Kastanias v Georges River Council

Issues to be determined

1. The Tribunal is to decide what the 'correct and preferable' decision is having regard to the material before it, including any relevant factual material and any applicable written or unwritten law: section 63(1) of the Administrative Decisions Review Act 1997 ("the ADR Act").

Applicable legislation

1. The Applicant applied to the Tribunal under section 100 of the GIPA Act as a person aggrieved by the decision of the Council to release information to the access applicant. As the decision under review is a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies with the Applicant: section 105(2) of the GIPA Act.
2. Pursuant to section 63(3) of the ADR Act, the Tribunal may decide to: 1. affirm the reviewable decision, 2. vary the reviewable decision, 3. set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or 4. set aside the reviewable decision and remit the matter for consideration by the administrator in accordance with any directions or recommendations of the Tribunal.
3. Section 5 of the GIPA Act establishes a presumption in favour of the disclosure of government information, unless there is an overriding public interest against disclosure.
4. Section 9 of the GIPA Act provides that applications for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure.
5. Section 12 of the GIPA Act provides that there is a general public interest in favour of the disclosure of government information that is not covered by overriding secrecy laws. The category of public interest considerations in favour of disclosure is not limited. Subsection 12(2) sets out several examples of public interest considerations in favour of disclosure.
6. Section 13 of the GIPA Act provides that 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.
7. Section 14(1) of the GIPA Act provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1 to the GIPA Act.
8. The public interest considerations listed in the Table to section 14 of the GIPA Act 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.
9. The Applicant relies on the public interest considerations against disclosure found in clauses 1(d), 1(e), 1(f), 1(g), 1(h), 3(a), 3(b), 3(e) and 4(d) of the Table to section 14 of the GIPA Act.
10. Clause 1 of the table provides: 1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally) - … (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, (e) reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency, (f) prejudice the effective exercise by an agency of the agency's functions, (g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence, (h) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).
11. Clause 3 of the table 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, (b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002 … e) reveal false or unsubstantiated allegations about a person that are defamatory ...
12. Clause 4 of the table 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 ...
13. The principles to be applied in determining whether there is a public interest against disclosure of government information are set out in section 15 of the GIPA Act.
14. Section 113 of the GIPA Act provides for protection in respect of actions for defamation or breach of confidence as follows: 113 Protection in respect of actions for defamation or breach of confidence (1) If government information is disclosed pursuant to a decision under this Act, and the person by whom the decision is made believes in good faith, when making the decision, that this Act permits or requires the decision to be made - (a) no action for defamation or breach of confidence lies against the Crown, an agency or an officer of an agency by reason of the making of the decision or the disclosure of information, and (b) no action for defamation or breach of confidence in respect of any publication involved in, or resulting from, the disclosure of information lies against the author of a record containing the information or any other person by reason of the author or other person having supplied the record to an agency. (2) Neither the giving of access to information pursuant to a decision under this Act nor the making of such a decision constitutes, for the purposes of the law relating to defamation or breach of confidence, an authorisation or approval of the publication of a record containing the information or its contents by the person to whom the information is disclosed.

