Fahey v NSW Office of Liquor, Gaming and Racing [2009] NSWSC 270 | Case summary

Supreme Court of NSW|2012-09-03

Background 1The following facts are broadly not in dispute. 2Morundah is a close-knit community of 20 people in a village, and 75 in the district. The applicant, David Fahey, has lived there for 15 years and holds a number of positions in the community. 3On 6 May 2011, the respondent received a handwritten complaint alleging that a large number of people were concerned about the way the applicant was running two local charities, namely Morundah Bush Entertainment Committee Incorporated (MBEC) and Morundah Town Improvement Committee. The complainant alleged:

there was a total lack of transparency and no accountability.
there were no minutes written down of meetings.
the applicant held three portfolios, President, Secretary and Treasurer.
the applicant made all decisions concerning any monies.
the applicant was an undischarged bankrupt.
a person handed the applicant $500.00 cash to be used as a prize in a raffle.
no receipt was issued for the $500.00 and the applicant did not conduct the raffle. One can only assume that the money was taken by the applicant for his own use. 4The complaint was investigated by the respondent's inspectors who found that the allegations could not be substantiated apart from the allegation of not issuing a receipt for the $500 donation. The inquiry also determined there was evidence of minor breaches of the Charitable Fundraising Act 1991, the Charitable Fundraising Regulation 2009 and the Charitable Fundraising Authority Conditions which were considered to have been inadvertent and in relation to which remedial action was being taken. No further action was proposed to be taken. 5On 16 August 2011, the respondent wrote to both the applicant and the complainant advising the outcome of its inquiry into the conduct of fundraising appeals by MBEC.

History of the application 6On 19 September 2011, the applicant applied for formal access to government information held by the respondent: an "unmarked copy of the complaint and copy of [the respondent's] file ... reference 2011/005309". Essentially the applicant sought the identity of the complainant. 7On 17 October 2011, the respondent decided to provide access to the majority of the information sought but, under s 58(1)(d) of the Government Information (Public Access) Act 2009 (GIPA Act), to refuse to provide the applicant with access to other of the information sought because there were overriding public interests against disclosure. In particular, the respondent decided there was a conclusive presumption against the release of information concerning the identity of any confidential source of information, pursuant to Sch 1, cl 1 of the GIPA Act and s 17(8)(a)(ii) of the Casino, Liquor and Gaming Control Authority Act 2007. In providing access to the balance of the information within the respondent's investigation file, the respondent redacted the complainant's personal information, transcribed the complaint letter (to avoid identification of the handwriting) and paraphrased part of the complaint letter (as it considered that some of its details could identify the author). 8On 18 November 2011, the applicant sought review of the respondent's decision by the Office of the Information Commissioner (OIC) under s 89 of the GIPA Act. 9On 31 January 2012, the OIC reported that it agreed with the respondent's decision to release the majority of the information requested by the applicant. However, the OIC was of the view that the respondent was incorrect in deciding that there was a conclusive presumption against disclosure of the information contained in the original complaint. Nevertheless, the OIC considered that releasing the balance of the information would reveal an individual's personal information and that, in the circumstances, the public interest consideration against disclosing the individual's personal information overrides the public interest considerations in favour of disclosure. 10On 15 February 2012, the applicant lodged an application for review by the Tribunal. The applicant listed 9 grounds in support of the application, contending that there is an overwhelming benefit to the public interest to disclose the information requested. 11The applicant provided a letter signed by all the other MBEC committee members, who unanimously supported the application. 12The applicant has indicated that the information being sought is limited to the identity of the person/persons who made a complaint to the respondent about the applicant. 13The respondent's decision is reviewable by the Tribunal under s 80(d) of the GIPA Act and the parties agreed to the application being determined on the papers pursuant to section 76 of the Administrative Decisions Tribunal Act 1997.

The documents 14A list of the documents in contention was attached to the respondent's submissions. Those documents (other than the original complaint) have been provided to the applicant in a redacted form as described above. 15The documents considered by the respondent to be subject to a non-conclusive overriding public interest against disclosure, including the original complaint, were provided without redaction to the Tribunal on a confidential basis. All of the documents refer to the complainant by name.

