The substantive matter is an application by the Applicant for review of a decision by the Respondent in response to an access application under the Government Information (Public Access) Act 2009 (the GIPA Act). The access application sought information regarding applications, communications and information held by the Respondent relating to a neighbouring property and specifically a swimming pool in respect of which the Applicant had made a number of complaints. The Applicant's dispute with respect to his neighbour's swimming pool has been a long-running one with the Applicant previously initiating proceedings in the Local Court as against his neighbour and the Respondent.
The decision was to release to the Applicant some information that was identified as falling within the scope of the access application and to withhold other information by way of redaction.
The Applicant sought external review in the Tribunal.
[2]
Background
On 17 March 2023, the Applicant was advised by the Applicant of two file numbers in the custody of the Respondent relating to building applications in respect to his neighbour's property.
Later that day, the Applicant submitted an application for information with reference to those file numbers and correspondence. The Applicant's email relevantly requested the following:
I wish to make application for access to the following documents contained in the file reference numbers
BA 1978/212
BA 1978/959
…
I would like to have access to these files, and any and all attachments and or correspondence related to those file document numbers.
…
That informal application was made by email and did not comply with the formal requirements for an access application pursuant to s 41 of the GIPA Act in that:
1. it did not clearly indicate that it is an access application made under the GIPA Act; and
2. it was not accompanied by a fee of $30.
The Applicant alleges that he was advised by the Respondent not to submit a formal access application under the GIPA Act because the information officer was very busy, the information officer was aware of the request dated 17 March 2023 and that the Applicant need not take further action.
The informal request was registered into the Respondent's record keeping system on 20 March 2023 and actioned to the access to information team on the same day. According to the evidence of the Respondent, the Council was dealing with a very high number of information and open access requests for information at that time. Mr Herridge being the Senior Information Access Officer for the Respondent estimated that at the time, the number of applications was 180 and the Respondent had employed additional temporary staff to deal with the requests.
On 27 and 29 March 2023, the Applicant made inquiries of the Respondent as to the progress of his request and was told his request was in a queue and a timeframe could not be provided.
On 6 April 2023, while the informal request was being processed, the Applicant then made a formal request for the same information as well as additional information. The Applicant alleges that he attempted to pay the $30 GIPA application fee but that the Customer Service Centre would not accept his payment.
The formal request was in the following terms:
All building works, all works, for property located at …
North Ryde NSW 2113.
Council file numbers BA1978/212 and BA1978/959 file numbers which were provided to me by Council officers, i refer to my email to Council 17 March 2023, which there has been no reply to me, but to which I have been advised the records department have opened a file.
I attach a copy of that email to this application, which forms part of this application.
I request access to all correspondence by email or other means by Council officers …, for an by the Council of the City of Ryde and the property title owner, ...
I request access to all writings between the above mentioned people at Council to each other and or to and from the property title owner...
I request access to all correspondence and emails, and notes, and or on the Council CRM sytems in relation to the property at … North Ryde NSW 2113 for all complying and or non complying building works at the address … North Ryde NSW 2113.
When the formal request was received which incorporated the same information requested under the informal request and more, the informal request was closed by the Respondent.
The decision date on the Applicant's formal application was 9 May 2023 pursuant to s 57(1) of the GIPA Act which took into account three public holidays which are not "working days" for the purposes of calculating the decision period.
On 11 April 2023, the Applicant was informed that his GIPA application was invalid because of the absence of the payment of $30 processing fee. The Applicant explained by way of response that he had attempted to pay but that the Customer Service Centre refused to accept payment.
On 12 April 2023, the Applicant paid the $30 application fee. Irrespective of the payment on 12 April 2023, the Respondent agreed to treat the access request as being received on 6 April 2023.
On 1 May 2023, the Respondent wrote to the Applicant clarifying the ambit of the information request.
On 5 May 2023, the Applicant was informed, in writing, that his application would require consultation under s 54 of the GIPA Act and that the decision date was to be extended to 23 May 2023. The consultation was required because some of the information found included the personal information of other people requiring consultation with those other people.
On 16 May 2023, the Applicant wrote to the Respondent alleging that the consultation period had expired and requesting an update as to progress.
