017] NSWCATAD 207 Nature Conservation Council v Department of Trade and Investment, Regional Infrastructure and Services (NSW) [2012] NSWADT 195 Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588 Taylor v Office of Destination NSW [2018] NSWCATAD 195 at [20] Transport for NSW v Searle [2018] NSWCATAP 93 University of New South Wales v McGuirk [2006] NSWSC 1362 Texts Cited: None cited Category: Principal judgment Parties: Robert Kenneth Beveridge (Applicant) Cessnock City Council (Respondent) Representation: Solicitors: Applicant (self-represented) Lindsay Taylor Lawyers (Respondent) File Number(s): 2020/00083306, 2020/00083318, 2020/00083356 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013, the publication or disclosure of the parts of these Reasons marked 'NOT FOR PUBLICATION' is prohibited

[3]

access applications 43/2019/116 and 43/2019/114

It is convenient to consider the first two decisions together as they raise common issues.
On 30 October 2019, the applicant made access application 43/2019/116, seeking the following information: 'Request all information relating to my complaint to Mayer Bob Pynsent, dated 12/2/2018. Complaint was referred to a third party - Pinnacle Integrity. Company failed to provide report to myself. Also failed to include serious allegations that I have made omitting a large amount of information I had provided to Cara Portese in two sound recorded interviews to which I have copies. Requesting the full un-redacted report from Council. Requesting all correspondence from Cessnock Council staff and Pinnacle Integrity. In particular all correspondence from Cara Portese, Shane White and the General Manager and all other staff including the Mayor, Directors and the HR department. All internal correspondence relating to my complaint between Council employed staff'.
On 31 October 2019, the applicant made access application 43/2019/114, seeking the following information: 'Request all correspondence relating to an external investigation against myself Robert Kenneth Beveridge conducted by Brooke Pendlebury in December 2016/2017. In particular I request all correspondence between the HR Manager Darrylen Allan and Brooke Pendlebury. Also I request any correspondence relating to the investigation between Darrylen Allan and the General Manager at the time Stephen Glen. Also all correspondence between Darrylen Allan and the United Services Union. Also all correspondence between Ms Darrylen Allen and Justin Fitzpatrick-Barr. Also I request all action that was taken against the complainants given the fact it was determined by the investigator Brooke Pendlebury that the complaint was vexatious. I request all information relating to this application to be unredacted'.
On 15 April 2020, the respondent made decisions with respect to access applications 43/2019/116 and 43/2019/114. For each of these access applications, the respondent decided: 1. under s 58(1)(a) of the GIPA Act to provide access to some of the information sought; 2. under ss 58(1)(c) and 59 of the GIPA Act, to not provide access to some of the information sought, because that information was already available to the applicant; 3. under s 58(1)(d) of the Act to not provide access to some of the information sought because there was an overriding public interest against disclosure of that information.
For each of these decisions, the respondent provided a Schedule of Documents in which it identified relevant documents and for each document whether it had decided to allow or refuse access to the information contained therein and where access was refused, the basis or bases for such refusal.
The applicant sought review of the respondent's decisions. A hearing of that application occurred on 1 July 2020. During the hearing each of the applicant and the respondent made concessions, which reduced the scope of the dispute between them. In particular: 1. the applicant indicated that he did not object to the redaction of the names and addresses of employees of the respondent. The effect of this concession (applicant's concession) is that a number of the redactions made by the respondent in reliance upon cll 3(a) and 3(b) of the Table to s 14 of the GIPA Act are no longer challenged to the extent they contain individuals' names and addresses. Where that is so, such information is not discussed in these Reasons, as it is common ground that it is not to be released to the applicant; 2. the respondent agreed to release further information to the applicant and in particular: 1. the information contained in following items identified in the Schedule of Documents for access application 43/2019/114: 6, 9, 23, 27 (in part), 29, 40 (in part), 45, 51 (in part), 55, 57, 58, 60 (in part), 61, 62, 63, 64, 65 (in part), 67, 75 and 76; 2. parts of item 12 in the Schedule of Documents for access application 43/2019/116; (respondent's concession). That information is also not discussed in these Reasons as it is common ground that it is to be released to the applicant.
The respondent also indicated that reliance upon some clauses of the Table in s 14 of the GIPA Act as set out in the Schedules of Documents was not maintained for some documents, but other clauses, not set out in those Schedules, were relied upon for particular documents.

