McKinnon v Secretary, Department of Treasury [2006] HCA 45
Nasr v State of New South Wales [2007] NSWCA 101
National Tertiary Education Union v Southern Cross University [2015] NSWCATAD 151
Nature Conservation Council of NSW v Department of Trade and Investment, Regional Infrastructure and Services [2012] NSWADT 195
R v Ritson; R v Stacey (2010) NSWDC 160
Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98
ZR v NSW Department of Education and Training [2009] NSWADT 84
Category: Principal judgment
Parties: Dominic Wy Kanak (Applicant)
NSW Department of Education and Communities (Respondent)
Representation: Counsel:
S Palaniappan (Respondent
[2]
Solicitors:
In Person (Applicant)
NSW Crown Solicitor's Office (Respondent)
File Number(s): 2015/00383607
[3]
Background
On 6 May 2014, Mr Dominic Wy Kanak, ('Mr Kanak') applied to the NSW Department of Education and Communities ('the Department of Education') for access to information and communications concerning the business of an organisation of which he had been a director ('the organisation'). His access application sought 'all communications…including emails from and to email addresses (email addresses provided) that concern or mention the applicant and/or communications concerning the business of [the organisation]. The period from which these emails are sought are for the years 2014, 2013 and 2012.'
In considering Mr Kanak's request, the Department of Education noted that whilst the organisation was not a government agency for the purposes of the Government Information (Public Access) Act 2009 ('the GIPA Act'), some of the information requested was obtained from an email address of the Department of Education. This information, comprising 192 pages of emails and attachments, was relevant to the access application. In considering Mr Kanak's request, the Department of Education initially decided to refuse to grant the access sought. This decision was upheld in an internal review decision dated 23 October 2014.
In refusing to grant access to the information, the Department of Education found that there existed overriding public interests against disclosing the information.
The following personal factors were taken into consideration when considering Mr Kanak's access request:
as a member of the [organisation] you may have to keep the information you receive confidential and therefore not use the information for public purposes however if the information is provided from you under the GIPA Act no conditions can be placed on how you use the information.
On 23 October 2015, a review report was undertaken by the Information and Privacy Commission in relation to Mr Kanak's application.
In relation to the 192 pages (or 59 documents), the Information and Privacy Commission recommended that the Department of Education make a new decision in relation to records numbered 1-61 (documents 1-14), 68-81 (documents 16 - 20) and 88-192 (documents 22 - 59).
In relation to records numbered 62-67 (document 15) and 82 - 87 (document 21), the Information and Privacy Commission was satisfied that there was a public interest consideration against the disclosure of information that could reasonably be expected to reveal an individual's personal information.
In relation to the remaining outstanding records, the Information and Privacy Commission was not satisfied that the Department of Education had demonstrated any public interest consideration against disclosure and recommended it make a fresh decision in relation to those records.
On 3 November 2015, the Department of Education wrote to Mr Kanak to advise that it had decided not to follow the recommendation of the Information and Privacy Commission and would not be making a fresh decision in relation to the information sought.
On 20 November 2015, Mr Kanak sought a review of the decision by the Department of Education to refuse him access to the requested documents. He told the Tribunal that he sought the documents for the following reasons:
to have access to his personal information;
to have information about the governance of the organisation, which is a publicly funded educational institution.
Mr Kanak also sought a review against the decision relating to the charges levied by the Department of Education for those documents it had agreed to release.
On 21 October 2016, the Tribunal made an order with the consent of both parties that the matter be remitted to the Department of Education and a re-determination be completed and provided to Mr Kanak by 25 November 2016.
On 19 October 2016, the Department of Education advised the Tribunal that further searches would need to be undertaken in relation to Mr Kanak's request for access to information in relation to 'communications concerning the business of' the organisation.'
Having undertaken further searches, on 25 November 2016 the Department of Education determined to release further material under s58(1)(a) of the GIPA Act. It determined to release, in full, 74 pages of material identified as within the scope of Mr Kanak's access application.
A third party objected to the release of this information and was invited by the Tribunal to join the matter as a party to the proceedings. When the third party did not pursue the joinder application, the additional material was released to Mr Kanak.
