Curtin v Lord Howe Island Board

The material before the Tribunal

1. Mr Curtin appeared in person. Mr Grant Gleeson, Director Legal with the ‎Office of Local Government appeared on behalf of the Board. Each made written submissions.
2. I have been provided with copies of the information that the Board located in response to the access application but which has not been released to Mr Curtin. This information is provided on a confidential basis and has not been released to Mr Curtin.
3. A confidential session was held in Mr Curtin's absence. In the confidential session I had the opportunity to examine the unredacted documents and heard confidential submissions in regard to that material. This process is provided for by section 107 of the GIPA Act.
4. I have made an order under section 64 of the Civil and Administrative Tribunal Act 2013 that no record of the confidential session or the information provided to the Tribunal on a confidential basis is to be released to either Mr Curtin or to the public.
5. The Board also relies on the affidavits of Ms Jemima Spivey, Mr Hank Bower and Ms Holloway. Mr Bower and Ms Holloway both gave evidence and were cross-examined.
6. Ms Spivey is the Manager Administration for the Board. She is responsible for management of record keeping for the Board and for coordinating the searches for information that could fall within the scope of Mr Curtin's request. She gave evidence in regard to discussions with Mr Curtin concerning the access application and his previous requests for information held by the Board. She was not required for cross-examination.

Mr Bower's evidence

1. Mr Bower is the Board's Manager Environment/World Heritage. He reports to the Office of Environment and Heritage ("OEH") located in Sydney. He is authorised to issue and serve penalty notices if it appears that a person has committed a prescribed offence against the Lord Howe Island Act 1953 ("the LHI Act") or the Lord Howe Island Regulation 2014 ("the LHI Regulations").
2. He is also authorised under the Protection of the Environment Operations Act 1997 for the purpose of the Marine Estate Management Act 2014, National Parks and Wildlife Act 1974, Threatened Species Conservation Act 1995 and the Wilderness Act 1987. He is authorised to determine whether there has been compliance with or contravention of national parks legislation; obtain information or records for purposes connected with the administration of national parks legislation; and generally administer national parks legislation.
3. He undertakes investigations into possible breaches of the LHI Act and/or national parks legislation. As part of the conduct of those investigations he speaks to witnesses, records statements, and gathers evidence. He and other authorised staff may take photographs or video footage of evidence.
4. Photographs that are relevant to active investigations are stored on the Board's secure shared computer drives or on an external hard drive. His evidence is that Mr Curtin has been given the photographs that are relevant to this application.
5. Mr Bower has requested that some records that are within the scope of Mr Curtin's access application not be released. He is of the opinion that if that information were released outside of the Board and the OEH it would inhibit the proper exercise of investigations.
6. He stated that in an investigation decisions have to be made regarding the information received. At times, information received has to be communicated to others so that lines of further inquiry can be ruled in and out. Sometimes he may need to take advice on aspects of the information. He routinely communicates formally and informally, orally and via email with his colleagues regarding the conduct of an investigation. Due to his remote location he usually communicates via email. An email may include information about investigation steps under consideration, opinions on the veracity of evidence and conclusions reached about a matter.
7. He stated that information is sometimes provided informally by other staff members or members of the public. There is an expectation that the information will be kept confidential. Not all of this material can be acted upon. Sometimes it is necessary to follow lines of inquiry. Sometimes, records are created and retained even if the material is not subsequently the subject of a prosecution action. The release of information relating to the conduct of an investigation could hamper future investigations.
8. Mr Bower stated that he would be extremely reluctant to reduce information that he receives to writing if the investigation material is to be released. It would likely change his working practices in relation to investigations. He also stated that he would expect that his colleagues would also change their working practices. If the practices of the investigations team altered then this would also hamper the Board's deliberative processes.
9. He believes that the release of information regarding investigations could compromise and prejudice current and future investigations by revealing evidence and possibly alerting suspects. Matters which would be best kept confidential until such time as the material can be acted upon would become public knowledge prejudicing the due administration of the legislation that applies to the Island. He also believes that the release could compromise the integrity of evidence by revealing evidence of one witness to another.
10. He also believes that people on the Island and the mainland would be reluctant to provide information in the future if investigation material is released. Lord Howe Island is a very small community. Consequently, it is usually possible to identify the source of information from the facts related and the circumstances in which the record came to be created even when personal information is redacted.
11. Mr Bower stated that the records identified as documents numbered 19, 28, 30, 33, 34, 41, 41 A, 47 - 55 inclusive, 57, 58, 79 - 84 inclusive, 86 - 88 inclusive, 90, 91, 92 (in part), 95 to 99 inclusive in the schedule to the Notice of Determination for this application are communications, reports, briefs of evidence, witness statements and legal advice that have come into existence for the dominant purpose of obtaining legal advice.

