Gazecki v Mid Coast Council [2025] NSWCATAD 275;

1. The Respondent submitted that they made the correct and preferable decision in the circumstances, and that their Decision should be affirmed by the Tribunal, for the reasons briefly outlined as follows:

(a) The requests were substantially the same as those sought by the Applicant in two previous applications and hence the Respondent refused to deal with those requests pursuant to s 60(1)(b) of the GIPA Act, although this matter was not pressed further during the hearing.

(b) Many of the documents were subject to clear legal professional privilege.

(c) Release of certain material was subject to the public interest exclusion in s 14 Table cl 3(a) and must be refused as it would reveal an individual's personal information, and may also expose that person to harm, harassment or intimidation as per s 14 Table cl 3(f).

(d) Much of the material sought concerns the proceedings already on foot in the LEC, or otherwise contemplated, by the Applicant and/or (in concert with) his wife, and could, and should, be properly sought through an application to the court. This submission was not further pressed at the hearing.

(e) Due to the inherent limitations of the record storage system of the Respondent, much of the information sought could not be readily identified without reviewing an inordinate amount of documents.

(f) Some of the material sought would further disclose proprietary and confidential internal processes regarding the Respondent's approach to enforcement action, as per the exclusion in s 14 Table cl (1)(f). Similarly, material provided by informants would prejudice enforcement of the law, pursuant to s 14 Table cl (2)(b).

(g) The request was properly considered in accordance with the applicable principles of the GIPA Act, and opportunity to revise the scope of the application was properly afforded to the Applicant.

1. The Respondent submitted that they complied with the full suite of their obligations pursuant to the GIPA Act, and that the refusal to provide the remaining items sought by the Applicant, was based on clear and legitimate exclusions pursuant to the GIPA Act.
2. The Respondent called Ms Duggan, one of the Respondent's Governance Coordinators to give oral evidence under oath, who spoke to the reasons for refusing the remaining items sought by the Applicant.
3. Ms Duggan gave evidence that she obtained a report from Telstra but there was no functionality to search for text messages relating to the Property. She further submitted that she did not ask individual employees if they had ever texted about the Property of the Applicant.
4. Ms Duggan submitted that electronic records are not held in such a way as to enable general category searches such as 'unlawful dams' to be undertaken, and hence the searches sought by the Applicant would trigger hundreds or thousands of results, and therefore have no utility.
5. The Applicant contended that the Respondent's system should be able to conduct targeted searches of the nature sought, but accepted Ms Duggan's testimony that it did not have this capability. Accordingly, the Applicant accepted that Items 15, 16, 18 and 21 (detailed at [7] (e)-(h) herein) cannot be provided.
6. The Tribunal accepts Ms Duggan's evidence, which was considered and based on her expertise and experience.

Schedule 1 Matters - Items 1 and 9 (detailed in [7](a) and (d) herein)

1. Section 14(1) of the GIPA Act provides that Schedule 1 therein details a conclusive presumption that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.
2. The Respondent has since waived privilege on a number of documents and released those to the Applicant, and has submitted the remainder in confidence, to the Tribunal.
3. The Respondent claims that the bulk of the remainder of those documents provided to the Tribunal in a Confidential Bundle are subject to legal professional privilege. Clause 5 of Schedule 1 to the GIPA Act provides:

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege.

(2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause.

(3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5.

1. The Tribunal has considered cl 5 of Schedule 1 in numerous matters. Client legal privilege protects confidential communications between a lawyer and a client made for the dominant purpose of the lawyer providing legal advice or professional legal services to the client or for use in current or anticipated litigation.
2. In order for client legal privilege to attach to information, each element of client legal privilege must be satisfied. The essential elements of client legal privilege are:

(i) the existence of a client and lawyer relationship; and

(ii) the confidential nature of the communication or document; and

(iii) the communication or document was brought into existence for the dominant purpose of either:

(iv) enabling the client to obtain, or the lawyer to give legal advice or provide legal services, or

(v) for use in existing or anticipated litigation.

