Brazel v Sydney Water Corporation

NCAT Administrative and Equal Opportunity|2024-12-03

Background

There is a significant history between the parties in this matter. Since 2016, Thomas Brazel (the applicant) has made seven applications to Sydney Water (the respondent) for access to information under the provisions of the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act) (the GIPA requests).
The applicant's GIPA requests have been primarily focussed on seeking information relating to the consultation processes conducted by the respondent with third parties under s 54 of the GIPA Act and the objections that they raised in relation to his previous GIPA requests.
There have been four previous decisions by the Tribunal regarding disputes arising in relation to the previous GIPA requests, namely: 1. Brazel v Sydney Water [2020] NSWCATAD 188, which was determined by Senior Member Montgomery; 2. Brazel v Sydney Water Corporation [2021] NSWCATAP 13, which was determined by the Appeal Panel (Senior Member Dubler SC and Senior Member Lucy); 3. Brazel v Sydney Water (No 2) [2021] NSWCATAD 370, which was determined by Senior Member Ransome; and 4. Brazel v Sydney Water [2022] NSWCATAP 180, which was determined by the Appeal Panel (Principal Member Coleman SC ADCJ and Senior Member Dubler SC).
In each of these previous proceedings, the Tribunal received evidence and argument on a confidential basis and orders were made prohibiting or restricting the publication or disclosure of that evidence.
The current proceedings relate to a GIPA request that the applicant made to the respondent on 30 August 2012, which was in the following terms: 1. SW GIPA Officer Howell's request to department heads to determine time and resources required to access documents requested for the GIPA 9828 application, or confirmation no such consultation took place. This was required to substantiate previous SW GIPA claims of excessive or unreasonable diversion of resources. 2. The response (detailed estimate) by department heads detailing time and resources required to access documents requested in application 9828. i.e. Procedure - Processing and determining GIPA applications, 6.1, "if all the work is to take more than three hours, prepare a detailed estimate and forward it to the GIPA officer". 3. Context, review and comments provided to Ms Howell by internal stakeholders relating to GIPA decision 9828, i.e. Procedure - processing and determining GIPA applications. "context concerning the sensitivity of the requested information and potential factors to be considered," and review/comment of 9828 decisions by internal stakeholders. 4. Howell's first "draft" 9828 decision submitted to supervisor Ms Barnes for approval, see Procedure - processing and determining GIPA applications Pt 6.3, "…prepare a decision letter and package of information for release where applicable. Distribute this package and decision letter to internal stakeholders for review/comment to ensure all relevant considerations have been identified, before finalising the pack and issuing it to the applicant." 5. SW's solicitor briefing for external solicitors re: NCAT application for 9177 submissions, i.e. 2019/00308972[aka Brazel v Sydney Water [2020] NSWCATAD 188]. A brief includes the following components: 1. The issues in dispute 2. Tasks the solicitor is briefed to perform 3. Opinions of counsel obtained earlier 4. Relevant correspondence 5. Briefings inde4x describing all documents and enclosures under appropriate headings 6. Observations of the facts and information relating to the work the solicitors are required to perform 7. Specific questions upon which the solicitors/barristers advice is sought, and any other relevant matter arising out of the brief 8. Documents relevant to the issues, including details of evidence available to support the clients' claims and whether facts can be verified in other ways. 6. Ms Barnes' (instructing solicitor) advice to the client for 9177 submissions, i.e. the Montgomery hearing 2019/00308972 [aka Brazel v Sydney Water [2020] NSWCATAD 188 7. Maddocks advice to SW re: NCAT application for 9177 submissions, i.e. the Montgomery hearing 2019/00308972 [aka Brazel v Sydney Water [2020] NSWCATAD 188 8. Maddocks letter/correspondence detailing their reasons for withdrawing from representing SW before the Tribunal NCAT Appeal Panel 2022/00007732 and subsequent matters, see doc Maddocks ceasing to rep SW 9. Complete unredacted GIPA 9177 & 9255 submissions. SW GIPA may reasonably revisit the question. GIPA 9177 & 9255 submissions released following the Montgomery order have revealed that the submissions were not obtained confidentially as claimed and the submissions and their contents had been disclosed, and that this was reasonably known by SW GIPA. The disclosure of evidence of disclosure reveals that SW GIPA acted contrary to their role (determining the overriding public interest), that is, they had evidence of disclosure which required SW GIPA to prove non-disclosure of evidence in order to meet the requirements to withhold submissions. Instead SW concealed that evidence and argued to withhold submissions. Submissions revealed that: 1. Submissions were not obtained via a confidential process a. Consultation was via BCS, 3 contacts with BCS were made. Two persons (named) were directly contacted. b. Submission writer Matthews addressed and disclosed his submission to Mr Fotious, BCS. c. Matthews cc's (discloses) submission to G Corey d. SW cannot detail whom accessed the consultation information and whether it was shared digitally, via hard copy or orally e. Later sent to (email addresses x 2). 2. Submissions were disclosed by writers - see submissions 3. IPC's IPC20R000292 Review Report SW GIPA 9527 review acknowledged that the applicant already had access to a number of submissions, i.e. they had been disclosed therefore considerations against disclosure did not apply 4. The submissions released correlated with public disclosures made by the submission writers, i.e. the submission writers revealed contents of the submissions in public hearings etc 5. The information was not of a confidential matter, revealed submissions detailed public knowledge, i.e. the applicant made NCAT applications for documents. Ms Howell possessed evidence of disclosure but did not disclose this information, or factor it into her decision regarding access to submissions. Instead she considered them "dealt" with. Do I need to document evidence of these facts in order for them to be included in a GIPA decision. 10. Unredacted legal invoices for Maddocks and Barrister Edwards and any other counsel detailing external legal costs incurred by SW in the matters, Montgomery hearing 2019/00308972, Ransome hearing 2020/00290033, and subsequent appeals, i.e. 2022/00007762 & 2019/308972. 11. Open access documents as described in GIPA sec 18 and 23 relating to GIPA and third party consultation. An agency must provide access to policy docs, GIPA sec 18 & 23. Ms Spargo, SW GIPA, referred to SW policies relating to consultations but would not provide these and these were not on the Agency information guide. 12. The document managing GIPA applications, is an open access document, i.e. a document, GIPA sec 23, "…used by the agency in connection with the exercise of those functions of the agency that affect or are likely to affect rights, privileges or other benefits, or obligations, penalties or other detriments, to which members of the public are or may become entitled, eligible, liable or subject (but does not include a legislative instrument)." This was also tendered as evidence in the Montgomery hearing and subject to a Tribunal order to be provided to the applicant. 13. Disclosure records, relating to GIPA applications 9177, 9255, SW's 9177 internal review, including Grace's phone consultations. Agencies are required to document third party consultations, GIPA, sec 25. Under GIPA sec 18(d) the agency's disclosure log of access applications constitutes open access information and must be freely available. IPC Guideline 5, pt 4.9 lists disclosure log requirements, i.e. * How the agency decided who should be consulted *the names of the people, businesses or organisations with whom they consulted * when the consultation occurred * information about any third parties with whom consultation was required but not conducted, and the reasons for this * the questions asked of the third party * the third party's responses to those questions and any other views the third party conveyed to the agency, and * details about any information the agency gave to the third party about the access applicant and the application. Documents listed in pts 11-13 are public access and/or documents ordered to be released by the Tribunal and do not require a decision to be made and do not attract processing costs. Documents/information listed in pt 9 have been shown to be already disclosed. This requires SW GIPA to prove they have not been disclosed as detailed in documents in SW possession, or release the documents. I am happy to provide these documents if SW is unable to find them.