On 23 May 2023, consistent with the extension, the formal access application was decided. The Respondent's decision was to provide access to the information to the Applicant but:
1. with the deletion of personal information of individual people pursuant to s 74 of the GIPA Act; and
2. with two documents being able to viewed by way of inspection so as to protect copyright pursuant to s 72(2)(c) of the GIPA Act.
The Applicant was also advised that the release of the information was conditional on payment of the processing charge of $235. Payment of the processing charges has yet to be received from the Applicant and as a result the information has not yet been released.
On 25 May 2023, the Applicant exercised his rights under s 89 of the GIPA Act and sought an external review by the Office of the Information and Privacy Commission (IPC) with the outcome on 17 August 2023 that the IPC upheld the original decisions.
In the IPC's report, in considering the decision to refuse to provide access to some information in the context of clause 3(b) of the table to s 4 of the GIPA Act, the IPC stated:
It may be noted that the Agency's approach is aligned with the Tribunal's approach in the matter of Refalo v Penrith City Council [2019] NSWCATAD 263 at [35-39] where the Tribunal accepted that there is an overriding public interest against disclosure of the personal information of third-party individuals in the context of a dispute between citizens. In this regard, the Tribunal went further to explain that the GIPA Act is not designed and should not be used as a vehicle to advance a case in a citizen versus citizen matter and therefore, any contentions to argue factors in favour of disclosure of the information to settle a citizen dispute, is not weighty when considering whether such information should be disclosed.
On 24 August 2023, the Applicant filed his application for an administrative review in this Tribunal on the following grounds:
(A) Agency stalling application
(B) Agency withholding information that shows irregular practices and approvals given
(C) 3rd party argument not relevant in this case
(D) IPC review is flawed and incorrect at law - refer to case Refalo v Penrith City council - not citizen vs citizen, is citizen seeking information on approvals given irregularly & incorrect against agency's own regulation
The fourth ground is a reference to the IPC report as extracted above.
[3]
Submissions and evidence
The Respondent's submits:
1. The evidence does not support that there was any "stalling" of the application or any conduct inconsistent with the GIPA Act in that:
1. With respect to the original informal application, while the Information and Privacy Commission provides a reference to informal requests being dealt with in 20 days, there are no prescribed timeframes in the GIPA Act with respect to informal applications;
2. The formal application (into which the request as per the informal application was subsumed) was decided within the timeframe prescribed by the GIPA Act considering the public holidays and the 10-day extension; and
3. Otherwise, the Applicant's complaints about "delays and stalling" is outside the scope of this application as it is not a reviewable decision under s 80 of the GIPA Act.
1. There is no information to support that the Respondent is withholding information or has adopted irregular practices in circumstances where:
1. the searches conducted are as described the decision of 23 May 2023 are thorough and reasonable and identified voluminous amounting to 117 documents; and
2. the decision made by the Respondent was to release the information to the Applicant subject to redacting personal information of certain individuals but that the information has not been released as the Applicant refuses to pay the processing fee.
1. With respect to the ground "3rd party argument not relevant in this case", the Respondent draws the Tribunal's attention to s 54(1) of the GIPA Act which provides that an agency must consult with a person before providing access to information where the information is the kind that requires consultation including where the information includes personal information about the person, where the person had concerns about release of the information and where there were identifiable public interest considerations against disclosure.
2. With respect to the ground alleging that the IPC review is flawed and incorrect at law, the Respondent expressly clarified that it made no comment on how the office of the IPC determined the matter given that the administrative review before this Tribunal is the decision of the Respondent.
The Respondent relied upon:
1. An email from the Respondent's agent to the Tribunal attaching a schedule of documents from the original decision marked "R1";
2. Statement of Mr Herridge and written submissions attaching annexures A to G and four IPC fact sheers marked "R2";
3. Statement of Mr Herridge and written submissions in reply attaching annexure A marked "R3";
4. Bundle of materials responding to the Applicant's formal request for access redacted and unredacted in both cases those documents remain confidential. In respect of the former, because the Applicant still has not paid the processing charge.
The Applicant submits:
1. That the evidence supports that there was stalling and delay and refers to:
1. the advice he received with regard to the informal application and the refusal to accept payment and then requiring it;
2. alleged events related to a Notice to Produce and a subpoena issued by him as the Plaintiff in other court proceedings;
1. Full access, without redactions, should be granted for "all matters in request for review in the NCAT" because the identity of third-party individuals is already known to the Applicant.
