Hooper v Willoughby City Council

Hooper v Willoughby City Council - [2021] NSWCATAD 208 - NSWCATAD 2020 case summary — Zoe

In summary the specific items of information for which Mr Hooper sought access were as follows: 1. Schedule A 1. Item 1: money paid by the respondent to any third party in connection with a code of conduct complaint against a Councillor or staff member since September 2008; 2. Item 2: money spent by the respondent after a Councillor or staff member made a complaint against another person at the respondent since September 2008; 3. Item 3: date on which recommendations were made, and by whom they were made, in respect of a code of conduct complaints against any Councillor or staff member since September 2008; 1. Schedule B 1. Item 1 and 2: all code of conduct annual reports and code of conduct complaints statistics reports since 1 September 2008; 2. Item 3 and 4: details (including the resolutions) of when the respondent resolved not to accept the findings or recommendations of any Code of Conduct Committee/Independent Reviewer from 1 September 2008; 3. Item 5 and 6: details of when the respondent resolved not to accept the findings as stated in the 8 October 2018 Code of Conduct-Complaint Statistics report at item 16.3; 1. Schedule C 1. Item 1: details of all money paid by the respondent to any third party in connection with any submission to the Office of Local Government (OLG) or the Minister regarding the alleged misconduct by any Councillor since September 2008; 2. Item 2: the recommendations of any third party in connection with any submission by any third party in connection with any submission to the OLG or Minister regarding alleged misconduct by a Councillor since September 2008; and 3. Item 3: 'All documents relating to or received in response to the submission to the Office of Local Government (OLG) regarding any allegation referred to in "WCC Final Report 20.07.2017" Page 13, paragraph 2' (Schedule C, item 3): "13 October 2016, the General Manager, Ms Debra Just, had lodged a submission to the Office of Local Government (OLG) regarding misconduct by Councillor Hooper that had taken place over the preceding 12 to 18 months. I prepared this submission for the General manager with the assistance of an external consultant, gathered relevant attachments and created the final document."

[5]

Matters in issue

The matters in issue in this application are whether: 1. the searches undertaken by the respondent were reasonable? 2. the grounds on which the respondent had decided to withhold information in the documents listed in Attachment 7 was justified. In particular whether: 1. the conclusively presumed overriding public interest against disclosure namely, excluded information of the OLG, applies to the information in document number 1a, 30, 32, 43 and 44: GIPA Act, s 14(1) and Sch 1, cl 6; 2. the conclusively presumed overriding public interest against disclosure namely, information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege) applies to the information in document number 23 and 24: GIPA Act, s 14(1) and Sch 1, cl 5; 3. in applying the public interest test (s 13 of the GIPA Act),there is an overriding public interest consideration against the disclosure of the information in document number 1-16, 18, 20-22, 25-29, 31 and 33-34. In this regard the respondent relied on the following public interest considerations against disclosure in the table to s 14(2) of the GIPA Act: cl 1(d) and (f), 3(a) and (b) and cl 6; and 1. the imposition of a $825.00 processing charge is justified.
For the reasons that follow, I am satisfied that the respondent has established that: 1. it has undertaken reasonable searches for the information requested by Mr Hooper; 2. 1a, 23, 24, 30, 32, 43 and 44 is justified as there is a conclusively presumed overriding public interest against the disclosure of information in those documents because it is excluded information (i.e. document number 1a, 30, 32, 43 and 44), or privileged information (i.e. document number 23 and 24); and 3. its decision to refuse Mr Hooper access to the information in document number 2, 3, 4, 5, 6, 34, 35, 36, 41 and 42 is justified because there is an overriding public interest against the disclosure of the information in these document (i.e. the public interest grounds being those set out in cl 1(d) and (f), 3(a) and (b) of the table to s 14(2) of the GIPA Act).
However, I am not satisfied that the respondent has established: 1. that its decision to refuse Mr Hooper access to the information in 1, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 20, 21, 22, 25, 26, 27, 28, 29, 31, 33, 37, 38, 38, 39 and 40 is justified on the material before the Tribunal; or 2. that its decision to impose a $825.00 processing charge is justified.

[9]

Public interest considerations against disclosure

The public interest considerations against disclosure are closed: GIPA Act, s 14.
Section 14(1) of the GIPA Act provides that the information prescribed in Sch 1 of that Act, is information for which there is a conclusive presumption of an overriding public interest against disclosure. Included in Sch 1 is the following information: Overriding secrecy laws (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information the disclosure of which is prohibited by any of the following laws (which are referred to in this Act as overriding secrecy laws), whether or not the prohibition is subject to specified qualifications or exceptions and whether or not a breach of the prohibition constitutes an offence - … 5 Legal professional privilege (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. And 6 Excluded information (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that is excluded information of an agency, other than information that the agency has consented to the disclosure of. (2) Before an agency decides an access application by refusing to provide access to information on the basis that it is excluded information of another agency, the agency is required to ask the other agency whether the other agency consents to disclosure of the information. (3) A decision that an agency makes to consent or to refuse to consent to the disclosure of excluded information of the agency is not a reviewable decision under Part 5.
In this case, the respondent has not identified or relied on any of the overriding secrecy laws listed in Sch 1 of the GIPA Act. Hence there is no need to list them.
'Excluded information' is that prescribed in Sch 2 of the GIPA Act and includes the following: Schedule 2 Excluded information of particular agencies Note - Information that relates to a function specified in this Schedule in relation to an agency specified in this Schedule is excluded information of the agency. Under Schedule 1 it is to be conclusively presumed that there is an overriding public interest against disclosure of excluded information of an agency (unless the agency consents to disclosure). Section 43 prevents an access application from being made to an agency for excluded information of the agency. … 2 Complaints handling and investigative information … The Office of Local Government (including the Chief Executive and other Departmental representatives) - complaint handling and investigative functions conferred by or under any Act on that Department.
Section 14(2) of the GIPA Act prescribes a number of public interest considerations against disclosure. These are not conclusive presumptions against disclosure and must be weighed against any relevant public interest consideration in favour of disclosure to see where the balance lies (i.e. the public interest test).
The following s 14(2) table public interest considerations against disclosure are relied on by the respondent in this application: 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, … (f) prejudice the effective exercise by an agency of the agency's functions, … 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, (b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 … … 6 Secrecy provisions (1) There is a public interest consideration against disclosure of information if disclosure of the information by any person could (disregarding the operation of this Act) reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule (of this or another State or of the Commonwealth) that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions.
Section 11 of the GIPA Act provides that, other that a provision of a law listed in Schedule 1 as an overriding secrecy law, the GIPA Act overrides a provision of any other Act or statutory rule that prohibits the disclosure of information, regardless of whether or not the prohibition is subject to specified qualifications or exceptions. Hence, the public interest test in s 13 must be applied to any information the disclosure of which falls with cl 6(1) of the table to s 14(2).