[5]

The Tribunal's task

The Tribunal's task, briefly stated, is to decide what the correct and preferable decision on whether access to the requested information should be given is, having regard to the material before it, including relevant factual material and any applicable written or unwritten law. The Tribunal re-makes the decision, as if it were the administrator: s 63 ADR Act; Commissioner of Police v Danis [2017] NSWCATAP 7 at [31].
In so doing, the Tribunal is to ensure that it does not disclose any information for which there is an overriding public interest against disclosure; or in respect of information which the agency has claimed there is such an overriding interest but for which the Tribunal finds there is not: s 107 GIPA Act; University of New South Wales v McGuirk [2006] NSWSC 1362 at [91]. To that end, some parts of these Reasons have been marked 'NOT FOR PUBLICATION' and are not to be published or otherwise disclosed to the applicant.
The material before the Tribunal is: 1. oral evidence from the applicant; 2. written submissions of the applicant, with 29 attachments; 3. an affidavit of Mr Robert Maginnity, the respondent's Director Corporate and Community Services and Public Officer sworn 4 June 2020 with annexures, including confidential annexures; 4. oral evidence from Mr Maginnity; 5. an affidavit of Ms Teressa Chadwick, the respondent's Governance Coordinator, sworn 4 June 2020 with annexures, including confidential annexures; 6. the redacted and unredacted documents the subject of access application 43/2019/114; 7. the redacted and unredacted documents the subject of access application 43/2019/116; 8. the respondent's written submissions in chief; 9. the respondents written submissions in reply, including attachments of 751 pages; 10. a letter from the respondent to the applicant dated 5 July 2018; 11. an email from the respondent's solicitor to the Tribunal dated 1 July 2020 with confidential attachments.
Orders were made during the hearing to preserve the confidentiality of the evidence identified by the respondent as confidential.

[6]

Findings of Fact

The following findings of fact are taken, except where otherwise indicated, from information contained within non-confidential evidence before the Tribunal.
The applicant was an employee of the respondent from the mid 1980s and from 2010 was the Pool Superintendent at Cessnock Pool.
In December 2015, the applicant was involved in an incident with another employee of the respondent.
In late 2016 or early 2017, the respondent initiated an investigation into an allegation of inappropriate use of the respondent's resources (Pendlebury Investigation). As part of the Pendlebury Investigation, certain employees of the respondent were asked to provide information and were told that the information they provided, and the investigation process, were confidential.
The respondent told those employees that the process was confidential as part of a practice of confidentiality which it adopts so that participants are not concerned that the information they provide may be disclosed to the person who made the complaint and so as to not prejudice the future cooperation of its employees in future enquiries.
Related to the Pendlebury Investigation were proceedings in the Industrial Relations Commission commenced by the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union against the respondent (IRC Proceedings).
On 3 November 2017, the applicant ceased employment with the respondent. The cessation of the applicant's employment followed a restructure implemented by the respondent. That restructure followed investigations undertaken by the respondent and the creation of a 'Business Case'.
The investigations which led to the creation of the Business Case included discussions with various employees and the information which was obtained from those employees was gathered on the basis that it would be treated confidentially. The evidence of Mr Maginnity was that the aim of such investigations is to obtain as much information as possible (including personal information) and that to ensure the integrity of the reports produced and the future supply of such information from the respondent's employees it was necessary to maintain confidentiality of the information provided by those employees.
Mr Maginnity's evidence is that it is the respondent's practice to maintain confidentiality over business cases it produces, including the present Business Case.
The applicant believes that the restructure was a sham, designed to end his employment by the respondent, and in which various officers of the respondent participated.
In January 2018, the applicant made his first access application (43/2018/5) to the respondent.
On 12 February 2018, the applicant made a complaint to the respondent alleging corruption on the part of various persons.
On 12 March 2018, the respondent retained Pinnacle Integrity to investigate the applicant's complaint and provide a preliminary assessment. The investigation was undertaken as an investigation into a complaint to which the respondent's Code of Conduct and Code of Conduct Procedures applied.
The Pinnacle Integrity employees involved in the Pinnacle Integrity Investigation were Mr Shane White and Ms Cara Portese.
During the course of the Pinnacle Integrity Investigation, Mr White and/or Ms Cortese: 1. communicated with various employees of the respondent, including: 1. Mr Gareth Curtis, Director, Planning and Environment; 2. Ms Sandra Richardson, Executive Assistant to Mr Curtis; 3. Ms Nicole Benson, Manager Open Space & Community Facilities; 4. Ms Sonia Huthnance, Acting Human Resources Manager; 1. interviewed the applicant at length; 2. interviewed various employees of the respondent; and 3. were provided with various records belonging to the respondent.
The information provided by employees of the respondent during the Pinnacle Integrity Investigation was provided in confidence.
During March 2018, the applicant made further access applications - on 12 March 2018 (43/2018/7), 21 March 2018 (43/2018/9) and 28 March 2018 (43/2018/11).
On 14 May 2018, Mr White of Pinnacle Integrity provided, by email, a draft Preliminary Assessment Report to Mr Curtis of the respondent. On the same day, Mr Curtis forwarded that email to Mr Maginnity and Ms Huthnance of the respondent.
On 16 May 2018, Mr Curtis provided to Mr White, by email, a marked up version of the draft Preliminary Assessment Report, containing comments from the respondent. The attachment to Mr Curtis's email was titled 'CCC Preliminary Assessment Draft 110518 with review comments GC-RM-SH v2'.
On 23 May 2018, the final version of Pinnacle Integrity's Report (Final Pinnacle Report) was provided to the respondent.
[NOT FOR PUBLICATION]
On 6 June 2018, the applicant made another access application (no. 43/2018/16) in which he requested '... the full unredacted report that was conducted by Pinnacle Integrity relating to my complaints to the Mayor on 12/2/2018'.
On 5 July 2018, the respondent provided to the applicant a copy of the Final Pinnacle Report, with parts redacted on various bases.

