The Applicant has provided a statement and written submissions. He attended the hearing and gave evidence. He also provided a large volume of material in support of his application. I have considered that information however much of it is not relevant to the issues to be determined in this matter. It relates to other issues which are not the subject of the access application and are therefore outside the scope of this matter.
The Applicant noted that he has been placed in a position of disadvantage because the Respondent is relying on confidential material that he has not been able to test. He contends he has not been provided the opportunity to respond to the accusations levelled against him and that this is unfair and oppressive. He submitted that there has been no proof of misconduct by him, only untested allegations. He contends that those responsible for submitting the withheld information have a history of deceiving and/or misleading the Tribunal, Fair Trading and the Respondent and he cautions against accepting their evidence. Much of the material that he provided is in support of that submission.
He identified a number of public interest factors in favour of disclosure. He submits that disclosure of the information could reasonably be expected to:
1. promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance;
2. inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public;
3. protect persons, their reputations, their legitimate interests and property, rather than to conceal crime or limit a persons' legal rights; and
4. reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.
He submitted that there is no overriding public interest against disclosure of the withheld information and therefore it should be released.
He contends that the submissions were not private or confidential as claimed. Rather, he says that the withheld documents were created by agents and owners of Strata Plan 961. As such the documents are Strata correspondence which all owners have the right to access the information.
The Applicant submits that the withheld information was solicited by the Respondent and that the documents contain personal information relating to him. He says that the Respondent is subject to the PPIP Act and that pursuant to sections 14, 15 and 16 of the PPIP Act it must provide access to private information held on an individual, make corrections where there are errors and also check it's accuracy before use.
He says that the information is commonly known and is not confidential. He submits that any confidentiality relating to the Respondent's procedures has been forfeited by engaging in correspondence with third parties. He says that any confidential aspect of the process has been lost because it has been revealed to others.
He argues that a third party has no right to confidentiality under the GIPA Act. Any confidentiality granted must be granted subject to the information being confidential business information, personal information and/or research. These documents do not fit the criteria
The Applicant contends that lies have been told to the Tribunal and to the Respondent and he submits that transparency is necessary to ensure accountability. He argues that the Respondent has not been given accurate information because those supplying the information think it is confidential. He says that it is necessary to release the information to expose criminal and corrupt conduct.
The Applicant refutes the suggestion of any risk of harassment. He points to the fact that he has a clear police record; he is a teacher with a working with children clearance and he has never been arrested or charged.
The Applicant referred to correspondence between himself and Mr Scott in which Mr Scott alleged that the Applicant had made false allegations about Mr Scott. Mr Scott had asked the Applicant to stop harassing him but the Applicant asserted that Mr Scott had refused to substantiate his allegations. The Applicant says that all he has done is ask for documents that Mr Scott still has and which he has not released. He concedes that there have been robust discussions but denies that any threats have been made. He submits that there is no evidence of threats or serious harassment and that clause 3(f) of the table to section 14 is not applicable as there is no greater risk from the release of the information than already exists.
The Applicant submits that the Respondent's confidential witnesses would either be part of the strata executive of Strata Plan 961 or persons linked to the executive. He gave a detailed background to his dealings with the strata executive. He also referred to Tribunal matters involving Strata Plan 961 and asserted that the strata executive had mislead the Tribunal and misrepresented action taken by the strata executive. He raised issues relating to the credibility of the Respondent's confidential witnesses if they are part of the strata executive.
In regard to the balancing exercise that must be undertaken to weigh considerations in favour and against release of the information, the Applicant submits that the Respondent has failed to take account of several relevant considerations. He says that the Respondent has not considered the positive aspects of release, namely greater confidence in the GIPA process, accurate information and higher quality decisions. He says that the Respondent has demonstrated serious and sustained lapses of judgement and procedural errors. He says that its operations and procedures have failed and that it is difficult to prejudice a system which is already failing. He submits that transparency and accountability will provide impetus to work on their failings.