[12]

Process for dealing with an access application

Section 53 sets out the searches an agency must undertake in providing access to government information. That section provides as follows: 53 Searches for information held by agency (1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. (2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency. (3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically. (4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures. (5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.
Section 54(1) of the GIPA Act requires an agency to take such steps as are reasonably practicable to consult with a person before providing access to information relating to that person in response to an access request if it appears that: 1. the information is of a kind that requires consultation; 2. the person may reasonably be expected to have concerns about the disclosure of the information; and 3. those concerns may be relevant to a public interest consideration against disclosure.
Information that does require consultation is information that is personal information about a person other than the person seeking access: GIPA Act, s 54(2)(a) and (b).
Section 54A of the GIPA Act makes provision for consultation with other agencies. That section relevantly provides: 54A Consultation with other agencies (1) An agency may, in response to an access application, consult with any other agency for the following purposes - (a) to determine whether there is an overriding public interest against disclosure of the information, (b) … (2) An agency may be consulted under this section even if the agency would not reasonably be expected to have concerns about the disclosure of the information
Section 55 makes provision for the consideration of personal factors of an application to be taken into account when dealing with an access request. That section provides as follows: 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. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14. …

[16]

Did the respondent undertake reasonable searches?

In its decision the respondent determined that it did not hold any information falling within items 1 and 2 of Schedule C of the applicant's access application, or his application generally: see at [3(3)(a) and (b) above.
A decision by the agency that it does not hold the information sought is an administratively reviewable decision by the Tribunal: ADR Act, ss 7, 9 and 55 and GIPA Act, ss 80(e) and 100. However, the Tribunal has no power to review the sufficiency of an agency's search for the information sought and not located by the agency: Klaric v Commissioner of Police [2020] NSWCATAP 153, at [33].
Nevertheless, it is has long been accepted in reviewing a decision of an agency that it does not hold the information sought, a relevant factor to be considered is whether the agency has complied with the obligation imposed on it under s 53 of the GIPA Act.
Until recently, the Tribunal has accepted the two step approach to this issue as set out by the former Administrative Decisions Tribunal in Cianfrano v Director General Department of Commerce [2006] NSWADT 195, at [69]. Step one in that approach required the access applicant, in this case Mr Hooper, to place some credible material or submissions before the Tribunal to establish that there was an arguable case that further documents existed. It was only when the applicant had put such material before the Tribunal that the second step was engaged (i.e. whether the search efforts made by the agency to locate the information was reasonable).
However, in Wojciechowska v Commissioner of Police [2020] NSWCATAP 173, which was published on 21 August 2020, at [39], the Appeal Panel (Principal Member A Britton) found that this approach was inconsistent with s 105 of the GIPA Act, which placed the onus on the agency to establish that its decision was justified.
At [34] to [39], the Appeal Panel noted that the two-step approach had arisen in the context of the now repealed Freedom of Information Act 1989 (NSW) (the repealed Act). The Appeal Panel noted that the repealed Act did not make provision for determining an access application on the grounds that the agency did not hold the information sought. Nor did the repealed Act contain a provision equivalent to s 53 of the GIPA Act.
At [44], the Appeal Panel summarised what the Tribunal's approach (i.e. task) should be when reviewing a decision of an agency, made under s 58(1)(b) of the GIPA Act, that the agency did not hold the information sought, as follows: (1) identify on the basis of the agency's reasons and the applicant's submissions, any relevant factual issues including those derived from s 53(1) - (5); (2) determine whether the agency has proved any relevant factual issues on the balance of probabilities; (3) consider any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency; (4) applying those findings, decide what the correct or preferable decision is; (5) affirm, set aside or vary the agency's decision: s 63(3) of the Administrative Decisions Review Act.
In my view the abovementioned summary of the Appeal Panel is correct.
In its decision, the respondent said that searches for the information requested by Mr Hooper were made in its official records system known as ECM. The respondent went on to say that a thorough search had been made across a number of subject and customer name indices that covered the subject matter of Mr Hooper's access application.
Mr Hooper, on the other hand, made a general assertion that there was information the respondent held falling within his access application , but not located or identified by the respondent in its decision. However, he did not provide any specific details of what he asserted to have been held by the respondent but not located.
At the hearing, the respondent submitted that it had complied with its obligation under s 53 of the GIPA Act and Mr Hooper had not identified any information held by the respondent that had not been located. As I have noted, this is a matter that can be taken into account in determining whether an agency does not hold the information sought by the access applicant.
In her statement, Ms Charlton said that Mr Grepl and David Page (Mr Page), the respondent's Operations Support Officer, had undertaken the searches for the information sought. Those searches, she said, were undertaken in the following electronic systems of the respondent: 1. the Funds Checking Requisition System; 2. the Technologyone Enterprise Contents Management system (ECM); and 3. the Local Distributed File System (DFS), which is also known as the 'U drive'.
Ms Charlton went on to explain what information was held in each of the abovementioned systems and the search terms that were used in locating the information Mr Hooper sought access to.
Ms Charlton noted that in light of Mr Hooper's assertion that there was additional information held by the respondent further searches were undertaken and an additional document was located that fell within item 1 of Schedule C of his access application. However, it was information that had already been located in the context Schedule A of Mr Hooper's access application and for which a decision had been made to grant access.
In my view, on the material before the Tribunal, I am satisfied that the respondent has met its obligation under s 53(2) to undertake reasonable searches to find the information sought by Mr Hooper and it did so by using the most efficient means reasonably available to it. At the hearing Mr Hooper did not contend otherwise. However, he was concerned about the time the respondent had taken to deal with his access application. I have dealt with this below under the heading 'Processing Charge'.
Accordingly, I reiterate my finding that the respondent undertook reasonable searches for the information Mr Hooper sought access to and I am satisfied that the respondent has established that it did not hold, as at the date of Mr Hooper's access application, any further information.
Hence, I find that the decision of the respondent that it does not hold any further information falling within Mr Hooper's access application is the correct and preferable decision.

[17]

The withheld information falling within Attachment 7

I understand the respondent to contend that all the information in the documents listed in Attachment 7 is 'excluded information'. In the alternative, in the event the Tribunal were to find that the information is not 'excluded information', the respondent contends that, other than the information in document number 17 and 19, there is either a conclusively presumed overriding public interest against disclosure of the information in these documents, or a public interest consideration against disclosure of the information in these documents, on balance, outweighs the public interest in favour of disclosure.
The OLG also contends that the information in all the documents listed in Attachment 7 is 'excluded information'. I understand that when consulted by the respondent, the OLG initially object to the disclosure of all the information in these documents. However, in the course of these proceedings, the OLG, in accordance with cl 6(1) of Sch 1 of the GIPA Act, advised that it 'did not object to the disclosure' of the information in document number 1-29, 31 and 33-42.
In its submissions, the respondent accepted the decision of the OLG that it did not object to the disclosure of the information in document number 1-29, 31 and 33-42, but it was unsure as to whether this also meant that the OLG had consented to the disclosure of that information.
As explained by the respondent, at [34] of its written submissions, document number 1 to 42 are the documents the respondent had attached to document number 1a, which is the respondent's submissions to the OLG dated 13 October 2016. That is, the information in document number 1-29, 31 and 33-42 is information that was created by or received by the respondent before 13 October 2016.
In my opinion, based on the information in document number 1a and the content of the remaining documents in Attachment 7, OLG's response of not objecting to the disclosure of document number 1-29, 31 and 33-42 is consistent with a decision to consent to the disclosure of the information in these documents, subject to the respondent determining, under the provisions of the GIPA Act, whether access should be granted or refused to the information in these documents.

