FNN v Cumberland City Council

Proceedings in the Tribunal

1. On 27 September 2021, Higgins SM conducted a case conference, at which the applicant was self-represented, Mr McFadzean appeared for the Council and Mr Wilkins appeared on behalf of the Information Commissioner (as Intervenor). The Senior Member noted that the Information Commissioner appeared and has a right to be heard in the proceedings but is not a party. She remitted the Council's decision dated 29 June 2021 (that the amended access application was an invalid application) to the Council for re-consideration and ordered it to reconsider the access application made on 25 May 2021. She also ordered: 1. the Council to tell the Tribunal, the Information Commissioner and the applicant of its decision on re-consideration together with: (a) Its written reasons for decision, and (b) a schedule of documents, identifying whether access to the information in the document is granted or refused in whole or in part and the grounds of refusal, by 22 October 2021; 2. the applicant to tell the Tribunal, the Information Commissioner and the Council whether he is continuing or withdrawing the application by 8 November 2021. If he is continuing with the application, he is to identify the information (if any) for which he presses access; and 3. Listed the matter for a further case conference on 15 November 2021. 4. Notes: The applicant noted that the information for which he seeks access is that relating to the investigation of him by the respondent between 2017 and 2019. The respondent noted that the applicant had already made a number of access applications for this information.
2. On 22 October 2021, Mr McFadzean emailed the Tribunal and the applicant, and stated: Further to order 2 made by Senior Member Higgins on 27 September 2021, the Council had re4considered its decision in respect of the applicant's application made on 25 May 2021 and produces the attached schedule of documents inclusive of written reasons for the Council's decision. Whilst the matter may be further considered at the further case conference on 15 November 2021, the respondent's position is that: 1. There is no utility in this appeal progressing in respect of documents numbered 4 and 5, because a decision on the release of those documents is pending in proceedings no. 2021/69505. On that basis, the respondent invites the applicant to withdraw (the) request in respect of categories 3b and 4 of the application. 2. Documents 6 and 7 are voluminous and a significant time will be required to give effect to redactions. The applicant is invited to substantially reduce the date range if documents requested or to pay the advance deposit previously notified, with Council to later finalise an invoice having regard to time spent on the matter. 3. If the application is amended as contemplated by 1 and in a reasonable manner as contemplated 2, then subject to directions that the Tribunal may make, the Council anticipates being in a position to file and/or serve material for which production is not disputed within one week.
3. On 22 October 2021, the applicant emailed the Tribunal and the Council, pressing the amendment to the GIPA Application dated 21 June 2021.
4. On 15 November 2021, Perrignon SM conducted a case conference, at which the applicant appeared in person, Mr McFadzean appeared for the Council and Mr Wilkins appeared for the Information Commissioner. He listed the matter for mediation on 1 December 2021, noting that the parties wished to discuss the applicant's proposed amendment to the GIPA application, "among other things", and listed it for directions on 7 December 2021.
5. However, the matter failed to resolve at Mediation and on 7 December 2021, Montgomery SM conducted a directions hearing. He ordered the Council to release documents numbered 8 to 11, 14, 15 and 16 to 21 from its Schedule of Documents in unredacted form by 8 December 2021 and to release documents numbered 1 to 3 from its Schedule of Documents in a redacted form by 8 December 2021. He also ordered: 1. The applicant to advise the Tribunal, the Council and the Information Commission of the position in regard to the further progress of the matter by 13 December 2021; 2. The Council to file and serve its material including evidence addressing requests 1, 2 3a and 6 of the request for information dated 24 May 2021, statements, documents and submissions by 24 December 2021; 3. The applicant to file and serve evidence including statements, documents and submissions by 28 January 2022; 4. The Council to file and serve all evidence in reply and submissions by 14 January 2022; 5. The parties to provide each other with a list of witnesses required for cross-examination by 21 February 2022; and 6. The Information Commissioner to file submissions by 21 February 2022.
6. Montgomery SM listed the matter for hearing by telephone on 8 March 2022 and noted that: 1. The applicant withdrew the requests for information numbered 3b and 4; 2. The Council had reviewed all batch documents numbered 6 and 7 in its Schedule, comprising some 84 sets of meeting minutes, and say that none of those documents identify or relate to the applicant and on that basis, the applicant no longer presses point 5 of the request for information; and 3. Documents numbered 12, 13, 16 and 17 in the Council's schedule are publicly available and the applicant's attention has been drawn to means of access.
7. The matter came before me for hearing by telephone on 8 March 2022. The applicant was self-represented, Mr McFadzean appeared for the Council. The Information Commissioner had decided not to participate in the proceedings.

The Council's opening statement and evidence

1. Mr McFadzean referred to the original GIPA application with the Tribunal. He stated that during the directions hearing on 7 December 2021, the applicant did not apply to expand the scope of the GIPA application and that the Council argued that the application for administrative review is restricted to the original GIPA application.
2. The Council relied upon the following evidence: 1. Statement of Ms J Albazouni dated 24 December 2021; 2. Statement of Ms J Albazouni dated 17 February 2022; 3. Statement of Cathie Zammit dated 17 February 2022; and 4. A bundle of unredacted documents (filed in accordance with Montgomery SM's orders).
3. The applicant had notified the Council that Ms Albazouni and Ms Zammit were required for cross-examination and they were in attendance. Their statements were admitted into evidence and marked as exhibits 1, 2 and 3, respectively and the bundle of unredacted documents was marked as MFI1.
4. Mr McFadzean stated that the Council's Schedule of Documents is attached to Ex 1 and he confirmed that the applicant was served with redacted copies of documents numbered 1, 2 and 3. He stated that documents numbered 22 to 26 (inclusive) in the Schedule of Documents are discussed in Ex 2 and that the documents that remain in dispute are numbered 1, 2, 3 and 22 to 26 (inclusive), respectively.
5. In relation to the disputed documents, Mr McFadzean stated that: 1. Those numbered 1, 2 and 3 have small redactions, which relate to details of the informants, and the Council relies on s 74 of the GIPA Act. 2. Number 22 is a Final Report in relation to a Code of Conduct complaint that the applicant made to the Council against Ms Zammit. The applicant already holds a copy of that report and the Council relies on ss 58(1)(c) and 59(1)(d) of the GIPA Act. 3. Number 23 contains redacted information that is not relevant to the GIPA request and the Council relies upon s 74 of the GIPA Act. This document is addressed in Ms Albazouni's statements. 4. Number 24 is a single-page file note. The Council argues that it should not be released to the applicant because all but 2 lines are irrelevant to the GIPA application and it relies on s 74 of the GIPA Act. Further, the information set out in line 10 should not be released for the reasons addressed in Ex 2. 5. Number 25 comprises Ms Zammit's notes and the Council does not oppose their release to the applicant. 6. In relation to number 26, the Council does not oppose the release of briefing minutes, but states that on balance, they are confidential and should not be released to the applicant.

The applicant's opening statement

1. The applicant argued that the Tribunal should consider paras 4 and 6 of the letter to the Council dated 21 June 2021, in which he sought to add additional categories to the GIPA application as part of the current review. He then recited a list of complaints and grievances against the Council, which do not specifically address the current matter. For example, he alleged that: 1. Ms Albazouni has never assisted him or dealt with the GIPA applications properly; 2. The Council's position "changes with the wind" and that "it will withhold documents from me unless it obliged to provide it to me;" 3. He has made multiple GIPA and Privacy applications to the Council and Mr McFadzean has refused to consult with him; and 4. The Council has "ignored advice from the Ombudsman".
2. The applicant said that on 25 May 2021, Ms Albazouni decided that dealing with the GIPA application would involve a substantial diversion of resources, but this merely involved a computer search for a name. He complained that the Council is "vexatious" that it has not offered him reasonable assistance as required by ss 16 or 52 of the GIPA Act. He also said that he has no confidence that the Council will respond to this application properly and he wants the Tribunal to appoint the IPC to determine the GIPA Application.
3. However, the applicant did not specifically address the disputed documents.

Evidence of Ms Zammit

1. In her Statement, Ms Zammit stated that she had read a copy of the applicant's submissions and evidence and she referred to para 8, which referred to statements within the CPC Action Plan 2017-2018 that "the Chairperson…] will update the policy" and forecast CPC meetings on 8 March 2017, 6 June 2017 and 6 September 2017.
2. Ms Zammit stated that she presented the 2017-2018 Action Plan to a February 2017 meeting of the Council's then Leadership Group, which comprised mainly "group managers" in its then organisational structure (of which she was one). However, the Leadership Group did not endorse that plan. She annexed an extract of the Minutes of the Leadership Group meeting on 2 February 2017 (Annexure A). She said that she recalled that discussions of the item went to the proposed introduction of an Internal Ombudsman Shared Service and that consideration should be given to having child protection complaints going through them rather than having a CPC.
3. Ms Zammit stated that to the best of her recollection, there were no meetings of the CPC on 8 March 2017, 6 June 2017 and 6 September 2017, or on any other dates in 2017 and there was no Chairperson of the CPC in 2017. However, in her capacity as the Croup Manager for Children's Services, she was officer with prime direct responsibility for child protection.
4. During the hearing, Ms Zammit was called and sworn, she identified her Statement (Ex 3) and affirmed its contents.
5. In cross-examination, the applicant referred Ms Zammit to para 3 of Ex 3 and asked her if the Leadership Groups referred to in that document are the same. She replied - 'Yes.' He then asked why there were redactions of the page, and she replied to the effect that she 'presumed that the redacted parts related to later items on the Agenda' and that the items would not have been redacted if they related to the issue of child protection.
6. The applicant asked Ms Zammit if she took any notes during that meeting, and she replied 'No.' He then asked her if she was aware of any other record of why the CPP was not endorsed at that meeting, and she replied 'No.' He then referred her to point 2 of Annexure A to Ex 3 - "Develop/update internal procedures for the management of complaints" and asked what this meant? She replied to the effect that 'there is a policy with guidelines and procedures that was attached and that she had to review what was in existence and update procedures and policies because three Councils were amalgamated and the new Council required a single response.'
7. The applicant referred Ms Zammit to page 4 of the GIPA application and asked if Ms Albazouni sent her a copy of it? She replied 'I don't recall,' but in response to further questioning she said that she recalled being asked for any records that were sought under item 2, and that if she had any of those records she would have provided them. She also said that she did not recall there being any communications with the Principal of the School about the applicant.
8. The applicant asked Ms Zammit what she meant when she said, in relation to item 3, 'I sought advice.' She replied to the effect that she consulted the Head of Agency at that time, General Manager Malcolm Ryan, and then submitted both the form A and form B. She sought face-to-face advice from him, but she did not create any written record of advice that she received at that time.
9. The applicant referred Ms Zammit to page 7 of the GIPA application, which referred to "New Child Protection Policy" and asked her if she was aware of the date of the minutes. She replied 'No,' but she agreed with him that it would have been 'around 14 February 2017.' He asked if she recalled raising that item at the meeting. She replied 'No,' but also stated that she probably raised it. The applicant then asked if there was any particular reason why this was raised on 14 February 2017, and she replied to the effect that she 'would have been telling the directors of the Child Care Centres that the CPP was put to the Committee and the Committee did not endorse it and that there would be a new policy prepared.'
10. The applicant asked Ms Zammit if she was aware of any written rationale of a new CPP, and she replied to the effect that she 'did not know if it was written, but that the rationale was to create one new policy for Cumberland Council.' She repeated that she produced all the information that she had in response to the GIPA application.
11. The applicant then referred Ms Zammit to page 20 of the applicant's submissions, and particularly attachment 6, which was the letter to the Council dated 21 June 2021, in which he sought to expand the terms of the GIPA Application. He sought to question Ms Zammit questions about the matters raised in that letter.
12. However, Mr McFadzean objected to this line of questioning on the basis that the letter dated 21 June 2021 was not part of the current review. The applicant replied that on 21 June 2021, he sought to amend the GIPA application to include these additional matters and that he regarded these as being before the Tribunal.
13. The Tribunal upheld Mr McFadzean's objection and ruled, based upon Higgins SM's orders dated 27 September 2021 - which required the Council to reconsider the matter and to make a new decision in response to the GIPA application dated 25 May 2021 - that the current administrative review related to the GIPA application dated 25 May 2021 and the Council's reconsideration decision dated 22 October 2021.
14. The applicant expressed displeasure with this ruling and he complained that he had prepared the case on the basis that the additional items were included in the review. He stated that he "needed a break" and as Mr McFadzean did not oppose this request, the Tribunal stood the matter in the list until 2pm.
15. When the hearing resumed at 2pm, the applicant stated that he had no further questions for Ms Zammit "at this stage", but would seek leave to recall her at a later date "if required".
16. On that basis, the Tribunal released Ms Zammit from cross-examination and excused her from further attendance at the hearing. As a matter of record, the applicant did not subsequently seek leave to recall Ms Zammit.

