Cincotta v Council of the City of Ryde

The Tribunal's Decision

1. In the Decision the Tribunal set out the applicable legislative framework. The Tribunal noted that it was required to make the correct and preferable decision, having regard to the material before it and any applicable written or unwritten law. The Tribunal noted the objects of the Act as set out in ss 3(1)(b) and 3(1)(c): "(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. The Tribunal further recorded: Presumption in favour of disclosure of government information 19. The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: section 5 of the Act. Legally enforceable right to information unless there is an overriding public interest against disclosure 20. Under section 9 of the Act, a person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information. Public interest considerations in favour of disclosure 21. Section 12(1) of the Act provides that there is a general public interest in favour of the disclosure of government information. The Act does not limit the range of public interest considerations in favour of disclosure and section 12(2) sets out examples of those public interest considerations in favour of disclosure. Public interest considerations against disclosure 22. Section 14(1) of the Act provides that there is a conclusive presumption of an overriding public interest against disclosure of any of the government information described in Schedule 1 of the Act. 23. In the present case, none of the considerations against disclosure specified in Schedule 1 are relevant. However, in the absence of Schedule 1 having any application, the Tribunal's task is to consider and weigh: (1) the public interest considerations in favour of disclosure (as noted above, these are unlimited and include the general public interest in favour of disclosure in section 12(1) of the Act), against: (2) the public interest considerations against disclosure (these are limited to those in the Table to section 14 of the Act).
3. The Tribunal recorded that the respondent relied upon the public interest considerations against disclosure listed in the Table to s 14 of the Act at 2(a), 3(a), 3(b), 3(e) and 3(f) which are as follows: 2 Law enforcement and security 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) - (a) reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant, … 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 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002, … (e) reveal false or unsubstantiated allegations about a person that are defamatory, (f) expose a person to a risk of harm or of serious harassment or serious intimidation, …
4. The Tribunal noted the public interest test set out in s 13 of the Act: 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.
5. The Tribunal also noted the principles set out in s 15 of the Act: 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.
6. In relation to the public interest consideration set out in clause 2(a) of the Table to s 14, the Tribunal considered the meaning of "informant" in that provision, concluding: 37. Under the GIPA Act, the word "informant" is not defined. Legislatively, the word "informant" appears to be used contextually (refer to section 6 of the Interpretation Act 1987 (NSW)). For example, section 4 of the Public Interest Disclosure Act 2018 (SA) defines "informant" to mean a person who makes an appropriate disclosure of public interest information. 38. The respondent relied upon the Cambridge English dictionary meaning of "informant" as someone who gives information to another person or organisation. 39. The Australian Pocket Oxford Dictionary, Fourth Edition, at page 560, defines "informant" as a "giver of information". The Collins online dictionary defines "informant" to be "someone who gives another person a piece of information." 40. Noting that the object of the GIPA Act is to open government information to the public and since the word "informant" is not defined in the GIPA Act, it should be given its ordinary meaning absent any criminal context.
7. The Tribunal noted the requirements relating to consultation set out in s 54 of the Act which relevantly provides: 54 Consultation on public interest considerations (1) An agency must take such steps (if any) as are reasonably practicable to consult with a person before providing access to information relating to the person in response to an access application if it appears that - (a) the information is of a kind that requires consultation under this section, and (b) the person may reasonably be expected to have concerns about the disclosure of the information, and (c) those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information. (2) Information relating to a person is of a kind that requires consultation under this section if the information - (a) includes personal information about the person,
8. The Tribunal recorded that s 105(1) of the Act imposed the burden of establishing that a decision was justified upon the agency making the decision.
9. The Tribunal also referred to the Privacy and Personal Information Protection Act 1998 (PPIPA) in relation to the public interest consideration in paragraph 3(b) of the table to s 14, that disclosure could reasonably be expected to contravene an information protection principle under the PPIPA.
10. The Tribunal referred to the definition of personal information in section 4(1) of the PPIPA. That is: "Information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion."