[19]

The LG Act

Section 7 of the Local Government Act describes its purpose as follows: 7 Purposes of Act The purposes of this Act are as follows: (a) to provide the legal framework for the system of local government for New South Wales, (b) to set out the responsibilities and powers of councils, councillors and other persons and bodies that constitute the system of local government, (c) to provide for governing bodies of councils that are democratically elected, (d) to facilitate engagement with the local community by councils, councillors and other persons and bodies that constitute the system of local government, (e) to provide for a system of local government that is accountable to the community and that is sustainable, flexible and effective.
Chapter 14 of the Local Government Act contains provisions relating to honesty and disclosure of interest. As at 13 October 2016 that Chapter contained an introduction that summarised the provisions in that Chapter as follows: 1. placing obligations on councillors, council delegates, staff of councils and administrators of councils to act honestly and responsibly in carrying out heir functions, including an obligation to refrain from taking part in decisions on council matters in which they have a pecuniary interest; 2. the adoption of codes of conduct for councillors, staff and other persons associated with the functions of councils; 3. enabling the OLG Chief Executive to investigate and take action against councillors who engage in misconduct; 4. enabling any person to make a complaint concerning a failure to disclose a pecuniary interest; and 5. making provision for the investigation of complaints.
Section 439(1), in Division 1 of Part 1 in Chapter 14, provides: (1) Every councillor, member of staff of a council and delegate of a council must act honestly and exercise a reasonable degree of care and diligence in carrying out his or her functions under this or any other Act.
Section 440, in this Division, provides that a council must adopt a code of conduct that incorporates the model code of conduct as prescribed in the regulations to the Act and applicable to councillors, members of staff of councils and delegates of councils.
Section 440AA, in the same Division and Part, provides that a council must adopt a 'procedure' that incorporates the provisions of a procedure as prescribed in the regulations to the Act for administering the model code of conduct (Procedures).
The model code of conduct and Procedures that applied at the relevant time (i.e. February 2014 - October 2016), were those prescribed under reg. 193 of the Local Government (General) Regulation 2005 (NSW) (i.e. the model code of conduct published in the Gazette on 13 November 2015 and the Procedure published in the Gazette on 7 December 2012).
Division 3 of Part 1 in Chapter 14 contains provision concerning 'misconduct', which, at the relevant time (October 2016) was defined in s 440F as follows: 440F Definitions (1) In this Division: misconduct of a councillor means any of the following: (a) a contravention by the councillor of this Act or the regulations, (b) a failure by the councillor to comply with an applicable requirement of a code of conduct under section 440, (c) a failure by a councillor to comply with an order issued by the Departmental Chief Executive under this Division, (d) an act of disorder committed by the councillor at a meeting of the council or a committee of the council, (e) an act or omission of the councillor intended by the councillor to prevent the proper or effective functioning of the council or a committee of the council. (2) However, a contravention of the disclosure requirements of Part 2 is not misconduct. Note - A contravention of the disclosure requirements of Part 2 is dealt with under other provisions of this Chapter. (3) A reference in this Division to misconduct includes a reference to misconduct that consists of an omission or failure to do something.
Section 440H in Division 3 of Part 1 in Chapter 14 sets out who and how an allegation of misconduct by a councillor of a council is to be dealt with. That section relevantly provides as follows: 440H Departmental Chief Executive may investigate or seek report on misconduct of councillor (1) The Departmental Chief Executive may conduct an investigation for the purpose of determining whether a councillor has engaged in misconduct. (2) The Departmental Chief Executive may conduct such an investigation: (a) on his or her own initiative, or (b) if the general manager of a council refers an allegation of misconduct by a councillor to the Departmental Chief Executive, or (c) if a council, by resolution, refers an allegation of misconduct by a councillor to the Departmental Chief Executive, or … (5) The Departmental Chief Executive may arrange for a departmental report to be prepared in relation to an investigation conducted under this section. (5A) The Departmental Chief Executive may arrange for a departmental report to be prepared about whether a councillor has engaged in misconduct without an investigation being carried out under this section if: (a) the matter has been referred to the Departmental Chief Executive by the council and the Departmental Chief Executive is of the opinion that the report may be based on the findings of an investigation conducted by or on behalf of the council, or (b) the Departmental Chief Executive is of the opinion that the alleged misconduct, if proven, would be minor in nature and, were it to warrant disciplinary action, the disciplinary action would be comprised only of counselling or reprimanding the councillor, or (c) the Departmental Chief Executive otherwise considers it appropriate to do so.
Section 440I in Division 3 of Part 1 of Chapter 14 gives the OLG Chief Executive the power to take disciplinary action where the Chief Executive is satisfied that a councillor has engaged in misconduct and that disciplinary action is warranted. Section 440J makes provisions for alternatives to taking disciplinary action as follows: 440J Alternatives to disciplinary action by the Departmental Chief Executive (1) The Departmental Chief Executive may before, during or after an investigation into an allegation of misconduct by a councillor decide to take no further action against the councillor, if satisfied that no further action is warranted. (2) The Departmental Chief Executive may, instead of taking disciplinary action against a councillor: (a) refer the matter to the council concerned with recommendations as to how the council might resolve the matter, by alternative dispute resolution or otherwise, or (b) refer the matter to the Civil and Administrative Tribunal for consideration. (3) A matter is referred to the Tribunal under this section by means of a report presented to the Tribunal by the Departmental Chief Executive. A report may contain or be accompanied by such material and observations as the Departmental Chief Executive thinks fit. (4) The Departmental Chief Executive is to notify the councillor concerned of any decision to refer the matter to the Tribunal. (5) The regulations may make provision for or with respect to the reference of matters to the Tribunal under this section.
As noted in the written submissions of the OLG, Part 5 of the applicable Procedures for the administration of the model code of conduct contains additional administrative arrangements for dealing with allegations of misconduct. In this regard: 1. cl 5.39 of the Procedures made provision for the general manager of a council to request, in writing, that the relevant Division of the OLG 'enter into a special complaints management arrangement with the council in relation to code of conduct complaints made by or about a person or persons'; 2. cl 5.43 of the Procedures provides that, subject to cl 5.44, while a special complaints management arrangement is in force, an officer of the Division (the assessing Divisional officer) must undertake a preliminary assessment of the code of conduct allegations specified in the arrangement.
The OLG and the respondent also made reference to s 429A of the Local Government Act, which makes provision for complaints to be made about 'the conduct' of councils, a delegate of a council, councillors and a member of staff of a council to the Chief Executive of OLG.
Although s 429A appears to be very broad in scope, I am not altogether persuaded that it includes complaints about alleged misconduct, which has its own regime for making complaints and investigating those complaints under Chapter 14 of the Act.
I make no conclusive finding in regard to the proper construction of s 429A. Nor, for the reasons set out below, is it necessary for me to do so.

