Coppock v Willoughby City Council [2021] NSWCATAD 166 | Case summary | Zoe

NSWNSWCATAD

Coppock v Willoughby City Council

[2021] NSWCATAD 166

NCAT Administrative and Equal Opportunity|2020-09-03

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2020-09-03

Source

Original judgment source is linked above.

Judgment (66 paragraphs)

[1]

Introduction

This proceeding concerns an administrative review of a decision of the respondent Council ("Council") to refuse the applicant access to particular information sought by him in an access application under s 41 of the Government Information (Public Access) Act 2009 (NSW) ("GIPA Act").

[2]

Background

There is no substantial dispute as to the background facts and the salient facts are set out below.
The applicant is a councillor of the respondent Council.
Certain complaints were made to the Council against the applicant under the Council's Code of Conduct. The Council appointed the following persons as conduct reviewers: 1. Ms Alison Cripps, 2. Mr Michael Symons; 3. Dr Mark Loves.
Each of the conduct reviewers undertook an investigation into a different complaint. The investigations each related to the applicant's role and conduct as a councillor. Each of the three investigations has concluded and is the subject of a report.
On 2 January 2020, an access application made by the applicant was received by the Council, in which the applicant sought the provision of particular information, including: All documents including, but not limited to, any correspondence, any emails, any file notes recording any conversations or computer records that occurred: Between Officers of Willoughby City Council; Between Officers of Willoughby City Council and an Officer or Officers of the Office of Local Government; Between an Officer or Officers of Willoughby City Council and an Officer, staff member or elected representative of the New Parliament (sic); Between an Officer or officers of Willoughby City Council and any departmental Officer of a department of the State Government of NSW other than the Office of Local Government; Between the Mayor or a member of the Mayor's office with any Officer of the Department of the State Government of NSW, any elected representative of the State Parliament of NSW, Willoughby Council or another Council within NSW, Between any officer of Willoughby City Council, the Mayor and any of these individuals; Dr Love (sic), Ms Cripps and Mr Symons, or Any documents created by an Officer of Willoughby Council or the Mayor; in regard or relation to any of the following matters: A. The Code of Conduct Investigation undertaken by Dr Love (sic) on behalf of Willoughby City Council and the Final Report of that Investigation, B. The Code of Conduct Investigation undertaken by Ms Cripps on behalf of Willoughby City Council and the Final Report of that Investigation, and C. The Code of Conduct Investigation undertaken by Mr Symons on behalf of Willoughby City Council and the Final Report of that Investigation.

[7]

The applicable law

The applicable law includes the GIPA Act and legal principles applying to the provisions of that Act. Interpretation of the GIPA Act is governed by s 3 of that Act which provides: 3 Object of Act (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (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) It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
Section 9 (1) of the GIPA Act provides: 9 Access applications (1) A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.
Section 58 of the GIPA Act deals with how access applications are decided by agencies. Section 58(1)(d) provides: 58 How applications are decided (1) An agency decides an access application for government information by: … (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information.. …
The onus of establishing that an agency's decision is justified lies on the agency: s 105 GIPA Act. That means the agency must, first, identify the information contained in each document which it contends should be withheld from the applicant because the public interest considerations against disclosure of the information contained in the document outweigh those in favour; and secondly justify its decision through submissions and evidence, sufficient to satisfy the Tribunal: Taylor v Office of Destination NSW [2018] NSWCATAD 195 at [20]; Forbidden Foods Pty Ltd v Rice Marketing Board of New South Wales [2020] NSWCATAD 18 at [52].
In considering whether there is an overriding public interest against disclosure of particular information, the following sections of the GIPA Act (together with ss 3, 9 and 105) are germane: 5 Presumption in favour of disclosure of government information There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. … 12 Public interest considerations in favour of disclosure (1) There is a general public interest in favour of the disclosure of government information. (2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Note: 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. (3) The Information Commissioner can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies. … 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. … 14 Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. … Table 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): … (f) prejudice the effective exercise by an agency of the agency's functions, … (h) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed). … 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. 6 Secrecy Provisions (1) There is a public interest consideration against disclosure of information if disclosure of the information by any person could (disregarding the operation of this Act) reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule (of this or another State of the Commonwealth) that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions. (2) The public interest consideration under this clause extends to consideration of the policy that underlies the prohibition against disclosure. 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. 55 Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section: (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14. ...
Schedule 1 of the GIPA Act contains as far as is presently relevant: 5 Legal professional privilege (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege. (2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause. ... 6 Excluded information (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that is excluded information of an agency, other than information that the agency has consented to the disclosure of. (2) Before an agency decides an access application by refusing to provide access to information on the basis that it is excluded information of another agency, the agency is required to ask the other agency whether the other agency consents to disclosure of the information.
Schedule 2 of the GIPA Act includes: 2 Complaint handling and investigative information ... The Office of Local Government (including the Chief Executive and other Departmental representatives) - complaint handling and investigative functions conferred by or under any Act on that Department. ...
Schedule 4 of the GIPA Act provides that: excluded information of an agency specified in Schedule 2 means information that relates to any function specified in that Schedule in relation to the agency.
Thus it may be seen that the GIPA Act creates a presumption in favour of disclosure of government information unless there is an overriding public interest against disclosure of that information (s 5 GIPA Act), and the applicant has a legally enforceable right to the government information he seeks, subject (again) to there not being an overriding public interest against disclosure (s 9 GIPA Act).
There will be an overriding public interest against disclosure for the purposes of the GIPA Act if and only if there are public interest considerations against disclosure which outweigh the public interest considerations in favour for disclosure (s 13 GIPA Act).
The presence of particular considerations against disclosure, being those set out in Sch 1 of the GIPA Act, is sufficient to compel the conclusion that there is an overriding public interest against disclosure such that the information is not to be disclosed (s 14(1) GIPA Act).
However, absent a Sch 1 consideration against disclosure the Tribunal's task is to consider and weigh in the balance: 1. the public interest considerations in favour of disclosure, which are unlimited and include: 1. the general public interest in favour of disclosure (s 12(1) GIPA Act); 2. the examples listed in the note to s 12(2) of the GIPA Act; and 1. the public interest considerations against disclosure, which are limited to those in the table in s 14 of the GIPA Act.
In undertaking this balancing task the Tribunal is entitled to take into account the "personal factors of the application" as factors in favour of disclosure (s 55 GIPA Act). The personal factors of the application are described in s 55 as: 1. the applicant's identity and relationship with any other person; 2. the applicant's motives for making the access application; and 3. any other factors particular to the applicant.
The Tribunal is also entitled to take into account personal factors of the application as factors against disclosure, but only to the extent that those factors are relevant to the consideration of whether disclosure of the information could reasonably be expected to have any of the effects referred to in cll 2, 3, 4 or 5 of the table in s 14 of the GIPA Act.
In the present case, the Council does not rely upon any of cll 2, 4 or 5 of the table in s 14 of the GIPA Act, but does rely upon cll 3 and 6. It follows that the personal factors of the application may be taken into account as factors against disclosure of the information sought by the applicant only when considering whether disclosure of the information could reasonably be expected to have the effect described in a relevant sub-clause of cll 3 or 6.
The balancing exercise requires the Tribunal to make a broad value judgment. However, that judgment is to be made, not in a vacuum, but instead in a context which has 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 for NSW v Searle [2018] NSWCATAP 93 at [104].