[4]
Vexatious litigant order
In 2004, an order had been made in the Supreme Court of NSW restraining Mr Kanak from instituting any legal proceedings in any court without first obtaining the leave of the Supreme Court.
A preliminary question arose in relation to Mr Kanak's application for review to the Tribunal, namely whether a vexatious litigant order would prevent him from instituting these proceedings without the leave of the Supreme Court of NSW.
I accept the Department of Education's submissions that this order does not operate in respect of the institution of proceedings in this Tribunal. This is because the term 'court' as set out in s84 of the Supreme Court Act 1970 does not encompass an administrative tribunal such as this Tribunal. Even though s84 of the Supreme Court Act was repealed by clause 2 of the Vexatious Proceedings Act 2008 - which is broader in scope and may extend to preventing a person from instituting proceedings in both courts and tribunals - the decision in Bar-Mordecai v State of NSW; Bar-Mordecai v Attorney-General (NSW) (2012) 83 NSWLR 125 held that the Vexatious Proceedings Act could not expand the scope of the original vexatious litigant order to affect the commencement of proceedings not contemplated by the original order.
On this basis, I accept that Mr Kanak was not required to obtain the leave of the Supreme Court before commencing these proceedings before the Tribunal.
[5]
Released documents
The Department of Education subsequently agreed to release the following documents, which are contained in a folder of confidential documents filed in the Tribunal on 21 June 2016:
Document 1;
Document 3 - with redaction of personal information;
Document 4 - with redaction of sentence in the last paragraph commencing 'You' and concluding 'review';
Document 9;
Document 10 - release page 39; withhold pages 40-41;
Document 22 - with redaction of personal information;
Document 23 - partially released on 1/9/16 with personal information and information related to the organisation's business interests redacted;
Document 26 - partially released on 1/9/16 with personal information and information related to the organisation's business interests redacted;
Document 28 - with redaction of personal information;
Document 29 - with redaction of personal information;
Document 32 - with redaction of personal information;
Document 33 - with redaction of personal information;
Document 34 - page 130 to be released; pp127-129 to be withheld;
Document 35 - to be released with redaction of items 4 and 5.4;
Document 36- to be released with redactions;
Document 37 - email dated 28/10/13 to be released with balance of document withheld;
Document 41 - to be released;
Document 43 - to be released with redaction of personal information;
Document 45 - to be released with redaction of personal information;
Document 46 - to be released with redaction of personal information;
Document 47 - to be released with redaction of personal information;
Document 48 - to be released with redaction of personal information;
Document 49 - to be released with redaction of personal information;
Document 50 - to be released with redaction of personal information;
Document 51 - to be released with redaction of personal information;
Document 52 - to be released with redaction of personal information;
Document 53 - to be released with redaction of personal information;
Document 54 - to be released with redaction of personal information;
Document 55 - to be released with redaction of personal information;
Document 56 - to be released with redaction of personal information;
Document 58;
Document 59;
The Department of Education refused to release the following documents on the basis that they contained the personal information of a third party (but sought to consult with the third party about the release of these documents in accordance with s54 of the GIPA Act):
Document 2
Document 6
Document 8
Document 12
Document 15
Document 21
The Department of Education refused to release document 57 on the basis that it contains information about a person that concerns their business interests, the disclosure of which may prejudice those interests. Department of Education also sought to consult with this person in relation to the disclosure of the document.
[6]
Withheld documents
Mr Kanak seeks the release of those documents still withheld by the Department of Education. In submissions dated 16 August 2016, Mr Kanak, who was self-represented in these proceedings, stated that:
The applicant does not seek administrative review of the agency decision to now provide some access to some documents. The applicant seeks administrative review of the agency decision to redact information that is not strictly personal private business information contained in the government records now granted part access. If it means that the applicant will receive no information, then subject to further argument the applicant may not pursue access behind the redactions.