He notes that personal factors of the application may be taken into account as considerations in favour of disclosure. He says that he has an enforceable right to access strata correspondence and that the persons providing the submissions were under obligation to provide those documents. The Applicant submits that the personal factors of the application provide support for the proposition that there are strong public interest considerations for disclosure in this matter.
In summary he submits that the Respondent has failed to demonstrate that a release of the documents could have the impact that it implies.
[2]
Discussion
As noted, there is a general presumption in favour of release of Government information. In my view, disclosure of the withheld information could also reasonably be expected to:
1. promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance; and
2. inform the public about the operations of the agency and, in particular, its policies and practices for dealing with members of the public.
Also as noted, the Respondent relies on a number of the public interest considerations against disclosure set out in the table to section 14 of the GIPA Act. It has identified public interest considerations against disclosure under clauses 1(d), 1(e), 1(f), 1(g), 3(a), 3(b) and 3(f) of the table to section 14 of the GIPA Act as relevant. It submits that the release of the Information could be reasonably expected to:
1. prejudice the supply to Sydney Water of confidential information that facilitates the effective exercise of its functions (clause 1(d));
2. reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of Sydney Water (clause 1(e));
3. prejudice the effective exercise of Sydney Water's functions (clause 1(f));
4. result in the disclosure of information provided to Sydney Water in confidence (clause 1(g));
5. reveal an individual's personal information (clause 3(a));
6. contravene an information protection principle under the PPIP Act (clause 3(b)); and
7. expose a person to a risk of serious harassment (clause 3(f)).
Each of those considerations must be weighed against the considerations in favour of release.
[3]
Clause 1(d)
Clause 1(d) of the table to section 14 of the GIPA Act provides that there is a public interest consideration against disclosure if disclosure of the information could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions. I accept that the effective performance of an agency's functions depends to a significant extent on the cooperation of others to allow it to obtain access to the best information on which to make findings and take action. Confidential communications can assist this process.
In determining the question of whether the information in issue is confidential a number of principles apply: see Williams v Department Industry and Investment [2012] NSWADT 192:
1. The confidential quality of communications is a question of fact;
2. To establish its confidential quality, information must have been supplied under an express or implied pledge of confidentiality;
3. The confidential quality of the information may be inferred from the nature of the relationship between the informer and person informed;
4. The confidential quality of the information must be determined in the light of all of the circumstances of the particular case.
The Tribunal in Collins v Department of Finance, Service and Innovation (2018) NSWCATAD 60 at paragraph [61] cited the three steps the Tribunal should consider in determining the application of clause 1(d). The first being that the information was obtained in confidence, the second the disclosure of information could reasonably be expected to prejudice the supply of information to the agency in the future and, third, that the information facilitates the effective exercise of the agency's function.
In regard to determining whether information was obtained in confidence the Appeal Panel in Commissioner of Police & New South Wales Police Force v Camilleri said that the issue is to be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts a service within which the information was received. The inquiry 'should focus on the point of receipt, and the administrative standards and community understandings which surrounded it'.
I have reviewed each of the withheld documents. I have also considered the evidence that I have been given on a confidential basis. On the basis of the material that is before me I am satisfied that the withheld information was obtained in confidence.
The second limb of clause 1(d) relates to prejudice. As noted above, the Tribunal in Hurst v Wagga Wagga City Council found that 'Prejudice under the GIPA Act has been held to have its ordinary meaning, that is, 'to cause detriment or disadvantage' or 'to impede or to derogate from'. I agree with that position.
Clause 1(d) is concerned with the future supply of confidential information. In determining whether disclosure would prejudice the supply of information, the test is not whether a particular person would, in future, refuse to supply identified information but whether information of the kind in question facilitates the exercise of the Respondent's functions, and, where the disclosure of such information could reasonably be expected to prejudice the supply of such information: see Flack v Commissioner of Police, New South Wales Police at paragraph [52]. Prejudice is to be determined at a broader operational level and whether disclosure of the type of information would impair the general ability of the agency to obtain that type of information in the future: Commissioner of Police & New South Wales Police Force v Camilleri.
