Howlett v Moree Plains Shire Council [2021] NSWCATAD 354 | Case summary

NCAT Administrative and Equal Opportunity|2021-11-25

Introduction

This is an application by Alison Howlett (the applicant) under section 55 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) for an administrative review of a decision made by the delegate of Moree Plains Shire Council (the agency) on 30 August 2021 under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) to refuse her access request for a non-redacted copy of a petition submitted to the agency containing objections to an Aboriginal burial ground painted tile project (painted tile project) and associated documents which would reveal the names of those persons signed the petition.
For reasons set out following the Tribunal has determined that the agency's decision to refuse the applicant access to the petition and associated documents in non-redacted form must be set aside because it was not correct and preferable. In substitution for that decision the Tribunal has determined that the agency must provide the applicant with access to a non-redacted copy of the petition and associated documents within 28 days of the date of this decision.

Determination process and material considered

This administrative review has been conducted on the papers without a hearing by the consent of the parties. I am satisfied that the application can be satisfactorily determined on the documents that have been submitted by both parties. I have considered the access determination (as to which see following) and the other documents and submissions made by the respondent over the course of the proceedings as these remained relevant to the access determination. I have also considered the application and the other documents and submissions submitted by the applicant over the course of the proceedings as these remained relevant to the access determination.

The context of the decision - the Aboriginal burial ground project

The applicant made this application in her own capacity, but it is clear from the whole history of the dispute that she was motivated to do so to by a grievance about the impact of a decision of the agency to suspend the painted tile project, the proponent of which was her aunt, Aunty Noeline Briggs-Smith OAM (with respect, Aunty Noeline). In this respect, in prosecuting this access application, the applicant has styled herself as Aunty Noeline's representative.
It is not contentious that Aunty Noeline has been engaged over several decades in various initiatives to restore the segregated Aboriginal section of Moree Cemetery which had been subject to serious erosion and other neglect. This work over time has included the identification and restoration of graves and the beautification of this section of the cemetery. Aunty Noeline has received several forms of public recognition for this work. Moree Plains Shire Council is the cemetery operator of Moree Cemetery within the meaning given that term in the Cemeteries and Crematoria Act 2013 (NSW) so this work has been carried out with the approval and collaboration of that agency. It is a community led, Council approved project.
On or about 10 September 2018 Aunty Noeline applied to the agency for permission to utilise some excess funds that had been received for other works up to that date to install 176 plaques which would identify those remaining unmarked graves of Aboriginal people buried in the cemetery between 1940 and 1968. It was proposed that this project would be undertaken in collaboration with four local schools whose students would participate by painting the plaques. The delegate of the agency granted permission for this project to proceed by letter to Aunty Noeline dated 27 September 2018.
Project work was completed over the successive months and sometime in or about April or early May 2019 (the date not being in evidence) it was agreed that there would a public ceremony at Moree Cemetery on 29 May 2019, during Reconciliation Week, where school children involved with the plaque painting and family members of the interred deceased would be involved in laying the tiles to mark the graves. A public advertisement of this event was issued through various community networks.
On 13 May 2019 Aunty Noeline was notified by a delegate of the agency by hand delivery of a letter that the Mayor of Moree Plains Shire Council had received a petition on 10 May 2019 at her place of business which objected to the tiles being laid and that as a result the project was suspended with immediate effect. I have not been able to find a copy of that letter in the documents submitted by either party, but the following excerpt appears as a quotation in the applicant's submissions: "Council wishes to advise you that the Mayor has been in receipt of a petition on Friday afternoon, from members of the Aboriginal community, who have family members buried in the Aboriginal section of the Moree Cemetery. The intent of the petition was to express bitter disappointment in not being consulted on the proposed painted tile project, which has a set day of May 29 for placement of these tiles as part of Reconciliation Week. The petition goes on to say that the signatories are holding Council to blame for this project and that family members were not, in fact consulted regarding this project. Therefore, Council is advising you that this matter must be ceased until the matter has been resolved by undertaking the following: 1. The schools must be advised that the work should cease on the tiles until further notice 2. The event must be postponed until the issue is resolved 3. This resolution must include consultation with concerned family members and community members I have made contact with representatives of the petition who have advised they are more than willing to meet with you and to this end, a meeting has been arranged for Wednesday 5th June 2019."
In or about November 2020 the agency gave approval for the painted tile project to be completed and it was. However, the applicant contends that the suspension of the project and its aftermath was traumatic for Aunty Noeline. She contends that the Aboriginal burial ground project generally, and the painted tile project specifically, were undertaken in a context of extensive consultation and collaboration with the local Aboriginal community, were well known, and enjoyed significant community support. She seeks to understand why the suspension occurred.
After the suspension of the project on 13 May 2019 the applicant made various informal attempts to obtain a copy of the petition from the agency, each of which were refused. Those refusals led to the access application that ultimately brings the agency's access determination before the Tribunal for administrative review.

