The applicant in these proceedings applied for review of a decision made by the respondent, the Mid-Western Regional Council (MWRC), under the Government Information (Public Access) Act 2009 (the GIPA Act) on 5 June 2017 (the decision). The decision, made under the GIPA Act on 11 November 2016, allowed access by several applicants to a report into "Operation Farra" produced by the Independent Commission Against Corruption (ICAC) which had been provided to the respondent and to the Minister for Local Government (the report).
The applicant submits that the Tribunal should find that the decision to grant access was not the correct and proper decision, on the ground that there are overriding public interests against disclosure.
For the reasons set out below, I have decided to vary the respondent's decision in some respects.
[2]
Legislation
The GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5).
Section 12 and 13 provide:
"2 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."
Apart from the considerations listed in Schedule 1 to the Act, the considerations listed in s 14 are the only other considerations that may be taken into account under this Act for the purpose of determining whether there is an overriding public interest against disclosure of government information.
The applicant in these proceedings makes the application on the basis that he is aggrieved by the release of the information in the report, which concerns him. No other affected person was joined to the proceedings.
Under s97(2) of the GIPA Act, as this is a review of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure lies on the applicant.
[3]
Confidentiality
Orders were previously made in these proceedings prohibiting the publication of the evidence and the name of the applicant under s64(1)(a) and (d) of the Civil and Administrative Tribunal Act 2013, including any reference to any material which identifies or is likely to lead to the identification of the applicant.
Also publication of matters contained in documents so far as they identify the applicant was prohibited by order under s 64(1)(c) of the Act.
Section 107(1) of the GIPA Act provides:
107 Procedure for dealing with public interest considerations
(1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure.
Accordingly, sections of these reasons are excluded from publication.
[4]
Background
The report was produced following a private and confidential investigation conducted by ICAC. No public hearings were held and no report was published. The ICAC investigated allegations of corrupt conduct made against three persons including the applicant. The investigation was conducted pursuant to s 14 of the Independent Commission Against Corruption Act 1988 (the ICAC Act). Section 14 deals with other functions of ICAC and s 14(2) provides:
"(2) If the Commission obtains any information in the course of its investigations relating to the exercise of the functions of a public authority, the Commission may, if it considers it desirable to do so:
(a) furnish the information or a report on the information to the authority or to the Minister for the authority, and
(b) make to the authority or the Minister for the authority such recommendations (if any) relating to the exercise of the functions of the authority as the Commission considers appropriate."
The report in question is a report on the information as referred to in s. 14(2)(a).
The report states that no findings of corrupt conduct were made.
Counsel for DDL submitted in the Tribunal that ICAC does not possess the power to make findings of fact in a report under s.14. This submission was also made to, and rejected by, ICAC during the investigation. She submitted that the fact that DDL was not able to cross-examine witnesses before ICAC meant that the report has shortcomings which make it more prejudicial to DDL, as it contains allegations and comments that are adverse to him.
The respondent MWRC does not dispute that the report contains information which if made public could have an adverse impact on DDL's professional career and reputation.
The issue before me is whether the following grounds under the GIPA Act are substantiated, and if so, whether they outweigh the public interests in favour of disclosure of the information in question:
1. Disclosure of the information could reasonably be expected to have the effect of revealing false or unsubstantiated allegations about a person that are defamatory (s 14 cl.3(e));
2. Disclosure of the information could reasonably be expected to have the effect of prejudicing DDL's legitimate business, commercial, professional or financial interests (s 14 cl. (4)(d)).
The words "could reasonably be expected to" are to be given their ordinary meaning: see Attorney-General's Department v Cockcroft (1986) 10 FCR 180. In Cockcroft, Bowen CJ and Beaumont J explained, at 190, that the words
"...require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like."
The applicant submits that these considerations support a finding that the report as a whole, or at the very least, particular sections of the report, should not be disclosed. The applicant also submits, however, that the report must be read as a whole, in order to comprehend the inferences which can be drawn from it.
The respondent disputed that the report contained allegations, and said that some were mere extracts from documents or witness evidence and others were speculation. The Macquarie Dictionary defines an "allegation" as:
"1. a mere assertion made without proof."
[5]
False or unsubstantiated allegations about a person that are defamatory
The applicant must establish first, that the report contains allegations which are either false or unsubstantiated.
Two kinds of "allegations" were identified.
Firstly the report refers in places to the allegations which led to the investigation. As a general proposition, I am satisfied that where the report describes such complaints, those are allegations within the meaning of s 14 cl.3(e).
The fact that ICAC made no findings of corrupt conduct leads me to conclude that those allegations or complaints of corrupt conduct made to it which led to the investigation are unsubstantiated. I make no findings on whether any of those allegations were false as it is unnecessary to do so, and in my view, there is insufficient evidence to make such a finding.