11. The Tribunal also referred to Information Protection Principles 10 and 11 which are set out in ss 17 and 18 respectively of the PPIPA as follows: 17 Limits on use of personal information A public sector agency that holds personal information must not use the information for a purpose other than that for which it was collected unless - (a) the individual to whom the information relates has consented to the use of the information for that other purpose, or (b) the other purpose for which the information is used is directly related to the purpose for which the information was collected, or (c) the use of the information for that other purpose is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual to whom the information relates or of another person. 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.
12. The Tribunal recorded evidence that had been given by Council officer concerning the consultations that had been undertaken. We note that the appellant regarded this evidence as controversial, and it forms part of the appellant's Grounds of Appeal.
13. The Tribunal received as a confidential exhibit the unredacted versions of the documents sought by the appellant and confidential evidence concerning the respondent's communications with the persons who had lodged complaints referred to in those documents ("the complainants") which the Tribunal noted disclosed that there were five identified complainants.
14. That evidence was not provided to the Appeal Panel. The appellant did not suggest that the Appeal Panel could not determine the appeal without access to that material. Our consideration of the material filed by the parties confirms that the issues raised by the appeal can be determined without reference to the confidential material.
15. In relation to clause 2(a) in the Table the Tribunal concluded: "105 I have already addressed in these Reasons the meaning of "informant" and consider that it is not necessary to further address the applicant's contention that the complainants are not informants. The applicant's argument about the meaning of "informant" within a criminal code or law enforcement context and the attempt to link that argument to a jurisdictional issue about the Council's authority to look into bird droppings, are not relevant to the issue before me. … 111 The first limb of clause 2(a) has been met since the information applied for includes the names, contact details and information from persons who have made complaints in relation to the applicant's property. It is self-evident that disclosure of the records in full would reveal an informant's identity and requires no further substantiation. … 114 In order to satisfy the second limb, it is necessary to provide proof in a practical sense, as found in the Meacham case [Meacham v Commissioner of Police [2020] NSWCATAP 107 at [54] and [83]]. I am satisfied, having read the material filed with the Tribunal on a confidential basis, that the informants wanted to remain anonymous to the applicant and that they expected their personal information would not be disclosed. It can also be implied from the circumstances in which the complaints were made to the Council that the authors' personal information was provided in confidence. I am satisfied that it is reasonable (in the sense that it is not "irrational, absurd or ridiculous" as discussed in Meacham) for the Council to expect the disclosures would have the effect of prejudicing or impeding the future flow of information to it from the community.
16. The Tribunal concluded that the respondent had established that clause 2(a) in the Table was a relevant consideration against disclosure.
17. In respect of clause 3(a) in the Table to s 14, the Tribunal concluded that the disclosure of the names, personal contact details and opinions of other individuals would have the effect of revealing the personal information of those other individuals and that it would be reasonable for those individuals who provided the information to expect that their personal information would not be revealed.
18. In respect of clause 3(b) in the Table to s 14, the Tribunal concluded that the Council had correctly assessed that Information Protection Principles 10 and 11 would be contravened if the information redacted by the Council was provided to the applicant because there was no evidence that the complainants had consented to the disclosure of their personal information and the personal information could only be used for the purpose for which it was collected.
19. The Tribunal found that the Council's efforts to consult with the complainants identified in the withheld information, as disclosed in the confidential evidence provided by the Council, demonstrated its compliance with s 54 of the Act.
20. In respect of clause 3(e) in the Table to s 14, the Tribunal found that it was satisfied, having read the material provided in confidence to the Tribunal, "that the withheld information could reasonably be expected to be false or unsubstantiated allegations about a person that are defamatory".
21. The Tribunal noted: 121 The applicant's interest in receiving the withheld information because of his concern about defamation is understandable. However, the allegations are unsubstantiated and the respondent is entitled to rely upon clause 3(e) to justify its decision. I have taken the applicant's motive for making the access application into account as a factor against providing access.
22. In respect of clause 3(f) in the Table to s 14, the Tribunal concluded that it was satisfied, having read the material provided in confidence to the Tribunal and having regard to the circumstances in which the complaints were made to the Council, that "disclosure of the withheld information could reasonably be expected to expose a person to a risk of harm or of serious harassment or serious intimidation".
23. The Tribunal concluded that it was satisfied that the respondent had justified the decision under review and on balance the Tribunal found that the public interest considerations against disclosure outweighed the public interest considerations in favour of disclosure of the withheld information.