The reviewable decision

This application arises from an access application the applicant made to the agency pursuant to the provisions of Part 4 of the GIPA Act on 21 September 2020 (the access application). In summary, the access application sought access to all documents held by the agency in relation to the decision of the agency to suspend the painted tile project including, relevantly to this application, "the documents that triggered the suspension".
The agency determined the access application on 21 October 2020 (the access determination). It released 61 documents to the applicant, some in redacted form. The documents released included what is referred to in the schedule to the access determination as document "53" which is described as a "[p]etition received on or about 10 May 2019" which was released with "personal details redacted".
On 1 November 2020 the applicant requested an internal review of the access determination, specifically, "the decision not to release personal information subject to my GIPA application".
The agency notified the applicant of the outcome of the internal review on 1 December 2020. It advised that after conducting third party consultations with individuals whose personal information was the subject of her access application it had determined to provide the applicant with the personal information of those persons who have expressly consented to the release of their information and to withhold the information of those who have not expressly consented to its release. Relevantly to these proceedings that resulted in the release of document 53 with the names of two petitioners visible but with other names remaining redacted.
The internal reviewer advised that the decision to withhold personal information was made on the following basis: "Section 14(1)(d), provides there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected ['to' sic] prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions. Section 14(3)(a) and (b), that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to reveal an individual's personal information and contravene an information protection principle under the Privacy and Personal Information Protection Act 1998"
As a consequence of the outcome of the internal review, on 15 December 2020 the applicant requested the Information Commissioner to conduct an external review of the access determination pursuant to the provisions of Part 5, Division 3, of the GIPA Act. The Commissioner's delegate notified the parties of the outcome of that review by letter dared 23 February 2021. Pursuant to section 93 of the GIPA Act, the Commissioner recommended that the agency reconsider its decision by way of an internal review because the decision did not demonstrate the public interest test was applied in the way required by the GIPA Act.
It does not appear that the agency made any response to this recommendation before the applicant instituted these proceedings, or afterwards.
On 3 March 2021 the applicant made this application to the Tribunal. The application was first listed before the Tribunal for a case conference before Senior Member J McAteer on 15 April 2021. At that listing of the application, the Tribunal made the following notation on the Orders made for the filing of evidence on that day: "The Tribunal notes and the parties agree that the scope of the review proceedings is confined to the names of 10 individuals withheld by reliance of the Agency to weight against disclosure under Cl 3(a) Cl 3(b) and in a general sense Cl 1(d) of the Table to s 14 of the GIPA Act."
At a hearing of the application conducted on 9 August 2021, and pursuant to section 65 of the ADR Act, Senior Member D Dinnen remitted the access determination for reconsideration by the agency within 28 days and relisted the application for directions on a date after 6 September 2021.
On 30 August 2021 the delegate of the agency issued the applicant with notice of its decision on the remittal. The relevant contents of that decision for the purpose of this administrative review are set out following: 1. Summary of access application … The purpose of this Notice of Decision is to respond to an Order made on 9 August 2021 from the NSW Civil and Administrative Tribunal to make a decision in relation to your request to access the personal information contained in one document which has, to date, being provided to you only in a redacted format. This document is correspondence received by Council on or about 10 May 2019 that has been referred to as a 'petition'. This Notice of Decision will only address access to the personal information included in this document. For ease of reference, I have attached a redacted version of this document as Appendix A. 2. … 3. Decision … I have decided under section 58 of the GIPA Act, to refuse to provide access to the information. … 4. … 5. The public interest test … 4.1 (sic) Public interest considerations in favour of disclosure … I find the following consideration in favour of disclosure relevant to your application Disclosure of the information could reasonably be expected to inform the public about the operations of Council. Council's decision to suspend, and subsequently reinstate, the project subject to this correspondence has an impact on the community and it is reasonable for the community to understand the basis for these decisions being made. It is important for Council to operate with transparency and be accountable to the community it serves. 4.2 (sic) Personal factors of the application … I have taken into account that the information directly relates to a matter which you, and your family member, have been involved with and that you have made previous, informal attempts to source this information. 