1. These considerations are embodied within sections 118 and 119 of the Evidence Act 1995.
2. The Respondent submitted that the majority of the relevant documents were correspondence between the Respondent and the external law practice they instructed, for the dominant purpose of providing legal advice in relation to the Respondent's legal position regarding their enforcement action and the LEC proceedings between the parties.
3. In Archer Capital 4A Pty Ltd as trustee for the Archer Capital Trust 4A v Sage Group PLS (No 2) [2013] FCA 1098 at [10], Wigney J stated that "A communication or document will be privileged if it was made or brought into existence for the dominant purpose of obtaining or providing legal advice (the advice limb), or to conduct or aid in the conduct of litigation in reasonable prospect (the litigation limb)."
4. At [12] he continues that "The concept of legal advice in the context of the advice limb is fairly broad. It goes beyond formal advice as to the law, and extends to professional advice as to what a party should prudently or sensibly do in a relevant legal context...".
5. Based on my perusal of the documents over which privilege has been claimed and the evidence provided by the Respondent, I am satisfied that the relevant documents contained in Items 1 and 9 comprise confidential communications between the Respondent and their lawyers for the dominant purpose of seeking or receiving legal advice.
6. I am therefore satisfied that the relevant documents provided in the Confidential Bundle per Items 1 and 9 are subject to legal professional privilege.

Public interest considerations for and against disclosure

1. In relation to the remaining pressed, and unresolved, items, the Respondent has claimed there are public interest considerations against disclosure. In deciding whether access should be granted to these documents, the task of the Tribunal is first, to identify the public interest considerations in favour of disclosure. Secondly, to identify the public interest considerations against disclosure. Thirdly, I must determine the weight of the public interest considerations in favour of disclosure and of those against disclosure in order to determine where the balance between those interests lies.
2. The Respondent submits that (i) access to Item 6 (detailed in [7](b) herein) should be refused on the basis that disclosure of the material will result in the disclosure of material provided in confidence to an agency as per Table 14 cl 1(g); (ii) access to Items 29-30 and 36-37 (detailed at [7](i) (l) and (m) herein) should be refused on the basis that disclosure of the information could reasonably be expected to prejudice the effective exercise of an agency's functions as per Table 14 cl (1)(f); and (iii) access to Items 31, 34, 38 and 39 (detailed at [7](j),(k), (n) and (o) herein) should be refused on the basis that disclosure of the material could be reasonably expected to disclose an individual's personal information as per Table 14 cl (3)(a).
3. Section 12 of the GIPA Act sets out the general presumption in favour of disclosure of government information and lists examples of public interest considerations that favour disclosure. There are several considerations in favour of disclosure:

(i) Disclosure of the information could reasonably be expected to promote the discussion of public affairs on an issue of public importance and enhance the Government's accountability;

(ii) Disclosure of the information could reasonably be expected to contribute to positive and informed debate on issues of public interest;

(iii) Disclosure of the information could reasonably be expected to ensure the effective oversight of a resource owned by the State and public finds;

(iv) Disclosure of the information could reasonably be expected to inform the public about the management of natural resources of significance to the economy and the environment; and

(v) Disclosure of the information could reasonably be expected to inform the public about the operation of agencies.

1. The considerations against disclosure set out in the table to s 14 of the GIPA Act and the examples of considerations in favour of disclosure in s 12 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] FCA 35; (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] "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 PIA."
4. The public interest considerations against disclosure require an objective assessment as to whether the claimed effects could be expected to arise.

Consideration and findings in respect of Item 1 sub-items 1.25, 1.48 and 1.53 ([7](a) herein] and Item 6 ([7](b) herein)