Ms Holloway's evidence

1. Ms Holloway provided two affidavits and also gave evidence at the hearing.
2. As noted above, Ms Holloway re-determined the access application. She gave evidence in regard to the approach that she took in that re-determination. She interpreted the request to include any records held by the Board relating to complaints, allegations or grievances about Mr Curtin and investigations relating to him or his property.
3. She excluded records relating to the negotiation of conditions of development applications that she did not consider to be related to complaints, grievances or investigations. She also excluded records relating to entries made by employees of the Board onto the Applicant's property at the request of the leaseholders.
4. She limited her searches to those records that came into existence after the last of Mr Curtin's applications to the Board for access to records on 29 September 2008 and prior to 15 February 2016 - the date that the Board received the access application. She noted that Mr Curtin disputed that the scope of the access application should be time limited in this way.
5. Ms Holloway provided copies of correspondence between the parties relating to the access application. She notes that Mr Curtin provided some documents as examples of information that he believes fall within the scope of the application- for example publications and minutes of meetings. She stated that she does not regard those types of information as within the scope of the access application as they do not constitute a complaint, grievance, investigations, or allegation about Mr Curtin or his property.
6. Ms Holloway outlined the searches that she directed to be undertaken of the Board's records. These included searches of the Board's paper files, electronic records, central logs, individual staff members' emails, and hand written notes of individual staff members. Key staff members were also interviewed.
7. She noted that in the course of the searches it became apparent that some of the Board's video records that were stored on an external computer hard drive have been lost due to a computer malfunction. The Board sent the computer hard drive to an expert to see if it was possible for those records to be retrieved. No relevant records were recovered from that process.

Mr Curtin's evidence

1. Mr Curtin lodged his access application after receiving notice from the Board of an investigation that it had conducted into allegations that he had breached the LHI Regulations by mowing native vegetation ("the mowing incident"). He is concerned about the powers of the Board and the administration of the LHI Regulations. He contends that the Regulations are in large part unmanageable and the Board's targeted attempts to administer the Regulations results in the waste of public funds. He expressed concern in regard to the Board's practice in determining matters without regard for the principles of natural justice and procedural fairness.
2. In regard to the scope of his access application Mr Curtin indicated that the information that he is seeking in regard to the mowing incident would include the entire contents of the Board's File and associated records including:

• the 'written complaint to the Board';
• records of the 'investigation' conducted by the Board;
• any supporting information or justification for the Board's position that 'a defence to this offence is not available';
• any record of a Board member's direction to the Board's staff to prosecute this issue;
• Mr Curtin's correspondence with the Board on this specific legal issue;
• any other relevant records documents and correspondence, including photographic and video records and published material referring to the matter.

1. In correspondence between Mr Curtin and Ms Spivey, Mr Curtin expressed the view that there must be a register of complaints and grievances and also that there should be a register of approvals for entry onto perpetual leases that is 'compliant with LHIB Procedure for Access to Leasehold Land'. He asserted that this is particularly relevant when the entry of leases is pursuant to anonymous complaints and grievances to the Board.
2. He sought access to records for his own property in order to be able to ensure that the Board is complying with its own policies, and is acting in compliance with its legal powers. His access application is to assess whether the Board is compliant with its obligation to 'keep full and accurate records of its activities' in relation to the lease over a relatively short period of time. He also wishes to shine a light on the Board's public administration - to assess whether the Board is compliant with its obligation to ensure that, in the exercise of its 'regulatory powers, authorities, duties and functions, it acts consistently and without bias'.

The scope of the request

1. As noted, Mr Curtin requested: All Board records relating to complaints, grievances, investigations, allegations and entries to the lease in perpetuity which relate to me, are about me, or involve my property, including all records of entry to leasehold land compliant with LHIB Procedure for Access to Leasehold Land s2(3).
2. He subsequently clarified the request in terms of the types of material that he was seeking. However, the request remained very broad.
3. At the case conference held on 17 May 2016 Mr Curtin agreed to narrow the scope of his request. As noted above, Ms Holloway's redetermination was in relation to the narrowed scope. At the hearing, Mr Curtin indicated that he accepted Ms Holloway's interpretation of the narrowed scope.
4. I am satisfied that Ms Holloway's interpretation of the narrowed scope is reasonable. I am also satisfied that the Board's attempts to locate information that falls within the scope of the access application were reasonable.
5. Section 5 of the GIPA Act establishes a presumption in favour of disclosure of government information unless there is an overriding public interest against disclosure. Pursuant to section 105 of the GIPA Act the burden of establishing that the decision is justified lies on the Council.