[8]

Section 14(1) and cl 5 of Sch 1 - legal professional privilege claim

I turn now to consider the claim based upon cl 5 of Sch 1 to the GIPA Act.
This claim applies to some of the information contained in the document described at Document Schedule 1, item 3A as an "Email dated 24 August 2017 between Acting Governance Manager with attachments regarding Code of Conduct Complaint".
As noted above, cl 5 of Sch 1 to the GIPA Act provides as far as is presently relevant: 5 Legal professional privilege (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege.
Council has redacted information from this item on the basis that its disclosure would result in the disclosure of information the subject of legal professional privilege, and in particular information protected by s 118 of the Evidence Act 1995 ("Evidence Act"). Section 118 of the Evidence Act provides: 118 Legal advice Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of - (a) a confidential communication made between the client and a lawyer, or (b) a confidential communication made between 2 or more lawyers acting for the client, or (c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person, for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
The applicant and the Council are in agreement as to the underlying elements that need to be proven to establish a claim of privilege based upon s 118 of the Evidence Act (being those specified in the text of the section as well as the absence of any waiver of the privilege) but are at odds as to whether the Council has proven those elements.

[10]

Consideration

The Council and the applicant have addressed the question of privilege by reference to the provisions of the Evidence Act. Such an approach is consistent with Colefax v Department of Education and Communities [2013] NSWADT 75, at [26] and Saggers v Environment Protection Authority [2014] NSWCATAD 37, at [26]. In any event, it does not appear that the application of common law principles would produce a different result in this matter.
As noted above, the principal contest between the applicant and the Council is whether the Council has proven each of the elements of s 118 of the Evidence Act.
The Council has not sought to prove those elements by way of evidence from any witness. Instead, it has asked the Tribunal to infer the existence of those elements from Document 3A itself.
Contrary to the applicant's submission, proof of the elements of s 118 of the Evidence Act need not be by way of evidence from a witness. These elements may also be established by inferences drawn from the face of the document containing the information in question and from other documents: see for example, Collins v Department Finance, Services & Innovation [2018] NSWCATAD 60 at [48]-[51], citing the observations of an Appeal Panel in AIN v Medical Council of New South Wales [2015] NSWCATAP 241 at [25]; Zidar v Department of Justice (No. 3) [2018] NSWCATAD 230 at [32] - [33].
I do not understand Brereton J (as his Honour then was) in Hancock v Rinehart (Privilege) or Wigney J in De Martin, to which the applicant has referred, to have been indicating that proof of such facts via a witness was necessary, rather than indicating the mere assertion of the elements of a claim for privilege is insufficient.
Whilst it is possible to prove each of the elements of a claim of privilege solely from the document the subject of the claim of privilege and other documents, the following observations of the Appeal Panel in AIN v Medical Council of New South Wales at [25] are apposite: "Where an agency claims that certain information would be privileged from production in legal proceedings on the ground of client legal privilege, it has the onus of establishing this (see GIPA Act, s 105 and Sch 1, cl 5). This means it is required to establish the factual matters necessary to found a claim under s 118 or s 119 of the Evidence Act, including that relevant persons are a client and a lawyer, that a document or communication is confidential and that the dominant purpose for which a communication was made or a document was prepared is one contemplated by the provision relied upon. Whilst some of these matters can, in some cases, be found in or inferred from the document the subject of the privilege claim, it is almost always necessary to provide some evidence relevant to the privilege claim before it can be concluded that s 118 or s 119 applies. It is not uncommon in GIPA Act proceedings for an agency to underestimate the need for evidence to establish privilege."
I turn now to consider the redactions from Document 3A.
As is apparent from the unredacted portions of Document 3A it is an email dated 24 August 2017 from Mr Patterson, Acting Governance Manager of the Council to Ms Cripps which forwards an email dated 23 August 2017 from Ms Debra Just, General Manager of the Council to Mr Patterson. Ms Just's email has a series of attachments. Redactions have been made to that email and several of those attachments (being attachments 4, 5, 7 and 10).
Having considered the contents of Document 3A, I accept the Council's submission that each of the redacted parts of Document 3A were communications made between the Council and its lawyers, King Wood Mallesons ("KWM") made for the dominant purpose of the KWM providing legal advice to the Council and are thus protected by legal professional privilege. There is no suggestion that the privilege has been waived.
It follows that there is a conclusive presumption against disclosure of this information and the Decision in so far as it relates to this information should be affirmed.

[14]

Submissions

The Council submitted that information relating to a function of an agency is not confined to information produced by that agency, but also includes information obtained by the agency: Pertsinidis v Illawarra Shoalhaven Local Health District [2014] NSWCATAD 130 at [65].
The OLG submitted that: 1. the requirement that information be information "of" an agency does not require that the agency have possession of the information. It is sufficient that the information relates to the complaint handling and investigative functions conferred by or under any Act on the OLG. It is possible for an agency to be in possession of excluded information of another agency, for example, Pertsinidis v Illawarra Shoalhaven Local Health District at [30] - [37] and [65]; 2. an interpretation which limits the operation of cl 6 to information of the agency in whose possession it was located would: 1. negate the effect of s 54A of the GIPA Act, which provides for consultation between agencies for the purposes of determining whether there is an overriding public interest against disclosure; 2. render otiose cl 6(2) of Sch 1 to the GIPA Act, which, as noted above, provides: Before an agency decides an access application by refusing to provide access to information on the basis that it is excluded information of another agency, the agency is required to ask the other agency whether the other agency consents to disclosure of the information. (emphasis added) 1. have significant unintended consequences that would undermine the protections afforded to agencies by the excluded information provisions in Sch 2 to the GIPA Act. For example, a scenario in which a local council sends an email to the OLG which contains information that undoubtedly relates to the OLG's complaint handling or investigative functions would create a copy of the information in the inbox of the OLG, and a copy of the information in the sent box of the relevant council employee. This would have the consequence that the copy held by the OLG would be excluded information, but the copy held by the council would not be; 1. the relevant question is not a question of possession of the information but instead identification of the function to which the information relates.
The applicant submitted that the expression "excluded information of an agency" should be read narrowly, as being confined to information which belongs to the agency, and as the information in question is in the possession of the Council it does not belong to the OLG and thus is not excluded information. The applicant also made an alternative submission that this expression should be read as being limited to information that otherwise derives from the agency or has the agency as its origin or source.