[7]

The applicable law

The applicable law includes the GIPA Act and legal principles applying to the provisions of that Act. Interpretation of the GIPA Act is governed by s 3 of that Act which provides: 3 Object of Act (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. (2) It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
Section 9 (1) of the GIPA Act provides: 9 Access applications (1) A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.
Section 58 of the GIPA Act deals with how access applications are decided by agencies. As noted above, the respondent refused access to parts of documents pursuant to s 58(1)(d) of the GIPA Act. Section 58(1)(d) provides: 58 How applications are decided (1) An agency decides an access application for government information by: … (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information.
Section 60(1)(b) provides: (1) An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason)- … (b) the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision on the application,
The onus of establishing that an agency's decision is justified lies on the agency: s 105 GIPA Act. That means the agency must, first, identify the information contained in each document which it contends should be withheld from the applicant because the public interest considerations against disclosure of the information contained in the document outweigh those in favour; and secondly justify its decision through submissions and evidence, sufficient to satisfy the Tribunal: Taylor v Office of Destination NSW [2018] NSWCATAD 195 at [20]; Forbidden Foods Pty Ltd v Rice Marketing Board of New South Wales [2020] NSWCATAD 18 at [52].
In considering whether there is an overriding public interest against disclosure of particular information, the following sections of the GIPA Act (together with ss 3, 9 and 105) are germane: 5 Presumption in favour of disclosure of government information There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. … 12 Public interest considerations in favour of disclosure (1) There is a general public interest in favour of the disclosure of government information. (2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Note: The following are examples of public interest considerations in favour of disclosure of information: (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. (3) The Information Commissioner can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies. … 13 Public interest test There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. … 14 Public interest considerations against disclosure (1) 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. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. … Table 1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally): … (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, (e) reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency, (f) prejudice the effective exercise of an agency of the agency's functions, (g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence, ... 3 Individual rights, judicial processes and natural justice There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects: (a) reveal an individual's personal information, (b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998, ... (f) expose a person to a risk of harm or serious harassment or serious intimidation, ... 4 Business interests of agencies and other persons There is a public interest consideration against disclosure of information if disclosure could reasonably be expected to have one or more of the following effects - ... (c) diminish the competitive commercial value of any information to any person, (d) prejudice any person's legitimate business, commercial, professional or financial interests, ... 15 Principles that apply to public interest determination A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles: (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information. 55 Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section: (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14. (4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for. (5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to take reasonable steps to provide proof of his or her identity. (6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person.
Thus it may be seen that the GIPA creates a presumption in favour of disclosure of government information unless there is an overriding public interest against disclosure of that information (s 5 GIPA Act), and the applicant has a legally enforceable right to the government information he seeks, subject (again) to there not being an overriding public interest against disclosure (s 9 GIPA Act).
There will be an overriding public interest against disclosure for the purposes of the GIPA Act if and only if there are public interest considerations against disclosure which outweigh the public interest considerations in favour for disclosure (s 13 GIPA Act). The presence of particular considerations against disclosure, being those set out in Sch 1 of the GIPA Act, is sufficient to compel the conclusion that there is an overriding public interest against disclosure such that the information is not to be disclosed (s 14(1) GIPA Act).
However, absent a Sch 1 consideration against disclosure the Tribunal's task is to consider and weigh in the balance: 1. the public interest considerations in favour of disclosure, which are unlimited and include: 1. the general public interest in favour of disclosure (s 12(1) GIPA Act); 2. the examples listed in the note to s 12(2) of the GIPA Act; and 1. the public interest considerations against disclosure, which are limited to those in the table in s 14 of the GIPA Act.
In undertaking this task, the Tribunal is entitled to take into account the 'personal factors of the application' as factors in favour of disclosure (s 55 GIPA Act). The personal factors of the application are described in s 55 as: 1. the applicant's identity and relationship with any other person; 2. the applicant's motives for making the access application; and 3. any other factors particular to the applicant.
The Tribunal is also entitled to take into account personal factors of the application as factors against disclosure, but only to the extent that those factors are relevant to the consideration of whether disclosure of the information could reasonably be expected to have any of the effects referred to in cll 2, 3, 4 or 5 of the table in s 14 of the GIPA Act.
In the present case, the respondent does not rely upon cll 2 or 5 of the table in s 14 of the GIPA Act, but does rely upon cll 3 and 4. It follows that the personal factors of the application may be taken into account as factors against disclosure of the information sought by the applicant only when considering whether disclosure of the information could reasonably be expected to have the effect described in a relevant sub clause of cl 3 or cl 4.
The balancing exercise requires the Tribunal to make a broad value judgment. However, that judgment is to be made, not in a vacuum, but instead in a context which has regard to the objects of the legislation, the general presumption in favour of disclosure of government information, and the principles set out in s 15 of the GIPA Act: Transport for NSW v Searle [2018] NSWCATAP 93 at [104].