The following documents have been partially released:
Document 4 (one sentence redacted)
Document 10
Document 23 - (redacted information relating to organisation's business interests)
Document 26 ((redacted information relating to organisation's business interests)
Document 34 (page 127-129 withheld)
Document 35 (redaction of items 4 and 5.4)
Document 37 (email dated 28/10/13 released, balance withheld)
Document 45 (one sentence redacted)
Document 48 (one item redacted)
Document 49 (two sentences redacted)
[7]
Evidence
Three witnesses gave evidence before the Tribunal.
[8]
Chief Executive Officer
As part of these proceedings, the Chief Executive Officer of the organisation ('the CEO') provided both an open and a confidential affidavit. She also gave oral evidence to the Tribunal.
The organisation, which delivers training courses, is required to maintain relevant accreditation and as a recipient of government funding, to comply with the relevant government requirements. The organisation also partners with the private sector to provide specialised training opportunities for students. The agency has a board with all members being required to sign a Code of Conduct.
In her evidence, the CEO objected to the release of a number of the documents sought for the following reasons:
they referred to the dismissal of a staff member and could prejudice the confidentiality of the subsequent settlement;
they could reasonably be expected to prejudice the organisation's legitimate business and commercial interests, in particular by damaging the organisation's reputation;
the disclosure of the requested information could reasonably be expected to reveal an individual's personal information;
the disclosure of the requested information could reasonably be expected to reveal false or unsubstantiated allegations about a person that are defamatory.
In oral evidence before the Tribunal, the CEO agreed that the NSW government purchases training for the agency and that the agency then reports back to the government. She confirmed that the organisation remained in negotiation for further funding both with government and private sector organisations.
She agreed that Mr Kanak has sought access to information from the organisation and that she had viewed the relevant documents. She agreed that she had viewed emails from the chairperson of the Board of Directors, which 'disciplined' Mr Kanak for his behaviour and asked him to desist from it.
She confirmed that the term 'good governance' was about the behaviour of the directors of the organisation. She agreed that staff, volunteers, students and board members would each sign the organisation's code of conduct agreement.
[9]
Employee
A former employee of the organisation ('the employee') objects to the release of the following documents on the basis that they contain her business and personal information:
Document 2
Document 6
Document 8
Document 12
Document 15
Document 21
[10]
Chair of the board of directors
Mr Kanak sought information about the organisation as contained in emails created, received and sent by the Chair of the Board of Directors ('the Chair') using her NSW government e-mail address.
The Chair objected to the release of the information on the basis that:
it could prejudice the supply of confidential information that facilitates the effective exercise of the function of the organisation;
it could reasonably be expected to reveal an individual's personal information;
some of the material deals with the termination of a staff member, the release of which could prejudice court proceedings;
it could reveal false or unsubstantiated allegations about a person that are defamatory;
the information could potentially prejudice the organisation's business, commercial, professional and financial interests.
In oral evidence before the Tribunal, the Chair clarified that because she had used her government email for her voluntary role as Chair of the organisation, the relevant emails came under the scope of the GIPA Act.
She agreed that as the current Chair of the organisation, she was given conduct money for her role and an Opal card. She agreed that she had been Chair for a 'good few years' and that in that position, she was required to observe the Code of Conduct. She agreed that the Code of Conduct prohibits the private use of agency resources. She agreed that she had used her departmental email address for business pertaining to the organisation but that she was allowed to use this address for personal matters so long as they did not interfere with her departmental work. She agreed that she had previously deleted emails on her departmental address but denied having deleted any emails since the GIPA request by Mr Kanak.
She denied conferring with the CEO of the organisation in relation to the affidavit sworn by the CEO. She told Mr Kanak that she had become aware of the GIPA request when the Department of Education had issued her with a document requesting her to disclose all relevant documents. She told the Tribunal that the documents included emails and word documents.
[11]
Government information
The GIPA Act commenced operation on 1 July 2010. The objects of the Act are set out in section 3(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 and encouraging the proactive public release of government information by agencies, and
(b) 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.
"Government information" is given a wide meaning under s4 of the GIPA Act being "information contained in a record held by an agency."
The Department of Education is an 'agency' as defined in s4 of the GIPA Act. Accordingly, any information received or used or generated by an email address of the Department of Education is 'government information' as defined in the GIPA Act.
The GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5). In accordance with s9(1) of the GIPA Act, Mr Kanak has a legally enforceable right to access the information requested, unless there is an overriding public interest against disclosing the information.
The general public interest consideration in favour of access to government information set out in section 12 of the GIPA Act means that this balance is always weighted in favour if disclosure. Section 5 of the GIPA Act establishes a presumption in favour of disclosure of government information.
There will only be an overriding public interest against disclosure when the public interest test in s 13 is satisfied. It provides -
There is an overriding public interest against disclosure of government information for the purposes of this 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.
The approach the Tribunal should take to applying section 13 has been discussed in a number of decisions including Flack v Commissioner of Police, NSW Police [2011] NSWADT 286 and Hurst v Wagga Wagga City Council [2011] NSWADT 307. The consistently applied approach is that the test in section 13 of the GIPA Act requires decision makers to:
identify relevant public interest considerations in favour of disclosure,
identify relevant public interest considerations against disclosure,
attribute weight to each consideration for and against disclosure, and
determine whether the balance of the public interest lies in favour of or against disclosure of the government information.
In considering whether there is an overriding public interest against disclosure, s 15 of the GIPA Act provides that the following principles apply -
(a) Agencies must exercise their functions so as to promote the object of this Act.
(b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner.
(c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.
(d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.
(e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
The table to s14 of the GIPA Act sets out the relevant public interest considerations against disclosure. Section 14(2) provides that -
The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.
In this case, four public interest considerations against disclosure have been raised by the Department of Education:
Disclosure of the information could reasonably be expected to prejudice legitimate business, commercial, professional or financial interests (section 14 table 1 Clause 4(d))
Disclosure of the information could reasonably be expected to reveal an individual's personal information (section 14 table 1 clause 3(a))
Disclosure of the information could reasonably be expected to reveal false or unsubstantiated allegations about a person that are defamatory (section 14 table 1 clause 3(e))
In the case of personal information about a child, disclosure of that information that it would not be in the best interests of the child to have disclosed (section 14 table 1 clause 3(g))
Section 105 of the GIPA Act provides that the onus is on the agency to justify its decision. In relation to each of the asserted section 14 table factors the agency must establish that the disclosure of the information could reasonably be expected to have the effect outlined in the table.
The words "could reasonably be expected to" are to be given their ordinary meaning: see Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 28 and Attorney-General's Department v Cockcroft (1986) 10 FCR 180. In that case, Bowen CJ and Beaumont J explained, at 190, that the words -
...require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like.
Hayne J pointed out in McKinnon v Secretary, Department of Treasury [2006] HCA 45 at [61] that
it is necessary for the Agency to demonstrate, with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect.
Item 3 in the table to s14 of the GIPA Act relevantly provides:
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,
(c) prejudice any court proceedings by revealing matter prepared for the purposes of or in relation to current or future proceedings,
(e) reveal false or unsubstantiated allegations about a person that are defamatory,
(g) in the case of the disclosure of personal information about a child - the disclosure of information that it would not be in the best interests of the child to have disclosed.
'Personal information' is defined in clause 4 of Schedule 4 to the GIPA Act as follows:
4 Personal information
(1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.
(2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics.
(3) Personal information does not include any of the following:
(a) information about an individual who has been dead for more than 30 years,
(b) information about an individual (comprising the individual's name and non-personal contact details) 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.
No regulations have been made prescribing information for the purposes of subparagraph 3(c).
[12]
Processing charges
Under section 64 of the GIPA Act, an agency may impose a processing charge for dealing with an access application.
64 Processing charge for dealing with access application
(1) An agency may impose a charge (a processing charge) for dealing with an access application at a rate of $30 per hour for each hour of processing time for the application.
Note.
The decision to impose a processing charge is reviewable under Part 5.
(2) The processing time for an application is the total amount of time that is necessary to be spent by any officer of the agency in:
(a) dealing efficiently with the application (including consideration of the application, searching for records, consultation, decision-making and any other function exercised in connection with deciding the application), or
(b) providing access in response to the application (based on the lowest reasonable estimate of the time that will need to be spent in providing that access).