[17]

Submissions

The Council submitted that the OLG's complaint handling and investigative functions are set out in: 1. the LG Act and include: 1. dealing with complaints made by a public official (s 429A of the LG Act); 2. the investigation of councils (s 430 of the LG Act); 3. dealing with complaints regarding a failure to disclose a pecuniary interest (s 460 of the LG Act); 4. investigating and taking disciplinary action against a councillor for misconduct (ss 440H and 440I of the LG Act); and 5. carrying out preliminary enquiries for the purposes of determining whether to commence an investigation (s 734A of the LG Act); 1. the Procedures for the Administration of the Model Code of Conduct for Local Councils in NSW (2013) ("2013 Procedures"), which have force by virtue of s 440AA of the LG Act and include carrying out a review of the findings and recommendations of an investigator of a breach of the Code of Conduct (cll 9.6 to 9.17 of the 2013 Procedures).
The OLG's submissions on this issue may be summarised as follows: 1. the relevant provisions of the LG Act are ss 429A, 430, 440A, 440H-I, 440AA and 734A of the LG Act; 2. s 430 of the LG Act permits the Departmental Chief Executive, or their delegate under s 745 of the LG Act, to investigate any aspect of a council or its work and activities, including on the Departmental Chief Executive's or delegate's own initiative. The Departmental Chief Executive or their delegate are also empowered to make preliminary enquiries for the purpose of deciding whether to investigate any aspect of a council or its work and activities (s 734A of the LG Act). Having regard to the broad nature of the words "relates to", information that would inform the Departmental Chief Executive or their delegate's decision whether to make preliminary enquiries as part of deciding whether to investigate an aspect of council, or which would inform the course of that investigation, is excluded information for the purposes of the GIPA Act. The OLG may exercise these powers whether or not a complaint has been made under the LG Act; 3. the OLG's investigations may lead to it taking disciplinary action against a councillor (s 440I of the LG Act) or referring the councillor to the Tribunal (s 440J of the LG Act). The OLG is also empowered to make recommendations to councils about how to resolve a matter involving its councillors (s 440J(2)(a) of the LG Act); 4. s 440 of the LG Act allows for the Model Code of Conduct for Local Councils in NSW and s 440AA of the LG Act and the Local Government (General) Regulation 2005 provide for the 2013 Procedures. Therefore, the complaint handling and investigative functions of the OLG that arise from these documents are functions "conferred by or under any Act" for the purposes of Sch 2(2) of the GIPA Act. In particular: 1. Pt 5 of the 2013 Procedures specifies who must be notified of complaints, and who is responsible for dealing with them. The procedure varies depending on whether the complaint concerns a council staff member, the general manager or a councillor; 2. pursuant to cl 5.11 of the 2013 Procedures, the general manager of a council is required to refer all Code of Conduct complaints about conduct reviewers to the OLG for its consideration; and 3. additionally, Pt 9 of the 2013 Procedures provides rights of review, under which a person the subject of a sanction imposed under Pt 8 of the Procedures can seek a review of the investigator's determination and recommendation by the OLG. The OLG is responsible under Pt 9 for reviewing such complaints and providing recommendations to councils concerning such complaints. This clearly forms part of the OLG's complaint handling and investigative functions.
The applicant has submitted that: 1. the Council initiated its own investigations into the applicant and had Ms Cripps, Dr Loves and Mr Symons conduct those investigations; 2. it is not immediately apparent what if any complaint handling or investigative role was played by the OLG and the OLG has led no evidence about this; 3. the only potentially relevant functions of the OLG for present purposes are those identified in ss 429A, 440H-I and 734A of the LG Act; 4. as to s 429A of the LG Act: 1. OLG's "functions" under s 429A are triggered if: 1. a "public official", within the meaning of the Public Interest Disclosures Act 1994, had made a complaint to the Departmental Chief Executive about the applicant in his capacity as a councillor (s 429A (1)); 2. the Department Chief Executive had determined under s 429A (3) to deal with the complaint by an investigation under Division 1 of Pt 5 of Ch 13 of the LG Act (ss 429-434C) ("Division") and had exercised the powers conferred by s 431 in this regard; 1. "public official" is defined by s 4A of the Public Interest Disclosures Act as an individual who is an employee or otherwise in the service of a "public authority", and "public authority" is defined by s 4 to include a local council; 2. hence, it is only if a complaint were made by an employee or someone otherwise in the service of the Council which the OLG determined to investigate, and the information related to that investigation or complaint that the requisite connection between the information and the OLG's investigatory or complaint handling function would exist. This is a matter about which the applicant does not and cannot know, given the lack of detail provided about the information withheld and the paucity of evidence filed by the Council; 1. as to ss 440H-I of the LG Act: 1. these sections concern investigations by the Department Chief Executive. They do not concern "complaint handling"; 2. section 440I deals with the power of the Departmental Chief Executive to take disciplinary action against a councillor. It is difficult to see how this provision can possibly be relevant. Only if the emails and correspondence withheld by the Council relate to the investigatory functions under s 440H will there be the requisite connection between the information and the OLG's investigatory functions conferred by the LG Act. This is a matter about which the applicant does not and cannot know given the lack of evidence provided by the Council; 1. as to s 734A of the LG Act: 1. that section permits the Departmental Chief Executive to make preliminary enquiries for the purpose of deciding whether to exercise his or her powers of investigation under the LG Act, or his or her powers to authorise an investigation; 2. the only investigatory powers of relevance to the applicant are those set out in ss 429A and 440H; 3. only if the emails or correspondence withheld relate to the making of preliminary enquiries to decide whether to exercise powers under those provisions will there be the requisite connection between the information and investigatory functions of the OLG. This is a matter about which the applicant does not and cannot know, given the state of the Council's evidentiary case.