Procedural matters

On 2 September 2024, Senior Member Ziegler conducted a case conference, at which the applicant was self-represented and Mr T Bateman of counsel appeared for the respondent. The Senior Member made orders for filing and service of evidence by the parties, which included an order that the respondent file evidence with the Tribunal on a confidential basis, and she listed the matter for hearing on 3 December 2024.
The applicant subsequently applied to the Tribunal for the issue of a summons to give evidence and to produce documents addressed to Ms S Barnes. On 19 November 2024, Principal Member Ransome heard that application and she refused to issue a summons to Ms Barnes, on the basis that it appeared to seek information that is subject to legal privilege (communications between the respondent's external lawyers and others for the purposes of Tribunal proceedings) and it otherwise sought to raise matters that were not the subject of the current proceedings. The Principal Member observed that the application was based on a hypothesis that the respondent had committed an offence in relation to legal advice it sought in 2020 proceedings before the Tribunal and that it therefore waived privilege in respect of that advice. There was no evidence to support that hypothesis and the Principal Member determined that the summons was a fishing expedition.

The hearing

The matter came before me for hearing on 3 December 2024, at which the applicant was self-represented and Mr T Bateman of counsel appeared for the respondent.
The applicant stated that pressed for full access to all of the information sought in the current GIPA request.

Evidence of Maria Rana

The respondent relied upon a statement of Maria Rana dated 4 October 2024, which has an annexure "MR1". This was admitted into evidence and marked as Ex A.
The applicant required Ms Rana to attend for cross-examination and she was therefore called and sworn. She stated that the contents of her statement are true and correct.
In cross-examination, the applicant asked whether the respondent determined whether legal privilege was waived? The witness replied, "No, it was not waived".
The applicant stated that he had no further questions for Ms Rana and she was excused from further attendance.