[22]

Consideration and Findings

In my view, Ms Klassen's investigation report does not support the assertions made by Mr Hooper. As noted in the quote cited by Mr Hooper in his access application, Ms Hillman, in her role as the respondent's Governance and Administration Manager, had made her complaint against Mr Hooper at the time she was still employed in that role. Although the respondent engaged Ms Klassen after Ms Hillman had left the employ of the respondent, she was engaged, in accordance with the Procedures, to investigate, on the respondent's behalf, the alleged misconduct that occurred during Ms Hillman's employment with the respondent. That is, Ms Klassen was in effect fulfilling the obligations of the respondent under the Procedures in regard to alleged events that occurred during Ms Hillman's employment with the respondent. Hence, there is no evidence of a public disclosure of the OLG submissions.
In any event, in my view, Mr Hooper's assertions are of no relevance to the issue as to whether that information is excluded information under the GIPA Act, because even if it had been disclosed publicly it is still excluded information under the GIPA Act, unless there was evidence of the OLG having consented to its disclosure.
Nevertheless, the question remains as to whether the information in the OLG submissions (i.e. document number 1a) is information that relates to the OLG's complaint handling and investigative functions under the Local Government Act and is thereby excluded information under the GIPA Act.
Having regard to the content of the information in document 1a, I am satisfied that the information directly relates to the OLG's misconduct complaint handing and investigative functions under Chapter 14 of the Local Government Act: see Local Government Act, s 440H(2). I make this finding because the information expressly states that it is a referral from the General Manager of the respondent to the OLG the Acting Chief Executive concerning alleged misconduct by a Councillor and for which the General Manager requested a special complaint arrangement under cl 5.16 of the Procedures.
Hence, I am satisfied that the information in document number 1a is excluded information of the OLG under cl 2 of Schedule 2 of the GIPA Act. I am also satisfied that the OLG has not consented to the disclosure of this information. Accordingly, I am satisfied that there is a conclusive presumption of an overriding public interest against the disclosure of the information in document number 1a: GIPA Act, s 14(1) and Sch 1, cl 6.
For the same reasons, I am also satisfied that the information in document number 1 to 42 (the attachments to document number 1a) is also excluded information as it is information that is directly related to the information contained in document number 1a. However, as I have already noted, other that the information in document number 30 and 32, the OLG does not object to the disclosure of the information in the remaining documents that are attachments to document 1a. And as acknowledged by the respondent, the OLG's decision to not object to the disclosure of the information in the remaining attachments to document 1a is not a reviewable decision by the respondent or the Tribunal: see GIPA Act, Sch 1, cl 6(3).
As the OLG has not consented to the disclosure of the information in document number 30 and 32, I am also satisfied that there is a conclusive presumption of an overriding public interest against the disclosure of the information in these documents: GIPA Act, s 14(1) and Sch 1, cl 6.
I also agree with the submissions of the OLG that the information in document number 43 and 44 is excluded information. Document number 43 is OLG's response to the respondent's letter and submissions, that is document number 1a. Document number 44 is a further response to the respondent's letter and submissions. That is, I am satisfied that the information in these documents is also directly related to the information in document 1a and falls within the OLG's complaint handling and investigative functions as conferred on its Chief Executive Officer, under Chapter 14 of the Local Government Act.
Again, the OLG has not consented to the information in document 43 and 44 being disclosed and on this basis I am also satisfied that there is a conclusive presumption of an overriding public interest against the disclosure of the information in these documents: GIPA Act, s 14(1) and Sch 1, cl 6.
For the reasons set out above, I am satisfied that the respondent has established that its decision to refuse Mr Hooper access to the information in document number 1a, 30, 32, 423 and 44 is justified as there is a conclusive presumption of an overriding public interest against the disclosure of the information in these documents on the grounds that the information in these documents is privileged: GIPA Act, s 14(1) and Sch 1, cl 6

[24]

The Evidence Act

Sections 118 and 119 of the Evidence Act 1995 (Evidence Act) (NSW) set out the circumstances where information would be privileged from production in legal proceedings on the grounds of client legal privilege. The Tribunal has accepted that these circumstances are effectively the same as those that apply under the common law: Transport for NSW v Robinson [2018] NSWCATAP 123 at [43].
Section 118 and 119 of the Evidence Act relevantly provide as follows: 118 Legal advice Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication made between the client and a lawyer, or (b) a confidential communication made between 2 or more lawyers acting for the client, or (c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person, for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client. 119 Litigation Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of - (a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or (b) the contents of a confidential document (whether delivered or not) that was prepared, for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.
The term 'client' is defined in s 117(1) of the Evidence Act and includes a person or body who engages a lawyer to provide legal services (e.g. legal advice) and an employee or agent to a client.
The term 'confidential communication' is broadly defined in s 117(1) to mean a communication prepared in such circumstances that, when it was prepared the person who prepared it, or the person for whom it was prepared, was under an express or implied obligation not to disclose its contents.
The term 'dominant purpose' is not defined in the Evidence Act. However, it is accepted that it means the prevailing or paramount purpose: AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234 at [44].
Section 122 of the Evidence Act sets out the circumstances where the privilege in the legal advice sought or obtained by a client is lost or waived. These are where a client or party 'has acted in a way that is inconsistent' with its right to object to a disclosure of the confidential communication on the grounds of client privilege: Mann v Carnell (1999) CLR 1; 168 ALR 86; [1999] HCA 66 at [29].

[25]

Consideration

Other than providing the Tribunal with a copy of the withheld information, the respondent has not put on any evidence (open or confidential) in support of its contention that the information in document number 23 and 24 is privileged.
Nevertheless, having carefully considered the content of the information in these documents and, in part, the withheld information, I am satisfied that the information would be privileged from production in legal proceedings on the grounds of client legal privilege.
Document 23 is a Memorandum, dated 13 April 2015 from a Partner of King Wood and Mallesons to the General Manager of the respondent. The Memorandum contains the details of legal advice given by the Partner (the lawyer), to the Council (the client) on a specific issue. While the Memorandum is not marked confidential, I am satisfied, based on the information contained within the Memorandum and other withheld information, that the circumstances in which the Memorandum came into existence that it is a confidential communication for the dominant purpose of King Wood and Mallesons (the lawyer) providing legal advice to the respondent (the client).
Document 24 is a report dated 29 July 2016. While the report does not identify its author as being a lawyer, I am satisfied, based on the information contained in report and, in part, the withheld information, that the report was prepared for the respondent by a lawyer from Pikes & Verekers Lawyers. I am also satisfied that the report is a confidential communication that came into existence for the dominant purpose Pikes & Verekers Lawyers (the lawyer) providing legal advice to the respondent (the client).
I also find that the respondent's disclosure of these documents to OLG was not inconsistent with the respondent's right to claim client privilege as they were provided to the OLG in confidence, in accordance with cl 5.16 and 5.39 of the Procedures.
For the reasons set out above, I am satisfied that the respondent has established that its decision to refuse Mr Hooper access to the information in document number 23 and 24 is justified as there is a conclusive presumption of an overriding public interest against the disclosure of the information in these documents on the grounds that the information in these documents is privileged: GIPA Act, s 14(1) and Sch 1, cl 5.