The scope and nature of internal appeals

1. By virtue of s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), internal appeals from decisions of the Tribunal may be made as of right on a question of law, and otherwise with leave of the Appeal Panel.
2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question. 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
3. The principles applicable to the grant of leave to appeal were considered by an Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [82]-[84].
4. At [84] the Appeal Panel held: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there.

Grounds of Appeal

1. The appellant's Notice of Appeal set out, over five hand-written pages, grounds of appeal and grounds upon which the appellant sought leave to appeal.
2. At the commencement of the hearing of the appeal the Appeal Panel clarified with the appellant the basis of his appeal.
3. Following that discussion, we understand the appellant's grounds of appeal to be: 1. Since the Tribunal found that the withheld information contains false or unsubstantiated allegations, the public interest test requires disclosure in order to deter the making of false allegations. 2. The Tribunal applied an incorrect meaning of "informant". The appellant submitted that "informant" should be limited to "a person who provides privileged information to a law enforcement agency". 3. The Tribunal should have found that the respondent was not a law enforcement agency.
4. The appellant's grounds for seeking leave to appeal were: 1. That the Tribunal made an error in determining the number of third party consultations (or failed to determine the number of third party consultations). 2. That the substance of the complaint set out by the Tribunal in the Decision at [76] was false. The substance of the complaint set out by the Tribunal at [76] was: "Bird feeding - on a daily basis as a resident of [address] is distributing buckets of food and bread scraps upon the Council nature strip to feed local wildlife which results in copious amounts of droppings over residents' cards [sic] washing, housing and facilities. The food scrap is also attracting vermin." The appellant asserted that this was shown to be false as photographs proved there were no bird droppings. 1. That the Commissioner of Police had released an unredacted version of one complaint to the appellant and the Tribunal had failed to take that into account.

The respondent's submissions

1. The respondent, in its reply to the Notice of Appeal and in written submissions to the Appeal Panel submitted that the Notice of Appeal did not raise an error of law and that the appellant had raised no issue meeting the requirements for leave to appeal.

(1) False or unsubstantiated allegations

1. In our view, it cannot be the case that the fact that information provided to an agency contains false or unsubstantiated allegations must be sufficient to tip the balance of public interest in favour of disclosure of that information.
2. The fact that clause 3(e) is included in the Table to Section 14 (that is disclosure of information could "reveal false or unsubstantiated allegations about a person that are defamatory") demonstrates that the fact that information includes false allegations is not sufficient in itself to tip the balance in favour of disclosure. The fact that information contains false allegations is rather identified as a consideration against disclosure.
3. For the purposes of this decision, it is not necessary to determine whether the allegations made in the withheld information were false or unsubstantiated.
4. We find no error of law in the Tribunal's Decision in this respect.
5. The appellant's first ground of appeal must be rejected.

(2) Meaning of "informant"

1. In our view there is no reason why the word "informant" in clause 2(a) of the Table to s 14 should be given a limited meaning.
2. We have set out above the Tribunal's reasoning and conclusions in relation to the meaning of the word "informant". Clause 2(a) in the Table to s 14 is not explicitly limited to law enforcement agencies. Many government agencies rely upon the provision of information from members of the public in order to carry out their functions. There is no reason why clause 2(a) in the Table to s 14 should not apply to the provision of information to any government agency.
3. In our view the Tribunal's reasoning and conclusions in relation to the meaning of the word "informant" contain no error of law and the appellant's second ground of appeal must be rejected.

(3) Council not a law enforcement agency

1. In light of our conclusion in relation to the appellant's second ground of appeal, it is not relevant to the application of clause 2(a) in the Table whether or not the respondent was a law enforcement agency. As we have noted, the term 'informant' is sufficiently broad to encompass a person who passes information to an agency and it is not necessary in our view that the agency receiving the information be a law enforcement agency.
2. The Tribunal did not make any error of law in failing to find that the Council was not a law enforcement agency.
3. Accordingly, the appellant's third ground of appeal must be rejected.

