Cincotta v Council of the City of Ryde - [2024] NSWCATAD 12 - NSWCATAD 2023 case summary — Zoe

NSWNSWCATAD

Cincotta v Council of the City of Ryde

[2024] NSWCATAD 12

NCAT Administrative and Equal Opportunity|2023-11-21

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2023-11-21

Source

Original judgment source is linked above.

Judgment (13 paragraphs)

[1]

REASONS FOR DECISION

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. …

[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.

[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.

[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.