Evidence of Ms Albazouni

1. Ms Albazouni provided her initial statement on 24 December 2021 (Ex 1). She provided a chronology from the date of receipt of the GIPA application to the Council's compliance with orders made by Montgomery SM on 7 December 2021 and stated that the Schedule of Documents to the Council's reconsideration decision was Annexure "A" to her Statement. Ms Albazouni then referred to and discussed the GIPA requests, as follows:

Item 1 1. Document number 1 in the Schedule of Documents is the only record that responds to this request and it comprises 3 pages, with redactions on pages 1 and 2. The page 1 redactions references material that formed part of notifications to the NSW Ombudsman. 2. Access to those notifications was contested in separate GIPA proceedings in the Tribunal (2021/69505), in which the Council argued that the whole of the notifications were excluded information for which there was a conclusive presumption against production. The Council also argued that disclosure of the notifications may be n offence under s 159 of the Children's Guardian Act 2019. 3. The Tribunal issued judgment on those proceedings on 23 December 2021, but she was advised by the Council's Solicitor that there were content issues associated with it that were to be pursued with the Registrar. 4. She is aware that the test under s 13 of the GIPA Act requires balancing the public interest against disclosure against those in favour of disclosure. She stated that s 12 of the GIPA Act provides that there is a general public interest in favour of disclosing government information in addition to factors personal to the applicant "including the potential for the release of information to satisfy unresolved matters he has in mind regarding investigations carried out and findings made in the context of the conduct when formerly employed by the Council." 5. She expressed the view that the following public interest considerations warrant non-disclosure of the redacted material: 1. It reveals the identities of informants (s 14 Table cl 2(a)) including the individuals' personal information (s 14 Table cl 3(a)) and disclosure will contravene the information protection principle under s 18 of the Privacy and Personal Information Protection Act 1998 (PIPPA) (s 14 Table cl 3(b)) by disclosing the personal information. 2. It reveals the person's identity and may expose those persons to a risk of harm or serious harassment or serious intimidation (s 14 Table cl 2(f). She stated, relevantly: …I do not say FNN will harm, harass or intimidate the persons mentioned in the email, but I am conscious of a possibility based upon … persistence and the importance he places on matters relating to … former employment and conduct at Cumberland Council, my awareness that … accessed the offices of an investigator engaged by Council without their permission (see document attached and marked "B" (page 14) and my own experience in dealings with … for GIPA applications and appeals whereby I find … intimidating."

Item 2 1. Ms Albazouni stated that documents numbered 2 and 3 respond to this request. Document number 2 is a file note of approximately half a page. It contains redactions which were made under s 74 of the GIPA Act and stated that the redacted information is not relevant to the GIPA request (a written record of Ms Zammit's communications with Ms Saunders regarding him). 2. Document number 3 is approximately two and a half pages long and redactions have been made under s 74 of the GIPA Act. The event that led to its creation was receipt of a letter from FACS dated 18 April 2017 in relation to a Risk of Significant Harm report about the applicant. Access to this document was contested in separate NCAT proceedings (2021/69505). The circumstances relevant to that letter in those other proceedings include: 1. The Council consulted with the Department of Communities and Justice concerning its possible release. 2. On 9 July 2021, the Department of Communities and Justice objected to the release of the whole of the letter on the basis of a conclusive presumption under cl 10 of Sch 1 of the GIPA Act against disclosure of information contained in a report to which s 29 of the Children and Young Persons (Care and Protection) Act 1998 applies. 3. On 6 August 2021, the Department of Communities and Justice tempered its position by agreeing to the release of a redacted version of the letter. However, it maintained its previous position regarding the redacted material. 4. The Council filed, but did not serve, a copy of the letter inclusive of the Department's redactions and informed the Tribunal that it did not oppose the release of the redacted document. 5. She expressed the opinion that s 74 of the GIPA Act provides a complete basis for releasing the redacted material. However, if the Tribunal did not accept that view, the following reasons justify non-disclosure of the redacted material: 1. It summarises and refers to material with the FACS' letter dated 18 April 2017, over which there is a conclusive presumption against disclosure under cl 10 of Sch 1 of the GIPA Act; 2. Disclosure of material that summarises information over which there is a conclusive presumption could thwart the future disclosure of confidential information. If other agencies develop a belief that the Council will disclose confidential material, they are less likely in the future to provide confidential information to it. In turn, that could prejudice the supply to Council of confidential information and impact on the Council's exercise of its functions (s 14 Table cll 1(d) and 1(f)); 3. The redactions identify a person who passed on the FACS letter. She stated, relevantly: …The applicant in these proceedings has relentlessly pursued information relating to the FACS' letter, considers he has been targeted by the Council and I am aware he has been a regular GIPA applicant, privacy review applicant and applicant to the Tribunal. I can't speak for what motivates FNN or … character generally but … very high level of interest and persistence creates some level of doubt in my mind as to actions he could possibly take (I don't say he will take or that it's even likely) against a person who passed on the information and had some involvement in what he seems to believe is persecution. On that basis, I say there is a public interest against disclosure and it could reasonably be expected to (not necessarily will) expose a person to a risk of harm of serious harassment or serious intimidation (s 14 Table cl 3(f)).

Item 3a 1. The Council has no records to produce in response to this item. However, she made the following searches and enquiries: 1. She searched the Council's records management system by entering the applicant's name and looking for emails and file notes within the date range (1 April 2017 to 30 December 2017). She opened each document to see if it responded to this item, but none did; 2. She contacted Ms Zammit by phone and asked if she had any documents that responded to this item. She did not; and 3. On 28 September 2021, as a means of double-checking while the Council prepared a Schedule of Documents under the orders made by the Tribunal on 27 September 2021, she emailed Ms Zammit and repeated her previous request. However, Ms Zammit replied that she could not recall who she sought advice from. She stated, relevantly: …I am unsurprised by the lack of a file note of a phone conversation because in my experience, of the thousands of phone calls that Council officers make each year, very few are recorded in a file note.

Item 6 1. Documents numbered 8 to 21 (inclusive) in the Schedule of Documents respond to this item and unredacted copies of documents numbered 8, 9, 10, 11, 14, 15, 18, 19, 20 and 21 have already been released to the applicant. 2. Documents numbered 12, 13, 16 and 17 are all publicly accessible documents and the Schedule of Documents directs the applicant to how he can access these documents on the Council's website.

1. Ms Albazouni provided a second statement on 17 February 2022 (Ex 2), which responded to the applicant's submissions and evidence dated 28 February 2022, as follows: 1. While the applicant asserted that she did not prepare Ex 1, she denied this and stated that this is her statement and hers alone and that she stands by it. 2. Regarding the applicant's complaints regarding searches conducted in relation to item 2, she stated that it would be very unusual for communications of a staff member to be contained in a file related to a Code of Conduct review and that explains why my searches did not extend to reviewing this potential source. If the applicant had drawn her attention to this potential source and/or accepted the Council's invitation to discuss the GIPA application, it may be that other documents would have been discovered sooner. She said that she forwarded details of the applicant's submissions to the Council's Internal Ombudsman and was provided with three additional documents that fall within the scope of this item. 3. Accordingly, she amended the Schedule of Documents provided on 22 October 2021, to include the following entries: Document Category on application Access granted Reason No Description Date 22 Code of Conduct Complaint Final Report 12/4/19 2 No Ss 58(1(c) & 59(1)(d) of the GIPA Act. The applicant has already been provided with access to this information and the agency has no reason to believe that it is no longer in their possession. 23 Email from Ms Zammit to Suellen Bullock (then the Internal Ombudsman) re: Code of Conduct complaint 8/11/18 2 Yes, with redactions Ss 58(1)(a) & 74 of the GIPA Act. Delete information from a copy of a record to which access is to be provided because the deleted information is not relevant to the information applied for. S 74 of the GIPA Act 24 File note of Suellen Bullock of a conversation with Ms Saunders 15/11/18 2 No An agency may delete information that is not relevant to the information applied for and all but lines 9 and 10 are not relevant. However, lines 9 and 10 should not be released due to s 58(1)(d) as there is an overriding public interest against disclosure under s 14 Table cll 1(d), 1(e), 1(g) & 1(h) of the GIPA Act.

Document number 23 1. Section 74 of the GIPA Act provides "a complete basis for not releasing the redacted material." However, for the sake of completeness, and if the Tribunal disagrees with this argument, the redacted material should not be released because it would undermine the supply of information to Code of Conduct investigations noting that the Council's processes involve information being provided in confidence. This is because if people who supply information in confidence thought that information could later be accessed, they may be less inclined to provide full and honest information which in turn may undermine the investigation as a whole. 2. However, there are no public interest considerations against releasing the unredacted information in the document.

Document number 24 1. No information should be released because all but lines 9 and 10 are irrelevant to the GIPA request and those lines should not be released for the same reasons as those relied upon for document number 23. 2. While the applicant complains that the Council did not check with Ms Saunders as to what records she may have, she is not an employee of the Council and any records that she may hold are not records of the Council that can be produced in response to the current GIPA request.