[26]

Information for which, on balance, the public interest consideration against disclosure outweighs the public interest considerations in favour of disclosure

The respondent contends that the information in document number 1-16, 18, 20-22, 25-29, 31 and 33-42 (36 documents - the remaining documents) is information for which there is a s 14(2) public interest consideration against disclosure which, on balance, outweighs the public interest considerations in favour of disclosure. In many cases, the information in the document number is either made up of an email chain or several separate documents.
The remaining documents are dated between 24 February 2014 and August/September 2016. As I have already noted, the information contained in these documents is information created by or received by the respondent prior to 13 October 2016 and for which the OLG does not object to being disclosed.
Other than the information contained in the remaining documents, the respondent has not provided any open evidence or confidential evidence setting out the circumstances in which these documents were created or received. However, as noted in Mr Hooper's access request, the information was arguably of some relevance to the respondent's 13 October 2016 submission to OLG concerning his conduct, in the preceding 12 to 18 months, as a Councillor of the respondent: see at [3(3)(b)] above.
In Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 (Camilleri), at [25] the Appeal Panel held that there was a structured approach to the decision making task under the GIPA Act in that: 25 … [The] agency case for refusal must rely on one or more of the section 14 Table considerations. The Tribunal's task is then to weigh that case against the factors favouring disclosure (s 13), mindful of the injunctions that appear in both ss 12 and 15. It is important, in our view, that the Tribunal proceed in the structured way reflected by these provisions. The Table considerations are concerned with systemic features of the operation of government
In my opinion, the respondent has failed to take a structured approach to the decision making task in regard to the 'information' in each and every document for which access was refused. Instead, it has taken a broad-brush approach by asserting that the public interest considerations against disclosure in cl 1(d) and (f), 3(a) and (b) and 6(1) in the Table to s 14(2) of the GIPA Act applied to the information in each of the remaining documents. The same broad-brush approach has been taken in regard to determining where the balance lies between the two competing public interests. Yet the same approach was not taken to the information in document number 17, 19, 23 and 24.
This broad-brush approach may have been appropriate under the repealed Freedom of Information Act. However, as I have noted above, the focus of the GIPA Act is on 'information' (i.e. government information) held by an agency and not documents held by an agency.
I have dealt with the information in document number 23 and 24 above.
In regard to document number 17 and 19, the respondent determined that the information in these documents was 'Public'. As noted by the respondent, document number 19 is a published decision of His Honour Justice Brereton in Willoughby City Council (in its capacity as Manager of Talus Street (R73306) Reserve Trust) [2016] NSWSC 127. The decision was published on 3 February 2016 and concerned a Notice of Motion that had been brought by Mr Hooper. Document number 17 is a copy of Mr Hooper's Notice of Motion, together with his supporting affidavit, which I assume the respondent to have determined was publicly disclosed as it was tendered into evidence at the hearing of Mr Hooper's Notice of Motion. Yet, while information in other documents listed in Attachment 7 appear to be of a similar kind this has been withheld and not found to be 'Public'. [NOT FOR PUBLICATION] - for example, document number 25.

[28]

Cl 1(d) prejudice the supply to the agency of confidential information that facilitates the effective exercise of the agencies functions

In order for the public interest consideration against disclosure in cl 1(d) to apply, the Tribunal must be satisfied that the respondent has established the following: 1. the information in issue is confidential information; 2. the disclosure of confidential information of this kind could reasonably be expected to 'prejudice' the supply of confidential information to the respondent in the future; and 3. the information facilitates the effective exercise of the respondent's 'functions'.
It is accepted that the question as to whether the information in issue is 'confidential information', is a question of fact that must be examined by reference to the agency's evidence as to the conditions under which it conducts its service/ functions within which the information was received: Camilleri, at [33]. The Appeal Panel went on to state the following at [34]: 34 … [The] enquiry, so far as cl 1(d) is concerned, should focus on the point of receipt, and the administrative standards and community understandings which surrounded it.
That is, the fact that the information is not marked confidential does not determine the matter.
It has been accepted that the word 'prejudice' should be given its ordinary meaning, namely - 'to cause detriment or disadvantage' or 'impede or derogate from': McLennan v University of New England [2013] NSWADT 113.
The functions of a council, including the respondent, is set out in ss 21, 22 and 23 of the Local Government Act. These sections provide that a council has the functions conferred on it under that Act or under any other Act or law and that a council may do all such things that are supplementary to, incidental to, or consequential on the exercise of its functions.
The specific functions conferred on a council under the Local Government Act includes a service function (Chapter 6), a regulatory function (Chapter 7) and ancillary functions such as the acquisition of land, and powers of entry to any land and premises so as to carry out water supply work, sewerage work or storm water drainage work or to conduct inspections and investigations in regard to such work (Chapter 8).
Chapter 12 makes provision for how councils work. Section 133 in Chapter 12, provides that a council may, subject to the provisions in that part, be exercised: (a) by the council by means of the councillors or employees, by its agents or contractors, by financial provision, by the provision of goods, equipment, services, amenities or facilities or by any other means, or (b) by a committee of the council, or (c) partly or jointly by the council and another person or persons, or (d) jointly by the council and another council or councils …
Chapter 13 contains provisions about how councils are made accountable for their actions to their local community, including provisions for strategic planning, financial management, annual reporting and performance management of a council.
Chapter 14 of the Local Government Act contains provisions in respect of misconduct by a councillor, member of staff of a council etc. As I have already noted the complaint handling and investigatory functions of OLG under that Act includes complaints and investigation of such complaints about misconduct, as defined in s 440F.
In my opinion, as the conduct (i.e. alleged misconduct) to which Chapter 14 is directed, is that of any councillor, member of staff of a council etc. each council, including the respondent, also has a complaint handling and investigatory function in regard to alleged misconduct by its own Councillors and staff members etc. This is also reflected in each council being required to adopt the models code of conduct and the Procedures, the latter of which clearly recognise the role of a council in such complaint handling and investigations thereof.
There is no dispute that the respondent's code of conduct (that adopted the applicable model code of conduct) applied at the relevant time, as did the Procedures. Clause 13.1 of the Procedures as they applied at the relevant time expressly provided: Information about code of conduct complaints and the management and investigation of code of conduct complaints is to be treated as confidential and is not to be publicly disclosed except as may be otherwise specifically required or permitted under these procedures.
I accept the evidence of Ms Brown that if confidentiality 'to the greatest extent possible' can not be assured to complainants and persons who provide information in regard to alleged misconduct such persons will be reluctant make complaints or provide information. That reluctance, I am satisfied could reasonably be expected to prejudice the supply of such information which facilitates the effective exercise of the respondent's obligations/functions, under the Procedures, to address misconduct by its councillors, general manager and its staff.
I have carefully considered the information in the remaining documents and I am satisfied that the information in document number 2, 3, 4, 33, 34, 35, 41 and 42 is information supplied in confidence concerning alleged misconduct under the Procedures. I am also satisfied, on the material before the Tribunal, that the information is of a kind that could reasonably be expected to prejudice the supply to the respondent of confidential information that facilitates the effective exercise of the respondent's functions of complaint handling and investigation of alleged misconduct by its Councillors, General Manager and its staff.
Document 2, 3 and 4 - [NOT FOR PUBLICATION]
Document 33, 34 and 35 - [NOT FOR PUBLICATION]
Document 41 - [NOT FOR PUBLICATION]
Document 42 - [NOT FOR PUBLICATION]
However, in the absence of any evidence about the context in which the information created or supplied and the specific functions of the respondent to which the information relates, I am not satisfied that the respondent has established that this public interest consideration against disclosure (cl 1(d)) applies to the information in the other remaining documents. [NOT FOR PUBLICATION]