(3) The application fee of $30 paid by an applicant counts as a payment towards any processing charge payable by the applicant.
(4) Access to government information granted in response to an access application may be made conditional on payment of any processing charge imposed for dealing with the application.
Section 65 of the GIPA provides for a 50% discount for financial hardship:
65 Discounted processing charge - financial hardship
(1) An applicant is entitled to a 50% reduction in a processing charge imposed by an agency if the agency is satisfied that the applicant is suffering financial hardship.
Note.
The discount applies only to the processing charge, not the application fee. If a 50% reduction in processing charge applies, the application fee will pay for the first 2 hours of processing time (not just the first hour). See section 64.
(2) The agency may refuse to allow the discount if satisfied that the applicant is making the application on behalf of another person in order to obtain the discount for that person.
(3) The regulations may prescribe circumstances that constitute financial hardship.
Note.
A decision to refuse to reduce a processing charge is reviewable under Part 5.
Section 66 of the GIPA Act provides that
66 Discounted processing charge - special public benefit
(1) An applicant is entitled to a 50% reduction in a processing charge imposed by an agency if the agency is satisfied that the information applied for is of special benefit to the public generally.
Note.
The discount applies only to the processing charge, not the application fee. If a 50% reduction in processing charge applies, the application fee will pay for the first 2 hours of processing time (not just the first hour). See section 64.
A decision to refuse to reduce a processing charge is reviewable under Part 5.
(2) If the information applied for was not publicly available at the time the application was received but the agency makes the information publicly available either before or within 3 working days after providing access to the applicant, the applicant is entitled to a full waiver of the processing charge imposed by the agency.
(3) The Information Commissioner may, for the assistance of agencies, publish guidelines about reductions in processing charges under this section.
Section 67 of the GIPA Act provides for a waiver of processing charges if an application is made for personal information about the applicant.
67 Waiver of processing charge for personal information application
If an access application is made for personal information about the applicant (the applicant being an individual), the agency cannot impose any processing charge for the first 20 hours of processing time for the application.
Note.
This does not limit an agency's power to reduce, waive or refund processing charges under section 127.
The Information Commissioner's GIPA Guideline 2 - Discounting Charges says that while the term 'special benefit to the public generally' is not capable of exhaustive definition, 'information that better informs the public about government or concerns a publicly significant issue would be of special benefit or special interest to the public generally.
Section 127 of the GIPA Act provides that:
127 Waiver, reduction or refund of fees and charges
An agency is entitled to waive, reduce or refund any fee or charge payable or paid under this Act in any case that the agency thinks appropriate, subject to the regulations.
Note.
See section 51A concerning the effect of a waiver, reduction or refund of the fee for an access application.
In National Tertiary Education Union v Southern Cross University [2015] NSWCATAD 151, Senior Member Lucy found that, as the relevant discounts are non-cumulative, an applicant seeking a reduction of processing charges under either s65 or s66 of the GIPA Act can only ever be entitled to a maximum reduction of 50%.
[13]
Application of the GIPA Act to this application
There is a general public interest in favour of the disclosure of government information, in accordance with s12 of the GIPA Act.
Section 3 of the GIPA Act identifies that the unifying purpose of the objects of the GIPA Act is to 'maintain and advance a system of responsible and representative democratic government that is open, accountable, fair and effective.' It is the government and its agencies that are at the core of the GIPA Act's pro-disclosure purpose.
I accept that in this application, the organisation is not an 'agency' within the meaning of the GIPA Act, nor is it part of or to be identified with the government.
However, as noted above, the applicant seeks information related to the organisation. The organisation's business information is only 'government information' for the purposes of the GIPA Act because the Chair used her Department of Education email address to send or receive emails in relation to the organisation, of which she holds the volunteer position of Chair.
[14]
Redacted information
Mr Kanak has not sought information that is personal private business information. I am satisfied that the information redacted from documents 22, 28, 29, 32, 33, 36, 43, 51, 52, 53, 54, 55 and 56 is limited to the names, email addresses and phone numbers of those people included in the emails. On this basis, I am satisfied that the redacted information does not fall within the scope of Mr Kanak's access application.