1. The Respondent submits that access to the material comprising the Item 1 sub-items reviewed in the Confidential Bundle by the Tribunal, and those in Item 6 should be refused on the basis that disclosure of the information could reasonably be expected to result in the disclosure of information provided in confidence as per Table 14 cl (1)(g) and could reasonably be expected to reveal an individual's personal information, or expose a person to a risk of harm or of serious harassment or serious intimidation as per Table 14 cl (3)(a) and (f).
2. In Commissioner of Police, New South Wales Police Force v Camilleri [2013] NSWADT 80, the Appeal Panel stated that the question as to whether information is "confidential information" is to "be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received". The inquiry "should focus on the point of receipt, and the administrative standards and community understandings which surround it".
3. In the context of cl 1(d) the Tribunal has previously stated that, in determining the question of whether the information in issue is confidential, a number of principles apply (Luxford v Department of Education and Communities [2016] NSWCATAD 118 (Luxford).
4. Those principles are also applicable to s 14 Table cl 1(g) and are as follows: There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally) - (a) reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant, (b) prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law, (c) increase the likelihood of, or prejudice the prevention of, preparedness against, response to, or recovery from, a public emergency (including any natural disaster, major accident, civil disturbance or act of terrorism), (d) endanger, or prejudice any system or procedure for protecting, the life, health or safety of any person.
5. Per Luxford at [70], "(i) the confidential quality of communications is a question of fact"; (ii) To establish its confidential quality, information must have been supplied under an express or implied pledge of confidentiality; (iii) The confidential quality of the information may be inferred from the nature of the relationship between the informer and person informed; and (iv) The confidential quality of the information must be determined in the light of all of the circumstances of the particular case."
6. The Applicant is seeking a copy of a video interview and correspondence conducted with a third party. This material was provided to the Tribunal as part of the Confidential Bundle for consideration of this access request.
7. The Applicant contends that he knows the third party's identity and contact details already, and has never harassed or intimidated such person. However, the Applicant further submitted that if the material contained what he considered to be false or defamatory statements, he would pursue his legal rights against that third party.
8. The Applicant submits that it is in the public's interest to disclose the identity of a person who makes false complaints, and that he is a victim of such. In Fahey v NSW Officer of Liquor, Gaming and Racing [2012] NSWADT 181 at [30] it is noted that "there is a public interest in disclosing the identity of persons who make false complaints. Careful distinction should be made between allegations which, while based on genuinely-held beliefs are found to be erroneous and allegations which are malicious or which are made with disregard to basic facts."
9. There is nothing in the material provided by the Applicant to support a finding that the third party has made intentionally false complaints or malicious allegations. The Applicant has a significant litigation history and contentious relationship with a neighbour he has therefore presumed is the relevant third party, but this does not constitute evidence in support of overriding the presumption against disclosure. Further, the Applicant acknowledges in his written submissions that the individual is an informant rather than a complainant.
10. The Respondent submits that the third party informant is subject to a real threat of harassment and intimidation should their identity and statements be revealed to the Applicant. In AEZ v Commissioner of Police, NSW Police Force [2013] NSWADT 90 at [85] the Tribunal held that "harm should be confined to a real and substantial detrimental effect on a person, rather than their business interests...A detrimental effect may be to a person's physical, psychological or emotional wellbeing." In [89], the Tribunal posits in relation to a definition of harassment, that "the disclosure would expose a person to serious harassment, the assessment of the impact of the conduct on the individual concerned is an objective one...".
11. Based on the material and submissions provided by the parties, I do not find that there is a genuine risk of harm or serious harassment or intimidation, on the objective application of those concepts.
12. Section 18 of the Privacy and Personal Information Protection Act 1998 (NSW) (PIPA Act) sets out the limits on the disclosure of personal information by a public sector agency. Notably s 18(1)(a) prohibits such disclosure unless the disclosure is directly related to the purpose for which the information was collected and the agency disclosing the information has no reason to believe the individual concerned would object to the disclosure.
13. The Applicant's fervent belief that he already knows the identity of the third party does not, in and of itself, prove the truth of that statement.
14. The relevant third party has advised the Respondent that they do not wish for their identity to be revealed to the Applicant, nor the information they have provided. In the absence of any compelling reason submitted by the Applicant, beyond their admission that they may want to sue that individual, the applicable law within the PPIA Act and the GIPA Act compel a finding that the Applicant cannot be provided with that information, where the individual has refused to provide the necessary consent.
15. On the material provided, I further find that the information provided by the third party was made as an informant, and was intended to be made to, and held by, the Respondent in confidence. In his written submissions, the Applicant asserts that he is already quite familiar with the (assumed) third party's 'adverse opinions and several more variations of same won't reveal anything new'. This suggests that the Applicant is not really seeking or expecting new information to be gleaned from this access request, so much as potential evidence for a defamation lawsuit.
16. As per Snape v Commissioner of Police No 2 [2022] NSWCATAP 244 (Snape), the Tribunal must balance the public interest disclosure imperative established per s 13 of the Act, against any applicable s 14 Table matters, and as per Taylor v Destination NSW [2017] NSWCATAD 272 (Taylor) at [17], the balance is always weighted in favour of disclosure.
17. I accept the evidence that the information provided by the third party was provided on a confidential basis as an informant, and that they have expressly withheld their consent to the provision of access to the Applicant regarding their identity and the information they have provided to the Respondent.
18. On balance, therefore, I am satisfied that the public interest disclosure imperative does not outweigh the consideration against disclosure in respect of the information which was provided in confidence.
19. The Respondent's decision in relation to the identified sub-items of Item 1 and Item 6 is affirmed.