Respondent's written submissions

In its written submissions dated 4 October 2024, the respondent identified the following issues for determination by the Tribunal: 1. The decision to refuse to provide access to three documents because there was an overriding public interest against disclosure under ss 58(1)(d) and 14(1) of the GIPA Act; 2. The decision to provide partial access to four documents, by: 1. Refusing access to some information because there was an overriding public interest against disclosure of the information under ss 58(1)(d) and 14(1) of the GIPA Act; and 2. Deleting irrelevant information from three of the documents pursuant to ss 58(1)(a) and 14(1) of the GIPA Act; 1. The decision to refuse to deal with part of the GIPA request under ss 58(1)(e) and 60(1)(b) of the GIPA Act; and 2. The decisions to impose, and refuse to reduce, a processing charge for dealing with the GIPA request under s 64(1) of the GIPA Act.
As s 14(1) of the GIPA Act sets out a conclusive presumption that there is an overriding public interest against disclosure of any of the government information listed in Sch 1 of the GIPA Act. The relevant categories in this matter include information that would constitute contempt or contravene any order of a body having power to receive evidence on oath (cl 4), and information that is privileged by reason of legal professional privilege (cl 5).
Section 14(2) of the GIPA Act provides that the only other public interest considerations that may be taken into account are those set out in the Table. In this matter, the relevant public interest considerations against disclosure are: 1. Clause 1(d) - that 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; 2. Clause 1(e) - that disclosure of the information could reasonably be expected to reveal a consultation conducted in such a way as to prejudice a deliberative process; and 3. Clause 3(a) - that disclosure of the information could reasonably be expected to reveal an individual's personal information.
In applying the public interest test, an agency is required to have regard to the principles set out in s 15 of the GIPA Act. In assessing the weight to be given to the public interest considerations against disclosure, the agency is entitled to consider the personal factors of the application (set out in s 55 of the GIPA Act), which include the applicant's personal motives for making the GIPA request. the personal factors can be taken into account against disclosure only if relevant to whether the disclosure of the information could reasonably be expected to have any of the effects referred to in cl 3 of the table to s 14(2) of the GIPA Act.

Issue (1) - Conclusive presumption that there is an overriding public interest against disclosure

The respondent decided to refuse to provide access to three documents (numbered 7, 8 and 37 in the Appendix of Documents).
The respondent argued that "conclusive" bears its usual meaning, which is "decisive; serving to settle or decide; putting an end to doubt". In Lipscombe v Blue Mountains City Council [2020] NSWCATAD 121 at [11], Senior Member Montgomery stated: Unlike information for which public interest considerations against disclosure are claimed, material for which a conclusive presumption is maintained is not assessed or weighted for consideration of release, but rather assessed as to whether it meets the definition of the conclusive presumption descriptor. If such information is assessed as meeting that description then no further assessment or weighting occurs and the material is withheld at that point.
In other words, the conclusive presumption is determinative of the issue of whether there is an overriding public interest disclosure and it is not necessary to apply to public interest test under s 15 of the GIPA Act.
Clause 5 of Sch 1 of the GIPA Act provides that it is conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege.
The relevant test to be applied in determining client legal privilege and waiver is set out in ss 118 and 119 of the Evidence Act 1995 (NSW) (the Evidence Act). In CHU Underwriting Pty Ltd v Hunter Water Corporation [2018] NSWCATAD 273, the Tribunal observed that the general provisions relating to the existence of legal professional privilege in the GIPA Act are that the material: 1. Must be made in the context of a client and lawyer relationship; 2. Must have a confidential nature to it; 3. Was brought into existence for the dominant purpose of either: 1. Assisting the client in obtaining, or the lawyer to give or provide to the client, legal advice or services; or 2. For use in either existing or proposed or contemplated legal proceedings.
In Battin v University of New England [2013] NSWADT 73, the Administrative Decisions Tribunal observed that a "dominant purpose" is one that predominates over other purposes, it is the prevailing or paramount purpose and when applying the public interest test an appropriate starting point is to ask - what was the intended use or uses of the document that accounted for it being brought into existence?
This issue must be considered objectively, taking into account the substance of the matter, having regard to the content, context and evidence, as well as the form of the documents. In determining whether materials were brought into existence for the dominant purpose of assisting the client in obtaining legal advice or services, the concept is to be understood broadly and in a pragmatic sense and it is not confined to a lawyer telling a client the law. It must also include advice as to what should prudently and sensibly be done in the relevant legal context and if the document would have been prepared regardless of the intention to obtain legal professional services, the test will not be satisfied: Holman v Warringah Council [2015] NSWCATAD 215 at [86].
The respondent argued that documents numbered 7 and 8 are documents that would be privileged from production on the basis of legal professional privilege, as they are documents that were made between the respondent and its internal and external legal advisors, they have a confidential nature to them and they were brought into existence for the dominant purpose of providing the respondent with legal advice or services and/or for use in the Tribunal proceedings that culminated in the decision in Brazel v Sydney Water [2020] NSWCATAD 188.
The respondent decided not to waive privilege over these documents and this decision is not a reviewable decision: cl 5(3) of Sch 1 of the GIPA Act.
As to the issue of "contempt", the respondent confirmed that in all of the four previous Tribunal proceedings, the Tribunal received evidence and argument on a confidential basis and orders were made prohibiting or restricting the publication or disclosure of that evidence except to the respondent.
In the first NCAT proceedings, Senior Member Montgomery decided to consider some of the issues between the parties in a confidential session under s 107 of the GIPA Act. The document numbered 37 in the Schedule of Documents, is the transcript of the confidential hearing and it is marked "confidential" and "not to be released without the approval of the tribunal".
On that basis, disclosure of document 37 would contravene an order of the tribunal and would constitute a contempt of the Tribunal. Therefore, it is conclusively presumed that there is an overriding public interest against disclosure of that information under cl 4 of Sch 1 of the GIPA Act.