The Respondent is not necessarily required to provide direct evidence from the providers of relevant information in order to satisfy the Tribunal that clause 1(d) is engaged; see Transport for New South Wales v Searle at paragraphs [61] - [65]. The following was said about matters the Tribunal may have regard to in examining the application of clause 1(d): 'The considered and understandable confidentiality to the process, the rationale for such confidentiality and the natural implication for future supply if such confidentiality was to be undermined'.
In Director General, Department of Education & Training v Mullett & anor (GD) [2002] NSWADTAP 13, at paragraph [58], the Appeal Panel of the former Administrative Decision Tribunal made the following remarks in regard to the exemption in clause 13(b)(ii) of the former Freedom of Information Act 1989 (NSW) (repealed):
58 ... [requires] the Tribunal to engage in a relatively abstract analysis. It must ask whether material of the kind sought to be protected on the present occasion would, if released, prejudice the supply of similar material to government in the future, as a matter of reasonable expectation. That requires the Tribunal to characterise the nature of the material sought to be protected on the present occasion; to identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; the extent to which guarantees of confidentiality may be necessary. We agree with the dicta of Young CJ in Ryder v Booth [1985] VR 870 ...:
`The question then is, would disclosure of the information sought impair (i.e. damage) the ability of the [agency] to obtain similar information in future. ... It may be noted that it is the ability of the [agency] that must be impaired. The paragraph is not concerned with the question whether the particular doctor whose report is disclosed will give similar information in future but with whether the agency will be able to obtain such information. ...'
These remarks equally apply to the public interest consideration against disclosure set out in clause 1(d) of the Table to section 14 of the GIPA Act: Medlyn v Commissioner of Police [2020] NSWCATAD 125 at paragraph [89].
The test for clause 1(d) is whether the agency will be able to obtain such confidential information in the future if the information in question is disclosed. This is to be determined at a broad operational level.
In the circumstances of this matter I am satisfied that a third party responding to a request for information in the future may be reluctant to be as forthcoming as they might otherwise be if they know that their response might be released to the public. This is a prejudice to the supply of information to the agency in the future.
The third limb in considering the application of clause 1(d) involves an evaluation of the effect of disclosure on the agency's functions.
As noted above, the Respondent has provided evidence in regard to the agency's usual approach to third party consultation. The likelihood of a third party responding to a request for information will depend on the circumstances of the matter. For example, where an individual has been the subject of allegations it is more likely that they will want to express an opinion than if they are not personally affected by the circumstances. However, the extent to which the third party responds may be affected by their belief in regard to the likelihood that their response will be publicly released.
I accept that third party consultation is an essential part of the GIPA process. If third-parties were inhibited in providing frank or honest views and disinclined to contribute freely to such deliberative processes it would impact on the agency's ability to perform its GIPA Act functions effectively. In my view, this consideration against release of the withheld information should be given reasonable weight.
However, if it is possible to remove the name and identifying details of a third party who is responding to a request for information, the overriding public interest against the release of the remainder of the document may not arise. In my view, this is possible in regard to much of the withheld information.
[4]
Clause 1(e)
Clause 1(e) of the table to section 14 of the GIPA Act provides that there is a public interest consideration against disclosure if disclosure of the information 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 government or an agency.
A relevant connection must be established between the deliberation as contained in the withheld information and the Respondent's 'deliberative processes': see Fire Brigade Employees' Union v Fire and Rescue NSW [2014] NSWCATAD 113 at paragraph [57] - [58].
Agencies are required to consider GIPA access applications and to consult third parties where relevant. Third parties may feel inhibited in providing frank and honest views regarding such issues, or may decline to participate in the process altogether. Individuals may also feel reluctant to commit their views in writing, and may only feel comfortable participating in deliberations orally: Cameron v Commissioner of Police, NSW Police Force [2014] NSWCATAD 13.