[11]

Could reasonably be expected

Each of these public interest considerations against disclosure includes the phrase '… could reasonably be expected to have one or more of the following effects …'. The principles to be applied in considering whether disclosure of information 'could reasonably be expected' to have a particular effect were summarised in Transport for NSW v Searle [2018] NSWCATAP 93 at [68] as follows: 68. There was no dispute between the parties that: … (2) The words 'could reasonably be expected' are to be given their ordinary meaning. They require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that disclosure would have the relevant effect: Attorney-General's Department v Cockcroft (1986) 10 FCR 180 at 190.5; Raven v The University of Sydney [2015] NSWCATAD 104 at 48. As was made clear by Hayne J in McKinnon v Secretary, Department of Treasury [2006] HCA 45 at [61] - ... when their Honours said, as they did, that the words required a 'judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous,' to expect certain consequences, they are not to be understood as having used the latter expression as a paraphrase of the former. Rather, they are to be understood, and have since been understood, as doing no more than drawing an emphatic comparison. To do more would have been, as their Honours correctly said, 'to place an unwarranted gloss upon the relatively plain words of the Act.' (3) In order to discharge the onus, the appellant needed to show more than a mere possibility, risk or chance of prejudice. It must be based on real and substantial grounds: Australian Vaccination Network v Department of Finance & Services [2013] NSWADT 60 at [22]. (4) It will not be sufficient for the decision-maker to proffer the view. It must be supported in some way: Manly v Ministry of Premier and Cabinet (1995) 14 WAR 550 at 573G; Raven at [53]. (5) 'Prejudice' is to be given its ordinary meaning, that is, to cause detriment or disadvantage, or to impede or derogate from: Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60]. (6) The question as to prejudice to future supply was not to be determined by reference to the particulars of the instant situation. It was not necessary to show that it could reasonably be expected to occur on every occasion. It was to be determined at a broader operational level. Hence, the fact that in the instant situation the specific individual(s) supplying the information was unlikely to be inhibited even if there was disclosure was not determinative against the agency: Camilleri at [21], [22] and [26].
Whether disclosure of particular information 'could reasonably be expected to' have a particular effect is a question of fact to be established to the relevant standard of proof, on the balance of probabilities: Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42]; McMillan v Commissioner of Police, NSW Police Force; Brady v Commissioner of Police, NSW Police Force [2013] NSWADT 53 at [66].
The requirements for proof of questions of fact in administrative review proceedings generally were summarised by the Appeal Panel in Meacham v Commissioner of Police [2020] NSWCATAP 107 at [54] and [83]: [54] Despite not being bound by the rules of evidence, the Tribunal is required to base its findings of fact on 'logically probative material', and not on 'mere suspicion or speculation', as a corollary of its obligation to act reasonably: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 ('Pochi') at 62, 68 (Deane J); [1980] FCA 85; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 ('Sullivan') at [5]-[8], [15]-[17] (Logan J). It is an error of law for the Tribunal to make a finding of fact with no evidence, or no probative evidence, to support it. … [83] Proof of matters which are asserted is required in a practical sense, and a party asserting a fact is generally required to provide evidence to substantiate it. As noted above, the Tribunal is required to base its findings of fact on 'logically probative material': Pochi at 62, 68; Sullivan at [5]-[8], [15]-[17].
In Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 the Appeal Panel considered the evidence required to establish that disclosure of the information could reasonably be expected to have a particular effect. After referring to Searle and the authorities discussed in that decision, the Appeal Panel said at [59]: Based on these authorities when considering the evidence on which it is asserted that disclosure 'could reasonably be expected' to have a particular effect, the following principles should be kept in mind: (1) a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient; (2) there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect; (3) prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses.