Item 5

1. Ms Albazouni noted the reference to (the applicant's first name) in the SAM meeting minutes included at page 19 of the applicant's submissions. She stated that she had previously reviewed all SAM and CCCS Leadership minutes by way of a "control F" electronic search for the applicant's name and informed the Council's General Counsel that there were no references in the minutes listed at documents numbered 6 and 7 of the Schedule "found at pages 9 to 12 of my 24 December 2021 statement." However, she acknowledges that this reference is a reference to the applicant and she has re-examined all minutes at documents numbered 6 and 7 and conducted searches for specified alternate spellings of the applicant's first name and his full name. The only entry found was that dated 15 February 2017 and on the assumption that this does refer to the applicant, she apologised for the error.

Item 6

1. At pages 7 and 8 of the Submissions, the applicant raised a suspicion that there are other documents that respond to this item beyond documents numbered 8 to 21 in the Schedule. She forwarded the applicant's concern to Children's Services staff and received two further documents that fall within this item. Therefore, she amended the Schedule of Documents as follows: Document Category on application Access granted Reason No Description Date 25 Notes of Cathie Zammit for Councillor briefing 8/08/18 6 Yes 26 Councillor briefing notes 8/08/18 6 Yes, with redactions Ss 58(1)(a) & 74 of the GIPA Act. Delete information from a copy of a record to which access is to be provided because the deleted information is not relevant to the information applied for.

Medical evidence

1. Ms Albazouni stated that she has considered the applicant's commentary at pages 10 and 11 concerning medical evidence in the context of s 55 of the GIPA Act which allows factors particular to an applicant to be taken into account in deciding whether there is an overriding public interest against disclosure. She stated that she does not have medical expertise and finds it difficult to draw any conclusion on whether the Council releasing information would help or hurt any medical condition the applicant has. However, overall, she considered that this was a neutral factor or that minor weight should be given to it and that it would not outweigh, resolve or overcome the reasons that she gave on 24 December 2921 for not releasing unredacted versions of documents 1, 2, 3, 23, 24 and 26.

The O'Connell letter

1. Ms Albazouni noted that the applicant questions the relevance of this letter and links the letter to her position that she finds him intimidating. She stated: …To clarify, I don't find the applicant intimidating just because of the letter. I find him intimidating for various reasons including in conversations with him, he will cut me off before I'm allowed to explain my position and will argue against what I am trying to say, in emails … manner of writing is sometimes abrupt and even rude and he has raised competency concerns about me with my supervisor. I don't think accessing the offices of O'Connell without their permission is normal behaviour and to me it suggests that the applicant is someone that will go to unusual lengths. When I consider that together with my personal view that he is intimidating and the persistence he has by lodging multiple applications and appeals for accessing information often dealing (with) the same material, then together I start to wonder if he might do anything if he knew the identity of persons involved in conduct issues raised about him that seem to have caused him a lot of concern.
2. At the hearing, Ms Albazouni was called and sworn. She identified Ex 1 and Ex 2 as her evidence and confirmed it.
3. Before asking Ms Albazouni any questions in cross-examination, the applicant stated that he did not wish to appear intimidating to the witness and suggested that this could be avoided if the Tribunal were to ask her questions in cross-examination.
4. The Tribunal refused the applicant's request that it should conduct cross-examination of the witness and stated that while it has inquisitorial powers, these do not extend to conducting a party's case for them.
5. In cross-examination, the applicant asked Ms Albazouni if she had received any training in handling GIPA applications, and she replied 'Yes.' He asked what training she had completed, and she replied to the effect that she 'completed a GIPA Training Course run by the Crown Solicitor's Office and that this was before she made the decision dated 29 June 2021.'
6. The applicant asked Ms Albazouni whether Ms Zammit, Mr McFadzean, the General Manager of the Council or anyone else had instructed her to withhold information from him? and she replied 'No.'
7. The applicant referred Ms Albazouni to her email dated 28 May 2021, and asked whether she stood by that decision. She replied 'Yes.' He then put to her: "I was giving you suggestions and you did not contact me." The witness did not answer, and the Tribunal asked the applicant if this was a question or a statement?
8. The applicant then asked the witness: "Do you see that a normal rational and logical person would interpret it as insinuating that you wouldn't deal with my application". She replied 'No.'
9. The applicant then sought to ask Ms Albazouni questions regarding the letter dated 29 June 2021.
10. However, Mr McFadzean objected to this on the previous grounds and the applicant replied that he wanted "to explore the entire GIPA process" and that the "entire opening statement and line of questioning was about how incompetent the Council is." He complained, "It appears to me that you will not let me do that."
11. The Tribunal upheld Mr McFadzean's objection and repeated its previous ruling regarding the scope of the current review. It informed the applicant that he could cross-examine the witness regarding matters that are relevant to the original GIPA application and the Council's reconsideration decision dated 22 October 2021 and that it would greatly assist the Tribunal to determine the matter if he focussed on those matters.
12. The applicant then stated that he "needed a break." Mr McFadzean did not object to this and I stood the matter in the list for a period of 5 minutes to enable the applicant to compose himself.
13. However, the applicant did not re-join the hearing. Instead, he telephoned the Registry and stated that he would not be re-joining the hearing as he was "having a medical episode." The Registry conveyed that message to me and I informed Mr McFadzean, on the record, that for want of abundant caution I would adjourn the matter part-heard until 21 April 2022, on terms that no further adjournment applications by the applicant would be considered without supporting medical evidence.
14. As the hearing was not further proceeding, I released Ms Albazouni from cross-examination and excused her from further participation in the hearing. I confirm that the applicant did not seek to recall Ms Albazouni at any later time.

Application to dispense with a further oral hearing

1. On 1 April 2022, the applicant emailed the Tribunal and the Council advising that he preferred "at this stage" for this matter to be determined on the papers. He said that he did not have the capacity to resume this part-heard hearing without legal representation. He attached the "closing statement" and said that he intended to rely on "all my written submissions before the Tribunal in this matter."
2. On 13 April 2022, Mr McFadzean emailed the Tribunal and the applicant, consenting to the matter being determined "on the papers", provided that the Council had an opportunity to provide further submissions that responded to the applicant's "closing statement" and any other matters arising from the part-heard hearing.
3. On 20 April 2022, I made orders vacating the hearing on 22 April 2022 and I dispensed with the need for an oral hearing under s 50(2) of the Civil and Administrative Decisions Act 2013. I ordered: (1) the Council to file its written submissions by COB on 4 May 2022; (2) the applicant to file any submissions in reply by COB on 11 May 2022; and (3) marked the matter as reserved from and after 12 May 2022.

Applicant's Submissions

1. The applicant filed multiple documents in the nature of written submissions which are dated 22 October 2021, a "Position paper" dated 6 December 2021, "Submissions and Evidence" dated 28 January 2022, and "opening" and "closing" statements filed on 1 April 2022. I have summarised these as follows.

22 October 2021

1. The applicant pressed for access to unredacted copies of documents numbered 1, 2, 3, 4 and 5, as well as information found within documents numbered 6 and 7 that "identifies/relates to me." He disputed that documents numbered 2 and 3 represent "all records regarding communications between Ms Zammit and Ms Saunders," which is what he sought, and he is aware that they had a conversation about him in February 2017, but no records of that conversation have been identified.
2. The applicant pressed for access to records relating to GIPA item no. 6, which were prepared on or around February 2017, and asserted that if a "new child protection policy" was announced to the leadership team on 14 February 2017, "one would expect to find precipitating emails / records / correspondence / file notes / memos etc. regarding these changes that were prepared on or prior to 14 February 2017", and records about this matter between February 2017 and September 2017. However, the earliest record identified is dated October 2017. He stated that he asked the Council to consult with Ms Zammit / Mr Taylor / others at that meeting, to request: (a) information that describes what concerns/issues led to this "New Child Protection Policy" being raised in this meeting on 14 February 2017; and (b) Why there is no record of this "new" policy until October 2017, when the new policy was announced on 14 February 2017.
3. The applicant alleged that the Council has not responded to GIPA request 3(a), being records that Ms Zammit "sought advice" about as she claimed in her statement.
4. Otherwise, the applicant repeated complaints that: 1. The Council had failed to not provide him with advice and assistance, as required by ss 16 and 53(3) of the GIPA Act, and that it told him that it was not under any obligation to consult with him. 2. The Council made a decision to "refuse to deal" as their first and only response to documents numbers 6 and 7, without any consultation or practical advice. 3. The Council imposed unnecessary redactions on documents without any legislative basis and the proposed redactions on information within meeting minutes may contain the very information that he was seeking. 4. It was unclear to him what searches were carried out, by whom, and whether they were adequate. 5. The council Improperly quoted, and intended to charge him for the first 20 hours of processing time in a request for "personal information" - "see [4] "notes" in the order."
5. I note that these submissions pre-date the applicant's cross-examination of Ms Zammit and Ms Albazouni on 8 March 2022 and that some of the matters that he raised were answered at that time.

6 December 2021 - "Applicant's Position Paper"

1. The applicant alleged that the Council continued to withhold documents that it agreed to release to him on 22 October 2021 and he sought an order that it should release those documents, so he could determine whether a review under s.80(d) is warranted or necessary. He also stated that, "time permitting," he wanted a response to the following matters, or alternatively a case conference, to discuss how to proceed after he had the opportunity to observe the withheld documents. He referred to the Schedule in the GIPA application dated 24 May 2021 and stated: 1. Email thread The Council has not established any logical rationale for its redactions, so I am unable to determine if Council's reasons for redactions are4 valid. Please instruct Council to provide written reasons why it has not consented to the release of the entirety of the email thread. 1. Record of Ms Zammit's communications with Ms Saunders Council have not identified any records of the conversation held in February 2017. Please instruct Council to state in writing what searches were conducted. 1. (a) Records of the communication that Ms Zammit refers to when she stated "I sought advice". Council has not responded to this request in writing. Please instruct Council to respond to this GIPA request in writing, describing what searches were done. 1. 3(b) and 4 are removed from the GIPA application. 2. Meeting minutes referring to me. Council have told me there is nothing to produce. I do not believe this. Council spent 2017-2019 investigating me, so there should be a record regarding me in the meeting minutes. If Council can assure me, in writing, that there is definitely no mention of me in those meeting minutes, I will withdraw request 5. If not, I would like the Council's decision that there is nothing to produce, reviewed under s.80(e). 1. Records containing information on why there was a "New Child Protection Policy" in the meeting minutes of 14 Feb 2017. Council has provided several documents in response, however, they are dated October 2017 - July 2021. I do not believe these are all of the records held by Council in response to this request. There must be some record with information explaining why an announcement and discussion of a "New Child Protection Policy": took place in the meeting minutes on 14 February 2017. There is no logical reason why a "New Child Protection Policy" would be announced and discussed in the meeting minutes on 14 February 2017 and the earliest record Council have purportedly found was dated October 2017. Council have4 not explained what their searches for this information was. Therefore, I would like the Council's decision reviewed under s.80(e).
2. I note that these submissions pre-date the applicant's cross-examination of Ms Zammit and Ms Albazouni on 8 March 2022 and that some of the matters that he raised were answered at that time.