4.3 (sic) Public interest considerations against disclosure When applying the public interest test, the only public interest considerations against disclosure that I can take into account are those set out in the exhaustive list contained in section 14 of the GIPA Act. To show that they are relevant to the information you asked for, I need to consider whether they could reasonably be expected to have the effect outlined in the section. I have determined that the following public interest considerations against disclosure apply to this request: Consideration 1(d) - Prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions: Clause 1(d) of the table at section 14 states: There is a public interest consideration against disclosure if disclosure of the information could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of the agency's functions (whether in a particular case or generally) I am satisfied that this information was provided and obtained in confidence. Given the highly sensitive nature of this matter, and the very likely outcome that this position (sic 'petition') would be seen unfavourably by the applicant, it is reasonable that the expectation was that this information was for Council only. As a public sector agency, Council relies on members of the public providing information relevant to its operations. At times, this information is confidential due to the subject matter. This may be a person who wishes to object to a development application or to make a complaint about another ratepayer or, as in this case, object to the conduct of an individual acting with the permission of Council. This flow of information is critical to ensure that the operations and decisions of Council are made with the fullness of information and with consideration for the viewpoints of members of the public. As will be addressed further in this Notice of Decision, whilst not expressly stated, the name of at least one individual was provided with the inferred understanding that the information would be kept confidential. At times, members of the public provide information to the Council on sensitive matters with the expectation, either expressly or inferred, that their identity will be kept confidential. Particularly in matters of a sensitive nature, Council must work to ensure that any adverse repercussions are mitigated through withholding the identity of complainants. I am satisfied that should this information be released, it is likely that this will have a detrimental impact upon the future supply of information to Council. Knowing that information provided with the reasonable expectation of confidentiality could later be provided to the general public, including those to who the information relates directly or indirectly, without their permission, would undoubtedly prejudice the future supply of this information and negatively affect the exercise of Council's functions Consideration 3(a) - Reveal an individual's personal information Clause 3(a) of the table at Section 14 of the GIPA Act states: There is a public interest against disclosure of information if disclosure of the information could reasonably be expected to reveal an individual's personal information. Personal information is defined in Schedule 4(4)(4)(1) of the GIPA Act as: …information or an opinion (including information or an opinion forming part of a database and whether or not recorded in material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion. The term 'reveal' is defined in schedule 4, clause 1 of the GIPA Act to mean: To disclose information that has not already been publicly disclosed (otherwise by lawful means). The document subject to this request, contains the names and signatures of ten (10) individuals. This information fits within the definition of personal information. The document has not previously been released to the public and has only been available to those staff within Council that have been involved with this matter. Therefore, it is my opinion that this document meets the standard of not having been revealed before. Consideration 3(b) - Contravene an information protection or health privacy principle Clause 3(b) of the table at section 14 of the GIPA Act provides: There is a public interest against disclosure of information if disclosure of the information could reasonably be expected to contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002. I have reviewed the list of Information Protection Principles (IPP) … In reviewing these, I have determined that disclosing this information would result ['in' sic] Council breach of the following principles: Principle 10: Limited The provision of names and signatures in the subject document objecting to the project was for the purpose of Council being advised of the concerns of these individuals. Whilst it is noted that the document was not labelled 'confidential', it is reasonable to accept that it was the intent of the individuals for this document to be limited to those who needed to consider it within Council including the Mayor, to whom the document was initially provided. The signatories to this document have a reasonable expectation that their personal information will not be used for reasons other than the purpose for which it was collected. Principle 11: Restricted Those who disclosed their personal information were not advised that the information may be disclosed by way of a GIPA application and retrospectively advising them of this is difficult as contact details were not provided with this document. It is reasonable to form the view that a person would object to the release of their personal information given the sensitive nature of this project and the possibility that this information would be used to contact or approach individuals who objected. 