Secondly, the applicant submits that there are also allegations contained in the report itself or which can be inferred from the information in the report. If that is the case, and there are no findings in relation to these allegations by a body with the ostensible authority to do so, it seems clear that they should be treated as unsubstantiated. This approach is supported to some extent by the decision in DDT v Charles Sturt University [2017] NSWCATAD 329, at [73].
It is not within the power of the Tribunal to review the evidence before ICAC and make its own findings on these issues. Nor can the Tribunal review ICAC's power to make findings under s 14 or any other part of the ICAC Act.
The applicant relied upon the decision of Senior Member Montgomery in Zonnevylle v NSW Department of Finance and Services [2015] NSWCATAD 175. At [55] the Senior Member referred to the following elements of defamation law from Halsbury's Laws of Australia cited in Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [83-84]:
"A publication is defamatory of a person if it tends, in the minds of ordinary reasonable people, to injure his or her reputation either by:
(1) disparaging him or her;
(2) causing others to shun or avoid him or her; or
(3) subjecting him or her to hatred, ridicule or contempt.
The cause of action in defamation is complete upon the publication of a defamatory imputation and damage may be inferred without proof of actual loss or injury to the plaintiff."
[6]
The information in the report
The applicant provided a schedule of the sections of the report which it said were adverse to the applicant. I will use the numbering and page numbers in that document to refer to the sections of the report under consideration.
[7]
Item 1
Item 1 describes the nature of the complaints received about ICAC. Based on the reasoning above, these are unsubstantiated allegations, as the ICAC made no findings of corrupt conduct. [BALANCE NOT FOR PUBLICATION]
[8]
Item 2
The respondent has agreed to redact this information as there are doubts about its accuracy, and therefore it is not in issue.
[9]
Item 3
This information refers to emails from staff of the Council, concerning the sale or transfer of certain land. The nature of the acquisition changed from a dedication at the developer's expense to a purchase by the Council. The property was owned by a councillor. [BALANCE NOT FOR PUBLICATION].
The respondent submitted that this was not an allegation. The emails and the surrounding information on pages 30 to 31 do not impute any misconduct. Read in context, one can infer rather that they assert facts which could conceivably support an allegation of misconduct.
On the reasoning above, I conclude that these are not allegations. Therefore s14 cl 3(e) cannot apply.
[10]
Items 4, 5, 6 and 7
Item 4 is an assertion without proof, therefore an allegation, and it does carry an adverse imputation. The allegation could reasonably be expected to harm DDL's reputation if disclosed, and is disparaging.
NOT FOR PUBLICATION
Item 5 could be read as a finding or an allegation, but in my view it comes closer to an allegation. It could not harm or disparage DDL's reputation, however. [BALANCE NOT FOR PUBLICATION].
Item 6 deals with information provided by various witnesses relevant to the events in Items 4 and 5. [BALANCE NOT FOR PUBLICATION].
Item 7 contains a mixture of allegations and findings.
NOT FOR PUBLICATION.
[11]
Items 8, 9 and 10
These items contain information in Chapter 3 which relate to the purchase of land by the MWRC.
Item 8 contains a statement by DDL in an email.
Items 9 and 10 contain extracts from an email by DDL to another staff member.
NOT FOR PUBLICATION
Moreover, there is no information about DDL's motivation in the report and no statement in the report that his conduct was inappropriate. I am not satisfied that any allegations are contained in Items 9 and 10.
[12]
Items 11 and 12
These items comprise information in Chapter 4 of the report which relate to an application for the rezoning of land owned by a Councillor which was to come before the Council for determination.
NOT FOR PUBLICATION
NOT FOR PUBLICATION
The report states that in the absence of cross-examination, ICAC did not consider it necessary or desirable to resolve the issue.
I do not find that this information contains allegations as there is no express or indirect statement that the conduct was inappropriate and no actual assertion that DDL took inappropriate action. Even if it were an allegation, it is not defamatory as it does not disparage DDL with reference to this conduct.
[13]
Whether disclosure would "reveal" allegations
The respondent submitted that the allegations made to ICAC are in the public domain, therefore cannot be said to be "revealed" by disclosure. It was not disputed that on 28 October 2016, an article appeared in a newspaper circulating in the Council area where DDL now works, concerning the ICAC report.
NOT FOR PUBLICATION
Clause 1 of Sch 4 of the GIPA Act provides that:
"reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)".
In Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98 Molony JM observed, at [40], that:
"The issue for consideration is not whether the document has been publicly disclosed, but whether the information they contain has been publicly disclosed. The effect of s 105(1) is to place the burden, of establishing that a decision with respect to an access application is justified, on the agency. In circumstances such as the present, that burden includes establishing that release under the GIPA Act could reasonably be expected to reveal an individual's personal information. Where there is material indicating that the information has already been publicly disclosed, that burden requires the agency to establish that it was not."