Consideration and findings in respect of Items 1 (text messages) and Item 9 (additional searches) [detailed at paragraphs [7] (a) and (d) herein].

1. The Respondent submitted that the provision of these items would require an unreasonable and substantial diversion of their resources per s 60(1)(a) of the GIPA Act, as their systems did not allow for general automated searches of the nature that the Applicant sought.
2. As per Ms Duggan's evidence referenced in [48], the Tribunal further accepts that obtaining the information sought regarding text messages of the Respondent's employees, was essentially not possible due to the lack of required functionality. Accordingly, obtaining such information through manual efforts would clearly be impractical and involve substantial person hours to identify those which might fall within the application.
3. Whilst the material in Item 9 [detailed in [7](d) herein] falls within legal professional privilege, the Respondent submitted that any further searches would similarly require an unreasonable and substantial diversion of the Respondent's resources. As per Ms Duggan's evidence referenced in [49], the Tribunal accepts that the Respondent does not have the search functionality to readily identify such material, in support of a refusal to deal per s 60(1)(a) of the GIPA Act.
4. The Respondent's decision in relation to the Item 1 (text messages) and Item 9 (additional searches) is therefore affirmed.

Consideration and findings in respect of Items 36-37 [detailed at paragraphs [7](l) and (m) herein].

1. Section 14 Table at clauses (1)(f) and (h) provide a public interest consideration against disclosure where it may prejudice the effective exercise by an agency of their functions, or where it may 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).
2. The Respondent submits that access to the material comprising Items 36-37 should be refused on the basis that disclosure of the information could reasonably be expected to result in the disclosure of the internal workings of an agency and how they conduct investigations, and determine which matters to prosecute or not, as per s 14 Table at clauses (1)(f) and (h).
3. The Respondent submits that items such as internal memoranda, research, file notes and other internal documents and deliberations would be overwhelmingly likely to form the basis of the Respondent's investigation and deliberation of enforcement action.
4. As per Snape, the Tribunal must balance the public interest disclosure imperative established per s 13 of the Act, against any applicable s 14 Table matters.
5. In this matter, it is an established fact that the Respondent was conducting an investigation in contemplation of enforcement action against the Applicant with regard to the dams located on the Property.
6. Whilst the Applicant has a genuine and understandable desire to access the inner workings of the investigation conducted against himself and his wife, I accept that an agency must be afforded some level of confidentiality and opacity in order to contemplate and undertake investigations and enforcement action effectively.
7. Relevant to the access request, is that the veracity and foundation of the Respondent's enforcement action can and will be properly tested between the parties in the LEC, so I will not make any findings in this regard.
8. In attributing weight to the parties' competing objectives, and noting that the LEC decision will likely provide additional clarity and closure for the Applicant in this regard, I am satisfied that the public interest disclosure imperative does not outweigh the consideration against disclosure in respect of the material sought by the Applicant, and consider that there remains a predominant public interest consideration against disclosure of Items 36-37, detailed at paragraph [7] (l) and (m) herein.
9. The Respondent's decision in relation to items 36-37 is affirmed.

Consideration and findings in respect of Items 31, 34, 38 and 39 [detailed at paragraphs [7] (j), (k), (n) and (o) herein].