[18]

Consideration

In Beregi v Department of Planning, Industry and Environment [2019] NSWCATAD 253, the Tribunal considered the scope of the OLG's complaint handling and investigative functions at [23] - [24] and [27]: "23 The GIPA Act does not define the terms "investigative function" or "complaint handling function". There has been little consideration of the construction of these terms and they should be given their natural meanings. Drawing on cases in other related fields, however, a significant breadth of information is capable of falling within the definition of "investigative and complaint handling functions" (Broadribb v Medical Council of New South Wales [2018] NSWCATAD 213 at [45] - [62]; DF v Director General, Attorney General's Department [2002] NSWADT 164 at [25]; Miller v Director of Public Prosecutions [2012] NSWADT 38 at [19] - [32]). 24 Section 430 of the Local Government Act provides that the Chief Executive may, at the request of the Minister or on the Chief Executive's own initiative, conduct an investigation into any aspect of a council or of its work and activities. Section 430 is a very broad general investigative power and is in addition to specific complaint and investigative powers conferred in relation to public interest disclosures (s 429A) and pecuniary interests (s 460). … 27 I am of the view, contrary to the submissions of Ms Beregi, that the complaint handling and investigative functions of the respondent encompass matters from the receipt of a complaint up to and including its resolution. These functions will include the broad complaint handling powers in section 430 of the Local Government Act and extend to the more serious functions concerning the suspension of a council, the making of a Performance Improvement Order and to the very serious undertaking of the conduct of a public inquiry into allegations against a council or councillors." (emphasis added)
This approach was endorsed by the Appeal Panel in a decision delivered after the hearing in this proceeding: see Beregi v Department of Planning, Industry and Environment [2020] NSWCATAP 185 at [47], [71], [78] and [100].
Thus, the expression "complaint handling and investigative functions" conferred by or under the LG Act on the OLG is capable of a wide operation and encompasses matters from the receipt of a complaint up to and including its resolution.
Of particular relevance to the present proceeding are the following provisions of the LG Act: 1. s 429A, which provides for complaints to be made by public officials about the conduct of councils and councillors among others and which provides for an investigation to occur under the Division; 2. s 430, which allows an investigation into any aspect of a council or of its work and activities; 3. s 433, which provides for a report of an investigation under the Division to be provided to the Minister and the relevant Council; 4. s 434 which provides that a council must, within 28 days after presentation to it of a report made following an investigation under the Division, give written notice to the Minister of the things done or proposed to be done to give effect to any recommendations contained in the report; 5. s 440, which provides that regulations may prescribe a model code of conduct applicable to councillors and others and requires that councils adopt a code of conduct which incorporates the provisions of the model code of conduct; 6. s 440AA, which provides that regulations may prescribe a model procedure for administering the model code of conduct and requires that councils adopt a procedure which incorporates the provisions of the model procedure; 7. s 440H, which provides for an investigation for the purpose of determining whether a councillor has engaged in misconduct. Such an investigation may be started in a variety of ways, including by the OLG on its own initiative, of by the referral by a general manager of a council of an allegation of misconduct by a councillor; 8. s 440I, which provides that the OLG may take disciplinary action against a councillor upon satisfaction that the councillor has engaged in misconduct and disciplinary action is warranted; 9. s 440J which provides that the OLG may take various actions as an alternative to disciplinary action; and 10. s 734A which provides that the OLG may make preliminary enquiries for the purpose of deciding whether to exercise the powers of investigation under the LG Act or powers to authorise an investigation under that Act. The enquiries may be made whether or not a complaint has been made under the LG Act in connection with any matter to which the enquiries relate.
Also of relevance are: 1. the Code of Conduct; 2. the 2013 Procedures; and 3. the Procedures published in 2018 ("2018 Procedures").

[20]

Submissions

The parties are also at issue as to the requisite relationship between the information in question and the functions of the agency.
The Council's submissions on this issue may be summarised as follows: 1. in considering whether particular information "relates to" the functions of an agency, the Tribunal has emphasised that the term is to be given the "widest import": Beregi v Department of Planning, Industry and Environment [2019] NSWCATAD 253 at [21] and Betzis v Commissioner of Police at [34]; 2. the Tribunal held in Beregi that the complaint handling functions of the OLG encompass matters from the receipt of a complaint up to, and including, its resolution; 3. in accordance with that broad approach, the following fall within "excluded information": 1. correspondence from the Council to the OLG communicating a complaint, and from the OLG indicating the outcome of its consideration; 2. any information sent to the OLG for the purposes of its complaint handling functions.
The OLG's submissions on this issue may be summarised as follows: 1. the words "relates to" should be given their widest import: Beregi v Department of Planning, Industry and Environment [2019] NSWCATAD 253 at [21]; Pertsinidis v Illawarra Shoalhaven Local Health District at [59]; Broadribb v Medical Council of New South Wales [2018] NSWCATAD 213 at [65] and Watson v NSW Trustee and Guardian [2015] NSWCATAD 139 [15]; 2. in Beregi, which concerned an access application to the OLG by a councillor seeking documents relating to investigations of a council by the OLG, the Tribunal: 1. observed at [23] that a significant breadth of information is capable of falling within the scope of these functions; 2. found at [27] that the complaint handling and investigative functions of the OLG encompass matters from the receipt of a complaint up to and including its resolution; 3. found at [28] to [29] that the information falling within the scope of these functions includes, among other things, submissions, recommendations, and emails concerning steps to be taken to deal with complaints made; 1. the exclusion in cl 6 of Sch 1 to the GIPA Act applies to information that is generated by an agency in the course of an investigation or the handling of a complaint, as well as to information that is obtained by the agency from other sources in the exercise of the investigative or complaint handling function: see e.g. Pertsinidis [65]; 2. cases concerning agencies other than the OLG also support a broad interpretation of the scope of complaint handling and investigative functions. By way of example, in Broadribb at [45]-[62], the Tribunal found that the investigative and complaint handling functions exemption in relation to the Health Care Complaints ("HCCC") applied to information including, among other things, submissions concerning the complaint, communications from the HCCC to the subject of the complaint about the complaint, and the decision on the complaint; and 3. the breadth of the words "relates to", together with the breadth of the investigative and complaint handling functions themselves, means that not only complaints by or about Councils or councillors are captured, and any information that relates to such complaints, or grounds for such complaints, also falls within the OLG's investigative and complaint handling functions.
The applicant's submissions on this issue may be summarised as follows: 1. the expression "relates to" in the definition of "excluded information" indicates a connection between two subject matters (relying on Re Dingjan: Ex Parte Wagner (1995) 183 CLR 323 at 338 (Brennan J) and Joye v Beach Petroleum NL (1996) 67 FCR 275 at 285c (Beaumont and Lehane JJ); and 2. to the extent the Tribunal has said the expression was of "wide import", this tends to deflect from what the collocation requires, namely, a connection between the information and a specified function of the agency (as recognised by Senior Member Ransome in the final sentence in paragraph [21] in Beregi v Department of Planning, Industry and Environment [2019] NSWCATAD 253); and 3. as to the Council's submissions that correspondence from the Council to the OLG communicating a complaint and from the OLG indicating the outcome of its consideration fall within the scope of excluded information, neither of these matters relates to the OLG's investigatory functions under ss 429A, 440H or 734A and no "complaint handling" function conferred by the LG Act has been identified. These documents are not information relating to OLG's complaint handling or investigatory functions as conferred on the OLG by the LG Act.

