This is an application for administrative review of a decision of the Temora Shire Council (the Respondent) concerning an application for access to information made under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act).
Initially the application was determined on the basis that the information was not held. Subsequently a new decision was made to refuse to provide access to the information. By the time of the Tribunal's hearing on 24 April 2024, the Respondent no longer opposed the disclosure of the information sought due to changes in circumstances.
The parties did not enter into consent orders by which the document would be released and the application withdrawn because Councillor Irvine (the Applicant) wished to make submissions to the Tribunal regarding s 111 GIPA Act.
For the reasons set out below, under s 63(3)(c) of the Administrative Decision Review Act 1998 (the ADR Act) I have decided to set aside the decision made by the Respondent on 13 February 2024 and make a decision in substitution for that decision under s 58(1)(a) GIPA Act to provide access to the information.
[2]
Background
On 3 November 2023 the Applicant made an application for access to Temora Shire Council (the Respondent) under the GIPA Act. The Applicant requested a copy of the "Police report provided to Temora Shire Council which related to a stock matter reported to the November 2022 meeting of Temora Shire Council." That document is referred to in this decision as "the Police Report."
On 1 December 2023 a delegate authorised by the principal officer of the Respondent to decide the access application (the delegate) made a decision under s 58(1)(b) of the GIPA Act that the information was not held by the agency.
On 12 December 2023 the Applicant lodged an application for administrative review by the Tribunal on the basis that the Applicant believed that the Respondent did hold the Police Report.
The parties came before the Tribunal on 5 February 2024 for a case conference. At that conference the following orders were made:
1. Pursuant to s 65 of the Administrative Decisions Review Act 1997 (NSW), the matter is remitted to the Respondent for reconsideration.
2. The Respondent is to provide the Tribunal and the Applicant with the new decision by 19 February 2024.
3. The Applicant is to advise the Tribunal and the Respondent in writing by 4 March 2024 if he seeks to withdraw the application.
4. If the Applicant presses the application, the matter is listed for a further case conference on 11 March 2024…
On 13 February 2024 the delegate provided a new decision (the decision) under s 58(1)(d) to refuse access to the requested document. The delegate decided that there was an overriding public interest against disclosure of the Police Report.
In submissions to the Tribunal dated 18 April 2024, the Respondent advised that it now no longer opposed the disclosure of the Police Report and proposed to enter into consent orders with the Applicant for the release of the Police Report.
The Respondent provided submissions on many of the public interest considerations against disclosure which were taken into account by the delegate, noting the changes in circumstances since the decision was made.
The delegate had decided that the disclosure of the Police Report could reasonably be expected to have the effect set out in clauses 1(d), 1(f), 1(h), 2(a), 2(b), 3(a), 3(b), 3(c), 3(d) and 3(f) of the Table at s 14 of the GIPA Act.
The delegate's findings on clauses 1(d), 2(a), 2(b), 3(c) and 3(d) were not pressed in submissions. Regarding clause 1(f), the Respondent submitted that the Police Report contained details of a Council employee's conduct and behaviour in the course of undertaking his duties, from which the identity of the employee is apparent. However, since the making of the decision under review, that employee had advised that they did not object to the disclosure of the Police Report and their personal information contained in it. In light of the fresh information, if the Police Report were to be released, it would no longer be reasonably expected to prejudice the effective exercise by the Council of its functions.
Regarding clause 1(g), the Police Report contained a written request from the NSW Police Force that it be kept confidential. However as the NSW Police Force had now confirmed that it no longer objected to the release of the Police Report, the Respondent submitted that its disclosure would not found an action against the agency for breach of confidence.
For clause 1(h), although the Police Report was considered to reveal information relating to the purpose, conduct and results of the investigation, in light of the fresh evidence available to the Respondent to indicate that the relevant investigation had concluded and resulted in a conviction in open Court, the Respondent submitted that the release of the Police Report could no longer prejudice the conduct, effectiveness or integrity of the investigation or any future investigations undertaken by Council by revealing its purpose, conduct or results.
In relation to clause 3(a), although the release of the Police Report would necessarily reveal an individual's personal information, only one of the individuals whose personal information was contained in the Police Report had objected to the release of the information. However the Respondent believed that person had been prosecuted, and convicted in open court in relation to the matters set out and no longer considered that the release of the Police Report would "reveal" any personal information about that person. Even if it did, the Respondent submitted that the factor would not be given significant weight against other factors in favour of disclosure.
Regarding clause 3(b), the Respondent noted that the Police Report contained 'personal information' as defined under the Privacy and Personal Information Protection Act 1998 (the PPIP Act) and that disclosure of the personal information under the GIPA Act lies outside the boundaries of s 18 of the PPIP Act. However, the Respondent submitted that "while reasonable weight is to be placed on this factor against disclosure, it is significantly outweighed by the other factors in favour of disclosure."