Issue (2) - Partial access

The four relevant documents those numbered 4, 5, 6 and 9 of the Schedule of Documents.
The respondent stated that it decided to refuse to provide access to some of the information on the basis that it was information described in Sch 1 of the GIPA Act and it was conclusively presumed that there was an overriding public interest against its disclosure. It argued that documents numbered 4, 5 and 9 contain information that would be privileged from production in legal proceedings on the ground of legal professional privilege. Each document was created between the respondent and its internal and external legal advisors, each has a confidential nature to it and each was brought into existence for the dominant purpose of providing the respondent with legal advice or services and/or for use in the Tribunal proceedings before Senior Member Montgomery in 2020.
Further, the respondent argued that document number 6 contains information that would be privileged from production in legal proceedings on the ground of legal professional privilege. The redacted information was made between the respondent's external legal advisors, has a confidential nature to it and was brought into existence for the dominant purpose of providing the respondent with legal services and/or for use in the tribunal proceedings before Senior Member Montgomery in 2020.
The respondent considered whether it would be appropriate to waive that privilege in relation to these four documents and it decided not to waive privilege. That decision is not a reviewable decision: cl 5(3) of Sch 1 of the GIPA Act.
The respondent also argued that disclosure of part of the redacted information in document number 6 would contravene an order of the Tribunal and be a contempt of the Tribunal and it is therefore conclusively presumed that there is an overriding public interest against its disclosure under cl 4 of Sch 1 of the GIPA Act.
In relation to documents numbered 4, 5 and 9 of the Schedule of Documents, the respondent stated that it decided to delete irrelevant information under s 74 of the GIPA Act. The deleted information comprised personal matters of the authors, including doctor appointments, leave schedules and absences, holiday travel plans and personal details concerning family members. This was clearly irrelevant to the information sought in the GIPA request and it did not diminish or otherwise impact on the quality of information in that record that was sought in the GIPA request.
Document number 6 in the Schedule of Documents is also subject to cl 3(a) of the Table to s 14(2) of the GIPA Act and the respondent stated that it applied the public interest test in the manner required by s 15 of the GIPA Act, as follows: 1. It identified the public interest considerations in favour of disclosure as including that there is a public interest in disclosure of information that facilitates public scrutiny of, and promotes transparency of decision making, including in respect of its handling of GIPA requests. 2. It identified the public interest considerations against disclosure (set out previously in this decision) and it relied upon the following findings that were made by the Tribunal in relation to those matters as follows: 1. The findings made by Senior Member Montgomery, which were affirmed by the Appeal Panel; 2. The findings made by Principal Member Ransome, which were affirmed by the Appeal Panel; and 3. It redacted the personal information of the third parties whom it consulted with, in accordance with orders made by the Tribunal. 1. In identifying the personal factors of the GIPA request, the respondent argued that it can reasonably be inferred from the history of GIPA requests made by the applicant, that he is motivated by his desire to advance a strata dispute or legal dispute with third parties and that those matters are alien to the functions of the respondent. 2. It decided that the public interest considerations in favour of disclosure are outweighed by: 1. The public interest in its ability to receive frank and candid responses to consultations under the GIPA Act and otherwise in the exercise of its statutory functions where circumstances exist that would otherwise disinhibit those responses; 2. The public interest in it upholding its obligation to maintain the confidentiality of information provided to it on a confidential basis; and 3. The public interest in protecting the rights of third parties to the privacy of their personal information, including by complying with the relevant privacy legislation.

Issue (3) - Refusal to deal with part of the GIPA request

The respondent stated that it refused to deal with part of the GIPA request under ss 58(1)(e) and 60(1)(b) of the GIPA Act. These provide that an agency may refuse to deal with part of a GIPA request if it has already decided a previous application for the information concerned (or information that is substantially the same as that information) and there re no reasonable grounds for believing that the agency would make a different decision on the application.
In Commissioner of Police (NSW) v Danis [2017] NSWCATAP 7, the Appeal Panel stated: Section 60 is clearly designed to give agencies some flexibility in the administration and processing of access-to-information requests. Each of the grounds has at its core the sensible and efficient of deployment of agency resources. Access applicants generally are assisted if agencies are not tied down by voluminous applications (see (a)) or by having to reprocess applications that have already received attention either through previous determinations (the focus of (b) and (b1)) or by other official means (the focus of (d)). An agency may refuse to deal with a request on one of the grounds found in s 60(1)(d), and thereby avoid the need to make a final decision as to the merits of the request. Read together it can be seen that the grounds listed in s 60(1) have as an aim the avoidance of wasteful use of administrative resources (see especially (a)) or situations where the applicant has already obtained a practical result (b), (b1), and, arguably (d)).
The respondent refused to deal with items 9, 17 and 18 of the GIPA request.
Items 9 and 18 of the GIPA request called for complete unredacted submissions made for GIPA requests 9177, 9255, 9527 and 9412. Those items have clearly been dealt with in previous applications for administrative review and are the subject of the four previous decisions of this Tribunal, in relation to which non-publication and confidentiality orders were made.
In Brazel v Sydney Water (No 2) [2021] NSWCATAD 370, Principal Member Ransome observed that there was no doubt that a previous decision had been made by the respondent and the Tribunal in relation to the information sought by the applicant concerning the third party submissions in GIPA request 9177.
Item 17 of the GIPA request calls for "(t)the 600+ Strata documents identified as relating to Strata 961. These were located in a previous search using the GIPA 9177 search criteria". This request has already been the subject of a previous GIPA request and in view of the decisions made by the respondent and the Tribunal, there is no reasonable ground for believing that the respondent would make a different decision in relation to items 9, 17 and 18 of the current GIPA request.