In that case, the information was disclosed in a court room. See also Rowell v Department of Family and Community Services [2017] NSWCATAD 221 at [37]; Nature Conservation Council of NSW v Department of Trade and Investment [2012] NSWADT 195 at [174].
There was no evidence led by the applicant which might question whether this publication did not amount to public disclosure. I have concluded that the information in the article has been publicly disclosed.
[14]
Prejudice DDL's legitimate business, commercial, professional and financial interests
DDL gave evidence of the implications for his professional career and financial interests should the report be disclosed. His evidence was unchallenged. He said he had worked in local government executive roles since 1983, apart from a period between 2004 and 2006. [BALANCE NOT FOR PUBLICATION].
The contents of the report lead him to believe that if they were disclosed, his contract of employment would be terminated. This is because the Council, he believes, would find it difficult to assure the public that there was no question over the Council's integrity. He was also aware of cases where negative gossip had led to termination of council employees or preventing them from finding future employment, although no specific details were given.
Apart from his professional prospects, DDL was concerned at the possible impact on his superannuation and stated that he did not yet have significant savings which would allow him to retire comfortably.
I accept that adverse impacts upon a person's professional reputation which could disadvantage their future employment prospects come within "professional and financial interests" (Pemberton v Macquarie University [2014] NSWCATAD 76).
In my view certain parts of the report could reasonably be expected to make it more difficult for DDL to retain or obtain new employment in certain roles. On the basis of DDL's evidence, which was not challenged, I am satisfied that the disclosure of the report as a whole, even excluding those adverse sections outlined above, could reasonably be expected to prejudice DDL's legitimate professional and financial interests to some extent, although whether it would go so far as to lead to termination of his current employment was unclear.
[15]
Balancing the public interests for and against disclosure
Section 13 of the GIPA Act requires the Tribunal to identify the public interest considerations against disclosure of the information and those in favour of disclosure, and then determine the weight to be attributed to each, before determining whether the balance favours disclosure or non-disclosure.
The balancing exercise "is a question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation": Battin v University of New England [2013] NSWADT 73 at paragraph [74].
The public interests in favour of disclosure include the following:
1. 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 and in this case, particularly the integrity of local government decision making processes.
2. ICAC did not make the report confidential, or place any limitations on its disclosure; therefore keeping the report secret may thwart the purpose of the report.
3. The fact that failure to disclose the report may undermine public confidence in the MWRC, whereas release of the report could promote public confidence in the MWRC.
4. Promoting the accountability of council officials and allowing the public to understand decisions which had been made.
The public interest considerations against disclosure include:
1. Disclosure of the report, particularly certain findings of fact in the report, could reasonably be expected to prejudice DDL's prospects of future employment and thus his legitimate professional and financial interests.
2. Disclosure of the report could reasonably be expected to reveal the following unsubstantiated defamatory allegations:
1. Item 1 - These allegations were not contained in the newspaper article and have not been revealed publicly in this form. They were not substantiated in the report.
2. Item 2 - it was agreed between the parties that this item should be removed as there were doubts over its accuracy.
3. Item 4 - this is an unsubstantiated allegation which is disparaging to DDL. [BALANCE NOT FOR PUBLICATION]
In weighing up the competing interests I have considered the fact that the report states that ICAC made no findings of corrupt conduct against DDL. This ameliorates the effect of disclosure on DDL's legitimate professional interests to some extent. I have also taken into account that some information about the ICAC investigation and the allegations against DDL, is already publicly available, as this is relevant to which public interest is more significant, particularly as the legislative presumption favours disclosure.
In my view, the public interest in open discussion and promotion of the integrity and accountability of local government decision making processes and local government officials are important public interests and outweigh the public interests against disclosure based on DDL's legitimate professional and financial interests. However in the case of specific unsubstantiated allegations concerning DDL containing defamatory imputations, which have so far not been published, in my view there is a greater public interest against disclosure than in favour of disclosure.
For these reasons I have determined that access to the information in Items 1, 2 and 4, and part of Item 7 should be withheld.
[16]
Orders
The Tribunal orders:
1. The respondent's decision of 6 February 2017 is varied as follows:
1. Access to the information contained in the report is granted with the exception of the information described in Confidential Exhibit 1.
1. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013, paragraphs [36], [40], [44], [47], [48], and [52] and parts of other paragraphs as indicated] of these reasons are not to be published.
2. Pursuant to s 107(1) of the Government Information (Public Access) Act 2009, Confidential Exhibit 1 is not to be published.
3. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013, any evidence filed with the Tribunal is not to be published.
4. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant, or any information which might identify or lead to the identification of the applicant is not to be published.
[17]
Item 7
Page 52
NOT FOR PUBLICATION
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
[18]
Amendments
06 February 2018 - Amendments made to Confidential version - Confidential Exhibit 1 - Item 1 amended pursuant to CAT Act s63(3)(d)
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: 06 February 2018