[21]

Consideration

In Beregi v Department of Planning, Industry and Environment [2019] NSWCATAD 253, the Tribunal said at [21]: "As set out above, "excluded information" is defined as being information "that relates to any function specified… in relation to the agency". The expression "relate to" has been held to be one of broad import: see, for example, Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 11. This Tribunal has generally held that the phrase "relating to" and similar expressions is a broad one to be construed with the widest import (Miller v Director of Public Prosecutions [2012] NSWADT 38 at [19] - [23]; Pertsinidis v Illawarra Shoalhaven Local Health District [2014] NSWCATAD 130 at [59]). As the Tribunal noted in Watson v NSW Trustee and Guardian [2015] NSWCATAD 139 at [15], in each case, the question is the extent to which the information in issue has a connection with the specified function." (emphasis added)
This approach was endorsed by the Appeal Panel: see Beregi v Department of Planning, Industry and Environment [2020] NSWCATAP 185 at [74]-[77], [100]. At [77], the Appeal Panel said: "We consider that the term "relates to," as it is used in the definition of "excluded information" in Sch 4 to the GIPA Act, has a broad meaning. Notwithstanding Parliament's intention that the GIPA Act is to be interpreted so as to further the object of that Act (s 3(2)), that object is not to ensure the provision of access to all government information. It includes to "open government information to the public by … providing that access to government information is restricted only when there is an overriding public interest against disclosure" (GIPA Act, s 3(1)(c)). The use of the term "relates to" indicates, in our view, that the legislature intended there to be an overriding public interest against disclosure of government information having a broad connection to the OLG's complaint handling and investigative functions, where those functions were conferred by or under any Act on the OLG (GIPA Act, Sch 2, cl 2)." (emphasis added)
It follows that the expression "relates to" is to be interpreted widely and a broad connection between the information and a complaint handling or investigation function is sufficient.

[24]

General submissions

Each of the Council, the OLG and the applicant made some general submissions concerning the documents containing the withheld information.
In this regard, the Council submitted that: 1. the documents are all correspondence between the Council and the OLG in relation to breaches of Council's Code of Conduct and thus excluded information of the OLG; 2. the relevant documents in: 1. the Cripps Investigation (Document Schedule 1, items 15, 17 and 18) concern a request from the applicant for a review of a determination by Ms Cripps that the applicant had breached Council's Code of Conduct. They include the final report of that review, correspondence with Council in relation to that report, and also correspondence between Council and the OLG; 2. the Loves Investigation (Document Schedule 2, items 30,31,33 and 34) relate to allegations of misconduct which were referred to the OLG for investigation. Those allegations were ultimately the subject of a Departmental Report under s 440H of the LG Act; 3. the Symons Investigation (Document Schedule 3, items 29,30 and 39) comprise correspondence between the Council and the OLG in relation to the OLG's consideration of allegations about a conduct reviewer as set out in a letter from the OLG dated 20 May 2020, and the referral of a complaint about the applicant by Council to the OLG. The latter document is related to the complaint-handling functions of the OLG, which encompasses the receipt of a complaint: Beregi. Further, the OLG was responsible under the 2013 Procedures for investigating and dealing with all Code of Conduct complaints about conduct reviewers. Correspondence regarding a complaint and before its finalisation again relates, in the broad sense referred to in Beregi, to OLG's complaint handling functions.
The OLG submitted that examination of each of the documents in issue reveals that the information within each of those documents falls within the broad scope of the OLG's complaint handling and investigative functions, and is thus subject to the conclusive presumption against disclosure. In this regard, Ms Brown provided some general evidence to the following effect: 1. her role requires her to oversee the enquiries and investigations undertaken by the Investigations Team within the Section Performance and Intervention Group of the OLG and to provide advice to the Deputy Secretary, Local Planning and Policy of the Department of Planning, Industry and Environment on pecuniary interest, councillor misconduct, dysfunction and maladministration in relation to local councils and council officials; 2. she has dealt with numerous complaints alleging breaches of the pecuniary interest provisions of the LG Act and later, complaints alleging councillor misconduct, and has been responsible for leading investigations into maladministration of councils; 3. she is familiar with the misconduct provisions of the LG Act and with all of the versions of the Code of Conduct since 2005; 4. she is familiar with the Procedures; 5. in particular, she has expert knowledge of the specific areas of the LG Act relating to the areas of work in which she operates due to the number of matters she reviews, and provides advice on, each year; 6. she is also familiar with the provisions of the GIPA Act; 7. by reason of her work she has developed a thorough knowledge and understanding of the local government section, its operating environment and governing legislation; 8. pursuant to the Division, the OLG has the responsibility of investigating complaints made against local councillors. It may do so on its own initiative, or alternatively in response to a complaint received from, for example, a local council by resolution, a general manager or a member of the general public; 9. if the OLG receives a complaint, it may decide to exercise its powers under the LG Act to investigate it. An investigation may lead to the Deputy Secretary taking disciplinary action against the councillor the subject of the complaint, or referring the councillor to the Tribunal for further action; 10. Pt 6 of the Procedures provides for complaints about councillors or the general manager of council to be referred for preliminary assessment to a conduct reviewer selected from a panel of conduct reviewers established by the council or by an organisation approved by the Deputy Secretary; 11. Pt 7 of the Procedures provides for the investigation by a conduct reviewer of referred complaints; 12. if the subject of the conduct reviewer's investigation considers that the conduct reviewer failed to comply with the Procedures or Code of Conduct or has misinterpreted or misapplied the Procedures or Code of Conduct, or considers that the Council failed to comply with the Procedures in imposing a sanction, he or she is entitled to apply to the OLG for a review of the investigator's determination or the sanction imposed; 13. the OLG is responsible for determining these applications for review and, following that review, may determine to undertake action under the misconduct provisions of the LG Act; and 14. the Procedures require councils to refer certain matters to the OLG, including some classes of code of conduct complaints, for review and consideration of action under the misconduct provisions of the LG Act.
The applicant submitted that: 1. the Council bears the onus of establishing each element of cl 6 for each document; 2. the Council's submissions concerning: 1. the Cripps Investigation refer to a final report, but a final report cannot relate to an investigation or complaint handling function. A final report is produced, as a matter of logic, at the conclusion of an investigation. Correspondence about such a report can have nothing to do with an investigation which would logically have concluded. It is not clear, in any event, what the correspondence between the Council and OLG referred to relates to; 2. the Loves Investigation misconceive the investigatory function conferred on the OLG by s 440H. Only if the documents relate to the conduct of an actual investigation pursuant to s 440H, including the exercise by the Departmental Chief Executive of the powers under s 440H (3), would the documents be information relating to the OLG's investigation functions conferred by the LG Act; 3. the Symons Investigation do not relate to the OLG's exercise of any function conferred on it by the LG Act; and 1. the OLG's submissions do not identify specific complaint handling or investigative functions or the relationship between particular documents and such functions.
It is convenient to note at this point that I do not accept the submission that a final report cannot relate to an investigation or complaint handling function. It will usually contain the results of an investigation. Whilst the investigation will likely have been completed, this does not prevent a final report from "relating to" the investigation or to a relevant complaint.