[13]

Clause 1(e)

Clause 1(e) provides that there is a public interest consideration against disclosure of information if disclosure of that information could reasonably be expected to have the effect (whether in a particular case or generally) of revealing a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency.
The respondent must establish that the withheld information, if disclosed, could 'reasonably be expected' to 'reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given' in such a way as to 'prejudice a deliberative process' of the respondent.
The concept of 'reasonably be expected' is discussed above. The word 'reveal' is defined in Sch 4 to the GIPA Act as follows: reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).
The word 'disclose' is defined in Sch 4 to the GIPA Act as follows: disclose information includes make information available and release or provide access to information.
As noted in Nature Conservation Council v Department of Trade and Investment, Regional Infrastructure and Services (NSW) [2012] NSWADT 195 at [172]: In R v Ritson; R v Stacey (2010) NSWDC 160 at [51] - [58] the Court adopted the meaning of 'disclosure' for the purposes of the Privacy and Person Information Protection Act 1998 stated by Latham CJ of the High Court in Foster v Federal Commissioner of Taxation (1951) 82 CLR 606 at 614-615: ... it is not possible, according to the ordinary use of language, to 'disclose' to a person a fact of which he is, to the knowledge of the person making a statement as to the fact, already aware.
The words 'in such a way as to' in cl 1(e) require that there be a connection between the revelation of the deliberation, consultation, opinion, advice or recommendation and the 'prejudice' to a 'deliberative process' of the respondent: Fire Brigade Employees' Union v Fire and Rescue (NSW) [2014] NSWCATAD 113 at [57]; Luxford v Department of Education and Communities (NSW) [2016] NSWCATAD 118 at [103].
As noted above, the word 'prejudice' bears its ordinary meaning.
The expression 'deliberative process' involves 'the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action... It by no means follows, therefore, that every document on a departmental file will fall into this category...documents disclosing deliberative processes must… be distinguishable from documents dealing with the purely procedural or administrative processes involved in the functions of an agency': Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588 at [58]-[59], Fire Brigade Employees' Union v Fire and Rescue (NSW) at [58] and Luxford v Department of Education and Communities (NSW) at [104].
In Miskelly v Transport for NSW [2017] NSWCATAD 207 at [72], the Tribunal noted: The 'deliberative process' of an agency has been described as its 'thinking processes ... including those by which it seeks internal input and discussions as to different courses of action, evaluates the wisdom of them, and the relative benefits and detriments of them: Cameron v Commissioner of Police (NSW) [2014] NSWCATAD 13 at 66, or its 'internal thinking': Fire Brigade Union v Fire and Rescue (NSW) [2014] NSWCATAD 133.