Issue (4) - Decisions to impose and to refuse to reduce a processing charge

The respondent decided to impose a processing charge under s 64(1) of the GIPA Act, under which it is entitled to charge for dealing with a GIPA request at a rate of $30 per hour. The processing time is the total amount of time necessary to be spent dealing efficiently with the GIPA request, or providing access in response to it. The respondent provided a table of processing charges in the original decision and supplementary decision.
Ms Rana provided some detail around the processing time including a timesheet that records the tasks performed by the respondent in relation to the GIPA request. It has adduced evidence of the processing time, which was time that was necessary and efficient in dealing with the GIPA request, and it indicates that while more than 110 hours was spent, charges were made for 62.5 hours only ($1,845).
In relation to the issue of reduction, s 66 of the GIPA Act provides that an applicant is entitled to a reduction of 50% if the agency is satisfied that the information applied for is of special benefit to the public generally.
In Gates v Port Macquarie-Hastings Council [2022] NSWCATAD 193 (citing Shoebridge v Forestry Corporation of NSW [2016] NSWCATAD 93 at [23]) it was observed that in determining whether information is of special benefit to the public generally, a decision-maker must decide whether he or she is satisfied that there is a benefit different from what is ordinary or usual to the general public, and thus not merely the private interests of the applicant alone: (at [113]).
Under s 97(3) of the GIPA Act, the applicant bears the onus of establishing an entitlement to a reduction of the processing charge. However, the applicant had not yet filed or served any evidence regarding that issue.