[30]

Cl 3(a) and 3(b): reveal an individual's personal information and contravene an information protection principle under the Privacy and Personal Information Protection Act 1998

There are two aspects to the cl 3(a) public interest consideration against disclosure. These are: 1. the information in issue is personal information; and 2. a disclosure of that information could reasonably be expected to reveal that information.
The term 'personal information' is broadly defined in cl 4 of Sch 4 of the GIPA Act as follows: 4 Personal information (1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion. (2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics. (3) Personal information does not include any of the following: (a) information about an individual who has been dead for more than 30 years, (b) information about an individual (comprising the individual's name and non-personal contact details, including the individual's position title, public functions and the agency in which the individual works) that reveals nothing more than the fact that the person was engaged in the exercise of public functions, …
The term 'reveal' means - 'to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)': GIPA Act, Sch 4 cl 1.
In regard to cl 3(b), s 20 of the Privacy and Protection Information Protection Act 1998 (NSW) (PPIP Act) provides that the information protection principles prescribed in ss 8 to 19 of that Act apply to government agencies and s 21(1) of that Act provides that a public sector agency must not do anything, or engage in a practice, that contravenes an information protection principle.
There is no dispute that the information protection principles apply to the respondent.
Section 18 of the PPIP Act sets out the circumstances in which there can be a disclosure of personal information. In summary the circumstances are: 1. where the disclosure is directly related to the purpose for which the information was collected; 2. the individual is reasonably likely to have been aware, or is made aware in accordance with s 10 of the PPIP Act, that information of this kind is usually disclosed; or 3. the agency believes, on reasonable grounds, that the disclosure is necessary to prevent or lessen a serious and imminent threat to life or health.
I am satisfied that the information in document number 2, 3, 4, 5, 6, 34, 35, 36, 41 and 42 includes personal information about an individual and that a disclosure of that information could reasonable be expected to reveal that information in the relevant sense. In this regard, I note that the respondent has not consulted the individuals to whom the personal information relates. [NOT FOR PUBLICATION]
I am also satisfied that a disclosure of the information in document number 2, 3, 4, 5, 6, 34, 35, 36, 41 and 42 could reasonably be expected to contravene the disclosure information protection principle in s 18 of the PPIP Act, as none of the abovementioned circumstances in which information of this kind can be disclosed applies.
On the material before the Tribunal I am not satisfied that a disclosure of the information document number 1, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 20, 21, 22, 25, 26, 27, 28, 29, 31, 33, 37, 38, 38, 39 and 40 could reasonably be expected to disclose personal information of breach s 18 of the PPIP Act. In some cases, the information does no more than reveal that the person who wrote the email or letter was doing so in the exercise of his or her public function and therefore, the information is not personal information. [NOT FOR PUBLICATION]

[31]

Cl 6 constitutes a contravention of a provision of any other Act or statutory rule (of this or another State or of the Commonwealth) that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions

For this public interest consideration against disclosure to apply to the information in issue, the respondent must: 1. identify a provision of an Act (other than the GIPA Act) or statutory rule (other than the Government Information (Public Access) Regulation 2018) that prohibits the disclosure of information, regardless of whether the provision or statutory rule contains a qualifications or exception; and 2. establish that the information in issue could reasonably be expected to constitute a contravention (i.e. breach) of that provision.
As I have noted, in determining whether this public interest consideration against disclosure applies to the information in issue, consideration can be given to the policy that underlies the provision of the Act or statutory rule.
In this case, the respondent contends that cl 13.1 of the Procedures is a prohibition on the disclosure of information concerning complaints about alleged misconduct and a breach of that clause amounts to a contravention of that prohibition.
As noted above, s 440AA(1) of the Local Government Act makes provision for the prescribing of the Procedures under the regulation for the purpose of administering the model code of conduct. Clause 181 of the Local Government (General) Regulation provides that the Procedure document published in the relevant Gazette is that which is prescribed for the purposes of s 440AA of the Act.
In my opinion, this does not make a provision within the Procedure a provision of the Local Government Act or the regulations made under it. That is, I am not persuaded that cl 13.1 of the Procedures is a provision of an Act or statutory rule. Instead, it is part of a document setting how allegations of misconduct are administered. That is they are administrative directions.
The respondent has also pointed to s 664(1) of the Local Government Act as a relevant secrecy provision. That section provides as follows: 664 Disclosure and misuse of information (1) A person must not disclose any information obtained in connection with the administration or execution of this Act unless that disclosure is made: (a) with the consent of the person from whom the information was obtained, or (b) in connection with the administration or execution of this Act, or (c) for the purposes of any legal proceedings arising out of this Act or of any report of any such proceedings, or (d) in accordance with a requirement imposed under the Ombudsman Act 1974 or the Government Information (Public Access) Act 2009, or (e) with other lawful excuse. (1A) In particular, if part of a meeting of a council or a committee of a council is closed to the public in accordance with section 10A (1), a person must not, without the authority of the council or the committee, disclose (otherwise than to the council or a councillor of the council) information with respect to the discussion at, or the business of, the meeting. (1B) Subsection (1A) does not apply to: (a) the report of a committee of a council after it has been presented to the council, or (b) disclosure made in any of the circumstances referred to in subsection (1) (a)-(e), or (c) disclosure made in circumstances prescribed by the regulations, or (d) any agenda, resolution or recommendation of a meeting that a person is entitled to inspect in accordance with section 12. (2) … Maximum penalty: 50 penalty units.
Unlike some other secrecy provisions in legislation, this secrecy provision is not the subject of a conclusive presumption of an overriding public interest against disclosure under s 14(1) of the GIPA Act as it is not included in Sch 1 of that Act as an 'overriding secrecy law'. Hence, the question is whether a disclosure of the information in the documents in Attachment 7 could reasonably be expected contravene the prohibition in s 664 of the Local Government Act.
Leaving aside the exceptions in s 664(1)(a) to (e), the prohibition in s 664(1) is very broad and it is arguable that a disclosure of the information in each of the remaining documents could amount to a breach of that section. The policy, if any, that underlies this very broad prohibition has not been explained by the respondent, other than to assert that it is intended to cover the disclosure of any information, including misconduct complaints made and dealt with under the Procedures.
Section 664(1A), on the other hand, is very specific in that it applies to meetings of a council or a committee of a council held in confidence, in the absence of the public.
Document number 1 is a Notice of Motion, dated 24 February 2014, moved by one of the respondent's Councillors. It is marked Confidential and is also marked as having been carried. Document number 16 is also a Notice of Motion, dated 14 December 2015, and marked 'Closed Council Meeting. The Notice of Motion is also marked as being carried.
The respondent has made no specific claim, or provided any evidence, in regard to these Notices of Motion, but I understand it to contend that all the information in the remaining documents falls within ss 664(1), includes s 664(IA).
While I accept that it is arguable that the public interest consideration against disclosure in cl 6(1) of the table to s 14(2) applies to the information in the documents at Attachment 7, in my view, other than information that might relate to a council meeting of the respondent a meeting of a committee of the respondent, should be given little weight, because s 664(1) is expressly stated to be subject to the provisions of the GIPA Act. While s 664(1A) is also subject to the GIPA Act, depending on the nature of the information falling within that section and the matters in s 664(!B), it may be appropriate to give this public interest against the disclose more weight. As I have already noted, in this case, the respondent has not provided any explanation or evidence in regard to the Notices of Motion, some of which were moved by Mr Hooper or were carried by him.