The decision under review 16As noted above, the original decision to refuse to provide the applicant with access to some of the information was based on a finding that there was a conclusive presumption against the release of information concerning the identity of any confidential source of information, pursuant to Sch 1, cl 1 of the GIPA Act and s 17(8)(a)(ii) of the Casino, Liquor and Gaming Control Authority Act 2007, as that Act was then titled. The respondent accepted, for the reasons identified by the OIC in its review report, that there is no conclusive presumption under s 14(1) of the GIPA Act against disclosure of the information, being the identity of the complainant, but claimed that, there was an overwhelming benefit to the public interest that the information not be disclosed.

Relevant Legislation 17The objects of the GIPA Act are set out in s 3, 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: authorising and encouraging the proactive public release of government information by agencies, and giving members of the public an enforceable right to access government information, and 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: that this Act be interpreted and applied so as to further the object of this Act, and 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. 18It was not disputed that the information the subject of the application, is government information and is held by an agency: s 4(1) of the GIPA Act. 19Section 5 provides that there is a presumption in favour of the disclosure of government information unless there is an 'overriding public interest against disclosure.' 20Subsection 12(1) provides that there is a 'general public interest in favour of the disclosure of government information.' Subsection 12(2) provides that nothing in the Act limits any other public interest consideration in favour of the disclosure of government information, which may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government Information. The subsection also sets out a number of examples of public interest considerations in favour of disclosure of government information. 21Section 13 of the GIPA Act sets out the test that is to be applied in determining whether there is an overriding public interest against disclosure. That test is in the following terms: 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 interests considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure 22The public interest considerations against disclosure are set out in s 14, which relevantly provides: 14 Public interest considerations against disclosure ... 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 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): (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, (g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence, Law enforcement and security 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): (a) reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant, 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: reveal an individual's personal information, contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002, 23Section 15 sets out the principles that are to be applied when determining whether there is an overriding public interest against disclosure. It provides: 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: Agencies must exercise their functions so as to promote the object of this Act. Agencies must have regard to any relevant guidelines issued by the Information Commissioner. 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. The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. 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. 24Section 54 of the GIPA Act contains a requirement that an agency is to take steps, which are reasonably practicable, to consult with specified persons before providing access to information. That requirement only applies to information, which is of a kind that requires consultation under s 54(2): see s 54(1). The information requiring consultation includes personal information about a person: see s 54(2)(a). 25On an application for review to the Tribunal, the onus is on the agency to establish that the decision the subject of review is justified: s 105(1).

CONSIDERATION 26In deciding whether to release information, the Tribunal must apply the public interest test and decide whether or not an overriding public interest against disclosure applies to the information. As noted above, s 13 of the GIPA Act requires the Tribunal to undertake the following steps:

identify the relevant public interest considerations in favour of disclosure:
identify the relevant public interest considerations against disclosure
determine the weight of the public interest considerations in favour of and against disclosure and where the balance between those interests lies

Public interest considerations in favour of disclosure 27Section 12 of the GIPA Act reiterates the general presumption in favour of disclosure of government information, and lists examples of public interest considerations that favour disclosure. The list is not exhaustive. The example considerations include situations where:

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.
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.
Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.
The information is personal information of the person to whom it is to be disclosed.
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. 28The applicant asserted in the grounds for the application that disclosure of the information sought - the complainant's identity:
could be reasonably expected to promote open discussion of public affairs and contribute to positive and informed debate on issues of public importance;
could be reasonably expected to inform the public about the operations of the MBEC and the applicants role in it ;
could reasonably be expected to ensure effective oversight of the expenditure of public funds;
is the only way to get the community back together;
is required to avoid a negative impact on the applicant's personal life, health and business and mistrust within the community of Morundah. 29The applicant submitted that the public interest test should be applied to the community that it affects, namely Morundah because of the damage that the complaint has had on the community. In making this submission the applicant has correctly identified that the test is not limited to his interest. 30The applicant contended that as the complainant's allegations were 'never true, were incorrect and fabricated' and amounted to personal harassment of him and his family. He submitted that people who make false claims and waste time and money (including that of the respondent) should be identified. I agree that there is a public interest in disclosing the identity of persons who make false complaints. Careful distinction should be made between allegations which, while based on genuinely-held beliefs are found to be erroneous and allegations which are malicious or which are made with disregard to basic facts. 31The respondent submitted that in the absence of any evidence that the complaint was in fact made for an improper purpose, it would not be open to the Tribunal to find that there is a relevant public interest in favour of disclosure. The respondent's investigation found that the allegations made by the complainant were unfounded (with one minor exception). It made no comment in its findings that the complaint was actually malicious although it was apparent that the allegations, which were very serious and alleged gross impropriety, were, on the whole, patently false. 32As noted above, s 12(2) provides examples of public interest considerations. It is not exhaustive. There is, in my view, a general public interest in disclosing the identity of the complainant who make false complaints. 33The applicant also asserts that non-disclosure of the complainant's identity has had a negative impact on his personal life, health and business and, by implication, that disclosure is necessary to avoid or mitigate such impacts. I accept the applicant is a long-standing and widely-involved member of the Morundah community and is considered a community leader: he is a Urana Shire Councillor, the Morundah Fire Captain and was honoured with the Order of Australia Medal for services to the community of Morundah. The applicant wrote that his health and that of his family had been affected. He is being treated for sleep disorders. His partner is ill and he claimed the added stress is not assisting her recovery. His children have changed their school bus due to harassment by the children of the person whom he believes to be the complainant. The respondent submitted, and I agree, that those considerations are, by their nature, personal to the applicant and do not amount to public interest considerations.

