Victorian Civil and Administrative Tribunal|2001-11-08

Gregory White v Pyrenees Shire Council [2001] VCAT 2043 (8 November 2001)

Freedom of information - letter of complaint to Shire Council - complainant requesting confidentiality - law enforcement functions of Council - dependence upon information from public - danger that information would "dry up" - applicant's motives in seeking complainant's name - risk of applicant inappropriately pursuing the complainant - Freedom Of Information Act 1982 ss.33(1) and 35(1)(b).

Decision of the respondent made on 6 June 2001 affirmed. Costs reserved.

1. This is an application for review of a freedom of information decision made by Pyrenees Shire on 6 June 2001.

3. The applicant requested access to a number of documents. All but one have been provided.

4. This application concerns the final document. It is a letter of complaint dated 10 April 2001, addressed to the Shire. The Shire has no objection to disclosure of the terms of the letter: the objection is confined to information which might identify the complainant. That information consists of the complainant's name, address and handwriting.

I wish to lodge a complaint about a property in Landsborough.

The property is situated on the Ararat Road, on the left hand side travelling towards Ararat just across the Malakoff Creek.

I consider this property should be cleaned up because of the increased tourism in the area and the lead-up to a National Horse event to be held here in the year 2002.

Could the Shire please inspect the property to confirm my concerns.

6. On 31 May 2001 the Shire wrote to Mr White in the following terms:

"Council received a complaint on 10 April 2001 in relation to your property in that it should be cleaned up given the increased tourism being generated in the Landsborough area. This will increase dramatically leading up to the 2002 Quilty Event.

Your comments and proposed action in relation to this complaint would be appreciated so that Council can respond to the objectors concerns."

7. Mr Tori, who appeared for the Shire, was unable to explain the seven week gap between the letter of complaint and the Shire's letter to Mr White.

"I formally request under the FOI Act the following documents:

1. File No 106030400 in its entirety [This was the file reference on the letter from the Shire of 31 May 2001.]

2. Actual notice of complaint received by Shire from complainant. Showing the name of the accuser, as is the legal right of the accused in this Nation of Australia.

3. All records and reports regarding the receipt of this complaint. Any Council report produced as a result of this complaint.

I also seek to know how persecuting the only qualified Endurance Riders in Landsborough will enhance the liability of the Quilty actually coming to Landsborough. And please explain how the Shire will pay compensation to the Landsborough community and Endurance Riders, if the Endurance Association is forced to take the Quilty elsewhere because of the treatment of its only qualified competitors? But you will not answer these questions, will you? Because you show a pattern of only ever lying and not directly answering questions, but rather engaging in conspiracy to hide the truth. And then you just bend the powers lent to you by the Crown so that you can punish the person who asks honest and relevant questions.

My pension details and request for waiver of fees remain the same as detailed for my last two FOI requests.

Still waiting for the documents for the last two FOI requests, and this now makes three. If you force me again to go to VCAT, I have already established the precedent there of winning costs when a party shows a pattern of nearly always causing hardship by allowing the request to go as far as VCAT. This is an actual proven precedent. And was tested at VCAT by myself, in the matter 1999/71956 White v EPA."

9. On 7 June 2000 Mr White sent a further letter in the following terms:

"Please find attached, the only notice that the Shire has sent me regarding this harassment. [The attached letter is in fact the letter from the Shire dated 31 May 2001.] No details are given regarding the complaint, I stand accused of something and the Shire denies me my right to know of what I am accused. Please detail the complaint. What does the complainant consider needs to be cleaned up on my 20 acres. Please give details.

I am not only not given the details of the complaint, but my accuser is hidden from me also. How could I possibly mount any defence?

Under the circumstances of the Shire's actual harassment and discrimination, this attached letter from your Shire can only be considered further illegal harassment and discrimination in a conspiratorial manner, deliberately misusing powers lent to your Shire by the Crown, with intent to pervert the course of justice.

Please take this letter as an official request for review of K Tori's decision to refuse access to the letter of complaint. I really do not have to write to make this request for review, as the original FOI request was addressed to you. An so any reply by K Tori, can at law only be considered a reply made under your instructions. But I give you this further chance at review so that you can establish further the black nature of the Shire.

I still consider your Shire bankrupt, as they cannot afford to pay the claims that I will mount against them. This is further shown by your reluctance to comply with my FOI request dated 28 May, my ref PYRENEES 15. Wherein I requested copies of the Shire's public liability insurance policies for the last 20 years."

10. The Shire has taken no further action on the letter of complaint.

11. The Tribunal has received a letter from the complainant making it clear that the complainant does not wish his/her name to be disclosed (I will not identify the complainant even by gender).

12. The Shire claims exemptions under s.31(1)(c), 33(1) and 35(1)(b) of the Freedom of Information Act 1982.

13. I will deal with the exemptions asserted under s.33(1) and s.35(1)(b) together, because they raise overlapping issues.

14. Section 33(1) provides:

"A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person."

15. Subsection (9) provides that "information relating to the personal affairs of any person" includes information that identifies any person or discloses their address or location, or from which any person's identity, address or location can reasonably be determined.