[33]

Where does the balance lie?

In its written submissions, the respondent acknowledged that the public interest considerations in favour of disclosure are important. However, it went on to contend that there should be no disclosure of the information that reveals: (a) the identity of complainants and persons who have participated in an investigation, (b) complainants who have alleged misconduct in public office and (c) personal information of persons who have participated in the investigation of alleged misconduct in public office because this is information closely aligned to the s 3 objectives of the GIPA Act of maintaining and advancing a system of responsible government.
That is, it is the contention of the respondent that 'given the overwhelming importance of that continued flow of information to ensuring responsible Local Government, the public interest considerations against disclosure outweigh those in favour'.
As I have noted above, contrary to the submissions of the respondent, the object of the GIPA Act is to open government information to the public by giving members of the public an enforceable right to access government information and providing that access is restricted only when there is an overriding public interest against disclosure of the information. This is emphasised in s 5 of the GIPA Act which provides that there is a presumption in favour of disclosure of government information unless there is an overriding public interest against disclosure. Section 12(1) also provides that there is a general public interest in the disclosure of government information.
Hence, in regard to the information in the remaining documents in Attachment 7, the question is whether the public interest considerations against disclosure, on balance, outweighs the public interest in favour of disclosure and in my view, this test needs to be applied to each of the differing kinds of information contained in the remaining documents and not to the documents as a whole. This requires weight to be attributed to the public interests in favour and also those against disclosure.
For the reasons I have given above, in my view, the public interest consideration against disclosure in cl 6 of the table to s 14(2) should be given little weight.
On the other hand, for the reasons set out above, in my view the cl 1(d) and (f), and cl 3(a) and (b) public interest considerations against the disclosure of the information in document number 2, 3, 4, 5, 6, 34, 35, 36, 41 and 42 should be given considerable weight because it is personal information about and individual or information of a kind that is necessary in order for the respondent to fulfil its function of detecting and responding to incidents of alleged misconduct of its Councillors, General Managers and staff. It includes sensitive personal information of the complainant and the individuals complained about, which is provided/supplied on the understanding of confidentiality and a disclosure of that information could reasonably be expected to prejudice the supply of information of this kind to the respondent in the exercise of its ability to identify and deal with incidents of misconduct. This in turn would have an adverse effect on the respondent's ability to fulfil its functions in providing a system of local government to its community that is accountable, sustainable and effective.
Given the personal and sensitive nature of the information in document number 2, 3, 4, 5, 6, 34, 35, 36, 41 and 42, in my view, the public interest in favour of disclosure identified by the respondent should be given little weight as a disclosure of the information is unlikely to significantly promote government accountability. Nor in my opinion, would a disclosure of the information in these documents contribute to positive and informed debate on an issue of public importance.
In regard to the information in document number 2, 3, 4, 5, 6, 34, 35, 36, 41 and 42 which includes, in part, the personal information about Mr Hooper, in my view, the public interest consideration in favour of the disclosure of this information should be given considerable weight.
However, in my view, the public interest considerations against disclosure of the information in document number 2, 3, 4, 5, 6, 34, 35, 36, 41 and 42, on balance, outweighs the public interest consideration in favour of disclosure because; (a) it is personal information supplied in confidence to the respondent in the exercise of its functions, and (b) even though the information contains personal information about Mr Hooper, I am satisfied that this information is mainly intertwined with the personal information about another individual(s). Hence, a disclosure of Mr Hooper's personal information would also disclose the personal information of the other individual(s).
Accordingly, I find that there is an overriding public interest against the disclosure of the information in document number 2, 3, 4, 5, 6, 34, 35, 36, 41 and 42.
However, I am not satisfied that the respondent has justified its decision to refuse Mr Hooper access the information in document number 1, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 20, 21, 22, 25, 26, 27, 28, 29, 31, 33, 37, 38, 38, 39 and 40. While this would generally result in an order setting aside the decision of the respondent in regard to this information, in my opinion, given the nature of the information, the respondent should be given an opportunity to reconsider its decision, under s 63(3)(d) of the ADR Act, in accordance with these reasons for decision. In my view, that reconsideration and re-determination should be made by an officer of the respondent who has had not previously been involved in the determination of Mr Hooper's access application, or in the matters to which the information relates. Furthermore, in any determination that is made to refuse Mr Hooper access to the information sought in the documents listed above, should only be that for which an overriding public interest against applies and any addition information in the document should be disclosed in accordance with s 74 of the GIPA Act. [NOT FOR PUBLICATION]

[37]