1. The Respondent submits that they have refused to confirm or deny to the Applicant, the existence of the material comprising Items 31, 34, 38 and 39, as detailed in [7] (j), (k), (n) and (o) herein. This refusal is based on the assertion of an overriding public interest against disclosure of information confirming or denying that fact per s 58(1)(f) of the GIPA Act.
2. The Respondent submits that even the disclosure of the existence of any material sought pursuant to these items should be refused on the grounds that such material is subject variously to exclusions in clauses 1(f), 2(a), 3(a), 3(e) and 3(f).
3. Section 58(1)(f) was considered in Commissioner of Police, NSW Police Force v Barrett [2015] NSWCATAP 68 (Barrett) where a decision to refuse to confirm or deny the existence of material, was made for intelligence reasons. The Appeal Panel in that matter noted at [38] that this provision "introduces a public interest against disclosure that goes beyond those listed in the Table to s 14".
4. Refusals pursuant to s 58(1)(f) of the GIPA Act are notably rare, because a refusal to confirm or deny the existence of material negates the commitment to transparency which underpins the legislation. Consequently, the reasonable approach is to nevertheless apply the principles of ss 13 and 14 of the GIPA Act and ensure that material, which is refused to be provided to an applicant, falls properly, after weighing, within one of the exclusions detailed therein.
5. If this reasoning is not correct, I have considered whether there is an overriding public interest against disclosure of the information pursuant to the clauses of the s 14 Table identified by the Respondent in their submissions and during the hearing. This is supported by the approach taken in Douglas v Commissioner of Police (NSW) [2022] NSWCATAD 152.
6. Given the personal nature of the information sought by the Applicant in these items, I have focussed on clause 3(a) of the table in s 14 of the GIPA Act in my consideration of whether this information can and should be disclosed to the Applicant.
7. The Applicant is seeking to access a range of material relating to AF's internal records, including any complaints which may have been made against AF, any internal investigations conducted against AF, AF's leave applications and his absences from work.
8. The Respondent submits that such items regarding AF, an employee of the Respondent, if in existence, would reveal personal information about AF, and that AF has expressly and vehemently refused permission to reveal any of this information sought by the Applicant.
9. Section 54 of the GIPA Act provides for a requirement to consult a person before disclosing their personal information, where it appears that the person may reasonably be expected to have concerns about the disclosure of the information, and those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information.
10. In the present matter, the Respondent has undertaken that consultation and AF has refused to provide the necessary consent to release such material to the Applicant, and the Applicant has not otherwise identified any exception pursuant to s 25 of the PIPA Act pursuant to which the material could be disclosed.
11. The Applicant has submitted his view that AF has engaged in improper conduct in relation to the investigation and enforcement action taken by the Respondent against the Applicant regarding the dams located on the Property.
12. In Barrett at [136] it was held that "It is a very serious matter for a Tribunal to accept as relevant to its determination as a public interest favouring disclosure that 'disclosure...could be reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.' "
13. In order to make a determination that the public interest favours disclosure in this regard per Snape, the Tribunal must have a reasonable basis in the material provided by the Applicant or in the material seen in confidence.
14. It is clear from the Applicant's oral and written submissions that he is of the genuine belief that he and his wife have been unfairly targeted by AF and the Respondent generally, as well as by his neighbour(s). However, the Applicant has not adduced sufficient material which would reasonably support a finding that the Respondent (or an employee thereof) has engaged in improper or unlawful conduct.
15. As noted above, the Applicant's allegations will likely be tested in the LEC proceedings, along with the propriety, or otherwise, of the investigation conducted, and the enforcement orders made, against the Applicant and/or his wife. However, with the material before the Tribunal, I do not have any evidentiary basis on which to make a finding that the material sought by the Applicant can be expected to reveal improper conduct, such as to tip the balance towards disclosure in this regard.
16. As per Bailey, I cannot attribute sufficient weight to such allegations as posited by the Applicant, so as to provide the Applicant with access to AF's personal and confidential internal employment-related records.
17. In attributing weight to the parties' competing objectives, and noting that the LEC decision will likely provide additional clarity for the Applicant in this regard, I am satisfied that the public interest disclosure imperative does not outweigh the consideration against disclosure in respect of the material sought by the Applicant, and consider that there remains a predominant public interest consideration against disclosure of Items 31, 34, 38 and 39, detailed at paragraphs [7] (j), (k) (n) and (o) herein.
18. With regard to the Respondent's submission that disclosure was rightfully denied regarding these items on the basis of the exclusion in clause (1)(f) of the table in s 14 of the GIPA Act, I am satisfied that my findings per [98] and [100] herein, apply to this material.
19. With regard to the Respondent's submission that disclosure was rightfully denied regarding these items on the basis of the exclusion in clause (2)(a) of the table in s 14 of the GIPA Act, I am satisfied that my findings per [86] herein, apply to this material.
20. With regard to the Respondent's submission that disclosure was rightfully denied regarding these items on the basis of the exclusion in clause (3)(e) of the table in s 14 of the GIPA Act, I am satisfied that my findings per [78] herein, apply to this material.
21. With regard to the Respondent's submission that disclosure was rightfully denied regarding these items on the basis of the exclusion in clause (3)(f) of the table in s 14 of the GIPA Act, I refer to my findings per [80] herein, apply to this material.
22. The Respondent's decision in relation to items 31, 34, 38 and 39 is affirmed.

1. Pursuant to s 64 of the CAT Act, the Tribunal orders that no record of the confidential session, nor of the Confidential Bundle, is to be disclosed or released to either the Applicant or to the public.
2. Noting that some of the material in Item 1 was released to the Applicant prior to the hearing, the decision under review 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.