Irvine v Temora Shire Council

Issues for determination

1. In light of the foregoing summary of the background, submissions and evidence, the issues for the Tribunal to determine in this matter are: 1. Has the Respondent established that the decision under review is justified? 2. what is the correct and preferable decision in all the circumstances?

Has the Respondent established that the decision is justified?

1. In relation to the public interest considerations against disclosure set out in the Table to s 14 of the GIPA Act, the Respondent submitted that the Tribunal should give significant weight to the considerations against disclosure in clauses (1)(f), (1)(g), (3)(a) and (3)(b) its determination of the matter.
2. I have taken into account the submissions of both parties and made a determination on each of the considerations below.

Disclosure of the information could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions (clause 1(f)):

1. The Respondent contended: 1. In addition to its service and regulatory functions, local councils have administrative functions which include the employment of staff and without which Council could not carry out its service and regulatory functions; 2. Section 8A of the Local Government Act (LG Act) sets out the guiding principles for councils in exercising their functions, and includes that councils "should be responsible employers and provide a consultative and supportive working environment for staff"; 3. in the course of a person's employment with the Council they would necessarily need to provide the Council with personal information which would then form part of the employees personal employment record; 4. under s 18 of the PPIP Act, a 'public sector agency' which includes a local council must not disclose personal information except in very limited circumstances none of which applied in this matter; 5. The Deed contained details of the employment relationship between the Council and one of its employees and from which the identity of the employee was apparent; 6. therefore in addition to general community expectations that an employer will not disclose personal information relating to its employees, the Council had a direct obligation not to do so under the PPIP Act; 7. if the data were released it could reasonably be expected to prejudice the effective exercise by the Council of its functions by: 1. Discouraging persons from seeking employment with the Council, or prompting existing employees to seek employment elsewhere; 2. discouraging the Council's employees from providing personal information to the Council during the course of their employment. 3. In doing so, the Council would be prejudiced in its ability to both employ and retain staff.
2. The Applicant contended that this was an isolated matter. It did not involve other Council personnel. It did not constitute a precedent for any other Council personnel information to be released.
3. I do not consider that the release of the redacted information in the Deed could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions. As noted by the Respondent, the Deed is not an employment contract and so would not create a precedent for the release of employment details. Further, the Respondent has not provided any basis on which to find that the release of this particular information would discourage potential employees from taking up a role with the Respondent. Public officials should be aware of the GIPA Act and that in certain circumstances, some information can be released. This is counterbalanced by the protections of the PPIP Act which is considered below under clause 3(b) and to which subparagraph 68(4) above of the Respondent's submissions is more appropriately directed.
4. I do not consider this to be a strong consideration against disclosure of the information that the Applicant has sought.

Disclosure of the information could reasonably be expected to found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence (clause 1(g)):

1. The Respondent contended: 1. the Deed contained a clause requiring it to be confidential except as required by law; 2. the release of the Deed would be in breach of the express obligation of confidentiality and therefore found an action against the agency for breach of confidence; 3. The presence of a confidentiality clause in the deed meant there must be a reasonable expectation that release would found an action of breach of confidence.
2. In Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Premier's Department [2002] NSWADT 277, the former NSW Administrative Decisions Tribunal identified at [53] five matters to be established for a hypothetical equitable action for breach of confidence: "1) First, the information must be capable of being specifically identifiable as information which is secret rather than generally available 2) Second, the subject matter of the obligation of confidence must not be trivial or useless or generally known; 3) Third the information must have been communicated in circumstances such as to fix the recipient with an equitable obligation not to use the information in an unauthorised way; 4) Fourth, it must be established that the disclosure of the information would constitute an unauthorised disclosure; 5) It must be established that the giver of the information would suffer a detriment, not necessarily pecuniary, such as loss of privacy or embarrassment."
3. While the decision of Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Premier's Department concerned an application under the Freedom of Information Act 1989 (repealed), it has been followed in a number of decisions under the GIPA Act: see Dennis v Department of Planning, Industry and Environment [2021] NSWCATAD 377 at [83]; Tallawoladah Pty Ltd v Department of Planning, Industry and Environment [2021] NSWCATAD 248 at [61] and Davis v Secretary, Department of Education [2022] NSWCATAD 55 at [70].
4. As discussed in the open session of the hearing, the Deed is no longer confidential, even in its redacted form. The confidentiality clause was subject to an exception "as required by law" and the Respondent acknowledged that, if the GIPA Act required its release, it could be released (and has been).
5. The disclosure of the information has not constituted an unauthorised disclosure. As such I am not satisfied that disclosure of the information could reasonably be expected to found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence.