Public interest considerations against disclosure 34The public interest considerations against disclosure are limited to those set out in the table to s 14 of the GIPA Act. 35In Commissioner of Police v Camilleri [2012] NSWADTAP 19 the Appeal Panel considered (at [26]) s 14 considerations need to be examined at a broad operational level and that those considerations "are concerned with systemic features of the operation of government". 36The respondent submitted that the following public interest considerations against disclosure are relevant:

1(d) - prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions
2(a) - reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant
3(a) - reveal an individual's personal information
3(b) - contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002 Each is addressed below.

Table cl 1(d) - prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions 37In Commissioner of Police, NSW v Camilleri the Appeal Panel considered that the question of whether information supplied was "confidential information' should 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": at [33]. 38In determining whether disclosure would prejudice the supply of information, the test is not whether this complainant would in future refuse to supply that information but whether information of the kind in question facilitates the exercise of the respondent's functions and, whether the disclosure of such information could reasonably be expected to prejudice the supply of such information: Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [52]. 39The respondent is, among other things, responsible for administering the Charitable Fundraising Act 1991 (CF Act), which outlines how a charity is to undertake fundraising activities. The objects of the CF Act are:

to promote proper and efficient management and administration of fundraising appeals for charitable purposes
to ensure proper keeping and auditing of accounts in connection with such appeals, and
to prevent deception of members of the public who desire to support worthy causes. 40The respondent has powers of inquiry under the CF Act where misconduct and wrongful use of funds and assets, or mismanagement is suspected or alleged, or where non-compliance with the law is suspected or alleged. The effective exercise of the respondent's function of investigating misconduct and wrongful use of funds and assets in relation to charities depends, it was submitted, in part on members of the public informing the respondent when they suspect such activity, and members of the public are encouraged to do so. Further, there is a strong public interest in unlawful activities being reported to the police or relevant. If informants thought that statements made in the course of an investigation revealing their personal information could be released to an applicant under the GIPA Act, those sources of information may well dry up or at least there could be a reduction in the flow of information available to the police or relevant authorities: Simring v NSW Police [2009] NSWSC 270 at [69] per Smart J. 41The applicant took issue with the respondent's submissions that releasing the identity of a complainant would jeopardize the supply of future information to the respondent. He did not believe that releasing the identity of this complainant would "dry up" information to the respondent generally or that releasing the information would prejudice the supply to the respondent of confidential information that facilitates the effective exercise of the respondent's functions, because this complainant had made false allegations. 42The applicant took offence at the respondent's submission as implying that he and the MBEC had engaged in wrongdoing. The respondent noted that that there was no intention to assert any wrongdoing by the applicant, beyond those very minor matters identified by the inquiry, which, it was agreed, were inadvertent and which the MBEC immediately took steps to rectify. 43The respondent submitted that it was open to the Tribunal to find that the respondent's "Investigating Charities" Fact Sheet creates an expectation, if not an express undertaking, that information reported to the respondent will be kept confidential and will only be used and disclosed to the police in the conduct of law enforcement activities. The Fact Sheet, however, is not as limited as the respondent submitted; it does not state that information will only be used and disclosed to the police. 44The Fact Sheet, which was annexed to the affidavit Daniel Zuccarini, an Investigations Manager of the respondent dated 23 April 2012. The Fact Sheet, under the heading 'Confidentiality', noted that the respondent did not normally accept anonymous information. It relevantly provided as follows: ... please state ... whether we may reveal your name to the charity ... as the complainant. If you do not wish this to happen, you may nevertheless pass information to us. Also, please mark your complaint with words (eg confidential or in confidence) that would make your intention clear to us. Nevertheless, we have a policy that prohibits officers divulging information about complainants etc to other persons. You may be assured that in the absence of any clear direction from you, your name and particulars will not be divulged. We respect confidences as far as we are able, but any person criticized by us as a result of an inquiry has a right to be told the nature of the evidence upon which the complaint is based, and in some cases this evidence may point to the complainant. ... As a government agency we are subject to legislation governing public access to information held by the government. It is possible that a member of the public may seek access to information held by us, including confidential information supplied by you .... 