4.4 (sic) Consultation Third party consultation was undertaken with five of the ten individuals who (sic) personal information was contained within the document. The contact information for those able to be consulted with were able to be obtained from other documents that pertained to this matter. Contact details for the balance of individuals was not available and therefore no consultation with them was able to be carried out. Council did not receive express consent from anyone contacted during third-party consultation. Of particular note, one individual contacted Council in writing and by telephone to strongly object to their information being made public. The individual explained that had they known this was a possibility, they would not have included their information on the document. This further informed my consideration of Clause 1(d) of the table at section 14 of the GIPA Act. 4.5 (sic) Balancing the public interest I have considered the relevant public interest considerations in favour of and against the disclosure of the information you requested. In doing so, I was required to determine if the considerations against disclosure were stronger than those in favour. Having weighed up the considerations, I have decided that there is an overriding public interest against releasing the personal information contained in the document. Therefore, it is my decision that you will not be provided with any additional information above that provided to you as part of the original decision made on 16 October 2021 (sic 2020) (as attached at Appendix A) ….."
Appendix A to the Notice of Decision comprises three documents, the 'petition', the text of which is released without redactions, but which has all names and signatures redacted, a one page advertisement headed "Laying of tiles at old Aboriginal section of Moree Local Cemetery" which appears to have been handed to the Mayor with the petition and which is un-redacted, and a take away food tax invoice form onto which it appears the Mayor or the presenting petitioner made some written notes of names, all which are redacted.
The text of the petition is as follows: "To Whom it May Concern, We the undersigned are writing to express our desires about the project scheduled for the Aboriginal section of the Moree Cemetery that is due to go ahead on Wednesday 29th May. We are the descendants and family members of these people and that is what we would like to stress throughout this letter. These are not merely graves to be utilised for projects without consultation, but are the final resting places of our family members - our loved ones. Hence, we have written this letter to express our desires and concerns because the fundamentally sensitive nature inherent to anything involving the resting places of our family has been grossly overlooked. Many of us were unaware of this project before community members brought it to our attention, which is a downright insulting. Not to mention, that we have not given our permission for any alterations to occur to the final resting places of our loved ones. Ultimately, they are buried in a council controlled cemetery and so, this reflects poorly on the council and we believe them to be responsible. The laying of tiles, or anything, on a grave without the consultation or even knowledge of family, is tantamount to desecration. We would appreciate the council's cooperation in this matter as to why projects and individuals are allowed to touch graves without the permission of families. It is extremely hurtful for families to be told of events after they have occurred, discover mistakes on plaques and to not even be consulted. The Aboriginal section, is within the Moree Cemetery and falls within the purview of the Moree Plains Shire Council so we would like to know why you are allowing groups to do as they please without consulting families whose loved ones reside there. Indeed, should this event go ahead we would see both the group and Moree Plains Shire Council as responsible for the desecration of our family's final resting places under the Summary Offences Act 1998 No.25, Section 8 Damaging or Desecrating Protected Places subsection 2 "A person must not wilfully damage or deface any protected place".
The text of the advertisement which appears to be the genesis of the 'petition' includes a photograph of a cemetery monument and another of tiles painted with indigenous iconography and includes the following text: "Laying of tiles at old Aboriginal section of Moree local Cemetery One-hundred and seventy six plaques were marked and identified with plaques in 2018. To further beautify this area, tiles with Aboriginal designs by local students will be laid through out (sic) this section Wednesday 29 May 10:00 - 11:00am Tiles have been painted by local students and will be placed at the old Aboriginal section of the Moree Cemetery. All local families are invited to attend and assist in placing the tiles near your loved ones."
It is the agency's access determination of 30 August 2021 which varied the access determination of 1 December 2020 pursuant to section 65(2) which is the subject of this administrative review pursuant to section 65(3)(b) of the ADR Act. I note in this respect that the varied access determination, apart from its additional reasoning, appears in one respect to be at odds with the decision of the agency's delegate on the internal review dated 1 December 2020. At that time the petition was provided to the applicant without redaction of the names of two persons who signed the petition.