Public interest considerations in favour of disclosure

1. Mr Curtin identified a number of public interest considerations in favour of disclosure of the information. Under section 12(1) of the GIPA Act, there is a general public interest In favour of disclosing government information. Section 12(2) of the GIPA Act sets out some examples of other public interest considerations in favour of disclosure: • enhancing government accountability - section 12(2)(a); • disclosure of the information could reasonably be expected to inform the public about the operations of Council - section 12(2)(b) • disclosure of the information could reasonably be expected to promote open discussion of public affairs and contribute to positive and Informed debate on issues of public importance, which might include the Boards approach to receiving and investigating complaints: section 12(2)(a). GIPA Act); • disclosure of the information could reasonably be expected to enhance government accountability with an Increased or greater public awareness of the role the Board plays in respect of the ensuring compliance with the LHI Act and Regulations and other applicable legislation: (section 12(2)(a) GIPA Act); • disclosure of the information could reasonably be expected to better inform the public about the operations of the Board, in particular, the Board's policies and practices for dealing with members of the public in the context of complaints and investigations: (section 12(2)(b) GIPA Act); • disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds as the public is provided with information about the Board's dealing with anonymous complaints (section 12(2)(c) GIPA Act).

Public interest considerations against disclosure

1. The only public interest considerations against disclosure that can be considered are those identified in section 14 of the GIPA Act.
2. The Board identified a number of documents which it contends are subject to a conclusive presumption of an overriding public interest against disclosure on the ground of client legal privilege under clause 5 of Schedule 1 to the GIPA Act.
3. The Board has also identified relevant public interest considerations against disclosure of the information under the table to section 14: disclosure of the information could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions: item 1(d) disclosure of the information could reasonably be expected to reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency: item 1(e) disclosure of the information could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions: item 1(f) disclosure of the information could reasonably be expected to 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): item 1(h) disclosure of the information could reasonably be expected to prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law: item 2(b) disclosure of the information could reasonably be expected to reveal an individual's personal information: item 3(a) disclosure of the information could reasonably be expected to reveal false or unsubstantiated allegations about a person that are defamatory: item 3(e)

'could reasonably be expected'

1. Considerations against disclosure will only be relevant if it is established that the disclosure of the information could reasonably be expected to have the effect outlined in the table to section 14 of the GIPA Act. The words, 'could reasonably be expected' in section 14 are to be given their ordinary meaning, and require something more than a possibility, risk or chance of the relevant event occurring, assessed objectively: see my discussion of this issue in Salmon v Corrective Services NSW [2016] NSWCATAD 257 at paragraphs 22 - 30 and the cases that I have cited there.
2. This requires a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from irrational, absurd or ridiculous, to expect the effect outlined.