28 January 2022 - Applicant's submissions and evidence

1. The Applicant stated that there is "a disagreement between the parties in who prepared the Albazouni statement." He said that he pressed for unredacted versions of documents numbered 1, 2 and 3 and for information found in documents numbered 6 and 7 that "identifies/relates to me." He did not press documents numbered 4 and 5 and he did not press GIPA requests numbered 3b and 4. He alleged that the Council's response to my GIPA requests numbered 2, 3a, 5 and 6 are "deficient" and its response to the "two GIPA amendments is non-existent."
2. The applicant referred to Ex 1 and asserted alleged that this was not prepared or written by Ms Albazouni and that it was prepared and written by Mr McFadzean. He stated: If the thought processes/briefs/assertions contained within the Albazouni Statement were prepared/coached/given by Mr McFadzean, I believe it is deceptive for Council to submit this in evidence, under the pretence that it is Ms Albazouni's evidence.
3. The applicant said that on 27 January 2022, he notified Mr McFadzean that he required Ms Albazouni and himself to be available for cross-examination, but Mr McFadzean denied preparing Ex 1 and said that he could not be required for cross-examination.
4. The applicant also complained about Ms Albazouni's statement that she found him intimidating and said that for this reason, he did not want to cross-examine her for the following reasons: Firstly, a cross-examination (from me) would only exacerbate Ms Albazouni's sensitivities towards me. After Ms Albazouni has 'come forward' and disclosed that she finds me intimidating, the Tribunal could not "put her in the ring" with me without risking exposing her sensitivities to further harm / intimidation / harassment. Secondly, having now been accused by Ms Albazouni of being intimidating, I believe it is prudent to protect myself from any further accusations of intimidation by Ms Albazouni. The Tribunal could not expect me to put myself at risk for further accusations of intimidation, by forcing me to cross-examine Ms Albazouni. In these circumstances, perhaps the proper course of action is for the Tribunal member to ask Ms Albazouni my cross-examination questions.
5. In relation to document number 1, the applicant stated that while Ms Albazouni said that unredacted disclosure would 'reveal the identities of informants' and would 'contravene' s 18 of the PIPP Act, he disputed this because: 1. the current proceedings are subject to the GIPA Act, not the PPIP Act, and s 5 of the GIPA Act provides that nothing in the PPIP Act 'affects the operation', or lessens any of the Council's obligations under the GIPA Act; 2. it has also not been proved that the redacted information actually reveals anyone's identity and given the Council's 'long-held position on withholding information' from him 'without proper cause', he questioned the sincerity and validity of this argument. 3. Ms Albazouni also said there is a 'possibility', and not a likelihood or probability, that he might harm, harass, intimidate the persons mentioned in the email. However, while anything is 'possible', this outcome does not warrant the redactions to the document. She also contradicted herself by stating - "it could be reasonably expected" that unredacted documents would expose a person to a risk of harm etc. He considered this statement as being "disingenuous - a mischievous slur to defend Council's long held position on withholding information from me." 4. He has "never harmed, harassed or intimidated any member of Cumberland Council" and that the Council's accusations "are wrongfully attributed to me." He said that other than the redacted O'Connell letter, any and all evidence of harm, harassment and intimidation that has manifest itself over the last five years has been directed at him by the Council.
6. In relation to GIPA Request number 2, the applicant noted that the Council identified only 2 documents (numbered 2 and 3) and he pressed for unredacted copies and stated: 1. Ex 1 claims that the redactions are irrelevant to communications between Ms Zammit and the Principal of (name provided) Primary School (Ms Saunders). He disputed this because the redactions include deletions mid-sentence and he questioned how the mid-sentence contents are irrelevant to the contents at the beginning and end of that same sentence. Further, the Council had not proved that the deleted paragraphs are irrelevant. 2. Ex 1 also claims that the event that led to the creation of document 3 "was the forwarding of a letter authored by FACS". He asserted that the Council used this argument to cloak document 3 with the same complications/restrictions/issues etc that applied to the FACS' letter in other proceedings. This is "reaching" and the FACS' letter and document 3 are two standalone documents and should be treated as such. 3. The Council's searches are lacking, and he stated: 1. On 7 December 2021, Mr McFadzean said in an email regarding GIPA request 2, that the Council searched its electronic files as well as Ms Zammit's emails, and those searches did not disclose any document concerning communications between Ms Zammit and Ms Saunders from February 2017. However, if the electronic searches "revealed nothing," where were documents numbered 2 and 3 located. 2. These are not the Council's only written records of the communications between Ms Zammit and Ms Saunders regarding him, as in In 2018-19, Council's Internal Ombudsman's Shared Service (IOSS) - Ms Bullock - conducted a Code of Conduct investigation regarding Ms Zammit. This involved Ms Bullock interviewing both Ms Zammit and Ms Saunders, regarding their communications about him. On 6 April 2021, he provided a copy of an excerpt of that investigation to the Council, which is responsive to his GIPA request. 3. A prudent person would assume that Ms Bullock, in her role as investigating officer, would have taken notes of her interviews with Ms Zammit and Ms Saunders, that referenced their communications about him. These notes (or similar) have not been identified or considered by the Council and he believes that the Council should have asked Ms Bullock, Ms Zammit and Ms Saunders if any of them are aware of any written records of the communications between Ms Zammit and Ms Saunders. This has not been done.
7. In relation to GIPA request 3(a), the applicant stated that in Ex 1, Ms Albazouni said that Council officers take "very few" records of their phone conversations. He complained that this does not instil public confidence in the Council and Ms Zammit had not given evidence that she "sought advice" "over the phone."
8. In relation to GIPA request 5, the applicant stated that the Schedule of Documents listed the CCCs Leadership minutes as "Document 6" and the SAM Meeting Minutes as "Document 7". He stated: 1. On 11 November 2021, Mr McFadzean stated in writing that the Council had undertaken a search of those documents and confirmed that none of the minutes identified him or related to him and there were no further records to produce. 2. He repeated the comments in the "Position Paper" and stated that during the case conference on 7 December 2021, Mr McFadzean stated: I am proposing that we do this through notation on the court orders - and I'm quite happy for it to be on the record as well - that Council [has] reviewed documents 6 and 7 in its schedule, which is 84 sets of meeting minutes - and none of those minutes identify or relate to FNN, and on that basis, the applicant is willing to accept that - that he no longer presses point 5 of the request for information. [Timecode of audio recording, 3 min 30 sec]. However, he later discovered that the SAM Meeting Minutes of 15 February 2017 did refer to him and mentioned him by name. He stated: For whatever reason - intentional or not - Council does have (at least one) document responsive to my GIPA request, whilst claiming none existed. Mr McFadzean has misled me and the Tribunal. Therefore, I request NCAT to issue an order to instruct Mr McFadzean to cease being misleading in the "on the record" submissions, and instruct Council to conduct a proper search on items in the meeting minutes that refer to me.
9. In relation to GIPA request 6, the applicant stated that the Council (eventually) provided documents (or referred me to their location), being documents numbered 8 to 21. He repeated the comments in the "Position Paper (point 6)."
10. In relation to document 8, the applicant stated that this appeared to be 6 slides of a PowerPoint presentation by Ms Zammit on the CPP to the Councillors. However, the Council did not identify whether there were any accompanying talking point notes or any other record of the elaboration of the points listed in the PowerPoint.
11. In relation to document 9, the applicant stated that the Child Protection Committee 2017-2018 Action Plan itself (in s.3.2) states that "the Chairperson will update the policy", but there is no indication that Council asked the Chairperson of 2017 if he/she was aware of: 1. Any records that explain why a new Child Protection Policy was announced and discussed in the CCCS meeting minutes on 14 February 2017; and 2. Any records that relate to this change that pre-date October 2017. 3. Further, the Council has not identified or considered whether the changes to the CPP was discussed during the Child Protection Committee (CPC) Meetings and there may be CPC meeting minutes that were responsive to the GIPA request i.e. "presumably the CPC meeting minutes of 8 March 2017, 6 June 2017 and 6 September 2017 (as those dates are mentioned in section 1.2 of document 9)."
12. The applicant again referred to the additional requests in the letter dated 21 June 2021, but in view of my previous ruling, I have not set out the submissions on these matters.
13. Otherwise, the applicant repeated the complaint that after the matter was remitted to the Council for reconsideration, he asked whether Mr McFadzean would be consulting with him as required by ss. 16 and s 53(3) of the GIPA Act. However, he replied that that he was not obliged to consult with him and did not do so before he submitted the further Schedule of Documents on 22 October 2021.
14. The applicant stated that on 22 October 2021, he "re-submitted" the further requests "re-worded so they were not in question form" as additional requests "7 and 8"."
15. The Applicant asserted that the Council attempted to rationalise the redactions in the documents by attributing a "very high level of interest and persistence" to him. He stated that the "persistence" and "interest" in gaining information is not a valid reason to withhold it, but to disclose it and any "persistence" that he has exhibited over the last five years towards the Council, has been a measured, balanced and exceedingly patient response, to Council's persistence to withhold this information in the first place. He stated that the Council's actual / perceived / purported concern that he may harass or intimidate anyone, in response to getting answers to long-held questions, is counter-intuitive. He also stated that the Council's staff "are supposed to be public servants - accountable to members of the public. Yet it withheld information from me at extraordinary costs" and that the "Council's persistent refusal to act transparently to an individual member of the public for five years should raise red flags."
16. The applicant filed two medical reports from his treating GP, dated 21 April 2021 and 27 October 2021, respectively, and argued that this is evidence that the Council's actions "have detrimentally impacted my livelihood, relationships and mental health" and that this "shows that the harm/harassment/intimidation has been directed at me, not from me."
17. I note that in her report dated 21 April 2021, Dr McIntyre stated that she had treated the applicant since 2018, when he presented with severe chronic depression due to allegations raised against him at the Council between 2016 and 2019. She stated, relevantly: … (The applicant) believes the agency poorly managed the various investigations against him, and concerns about the procedural unfairness of the investigations, lack of resolution of events, and unjust outcomes continues to consume (the applicant. As allegations about (the applicant) have snowballed years after they left work, (the applicant) remains unsure to whom Cumberland Council has shared confidential information regarding him, the context and severity of allegations regarding him, and the extent of which rumours about them have evolved and impacted their reputation. In October 2016, Cumberland Council was notified by a witness that (the applicant's) conduct was alleged to be "inappropriate" but it was not until August 2020 when (their) supervisor finally revealed what the witnesses actually reported which was that his conduct was "awkward" rather than "inappropriate". To (the applicant's) knowledge there is no actual written incident report documented by the supervisor. Following a lack of procedural transparency by Cumberland Council's previous interactions with him, (the applicant) suspects that Cumberland Council is intentionally withholding information from him to protect the agency from blame. This gaslighting is consuming (their) thoughts and (they are) concerned regarding Cumberland Council's true intentions and rationale for their various investigations and alterations to their own findings that were made years after (they) left their employment. Without any evidence or rationale provided to (the applicant), Cumberland Council's allegations against (them) have tripled in number and became more serious in nature and context with each subsequent investigation. (The applicant) also has concerns that Cumberland Council has conducted investigations outside of its mandate and authority, as (they have) not worked there since 2016, Council's General Manager determined that several allegations made against (them) in 2018-19 were outside of its jurisdiction, and the NSW Ombudsman determined that Cumberland Council didn't properly investigate the matter. (The applicant) has considerable anxiety as to how Cumberland Council has shared, used and disclosed (their) personal information, and Cumberland Council's refusal to provide (them) with any factual information about their handling of (their) information compounds (their) fears that (their) information was misused by Council. Additionally, (the applicant) believes Council is unwilling to properly investigate the complaints citing that the NSW Ombudsman advised (them) that Cumberland Council did not conduct any of their previous investigations properly. This process has had significant implications on (the applicant's) attempts to return to work over the last few years. Whilst struggling with chronic major depression, (the applicant's) best attempts to communicate openly with Cumberland Council have been unfruitful. These issues remain unresolved for (them) as they feel they are blacklisted and still treated with prejudice by the agency. The traumatic experiences he has been subjected to over the years have severely impacted (the applicant's) mental health conditions. Despite supportive counselling treatment, his injury remains in the forefront of his mind. A transparent and just resolution to this matter would assist (the applicant's) mental health condition to improve and provide scope for him to move on with (their) life…
18. In her report dated 27 October 2021, the GP stated, relevantly: (The applicant) has reported symptoms of anxiety stemming from (their) former employer's inappropriate use of personal information as a personal attack against (their) reputation. This has had tangible psychological impacts on (their) employment, livelihood and self-confidence. In May 2021, (the applicant) received an email from Cumberland Council indicating that a staff member of Council disclosed over 500 pages of confidential documents containing sensitive allegations and medical opinions about (them) to three people. This was done without (their) knowledge or consent. Two of the recipients of that information had previously been investigated for bullying and harassing (them), including (their) former supervisor. This event has escalated (the applicant's) anxiety about the unauthorised access that his former supervisor has to very personal details of (their) life. (They) feel that history will repeat itself and (their) personal information will be used against (them) at any time, without warning, (they) believe that this is a likely outcome as this was the trigger for (their) previous exacerbation. There are now additional psychological barriers for (the applicant) to overcome. (They) feel they have no control in what (their) former supervisor will do with this information. (They have) no trust or confidence that the Council will, or could, take any practical steps to prevent further misuse of this personal information.
19. The applicant also referred to the redacted "O'Connell Workplace Relations Letter" and Ms Albazouni's statement, which "claimed or insinuated" that this impacted her decision to redact information. The applicant stated, relevantly: This letter is reaching, for the following reasons: 1. The letter was not written by, or addressed to anyone at Cumberland Council. It's relevance to these proceedings is unclear - as is how Ms Albazouni became aware/into possession of it. 2. The letter is dated 7 September 2018, yet 24 December 2021 is the first time I have seen a written statement from Council resembling words to the effect of "I find him intimidating". A prudent person would question why it took Council over three years after the letter was written, to help justify its (newly formed/disclosed) position that "I find him intimidating". 3. The letter is heavily redacted, potentially removing important contextual information that speaks to its accuracy, veracity, intent, rationale etc. 4. The redacted/unredacted content of this letter has not been scrutinised by anyone, and should be given weight accordingly.
20. I note that these submissions pre-date the applicant's cross-examination of Ms Zammit and Ms Albazouni on 8 March 2022 and that some of the matters that he raised were answered at that time.