Jurisdiction

By operation of section 9 of the ADR Act, section 100 of the GIPA Act confers jurisdiction on the Tribunal to conduct administrative review under the ADR Act of "reviewable decisions" made by "an agency" as these are identified under section 80 of the GIPA Act. A decision to refuse to provide access to information in response to an access application is a reviewable decision: section 80(d). In this respect there is no issue that the agency is "an agency" for the purposes of the GIPA Act, it being a "local authority" within the meaning of section 4(1)(e) and Schedule 4 of the GIPA Act, being a "council" within the meaning of the Local Government Act 1993 (NSW).
The time for the making of an application for administrative review of a reviewable decision under the GIPA Act is governed by section 101 of that Act. Relevantly to the circumstances of this case, an application may be made at any time up to 20 working days after the applicant is notified of the completion of a review by the Information Commissioner: section 101(2). In this case, the Information Commissioner's review was completed on 23 February 2021 and this application was made on 3 March 2021. It has therefore been made within the time period permitted.

The Tribunal's role in an administrative review

In determining an application for administrative review under the ADR Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it including any relevant factual material and any applicable written or unwritten law: s 63(1). For this purpose the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision: s 63(2).
In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal: s 63(3).

The GIPA legislative scheme

The starting point for analysis of the legislative scheme to be applied in this administrative review is found in the object of the GIPA Act in section 3 which states: (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising an encouraging the proactive release of government information by agencies, and (b) by giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
This object is amplified with a statutory command, contained in section 3(2) which provides: (2) It is the intention of Parliament - (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest possible cost, access to government information
The object of the GIPA Act is operationalized by various 'machinery' provisions of that Act. Section 5 establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. Section 9 provides that applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure. Section 11 provides that the GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the "overriding secrecy laws" set out in Schedule 1, in relation to which it is conclusively presumed that there is an overriding public interest against disclosure of the information.
Section 12 of the Act provides that there is a general public interest in favour of the disclosure of government information that is not covered by overriding secrecy laws. Section 12(2) provides that the categories of public interest considerations in favour of disclosure are not limited, but include, relevantly: (a) disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance government accountability or contribute to positive and informed debate on issues of public importance; (b) disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public; (d) the information is personal information of the person to whom it is to be disclosed; and (e) disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.
Section 13 provides that there is an "overriding public interest against disclosure" of government information for the purposes of the GIPA Act "if (and only if)" there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
Section 14(1) of the Act provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of any government information described in Schedule 1. Section 14(2) provides that the public interest considerations set out in the Table to section 14 are the only other public interest considerations against disclosure that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. The Table sets out 7 categories of public interest considerations against disclosure and 35 sub-categories.
As set out in the agency's notice of decision the public interest considerations at issue in this review are found in Table 14 Category 1(d), and Category 3(a) and (b), which provide respectively: 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 … 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 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002, …
In this respect the term "personal information" is defined in Schedule 4, clause 4 of the GIPA Act, relevantly, 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. …
Section 4 of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) contains, for present purposes, an equivalent definition of personal information to that contained in Schedule 4 clause 4 of the GIPA Act.
Part 5, Division 1 of the PPIP Act promulgates twelve Information Protection Principles that must be observed by public sector agencies to whom that Act applies, which includes local government authorities by operation of the definition of "public sector agency" found in section 3 of that Act. The Information and Privacy Commission has published a summary of those principles in a document called "Information Protection Principles (IPPs) for agencies" (May 2020), which are referred to by the agency's delegate in her notice of decision. The principles referred to are found in the sections of that document and concern the "use" and "disclosure" of personal information which are summarised as follows: "Use … 10. Limited Only use personal information for the purpose it was collected unless the person has given their consent, or the purpose of use is directly related to the purpose for which it was collected, or to prevent or lessen a serious or imminent threat to any person's health or safety Disclosure 11. Restricted Only disclose personal information with a person's consent or if the person was told at the time that it would be disclosed, if disclosure is directly related to the purpose for which the information was collected and there is no reason to believe the person would object, or the person has been made aware that information of that kind is usually disclosed, or the disclosure is necessary to prevent a serious and imminent threat to any person's health and safety."
These summaries are based on sections 17 and 18 of the PPIP Act which provide as follows: 17 Limits on the use of personal information A public sector agency that holds personal information must not use the information for a purpose other than that for which it was collected unless: (a) the individual to whom the information relates has consented to the use of the information for that other purpose, or (b) the other purpose for which the information is used is directly related to the purpose for which the information was collected, or (c) the use of the information for that other purpose is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual to whom the information relates or of another person. 18 Limits on disclosure of personal information (1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless - (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or other person. (2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.
Subsections 4(4) and 4(5) of the PPIP Act explain the circumstances in which personal information is "held" and "collected" by a public sector agency. Relevantly, those sections provide: (4) For the purposes of this Act, personal information is "held" by a public sector agency if - (a) the agency is in possession or control of the information, or (b) the information is in the possession or control of a person employed or engaged by the agency in the course of such employment of engagement, or … (5) For the purposes of this Act, personal information is not "collected" by a public sector agency if the receipt of the information by the agency is unsolicited.
Section 15 of the GIPA Act sets out the principles that apply when considering whether there is an overriding public interest against disclosure. Relevant to the present review is the following principle: (a) agencies must exercise their functions so as to promote the object of the Act.
Section 55(1) of the GIPA Act provides that 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 "personal factors of the application" into account, which are: (a) the applicant's identity and relationship with another person; and, (b) the applicant's motives for making the access application; and, (c) any other factors particular to the applicant. Section 55(2) provides that these personal factors may also be taken into account as factors in favour of providing the applicant with access to the information.
Section 105(1) of the GIPA Act provides that in any administrative review conducted by the Tribunal under Part 5, Division 4 of the Act concerning a decision made by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by section 105. None of those exceptions are relevant in this case.