Clause 5 of Schedule 1 to the GIPA Act

1. The Board also contends that some of the withheld information falls within the criteria of Clause 5 of Schedule 1 to the GIPA Act and it is to be conclusively presumed that there is an overriding public interest against disclosure of that information.
2. The Board has withheld a significant amount of information on the basis that the information would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege). The Board asserts this claim in relation to the records identified as documents numbered 19, 28, 30, 33, 34, 41, 41 A, 47 - 55 inclusive, 57, 58, 79 - 84 inclusive, 86 - 88 inclusive, 90, 91, 92 (in part), 95 to 99 inclusive in the schedule to the Notice of Determination. The Board asserts that these documents are communications, reports, briefs of evidence, witness statements and legal advice that have come into existence for the dominant purpose of obtaining legal advice
3. This claim is to be assessed by applying the provisions concerning client legal privilege under the Evidence Act 1995: see AIN v Medical Council of New South Wales [2015] NSWCATAP 241 at paragraph [20].
4. Clause 5 of Schedule 1 to the GIPA Act provides: 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. (3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5.
5. Section 118 of the Evidence Act 1995 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. "
6. The term "client" is defined in section 117(1) of the Evidence Act to include: (a) a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service), (b) an employee or agent of a client, (c) an employer of a lawyer if the employer is: (i) the Commonwealth or a State or Territory, or (ii) a body established by a law of the Commonwealth or a State or Territory, ...
7. The term "confidential communication" is defined to mean: a communication made in such circumstances that, when it was made: (a) the person who made it, or (b) the person to whom it was made, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.
8. The onus is on the Board to establish its claim. Senior Member Lucy discussed the necessary evidence to establish a claim under Clause 5 of Schedule 1 to the GIPA Act in her decision in CCB v Department of Education and Communities [2015] NSWCATAD 145 from paragraph [70]: "70. The respondent has not addressed the application of s 118 of the Evidence Act, or the definitions applying to that provision, in any detail in its submissions. Other than the information provided in its submissions, the respondent has not provided any evidence or other factual material to establish its claim of client legal privilege. 71. There is a question of whether the respondent needs to establish that the advice of the in-house lawyer was independent in order to succeed in its privilege claim. 72. At common law, legal professional privilege attaches to advice from an in-house lawyer only if it can be shown that the in-house lawyer is independent. There must be demonstrated a "professional relationship which secures to the advice an independent character notwithstanding the employment" (Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54, Mason and Wilson JJ at 62). 73. Section 118 of the Evidence Act does not, on its face, require a client to establish that the client's lawyer was independent. There is no requirement to consider the lawyer's independence when determining whether he or she is a "lawyer" or whether the recipient of the advice is his or her "client." A government lawyer who is an "Australian lawyer" is a lawyer, and the lawyer's employer (being the State) is a client, by operation of s 117 of the Evidence Act. 74. It is then necessary to consider whether all the elements of s 118 apply to an in-house government lawyer where there is no evidence of the lawyer's independence. In Commonwealth v Vance [2005] ACTCA 35; (2006) 158 ACTR 47, Gray, Connolly and Tamberlin JJ commented in the context of considering the application of advice privilege under the Evidence Act 1995 (Cth) that, where a "lawyer is employed, real questions as to the nature of their role and duty may arise" (at [25]). Their Honours said at [24]: "where client legal privilege is claimed over documents produced by an in-house lawyer, particularly when that in-house lawyer is employed in government service, the question is whether the document would meet the statutory test of being a confidential document, that is to say, was it prepared in such circumstances that the person who prepared it was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law." 75. Thus, without evidence of a government lawyer's independence, it may not be possible to find that the document or communication was a "confidential document" or "confidential communication" within s 118 of the Evidence Act. It is also possible that, if it is not established that a lawyer has the requisite independence, the advice would not properly be described as "legal advice." Other cases supporting the proposition that it is necessary to show that an in-house lawyer is independent include Banksia Mortgages Ltd v Croker [2010] NSWSC 535, Schmidt J at [19]-[26]; Rilstone v BP Australia Pty Ltd [2007] FCA 1557, Besanko J; Re Philip Morris Limited and Prime Minister [2011] AATA 556, Forgie DP esp at [98]-[100]; and Zonnevylle v Department of Education and Communities [2015] NSWCATAD 10 at [83]. 76. There was no evidence in this case as to the independence of otherwise of the principal legal officer concerned. The respondent has an onus to establish that its decision not to provide access to the information over which it claims privilege is justified. It is not open to me to infer that the legal officer was independent without evidence to that effect (Vance v McCormack (2004) 154 ACTR 12, Crispin J at 25-26). 77. Without evidence as to the principal legal officer's independence, or as to the confidentiality of the communication in question, I cannot be satisfied that the communication was made in such circumstances that, when it was made the principal legal officer "was under an express or implied obligation not to disclose its contents." Nor can I be satisfied, in the absence of evidence, that the school principal was under such an obligation. 78. If I am wrong and the communication recorded in the principal's diary was a confidential communication, the respondent has not persuaded me that it was made for the dominant purpose of providing legal advice to the client (being the State). Legal advice is a relatively broad concept: see Law v Wollondilly Shire Council [2013] NSWADT 203 at [83]. The respondent submitted that an inference should be drawn that the communication was made for the dominant purpose of providing legal advice. In my view, such an inference cannot properly be drawn from the words in question. 79. The respondent has not discharged its onus of establishing that the information would be privileged from production in legal proceedings on the ground of client legal privilege and that there is therefore a conclusive presumption of an overriding public interest against disclosure of it pursuant to s 14(1) of and cl 5(1) of Sch 1 to the GIPA Act. 80. Accordingly, I set aside its decision refusing access to that information and substitute a decision to provide access to the information.
9. If the agency's privilege is established, the agency is also 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 Clause 5 of Schedule 1 to the GIPA Act. Ms Holloway has stated that the Board does not wish to waive privilege.