2. The Applicant has received, by virtue of other court proceedings and is otherwise knowledgeable of emails that would be captured by his access request however according to the Applicant "nothing has been provided …[as] correspondence to all the named Council Officers of the Agency …". Therefore, the Applicant contends that there is additional information within the scope of the request not produced;
Otherwise, the Applicant made various allegations and complaints with respect to the Respondent's conduct including of alleged breaches of the Respondent's Development Control Plan, failures to act on matters of health and safety and swimming pool compliance and criticism of the Respondent's extension of the decision period by consulting with third parties. In respect of the latter, I find that this was required by s 54 of the GIPA Act as submitted by the Respondent.
The Applicant relied upon:
1. The application filed in this Tribunal marked "A1"'
2. Bundle of documents of 130 pages comprising, inter alia, correspondence with the Respondent, the formal access request, documents from other court proceedings marked "A2"; and
3. The Applicant's statement and written submissions marked "A3".
In response, the Respondent, in summary, relies upon his contentions as articulated in his submissions in chief but also submits that matters related to other court proceedings and allegations of alleged breaches of the Respondent's Development Control Plan and failures to act on matters of health and safety and swimming pool compliance are irrelevant and not part of the controversy to be decided by this Tribunal.
[4]
The role of the Tribunal
Pursuant to s. 100(1) of the GIPA Act, a person who is aggrieved by a reviewable decision of an agency may apply to the Tribunal for administrative review of the decision under the Administrative Decisions Review Act 1997 (the ADR Act). The Respondent's decision to refuse access to information is a reviewable decision specifically:
1. The redacted information alleged to be personal information after consultation; and
2. By virtue of the Applicant's allegations that additional information is held by the Respondent that is not part of the documents identified and the Respondent's answer that no further documents are held: s58(b) of the GIPA Act; Amos v Central Coast Council [2018] NSWCATAD 101 at [31]. In this respect, the Respondent is making its decision made an implied decision that it does not hold any further information responsive to the formal request.
I find that the application does not include a request to administratively review the decision to provide view only access to records the subject of copyright concerns nor a request to administratively review the decision to pay a processing fee or the quantum of that fee.
I otherwise accept the Respondent's submissions that the following are not reviewable decisions as they are not specified in s 80 of the GIPA Act:
1. Allegations of "stalling and delay" by the Respondent;
2. Complaints in respect of the Respondent's conduct in other court proceedings or allegations of non-compliance with Development Control Plans or swimming pool regulation; and
3. Allegations of errors made by the IPA.
Even if I was wrong about the allegations of frustrating, stalling and delay not being a reviewable decision, the evidence satisfies me that the formal application for access was provided within the decision-making period as extended pursuant to section 57(2)(a) of the GIPA Act. Accordingly, I find as a matter of fact that there was no "delay".
With respect to the reviewable decisions as described at paragraph 30 above, the Tribunal's task in determining an application for administrative review under the GIPA Act is to decide what the correct and preferable decision is having regard to the material then before it and any written or unwritten law, as though it were the primary decision-maker. The Tribunal is not restricted to a consideration of the material was before the primary decision-maker. The onus is on the respondent to establish that re decision is justified: s. 105(1).
Section 66(3) of the CAT Act enables the Respondent to disclose to the Tribunal information that is subject to an overriding public interest against disclosure under the GIPA Act and requires the Tribunal to "do all things necessary to ensure that the information is not disclosed to any person other than a member of the Tribunal ... unless the person or body disclosing the information ... consents to the further disclosure". The information in respect of which there is an overriding public interest against disclosure has been lodged with the Tribunal as the "Confidential bundle of information subject to overriding public interest against disclosure." Section 107 of the GIPA Act prescribes the approach to be taken by the Tribunal in dealing with information that may be subject to an overriding public interest against disclosure.
[5]
Consideration
The finding of an "overriding public interest against disclosure" requires a balancing between considerations in favour and against disclosure: GIPA Act, s 13; Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [19]; Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [47].
The operation of the GIPA Act, s 5 and s 12 recognises the significance of the presumption in favour of disclosure which applies without limitation. Such consideration should be accorded, therefore, "significant weight" when determining whether access to information should be granted: Selby v Commissioner of Police (NSW) [2013] NSWADT 61 at [89]; Camilleri v Commissioner of Police (NSW) [2013] NSWADT 80 at [48].