I am satisfied that the information redacted from document 45 is limited to the email address and mobile number of a former board member in addition to five sentences pertaining solely to the former member's health status. On this basis, I find that the information redacted from document 45 does not fall within the scope of Mr Kanak's access application.
[15]
Public interest in favour of disclosure
It is common ground that in addition to the section 12 factors, the public interest considerations in favour of disclosing the requested material are:
the general public interest in favour of disclosure of government information; and
the extent to which the information to which access is sought is the personal information of the applicant.
[16]
Public interest considerations against disclosure
The following public Interest considerations against disclosure are relevant in this application:
[17]
Disclosure of the information could reasonably be expected to prejudice legitimate business, commercial, professional or financial interests (section 14 table 1 clause 4(d))
The Department of Education submits that documents 5, 7, 11, 13, 14, 16, 17, 18, 19, 20, 24, 25, 26, 27, 30, 31, 34, 35, 37, 38, 39, 40, 42, 44, 48, 49 and 57 should not be disclosed to Mr Kanak on the basis that disclosure of the information could reasonably be expected to prejudice the legitimate business, commercial, professional or financial interests of the organisation.
Of these, documents 5, 7, 11, 13, 14, 16, 17, 18, 19, 20, 24, 25, 26, 27, 30, 31, 34, 35, 37, 38, 40, 42, 44, 48 are emails that were either sent to or sent by Mr Kanak. On this basis, I am satisfied that these documents have already been disclosed, or revealed.
I agree with the findings of Latham CJ in Foster v Federal Commissioner of Taxation (1951) 82 CLR 606 that it is not possible to 'disclose' to a person a fact of which he is already aware.
Accordingly, release under the GIPA Act of these documents would not amount to disclosure of information that could reasonably be expected to prejudice legitimate business, commercial, professional or financial interests.
Document 39 is an email from a staff member of the organisation attaching a form to be completed by directors of the organisation.
The Department of Education submits that the information could reasonably be expected to prejudice the organisation's legitimate business and professional interests by disclosing sensitive staffing related material, namely comments in relation to the requirement by board members of the organisation to return a Fit and Proper Person Requirements declaration, including information as to possible repercussions should the form not be returned by board members of the organisation. I am not satisfied that the information, if disclosed, could reasonably be expected to prejudice the organisation's legitimate business and professional interests by disclosing sensitive staffing related material. This is because the document itself contains very little information, none of which, in my view, would prejudice the organisation's business and professional interests. I give little weight to this consideration.
Having weighed up the public interests against disclosure and for disclosure, and noting the presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure, I am I am of the view that the balance of the public interest is in favour of the disclosure of the information in document 39.
Document 57 is an email from the Chair of the organisation attaching a letter from a third party. The document contains no personal information about Mr Kanak. Accordingly I give no weight to Mr Kanak's request to have it 'in order to have access to his personal information.' The document does have information relevant to the governance of the organisation and I have given some weight to this in considering its disclosure.
The document includes a letter from a third party foreshadowing a possible partnership with another organisation and setting out issues impacting upon the third party's viability and its failure to provide documents in relation to its annual progress. I accept that this information might prejudice the third party business' future business and commercial interests in that it might cast doubt on its financial position and governance. I give some weight to these two considerations.
Having weighed up the public interests against disclosure and noting the presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure, I am satisfied that there is an overriding public interest against disclosure in that the document might prejudice the third party business' future business and commercial interests in that it might cast doubt on its financial position and governance. Document 57 should not be released to Mr Kanak.
[18]
Disclosure of the information could reasonably be expected to reveal an individual's personal information (section 14 table 1 3(a))
The Department of Education submits that documents 2,5,6,7,8,9,10, 11,12,13,15,16, 21, 23, 25, 30, 31, 34, 35, 37, 38, 39, 40, 42, 44, 45, 48 and 49 should not be fully disclosed to Mr Kanak on the basis that the disclosure of the information could reasonably be expected to reveal an individual's personal information.