10. In Archer Capital 4A Pty Ltd as trustee for the Archer Capital Trust 4A v Sage Group PLC (No 2) [2013] FCA 1098 ("Archer Capital 4A Pty Ltd") Wigney J stated at paragraphs [10] - [15]: 10. A communication or document will be privileged if it was made or brought into existence for the dominant purpose of obtaining or providing legal advice (the advice limb), or to conduct or aid in the conduct of litigation in reasonable prospect (the litigation limb): Esso at [35], [61]; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 at [9]. ... 11. A dominant purpose is a reference to "the ruling, prevailing, or most influential purpose": Federal Commissioner of Taxation v Spotless Services Ltd [1996] HCA 34; (1996) 186 CLR 404 at 416. It is a purpose that predominates over other purposes; the prevailing or paramount purpose: AWB Ltd v Cole [2006] FCA 571; (2006) 152 FCR 382 (AWB) at [105]-[106]. The purpose for which a document is brought into existence is a question of fact that must be determined objectively, however evidence of the subjective purpose will be relevant and often decisive: Esso at [172]; Sydney Airports Corporation Ltd v Singapore Airlines Ltd [2005] NSWCA 47 at [6]. An appropriate starting point is to ask what was the intended use or uses of the document which accounted for it being brought into existence: Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357 (Pratt) at [35]. 12. The concept of legal advice in the context of the advice limb is fairly broad. It goes beyond formal advice as to the law, and extends to professional advice as to what a party should prudently or sensibly do in a relevant legal context, but does not extend to advice that is purely factual or commercial: Balabel v Air India (1988) Ch 317 at 323, 330 (Balabel); DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 1191; (2003) 135 FCR 151 (DSE) at [45]; AWB at [100]. 13. The party claiming privilege bears the onus of proving that the communication was made, or the document created, for the dominant purpose of giving or obtaining legal advice or aiding in the conduct of litigation or prospective litigation. It is not sufficient for a party to merely assert a claim for privilege; the party claiming privilege must establish the facts that provide the basis for the claim: National Crime Authority v S (1991) 29 FCR 203 at 211; Kennedy v Wallace [2004] FCAFC 337; (2004) 142 FCR 185 (Kennedy) at [13]-[17]. The existence of privilege is not established by mere verbal formula, even if unchallenged: Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 (Grant) at 689. 14. It may be necessary for there to be evidence identifying the circumstances in which the relevant communication took place and the topics to which the instructions or advice were directed: Kennedy at [12]-[17]. The Court has the power to examine documents in respect of which a claim is made, and should not hesitate to exercise that power where the claim is challenged: Grant at 689. 15. The relevant principles in relation to privilege in respect of communications to or from a third party, privilege under the advice limb where the relevant lawyer is an "in-house" lawyer and waiver are addressed later in the specific context of the three categories of communications subject to challenge.
11. The burden is on the Board to establish a lawyer-client relationship, that the communication was confidential and the dominant purpose of the communication. In AIN v Medical Council of New South Wales [2015] NSWCATAP 241. The Appeal Panel stated at paragraph [25]: 25. … the Tribunal can only make findings of fact on the basis of evidence or, more broadly, on the basis of the "relevant factual material" before it (Administrative Decisions Review Act 1997 (NSW), s 63(1)). 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. That occurred, to some extent, in this case.
12. The evidence in relation to the advice is that given by Ms Holloway. She stated: In relation to the documents that the Board has claimed legal privilege over I say that the Board relies on legal advice from the Office of Environment and Heritage (OEH) in relation to matters under investigation concerning breaches of legislation administered by OEH. The documents in the bundle are documents that came into existence for the purpose of investigating breaches of such legislation. To further OEH's consideration of the matters in relation to the taking of legal action the material was referred to OEH for advice which was transmitted to the Board. Since 2013 legal responsibility for the Board has been transferred by the NSW Government to the Office of Local Government (OLG). In relation to matters of administration the Board has since 2013 taken legal advice from OLG in relation to matters concerning the administration of the Island. The documents in the bundle relating to advice from OLG came into existence for the purpose of obtaining legal advice.
13. Mr Bower stated: It is routine for me to consult both formally and informally with my peers in OEH regarding the conduct of an investigation to seek opinions regarding process and technical matters including the applicable legal provisions relevant to an investigation. Due to my remote location I usually communicate via the email. … I also understand that in the searches for records responding to Mr Curtin's GIPA application certain records have been identified being the documents numbered 19, 28, 30, 33, 34, 41, 41 A, 47 - 55 inclusive, 57, 58, 79 - 84 inclusive, 86 - 88 inclusive, 90, 91, 92 (in part), 95 to 99 inclusive in the schedule to the Notice of Determination for this application. These documents are comprised of communications, reports, briefs of evidence, witness statements and legal advice that have come into existence for the dominant purpose of obtaining legal advice.
14. Clearly, Ms Holloway has asserted that the communication was produced for the dominant purpose of providing legal advice. However, her evidence does not identifying the circumstances in which the relevant communication took place and the topics to which the instructions or advice were directed. Nor does it address the confidentiality of the advice or who produced it.
15. It is clear from Mr Bower's evidence that he shares information with other officers. It is not clear whether this sharing extends to information over which legal privilege is claimed and whether or not any confidential communications have been shared. If that has been the case, the extent to which the communications have been shared is unclear. He has asserted that a number of the withheld communications were produced for the dominant purpose of providing legal advice. However, his evidence does not identifying the circumstances in which the relevant communication took place and the topics to which the instructions or advice were directed. Nor does it address the confidentiality of the advice or who produced it.
16. As was noted in Archer Capital 4A Pty Ltd, it is not sufficient for a party to merely assert a claim for privilege; the party claiming privilege must establish the facts that provide the basis for the claim. The Board's evidence does not meet this requirement.
17. Several of the withheld documents appear to have originated from an individual who is identified as a Legal Officer. These documents appear on their face to be in the nature of legal advice however I have no basis on which I can determine whether the author holds a practising certificate as a legal practitioner or whether the necessary client and lawyer relationship or the necessary confidentiality of the communications existed.
18. In the case of some documents it appears that the document has been copied to numerous people. This raises doubt in regard to the issue of the confidentiality of the communication. There is no evidence in regard to the relationship with the recipients of the communications or the circumstances in which they have received the communication or whether it was treated confidentially. I am unable to infer otherwise from the face of the documents.
19. I am unable to infer from the available evidence that the necessary requirements are met in this case. Accordingly I am not persuaded that the conclusive presumption in Clause 5 of Schedule 1 to the GIPA Act is established.