The balancing of those considerations should favour disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17]. Yet the process is not a matter of mere mechanistic tabulation; rather the balancing of competing interests "is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation: Hurst v Wagga Wagga City Council at [94]; Battin v University of New England [2013] NSWADT 73 at [74]. That process requires a broad value judgment to be made, having regard to the objects of the legislation, the general presumption in favour of disclosure of government information, and the principles set out in the GIPA Act, s 15: Transport for NSW v Searle [2018] NSWCATAP 93 at [104].
[6]
Public Interest Factors in Favour of Disclosure
There is a general public interest in favour of the disclosure of government information (GIPA Act, s 12(1)). There are also more specific public interest considerations in favour of disclosure, being:
1. There is a public interest in obtaining information concerning the workings of government agencies;
2. The information could assist the Applicant in understanding how his complaints were handled and resolved and well as to inform the public about the operation of agencies and, in particular, their policies and practice in performing their functions;
3. Disclosure is consistent with ensuring transparency of decision making; and
4. Disclosure of the information could reasonably be expected to promote open discussion of public affairs.
I accept that the public interest considerations stated above tend to favour such disclosure.
[7]
Public interest considerations against disclosure
The public interest considerations against disclosure relied upon by the Commissioner apply where "disclosure of the information could reasonably be expected to have" certain effects (GIPA Act, s 14, Table). As the ADT said in Leech v Sydney Water Corporation [2010] NSWADT 298 at [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. 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.
[8]
Clauses 3(a) and 3(b) - disclosure would reveal personal information and contravene privacy legislation
Clause 3(a) in the s 14 Table of the GIPA Act provides that there is a public interest against disclosure of information if disclosure of the information could be reasonably be expected to reveal the personal information of individuals.
In contrast to clause 3(a), clause 3(b) is not concerned with the revelation of personal information but rather, whether release of personal information could reasonably be expected to contravene an Information Protection Principle (IPP) outlines in the Privacy and Personal Information Protection Act 1998 (PPIP Act).
The expression "personal information" refers to information about an individual whose identity is apparent or can reasonably be ascertained from the information. A relevant consideration is whether disclosure of the information could reasonably be expected to reveal personal information of a third party. It is apparent from the face of the withheld documents that disclosure of the withheld information would reveal the identity of individuals.
I do not accept the Applicant's submission that because he is aware of the identity of those individuals that this consideration is not a valid one. The release of information under GIPA is unconditional and effectively it is released to the whole world. Notwithstanding that some of the withheld information may already be known to the Applicant, these considerations may apply if it has not otherwise been publicly disclosed. In DQN v University of Sydney [2019] NSWCATAD 159 Senior Member Higgins said at paragraphs [68] - [71]:
68. Having read the information in issue (the redacted information), I am satisfied that the information is personal information of a person other than the applicant and a disclosure of the information would reveal that person's personal information. That is, I am satisfied that the information which names the persons against whom the applicant has made his complaint, the responses of these persons to the allegations made against them by the applicant and the summary of the evidence (other than what has been disclosed) is information about such person, whose identity is apparent or can reasonably be ascertained from the information in issue: GIPA Act, Sch 4, cl 4. While the responses relate to the specific allegations that were made by the applicant they are nevertheless information or an opinion about that staff member whose identity is apparent or can reasonably be ascertained from that information if disclosed.
69. The word 'reveal' is defined in cl 1 of Sch 4 of the GIPA Act to mean: 'to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)'.
70. Although the applicant knows the names of those staff members who were the subject of his complaint, there is no evidence that this information has been publicly disclosed. As noted in the evidence of Ms Dickson, in accordance with the respondent's Resolution of Complaints Policy, the preliminary assessment reports of Ms Buchanan were only circulated to those staff members responsible for determining how the complaint was to be resolved.
71. Accordingly, I am satisfied that the respondent has established that a disclosure of the information in issue could reasonably be expected to reveal the personal information of the staff members the subject of the applicant's complaint.
See also Beregi v Department of Planning Industry and Environment [2020] NSWCATAP 185 at [99].
There is no evidence before me that would satisfy me that this information has been previously disclosed publicly. In my view it is likely that anyone who knows the context of the issues that are the subject of the withheld information would be able to identify some of the individuals concerned. Therefore, disclosure of the withheld information under the GIPA Act could reasonably be expected to reveal personal information which has not been previously publicly disclosed.