45The respondent submitted that disclosure of a complainant's identity could reasonably be expected to prejudice the supply of confidential information that facilitates the effective exercise of its functions. Mr Zuccarini wrote that failure to keep complainants' names and details confidential would most certainly result in a reduction in the receipt of complaints, although it was unclear to me on what basis he came to that view. There was no suggestion in his affidavit that the respondent solely relies on complaints as the means of it engaging in its regulatory and compliance functions. 46To the best of Mr Zuccarini's knowledge the respondent had never disclosed (unless obliged by law to do so) a complainant's identity to 3rd parties without the complainant's express consent, and that is consistent with the statement in the Fact Sheet that "You may be assured that in the absence of any clear direction from you, your name and particulars will not be divulged". The Fact Sheet however also foreshadows "It is possible that a member of the public may seek access to information held by us, including confidential information supplied by you .... " 47Pausing there, the Fact Sheet also curiously records under 'Confidentiality': (please state) whether we may put your complaint and any evidence to the charity... 48It is difficult to contemplate how the respondent would respond if a complainant were to impose such a caveat when providing information. Clearly there would be circumstances where, irrespective of the views of a complainant, the respondent would, in fulfillment of the CF Act's objectives, be obliged to investigate and put the concerns to the charity. In doing so, the complainant may well be identified, despite their wishes and despite efforts by the respondent to anonymise the complaint.

Table cl 2(a) - reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant 49Clause 2(a) provides that there is a public interest consideration against disclosure if disclosure could reasonably be expected to reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant. 50The respondent submitted that it would be open to the Tribunal to find that disclosure of the information could reasonably be expected to prejudice the future supply of information by informants. 51The applicant referred to the Respondent's Code of Conduct, which in the Introduction, stated that: The people of New South Wales have a right to expect the business of the public sector of this State to be conducted with efficiency, fairness, impartiality and integrity. 52This is reiterated under the heading of "Values Underlying the Code". He submitted that there was no "fairness or integrity" in a member of the public being assisted by the respondent to 'assassinate' his character and that of the MBEC with impunity; the allegations made by the complainant were 'false, fabricated vitriol'. He wrote that he agreed that information about alleged wrong-doing should be provided to agencies, but if it is found to be false and vindictive, then the complainant should be identified. He believed that the complainant was using the respondent and 'the system' for a personal attack on him, his family and the MBEC as a way of retribution for being barred from the applicant's place of business, the Morundah Hotel.

Table cl 3(a) - reveal an individual's personal information 53Personal information is defined in clause 4 of Schedule 4 of the GIPA Act as follows: 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. Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics. Personal information does not include any of the following: information about an individual who has been dead for more than 30 years, 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, 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. 54Disclosure of the complainant's identity would reveal personal information about an individual. 55Under s 54 of the GIPA Act there is an obligation to consult a person before disclosing their personal information, where it appears that:

the person may reasonably be expected to have concerns about the disclosure of the information, and
those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information. 56However, in light of the original decision-maker's finding that there was a conclusive presumption against the release of information concerning the identity of the complainant, that consultation did not occur before the decision was made not to provide the information. From the Confidential Affidavit of Ben Cramer dated 20 April 2012 provided to me (but not to the applicant) I observe that the respondent wrote to the complainant seeking the complainant's comment regarding disclosure of the complainant's identity. The complainant responded requesting that their identity not be disclosed.