Clause 1(d) of the table to section 14

1. There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions. The Board contends that this applies to the withheld documents identified in the schedule to the redetermination as documents numbered 26, 28, 33, 34, 36, 56, 58, and 59.
2. In Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252 Deputy President Higgins considered a number of the public interest considerations against disclosure and decisions that had dealt with the applicable factors in that case. In regard to Clause 1(d) of the Table to section 14 she stated: 63. Clause 1(d) prejudice supply of confidential information In Camilleri at [27] to [33], the Appeal Panel considered the operation of the public interest consideration against disclosure in cl 1(d) of the table of subs 14(2) of the GIPA Act and said the following: 27 The approach to be adopted is similar to that commended by the Appeal Panel under the previous legislation, there in connection with cl 13(b)(ii). ... 28 In Director General, Department of Education & Training v Mullett & anor (GD) [2002] NSWADTAP 13 (Mullett), the Appeal Panel said: 58 In our view cl 13(b)(ii) requires the Tribunal to engage in a relatively abstract analysis. It must ask whether material of the kind sought to be protected on the present occasion would, if released, prejudice the supply of similar material to government in the future, as a matter of reasonable expectation. That requires the Tribunal to characterise the nature of the material sought to be protected on the present occasion; to identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; the extent to which guarantees of confidentiality may be necessary. We agree with the dicta of Young CJ in Ryder v Booth [1985] VR 870 as to how a similar question arising under the Victorian FOI Act's in-confidence exemption (whether disclosure would be reasonably likely to impair the ability of an agency to obtain information communicated in confidence) should be approached. His Honour said at 872: `The question then is, would disclosure of the information sought impair (i.e. damage) the ability of the [agency] to obtain similar information in future. ... It may be noted that it is the ability of the [agency] that must be impaired. The paragraph is not concerned with the question whether the particular doctor whose report is disclosed will give similar information in future but with whether the agency will be able to obtain such information. ...' 29 This approach was endorsed in many subsequent Tribunal and Appeal Panel decisions. The same approach is required, as we see it, in relation to many of the s 14 Table considerations. They squarely focus on considerations relating to the conduct of the business of government. ... 30 ... 31 In this case the Tribunal was required to form an opinion on whether disclosure of the information could reasonably be expected to have the effect of prejudicing the supply to an agency of confidential information that facilitates the effective exercise of the agency's functions (cl 1(d)); or, ... 32 ... 33 In our view, the question of whether the information supplied is 'confidential information' must be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received. ... 64. As outlined above, for the cl 1(d) public interest consideration to apply, the information in issue must not only be 'confidential information', it must also be information that facilitates the effective exercise of that agency's functions. 65. The Tribunal has accepted that the word 'prejudice', in the context of the public interest considerations against disclosure, is to be given its ordinary meaning, namely: 'to cause detriment or disadvantage': see Hurst (supra) at [60], McLennan v University of New England [2013] NSWADT 113 at [38] and Sobh v Victoria Police (1993) 1 VR 41.
3. It is not necessary that the decision-maker be satisfied upon a balance of probabilities that the production of the document will in fact prejudice the future supply of information.
4. In this matter, the Board relies on the opinions expressed by Mr Bower in regard to the consequences that could reasonably be expected if the withheld information is disclosed. However, while Mr Bower's experience is not in doubt, he is not an independent witness and should not be treated as such. This has implications for the weight that can be given to Mr Bower's opinions.
5. In my recent decision in Meriton Property Services Pty Limited & Ors v UrbanGrowth NSW [2017] NSWCATAD 71 I commented at some length on the need for caution in regard to the weight to be given to opinions. By their nature the opinions are speculative in that future predictions are necessarily involved. The experience of the witnesses who expressed the relevant opinions is a significance factor. Greater weight will be given to the opinions of witnesses with significant experience that is both historical and current and where the witness is able to speak as both giver and receiver of the type of information under consideration.
6. Mr Bower has direct knowledge of how complaints are handled and investigated. There is no basis on which that evidence should not be accepted. He expressed concern about how the release of the withheld information could result in a need to change the way investigations are carried out. However, he has not provided evidence to explain why that change would not be a positive change. His assumption is the officers of the Board would respond by conducting their investigations in a less transparent manner but it is not clear why a positive response would not be possible.
7. Mr Curtin's concern is that in a small community the secrecy involved in the existing procedures encourages domestic disputes and that not all complaints are legitimate. He argues that more transparency would discourage malicious and frivolous complaints it would promote accountability within the Board. There seems to be merit in that argument.
8. This view is consistent with those expressed by Deputy President Hennessy in Thompson & Ardill v The Lord Howe Island Board [2003] NSWADT 193. Thompson & Ardill concerned an application to the Administrative Decisions Tribunal under the now repealed Freedom of Information Act 1989. Deputy President Hennessy dealt with a request to the Board for access to records of a meeting between two Lord Howe Island residents and officers of the Board. The recording dealt with objections to a development application and contained information provided in confidence. In determining that the record should be released Deputy President noted: 31 However disclosure would serve the public interest purposes of the legislation because it would promote transparency of the agency's processes and accountability for their decision-making. A policy of "open access" to objections to development applications discourages the lodging of submissions in bad faith or the making of malicious or gratuitous comments about the person seeking approval. To the extent that the recording contains complaints about Mr Prout's behaviour, it is in the public interest that he be made aware of the substance of those complaints, even if they are not new.
9. I agree with Mr Bower's opinion that disclosure of the withheld information could reasonably be expected prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions. However, I note that some of the information was provided by officers of the agency and that it is probably that those officers would continue to provide information of this kind.
10. I am generally satisfied that this public interest consideration against disclosure is established. It should be given reasonable weight. However, in the circumstances this needs to be weighed against the factors in favour of release of the information.