In relation to clause 3(f), the Respondent submitted that it was not aware of any evidence on which the Tribunal would be satisfied there was a real risk of harm, or of serious harassment or serious intimidation in relation to the release of the Police Report.
Finally in relation to clause 4(d), the Respondent submitted that release of the Police Report would not reasonably be expected to prejudice the professional interests of the Council employee who was identified and referred to in the Police Report.
65. The Police Report contains information regarding a Council employee and an opinion relating to their performance and conduct on the basis of an investigation conducted by the NSW Police Force. However, the Police Report does not infer any significant wrongdoing on the part of that Council employee, and in particular concludes that the employee has not committed any criminal offences nor had any criminal intent in relation to the matter. The Council also notes that the employee does not object to the release of the Police Report.
CONCLUSION
66. Having considered fresh evidence available to it, and in particular the further consultation response from the NSW Police Force, the Council is now of the view that there is not an overriding public interest against the disclosure of the Police Report.
67. Therefore, the Council proposes to enter into consent orders with the Applicant for the release of the Police Report.
The Applicant raised matters regarding the issues of process in the handling of GIPA applications by the Respondent and asked that NCAT consider the options set out at sections 111 and 112 of the GIPA Act at the hearing.
Only s 111 GIPA Act was raised by the Applicant at the hearing. That section provides:
111 Referral of systemic issues to Information Commissioner
NCAT may refer any matter to the Information Commissioner that NCAT considers is indicative of a systemic issue in relation to the determination of access applications by a particular agency or by agencies generally.
The Applicant provided copies of the notices of decision in the present proceedings dated 3 November 2023 and 13 February 2024, as well as documents relating to previous GIPA access applications he had made to the Respondent.
In written submissions and at the hearing on 24 April 2024, the Respondent objected to the material which was unrelated to the present proceedings being admitted into evidence, on the basis that neither s 111 nor 112 of the GIPA Act gave the Tribunal power to carry out an enquiry into an agency's conduct that was separate from, or additional to, any administrative proceedings (citing Zonnevylle v Department of Justice [2019] NSWCATAP 44 at [50]). The Respondent submitted that, more specifically, the Tribunal had held that no evidence could be led in such proceedings, or cross examination permitted, in relation to conduct which does not arise as part of the Tribunal's review of the reviewable decision. The Respondent also referred to Joseph v Kiama Municipal Council [2024] NSWCATAP 40.
Ultimately the Applicant withdrew the evidence to which the Respondent objected without the Tribunal needing to make a finding on whether the documents relating to other matters should be admitted. The Applicant chose to rely on the remaining documents which included an email chain between the Applicant and the former general manager of the Respondent and the two decisions in the current matter.
At the end of the hearing the Applicant sought to demonstrate the ease with which a search of the Respondent's emails could have been made. The Tribunal did not entertain the demonstration; the time for the submission of evidence had already passed, submissions had been made and it was procedurally unfair to the Respondent to allow the Applicant to tender such evidence at the end of the hearing without the Respondent being aware of it or in a position to respond. In any event, such evidence was unnecessary for the reasons set out below.
[3]
Jurisdiction
The Respondent's decision to refuse to provide access to information in response to an access application is a reviewable decision (s 80(d) GIPA Act). Section 100(1) of the GIPA Act gives a person aggrieved by a reviewable decision a right to apply to NCAT for an administrative review of that decision under the Administrative Decisions Review Act 1997 (NSW) (ADR Act).
An application for administrative review of "an administratively reviewable decision" may only be made by an interested person (s 55 ADR Act). An administratively reviewable decision is "a decision of an administrator over which the Tribunal has administrative review jurisdiction" (s 7 ADR Act). The Tribunal has administrative review jurisdiction over a decision of an administrator "if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision" (s 9 ADR Act). An "administrator" is the person or body that makes the decision under enabling legislation (s 8 ADR Act).
Accordingly, the Tribunal has jurisdiction to hear and determine this application.
[4]
Legislative framework
In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide (s 63(3) ADR Act):
(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.
Section 58(1) of the GIPA Act sets out how access applications for government information are decided, including by deciding to provide access to the information (s 58(1)(a)), deciding that the information is already available to the applicant, (s 58(1)(c)) or deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information (s 58(1)(d)).
[5]
ISSUES:
The issues for the Tribunal to decide are:
1. Regarding the application for administrative review of the decision to refuse access to the Police Report:
1. What is the correct and preferable decision to be made?
1. Regarding the submissions pertaining to s 111 GIPA Act:
1. Is the present matter indicative of a systemic issue in relation to the determination of access applications by the Respondent?