Applicant's case

The applicant filed a large volume of documents on 4 November 2024. In written submissions comprising 25 pages, he addressed issues including his complaint that the respondent did not make a new decision on internal review, and he very much focussed on an argument that the respondent "…has waived privilege by virtue of its conduct, i.e. breaches listed below including breaches of ethics, Tribunal orders, non-independence, reliance upon legal advice etc." He also alleged that the respondent "acted dishonestly and unethically" in its submissions in the matter before Senior Member Montgomery in 2020. He also alleged that the respondent "…has destroyed the 600+ documents" and in relation to Maddocks ceasing to act for the respondent, he asserted, "…it is in the public interest to know why counsel was engaged on the morning of a pre-hearing only to withdraw the same afternoon"
The applicant sought to extensively relitigate matters that were considered and addressed in the previous proceedings before Senior Member Montgomery and he concluded, relevantly: The statements made by Ms Spargo and the submissions by SW reflect a persistent misinterpretation of the Amos case law, which established that third-party responses in public consultations under the GIPA Act are generally non-confidential and should be accessible unless substantial harm can be proven. By asserting confidentiality, exaggerating privacy concerns , and misapplying the public interest test, SW disregards Amos and contravenes GIPA's presumption of openness. The applicant's right to transparency and accountability in government processes, as recognised by Amos, has been unduly restricted by SW's selective interpretations and obfuscations. The Tribunal should consider these contradictions in light of Amos and order the release of the requested documents, aligning with GIPA's foundational goals of transparency, public interest, and low-cost access to information.
In relation to items 5, 6 and 7 of the current GIPA request, the applicant asserted that there is no suppression order relating to the legal advice and that the order under s 64 of the NCAT Act "relates to confidential documents supplied as evidence". He asserted that the decision of Senior Member Montgomery prohibited the publication of documents numbered 44 to 51, 56 and 57 and 115 to 120. This does not include legal advice. He asserted that while a decision not to waive legal privilege is not a reviewable decision under the GIPA Act, the respondent must still be prepared to substantiate that privilege exists and that refusing access to the information is justified under s 61 of the GIPA Act. He stated, relevantly: There is significant evidence the agency has waived privilege under secs 125 & 122 (sic) of the Evidence Act, the legal advice being created in the furtherance of an abuse of power, fraud and/or offense and acting in a way that is inconsistent with LPP… Waiver of privilege There is evidence that SW waived privilege on the basis of a. furtherance of fraud b. non independence of legal advice c. an abuse of power and/or offense d. reliance upon legal advice e. and shaping of evidence these should not be seen in isolation but in the context of a campaign. SW invoices document engagement of external legal counsel for more than 330 hrs (at a cost of over $145,000) in opposition to the release of third party's submissions which SW know where not implicitly or explicitly "confidential" and whose withholding was opposed by the Information and Privacy Commissioner.
The applicant also asserted that the respondent's decision in GIPA 9412 was "an abuse of power" and that the subsequent legal advice that the respondent sought was "designed to cover up the abuse and constituted serious breaches of the Act and constitute waiver of LPP". He asserted that "…LPP doesn't apply to advice sought to conceal wrongdoing. The advice was solicited "to justify" or further the abuse of power" in the matter before Senior Member Montgomery and that the conduct of that matter "was itself fraudulent".
The applicant also asserted that the respondent "deceptively claimed the submissions were confidential" and that it failed to conduct s 54 consultations with strata owners. He also alleged that the respondent misled the Tribunal because third-party consultations are not confidential under law and it "falsely claimed to be subject to the Privacy Act (PPIP) and cited this as a consideration against release" However the respondent "is not subject to the PPIP".
The applicant also alleged that the respondent "acted in bad faith" by ignoring the recommendations of the IPC. He stated that while citing 41 hours as an unreasonable diversion of resources, the respondent employed massive resources to prevent him from exercising his rights. He alleged that the respondent had "spent $3,204 seeking advice on how to destroy, or destroying documents that were obtained by SW through breaches of their email policy and were the subject of an access application" and that this is "corrupt conduct".
The applicant alleged that there are public interest considerations in favour of release of the legal advice, which include: 1. Disclosure 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; 2. Disclosure could reasonable be expected to ensure effective oversight of the expenditure of public funds; and 3. Disclosure 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.
In relation to item 17, the applicant stated that he is now aware of any GIPA request to obtain the 600+ strata documents. He said that he applied for a portion of these documents and he was told that it would take 40 hours (at a cost of $1,260) and that it was an excessive diversion of resources. He stated: SW claims to have "dealt" with these 6010+. This is deceptive. SW determined there was no overriding public interest against release of the 25 (of the 600+) applied for, and also the 9177 documents which were from the same cache. This implies there is no overriding public interest against release. SW invoices confirm that these documents continue to be government documents… Ms Howell states Ms Barnes and Youngman have determined the matter of the remainder of the 600+ has been "dealt with" however this would require a GIPA decision by a GIPA officer. There is no GIPA decision regarding the remainder of the 600+ documents. Neither has SW proven any subsequent legislative changes relating to government documents are retrospective.
In relation to item 9, the applicant repeated his arguments in favour of releasing the legal advice obtained by the respondent and in relation to item 18, he asserted that based on the decision in Amos, "the confidentiality order over submissions was obtained fraudulently and is not in the public interest".
In relation to item 8, a letter from the respondent's lawyers ceasing to act does not constitute a document prepared for the dominant purpose of seeking legal advice. The applicant stated, relevantly: Ms Anderson's engagement by SW to represent them on the morning of the 7/025/2022 and then Ms Andersons sudden withdrawal that same afternoon suggests Ms Anderson may have become aware of improper conduct and sought to remover herself under the Legal Profession Uniform Act, 13.1.3, the law practice terminates the engagement for just cause and on reasonable notice. (The applicant had raised concerns about the conduct of matters). Given the evidence of misconduct and the unusual circumstances of her ceasing to Act the release of the letter has the capacity to reveal improper conduct by SW employees.
The applicant also raised issues of costs. In particular, he asserted that the decisions made by Ms Howell in relation to GIPA requests numbered 9527, 9828 and 192 were all rejected by the IPC. He alleged that she failed to conduct searches and was prejudiced against him.
In relation to the issue of "special benefit to the public" in the removal of the processing fee decided by the respondent, the applicant asserted that release of the requested documents has revealed evidence of corrupt and/or negligent conduct by SW employees, failure of oversight, misuse of public funds and breaches of the Model Litigation Policy. These matters are clearly of public interest.
The applicant also filed separate submissions headed "Application for removal of confidentiality orders and closed session" on 4 November 2024. However, this application was not pressed at the hearing.
While the applicant filed a large number of documents, he did not file and serve a statement of evidence in the matter.
In oral submissions, the applicant maintained his argument that the respondent had waived privilege under ss 122 and 125 of the Evidence Act and that the decisions made by Senior Member Montgomery and Principal Member Ransome were based on misleading evidence from the respondent.