"A document is an exempt document if its disclosure under this Act would divulge any information or matter communicated in confidence by or on behalf of a person or a Government to an agency or a Minister, and -

(b) the disclosure of that information under this Act would be contrary to the public interest by reason that the disclosure would be reasonably likely to impair the ability of an agency or a Minister to obtain similar information in the future."

17. Mr White is an enthusiastic litigant. Apparently, he has three separate FOI reviews currently before VCAT. At different times, he has launched proceedings, of one sort or another, against Pyrenees Shire, the Environment Protection Authority, the Department of Human Services, the Department of Natural Resources and the Environment and the former Deputy Premier Mr Macnamara. He is passionate about the causes he is pursuing. These include allegations of the kind set out in his letters, including an allegation that he is the victim of a conspiracy to harass him, persecute him and discriminate against him. He alleges that the Council is party to a conspiracy "to hide the truth", to "misuse its powers" and to "pervert the course of justice".

18. Mr White told me he suspects that the complainant is also a party to a conspiracy to discriminate against him.

19. Mr White sought to draw a parallel between this case and an objection he made to a planning application. His identity was revealed to the permit applicant: why, he asks, should the identity of this complainant not also be made public?

20. I will deal with this argument immediately. When Mr White objected to the grant of a planning permit, he was well aware his objection was not confidential and that his name, as well as details of his objection, would be communicated to the permit applicant. Objections to planning permits are matters of public record.

21. The complaint here is in an entirely different category. The Shire has statutory responsibilities, including law enforcement responsibilities in areas such as building regulation, dogs and cats, health, by-laws etc. The Shire is empowered to take action in regard to unsightly properties.

22. Like most agencies of government with law enforcement functions, the Shire depends heavily on information received from ratepayers and residents. Law enforcement agencies receive, daily, thousands of pieces of information from the public. This flow of information is vital if those agencies are to discharge their public responsibilities.

23. It is clear that this particular complainant does not want his/her name disclosed and regards the complaint as having been made in confidence. This is not unusual. Sometimes those who give information or make complaints are willing for their names to be disclosed, but often the information is provided confidentially: see Re Phillip Page and Metropolitan Transit Authority (1988) 2 VAR 243.

24. Unless complainants can be assured of confidentiality, the likelihood is that much of the information provided to law enforcement authorities of this State, including shire councils, will dry up. This would be inimical to the public interest: O'Connor v State Superannuation Board of Victoria, Judge Dixon, unreported, 27 August 1984.

25. In his first letter to the Council Mr White asserted that it is "the legal right of the accused" to know "the name of the accuser". This is often (but not always) true if a person is charged with an offence. But Mr White has not been charged with any offence. He has not even been accused of committing an offence. A very bland complaint has been made that his property "should be cleaned up because of the increased tourism in the area and the lead-up to a National Horse event to be held here in the year 2002." The Shire has been asked to "inspect the property to confirm my concerns". The Shire's reaction to that letter was to request Mr White's "comments and proposed action in relation to this complaint": an equally bland letter. No further action has been taken.

26. It is not clear from the complainant's letter why the property was thought to need cleaning up. But there can be no question of the complainant's entitlement to write such a letter, nor the Shire's right to bring the concerns to the attention of Mr White and ask for his "comments and proposed action". Even accepting that there was, and is, an antagonistic relationship between Mr White and the Shire, I find Mr White's response to the letter, and the suggestion of conspiracy involving the Council and the complainant, entirely disproportionate to the tenor and substance of the complaint and the Shire's reaction to the complaint.

27. Mr White is, obviously, aggrieved about the letter of complaint. He has shown himself to be a person who will pursue his grievances up to the hilt. If he became aware of the name of the author of the letter, I would be concerned he would pursue that individual one way or another. I suspect the complainant shares that concern: see Re Stewart and Victoria Police (1987) 2 VAR 192 @ 195.

28. In my opinion disclosure of the complainant's name would be unreasonable because there is an unacceptable risk that the applicant will inappropriately pursue the complainant and occasion the complainant needless distress: see re Reilly v Kilmore and District Hospital (1993) 6 VAR 16 Nor is there any demonstrable need or purpose for the applicant to know the complainant's name: re Gunawan v Department of Education (unreported VCAT, S.Davis SM, 15 December 1998). Moreover, the complainant desires that his/her name remain confidential. In all the circumstances I am of the view that disclosure of the complainant's name would be unreasonable.

29. Further, I am satisfied that the exemption claimed under s.35(1)(b) is also made out. I am satisfied that the information was communicated in confidence and that disclosure of the applicant's name would be reasonably likely to impair the ability of the Shire to obtain similar information in the future. So far as concerns the s.50(4) override, I am not satisfied that the public interest requires that Mr White be given access to the information sought: Ryder v Booth [1985] VicRp 86; [1985] VR 869.

30. The decision of the Tribunal is that the decision of the Shire is affirmed.

Information Act 1982

Gregory White v Pyrenees Shire Council [2001] VCAT 2043

At a glance

Court

Decision date

Source

Judgment (51 paragraphs)

Gregory White v Pyrenees Shire Council [2001] VCAT 2043 (8 November 2001)

Parties

Legislation Cited (1)