Table cl 3(b) - contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002 57Clause 3(b) of the Table relevantly provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (PPIP Act). 58The relevant information protection principle in this application is contained in section 18 of the PPIP Act, which provides: 18 Limits on disclosure of personal information 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: 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 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 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. 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. 59The respondent submitted that disclosure of the complainant's identity under the GIPA Act is unrelated to the purpose for which the information was collected, viz. as part of the exercise of the respondent's function of regulating the proper and efficient management and administration of fundraising appeals for charitable purposes. Further, in light of the complainant's request that their identity not be disclosed, the respondent has reason to believe that the individual concerned would object to the disclosure. 60The respondent submitted that there is no evidence before the Tribunal that the complainant was reasonably likely to have been aware that the identity of complainants is usually disclosed to others such as the applicant. Whether or not the complainant gave any thought to or was concerned about the possibility of their identity being revealed when making the original complaint is not to the point. In the absence of any evidence that the complainant was aware that such information is usually disclosed, and in light of the well accepted public policy underpinning the principles against disclosure discussed above regarding clauses 1 (d) and 2(a) of the Table, it would be open to the Tribunal to infer that the complainant was unlikely to have been so aware. 61However, there is nothing in the material before the Tribunal to suggest any basis for believing that disclosure of the complainant's identity is necessary to prevent or lessen a serious and imminent threat the life or health of the complainant or another person. 62The respondent submitted that disclosure of the complainant's identity could reasonably be expected to contravene an Information Protection Principle under the PPIP Act. 63The applicant referred me to the respondent's website, where it states that: Our office conducts its operations in accordance with the provisions of the Privacy and Personal Information Protection Act 1998. View the office's website privacy policy. Our office respects your right to confidentiality. However, you need to be aware that while we have strict procedures to ensure your anonymity, the nature of your complaint may lead to you being identified by others. 64The complainant, in those circumstances, the applicant submitted, would have been aware that their identity may be disclosed. 65Similarly, the applicant also referred to the respondent's Code of Conduct that "you must not disclose the identity of any complainant unless authorized to do so by the Commissioner or by a Director". From this, he submitted, it is open to conclude that there are circumstances where information can be released and does not automatically exclude information from being released.

Balancing the public interest considerations 66The weighing of the public interest considerations in favour of disclosure against those against disclosure, the balancing of competing interests "is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation: Hurst v Wagga Wagga City Council (2011) NSWADT 307 at (70). 67The applicant submits that disclosure of the complainant's identity could reasonably be expected to:

promote open discussion of public affairs and contribute to positive and informed debate on issues of public importance;
inform the public about the operations of the MBEC and the applicants role in it; and
ensure effective oversight of the expenditure of public funds. 68The respondent submitted those public interest considerations have already been satisfied by the disclosure of the substance of the complaint and the outcome of the respondent's consequent investigation. Disclosure of the complainant's identity, it was submitted, would not further those considerations. 69The applicant, on the other hand, asserted that disclosure of the complainant's identity is the only way to get the community back together and/or is necessary to resolve the mistrust within the community of Morundah caused by the complainant's allegations. The allegations, it was contended, had damaged community morale and community members were reluctant to be part of local committees or to be actively involved in community events because they may be the target of false allegations. Fewer people were said to be willing to assist in community meetings and activities, due solely to the effect of the complaint letter. Identifying the complainant, it was submitted, would immediately stop rumours and rifts within the community, and only then could the community of Morundah return to the vibrant community it once was. 70The respondent submitted that disclosure of the particular complainant's identity would not further those considerations. In light of the respondent's inquiry finding that there were only minor technical breaches by the MBEC and a failure to issue a receipt, it is perhaps somewhat difficult to understand how or why there would be such continued community discord arising out of the complaint, when the applicant and the MBEC were virtually completely exonerated in every aspect of the complaint, but I accept that there remain ongoing tensions in the community. 71The applicant contended that the person that he believed to be the complainant 'ostracized themselves from the community many years ago' and has nothing to do with the community of Morundah, its committees or social groups. The applicant submitted that the person had damaged the spirit of the members of the community that have worked hard to improve their village and lifestyle. The respondent contended that it is difficult to understand, if the suspected complainant has been ostracized by the community, as the applicant submits, how the community would be divided by allegations from such a person. I consider that this has misconstrued the applicant's point: if the true complainant were not the person suspected, then there is likely to be ongoing speculation and possible division in the community. 72The applicant expressed concern that if he (publicly) names the person he believes to be the complainant without proof, he may be exposed to litigation. It is reasonable to infer that he intends to expose the identity of the complainant to others in the community. In particular, given the support by other members of the MBEC, he is likely to reveal the identity of the complainant to them at least. While it is a matter for speculation, given the vindication of the applicant and the MBEC as a whole by the inquiry and the patent falsehoods of some of the allegations, it is reasonable to assume that public exposure of the complainant is likely. 73I have found there to be a public interest consideration in disclosing the identity of a complainant who makes false complaints and in the circumstances of this matter, and the divisive effect of the complaint, I have given significant weight to this consideration. 74The respondent's position was that the disclosure of a complainant's identity could reasonably be expected to prejudice the supply of confidential information to the respondent, as it could reasonably be expected to impede the willingness of members of the community to report suspected improper conduct for fear of reprisal. 75In Director General, Department of Education & Training v Mullett & Anor (GD) [2002] NSWADTAP 13 the Appeal Panel held (in respect to the exemption in clause 13(b)(ii) of Schedule 1 of the FOI Act) held that: In our view, clause 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 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 reasonably be obtained, by confidential communication; the extent to which guarantees of confidentiality may be necessary... 76Confidentiality is to be inferred from all of the circumstances. I find that in the present matter a complainant would not have a reasonable expectation that the respondent's intervention that leads to an investigation, would never be disclosed. Further, as discussed above, the objectives of the CF Act, it would seem to me, impose a greater obligation on the respondent than its expressed concerns about observance of complainant's wishes for anonymity. That the respondent does not rely solely on complaints in order to exercise its investigative functions is also given significant weight in the circumstances. 77The applicant submitted that he believes he already knows the identity of the complainant so no purpose is served in the respondent's refusal to confirm that information. He alleged he overheard a conversation between the respondent's solicitor and his associate in the Tribunal's waiting room in which the complainant was identified. The respondent's solicitor denies that the complainant's name was uttered. I make no finding in relation to the applicant's contention, nor, having regard to my overall findings, is it necessary that I do so. 78The applicant also wrote that he had deduced the identity of the complainant because he had received threats from a man on 4 May 2011, that is, a few days prior to the date of the complaint. A copy of the Incident Register of the Morundah Hotel (which the applicant owns) was provided in which the threats were recorded. The applicant wrote that he had contacted the police, who he said, considered the threats to be linked to the man having been barred from the hotel 'many years previous for extreme violent and abusive behaviour'. That the man was barred from the hotel 'many years previous' suggests to me that any link between the complaint and that earlier relationship is necessarily tenuous. However there was the evidence of further disagreement a few days before the complaint was made, and to that extent, some weight might be added to the applicant's speculation. 79The applicant also contended that he had identified the complainant after reading an entry in the inquiry report, provided by the respondent, at folio 31: ... the allegations made by the complainant are unfounded apart from the fact a receipt was not issued to his friend for her donation of $500. 80Disclosure of the complainant's gender clearly does not, of itself, disclose the complainant's identity. However the information provided goes further. It identifies that the man had a female friend who was the donor of $500 to the MBEC. The reasons for the inquiry note that 'a person' handed the applicant the $500 donation. The identity of the female friend is then known to the applicant; the likelihood that the applicant is aware of the identity of the male friend of the female donor is increased, given the evidence that Mondurah is a very small community. 81I have come to no final view about whether the applicant is aware of the identity of the complainant, and it has not been necessary for me to do so.

CONCLUSION 82Taken together, I do not find the respondent's submissions sufficiently persuasive for it to have discharged its onus under s105 and find that the public interest considerations in favour of disclosure, on balance, outweigh the public interest considerations against disclosure. Accordingly, there is no overriding public interest against disclosure of the information (the complainant's identity): s 13 of the GIPA Act.

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: 03 September 2012

Fahey v NSW Office of Liquor, Gaming and Racing

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Judgment (15 paragraphs)

Parties

Cited By (50)