Respondent's case in reply

The respondent filed submissions in reply on 19 November 2024. In particular, it stated, relevantly: 3. It is clear from the materials and submissions served by Mr Brazel that Mr Brazel has a litany of perceived issues and complaints against Sydney Water and its staff, dating back to 2016, and spanning across his six previous and current GIPA Act applications for access to information held by Sydney Water. 4. However, for the purposes of these submissions, Sydney Water will attempt to limit its submissions to matters in reply only and only those matters that are relevant to the current application before the Tribunal.
The respondent argued that the applicant's "confidentiality application" is misconceived and/or without substance and it noted that he had not cavilled with the operation of s 107 of the GIPA Act. As the confidentiality and non-publication orders in the previous NCAT proceedings were the subject of Member determinations and determinations by Appeal Panels, it is not open to this Tribunal to consider their revocation.
The respondent stated that Ms Spargo was a witness in the proceedings before Senior Member Montgomery and to the extent that the applicant now seeks to re-ventilate them in these proceedings, he is attempting a quasi-appeal of prior determinations by the Tribunal and Appeal Panels. This is not permitted.
In relation to the alleged waiver of privilege, the applicant has made several serious, but ultimately baseless, allegations about abuse of power, fraud and misleading conduct on the part of the respondent. The purported abuse of power and misleading conduct appears to be the respondent's conduct in making decisions regarding the previous GIPA requests and making submissions in the previous Tribunal proceedings. No fin dings were made against the respondent in any of the previous Tribunal proceedings and the issues of confidentiality of the third party objections was made in the previous proceedings.
There is no evidence to support the applicant's contention that the respondent's legal advisers were involved in the four previous proceedings to such an extent that any advice given by them was transformed into an expression of the mind of the respondent which thereby waiver privilege over that advice.
the applicant sought to rely upon a decision in Loielo v Giles [2020] VSC 722, but the respondent presumed that he was actually relying upon an earlier decision - Loielo v Giles [2020] VSC 619. That matter involved a judicial review of a decision made by Professor Giles, who was subject to an order under s 199 of the Public Health and Wellbeing Act 2008 (VIC). The advice provided to Professor Giles was in issue in the proceedings because it concerned her state of mind. The professor had set out the advice in her affidavit evidence and on that basis, the Court decided that there was a waiver of privilege in respect of that evidence.
However, in this matter, the respondent has not revealed the substance of any legal advice and the decision in Loielo v Giles is clearly distinguishable and does not support the applicant's contention.
In relation to item 17, the respondent stated that to the extent that the applicant asserts that the request for "600+ strata documents" is a new or different request to that sought in GIPA 9177, an amendment to the GIPA Act took effect on 28 November 2018. As a result of that amendment, this information is no longer considered as government information for the purposes of a GIPA request as it involves information that was unsolicited and not relevant to its business or function: cl 12(4) of Sch 4 of the GIPA Act.
The respondent noted that regarding item 8 of the GIPA request, it determined that the only document within scope was a letter dated 7 February 2022 and that this was already available to the applicant.
In relation to the request to reduce the processing charge, the respondent stated that none of the issues raised by the applicant are supported by evidence and the applicant bears the onus of proof.

Need for a confidential hearing

The Tribunal determined that it was necessary to examine the disputed information in the applicant's absence under s 107 of the GIPA Act and that upon completion of the confidential hearing, the Tribunal would reserve its decision. The applicant was then excused from the hearing and he left the hearing room.

Confidential hearing

The Tribunal examined the disputed information, which were lodged with it on a confidential basis.
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Issue (1)

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Issue (2)

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Issue (3)

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Administrative Decisions Review Act 1997 (NSW) (ADR Act)

Section 63 of the ADR Act provides: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide that the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) the applicable written or unwritten law (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

GIPA Act

Section 3 of the GIPA Act provides, relevantly: (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: … (b) by 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.
This object is amplified with a statutory command, contained in s 3(2), which provides: (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 possible cost, access to government information
The object of the GIPA Act is operationalised by various 'machinery' provisions of that Act.
Part 2 of the GIPA Act contains general principles relating to open government information.
Division 1 of that Pt 2 of the GIPA Act concerns ways of accessing government information. This includes, in s 5, a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
It also confers, in s 9(1), a legally enforceable right on a person who makes an access application 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 11 provides that the GIPA Act overrides a provision of any other Act or statutory rule that prohibits the disclosure of information other than a provision of a law listed in Schedule 1 as an overriding secrecy law.
Division 2 of Pt 2 of the GIPA Act concerns public interest considerations related to access to government information. This includes, in s 12(1), a prescription that there is a general public interest in favour of the disclosure of government information.
Section 13 contains a "public interest test" which is to be applied in determining whether access is to be provided to government information. It provides that there is an overriding public interest against disclosure of government information 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.
In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 (Flack) and Hurst v Wagga Wagga City Council [2011] NSWADT 307 (Hurst), the Tribunal confirmed that the "public interest test" under s 13 requires agencies to start with the presumption in favour of disclosure of information and: 1. identify the public interest in favour of disclosure (s 12); 2. identify the public interest against disclosure with reference to the items listed in the table in s 14 of the GIPA Act (s 14 Table); and 3. determine whether the balance of the public interest lies in favour of, or against, the disclosure of government information.
The Tribunal must attribute the appropriate weight to each relevant consideration for or against disclosure but the balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17]. If the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure, there is an "overriding public interest against disclosure": s13.
The public interest considerations against disclosure of government information are found in s 14 of the GIPA Act. Section 14(1) provides that 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.
Schedule 1 of the GIPA Act provides, relevantly: 4. Contempt It is to be conclusively presumed that there is an overriding public interest against disclosure of information the public disclosure of which would, but for any immunity of the Crown - (a) constitute contempt of court, or (b) contravene any order or direction of a person or body having power to receive evidence on oath, or … 5 Legal professional privilege (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege. (2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause. (3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5.
Section 14(2) of the GIPA Act sets out a table of public interest considerations against disclosure of information that an agency may take into account where a conclusive presumption does not arise under s 14(1). The relevant considerations relied upon by the respondent in this matter are: 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, … 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,…
It is only necessary that the considerations in the s 14 Table "could reasonably be expected" to have the effect identified. The onus is on the agency "to demonstrate with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect": McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 46 per Hayne J at [61]. This calls for an objective test to be made from the point of a view of a "reasonable" administrator: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. This is also to be determined as a question of fact based on real and substantial grounds and not just a "mere risk or chance": Flack (at [41]) and Leech v Sydney Water Corporation [2010] NSWADT 298 at [25] (Leech).
Section 73 of the GIPA Act requires that access is unconditional in the sense that no terms or conditions may be imposed as to the use or the manner in which information is to be disclosed in response to an access application. This has often been described as being disclosure made "to the world".
Section 105 of the GIPA Act places the onus on the agency to establish that its decision is justified. The agency is not limited to defending or justifying its decision on the same grounds as the original decision-maker: Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 at [10] (Fisher); Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 at [7] (Meldru).
Section 107 of the GIPA Act provides: 107 Procedure for dealing with public interest considerations (1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. (2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. (3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of - (a) the public and the applicant, and (b) the applicant's representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.