Disclosure of the information could reasonably be expected to reveal an individual's personal information (clause 3(a)):

1. Personal information is defined in Schedule 4, clause 4 to the GIPA Act: 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, (c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause.
2. The Respondent contended that the Deed contains information about an individual whose identity is apparent from the information. The Deed had not already been publicly disclosed and so the release of the Deed would necessarily reveal an individual's personal information. The identity of the individual was revealed both in the Applicant's request itself, and is also readily inferred from the information itself to such an extent, meaning that the redacted details in the document could not be provided in any meaningfully redacted form.
3. The Appeal Panel in Commissioner of Police (NSW) v Field [2016] NSWCATAP 59 at [67]-[69] noted that "personal information" in the GIPA Act had a wide definition: 67. Looking at the statutory provisions, it can be seen that "personal information" has a wide definition: GIPA Act, Sch 4, cl 4. It is not defined by reference to matters that have occurred in private. It is concerned with information "about an individual". 68. When it comes to the question whether such personal information has been revealed, the statutory provisions are concerned with revealing information, not with a revealing [sic] the event to which the information relates (cl 3(a) in the Table in s 14 and the definition of "reveal information" in cl 1 of Schedule 4 of the GIPA Act). The incident itself is quite distinct from the information that is obtained about it. 69. The fact that some information about the event has been publicly disclosed does not mean that other information has been. Correctly, the Tribunal below, as we interpret its reasons, did not conclude that the information in the footage had been publicly disclosed because of the tender in open court of the police fact sheet describing the incident…or because of the press reports about the incident.
4. In relation to this consideration it is necessary to consider some issues which arose in the closed session.
5. [NOT FOR PUBLICATION]
6. The Respondent has established that there are certain pieces of information contained in Deed which would meet the definition of personal information, even taking into consideration the proviso in subclause 4(3)(b) in relation to a person engaged in the exercise of public functions.
7. The Respondent has established that disclosure of the information (at least in part) could reasonably be expected to reveal an individual's personal information and this consideration is to be given weight in balancing the public interest in favour of and against disclosure as required by s 13.

Disclosure of the information could reasonably be expected to contravene an information protection principle under the PPIP Act (clause 3(b)):

1. Section 18(1) of the PPIP Act (Information Protection Principle (IPP) 11) imposes limits on the disclosure of personal information. 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 another person.
2. If personal information is disclosed in accordance with IPP 11 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.
3. The PPIP Act definition of personal information (s 4) largely incorporates the same wording as the GIPA definition, with more exclusions as to what constitutes personal information (none of which is relevant in this case).
4. The Respondent contended that the Deed contained personal information as defined under the PPIP Act. Under s 18 PPIP Act, a public sector agency that holds personal information must not disclose that information except in specific circumstances set out at ss 18(1)(a) - (c) of the PPIP Act. Those circumstances do not exist in respect of the Deed. Therefore the release of the Deed would directly contravene the information protection principle against disclosure of personal information at s 18 of the PPIP Act.
5. The essence of disclosure of information is making known to a person information that the person to whom the disclosure is made did not previously know: Nakhl Nasr v State of New South Wales; George Nasr v State of New South Wales [2007] NSWCA 101 at [127] per Campbell JA (Beazley and Hodgson JJA agreeing).
6. There are certain pieces of information contained in Deed which would meet the definition of personal information in the GIPA Act and those pieces of information would also satisfy the definition of personal information in the PPIP Act. Disclosure of that information could reasonably be expected to contravene IPP 11 under the PPIP Act and this is also a consideration that weighs against disclosure of the pieces of information which contain personal information.

