Coote v Blacktown City Council

Legislation

1. The object of the GIPA Act as set out in s 3 is to open government to the public. This is done by authorising and encouraging the proactive release of information by agencies and by giving members of the public an enforceable right to access government information. Access to government information is to be restricted only when there is an overriding public interest against disclosure.
2. It was not disputed that the information the subject of this application is government information that is held by an agency: GIPA Act, s 4(1).
3. There is a presumption in favour of the disclosure of government information unless there is an "overriding public interest against disclosure": GIPA Act, s 5. 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: GIPA Act, s 9(1).
4. There is a general public interest in favour of disclosure of government information: s 12(1) GIPA Act. Examples of public interest considerations in favour of disclosure, which are not limited, are provided in a Note to s 12: The following are examples of public interest considerations in favour of disclosure of information: (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information 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. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information 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.
5. Section 13 of the GIPA Act sets out the test that is to be applied in determining whether there is an overriding public interest against disclosure: 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.
6. The public interest considerations against disclosure are set out in a Table in s 14 of the GIPA Act, and as relevant to this review are discussed below.
7. The determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the principles set out in s 15 of the GIPA Act which provides as follows: 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.
8. In determining whether there is an overriding public interest against disclosure of government information, the personal factors of the applicant may be taken into account: GIPA Act, s 55. Those factors are the applicant's identity and relationship with any other person, the applicant's motives for making the access application, and any other factors particular to the applicant.
9. Disclosure of information in response to an access application cannot be made subject to any conditions on the use or disclosure of the information: GIPA Act, s 73.

Evidence

1. The Council relied on written submissions and provided a bundle of documents including a copy of the record of ownership of Blanca in the NSW Companion Animals Register, and the Council's Privacy Management Plan.
2. Mr Coote relied on statements by himself dated 10 February 2021 (ex A1) and his daughter dated 9 March 2021, included in exhibit A2, and two bundles of documents including evidence and submissions (ex A2, A3).

Confidential documents

1. Section 107 of the GIPA Act provides that in determining an application for review, the Tribunal is to ensure that it does not, in the reasons for decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. The Tribunal must receive evidence and hear argument in the absence of the public, the review applicant and their representative if in the Tribunal's opinion it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.
2. The Council provided a bundle of documents on a confidential basis, including the unredacted version of the document provided in response to Mr Coote's access application, and the Tribunal has had regard to that material. It was not necessary to conduct any part of the hearing in the absence of Mr Coote.
3. The Tribunal has made an order under s 64 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) that disclosure to the applicant or the public of the unredacted material provided by the Council to the Tribunal is prohibited.

Issues

1. In determining this application the Tribunal is required to: 1. Identify the public interest considerations in favour of disclosure of the information; 2. Consider whether the information in issue, if released, would give rise to a public interest against disclosure on the grounds that release of the information could reasonably be expected to have the effect as contended by the respondent; and 3. If so satisfied, consider where the balance lies between the public interest considerations in favour of disclosure and those against disclosure, having attributed weight to each consideration, and taking into account the personal factors identified under, and as permitted by, s 55: Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19.
2. 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 s 15 of the GIPA Act: Transport NSW v Searle [2018] NSWCATAP 93 at [104].

Public interest considerations in favour of disclosure

1. In addition to the general public interest in favour of disclosure of information, the Council submits that the public interest considerations in favour of disclosure are those identified in paras (a) and (b) of the Note to s 12 in the GIPA Act (see para [15] above). The Council submits that those considerations should be given minimal or limited weight, and the particular information, namely the name and personal details of the complainant, does not in any material respect contribute to any of the public interest considerations in favour of disclosure.
2. Mr Coote contends that the complainant has committed an offence under s 314 of the Crimes Act 1900, which provides: 314 False accusations etc A person who makes an accusation intending a person to be the subject of an investigation of an offence, knowing that other person to be innocent of the offence, is liable to imprisonment for 7 years.
3. He submits that the Council knows the person's identity, and the name should be released as the person may be known to him and may be being spiteful or malicious. The person has caused considerable harm to him, and possible ongoing harm with further false and misleading claims.
4. The Council submits that to the extent that Mr Coote is relying on the contention that the identity of the person is known to Council, and he wants the name of the person released who may be known to him being spiteful or malicious, that is a private concern that would not be relevant to any public interest in favour of disclosure of the information.
5. The Tribunal is satisfied that disclosure of the information could reasonably be expected to enhance government accountability, and inform the public about the operations of agencies and their practices for dealing with members of the public. Those are public interest considerations in favour of disclosure.
6. The applicant is asserting that he needs to know the identity of the complainant as he is of the opinion that a criminal offence has been committed. That is not an assertion that the agency or a member of its staff has engaged in misconduct or unlawful conduct, which is included in the examples of public interest considerations in favour of disclosure of information. The applicant's concern that a criminal offence may have been committed by some other person could be a public interest in favour of disclosure. The Tribunal is of the view that that motive for making the access application is a relevant personal factor of the application, for the purposes of s 55(1)(b), which may be taken into account as a factor in favour of providing the applicant with access to the information.
7. The Tribunal considers that minimal weight should be given to disclosure of the information identified in para [10] above, in the circumstances where the complainant is recorded as not wanting to take the matter further; there is no evidence to suggest that the allegation that the dog in question was Blanca was other than an honest mistake as to the relevant house number; and there is no indication in the evidence of any further concerns as apprehended by the applicant since the incident in September 2020. The substance of how the original complaint was investigated and the processes followed by the Council and its staff in doing so has been disclosed by the provision of the document with redactions, and the identity of the complainant would not add materially to the understanding of those processes.