Clause 1(e) of the table to section 14

1. There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency. The Board has identified this as a factor against release but it is not clear which information it contends is captured by this consideration.
2. In order for this public interest consideration against disclosure to apply, it is necessary to establish a connection between the particular opinion, advice or recommendation and the relevant deliberative process of the agency. It is apparent from the face of some documents that there would be a connection between the information and an investigation. However, the Board has not provided evidence as to how release of any particular document would prejudice a deliberative process. I am unable to infer this from the face of the documents.
3. I am not satisfied that this public interest consideration against disclosure is established.

Clause 1(f) of the table to section 14

1. There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions. The Board contends that this applies to the withheld documents as documents numbered 20, 26, 28, 33, 34, 36, 56, 58 and 59.
2. Mr Bower is of the opinion that disclosure of the information in those documents would be reasonably expected to inhibit the proper exercise of investigations. He stated: At various stages in an investigation information comes into my possession regarding activities not all of which will result in a matter progressing to a prosecution. At various times in an investigation decisions have to be made regarding the information received. In order to make decisions regarding an investigation the detail of information received has to be communicated to others so that lines of further inquiry can be ruled in and out. Sometimes I may need to take advice on aspects of the information.
3. For the most part the information that has been withheld in these documents is information concerning allegations of conduct. Some of it dates back to 2012 and the most recent information relates a conversation with Mr Curtin. Clearly he will already be aware of the information relating to that conversation. Mr Bower has not explained how the release of any of this information would have the outcome that he has identified.
4. I am not satisfied that this public interest consideration against disclosure is established. However, even if it is established I would give it little weight because of the age of the information.

Clause 1(h) of the table to section 14

1. There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to 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). The Board contends that this applies to the withheld document identified as document numbered 20.
2. Document 20 is identified as an investigation management plan. This document is dated 15 June 2012 and concerns an investigation that was scheduled to be completed by 14 June 2012. I am satisfied that disclosure of information could reasonably be expected to reveal the results of the investigation. However, the onus is on the Board to establish that the release of the information could reasonably be expected to prejudice the "conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency". No evidence has been presented to establish that prejudice. Given the age of the information it is likely that any prejudice that does exist would be minimal.
3. I am not satisfied that this public interest consideration against disclosure is established.

Clause 2(b) of the table to section 14

1. There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law. The Board contends that this applies to the withheld documents identified as documents numbered 20, 28 and 45.
2. Documents numbered 20 and 28 concern an investigation conducted in 2012. Document numbered 45 concerns an incident in 2010. It is not apparent from the face of those documents how disclosure of the information contained in the documents could reasonably be expected to prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law. Other than Mr Bower's concerns the Board has not presented evidence in support of its contentions in regard to the factor.
3. I am not satisfied that this public interest consideration against disclosure is established.

Clause 3(a) of the table to section 14

1. There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to reveal an individual's personal information. The Board contends that this applies to the withheld information in document 46.
2. The term 'personal information' is defined in Clause 4 of Schedule 4 of the GIPA Act as: 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) 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. I accept that document 46 contains the name and phone number of an individual other than Mr Curtin as well as the names of persons who appear to be either officers of the Board or others engaged in the exercise of public functions.
4. I am satisfied that disclosure of document 46 could reasonably be expected to reveal an individual's personal information and therefore this public interest consideration against disclosure is established. However, I would give it minimal weight insofar as it concerns the identity of officers of the Board. Greater weight should be given to the information of the other individual.
5. I note that the cover page to document 28 contains personal information of a witness including date of birth and home contact details. This is apparent from the face of the document however the Board has not asserted that clause 3(a) applies to that document. Nevertheless, it is my view that the Board should reconsider its determination in regard to that document.