[27]

Item 26

Item 26 is an email dated 9 April 2018 from Ms Huthnance of the respondent to Ms Portese of Pinnacle Integrity, with the subject 'Robert Beveridge documents'. The email has a series of attachments, some of which have been redacted. The redactions which remain in issue have been made in reliance upon cll 1(d), (f) and (g) and 3(a), (b) and (f) and have been made to: 1. attachment (b), a file note regarding an incident on 4 January 2016; 2. attachment (c), a file note of Mr Adams; 3. attachment (e), described as 'Investigation findings regarding Mr Beveridge dated 5/01/2016'; 4. attachment (g), a file note by N Adams dated 6/01/16; 5. attachment (h) described as 'Notes from [name redacted] regarding incidents on 29/12/2015 and 30/12/2015'; and 6. attachments (i), (j) and (k) respectively, which are each described as 'Letter to [name redacted] dated 23/02/20164׀Outcome of Investigation'.
I have considered the information redacted from the documents described in subparagraphs [96] (1) to (5) above. Having done so, I am satisfied from the contents of the email and its attachments and the evidence of Mr Maginnity that the redacted information was obtained in confidence as part of an investigation and that the release of this information could reasonably be expected to prejudice the future supply to the Council of confidential information that facilitates the effective exercise of the Council's functions, namely the investigation of complaints. I am thus satisfied that cll 1(d), (f) and (g) are engaged, and I take this into account as a public interest consideration against disclosure.
I also take into account the public interest considerations in favour of disclosure at [50] above and the personal factors in favour of disclosure set out at [52] above.
The considerations against disclosure significantly outweigh those in favour of disclosure.
As to the information redacted from attachments (i) and (j) which remains in issue, I am satisfied that each of the redactions is of information which is personal information, the disclosure of which could reasonably be expected to have the effects described in cll 3(a) and (b). I take this into account as a consideration against disclosure.
Against this, I take into account the public interest considerations in favour of disclosure are set out at [50] above and the personal factors in favour of disclosure set out at [52] above.
On balance, the considerations against disclosure significantly outweigh those in favour of disclosure.
As to the information redacted from attachment (k): 1. for the first three redactions: 1. I am satisfied that each of the redactions is of information which is personal information, the disclosure of which could reasonably be expected to have the effects described in cll 3(a) and (b) and I take this into account, together with the public interest considerations in favour of disclosure are set out at [50] above and the personal factors in favour of disclosure set out at [52] above and find that, on balance, the considerations against disclosure outweigh those in favour of disclosure; 1. for the remaining redactions, I reach the same conclusion as I did for the information referred to in subparagraphs [96] (1) to (5) above, for the reasons there set out.
It follows that the information redacted from item 26 should not be released to the applicant.

[30]

Item 30

Item 30 is an email from Mr Curtis of the respondent to Ms Portese dated 3 May 2018 (5:39pm) in which he provides to Ms Portese information described as further information from Mr Fitzpatrick-Barr of the respondent following his interview earlier that week and relating to information sent earlier that week concerning the Pendlebury Report and the IRC Proceedings. The email has several attachments which are described in the email as confidential. Parts of those attachments have been redacted in reliance upon cll 1(d), (f) and (g) and 3(a), (b) and (f). The redactions which remain in issue are discussed below.
The first redaction is within the second line of an email from Mr Justin Fitzpatrick Barr to Mr Curtis dated 3 May 2018 (1:46pm). I am not satisfied, on the evidence before the Tribunal, that any of the clauses relied upon by the respondent is engaged. This information should be released to the applicant.
The second redaction is of text contained within a document titled 'Notification to Industrial Registrar of Industrial Dispute Pursuant to Section 130' (Second Notification).
I am not satisfied, on the evidence before the Tribunal, that any of the clauses relied upon is engaged. Thus, the information redacted from the Second Notification should be provided to the applicant, other than the name or address of any employee of the respondent (other than the applicant).
The third redaction is almost the entirety of Attachment 1 to the Second Notification. I am satisfied that this is personal information of an employee of the respondent, within the meaning of that term in cl 4 of Sch 4 to the GIPA Act, and thus that cl 3(a) is engaged and is to be taken into account as a public interest consideration against disclosure.
I also take into account the public interest considerations in favour of disclosure set out at [50] above and the personal factors in favour of disclosure set out at [52] above. On balance, the considerations against disclosure significantly outweigh those in favour of disclosure.
The fourth redaction is most of Attachment 2 to the Second Notification. Attachment 2 is an email from Mr Eveleigh of the respondent to a person whose name has been redacted. I am not satisfied that any of the clauses relied upon is engaged, other than with respect to the redacted name.
The information redacted from Annexure 2 should be provided to the applicant, other than the name or address of any employee of the respondent (other than the applicant).
The fifth redaction is to most of the First Notification.
For the reasons set out with respect to the Second Notification, the redacted information other than the name or address of any employee of the respondent (other than the applicant) should be released to the applicant.
The sixth redaction is almost the entirety of Attachment 1 to the Frist Notification. I am satisfied that cll 1(d), (f) and (g) are engaged with respect to this information. It has been provided confidentially and if released is likely to prejudice the supply of future similar information, to the prejudice of the functions of the respondent.
Against this, the public interest considerations in favour of disclosure are those set out at [50] above and the personal factors in favour of disclosure set out at [52] above. On balance, the considerations against disclosure significantly outweigh those in favour of disclosure. This information should not be released to the applicant.