Consideration

The application of the public interest test contained in section 13 of the GIPA Act requires a staged approach to determine if there is an overriding public interest against the disclosure of government information. It involves identifying the public interest considerations in favour of disclosure; identifying the public interest considerations against disclosure, attributing weight to each consideration for and against disclosure and then determining where the balance lies between these competing public interests: Flack v Commissioner of Police, NSW Police [2011] NSWADT 286; Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [23] (Camilleri). Balancing the competing public interest considerations is "a question of fact and degree, requiring the weighing of competing matters, and a task that is not amenable to mathematical calculation": Hurst v Wagga City Council [2011] NSWADT 307 at [70].
In Rock v Legal Aid NSW [2021] NSWCATAD 308 at [19] Senior Member S Montgomery observed that the term "public interest" is not a defined or fixed concept citing with approval the following passage from Director of Public Prosecutions v Smith [1991] VR 63: "The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and the well-being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals."

Public interest considerations in favour of disclosure

As set out above, the public interest considerations in favour of disclosure are not limited, but the starting point is that there is a general public interest in the disclosure of government information (section 12(1) of the GIPA Act).
In her decision of 30 August 2021 the delegate of the agency identified one public interest consideration in favour of disclosure, which was that disclosure of the names of the signatories to the petition could reasonably be expected to inform the public about the operations of council (the section 12(2)(a) consideration). The delegate was clearly correct in identifying this public interest consideration in favour of disclosure for the reasons she stated.
However, I also consider that there were additional public interest considerations in favour of disclosure that were not considered by the delegate. Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance government accountability and contribute to positive and informed debate on issues of public importance (the section 12(2)(a) consideration) and disclosure could reasonably be expected to reveal or substantiate that the agency (or a member of the agency) had engaged in misconduct or negligent or improper conduct (the section 12(2)(e) consideration).
In these respects the applicant had explained in her access application that she could not understand how a decision could be made to immediately suspend the painted tiles project at such an advanced stage of implementation without consulting first with Aunty Noeline, the proponent of the project and ascertaining her response to the objections made in the petition, in a context in which she asserted consultation and engagement with the Aboriginal community about the Aboriginal burial ground project over many years. The painted tile project and its suspension were clearly public affairs and matters of public importance. Disclosure of the identity of the petitioners had the potential to contribute to informed public debate about these matters and enhance the agency's accountability to the community it serves.
The allegation that there had been inadequate consultation with family and community members about the project could only really be understood by reference to the specific individuals who claimed not to have been consulted or communicated with. The disclosure of the specific identities of the objectors had the potential to indicate if the agency's decision to immediately suspend the project was or was not soundly based in the circumstances. It would provide transparency as to the basis upon which the agency acted. It was therefore in the public interest in these respects. I consider the situation analogous to that considered by Judicial Member N Isenberg in Fahey v NSW Office of Liquor, Gaming and Racing [2012] NSWADT 181 where it was held that there is a public interest in disclosing the identity of persons who make false complaints. I must make it clear that I do not suggest that the contents of the petition did contain false complaints; simply, that disclosure of the signatories of the petition would serve the public interest of enabling that to be ascertained.
In her access determination the delegate also considered, pursuant to section 55(2) of the GIPA Act, that there were personal factors of the application that weighed in favour of the disclosure of the petition in un-redacted form. In my view she was correct in doing so for the reasons she stated. That being said, I consider the personal factors of the application were understated by the delegate. Aunty Noeline was the painted tile project proponent. Certainly, she had been "involved" in it, but, in fact, she had a (or the) leading role. The objections made in the petition therefore concerned her conduct of the project very directly and specifically. Clearly, Aunty Noeline had a strong personal interest in knowing who it was who believed that they had not been consulted or informed, and who it was who did not want a painted tile to mark their deceased family member's grave. Although Aunty Noeline was not the access applicant, the agency knew and accepted, as the delegate acknowledges, that the access application had been made in an attempt to ascertain this information for Aunty Noeline.