Personal factors under s 55

1. The Respondent submitted that the Tribunal should also take the personal factors of the application into account (s 55 GIPA Act).
2. The Applicant is a counsellor of the Council. On that basis, under the Temora Shire Council Model Code of Conduct he is entitled to access such Council information that is necessary for the performance and effective discharge of his official functions. The Applicant was offered the opportunity to inspect the Deed in his capacity as a councillor of the Council, subject to an agreement that he not further disclose any of the contents of the Deed. The Applicant declined to inspect the Deed on that basis.
3. The Respondent submitted that the Applicant's refusal to inspect the document subject to an agreement to keep the contents of the Deed confidential suggested that the Applicant was seeking to obtain the Deed for the purposes of circulating or publishing the Deed or the information contained within it.
4. The Respondent submitted that the widespread publication of the Deed, or the information contained within it, would significantly increase the extent to which its release would prejudice the effective exercise by an agency of the agencies functions, as it would be likely to significantly increase the number of people both within the Council, and the broader community, who were aware of the release of the personal information.
5. However, the personal factors under s 55 can only be taken into account as factors against providing access to the extent that those factors are relevant to the agency's consideration of whether 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 (s 55(4) GIPA Act. Accordingly they are not relevant to any consideration as to whether disclosure of the information could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions (clause (1)(f)).

What is the correct and preferable decision in all the circumstances?

Should the Tribunal affirm the decision?

1. The Respondent acknowledged that the Respondent's decision could not be supported once the redacted version of the Deed was released. As noted above, the Respondent has not justified two of the four considerations on which the Respondent relied. Further, a redacted version of the Deed has now been released and the decision to refuse to provide access to all of the information in the Deed because there is an overriding public interest against disclosure of the information cannot be sustained.
2. In their written submissions in reply, the Respondent contended The decision under review should be affirmed to the extent not hitherto disclosed to the Applicant.
3. However the Respondent's decision was to refuse to provide access under s 58(1)(d). A decision to provide access to information, even in a redacted form, would be a decision under s 58(1)(a) and would not be a decision to affirm the Respondent's decision.
4. There is insufficient basis on which to affirm the decision.

Should the Tribunal vary the decision?

1. The Respondent's decision was to refuse to provide access to the information because there is an overriding public interest against disclosure of the information under s 58(1)(d) of the GIPA Act. If the Tribunal were to make a decision to provide access to the information (with redactions) that decision would be under s 58(1)(a). As such it would be a different decision. In light of the determination that the Respondent's decision should not be affirmed, it is not open to the Tribunal to vary the Respondent's decision.

Should the Tribunal set the decision aside and make a new decision?