[39]

ACCESS APPLICATION 43/2020/18

I turn now to the third decision.
On 28 January 2020, the applicant made access application 43/2020/20, seeking the following information: 'Request all correspondence including email, letters, etc. between Cessnock City Council and the United Services Union (USU) in relation to complaints, grievance, internal and external investigations against myself, which took place between 30/12/2015 and the end of my employment on 3/11/2017. I also request all correspondence between Cessnock Council and USU in relation to the restructure that took place in making my position redundant in what I allege was a sham redundancy to exit me from Council. The Correspondence requested would include the following USU officials and the following management and staff of Cessnock Council named below. The searches would include any correspondence that includes my name and the persons listed below. USU names: Graham Kelly, Stephen Hughes, Luke Hutchinson, Andrew Ryals, Leah Stothard, Rod Sandal, Joe Mills, David Williams Glenn George. Council Management and Staff names: Former General Manager Stephen Glen, Director Justin Fitzpatrick-Barr, Director Robert Maginnity, Director Gareth Curtis, HR Manager Darrylen Allan, Sonia Huthnance HR, Nicolas Adam HR, Manager Nicole Benson, Operations Co-ordination Nathan Eveleigh'.
On 25 February 2020, the respondent notified the applicant of its decision to refuse to deal further with the application, in reliance upon s 60(1)(b) of the GIPA Act. The respondent's decision set out the terms of the applicant's previous eight access applications, noted the overlap between the present application and previous applications and concluded that there were no reasonable grounds for believing that the respondent would make a different decision.
As noted above, s 60(1)(b) provides: (1) An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason)- … (b) the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision on the application
By this access application, the applicant seeks access to correspondence between the respondent and the United Services Union (USU) concerning two topics.

[40]

Correspondence in relation to complaints, grievances and internal and external investigations against the applicant.

The first topic is: '... all correspondence including email, letters, etc. between Cessnock City Council and the United Services Union (USU) in relation to complaints, grievance, internal and external investigations against myself, which took place between 30/12/2015 and the end of my employment on 3/11/2017'.
In earlier access applications the applicant sought access to: 1. '... all information relating to the external investigation conducted by Ms Pendlebury from Pendlebury Workplace that took place at Cessnock Council in December 2016 and January 2017.' (43/2018/5); 2. 'All information relating to complaints, grievances lodged against me by fellow staff members from 30th December 2015 to the end of my employment with Cessnock City Council on the 3rd November 2017' (43/2018/7).
The previous applications were wide enough to include correspondence between the respondent and the USU in relation to: 1. complaints and grievances lodged against the applicant during the period from 30 December 2015 to 3 November 2017 lodged by staff of the respondent but did not include complaints and grievances lodged during that period by any other person; 2. the external investigation by Ms Pendlebury, but not any other external investigation of the applicant.
The present application also requests correspondence between the respondent and the USU in relation to internal investigations of the applicant.
In these circumstances, I am not satisfied that the information now sought is substantially the same as the information sought in previously decided applications or that the result of this application would not differ from the result of earlier decided applications. Hence, I am not satisfied that s 60(1)(b) applies.
In my view, the correct and preferable decision is to remit the decision to the respondent for reconsideration on the basis that the application is limited to correspondence between the respondent and the USU in relation to: 1. complaints or grievances made by persons other than employees of the respondent against the applicant, which took place between 30 December 2015 and 3 November 2017; 2. internal investigations of the applicant, which took place between 30 December 2015 and 3 November 2017; 3. external investigations of the applicant, other than the investigation conducted by Pendlebury Workplace, which took place between 30 December 2015 and 3 November 2017.