Third parties should be able freely to do in written form what they could otherwise do orally, in circumstances where any oral communication would remain confidential. I accept that if written communications were to be released for public scrutiny, some third parties may feel reluctant to make a written record in the future. This would be to the detriment of the deliberative process processes.
In my view these are considerations that should be given reasonable weight. However, if the redactions that I have referred to above are made, it is my view that the Clause 1(e) issues will have been addressed.
[5]
Clause 1(f)
Clause 1(f) of the table to section 14 of the GIPA Act provides that there is a public interest consideration against disclosure if disclosure of the information could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions.
Clause 1(f) relates solely to the reasonably expectation of prejudice to the effective exercise of the agency's functions concerning the information sought to be disclosed. The clause requires an agency to establish that the release would prejudice the effective exercise of its functions. This provision has been considered in a number of Tribunal decisions. As with Clause 1(d) above, this provision has often been considered in relation to an agency's assertion as to the importance of obtaining confidential information in order to effectively exercise its functions. Clause 1(f) does not require that the information in issue had been provided in confidence. Nevertheless, the agency asserts that the disclosure of the information could reasonably be expected to prejudice the effective exercise of its functions.
In Cousins v Ambulance Service (NSW) [2014] NSWCATAD 48 the Tribunal was not satisfied that recorded communications between the Service's employees were confidential for the purposes of Clause 1(d) but it accepted that Clause 1(f) applied as disclosure of these communications in the form sought by the applicant could reasonably be expected to prejudice the exercise of the Service's functions.
In the present matter I am satisfied that disclosure of the withheld information could reasonably be expected to prejudice the effective exercise by the Respondent of its functions for the reasons discussed in relation to Clause 1(d). In my view these are considerations that should be given reasonable weight. However, if the redactions that I have referred to above are made, it is my view that the Clause 1(f) issues will have been addressed.
[6]
Clause 1(g)
Clause 1(g) of the table to section 14 of the GIPA Act provides that there is a public interest consideration against disclosure if disclosure of the information could reasonably be expected to found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence
It is ultimately a question of fact as to whether information was obtained in confidence: AFW v WorkCover Authority of NSW [2013] NSWADT 51. As noted above. I am satisfied that the withheld information was obtained in confidence. However, the possibility of an action for breach of confidence would be restricted by section 113 of the GIPA Act. In my view this consideration should be given reasonable weight.
In my view, if the redactions that I have referred to above are made, the Clause 1(g) issues will have been addressed.
[7]
Clause 3(a)
Clause 3(a) of the table to section 14 of the GIPA Act provides that there is a public interest consideration against disclosure if disclosure of the information could reasonably be expected to reveal an individual's personal information
Issues under clause 3(a) tend to be determined on the particular facts of the case. As I have noted above, I am satisfied that the withheld information contains personal information. However, in my view, if the redactions that I have referred to above are made, the Clause 3(a) issues will have been addressed because all personal information will have been removed.
[8]
Clause 3(b)
Clause 3(b) of the table to section 14 of the GIPA Act provides that there is a public interest consideration against disclosure if disclosure of the information could reasonably be expected to contravene an information protection principle under the PPIP Act or a Health Privacy Principle under the HRIP Act. In my view, if the redactions that I have referred to above are made, the Clause 3(b) issues will have been addressed because all personal information will have been removed.
[9]
Clause 3(f)
Clause 3(f) of the table to section 14 of the GIPA Act provides that there is a public interest consideration against disclosure if disclosure of the information could reasonably be expected to expose a person to a risk of harm or of serious harassment or serious intimidation.
In Zonnevylle v Department of Education and Communities [2018] NSWCATAD 139 the Tribunal noted at paragraph [49] that:
The issue for determination is whether release of the redacted names of departmental officers would expose them to a 'risk of harm or of serious harassment or serious intimidation'. It is not necessary to decide whether such harm is likely. It is sufficient that there is a risk of it. In circumstances where, as here, accusatory correspondence continues to be sent on a regular basis, which is well capable of causing upset to the officers who receive it in the course of their duties, I am satisfied that there is such a risk.