Of these documents, the following have either been sent by or sent to the applicant:
Document 2
Document 5
Document 6
Document 7
Document 8
Document 10
Document 11
Document 12
Document 13
Document 14
Document 15
Document 16
Document 17
Document 18
Document 19
Document 20
Document 21
Document 23
Document 24
Document 25
Document 26
Document 27
Document 30
Document 31
Document 34
Document 35
Document 37
Document 38
Document 40
Document 42
Document 44
Document 46
Document 47
Document 48
Document 50
Document 51
Document 52
Document 53
Document 54
Document 55
As noted above, once information is known by an applicant, it cannot then be revealed or disclosed, unless it was originally revealed by unlawful means.
Where there is material indicating that the information has already been publicly disclosed, the burden is on the agency to establish that it was not: Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98 at [40].
Accordingly, release under the GIPA Act could not reasonably be expected to reveal the complainant's personal information in circumstances where the information has already been revealed. As a result, the public interest against disclosure in cl 3(a) of the Table cannot be relied on as a ground for refusing disclosure.
It is the Department of Education's view that the document 39 should be withheld because if disclosed, it would reveal the staff member's personal information, namely his name, position and business email address. Document 38, however, is an email from that same staff member to Mr Kanak. For this reason, I am satisfied that Mr Kanak is already aware of the staff member's name, email address and (former) position within the organisation. Accordingly, release under the GIPA Act could not reasonably be expected to reveal the staff member's personal information. As a result, the public interest against disclosure in cl 3(a) of the Table cannot be relied on as a ground for refusing disclosure.
[19]
Disclosure of the information could reasonably be expected to reveal false or unsubstantiated allegations about a person that are defamatory (section 14 table 1 3(e))
The Department of Education submits that documents 5, 11, 16 and 34 should not be disclosed to Mr Kanak on the basis that the disclosure of the information could reasonably be expected to reveal false or unsubstantiated allegations about a person that are defamatory. Each of these documents have either been sent by or sent to Mr Kanak.
As set out above, once information is known by an applicant, it cannot then be revealed or disclosed, unless it was originally revealed by unlawful means. In relation to the documents listed above, I find that the information contained in them has already been disclosed, and consequently revealed. Accordingly, released under the GIPA Act could not reasonably be expected to reveal false or unsubstantiated allegations about a person that are defamatory.
As a consequence of this, the public interest against disclosure in cl 3(e) of the Table cannot be relied on as a ground for refusing disclosure.
For this reasons, I find that documents 5, 11 and 34 should be released in full.
[20]
Disclosure of the information could reasonably be expected to one or more of the following effects: in the case of the disclosure of personal information about a child - the disclosure of information that it would not be in the best interests of the child to have disclosed (section 14 table 1 3(g)).
The Department of Education submits that document 16 should not be disclosed to Mr Kanak on the basis that it contains personal information about a child and it would not be in the best interests of the child to have that material disclosed.
As the document in question is an email sent to the applicant, I find that it has already been 'disclosed'. Accordingly, release under the GIPA Act could not reasonably be expected to disclose personal information about a child. As a result, the public interest against disclosure in cl 3(g) of the Table cannot be relied on as a ground for refusing disclosure.
[21]
Documents to be released
For the reasons set out above, I find that the following documents should be released to Mr Kanak in full: documents 2, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 23, 24, 25, 26, 27, 30, 31, 34, 35, 37, 38, 39, 40, 42, 44, 46, 47, 48, 49, 50, 51, 52, 53, 54 and 55.
[22]
Processing charges
Mr Kanak has not provided evidence that he has a financial hardship such that he is entitled to a reduction of his fees.
On the evidence before me, I am not satisfied that the information applied for is of special benefit to the public generally.
The Department of Education has already provided Mr Kanak with a 50% of processing fees. I agreed with the view expressed in National Tertiary Education Union v Southern Cross University [2015] NSWCATAD 151 that the discount to which an applicant is entitled under s66(1) of the GIPA Act is limited to 50% of the total processing charge. For this reason, I find that Mr Kanak is not entitled to any further reduction of the processing fees.