[42]

Orders

In respect of proceedings 2020/83306, the Tribunal orders: 1. the decision of the respondent to impose a processing charge for dealing with access application 43/2019/116 is set aside and in substitution for that decision, it is determined that no processing charge is payable to the respondent in respect of access application 43/2019/116; 2. the decision under review dated 15 April 2020 is varied to allow the applicant access to the following information identified in the Schedule of Documents attached to that decision: 1. item 12 with respect to: 1. the first paragraph of the email sent at 2:26pm on 7 December 2016; 2. the first and third pages of the document entitled 'Mail Out Report' and dated 7 December 2016; 1. item 13, other than to the extent that it contains name or address of any employee of the respondent (other than the applicant); 1. the decision of the respondent is otherwise affirmed.
In respect of proceedings 2020/83356 the Tribunal orders: 1. the decision of the respondent to impose a processing charge for dealing with access application 43/2019/114 is set aside and in substitution for that decision, it is determined that no processing charge is payable to the respondent in respect of access application 43/2019/114; 2. the decision under review dated 15 April 2020 is set aside with respect to the following information identified in the Schedule of Documents attached to that decision: 1. items 6, 8 and 9; 2. item 19, with respect to the document title 'Notification to Industrial Registrar of Industrial Dispute. Pursuant to Section 130', other than Attachment 1 thereto. 3. item 23; 4. item 27, with respect to: 1. the Service Improvement Executive Leadership Team Meeting Minutes dated 29 March 2017; 2. the PowerPoint presentation titled 'Outdoor Pools Service Improvement Project Structure'; 1. item 29; 2. item 30 with respect to: 1. the information redacted from the second line of the email sent on 3 May 2018 at 1:46 pm; 2. each of the two documents document titled 'Notification to Industrial Registrar of Industrial Dispute Pursuant to Section 130' other than Attachment 1 thereto; 1. item 35, with respect to: 1. the email from Mr Fitzpatrick-Barr to Mr Curtis dated 9 May 2018 (11.41am); 2. the document title 'Notification to Industrial Registrar of Industrial Dispute. Pursuant to Section 130', other than Attachment 1 thereto; 1. item 40, with respect to the draft report prepared by Pinnacle Integrity; 2. items 45,48, 51,55, 56, 57, 58,59,60,61, 62, 63 and 64; 3. item 65, with respect to the draft report prepared by Pinnacle Integrity; 4. items 67,75 and 76; 1. the items identified in order 2 are remitted to the respondent for reconsideration with directions that: 1. in respect of items which the respondent has agreed to provide to the applicant, or in respect of which the Tribunal has determined are to be released to the applicant, the respondent is to redact the names and addresses of employees of the respondent (other than the applicant) not previously released, before releasing those items to the applicant; 2. in respect of the draft reports prepared by Pinnacle Integrity in items 40, 51,60 and 65: 1. the information redacted from the final report which was released in part to the Applicant in response to access application 43/2018/16, be redacted; 2. any information which identifies a complainant or person who provided information in response to the investigation by Pinnacle Integrity, and which has not already been released, be redacted; 3. the respondent is to consider any information which is contained in the draft reports prepared by Pinnacle Integrity but is not contained in the Final Pinnacle Report and whether such information should be released to the applicant; 1. in respect of items 48, 55, 56 and 59, the applicant be provided with access to the information which [NOT FOR PUBLICATION] and which is available to the applicant: 1. following reconsideration of items 40, 51, 60 and 65; or 2. because it has previously been provided to the applicant; 1. such reconsideration is to be completed within 35 days of the date of these orders. 1. The decision of the respondent is otherwise affirmed.
In respect of proceedings 2020/83318, the decision under review is set aside and remitted to the respondent for reconsideration on the basis that the access application is an access application for all correspondence between the respondent and the United Services Union in relation to: 1. complaints or grievances made by persons other than employees of the respondent against the applicant, which took place between 30 December 2015 and 3 November 2017; 2. internal investigations of the applicant, which took place between 30 December 2015 and 3 November 2017; 3. external investigations of the applicant, other than the investigation conducted by Pendlebury Workplace, which took place between 30 December 2015 and 3 November 2017; with such reconsideration to be completed within 35 days of the date of these orders.
The applicant's application for review is to be listed for directions on 28 January 2021 at 9.30am in respect to orders 2 and 3

Beveridge v Cessnock City Council

At a glance

Court

Decision date

Source

Judgment (43 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (21)