It is necessary to decide whether the release of the withheld information would have the effect of exposing a person to a risk of harm or of serious harassment or serious intimidation. In my view this is unlikely because there is no greater risk from the release of the withheld information than already exists. If it is accepted that an individual has already been the subject of harassment or intimidation, the release of this information would be unlikely to alter that situation. This is particularly the case if the redactions that I have referred to above are made.
I do not consider that Clause 3(f) of the table to section 14 of the GIPA Act is applicable in the circumstances of this matter.
[10]
Conclusion
I am satisfied that it is possible to redact parts of each of the withheld documents in a way that would remove the identity of the authors. This would involve redacting the names of the authors and email address where they appear in the document. In some of the documents other personal information can also be removed. If this is done, I am satisfied that the weight to be given to each of the considerations against disclosure is either significantly reduced or removed.
On balance, those considerations in favour of disclosure of the remaining information outweigh the public interest considerations against its release.
In my view the correct and preferable decision is to release the withheld documents in the redacted form as set out in these reasons.
[11]
Orders
1. The decision under review is set aside.
2. The decision is made that the withheld information is released in a redacted form as referred to in these reasons.
[12]
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
[13]
Amendments
03 August 2020 - Paragraph 54 and 58 amendment re non publication orders.
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: 03 August 2020
Parties
Applicant/Plaintiff:
Brazel
Respondent/Defendant:
Sydney Water
Legislation Cited (1)
Freedom of Information Act 1989(NSW)
Cases Cited (10)
"personal information"
The term 'personal information' is defined in clause 4 of Schedule 4 of the GIPA Act to include information or an opinion about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion.
Section 4(1) of the Privacy and Personal Information Protection Act 1998 ("the PPIP Act") defines 'personal information' in broadly the same terms as in clause 4 of Schedule 4 of the GIPA Act.
Section 18 of the PPIP Act provides:
18 Limits on disclosure of personal information
(1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless
(a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or
(b) the individual concerned is reasonably likely to have been aware or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or
(c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person
The first question the Tribunal asks itself in relation to each public interest considerations against disclosure that the Respondent has identified is 'could the disclosure of information reasonably be expected to have one or more of the relevant effects?' If not then the particular item does not apply. If it does apply, then the Tribunal determines the weight it carries and conducts the balancing exercise against the weight of factors in favour of disclosure: Commissioner of Police (NSW) v Camilleri [2012] NSWADTAP 19.
"could reasonably be expected"
The words 'could reasonably be expected to' require the Tribunal to determine whether the result that is alleged to occur with disclosure of the information is reasonable, as distinct from irrational, absurd, or ridiculous: McKinnon v Secretary, Department of Treasury [2006] HCA 45 per Hayne J at paragraph [61].
In Leech v Sydney Water Corporation [2010] NSWADT 298 I stated at paragraph [25]:
25 The term 'could reasonably be expected' has been considered in a number of cases. The words have their ordinary meaning: Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163. The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority [1999] NSWADT 107]. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC.
It is ultimately 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 paragraph [42].
'prejudice'
Some of the identified public interest considerations require that there be some relevant "prejudice" to the agency. That term is to be given its ordinary meaning, being 'to cause detriment or disadvantage' or 'to impede or derogate from': Anderson v University of Sydney [2018] NSWCATAD 196 at paragraph [80]; Hurst v Wagga Wagga City Council [2011] NSWADT 307 at paragraph [60].
It must be established on the basis of evidence that the prejudice could reasonably be expected to arise: Woolley v Lismore City Council [2013] NSWADT 10 at paragraph [77].
There needs to be more than a mere possibility, risk or change of prejudice. It must be based on real and substantial grounds. It is not sufficient for the Applicant merely to proffer the view. It must be supported in some way: Anderson v University of Sydney at paragraph [80]; Transport for NSW v Searle [2018] NSWCATAP 93 at paragraph [68]; Australian Vaccination Network v Department of Finance and Services [2013] NSWADT 60 at paragraph [22]).