1 April 2022

1. In these submissions, the applicant referred to the hearing on 8 March 2022 and asserted that he was "overwhelmed by matters which I genuinely perceived to be procedurally unfair, and the belief that I was constantly being misunderstood in those proceedings, I was unable to continue presenting my case in those conditions and requested a break. I then called the Registry to inform them that I was having difficulty continuing in the hearing." He complained that the Tribunal "was hesitant to allow me to provide my opening statement in the hearing, and I did not get the sense that I was listened to. For completeness, I provide a written copy of it, so it can be considered. He also provided "this submission" as the closing statement "in the hope that I will get a fair go."
2. For reasons of procedural fairness, I have set out the applicant's opening and closing statements below: OPENING STATEMENT Ms Albazouni has handled at lease five GIPA applications regarding me. None of them have been appropriately handled. I have never been provided with any reasonable assistance to make my applications valid. The determinations are disjointed, contain unfinished and sometimes conflicting arguments - making it uncertain to multiple reviewers at the IPC on what Council's actual position and determination and rationale actually is. Council's position in this GIPA, and other GIPAs keep changing with the wind. The only outcome that is consistent is for Council to withhold information from me at any cost. Council will withhold documents from me unless it is obligated to disclose them. There is no good will in Council's release of its information regarding me, unless it is the disclosure of my information to people who I don't want to have it, and I have not consented to have it. Council has argued to the Tribunal that it should be allowed to disclose personal, sensitive information about me with "PRIVATE AND CONFIDENTIAL" written on it to whomever it pleases, but would also argue tooth and nail to withhold documentation from me. this is evident in the multiple GIPA and PPIP proceedings before the Tribunal. Council's withholding of information from me is not just limited to GIPA requests, but is an obvious systemic flaw of Council in matters relating to procedural fairness in investigative practices, communications and intentions of Council systemically. Council has persistently ignored advice from the NSW Ombudsman to be transparent with documents relating to investigations relating to me. Council has withheld documents from a summons, stating that no documents exist, but when pushed, disclosed that there were in fact eight documents responsive to the summons. Council has ignored recommendations from the IPC to provide me with advice and assistance in my GIPA applications. On 28 May 2021, almost 10 months ago, Ms Albazouni stated that my GIPA would be a substantial diversion of the Agency's resources. Since then, the IPC reviewed her determination, Council has engaged Mr McFadzean to defend Council's position in NCAT. Council staff were involved in a fruitless mediation, submissions from both parties have been made, Ms Albazouni has purportedly submitted two statements of evidence, and now she alleges that I intimidate her. So, Council would have me believe that if my GIPA was properly dealt with in the first instance, it would have caused a substantial diversion of resources, when it ended up being a "Control F - search" for my name. Ironically, Council have still chosen to go through almost 10 months of excuses of why it should not have to respond to my GIPA before the Tribunal, rather than provide reasonable assistance to help me submit a valid GIPA. It is vexatious. Council's persistent attitude to withhold information from me is at odds with the objectives of the GIPA Act. Cumberland Council has not been transparent or open in its release of information to me, nor has it offered any reasonable advice or assistance under s.16 or 52 of the GIPA Act to make my application valid. I have no confidence in Council's capacity to respond appropriately, or transparently to any GIPA application, as I believe it is more concerned in protecting itself, than serving members of the public. I request that the Tribunal considers appointing a member of the IPC or an independent person who is capable and competent enough to conduct an appropriate, fair and efficient determination on my GIPA Applications. CLOSING STATEMENT Council's various responses to my GIPA request are confusing and disingenuous. Council's position on my GIPA changed multiple times in an astonishing display of theatrical attempts to withhold information from me by any means necessary. Council's flip-flopping on my GIPA show it is not following the objectives of the GIPA Act. 1. On 28 May, Ms Albazouni stated that my "request will require a substantial diversion of Council resources". And in the next paragraph, she stated that an application is not entitled to a refund of the application fee when the agency refuses to deal with the application on the basis that the request will require an unreasonable and substantial diversion of the agency's resources. It is therefore strongly insinuated, that if I left my GIPA as is, Ms Albazouni would refuse to deal with it because it would be an unreasonable diversion of the agency's resources, and I would forfeit my application fee. 2. On the morning of 18 June, Ms Albazouni provided me with a estimated costs for processing my application fee of $643.50 based on 22 hours of processing time. She stated that if I do not pay an advance deposit by 2 July, Council may refuse my application. 3. In the afternoon of 18 June, Ms Albazouni stated "Although you are on jobseeker, it does not appear that you are entitled to a discount". 4. Ms Albazouni stated "You have not requested personal information. 5. On 29 June, Ms Albazouni stated it is not a valid application because "it does not enable information applied for to be identified." 6. She also stated that GIPA is not a device for seeking answers to questions. 7. She then stated I need to "clearly identify the records of Council" I am seeking access to, 8. In her statement of 24 December 2021, Ms Albazouni then argues that Council wants to withhold information from me, because it "references" material that formed part of notifications to the NSW Ombudsman. 9. Council had also argued to withhold access to those notifications in separate GIPA proceedings, stating the information came under the umbrella of protection as they formed part of those notifications, and the whole notifications are "excluded information" for which there is a conclusive presumption against production. 10. Ms Albazouni stated the redacted documents should remain redacted because it reveals the identities of people. 11. Ms Albazouni then states that revealing their identities may expose them to a risk of harm or serious harassment or serious intimidation - presumably from me. 12. Ms Albazouni lists reasons why she finds me intimidating. 13. Redactions are also made under the assertion that they are not relevant for information applied for. 14. Redactions are then further justified by asserting that the disclosure will prejudice the future supply of information to Council. 15. She then stated that some documents have already been served, and other documents are available on the Council's website. 16. Mr McFadzean claimed that adequate searches were done, and there was no material responsive to GIPA item 5. 17. On 17 February 2022, Ms Albazouni admitted - in a very round-about way - that she didn't locate all of the documents responsive to GIPA item 2, essentially blamed me for it, and then found the IOSS had identified an additional 3 documents that fall within the scope of request 2. 18. Ms Albazouni also admits that she did not consult with Ms Saunders about what records she may have that falls under the GIPA application. 19. Ms Albazouni admits that she conducted a "control f electronic search" for items responsive to GIPA item 5, and found that there was an additional document responsive to my GIPA request. She would not have located it if I didn't bring it to her attention. 20. Ms Albazouni also states that my psychological injury should be given little or no weight, and again lists reasons why she thinks I'm intimidating. This is all absolute garbage. I am sick of the lack of transparency. Cumberland Council's gaslighting needs to be held to account.
3. The applicant argued that the "withholding of information attitude of Council" toward him is a pattern of behaviour that he is attempting to bring to the Tribunal's attention and he set out four examples of the Council allegedly withholding information from him in relation to internal and external investigations about him and in six previous GIPA requests. However, as none of these complaints are relevant to current matter, I have not extracted them in this decision. He concluded that the Council's "persistent attitude to withhold information from him is at odds with the objectives of the GIPA Act and it has not been transparent or open in its release of information that it holds that is personal information."
4. The applicant also maintained that the Council had not offered any reasonable advice or assistance under s.16 or 52 of the GIPA Act to make the application valid, and he stated, relevantly: How is anyone supposed to maintain confidence in a government agency that is persistently withholding personal information it holds about a member of the public? I have no confidence in Council's capacity to respond appropriately, or transparently to any GIPA application, as I believe it is more concerned in protecting itself, that serving members of the public. I request that the Tribunal considers appointing a member of the IPC or an independent person who is capable and competent enough to conduct an appropriate, fair and efficient determination on my GIPA Application.