[30]

Document Schedule 2, item 31

This document is described in Document Schedule 2 as: Email chain dated 13 June 2018 from Governance, Risk and Corporate Planning Manager to the Office of Local Government with attachments regarding Code of Conduct Complaint.
Ms Brown's evidence is that the email enclosed a number of documents relating to a Code of Conduct investigation by the Council. Mrs Brown's evidence was also that the emails, and the attachments to the emails are all confidential documents that directly set out the substance of a Code of Conduct complaint and its investigation by a conduct reviewer and were provided by the Council to the OLG on a confidential basis to enable the OLG to undertake its functions under the misconduct provisions of the LG Act.
The applicant submitted that: 1. this document is not a complaint being made by the Council to the OLG about a councillor or a referral of a complaint under cl 5.16 of the Code of Conduct and appears to be the provision of information to the OLG; 2. there is no evidence before the Tribunal that the provision of this information or the sending of these emails fell within s 429A of the LG Act; 3. plainly, the documents do not follow from any determination by the Departmental Chief Executive (at his or her own initiative or at the request of the Minister) to conduct an investigation into a Council. Nor does the provision of information to the OLG by the Council constitute the engagement by the OLG in an investigation under s 440H (1) or the exercise of any of the powers conferred by s 440H (3) of the LG Act; and 4. in the circumstances, this information does not relate to any complaint handling or investigation function of the OLG.
I have reviewed this document.
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
As noted above, the documents were provided by the Council to the OLG on a confidential basis to enable the OLG to undertake its functions under the misconduct provisions of the LG Act. For the above reasons, I am satisfied that the information in this document relates to a complaint handling or investigative function conferred on the OLG under the LG Act.

[39]

Could reasonably be expected

Each of these public interest considerations against disclosure includes the chapeau to s 14 which contains the phrase "… could reasonably be expected to have one or more of the following effects …".
The principles to be applied in considering whether disclosure of information "could reasonably be expected" to have a particular effect were summarised in Transport for NSW v Searle [2018] NSWCATAP 93 at [68] as follows: "68. There was no dispute between the parties that: … (2) The words "could reasonably be expected" are to be given their ordinary meaning. They 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 disclosure would have the relevant effect: Attorney-General's Department v Cockcroft (1986) 10 FCR 180 at 190.5; Raven v The University of Sydney [2015] NSWCATAD 104 at 48. As was made clear by Hayne J in McKinnon v Secretary, Department of Treasury [2006] HCA 45 at [61] - ... when their Honours said, as they did, that the words required 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 certain consequences, they are not to be understood as having used the latter expression as a paraphrase of the former. Rather, they are to be understood, and have since been understood, as doing no more than drawing an emphatic comparison. To do more would have been, as their Honours correctly said, "to place an unwarranted gloss upon the relatively plain words of the Act." (3) In order to discharge the onus, the appellant needed to show more than a mere possibility, risk or chance of prejudice. It must be based on real and substantial grounds: Australian Vaccination Network v Department of Finance & Services [2013] NSWADT 60 at [22]. (4) It will not be sufficient for the decision-maker to proffer the view. It must be supported in some way: Manly v Ministry of Premier and Cabinet (1995) 14 WAR 550 at 573G; Raven at [53]. (5) "Prejudice" is to be given its ordinary meaning, that is, to cause detriment or disadvantage, or to impede or derogate from: Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60]. (6) The question as to prejudice to future supply was not to be determined by reference to the particulars of the instant situation. It was not necessary to show that it could reasonably be expected to occur on every occasion. It was to be determined at a broader operational level. Hence, the fact that in the instant situation the specific individual(s) supplying the information was unlikely to be inhibited even if there was disclosure was not determinative against the agency: Camilleri at [21], [22] and [26]."
Whether disclosure of particular information "could reasonably be expected to" have a particular effect is 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]; McMillan v Commissioner of Police, NSW Police Force; Brady v Commissioner of Police, NSW Police Force [2013] NSWADT 53 at [66].
The requirements for proof of questions of fact in administrative review proceedings generally were summarised by the Appeal Panel in Meacham v Commissioner of Police [2020] NSWCATAP 107 at [54] and [83]: "[54] Despite not being bound by the rules of evidence, the Tribunal is required to base its findings of fact on "logically probative material", and not on "mere suspicion or speculation", as a corollary of its obligation to act reasonably: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 ("Pochi") at 62, 68 (Deane J); [1980] FCA 85; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 ("Sullivan") at [5]-[8], [15]-[17] (Logan J). It is an error of law for the Tribunal to make a finding of fact with no evidence, or no probative evidence, to support it. … [83] Proof of matters which are asserted is required in a practical sense, and a party asserting a fact is generally required to provide evidence to substantiate it. As noted above, the Tribunal is required to base its findings of fact on "logically probative material": Pochi at 62, 68; Sullivan at [5]-[8], [15]-[17]."
In Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 the Appeal Panel considered the evidence required to establish that disclosure of the information could reasonably be expected to have a particular effect. After referring to Searle and the authorities discussed in that decision, the Appeal Panel said at [59]: "Based on these authorities when considering the evidence on which it is asserted that disclosure "could reasonably be expected" to have a particular effect, the following principles should be kept in mind: (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; (3) prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses."