Public interest considerations against disclosure

1. The Council contends that there is a public interest against disclosure of the information as provided in cl 1(g) and cl 3(a) and (b) of the Table to s 14 of the GIPA Act: 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) - … (g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence, … 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, …
2. Clause 4 of Sch 4 to the GIPA Act defines "personal information": 4 Personal information (1) In this Act, personal information means 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 (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion. (2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics. (3) Personal information does not include any of the following - (a) information about an individual who has been dead for more than 30 years, (b) information about an individual (comprising the individual's name and non-personal contact details, including the individual's position title, public functions and the agency in which the individual works) that reveals nothing more than the fact that the person was engaged in the exercise of public functions, (c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause.
3. In considering the public interest considerations against disclosure, the following principles are relevant: 1. The words "could reasonably be expected to" are to be given their ordinary meaning (Attorney-General's Department v Cockcroft (1986) 10 FCR 180). In that case, Bowen CJ and Beaumont J explained, at 190, that the words: ... require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like. 1. In Leech v Sydney Water Corporation [2010] NSWADT 298 the Tribunal referred to a number of cases which had considered the term "could reasonably be expected to" and stated at [25]: "[25] … 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." 1. The public interest considerations against disclosure require an objective assessment as to whether the claimed effects could be expected to arise. This is ultimately a question of fact to be established to the relevant standard of proof, on the balance of probabilities (Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42]). 2. In considering the evidence required to establish that disclosure "could reasonably be expected to have" one of the effects stated in cll 1 or 3, the relevant principles are: 1. a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient; 2. there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect; and 3. prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses: Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 at [59].

Clause 1(g)

1. In support of its position that the information provided by the complainant was provided to the Council in confidence, as required by cl 1(g), the Council relies on the terms of its Privacy Management Plan. That document refers to the Privacy and Personal Information Protection Act 1998 (the PPIP Act) and the Health Records and Information Privacy Act 2002 (the HRIP Act), and states: Unsolicited information Unsolicited information is personal or health information received by us when we have not asked or required the information to be provided. This information is not subject to the collection principles in either of the Acts but the storage, use and disclosure principles will apply to any record of such information we retain. We treat identifying particulars of complainants on a confidential basis. However, identity may become apparent in the course of conducting an investigation into certain types of complaints, or in the event of court proceedings.
2. The document summarises under the heading "How we comply with the principles" the relevant principles in the PPIP Act and the HRIP Act, and how the Council complies with those principles. In relation to "Disclosure", the document states that "We do not disclose personal information without consent, to a person (other than the individual to whom the information relates) or other body, unless one of seven stated exceptions apply. Those include the provisions in s 18 of the PPIP Act. Further exceptions are stated, including open access information under the GIPA Act.
3. Under the Privacy Management Plan, the information in issue is of a kind that would not usually be disclosed to others. The Council submits that the Privacy Management Plan is available on its website, and as stated in the Summary guide for staff, provides guidelines for staff; and that information would have been available for the complainant.
4. The Tribunal accepts that the Privacy Management Plan summarises the principles provided in the PPIP Act and the HRIP Act for collection, use and disclosure of personal information by the Council. The document states that Council staff "should generally" only collect information that Council needs, and "be careful not to disclose an individual's information unless required or permitted". The Privacy Management Plan states that the Council "will treat identifying particulars of complainants on a confidential basis".
5. However, other than that statement there is no evidence, for example from a relevant Council officer, as to its usual practice for how complaints such as that made in relation to the dog are managed There is no indication in the document recording the complaint and investigation as to whether any assurances were given to the complainant as to confidentiality. There is no indication whether the complainant was consulted by the Council to ascertain whether that person objected to disclosure of identifying information. As confirmed in the authorities referred to above, a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient, and the Tribunal needs to be satisfied that the information was provided to the Council on the understanding that it would remain confidential. The Tribunal is not satisfied that the Council has provided real and substantial grounds for the claim that disclosure of the information could reasonably be expected to have the effect of disclosing information provided in confidence, so as to establish the public interest consideration against disclosure in cl 1(g) of the Table to s 14.