Public Interest considerations against disclosure

In her access determination the delegate determined that disclosure of the petition in non-redacted form would impact negatively on responsible and effective government by prejudicing the supply to the agency of confidential information that facilitates the effective exercise of the agency's functions (clause (1)(d) of the Table to section 14 of the GIPA Act).
The elements of clause 1(d) are: 1. The information was obtained in confidence; 2. The information facilitates the effective exercise of the agency's functions; and 3. Disclosure of such information could reasonably be expected to prejudice the supply of such information to the agency in future.
It is thus first necessary to determine if the petition was obtained in confidence by the agency. If it wasn't, the other elements of clause 1(d) are not reached and the consideration against disclosure cannot be made out.
In Williams v Department Industry and Investment [2012] NSWADT 192 at [52] and [76] Judicial Member S Montgomery accepted with approval a submission made on behalf of the Information Commissioner that the following principles apply in determining if information is confidential information: 1. The confidential quality of the communications is a question of fact; 2. To establish its confidential quality, information must have been supplied under an express or implied pledge of confidentiality; 3. The confidential quality of the information may be inferred from the nature of the relationship between the informer and the person informed; 4. The confidential quality of the information must be determined in the light of all the circumstances of the particular case.
In Camilleri the Appeal Panel held at [33] and [34] that the question of whether information is "confidential information" is to 'be examined, primarily at least, by the relevance to the agency's evidence as to the conditions under which it conducts a service within which the information was received" and "the inquiry should focus on the point of receipt, and the administrative standards and community understandings which surrounded it'.
In this case the delegate determined that the petition "was provided and obtained in confidence" "for Council only". She reached that conclusion on the basis of an inference drawn from the "highly sensitive nature of this matter" and the "very likely outcome that the petition would be seen unfavourably by the applicant". The delegate goes on to state that the petition is confidential due to its "subject matter", and that the name of at least one individual was added to the petition with the inferred understanding that "the information" would be kept confidential.
In conducting this administrative review it is important to bear firmly in mind that the document in question, which the agency itself characterised as a petition, although that word does not appear in the document, has been released to the applicant without any of its contents redacted other than the names and signatures of those persons who signed it. The delegate thus appears to have concluded that there was a public interest in the disclosure of the document but a public interest against disclosure of the identities of those persons who brought the document into existence and/or endorsed it. However, her reasoning does not distinguish between the two so it is not apparent how or why that distinction is drawn.
I can see no satisfactory evidentiary basis for the inference drawn by delegate that the names of the signatories, but not the document itself, were provided to the agency under an implied pledge of confidentiality. I am satisfied the document as a whole is not confidential information that attracts the operation of section 14 of the GIPA Act.
Although the document is not marked as a petition it is clear that the agency characterised it as such from the outset. It was reasonable for it to do so. The ordinary meaning of the word "petition" is a 'written request, typically signed by many people, appealing to authority in respect of a particular cause'. The document has this character. It is a public statement in protest against the painted tile project. I consider the fact that a petition is signed by more than one person, in this case 10, strongly indicative of the absence of any expectation that it was confidential. In this case the petition was passed between 10 people who did sign it and potentially amongst others who declined to do so. Anyone into whose hands it passed had the opportunity to read it and discuss its contents. It could not be considered a confidential document in these circumstances.
That conclusion is also strongly reinforced by the opening words of the document which are: "to whom it may concern". The document is not addressed to any particular individual or organisation, but to all persons whom its contents concern. That obviously included all those persons involved in the painted tile project, both council officials, and the project's community leaders and supporters. That obviously included Aunty Noeline.
The petition was presented to the Mayor of the agency at her place of business (which is a takeaway food shop) in a public street. That fact is also strongly inconsistent with any inference being drawn that the contents of the document and its signatories were intended as confidential. Anyone walking into the shop at the time might have overheard a conversation concerning the document and recognised the person or persons who handed it to the Mayor.
Nowhere do words that denote confidentiality appear on the document. It is not marked "private" or "confidential" or "sensitive". Nor is there any surrounding evidence that indicates or suggests that the document was provided on that understanding. There is no statement, affidavit or statutory declaration made by the Mayor, for example, that deposes to the document being given to her on that understanding, or to her having given an undertaking that the document would be treated as confidential, despite it manner of address or receipt by her.
Additionally, the substance of the petition was disclosed to Aunty Noeline in the agency's letter of 13 May 2019, and in that letter the delegate of the agency expresses an intention to bring the petitioners and Aunty Noeline together to discuss the petitioner's objections at a "public meeting" to be held on 5 June 2019. If the petitioners attended that meeting their identities would clearly be apparent to any other person who attended. This does not support an inference being drawn that the petitioners wanted their identities to remain confidential.
In section 4.4 of her access determination the delegate records that the agency received a written and verbal objection from one signatory of the petition to "their information being made public". It is stated that the person advised the agency that they would not have "included their information on the document" had they known it would be released. No reasons are recorded for these views. It is therefore not possible to know how the person came to be of the understanding that the petition or their identity or both would be confidential. For example, it is not recorded that the petition organiser or the Mayor said so. It may thus be the case that it was the person's own mistake or misconception. In any event, as I have noted, the whole of the petition has been disclosed, only the names of the petitioners are redacted. I therefore cannot see any basis upon which the delegate ought to have given this objection significant weight.
For the foregoing reasons I have concluded that the delegate was not correct in drawing an inference that the identity of the signatories of the petition was confidential information that attracted the operation of clause 1(d) of the Table to section 14 of the GIPA Act.
In her access determination the delegate also determined that disclosure of the petition in non-redacted form would negatively impact on individual rights by revealing an individual's personal information (clause 3(a) in the Table to section 14 of the GIPA Act) and by contravening an information protection principle under the PPIP Act (clause 3(b) to the Table in section 14 of the GIPA Act).
The first question the Tribunal must ask itself in relation to relation to these items is could the disclosure of the information reasonably be expected to have the relevant effect. In Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 after reviewing the relevant authorities an Appeal Panel of the Tribunal considered the quality of evidence required to establish that disclosure of the information could reasonably be expected to have the relevant effect. It held at [59]: "59. Based on these authorities when considering the evidence on which it is asserted that disclosure "could reasonably be expected" to have a particular effect, the following principles should be kept in mind: (1) a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient; (2) there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect; (3) prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses."
A person's name and signature are clearly "personal information" within the meaning of clause 4(1) of Schedule 4 of the GIPA Act because both are information from which a person's identity is apparent or can reasonably be ascertained. The petitioners do not fall within any exception found in clause 4(3), in particular because they are not employees of the agency. There can thus be no doubt the disclosure of the petition in un-redacted form would have the effect of revealing the petitioners personal information. Clause 3(a) of the Table in section 14 of the GIPA Act is therefore engaged and the delegate was correct in this respect.
Clause 3(b) of the Table to section 14 of the GIPA Act applies to information that has been "collected" by an agency. While there is no doubt that the petition is "held" by the agency within the meaning of section 4(4) of the PPIP Act, it was not "collected" by it within the meaning of section 4(5) of that Act because its receipt by the agency was not solicited (that is, requested). It is thus not personal information to which sections 17 and 18 of the PPIP Act and Information Protection Principles 10 and 11 apply. The disclosure of the petition is therefore not capable of having the effect contravening an Information Protection Principle and the delegate was wrong to conclude otherwise.