(1) Error in determining the number of third party consultations or failing to determine the number of third party consultations

1. The Tribunal referred to the evidence of Mr Herridge, a Senior Information Access Officer with the Council, concerning the number of complaints and the consultation with those complainants.
2. In the Decision at [78]-[79] the Tribunal summarised that evidence and noted that, of five different people that had made complaints, four had been consulted by mail or email, and one person who had previously been consulted by phone had made it clear they wanted no further contact from Council with respect to the subject matter of the complaint.
3. Mr Herridge gave evidence that Council had received one objection in response to the consultation, which was taken into account when balancing the public interest test, and that a second objection had been identified after the application had been determined but not considered by the respondent in undertaking the public interest test.
4. The Tribunal also noted that no responses from third parties supported the disclosure of personal information to the applicant.
5. In considering the public interest test, the Tribunal concluded: 1. "it can … be implied from the circumstances in which the complaints were made to the Council that the authors' personal information was provided in confidence." (at [114]) 2. "that it would be reasonable for those individuals who provided the information to expect that their personal information would not be revealed." (at [117]) 3. That Information Protection Principle 10 and Information Protection Principle 11 would be contravened "if the withheld information was provided to the applicant because there is no evidence that the complainants have consented to the disclosure of their personal information." (at [118])
6. We are not persuaded that there was any error in the Tribunal's approach to the question of consultation. Nor do we consider that any issue of principle is involved or that it would be in the interests of justice for the Appeal Panel to reconsider the Tribunal's conclusions concerning that question.
7. In our view the Tribunal's conclusions were warranted and justified.
8. Accordingly, the appellant's first ground for seeking leave to appeal must be rejected.

(2) That the substance of the complaint set out by the Tribunal was false

1. The issue raised by the appellant's second basis for seeking leave to appeal is, in our view, misdirected. We have set out above the substance of the complaint as set out in the Tribunal's decision at [76].
2. The appellant's submission was that a photograph tendered in evidence before the Tribunal contradicted the proposition that there were copious amounts of droppings on the pavement. However, one photograph could not be sufficient to establish that there were never copious quantities of droppings on the pavement. The photograph is only evidence of the state of the pavement at one point in time.
3. Nevertheless, in any event, as we have found above, the truth or otherwise of the complaints is only relevant insofar as it affects the factors the Tribunal is required to take into account, for example that a disclosure would reveal false and defamatory material.
4. In finding that disclosure would reveal defamatory material, the Tribunal appears to have accepted or at least assumed that the complaints do make false or unsupported allegations. However, as we have noted above, pursuant to clause 3(e) in the Table to s 14 of the Act, that is a factor against disclosure. We find no error in the Tribunal's consideration of the photograph tendered by the appellant or in the Tribunal's consideration of the question whether the complaints were substantiated.
5. In our view there is no issue of public importance or factual error in the Tribunal's consideration of the photograph or the accuracy of the complaints.

(3) The Commissioner of Police had already released an unredacted version of one complaint

1. The foundation for the appellant's third ground for seeking leave to appeal was that on 25 January 2021, in other proceedings, orders were made by the Tribunal that the Commissioner of Police was to give the appellant "a further version of the requested information with the identity of the informant unredacted". Although it is not entirely clear, it would appear that that order was made either by consent or without opposition by the Commissioner of Police.
2. No further information concerning the appellant's application to the Tribunal in respect of the information held by the Commissioner of Police was made available to the Appeal Panel and in our view it was irrelevant to the matters the Tribunal was required to consider.
3. The fact that the appellant has received a copy of a complaint made to the Police which discloses the name of the informant who made that complaint to the Police does not establish either that the person who made the complaint to the Police was one of the informants identified in the withheld information, or that the public interest in disclosure of the withheld information overrode the public interest against disclosure of that information.
4. Accordingly, we are not satisfied that there is any basis for the grant of leave to appeal in respect of that matter.

Orders

1. Our orders are: 1. Leave to appeal refused. 2. Appeal dismissed.

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: 02 February 2022