Clause 3

1. The un-redacted document, provided to the Tribunal on a confidential basis, confirms that it includes information about individuals other than the applicant whose identity is apparent from the information, as summarised above at [10]. The Tribunal is satisfied that that information is "personal information" as defined in the GIPA Act.
2. Disclosure of that information, relevantly the name, address and other details of the complainant, would reveal that individual's personal information. There is a public interest against disclosure of that information under cl 3(a) of the Table to s 14.
3. As noted above, the Council submits that disclosure of that information would breach the information protection principle provided in s 18 of the PPIP Act: 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. (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.
4. The Council submits that given the content of the Privacy Management Plan, it would be expected by the complainant that their report to the Council would be dealt with confidentially; it is reasonable to believe that the person concerned would object to disclosure; there is no ongoing serious or imminent threat to be alleviated by the disclosure of the personal information; and disclosure of the information would not be permitted under s 18 of the PPIP Act.
5. The applicant submits that s 18 of the PPIP Act is overridden by the right to access information provided by s 9 of the GIPA Act. The complainant has committed an offence under s 314 of the Crimes Act, and therefore cannot remain anonymous, and s 18 is overridden by s 25 of the PPIP Act. The fact that the information is of a kind that is not usually disclosed does not mean that it never would be disclosed. The applicant submits that he felt threatened on the afternoon of 10 September 2020, and the person concerned has caused considerable harm to him.
6. The Tribunal is satisfied that none of the exceptions specified in paras (a), (b) or (c) of s 18 of the PPIP Act apply. Disclosure of the identifying information concerning the complainant is not directly related to the purpose for which it was collected, which was to investigate a report of what was described as a "minor dog attack". Having regard to the terms of the Privacy Management Plan, there is no basis for a finding that the individual concerned is reasonably likely to have been aware, or has been made aware, that information of that kind is usually disclosed by the Council. While the applicant has expressed concerns as to the motive for the complainant making the report, there is no evidence to indicate that there is a serious and imminent threat to the life or health of either the complainant, or the applicant.
7. The Tribunal is satisfied that disclosure of the information could reasonably be expected to contravene the information protection principle in s 18 of the PPIP Act, and accordingly, that the public interest consideration against disclosure in cl 3(b) applies.
8. The personal factors of the application, including the applicant's motives for making the access application, can be taken into account as factors against providing access if relevant to whether the disclosure could reasonably be expected to have any of the effects referred to in cl 3: GIPA Act, s 55(3). In this instance, the applicant asserts that the complainant has committed a criminal offence and he submits that he is seeking the identifying information so he can be protected against any further malicious complaint. In circumstances where all the evidence points to there having been a mistake as to the identity of the dog in question, and where the complainant is reported to have said that they do not want to take the matter further, that personal factor of the application would count against providing access.
9. The Tribunal considers that significant weight should be given to the public interest considerations against disclosure in cl 3(a) and (b): the information is personal information of an individual who made a report to the Council and did not wish to take it further, and to disclose that information would contravene the clear protection given under the information protection principle applying by the PPIP Act, and implemented by the Council in the form of its Privacy Management Plan.

Whether there is an overriding public interest against disclosure

1. Section 13 of the GIPA Act requires that the Tribunal consider whether the public interest considerations against disclosure outweigh those in favour of disclosure. That evaluation requires the balancing of competing matters, in the context of the objects of the legislation, the general presumption in favour of disclosure of government information, and the principles set out in s 15 of the GIPA Act. As was the case in Stiller v Commissioner of Police, NSW Police [2004] NSWADT 173 the applicant has a strong interest in seeing the full record, in that it concerns an incident in which his dog was allegedly involved. However, the public interest considerations against disclosure of the personal information of the individual who made the initial report, and the other individuals identified in the document, are significant, and outweigh those in favour of disclosure. There is accordingly an overriding public interest against disclosure of the information.

Conclusion

1. The Tribunal is satisfied that there being an overriding public interest against disclosure of the information identifying persons as described above at para [10], the Council's decision to redact that information from the record of the incident report is justified.
2. The Tribunal orders:
3. The decision under review is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 07 June 2021