The Council's submissions

1. The Council filed written submissions dated 9 May 2022, which I have summarised below:

Response to the Opening Statement dated 31 March 2022

1. The Council stated that this document is "replete with general grievances concerning the Council's and Ms Albazouni's handling of multiple GIPA applications, accusations of Council improperly releasing personal information, aspersions as to Council's motives and practices for matters including and beyond GIPA applications, accusations that Council ignores (unspecified) advice from the NSW Ombudsman and (unfounded) accusations for the Council's dealing with a summons in separate proceedings." However, none of those matters are relevant to the matter before the Tribunal and they should therefore be given no weight.
2. In the 3rd last paragraph, the applicant complains that Council did not offer him any reasonable advice or assistance to make the applications (NB plural) valid as required by ss.16 or 52 of the GIPA Act. To the extent that a general complaint may be raised in respect of the current matter, it is without foundation.
3. Page 4 of 10 of the Application for Administrative Review filed on 30 June 2021 indicates that the applicant was offered an opportunity to attend an electronic meeting with Ms Albazouni and her Manager to clarify the request for information in an attempt to assist him in lodging a valid application. However, he did not accept that invitation: Ex 2 para 2.
4. In the final paragraph, the applicant asked the Tribunal to consider appointing a member of the IPC or "some other independent person who is capable and competent to conduct an appropriate, fair and efficient determination" of the GIPA applications (plural). However, the Tribunal may only deal with the GIPA application before it and it has jurisdiction to determine that application and there is no reason for it to divest itself of that jurisdiction. The Council disputes that it has power to do so.

Response to the Applicant's Closing Statement

1. The Council argued that this includes 20 numbered paragraphs that provide the applicant's account of the progression of the GIPA application before the Council and the Tribunal and he complains, "This is all absolute garbage". He then complains of an alleged lack of transparency and that the Council is "gaslighting him". Those submissions and inflammatory comments do not assist the Tribunal to determine the current matter.
2. The applicant repeated grievances concerning their understanding of four investigations about their conduct, which were carried out by or on behalf of the Council, but these have nothing to do with the current matter and they should be given no weight.
3. Similarly, the applicant's account of six other GIPA applications in support of general grievances with the Council, have nothing to do with current matter. These are not relevant and should be given no weight.
4. The "summary" of the Closing Statement repeats the applicant's general grievances about the Council and the request for the IPC or "another independent person" to be appointed to determine the GIPA applications. The Council repeated its earlier submissions on this issue.

Council's Closing Submissions

1. The Council referred to Ex 1, Ex 2 and Ex 3, as well as the copies of the unredacted and redacted documents that responded to the GIPA application (MFI1). It stated that: 1. Annexure A to Ex 1 provides a schedule of 21 documents or groups of documents that respond to the GIPA request. That was supplemented by a further 5 documents (numbered 22 to 26 inclusive), which were identified in Ex 3. 2. There is no dispute regarding the following documents: Document Nos. Resolution 4, 5, 6 and 7 Applicant withdrew or no longer pressed requests for information numbered 3b, 4 and 5 - see notes 10(a) and 10(b) from orders dated 7 December 2021. 8, 9, 20, 11, 14, 15, 18, 19, 20 and 21 Documents released in an unredacted form pursuant to order 1 made on 7 December 2021. 12, 13, 16 and 17 Documents are publicly available and the applicant's attention has been drawn to means of access - see note 10(c) from orders made on 7 December 2021.

1. However, there is a dispute regarding disclosure of documents numbered 1, 2, 3, 22, 23, 24, 25 and 26.
2. In relation to document number 1, the Council stated: 1. It does not press the page 1 redaction, which goes to the to the information in the material provided in reportable conduct allegations and findings forms that the Council forwarded to the NSW Ombudsman. Access to those forms was sought under proceedings no. 2021/69505 and judgment was delivered in those proceedings (… v Cumberland Council [2021] NSWCATAD xxx). That matter is the subject of a current appeal by the applicant (proceedings no. 2022/88146) and "a soon to be filed further appeal by the Council." The ultimately unresolved nature of possible access to those forms does not assist the Tribunal greatly in terms of the page 1 redaction. 2. However, it presses the page 2 redactions and on Ex 1, and particularly paras 14 and 15.
3. In relation to document number 2, the Council argued that the redacted material does not go to,and is not relevant to the information applied for. Therefore, s.74 of the GIPA Act enables and justifies the deletion of the redacted material. This document addresses a letter from FACS which, dealt with a significant risk of harm (ROSH) report. The Council does not know who made the ROSH report. Circumstances permitting the release of information, as provided for by s.29(1)(f)(i) and (ii) of the Children and Young Persons (Care and Protection) Act 1998, have not been triggered. Therefore, information from which the identity of the ROSH complainant could be deduced ought not be disclosed and the redacted material includes information which may lead to the identity of the complainant being deduced.
4. In relation to document 3, the Council stated: 1. It presses for redactions on the basis of s.74 of the GIPA Act, as the deleted information is not relevant to the information applied for (a written record of Ms Zammit's communications with Ms Saunders concerning the applicant): para 19 of Ex 1; 2. The document contains background information that is relevant to the redacted material, namely a letter authored by FACS dated 18 April 2017. Access to that FACS letter was contested in GIPA proceedings no. 2021/69505 and the Tribunal ordered that access be declined on the basis that there is a conclusive presumption against the disclosure of the FACS letter having regard to Sch 1 cl 10 of the GIPA Act: para 20 of Exh 1; 3. The decision in proceedings no 2021/69505 is subject of a further appeal (proceedings no. 2022/88146) by the applicant. in these proceedings; and 4. Without conceding that analysis beyond s.74 of the GIPA Act is required, para 21 of Exh 1 provides further reasons why the redacted material should not be disclosed.
5. In relation to document number 22, the Council relies on s.59(1)(d) of the GIPA Act, as the applicant has already been provided with access to this information and the Council has no reason to believe the information is no longer in their possession: para 20 of Exh 1.
6. In relation to document number 23, the Council states that this may be released with redactions, which are justified under s.74 of the GIPA Act, as the redacted material does not go to the information requested. Further, without conceding that analysis beyond s.74 of the GIPA Act is required, para 5 of Exh 2 provides further reasons why the redacted material should not be disclosed.
7. In relation to document number 24, based upon a cumulative analysis under s.74, and there being an overriding public interest against disclosure, the Council says that the whole of the document should not be released. In any event, only the 9th and 10th lines of the document go to the information requested and, on that basis, it relies on s.74 and says that all other lines should be redacted: paras 5 and 7(b) of Exh 2.
8. The Council stated that it does not oppose the release of the whole of document number 25.
9. In relation to document number 26, this contains briefing notes to Councillors on the CPC (which is responsive to request 6) and a range of other Council business. That other Council business is not relevant to the GIPA request and it should be deleted under s.74 of the GIPA Act. In so far as the document includes information on the CPC, the Council does not oppose its release.

Applicant's submissions in reply

1. On 12 May 2022, the applicant filed submissions in reply. He qualified the previous comments on the basis that he made them "without legal advice or representation" and he complained that he is "at a disadvantage" because the Council has a budged for funding legal representatives." He complained that he does not consider that the Tribunal has "adequately considered or addressed" the "other outstanding competence concerns" that he raised on 22 October 2021. He repeated that he does not believe that the Tribunal listened to the opening statement on 8 March 2022 and he complained that he was not allowed to ask cross-examination questions regarding the amendment to the GIPA request dated 21 June 2021, on the basis that this was not the subject of the current review. However, the Council considered that amendment in its "determination" of 29 June 2021. In particular, he stated: 3. Initially, SM Riordan asked me to only ask cross-examination questions on the internal GIPA application form, but she later instructed me to only ask questions on the undated, untitled schedule of documents that I received from Council in an email on 22 October 2021. I was confused about what I was actually allowed to ask in cross-examination. I believe SM Riordan became frustrated with me. Communication was unclear.
2. The applicant stated that he wanted to make it clear to the Tribunal that: (1) The Council had changed their position on my GIPA multiple times; (2) The Council had misleadingly withheld documents; (3) Ms Albazouni failed to handle at least 5 GIPA applications properly; (4) The IPC determined that Council had failed to justify their position in the GIPA applications multiple times; (5) The Council's delay in processing my GIPA of around 10 months was excessive; and (6) The Council's improper conduct in handling my GIPA applications was forming a pattern of behaviour. He therefore requested that an independent person process this GIPA application, but he does not believe that this request has been considered.
3. The applicant stated that in the Council's closing submissions, Mr McFadzean argues at para 2, that the Council's alleged conduct and practices in withholding information, failing to be procedurally transparent and open (in various matters), and refusing to follow recommendations from the NSW Ombudsman and IPC, is irrelevant to the current matter. However, he is "attempting to reveal to the Tribunal that Council have a long-established pattern of behaviour that is in opposition to the objectives of the GIPA Act." However, the Council's attitude and lack of transparency, towards releasing personal information has consistently opposed the objectives of the GIPA Act to the point where it should be considered systemic. It has not been open about documentation it holds, has been unfairly withholding information and is terribly inefficient in its handling of information - rejecting multiple recommendations to release information from the IPC and NSW Ombudsman, and accruing extensive delays in processing applications. It has constantly changed its mind about why it is not releasing information- even going to the extremes of accusing him of 'intimidating' the Access to Information Officer, so it can continue to withhold personal information! This is a disgusting abuse of process.
4. The applicant complained that the Council's pattern of behaviour is a factor in determining this GIPA application and its actions, and processes in response to the GIPA applications are systemic. He therefore asked the Tribunal to make a referral to the Information Commissioner under s.111 of the GIPA Act.
5. Further, upon proper consideration and assessment of the concerns the Tribunal may be of the opinion that Council's conduct is improper and the applicant asked the Tribunal make a report on improper conduct under s.112 of the GIPA Act. In addition, it has withheld information, which may be an offence under s.120 of the GIPA Act.
6. The applicant queried whether the Tribunal had received unredacted copies of the disputed documents. He stated that the onus is on the Council to justify its redactions, but its reasons "keep changing" and it has "…repeatedly failed to establish their decisions are justified, and yet are not held accountable, nor are their GIPA processes open and transparent."
7. The applicant referred to Ms Albazouni's "very late offer to attend an electronic meeting" was not sufficient for the Council to discharge its obligations under s 16 of the GIPA Act. He stated: This "offer to attend an electronic meeting" with Ms Albazouni - someone who has accused me of "intimidating" her and who - in concert with her supervisor - has persistently refused access of my information to me in every other GIPA application, is not providing "specific advice and assistance on how to make an access application". Council's "offer to attend an electronic meeting" (whatever that means) on 29 June 2021 - seven days after Council was supposed to decide the application - was tokenistic, a compliance based, box-ticking exercise without substance. Furthermore, my attendance in a closed meeting, with Ms Albazouni and her supervisor, could have easily led to more allegations of innuendo made against me - making me out to be "intimidating" - had they decided to use this "electronic meeting" as a tool for such. Council has no interest in helping me make a successful GIPA application, because my personal information they hold, if provided to me, would likely expose Council to embarrassment and liability concerns. This lack of transparency is another reason why an independent person should assess this GIPA application. Mr McFadzean argues [4] the Tribunal can only make orders on one GIPA, (as opposed to the several that I have raised concerns about) but he does not provide any just reason why the Tribunal shouldn't appoint a member of the IPC, or other authorised person to process this GIPA, in order to ensure the objectives of the GIPA Act are properly met.
8. In relation to document number 2, the applicant stated that the Council assumes that ss 29(1)(f)(i) and (ii) of the Care and Protection Act apply. However, if the Council wants to rely on s.29 of that Act for any document it wants to redact or refuse to produce, the onus is on it to establish that s.29 applies. The Council admits that it does not know who made the ROSH report and if this is true, it has no idea if the ROSH report was submitted in 'good faith' and it cannot provide evidence that it was. Section 29 only applies if the report was made 'in good faith'. Council keeps changing its position In the schedule of documents of 22 October 2021, in regards to document 2, Mr McFadzean claims he wants to: Redact material not involving communications between Ms Zammit and Ms Saunders". However, in the respondent's closing statements [15] he claims: The redacted material includes information which may lead to the identity of the complainant being deduced.
9. The applicant stated: It makes me (literally) sick that an agency with access to extreme, sensitive, confidential and personal information about me, can abuse the GIPA process an ignore the objectives of the Act, and get away with it. On 17 February 202, in Council's Outline of Submissions in Reply, Mr McFadzean claimed [7] that Dr McIntyre's medical reports should be given "no weight" because she could not be cross-examined. Nothing was preventing Council to notify anyone of its intention to dross-examine Dr McIntyre, or issue a summons for her to be cross-examined. To my knowledge a summons for Dr McIntyre was not even applied for. If Council won't even try to test the evidence of Dr McIntyre, Mr McFadzean's position - that her report should be given no weight - is a flimsy argument. Furthermore, it baffles me that Mr McFadzean knowingly disregards the toll of his deceptive conduct is having on my personal wellbeing. After being provided with a medical report from my treating doctor, he shows no empathy, rather, he claims her comments on my mental health condition should be given no weight.
10. The applicant argued that it is incumbent on the Tribunal to enforce the GIPA Act's objectives of providing access to government information in an 'open, accountable, fair and efficient' way, yet Council's flawed procedures in handling my GIPA application have been ignored, without consequence. The fact that disclosure of information might cause embarrassment to, or loss of confidence in, the Government is irrelevant and must not be taken into account: s.15(c). He said that he is "just after a fair go, and I do not believe I am getting it" and that he is "(literally) sick of playing these mind games with Council on their Terms. The only proper and just way to resolve this issue is for an objective and independent assessment of my GIPA application by an authorised person. An "open, accountable, fair and efficient' process and resolution of this matter is in line with the objectives of this Tribunal. This is what I request from this Tribunal in this matter."
11. The applicant also requested written reasons for the Tribunal's decision in this matter and said that if the reasons are to be published, they should not contain information that may lead to him being identified by members of the public. He concluded - "Please do not publish the reasons for decision to caselaw without allowing me to observe it first."