Respondent's submissions and evidence

The respondent contends that its decision to impose a processing charge is justified as it was made in accordance with s 64 and the two tables set out in its decision.
The respondent also relied on the statement of Ms Charlton, which had attached to it a copy of Mr Hooper's informal access requests, made on 18 November, 21 November and 5 December 2019 and a Schedule that highlighted the differences in the wording of the various items in Mr Hooper's informal access requests and that of his formal access application (Ex R1, at 32-33]. In my opinion, nothing turns on the slightly different wording in the informal and formal access requests and application, as they essential seek the same information.
The first informal access application of Mr Hooper was in almost the same terms as Schedule A to his subsequent formal access application. The only difference being to item 3 in Schedule A. In his informal access request, Mr Hooper expressly excluded third party identifying information from the information he sought access to, whereas he did not include the same exclusion in his formal access application.
Mr Hooper's second informal access request was, in effect, in the same terms as the items in Schedule B to his subsequent formal access application. Mr Hooper's third informal access application was, in effect, in the same terms as the items in Schedule C of his formal access application.
On 18 December 2019, Mr Grepl, on behalf of the respondent, determined Mr Hooper's first and second informal access request and also responded to Mr Hooper's third informal access request.
Attached to his letter of determination in regard to Mr Hooper's first informal access request, Mr Grepl provided Mr Hooper with copies of the information held by the respondent falling within item 1 and 2 of that request and Schedule A of Mr Hooper's formal access application. In regard to item 3 in Mr Hooper's informal access request, Mr Grepl advised Mr Hooper that the respondent could not disclose the information sought because the OLG Model Procedures provided that information about code of conduct complaints was to be treated as confidential and not to be publicly disclosed.
In his determination of Mr Hooper's second informal access request, Mr Grepl again responded to each of the items for which Mr Hooper sought access. He was advised that the information falling within items 3, 4, 5 and 6 could not be disclosed due to confidentiality. Mr Grepl also informed Mr Hooper where information falling within items 1 and 2 could be publicly accessed.
Mr Grepl sent an email to Mr Hooper in response to his third informal access request. In that email Mr Grepl said: The application covers material that contains a large volume of material that would need to be reviewed prior to considering a public interest test in favour and against disclosure. For this reason, we will not consider your application as an informal application but will ask you to consider submitting a formal access application under the GIPA Act.
In her oral evidence (including cross examination) Ms Charlton said: 1. Mr Grepl had prepared the Schedule that highlighted the differences in the wording of the items in Mr Hooper's informal access requests and his formal access application; 2. she undertook her own examination of the processing fees and was satisfied that they were correct; 3. she could not comment on Mr Hooper's informal access requests; 4. she had not undertaken any searches herself and had not herself ever used the respondent's ECM and DFS systems; 5. she had checked the calculations by speaking to Mr Grepl and Mr Page. She was asked whether Mr Grepl or Mr Page had shown her any contemporaneous notes that supported the entries in the tables included in the 13 February 2020 decision of Mr Grepl. She said she thought Mr Grepl had retained a notebook - a call was made for this book. On 7 September 2020, Ms Charlton sent an email to Mr Zoppo, solicitor for the respondent, to which she attached a copy of an email Mr Grepl had sent to her on 25 June 2020. In that email, Mr Grepl advised that he did have a notebook in which he recorded the hours he had spent dealing with Mr Hooper's access application, which he could no longer locate but he went on to assert the information in the table setting out the tasks he had undertaken was correct.

[38]

Consideration and findings

In my view the respondent's decision to impose a processing charge raises two issues: 1. whether the respondent has discharged its onus in establishing that 28.5 hours were in fact spent in dealing with Mr Hooper's formal access application; and 2. whether the waiver provision in s 67 of the GIPA Act applied (i.e. the information sought included personal information of Mr Hooper), and if tit did apply to what extent did it apply.
I accept that some time would have been spent on dealing with the applicant's formal access application. However, on the evidence before the Tribunal and in the absence of any contemporaneous record by Mr Grepl and Mr Palmer as to the time they spent dealing with Mr Hooper's formal access application, I find that the tables in Mr Grepl's decision are not such that they can be relied upon to evidence the time spent in dealing with Mr Hooper's formal access application.
It is clear from the evidence that searches for the information were undertaken in the course of Mr Grepl dealing with Mr Hooper's first and second informal access requests. It is also evident that it was Mr Hooper's third informal access request which involved a large volume of material. However, as Ms Carlton explained and as I have noted above, this material consisted of one document and the attachments to that document. As I have noted above, the respondent's approach to that material was largely a broad-brush approach to the information that was not excluded information or privileged.
Accordingly, I am not satisfied that the respondent has established the hours spent on dealing with Mr Hooper's formal application. Nor am I able, on the material before the Tribunal, in a position to make any estimate of that time. Hence, as the onus is on the respondent to establish that its decision to impose a processing charge is justified and it has failed to do so, I find that the decision of the respondent to impose a processing charge is not the correct and preferred decision.
Even if I am wrong, for the reasons set out above, a considerable amount of the information for which Mr Hooper sought access in his formal access application related to his personal information. Hence the waiver in s 67 would in any event have applied.

[39]

Summary of Findings

In summary, for the reasons set out above, I have found the following: 1. the searches undertaken by the respondent were reasonable. Hence, I also find that the decision of the respondent that it does not hold any further information falling within Mr Hooper's formal access application is the correct and preferable decision and should be affirmed. 2. in regard to the following withheld information in Attachment 7: 1. there is a conclusive overriding presumption against the disclosure of the information document number 1a, 30, 32, 43 and 44, as the information is excluded information of the OLG: GIPA Act, s 14(2) and Sch 1, cl 6. Hence, on the basis of this finding the decision of the respondent to refuse Mr Hooper access to the information in these documents is the correct and preferable decision and should be affirmed; 2. there is a conclusive overriding presumption against the disclosure of the information in document number 23 and 24, as the information would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege): GIPA Act, s 14(2) and Sch 1, cl 5. Hence, on the basis of this finding the decision of the respondent to refuse Mr Hooper access to the information in these documents is the correct and preferable decision and should be affirmed; 3. the public interest consideration against the disclosure of the information in document number 2, 3, 4, 5, 6, 34, 35, 36, 41 and 42, on balance, overrides the public interest in favour of disclosure of the information in these documents: GIPA Act s 14(2), cl 1(d) and (f) and cl 3(a) and (b) of the table. Hence, on the basis of this finding the decision of the respondent to refuse Mr Hooper access to the information in these documents is the correct and preferable decision and should be affirmed; 1. in regard to the withheld information in document number 1, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 20, 21, 22, 25, 26, 27, 28, 29, 31, 33, 37, 38, 38, 39 and 40 in Attachment 7, I am not satisfied, on the material before the Tribunal, that the respondent has established that there is an overriding public interest against the disclosure of this information. Hence, I am not satisfied that the decision of the respondent to refuse Mr Hooper access to the information in these documents is the correct and preferable decision and on this basis that decision should be set aside. However, I also find, based on the material before the Tribunal that the respondent should be given an opportunity to reconsider its decision in accordance with these reasons for decision and the recommendation set out at [187] above se reasons for decision: ADR Act, s 63(3)(d); and 2. the respondent's decision to impose a processing charge is not the correct and preferable. Hence, the decision of the respondent to impose a processing charge should be set aside.

At a glance

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Judgment (41 paragraphs)

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Legislation Cited (9)

Cases Cited (11)

Cited By (4)