Clause 3(e) of the table to section 14

1. There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to reveal false or unsubstantiated allegations about a person that are defamatory. The Board contends that this applies to the withheld documents 75, 76 and 77. These items are related. They comprise email chains between the Board and OEH relating to Phasmids.
2. The Board contends that release of this information could reasonably be expected to reveal false or unsubstantiated allegations that may be defamatory. It is apparent from the face of the documents that they contain allegations however there is no evidence from which I can conclude whether or not the allegations are false or whether they have been substantiated.
3. If in fact these allegations are either false or unsubstantiated then clearly the release of this information would reveal the allegations.
4. In the circumstances I am satisfied that this consideration against disclosure is established. However, I would give it minimal weight.

The weighing process

1. The Tribunal is to determine where the balance lies between the public interest considerations for and against disclosure. The balancing exercise is a question of fact and degree, requiring the weighing of competing matters.
2. Section 12 of the GIPA Act sets out examples of general public interest consideration in favour of disclosing government information. I have set out above a number of factors that I consider are relevant in this matter.
3. Section 13 of the GIPA Act sets out the public interest balancing test for determining whether there is an overriding public interest against disclosure. The balance is always weighted in favour of disclosure.
4. The only public interest considerations against disclosure that can be considered are those identified in section 14 of the GIPA Act. This includes considerations set out in schedule 1 to the GIPA Act. In the circumstances of this matter I have found that the considerations in clause 5 of schedule 1 do not apply. Therefore, the public interest considerations against disclosure listed in the Table to section 14 are the only considerations that may be taken into account.
5. The identified considerations against disclosure will only be relevant if it is established that the disclosure of the information could reasonably be expected to have the asserted effect. Section 5 of the GIPA Act establishes a presumption in favour of disclosure of government information unless there is an overriding public interest against disclosure. Therefore, the requested information must be released unless there is an overriding public interest against disclosure.
6. I have noted above my view regarding the need for caution when considering opinions as to possible outcomes from the release of information. In this matter, for the most part, I have not accepted Mr Bower's evidence as sufficient to establish that disclosure of the withheld information could reasonably be expected to have the identified outcome.
7. In any event, the mere fact that disclosure of the withheld information could reasonably be expected to lead to the identified outcome is not sufficient to allow the consideration against disclosure to override the presumption in favour of disclosure. It is necessary to determine what weight should be given to the various criteria having regard to the general terms of the GIPA Act, and the presumption in favour of disclosure.
8. In regard to Clause 1(d) of the Table to section 14, I have expressed the view that the consideration against disclosure of the information should be given reasonable weight. In regard to other factors I expressed the view that the consideration against disclosure of the information should only be given minimal weight.
9. I have set out above a number of benefits that I consider could result from the disclosure of the withheld information. These are essentially related to greater transparency and accountability and discouragement of malicious or frivolous complaints.
10. I note that the balance is always weighted in favour of disclosure. In the circumstances of this matter, I am not satisfied that the Clause 1(d) consideration against disclosure is sufficient to override the considerations in favour of release. In my view, the benefits that might flow from disclosure of the information outweigh the considerations against disclosure that the Board has identified.
11. I have formed the same view in regard to all of the other asserted considerations against disclosure with the exception of Clause 3(a).
12. As I have noted above, I accept that document 46 contains the name and phone number of an individual other than Mr Curtin. I am not satisfied that the considerations in favour of release are such that that personal information should be released. In that regard the decision should be affirmed.
13. It appears that the Board may have overlooked information contained in the cover page to document 28. In regard to that information, which appears to be personal information, it is my view that the matter should be remitted for the Board for re-consideration. It is open to Mr Curtin to indicate whether he seeks the cover page information. If he does not seek the information, he should advise both the Board and the Tribunal. If he does so, there will be no need for the re-determination. If Mr Curtin wishes to pursue the matter following the redetermination, the matter will need to be listed for further case conference.

Conclusion

1. In my view, with the exception of the information in documents 28 and 46 that I have identified, the asserted public interest considerations against disclosure of information do not out-weigh the considerations in favour of release.
2. I have examined all of the open and confidential material filed with the Tribunal and I have noted all of the evidence and submissions in the proceedings. With the exceptions of the two items that I have identified, it is my view the correct and preferable decision is to set aside the Board's decision. In its place the decision is made that the information is released.

Order

1. The decision under review is affirmed in regard to the personal information contained in the document identified as document 46.
2. The matter is remitted for redetermination in regard to the information contained in the cover page of the document identified as document 28. The redetermination is to be completed by 28 April 2017.
3. The decision under review is otherwise set aside. In its place the decision is made that the information that has been withheld is released.
4. The matter is listed for further case conference on 30 May 2017 at 10.30 am.

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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: 27 March 2017