[43]

Clause 3(a) and (b)

Clause 3(a) provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have the effect of revealing an individual's personal information.
The word, "reveal" is defined in Sch 4 to the GIPA Act as meaning "to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)". The word "disclose" is defined in Sch 4 of the GIPA Act as follows: "disclose information includes make information available and release or provide access to information".
"Personal information" is defined in cl 4 of Sch 4 to GIPA Act in the following way: 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.
Clause 3(b) provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have the effect of contravening an information protection principle under the Privacy and Personal Information Protection Act 1998 (NSW) ("PPIP Act").
One of those information protection principles is s 18 of the PPIP Act, which provides: 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.
The expression "personal information" is defined in s 4 of the PPIP Act in terms which are, for present purposes, similar to the definition of that expression in the GIPA Act.
The scope of personal information in issue has been limited by a concession made by the applicant. The applicant does not press for the physical addresses, telephone numbers or email addresses of individuals where these have been redacted but does press for the disclosure of the names of individuals where such names have been redacted.

[48]

Document Schedule 1, item 2

This document is described in Document Schedule 1 as: Email chain dated 24 August 2017 from Acting Governance Manager to General Manger and attachment regarding Code of Conduct Complaint.
The Council relies upon cll 1(f) and (h), 3(a) and (b) and 6(1). However, it has made no submissions concerning cl 1(h) and that clause is not considered below.
[NOT FOR PUBLICATION]
As to cl 1(f), the Council has submitted that the disclosure of information in this document could reasonably be expected to prejudice the effective exercise of the Council's function of investigating complaints because the complaints process is dependent upon the flow of information from informants in circumstances where the complaints process is confidential and complainants expect that information contained in a complaint, and the identity of the complainant, will not be made public. In this regard, the Council relies upon cll 7.4(d), 7.8(b) and 12.1 of the 2018 Procedures.
The Council also relies upon the following passage from Transport for NSW v Searle [2018] NSWCATAP 93, at [64]: "The preparedness of a court or a Tribunal to rely on a natural implication that the flow of future information is likely to be adversely affected without direct evidence from the providers of information is reflected in the decisions in Commonwealth v Northern Land Council (1992) 176 CLR 604 at 615; Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667 at 674-675; Betfair Pty Limited v Racing New South Wales (No 7) [2009] FCA 1140; 181 FCR 66 at [24] - [25]; Woolley v Lismore City Council [2013] NSWADT 10 at [73] - [74]."
The Council submits that a finding that persons would be less likely to make complaints if such complaints could become public would be consistent with previous findings of the Tribunal that the disclosure of reports into breaches of a Council's code of conduct could reasonably be expected to prejudice the supply of confidential information: see Marchant v Bland Shire Council [2013] NSWADT 303, Sharples v Tweed Shire Council [2015] NSWCATAD 59, and Smith v Pittwater Council [2016] NSWCATAD 67.
The Council also relies upon the evidence of Mr Symons, an investigator with extensive experience in investigating alleged breaches of the Model of Conduct in Councils across New South Wales, that members of the public and others will be dissuaded from providing information about misconduct, and participating in investigations, if their identity was to be made public.
In response, the applicant submits that a complainant cannot be sure that his or her identity and details will be kept confidential because: 1. cl 5.4 of the Council's Complaint Management Policy lists instances where it may not be possible for the Council to maintain the confidentiality of the complaint, including where that information is released in response to a GIPA Act application; and 2. cl 7.59(f) of the 2018 Procedures provides that the Council may vote to make public an investigator's findings of inappropriate conduct by publishing the investigator's findings and determinations in the Council's minutes of meetings.
I am satisfied, on the basis of the matters submitted by the Council that disclosure of the contents of this document could reasonably be expected to prejudice the effective exercise of the Council's function of investigating alleged misconduct by dissuading potential complainants from making complaints. Whilst, as the applicant highlights, a complainant cannot be assured that information provided will not be disclosed, this does not detract from the conclusion that a prejudicial effect could be expected if information of this kind were to be disclosed.
As cll 3(a) and (b), I am satisfied that some of the redacted information is personal information and that disclosure of that part of the redacted information could reasonably be expected to have the effect of revealing an individual's personal information and of contravening an information protection principle and that none of the exceptions applies.
As to cl 6(1), the Council has submitted that disclosure of the information could reasonably be expected to constitute a contravention of a statutory provision that prohibits the disclosure of information, namely s 440AA (5) of the LG Act. Section 440AA provides: 440AA Administration of code of conduct (1) The regulations may prescribe a procedure (the "model procedure") for administering the model code. (2) The model procedure is to set out the procedures for dealing with alleged contraventions of the model code. (3) A council must adopt a procedure (the "adopted procedure") that incorporates the provisions of the model procedure. The adopted procedure may include provisions that supplement the model procedure. (4) A council's adopted procedure has no effect to the extent that it is inconsistent with the model procedure as in force for the time being. (5) Councillors, members of staff and delegates of a council must comply with the applicable provisions of - (a) the council's adopted procedure, except to the extent of any inconsistency with the model procedure as in force for the time being, and (b) the model procedure as in force for the time being, to the extent that - (i) the council has not adopted the model procedure, or (ii) the adopted procedure is inconsistent with the model procedure, or (iii) the model procedure contains provisions or requirements not included in the adopted procedure. …
The Council submitted that the release of the information would be contrary to the provisions of the 2018 Procedures (i.e. cll 7.4(d), 7.8(b) and 12.1) which require that complaints be treated confidentially, and as such would be a contravention of s 440AA (5).
The applicant submitted that s 440AA has no application because: 1. it imposes obligations not on the Council, but upon councillors, members of staff and delegates of councils, and disclosure under the GIPA Act is made by the Council only; and 2. the 2018 Procedures post-dated this document and the investigation to which it relates.
I am satisfied that cl 6(1) is enlivened. Any disclosure which occurs now is made at a time when the 2018 Procedures apply. The 2018 Procedures and in particular cl 12.1 require that information about code of conduct complaints and the management and investigation of such complaints is to be treated as confidential and not be publicly disclosed, save as specifically required or permitted by those Procedures. Thus, disclosure of the information would involve a contravention of s 440AA (5). Whilst s 440AA imposes obligations upon councillors, members of staff and delegates of councils, rather than the Council itself, any disclosure by the Council must, as a practical matter, require that a councillor, member of staff or delegate of the Council act in contravention of the Procedures and thus 440AA.
For the above reasons, I am satisfied of the existence of the public interest considerations in cll 1(f), 3(a) and (b) and 6. I also take into account the public interest considerations in favour of disclosure set out at [166] above. On balance, the public interest considerations against disclosure outweigh the other considerations, particularly the potential impact upon other investigations and the potential contraventions of s 440AA.
Thus, the Decision should be affirmed with respect to this information.