[23]
CONCLUSION
For the reasons set out above, I am satisfied that Mr Kanak is not entitled to any further reduction of the processing fees.
For the reasons set out above, the decision of the Department of Education on 23 October 2014 to refuse access to information requested by Mr Kanak is set aside. The Department of Education is to release those further documents as detailed above.
[24]
ORDER
1. The decision of the respondent on 23 October 2014 to refuse access to information requested by the applicant is set aside.
2. In substitution for that decision and in addition to any material already released or agreed to be released to the applicant by the respondent, the respondent is to release in full the following documents (copies of which are contained in the respondent's folder of confidential material received on 21 June 2016):
* Document 2
* Document 4
* Document 5
* Document 6
* Document 7
* Document 8
* Document 10
* Document 11
* Document 12
* Document 13
* Document 14
* Document 15
* Document 16
* Document 17
* Document 18
* Document 19
* Document 20
* Document 21
* Document 23
* Document 24
* Document 25
* Document 26
* Document 27
* Document 30
* Document 31
* Document 34
* Document 35
* Document 37
* Document 38
* Document 39
* Document 40
* Document 42
* Document 44
* Document 46
* Document 47
* Document 48
* Document 50
[25]
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 June 2017
In relation to items 3(a) and 3(e) in the table to s14, cl 1 in Schedule 4 to the GIPA Act provides that 'reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).
In Luxford v Department of Education and Communities [2016] NSWCATAD 118, the view was expressed that where the applicant was already aware of information, the release of the information could not 'disclose' or 'reveal' that information.
The "essence of disclosure" is "making known to a person information that the person to whom the disclosure is made did not previously know" (Nasr v State of New South Wales [2007] NSWCA 101 at [127]; see also, in the privacy context, JD v New South Wales Medical Board [2008] NSWADT 67, ZR v NSW Department of Education and Training [2009] NSWADT 84 and CYL v YZA [2016] NSWCATAD 314 at [15]).
In Clarkin v Newcastle City Council [2013] NSWADT 44, Senior Member Isenberg found that:
The term "reveal" is defined in clause 1 of Schedule 4 GIPA Act to mean "to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure). If the information in a record has been disclosed, it cannot then be "revealed" by giving access under the GIPA Act: Nature Conservation Council of NSW v Department of Trade and Investment, Regional Infrastructure and Services [2012] NSWADT 195 at [174]. This is consistent with the approach in R v Ritson; R v Stacey (2010) NSWDC 160 at [51] - [58], in which the Court adopted the meaning of "disclosure", albeit for the purposes of the Privacy and Personal Information Protection Act 1998 ('the PPIP Act'), the definition in (1951) 82 CLR 606 at [614] -[615] per Latham CJ:
...it is not possible, according to the ordinary use of language, to 'disclose' to a person a fact of which he is, to the knowledge of the person making a statement as to the fact, already aware
Item 4 in the table to s14 of the GIPA Act relevantly provides:
4 Business interests of agencies and other persons
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:
…
(d) prejudice any person's legitimate business, commercial, professional or financial interests.
Under schedule 4 of the GIPA Act, 'person' includes an agency, the government of another jurisdiction (including a jurisdiction outside Australia) and an agency of the government of another jurisdiction. The definition of 'person' is specifically stated not to limit the definition of person in the Interpretation Act 1987 which includes an individual, a corporation and a body corporate or politic.
The mere fact that disclosure of the withheld information could reasonably be expected to lead to the identified outcome is not sufficient to allow the consideration against disclosure to override the presumption in favour of disclosure. It is necessary to determine what weight should be given to the various criteria having regard to the general terms of the GIPA Act, and the presumption in favour of disclosure."
As set out above, Schedule 4 to the GIPA Act provides that to 'reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).'
The 'essence of disclosure' is "making known to a person information that the person to whom the disclosure is made did not previously know" (Nasr v State of New South Wales [2007] NSWCA 101 at [127]; see also, in the privacy context, JD v New South Wales Medical Board [2008] NSWADT 67, ZR v NSW Department of Education and Training [2009] NSWADT 84 and CYL v YZA [2016] NSWCATAD 314 at [15]).