Weight be attributed to considerations for and against disclosure

The considerations set out above in favour of disclosure of the names and signatures of those persons who signed the petition ought to each be given significant weight for the reasons I have stated, consistent with the object of the GIPA Act and section 12(1) of that Act.
One consideration against disclosure of the names and signatures of those persons who signed the petition has been established, being clause 3(a) of Table 14 of the GIPA Act. Disclosure would impact on the individual rights of those persons who signed the petition by revealing personal information, being their identity.
However, I am not satisfied in this context that this consideration deserves other than little weight. From an objective point of view those persons who signed the petition must reasonably have known, or ought to have known, that their identity could or would be public, or at least not confidential, information. That is usually why people sign petitions: to publicly declare support for a particular cause. In any event a person's name and signature is not sensitive personal information.

Where does the balance lie?

There are compelling considerations in favour of disclosure of the petition and associated documents without redaction which are not displaced by the one relatively weak consideration against disclosure. The balance therefore lies with the disclosure of the petition and associated documents without redaction.

Conclusion

For the foregoing reasons I conclude that the correct and preferable decision in this case is that the petition and associated documents be released to the applicant in non-redacted form. The delegate's access determination is set aside. The agency must provide access the applicant with access to the non-redacted documents with 28 days of the date of these orders.

Orders 1. Pursuant to section 50(2) of the Civil and Administrative Tribunal Act 2013 a hearing of the application is dispensed with. 2. The agency's decision to refuse to release to the applicant a non-redacted copy of the petition and associated documents is set aside. 3. The applicant is granted access to a non-redacted copy of the petition and its associated documents. 4. The agency must release to the applicant a non-redacted copy of the petition and its associated documents within 28 days of the date of these orders.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 November 2021

Howlett v Moree Plains Shire Council

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Judgment (15 paragraphs)

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Legislation Cited (5)

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