2. If so, should the Tribunal refer the matter to the Information Commissioner?
[6]
What is the correct and preferable decision to be made regarding the application for administrative review of the decision to refuse access to the Police Report?
The burden of establishing that a decision which is under review by the Tribunal is justified lies on the agency (s 105 GIPA Act). There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5(1) GIPA Act) and there is a general public interest in favour of the disclosure of government information (s 12(1) GIPA Act). 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 (s 13 GIPA Act).
In this case, the Respondent has noted that the court case which was pending has been heard and the information included in the Police Report has been read in open court. Due to the change in circumstances, the Respondent has acknowledged that the decision to refuse access under s 58(1)(d) is no longer justified.
In light of the further information regarding the use of the Police Report in court and its consequential wide release and the person's decision not to pursue any objection to release of the Police Report (below) as a result of the consultation process, even though clause 3(b) to s 14 GIPA Act might apply, this does not outweigh the public interest considerations and it does not constitute an overriding public interest against disclosure. It is clear that in light of the change in circumstances, the administratively reviewable decision should be set aside.
In their written submissions, the Solicitors for the Respondent outlined the consultation in respect of the Application and the release of the Police Report (footnotes omitted):
16. On 8 April 2024, the NSW Police Force advised the Council of the following:
Following further internal consultation and given the relevant investigation and prosecution has concluded, the NSWPF no longer objects to the release of the document at issue in these proceedings.
17. On 19 March 2024, the Council commenced consultation with three persons whose personal information is included in the Police Report:
17.1 On 20 March 2024, one of those persons provided an objection to the release of the Police Report relying upon the public interest considerations against disclosure in items 3(a), 3(c), 3(e) and 3(f) of the table to Section 14 of the GIPA Act.
17.2 On 26 March 2024, one of those persons responded that they do not object to the release of the Police Report.
17.3 The Council did not receive a response from the third person who was consulted on 19 March 2024.
18. The Council has been informed and believes that the prosecution resulted in the conviction of the person first mentioned above.
19. On 11 April 2024, the Council notified the person who objected to the release of the Police Report that it had considered that person's objection to the release of the Police Report, and having taken that objection into account, and the fresh evidence that has become available to it, the Council does not consider that there remains an overriding public interest against the disclosure of the Police Report. The notification advised the person of their right to appear and be heard in the Proceedings under s 104(3) of the GIPA Act, and asked for them to confirm within seven days, by 18 April 2024, whether they intend to exercise that right.
20. On 17 April 2024, that person confirmed that they do not seek to exercise their right to appear and be heard in the proceedings.
Under subs 54(1) and (2), an agency must take such steps (if any) as are reasonably practicable to consult with a person before providing access to information relating to the person in response to an access application, relevantly if the information includes personal information about the person and the person may reasonably be expected to have concerns about the disclosure of the information and those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information. Under subs 54(6), if consultation establishes that a person objects to the disclosure of information but the agency decides to provide access to the information in response to the application, access is not to be provided until the agency has first given the objector notice of the agency's decision to provide access to the information and notice of the objectors right to have that decision reviewed, and is not to be provided while review rights on the decision are pending. Under s 54(7) review rights on a decision are pending while the objector is entitled to apply for a review of the decision under Part 5, what any review duly applied for is pending.
Section 54 primarily addresses circumstances where an agency makes a decision to provide access to information at first instance. Here, the Respondent initially decided to refuse access but has subsequently decided, during the process of the Applicant's application for review, that refusal is no longer justified due to a change in circumstances. In these circumstances, the objector still had the right to appear and be heard at the hearing under section 104(3) as a person who could be aggrieved by a decision of NCAT on a review. As advised by the Respondent's solicitors, after being notified of the Respondent's view that its decision to refuse access was no longer justified, the objector confirmed their intention not to seek to exercise their right to appear and be heard in the NCAT proceedings and they did not appear at the hearing.
In all the circumstances, the correct and preferable decision is to set aside the decision under review and substitute a decision that access to the Police Report is to be provided.
[7]
Is the present matter indicative of a systemic issue in relation to the determination of access applications by the Respondent?
Under s 111 GIPA Act, NCAT may refer any matter to the Information Commissioner that NCAT considers is indicative of a systemic issue in relation to the determination of access applications by a particular agency or by agencies generally.
Section 111 is discussed by the Appeal Panel in Zonnevylle v Department of Justice [2019] NSWCATAP 44 at [52] and [58].