Reviewable decision

I am satisfied that the reviewable decision in this matter is that of the respondent dated 31 October 2023, as subsequently varied on 14 November 2023.

Issues (1) and (2) - Legal Professional Privilege

Based upon the evidence before me, including the documents that were lodged with the Tribunal on a confidential basis, I am satisfied that the disputed information is properly protected by legal professional privilege.
Accordingly, cll 4 and/or 5 of Sch 1 of the GIPA Act applies to the information and there is a conclusive presumption that there is an overriding public interest against disclosure of that information by operation of s 14(1) of the GIPA Act.
Contrary to the applicant's assertions, there is no evidence before me that supports a finding that the respondent waived privilege over this information. In fact, the evidence from Ms Rana was specifically to the effect that it did not waive privilege.
There is no evidence before me that supports the applicant's allegation that the respondent waived privilege by reason of its conduct.
For these reasons, it is not necessary for the Tribunal to apply the public interest test in relation to the disputed information.

Issue (3) - Confidential documents

The respondent refused to deal with the GIPA request in so far as it sought information under items 9, 17 and 18 pursuant to ss 58(1)(e) and 60(1)(b) of the GIPA Act.
Items 9 and 18 called for complete unredacted submissions made for the four previous GIPA requests (9177, 9255, 9527 and 9412). I am satisfied that these documents were clearly dealt with by the respondent in the previous GIPA requests and that they were also the subject of the previous decisions of the Tribunal.
I note that both Senior Member Montgomery and Principal Member Ransome made orders regarding g confidentiality and non-publication of the disputed documents and that although the applicant appealed against those determinations, each of the Appeal Panels upheld those orders.
On that basis, I am satisfied that the previous determinations of the Tribunal necessarily decided that the information sought in items 9 and 18 of the GIPA request were confidential in nature and that this gives rise to an issue estoppel in the current proceedings.
As a result, the applicant is estopped from asserting that the information sought under items 9 and 18 of the GIPA request is not confidential in nature.
Item 17 of the GIPA request seeks "the 600+ strata documents identified as relating to Strata 961".
I accept the respondent's submissions to the effect that this information was initially sought in the GIPA request that was the subject of the determination by Senior Member Montgomery. However, the scope of that GIPA request was subsequently reduced following negotiations between the parties. by agreement.
Accordingly, I accept that the respondent properly refused to deal with this part of the GIPA request under s 60(2)(b) of the GIPA Act, as it had already decided a previous application for the information concerned and there are no reasonable grounds for believing that it would make a different decision in this application.
In any event, the GIPA Act was amended effective from 28 November 2018, when cl 12(4) of Sch 4 commenced. This provides: (4) Information contained in a record held by the agency that is information that was unsolicited and is not relevant to the agency's business or functions is not government information held by the agency.
I am satisfied on the evidence before me that the information sought in item 17 of the GIPA request was unsolicited and is not relevant to the business or functions of the respondent. Accordingly, it is not government information that is held by the respondent.

Issue (4)

I am satisfied that the processing fee imposed by the respondent in this matter is reasonable in the circumstances, noting the fee rendered represents a significant discount on necessary time to deal efficiently with the current GIPA request. In particular, the time spent dealing with the current GIPA request exceeded 110 hours, but a processing fee was rendered based on 62.5 hours.
Based on the evidence before me, I am not satisfied that the information sought in the GIPA request is of special benefit to the public generally. This is particularly the case in relation to the strata dispute, in which the applicant has a private interest and involvement.

Conclusion

For these reasons, I am satisfied that the correct and preferable decision is to affirm the respondent's decision dated 31 October 2023, as varied on 14 November 2023.

Order

The decision dated 31 October 2023, as varied on 14 November 2023, is affirmed. 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: 14 January 2025

At a glance

Court

Decision date

Source

Judgment (24 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (17)