1. The Respondent sought for the Tribunal to continue the redactions of the redacted portions of the document to which the Applicant did not already have access. This appears to be a request that the Tribunal should set the decision aside and make a new decision to provide access to the information with redactions.
2. However I am of the view that this is not the correct or preferrable decision in this matter because of the requirement that an individual must be consulted if the agency has decided to provide access to their personal information (s 54(1)) and the individual's rights to object to and seek review of that decision (s 54(6)). The Respondent submitted that this had been done at both the initial stage of making the Respondent's decision and for the RCC Report. However, on the first occasion, access was refused. On the second occasion, as there was no delegation for the RCC to conduct a valid internal review, the processes undertaken by the RCC in preparing the RCC were also not authorised to be conducted for the purposes of the GIPA Act. Any consultation undertaken in that process cannot be relied upon.
3. Further, the Respondent did not appear to consider s 58(3)(c). An agency can decide an access application for government information by: (c) deciding that the information is already available to the Applicant…
4. Under s 59, an agency can decide that information is already available to an Applicant only in certain circumstances, which include if the information is: (b) available to the Applicant from, or for inspection at, the agency free of charge in accordance with this act or the agency's policies and practices.
5. The delegate attested in her affidavit as to the opportunities afforded to the Applicant to view the material: 22. The Applicant is a councillor of the Council, and therefore he is entitled under the Temora Shire Council Model Code of Conduct to access such Council information that is necessary for the performance and effective discharge of his official functions. 23. On 22 June 2023, I am aware that the Applicant was offered the opportunity to inspect the deed of separation in his capacity as a counsellor, subject to a written agreement that he not then further disclose any of the contents of the document. I am aware that the Applicant declined to inspect the deed of separation subject to that written agreement.
6. The Respondent provided a copy of Part 8 to the Temora Shire Council Model Code of Conduct in relation to access to Information and Council resources which relevantly sets out: Councillor and administrator access to information 8.1 The general manager is responsible for ensuring that councillors and administrators can access information necessary for the performance of their official functions. … 8.2 The general manager must provide councillors and administrators with the information necessary to effectively discharge their official functions. 8.3 Members of staff of Council must provide full and timely information to councillors and administrators sufficient to enable them to exercise their official functions and in accordance with Council procedures.
7. Section 58(3)(c) did not appear to have been addressed in any of the decisions or submissions, although the fact that the Applicant had been offered access to the document on a confidential basis formed part of the Respondent's decision under the personal factors of the application. The Respondent submitted that the document's release in a redacted form could not now be reversed and seemed to suggest that a decision now under s 58(3)(c) would be futile.
8. The Applicant submitted that he did not consent to the confidentiality requirements that the access offered by Council would require.
9. As the question of whether s 58(3)(c) might apply was raised for the first time in the proceedings at the Tribunal hearing, I do not consider that it would be procedurally fair to the parties to set the decision aside and make a new decision under that provision, even if that course were open.
10. If the matter were remitted to the agency for reconsideration by the administrator, this factor or the circumstances of any access under the Model Code of Conduct could be given further consideration.

Should the Tribunal set the decision aside and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal?

1. In light of the foregoing considerations, I consider that the correct and preferable decision is to set the decision aside and remit the matter for reconsideration by the administrator in accordance with the recommendations of the Tribunal set out below.

Recommendations

1. On remittal, in addition to the issues raised in this decision, the delegate should particularly address the following matters; 1. Whether the questions raised by the Applicant in his submissions constitute considerations in favour of disclosure; 2. Whether the information in the Deed is affected by Schedule 4(3)(b), which stipulates that personal information does not include information about an individual (comprising the individuals name and non-personal contact details including the individuals 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; 3. Whether the public interest in disclosure of government information can be facilitated by granting access to the information in the Deed in full or with minimal redactions; 4. Although orders have been made restricting the publication of Doc 3 and Doc 8 which were provided confidentially for the purposes of the NCAT proceedings, those orders are not intended to impact and do not extend to any new access decision made on remittal of the proceedings. For clarity, the publication restrictions made in this decision are only for the purposes of the present NCAT proceedings and are not relevant considerations in making the new access decision on remittal.

Orders

1. The Tribunal makes the following orders: 1. Under section 63 (3)(d) of the Administrative Review Act 1997, the decision under review is set aside and remitted for reconsideration in accordance with the recommendations set out in paragraph [103] to this decision 2. Under section 64(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the sound recording and the transcript of the closed hearing (from 11:10 am to 11:50 am on 24 May 2024) of these proceedings is prohibited. 3. Under section 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the evidence in Doc R3 and Doc R8 of these proceedings is prohibited. 4. Under section 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW) disclosure to the Applicant of the evidence in Doc R3 and Doc R8, the sound recording and the transcript of the closed hearing (from 11:10 am to 11:50 am on 24 May 2024) in these proceedings and paragraphs [48], [49] and [73] of this decision is prohibited.

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 July 2024