[9]
Would disclosure of the withheld information contravene privacy legislation?
Information Protection Principle 10 contained in s 17 of the PPIP Act states:
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.
Information Protection Principle 11 contained in s 18 of the PPIP Act states:
(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.
(2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.
I consider that IPP 11 is of greater relevance to this application given that it is concerned with the disclosure of personal information. I note that this finding is consistent with the IPC report.
Consistent with my reasoning above, I find that the information in issue (being the redacted information) is the personal information of a third-party individual. I further find that:
1. the disclosure of that information under the GIPA Act was not for a purpose for which the information was collected being information obtained during, and for, the purpose of recordkeeping processes of the Respondent; and
2. none of the exceptions in s 18 of the PPIP Act apply.
In my view, there is public interest against disclosure of the redacted information on the basis that the disclosure of the information would reveal personal information and contravene privacy legislation. I am satisfied that subclauses 3(a) and 3(b) apply as considerations against disclosure and should be afforded significant weight. I am, however, satisfied that this outcome could be avoided by redacting the personal information.
[10]
Balancing of the public interest considerations
In determining the application, the Tribunal must decide what weight is to be given to the competing public interest considerations and balance the public interest considerations in favour of disclosure of the information and the public interest considerations against disclosure of the withheld Information. The Tribunal must then determine where the balance lies.
I have accepted that the public interest considerations in favour of disclosure of the withheld information (being the redacted information) should be given reasonable weight. However, I have found that each of the public interest considerations against disclosure of the withheld Information should be given significant weight.
In my view when the considerations are balanced the public interest considerations against disclosure outweigh those in favour of disclosure. It follows that the Respondent's decision to refuse to release the information the subject of redaction should be affirmed.
[11]
Failure to disclose
Section 53 of the GIPA Act provides:
53 Searches for information held by agency
(1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received.
(2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency.
(3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically.
(4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures.
(5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.
In Walker v Roads and Maritime Services [2019] NSWCATAD 177 Senior Member Blake summarised the principles applicable to considering whether the searches undertaken by an agency are reasonable. He stated at paragraph [87]:
The Tribunal has applied the following principles in considering the reasonable of searches undertaken by an agency:
1. what constitutes a sufficient search will vary with the circumstances. Key factors in making an assessment include the clarity of the request, the way the agency's recordkeeping system is organised and the ability to retrieve any documents that are the subject of the request, by reference to the identifiers supplied by the applicant or those that can be inferred reasonably by the agency from any other information supplied by the applicant: Mizzi v Commissioner of Police (NSW) [2013] NSWADT 150 at [30];
2. that there may be weaknesses in an agency's searches or that there are failures in its recordkeeping processes do not necessarily lead to the conclusion that the search has not been reasonable, or sufficient, or adequate: Camilleri v Commissioner of Police (NSW) [2012] NSWADT 5 at [15];
3. the fact that extra documents were located subsequently does not mean that reasonable searches were not made initially: MJ v Department of Education and Communities [2014] NSWCATAD 12 at [28].
As noted above, the Applicant's allegation in this respect is based upon the contention that the bundle of documents responding to the formal access application does include correspondence with various council staff including individuals named in the application. However, the Applicant has not yet reviewed the bundle of documents as he has not paid the processing fee. The Applicant's allegations that the bundle does not contain emails with council staff appears to be an error based upon the Applicant's reliance on the short descriptions in the production list as opposed to reviewing the bundle itself.
Otherwise, I accept the submissions of the Respondent that there is no evidence to support that the Respondent is withholding information or has adopted irregular practices in circumstances where the searches conducted as described the decision of 23 May 2023 and the IPC decision are thorough and reasonable. Those searches have identified a large volume of information amounting to 117 documents in the context of the decision made by the Respondent to release the information to the Applicant (subject to redacting personal information) and subject to the payment of a processing fee. In this respect, it has been held that an agency is generally best placed to assess the likelihood of the existence of the information and whether it is held (Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 at [37]-[38]).
I am satisfied that the Respondent has met its obligation under s 53 of the GIPA Act.
[12]
Conclusion
For the above reasons, I affirm the decision.
[13]
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: 12 January 2024