[55]

Document Schedule 2, items 15 - 19

These documents are described in Document Schedule 2 as: 15. Email chain dated 25 January 2018 from Information Technology Team Leader to Acting Governance Manager regarding Code of Conduct Complaint. 16. Email chain dated 25 January 2018 from Acting Governance Manager to Conduct Reviewer regarding Code of Conduct Complaint. 17. Email chain dated 25 January 2018 from Conduct Reviewer to Acting Governance Manager and attachments regarding Code of Conduct Complaint. 18. Email chain dated 25 January 2018 from Conduct Reviewer to Acting Governance Manager and attachments regarding Code of Conduct Complaint. 19. Email chain dated 25 January 2018 from Conduct Reviewer to Acting Governance Manager and attachments regarding Code of Conduct Complaint.
These documents have been redacted almost entirely. It is convenient to consider them together.
[NOT FOR PUBLICATION]
The Council relies upon cll 1(f) and (h) for each of these documents.
The Council submitted that: 1. the withheld emails and their attachments contain correspondence between Dr Loves and a Council officer in relation to obtaining information relevant to the investigation; 2. the documents detail what measures should be taken to locate evidence, and what material in the investigator's view would be relevant to ascertain whether the allegation of a breach of the Code could be made out; 3. if it were known that information of the kind identified in those documents may be sought or obtained, it is reasonably likely that individuals could resort to other measures to circumvent future investigations. In that way, it could reasonably be expected to prejudice the effective conduct of future investigations; 4. in the same way, the release of the information could also reasonably be expected to prejudice ability to carry out its function of investigating and addressing instances of misconduct. 5. in balancing of public interest considerations: 1. for the same reasons as with respect to the details of informants, the effective investigation of allegations of misconduct is essential for the proper and responsible functioning of local government; 2. to ensure that, and the core aim of the GIPA Act of facilitating and maintaining a system of responsible government, the confidentiality of particularly unique investigative techniques should be maintained. It will ensure that those techniques cannot be circumvented in future and misconduct therefore go either unenforced or undetected. 3. that interest is so significant that it outweighs the public interest considerations in favour of disclosure.
The applicant's submissions were to the effect of those summarised above with respect to Document Schedule 1, item 2.
[NOT FOR PUBLICATION]
As such I am satisfied that disclosure of this information could reasonably be expected to prejudice the effective exercise of the Council's function of investigating alleged misconduct within cl 1(f) and to prejudice the conduct and effectiveness of such investigations within cl 1(h).
I take into account the public interest considerations against disclosure in cll 1(f) and (h). I also take into account the considerations in favour of disclosure discussed at [166] above. On balance, the considerations against disclosure significantly outweigh those in favour of disclosure, particularly in view of the potential prejudice to future investigations. The Decision with respect to this information should be affirmed.

[62]

Document Schedule 3, item 1

This document is described in Document Schedule 3 as: Letter dated 23 May 2018 from Acting Governance Manager to Conduct Reviewer with attachments regarding Code of Conduct Complaint.
The redacted information comprises the minutes of a closed meeting of the Council. The Council relies upon cll 1(f) and (h), and 6(1).
As to cll 1(f) and (h), the Council submitted that: 1. its General Manager is required by s 338 of the LG Act to be employed under a standard form performance-based contract; 2. under that contract, the CEO's performance is to be reviewed on at least an annual basis. The contract does not set out the structure of the performance review beyond stating that it is at the discretion of Council. The detail is instead set out in the Division of Local Government, Department of Premier and Cabinet, Guidelines for the Appointment and Oversight of General Managers (July 2011) ("Guidelines"), which the Council is required by s 23A (3) of the LG Act to take into account; 3. relevantly, the Guidelines provide that the performance review is to be carried out by a Panel and that: "The panel should report back to the governing body of council in a closed session the findings and recommendations of its performance review as soon as practicable following any performance review. This should not be an opportunity to debate the results or re-enact the performance review of the general manager. The general manager should not be present when the matter is considered. The performance management report of any council staff member, including the general manager, should not be released to the public and should be retained on the appropriate confidential council employment file. Release of such personal information to other than the Performance Review Panel, the general manager and the councillors in confidence may be a breach of privacy legislation"; 1. a regime has been established whereby the General Manager's performance and employment can be discussed openly by Council in the knowledge that those discussions cannot be disclosed; and 2. it can be inferred from that regime, that if the conduct and results of performance reviews were to be released, such reviews in future are unlikely to be carried out in as frank and detailed a manner. Future performance reviews are reasonably likely to be prejudiced.
As to cl 6(1), the Council submitted that: 1. ignoring the operation of the GIPA Act, release of the minutes would amount to a breach of s 664(1A) of the LG Act, which provides that: 664 Disclosure and misuse of information (1) A person must not disclose any information obtained in connection with the administration or execution of this Act unless that disclosure is made-- (a) with the consent of the person from whom the information was obtained, or (b) in connection with the administration or execution of this Act, or (c) for the purposes of any legal proceedings arising out of this Act or of any report of any such proceedings, or (d) in accordance with a requirement imposed under the Ombudsman Act 1974 or the Government Information (Public Access) Act 2009 , or (e) with other lawful excuse. (1A) In particular, if part of a meeting of a council or a committee of a council is closed to the public in accordance with section 10A (1), a person must not, without the authority of the council or the committee, disclose (otherwise than to the council or a councillor of the council) information with respect to the discussion at, or the business of, the meeting. 1. disclosure under the GIPA Act is an exception to s 664(1A). Nonetheless, cl 6(1) of the table in s 14 of the GIPA Act requires that the exception be ignored; and 2. in these circumstances, the public interest considerations against disclosure could reasonably be expected to arise in relation to the confidential minutes.
The applicant did not specifically address the operation of cll 1(f) and (h) and 6(1) upon this information. I have taken into account his general submissions on the operation of those clauses.
I have reviewed this item. Having done so, I am satisfied that the Council's submissions are sound and that disclosure of the redacted information could reasonably be expected to have the effect of prejudicing the effective exercise of the Council's functions; and of prejudicing the conduct and effectiveness of reviews of the performance of the general manager. I am also satisfied that such disclosure could reasonably be expected to constitute a contravention of a provision which prohibits such disclosure, namely s 664(1A) of the LG Act.
I take into account the public interest considerations in favour of disclosure set out at [166] above. On balance, the public interest considerations against disclosure outweigh the other considerations, particularly the importance of confidentiality to the review process and the potential contravention of s 664(1A) of the LG Act.
The Decision with respect to the information redacted from this item should be affirmed.

Coppock v Willoughby City Council

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Judgment (66 paragraphs)

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Legislation Cited (3)

Cases Cited (34)

Cited By (7)