CONSIDERATION AND FINDINGS

1. I am satisfied that this Tribunal has jurisdiction to determine the current Application for Administrative Review under s 100 of the GIPA Act.

Should the Tribunal divest itself of jurisdiction to determine the matter

1. While the applicant has requested on multiple occasions that the Tribunal should appoint the Information and Privacy Commissioner or an "independent person who is capable and competent enough to conduct an appropriate, fair and efficient determination" of the GIPA application, I do not consider it appropriate for the Tribunal to divest itself of its power to determine the matter. Accordingly, the applicant's requests are refused.

Request for non-publication order

1. I note that after the completion of the oral hearing and at the end of submissions in reply, the applicant sought a non-publication order for the first time. However, the scope of the non-publication order sought was restricted to his own identity and a request that the Tribunal should not publish its reasons for decision without allowing him to "observe it first."
2. Section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) provides, relevantly: 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders - (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.
3. I note that the applicant was content to conduct their case in an open hearing, up to the point that they declined to further participate in it (following the cross-examination of Ms Zammit and during the cross-examination of Ms Albazouni) and that they then filed their opening statement, closing statement and submissions in reply without applying for a non-disclosure order from the Tribunal.
4. In my view, as the evidence and submissions had effectively closed before the applicant made his request for a non-publication order that sought to protect his own identity only, I do not consider it appropriate to make an order under s 64(1) and I decline to do so.

The scope of the application for administrative review

1. I am satisfied that current application for administrative review comprises the original GIPA application dated 25 May 2021, which was the subject of a reconsideration decision by the Council dated 22 October 2021, as that decision was made pursuant to the Tribunal's orders dated 27 September 2021.
2. I am satisfied that the current matter does not include the applicant's purported amendment to the GIPA application dated 21 June 2021. My reasons are as follows.
3. In its original decision dated 28 May 2021, the Council decided that processing the GIPA application would require a substantial diversion of its resources and Ms Albazouni gave the applicant an opportunity to amend the application and suggested that he: (1) Provide a specific date range for the information sought or by reducing the date range for the information sought; or (2) Exclude information from third parties (as he had already applied through GIPA to third parties and the Council had previously consulted them). Ms Albazouni also stated that s 60(6) of the GIPA Act provides that an applicant is not entitled to a refund of the application fee when an agency refuses to deal with the access application under s 60(1), which includes the reason given in her decision. She asked the applicant to advise if he would like time to amend the application or if the current application should be processed and she concluded, "I am happy to discuss this application with you."
4. In response, on 21 June 2021, the applicant sought to expand the scope of the documents requested in the GIPA application. However, on 29 June 2021, Ms Albazouni responded that email dated 21 June 2021 had not narrowed the scope of the GIPA request or overcome other deficiencies. She stated that the Council did not consider it to be a valid application under s. 41(1)(e) of the GIPA Act because it did not enable information applied for to be identified. In Davison v NSW Department of Education and Training [2023} (sic) NSWADT 25, NCAT found that the GIPA Act is not a device for seeking answers to questions a person might have in regard to administrative action taken by a government agency or seeing an explanation by an agency as to why particular action was taken. She concluded: I would like to offer you an electronic meeting with myself and my Manager to clarify your request in an attempt to assist you in lodging a GIPA Application. If you would like to proceed, can you please advise when you are available to meet? Alternatively, can you please respond by clearly identifying the records of Council you are seeking access to…
5. However, the applicant did not respond to Ms Albazouni's offer. Instead, in these proceedings, he asserts that the Council failed to consult with him in relation to the GIPA application and that it did not offer him reasonable assistance as required by ss 16 or 52 of the GIPA Act.
6. Section 16 of the GIPA Act provides: 16 Agencies to provide advice and assistance (1) An agency must provide advice and assistance to a person who requests or proposes to request access to government information, for the purpose of assisting the person to access, or seek access to, information that is or may be made publicly available. (2) An agency must provide the following specific advice and assistance to a person who requests access to government information - (a) advice as to whether or not the information is publicly available from the agency and (if it is) how the information can be accessed, (b) advice on how to make an access application for the information if the information is not publicly available from the agency but appears likely to be held by the agency, (c) if the information appears unlikely to be held by the agency but appears likely to relate to the functions of some other agency, the contact details of the other agency, (d) the contact details of the Information Commissioner and advice on the availability of and how to access any information published by the Information Commissioner that it appears may be relevant to the person's request. (3) An agency is only required to provide advice and assistance under this section that it would be reasonable to expect the agency to provide.
7. Section 52 of the GIPA Act provides: 52 Agency assistance with invalid applications (1) The notification of an agency's decision that an application is not a valid access application must - (a) include a statement of the reason why the application is not a valid access application (including reference to the relevant provisions of this Act), and (b) if a reason is non-payment of the required application fee, invite the applicant to pay the fee, and (c) if a reason is failure to provide required information, invite the applicant to provide the information, and (d) notify the applicant of the right of review under Part 5 that applies in relation to a decision that an application is not a valid access application. (2) The application becomes a valid access application if the applicant pays the required fee or provides the required information (as appropriate), and is then deemed to have been made when the fee or information was received by the agency. (3) An agency must provide advice and assistance, so far as it would be reasonable to expect the agency to do so, to assist an applicant to provide such information as may be necessary to enable the applicant to make a valid access application. (4) (Repealed) (5) An applicant is entitled to a refund of any application fee that accompanied an invalid access application (unless the application subsequently becomes valid).
8. In my view, the documents dated 28 May 2021 and 29 June 2021 speak for themselves and they support a finding that the Council offered the applicant advice and assistance of a reasonable nature as required by s 16 of the GIPA Act.
9. I am also satisfied that Ms Albazouni's email to the applicant dated 29 June 2021 specifically addressed the requirements of s 52 of the GIPA Act and that the Council discharged its obligations accordingly.
10. While the applicant argues that he does not know what was meant by an "electronic meeting", there is no evidence before me that he made any attempt to clarify this by contacting Ms Albazouni. In any event, I note that this offer was made during a period of COVID-19 lockdowns and that it is reasonable to find that the proposed meeting would have been facilitated on an electronic platform rather than in a face-to-face environment.
11. While the applicant has agitated multiple grievances regarding the Council's alleged mismanagement of previous GIPA applications, the Tribunal is concerned with the GIPA application made on 25 May 2021. It is therefore necessary to determine whether the Council's reconsideration decision dated 22 October 2021 is the correct and preferable decision.
12. I appreciate that the applicant feels aggrieved by perceived mistreatment by the Council regarding the multiple prior GIPA applications, but I do not consider that these matters are relevant to the issues that I am required to determine in the current review. I therefore consider that the evidence and submissions regarding these matters should be given little weight.
13. The applicant asserts that Dr McIntyre's medical reports indicate that the Council's alleged misconduct against him regarding previous GIPA applications has had a detrimental impact upon them. While the applicant does not identify any specific provision of the GIPA Act that this relates to, it appears that they are seeking to invoke s 55, which provides, relevantly: 55 Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section - (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. … (4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for. … (6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person.
14. While the Council has not disputed Dr McIntyre's evidence, it argues that it is not relevant to the issues that the Tribunal is required to determine in this matter and that it should therefore be given no weight. I reject that submission.
15. I note that while the GP's reports primarily address matters that are relevant to a complaint under the PPIP Act, rather than the GIPA Act, they provide a possible explanation for some of the applicant's complaints and grievances against the Council. However, pursuant to s 55(2) of the GIPA Act, the matters reported by the GP are personal factors that can be taken into account as factors in favour of providing the applicant with access to information.