The powers in s 111 are analogous to the power in s 112. As with s 112, the circumstances in which the Tribunal may form the relevant opinion is in relation to "the determination of access applications". Section 111 does not give the Tribunal power to carry out an inquiry into an agency's conduct that is separate from or additional to any administrative review proceedings…
The Tribunal and the Appeal Panel have specific powers to take certain action in accordance with s 111 and s 112 of the GIPA Act. The power in s 111 is to refer any matter to the Information Commissioner that NCAT considers is indicative of a systemic issue in relation to the determination of access applications …The Tribunal does not have power to bring to the attention of the Minister any conduct that the Tribunal may regard as improper. An opinion must be formed that the conduct is "a failure to exercise in good faith a function conferred on the officer". Nor does the Tribunal have the power under s 112 to bring to the attention of the Minister an alleged offence under the GIPA Act unless the conduct concerned also meets the test set out in s 112. The same reasoning applies to s 111."
The Applicant submitted that the current matter demonstrated a systemic issue in relation to the determination of access applications by the Respondent which the Tribunal should consider referring to the Information Commissioner under s 111.
The Applicant noted that the decision dated 1 December 2023 determined that the Police Report was not held by the agency. However the Applicant submitted that it was clear from correspondence which existed prior to the decision that the Respondent was aware of the document which he had sought.
The Applicant referred to emails from the then general manager of the Respondent dated 9 and 27 June 2023 which referred to the Police Report, stating that:
[9 June 2023] "Following discussions with NSW Police I advise that I am unable to provide the document requested as it was provided to myself for operational purposes due to the involvement of a council staff member.
"The document is not permitted for further dissemination and contains details that will be subject to an upcoming court matter"
[27 June 2023] "[it] is not a 'public document' as it was supplied for personnel reasons. The provision of the document was predicated on the basis that it was not for dissemination.
"The matter is still before the court and cannot be released."
Subsequent correspondence dated 21 and 28 June 2023 from the Applicant expressed his disappointment with the general manager's choice not to release the document and his intention to apply for release of the document through GIPA.
That application was made on 3 November 2023 and the application was determined on 1 December 2023 on the basis that the information was not held by the agency.
The Applicant submitted that it was clear from the email correspondence that the highest levels of the Council were aware of the Police Report but the searches conducted were inadequate.
On behalf of the Respondent, it was submitted that the access application was made on 3 November 2023, six months after the end of the email chain to which the Applicant had referred. The decision of 1 December 2023 identified three systems (Council's EDMS, Council email network and Council Minutes - November 2022) which had been searched within the date range of 1 September 2022 to 3 November 2023 under the key words "Police Report" and "Stock" and no 'Police Report" document could be found relating to a stock matter using those search parameters.
The document was later located and after further consultation with NSW Police Force, the Respondent refused to release the Police Report. In April 2024 the NSW Police Force advised that they no longer objected to the Police Report being released.
The Respondent submitted that, although the delegate had been included in the "To" line for the emails of 9 and 21 June 2023 six months before the access application was lodged, there was no indication that she had read the emails or was aware of the actual location of the document. The document existed and it was subsequently found, but this did not demonstrate a systemic issue. At most, there was a mistake; less so, the search did not disclose the document. The document was simply not found.
Section 111 was considered in Dibb v Transport for NSW (No 2) [2022] NSWCATAP 89 where the Appeal Panel held (at [68]):
68. As the Tribunal correctly found at [57], s 111 does not give the Tribunal power to carry out an inquiry into an agency's conduct that is separate from, or additional to, any administrative review proceedings: Zonnevylle v Department of Justice [2019] NSWCATAP 44 at [52]. Further, allegations of a breach of the GIPA Act, including systemic breaches of the GIPA Act, do not provide a source of jurisdiction for the Tribunal: Zonnevylle v Minister for Education [2019] NSWCATAD 28 at [58].
Here, it is apparent that the searches initially conducted by the delegate failed to uncover the Police Report. Although there appears to have been email correspondence regarding the document in which the delegate had been included, this was dated six months earlier and does not disclose that the delegate was aware of the location of the document itself at that time.
At the hearing, the Applicant sought to demonstrate how easily the email system could be searched. This was not allowed and would in any event have been unnecessary because the decision of 1 December 2023 indicates that the email system was searched, merely the search terms, which were in line with the document sought, did not reveal it. When the document was found, the Respondent (with respect, appropriately) acknowledged that the first decision was incorrect and consented to the matter being remitted for a new decision to be made. When the circumstances underpinning the second decision changed, the Respondent (again appropriately) acknowledged that the decision to refuse access could no longer be justified.
I see no systemic issues in that process; merely an unsuccessful search and changes in circumstances to which the Respondent was responsive.
Accordingly the circumstances do not exist in this matter for the Tribunal to make a referral under s 111.
[8]
Orders
The Tribunal makes the following orders:
1. The decision made by the Respondent on 13 February 2024 is set aside.
2. In substitution for that decision, access to the information sought by the Applicant in his access application of 3 November 2023 must be provided by the Respondent within 30 calendar days of this decision.
[9]
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: 26 July 2024