Complaints regarding the conduct of the oral hearing

1. The applicant has made complaints regarding the conduct of the hearing on 8 March 2022. I note that these are akin to an allegation that they were denied procedural fairness in conducting their case and the submissions are of a type that may reasonably be expected to be lodged in support of an appeal on that ground. I note that these complaints seek to challenge the Tribunal's ruling regarding the scope of the current matter.
2. To the extent that the applicant's complaints are relevant to the determination of the current review, they are rejected. After ruling on the scope of the current review, the Tribunal asked the applicant to focus on matters that were relevant to the matter before it. However, he did do comply with that request and instead complained to the effect that they had prepared case on the basis that they would ventilate all grievances and allegations against the Council and its officers.
3. The Tribunal disputes that it failed to afford the applicant procedural fairness. While the Tribunal is not bound by the rules of evidence, the evidence received must be logical and probative to the matters it is required to determine. The Tribunal offered the applicant the opportunity to adduce evidence that was logical and probative to the matters before it, but he did not avail himself of it.
4. Similarly, to the extent that the applicant asserts that the Tribunal denied him procedural fairness by not allowing him to cross-examine Ms Zammit and Ms Albazouni regarding the letter dated 21 June 2021, the Tribunal rejects those assertions. The applicant was provided with every opportunity to cross-examine the witnesses in relation to the matters relevant to the issues it is required to determine in the current review. How

Is there an overriding public interest against disclosure?

1. Many of the applicant's submissions pre-date the hearing on 8 March 2022, and that the evidence from Ms Zammit and Ms Albazouni that was adduced on cross-examination, which addressed many of the issues that he had raised.
2. The Council argues that the documents contained in MFI1 which remain in dispute are those numbered 1, 2, 3 and 22 to 26 (inclusive) of the Schedule of Documents (attached to Ex 1) and that the documents numbered 22 to 26 (inclusive) are discussed in Ex 2.
3. Before dealing with the redactions in detail, it is worth setting out the approach to be applied in considering whether there is an overriding public interest against disclosure of government information.
4. The objects of the GIPA Act as set out in s 3 are to open government to the public. There is a presumption in favour of the disclosure of government information unless there is an "overriding public interest against disclosure" (s 5 of the GIPA Act). There are two situations in which there will be an overriding public interest against disclosure. The first concerns government information described in Sch 1 to the GIPA Act and is not relevant to these proceedings.
5. In the second situation, there will be an overriding public interest against disclosure if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. Section 12 of the GIPA Act provides that there is a general public interest in favour of disclosure of government information and the section sets out a non-exhaustive list of some examples of such considerations. The public interest considerations against disclosure are set out in a Table in s 14 of the GIPA Act.
6. In the second situation, the decision-maker's task is to first determine whether, in respect of the information sought, there are public interest considerations against disclosure and then to balance those considerations against those public interest considerations in favour of disclosure.
7. In this application, the respondent refers to public interest considerations set out in the table in s 14 and submits that those considerations outweigh the considerations in favour of disclosure.

Public interest considerations in favour of disclosure

1. The general presumption in favour of disclosure of government information is set out in s 12 of the GIPA Act.
2. The applicant argues that the information sought is personal to him and I agree with that characterisation.

Public interest considerations against disclosure

1. The public interest considerations against disclosure identified by the Commissioner as set out in the Table to s 14 of the GIPA Act are set out previously in this decision. Each have the requirement that disclosure of the information could reasonably be expected to have the nominated effect.
2. The words "could reasonably be expected to" are to be given their ordinary meaning (Attorney-General's Department v Cockcroft (1986) 10 FCR 180). In that case, Bowen CJ and Beaumont J explained, at 190, that the words: ... require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like.
3. In Leech v Sydney Water Corporation [2010] NSWADT 298 the Tribunal referred to a number of cases which had considered the term "could reasonably be expected to" and stated at [25]: "[25] … The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC."
4. The public interest considerations against disclosure require an objective assessment as to whether the claimed effects could be expected to arise. This is ultimately a question of fact to be established to the relevant standard of proof, on the balance of probabilities (Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42]).
5. The public interest considerations in cll 1(e), (f) and (h) and cl 2(b) require that there be some relevant "prejudice" to the agency. The term "prejudice" is to be given its ordinary meaning, that is, to cause detriment or disadvantage, or to impede or derogate from (Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60]). However, the agency needs to show more than a mere possibility, risk or chance of prejudice and it needs to be based on real and substantial grounds (Australian Vaccination Network v Department of Finance and Services [2013] NSWADT 60 at [22]).
6. The Council served the applicant with redacted copies of documents numbered 1, 2 and 3 in accordance with orders made by Montgomery SM on 7 December 2021, but the applicant presses for unredacted copies.

Document number 1

1. In its most-recent submissions, the Council did not press the redaction to page 1 of document 1, but pressed the redactions on page 2, which relate to informants' details. It relies on s 74 of the GIPA Act, which provides: 74 Deletion of information from copy of record to be accessed An agency can delete information from a copy of a record to which access is to be provided in response to an access application (so as to provide access only to the other information that the record contains) either because the deleted information is not relevant to the information applied for or because (if the deleted information was applied for) the agency has decided to refuse to provide access to that information.
2. In the alternative, the Council submits that there is an overriding public interest against disclosure of the redacted information under cl 3(a) to the Table in s 14 of the GIPA Act, which provides: 3 Individual rights, judicial processes and natural justice There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects - (a) reveal an individual's personal information,
3. The applicant argues that there is no proper basis for redaction.
4. I have viewed the redacted and unredacted copies of this document and I am satisfied that disclosure of the redacted information could reasonably be expected to reveal an individual's personal information and that the public interest in protecting and controlling the disclosure of that personal information of other individuals should be afforded significant weight. These considerations are compelling and significant.

Document number 2

1. The Council submits that the redacted information does not go to and is not relevant to the information applied for and it relies upon s 74 of the GIPA Act and cl 3(a) to the Table in s 14.
2. The applicant argues that there is no proper basis for redaction.
3. I have viewed the redacted and unredacted copies of this document and I am satisfied that the redacted material does not go to and is not relevant to the information applied for. Further, disclosure of the redacted information could reasonably be expected to reveal an individual's personal information and that the public interest in protecting and controlling the disclosure of that personal information of other individuals should be afforded significant weight. These considerations are compelling and significant.

Document number 3

1. The Council essentially repeated its submissions in relation to document number 2.
2. The applicant argues that there is no proper basis for redaction.
3. I have viewed the redacted and unredacted copies of this document and I am satisfied that the redacted material does not go to and is not relevant to the information applied for. Further, disclosure of the redacted information could reasonably be expected to reveal an individual's personal information and that the public interest in protecting and controlling the disclosure of that personal information of other individuals should be afforded significant weight. These considerations are compelling and significant.

Document number 22

1. The Council submits that this is a Final Report in relation to a Code of Conduct complaint that the applicant made about Ms Zammit and that he already holds a copy of that report. It relies upon ss 58(1)(c) and 59(1)(d) of the GIPA Act.
2. Section 58(1)(c) of the GIPA Act provides: 58 How applications are decided (1) An agency decides an access application for government information by - … (c) deciding that the information is already available to the applicant (see section 59), or …
3. Section 59(1)(d) of the GIPA Act provides: 59 Decision that information already available to applicant (1) An agency can decide that information is already available to an applicant only if the information is - … (d) available to the applicant as the applicant has already been provided with access to the information and the agency has no reason to believe the information is no longer in the applicant's possession, or …
4. The Council submits that there is no evidence before the Tribunal that the applicant no longer has this information in their possession. I note that the applicant has not disputed that argument. This factor is compelling and significant.

Document number 23

1. The Council submits redactions to this document are justified under s74 of the GIPA Act, as the redacted material does not go to the information requested.
2. Section 74 of the GIPA Act provides: 74 Deletion of information from copy of record to be accessed An agency can delete information from a copy of a record to which access is to be provided in response to an access application (so as to provide access only to the other information that the record contains) either because the deleted information is not relevant to the information applied for or because (if the deleted information was applied for) the agency has decided to refuse to provide access to that information.
3. In the alternative, the Council argued that the redacted material should not be released because it would undermine the supply of information to Code of Conduct investigations, given that Council's processes involve information being provided in confidence.
4. Ms Albazouni stated that if people who provide information in confidence thought that the information could later be accessed, they may be less inclined to provide full and honest information which may in turn undermine the investigation as a whole. She relied upon cll 1(d), 1(e), 1(g) and 1(h) of the s 14 Table: para 5 of Ex 2.
5. Section 14 of the GIPA Act provides, relevantly: 14 Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. … Table 1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally) - … (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, (e) 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, … (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, (h) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).
6. The applicant has not advanced any particular argument about why he should be provided with the redacted information.
7. Having viewed the redacted and unredacted document, I find that the public interest considerations against disclosure of the withheld information are supported by Ms Albazouni's evidence and that these considerations are compelling and significant.

Document number 24

1. The Council submits, pursuant to s 74 of the GIPA Act, that this document should not be released because all but 2 lines of it are irrelevant to the GIPA request. Further, the information contained in lines 9 and 10 of the document should not be disclosed under s 58(1)(d) of the GIPA Act, as there is an overriding public interest against disclosure under the s 14 Table, cll 1(d), 1(e) and 1(g) of the GIPA Act.
2. The applicant has not specifically addressed these provisions of the GIPA Act, but instead expressed concerns about the "Council's lack of procedural transparency."
3. Having viewed both the redacted and unredacted copies of this document, I am satisfied that the public interest considerations in cll 1(d), 1(e) and 1(g) of the GIPA Act apply and that they should be given significant weight.

Document number 25

1. The Council's most-recent submissions indicate that it does not oppose the release of this document to the applicant.

Document number 26

1. I note that the Council does not oppose the release of the "briefing minutes," but submits that on balance, these briefing minutes are confidential and they should not be released to the applicant.
2. The applicant has not specifically addressed this issue.
3. Having viewed both redacted and unredacted copies of this document, I am satisfied that the public interest considerations against the release of the redacted information to the applicant are compelling and should be given significant weight.

Balancing the public interest

1. I have found that each of the public interest considerations against disclosure relied upon by the Council in relation to documents numbered 1, 2, 3, 22, 23, 24 and 26 is present in this case. These are to be balanced against the public interest considerations in favour of disclosure as set out above.
2. Balancing the competing public interest considerations is "a question of fact and degree, requiring the weighing of competing matters, and a task that is not amenable to mathematical calculation" (Hurst v Wagga City Council [2011] NSWADT 307 at [70]).
3. In relation to the personal information redacted from documents 1, 2, 3, 22, 23, 24 and 26 I am satisfied that in this matter the public interest considerations against disclosure outweigh the public interest in favour of the disclosure of the information that has been redacted.
4. Accordingly, the correct and preferable decision, other than in relation to documents numbered 1 and 25 (which the Council agreed to release to the applicant during the course of the proceedings), is to affirm the decision under review.

Orders

1. The Tribunal notes that the Council does not oppose the release of an unredacted page 1 of document number 1 to the applicant. The Council is to provide the applicant with an unredacted copy of page 1.
2. The Tribunal notes that the Council does not oppose the release of an unredacted copy of document number 25. The Council is to provide the applicant with an unredacted copy of that document.
3. The decision of the Council dated 22 October 2021 is otherwise affirmed.

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

Amendments 13 October 2022 - Anonymisation 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: 13 October 2022