Local Government Act 1993 ("the LGA") provisions

1. Section 440 of the LGA provides: 440 Codes of conduct (1) The regulations may prescribe a model code of conduct (the model code) applicable to councillors, members of staff of councils and delegates of councils. (2) The regulations may provide that the provisions of the model code relating to the disclosure of pecuniary interests are also to apply to the following persons - (a) a member of a committee of a council (including the Audit, Risk and Improvement Committee), (b) an adviser to a council. (3) A council must adopt a code of conduct (the adopted code) that incorporates the provisions of the model code. The adopted code may include provisions that supplement the model code. (4) A council's adopted code has no effect to the extent that it is inconsistent with the model code as in force for the time being. (5) Councillors, members of staff and delegates of a council must comply with the applicable provisions of - (a) the council's adopted code, except to the extent of any inconsistency with the model code as in force for the time being, and (b) the model code as in force for the time being, to the extent that - (i) the council has not adopted a code of conduct, or (ii) the adopted code is inconsistent with the model code, or (iii) the model code contains provisions or requirements not included in the adopted code. (6) A provision of a council's adopted code is not inconsistent with the model code merely because the provision makes a requirement of the model code more onerous for persons required to observe the requirement. (7) A council must, within 12 months after each ordinary election, review its adopted code and make such adjustments as it considers appropriate and as are consistent with this section. (8) (Repealed) (9) This section applies to an administrator of a council (other than an administrator appointed by the Minister for Primary Industries under section 66) in the same way as it applies to a councillor.
2. And section 440AA of the LGA provides: 440AA Administration of code of conduct (1) The regulations may prescribe a procedure (the model procedure) for administering the model code. (2) The model procedure is to set out the procedures for dealing with alleged contraventions of the model code. (3) A council must adopt a procedure (the adopted procedure) that incorporates the provisions of the model procedure. The adopted procedure may include provisions that supplement the model procedure. (4) A council's adopted procedure has no effect to the extent that it is inconsistent with the model procedure as in force for the time being. (5) Councillors, members of staff and delegates of a council must comply with the applicable provisions of - (a) the council's adopted procedure, except to the extent of any inconsistency with the model procedure as in force for the time being, and (b) the model procedure as in force for the time being, to the extent that - (i) the council has not adopted the model procedure, or (ii) the adopted procedure is inconsistent with the model procedure, or (iii) the model procedure contains provisions or requirements not included in the adopted procedure. (6) This section applies to an administrator of a council (other than an administrator appointed by the Minister for Primary Industries under section 66) in the same way as it applies to a councillor.
3. Section 664(1B) of the LGA provides: 664 Disclosure and misuse of information (1) A person must not disclose any information obtained in connection with the administration or execution of this Act unless that disclosure is made - (a) with the consent of the person from whom the information was obtained, or (b) in connection with the administration or execution of this Act, or (c) for the purposes of any legal proceedings arising out of this Act or of any report of any such proceedings, or (d) in accordance with a requirement imposed under the Ombudsman Act 1974 or the Government Information (Public Access) Act 2009, or (e) with other lawful excuse. …
4. In Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 ("Camilleri"), the Administrative Decisions Tribunal Appeal Panel stated at paragraph [26] that the Tribunal must first assess the effect of the claimed public interest consideration, in the Table to section 14 of the GIPA Act, at a "broader operational level" and at paragraph [37] that "the section 14 enquiry is directed to the administrative structure and context, and its conditions, to which the document or information belonged".
5. Subject to this assessment, the Tribunal is to carry out the balancing exercise provided for in section 13 of the GIPA Act.
6. In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 and Hurst v Wagga Wagga City Council [2011] NSWADT 307, the Tribunal confirmed that the "public interest test" under section 13 requires agencies to: 1. Identify the public interest considerations in favour of disclosure; 2. Consider whether the information in issue, if released, would give rise to a public interest against disclosure on the grounds that release of the information could reasonably be expected to have the effect as contended; and 3. If so satisfied, consider where the balance lies between the public interest considerations in favour of disclosure and those against disclosure, having attributed weight to each consideration, and taking into account the personal factors identified under section 55.
7. The balancing of the competing interests "is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation": Hurst v Wagga Wagga City Council at paragraph [70].
8. In its reasons for decision, the Respondent identified a number of considerations against disclosure as being relevant to the access application: 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) prejudice the supply to an agency of confidential information that facilitates the effective exercise of council's functions (Table 1(d)); b) prejudice the effective exercise of the Council's functions (Table 1(f)); c) reveal an individual's personal information (Table 3(a)); and d) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 ("the PPIP Act").
9. However, the reviewer concluded: I have decided to release the information to the applicant despite your objection. The reasons for proposing to release your information are as follows: • promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. • disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.

The Applicant's case

1. The Applicant submits that weight should only be given to the identified considerations in favour of disclosure of the IAB Report, if the information contained in the report was true or had been substantiated by Hurstville City Council. She notes that the report is identified as confidential and that the Hurstville City Council was the body tasked with considering and acting upon the report. It did not do so.
2. The Applicant submits that there is no basis for any finding or presumption that the information in the IAB Report is true or has been substantiated, in particular because: 1. at all times the Applicant has denied the matters the subject of the IAB Report; 2. in considering the IAB Report, the Hurstville City Council expressly stated that there were "perceived potential conflicts of interest of some parties and the perception that some of the evidence does not support the investigator's conclusions"; and 3. the Hurstville City Council has not acted on the recommendations contained in the IAB Report.
3. Further, she submits that the IAB Report was prepared for use in internal decision-making by the Hurstville City Council, and therefore the possibility that the objectives identified by the Respondent could be promoted, advanced or achieved by the disclosure of the report must be necessarily limited.
4. In particular, the Applicant submits that the report expressly stated that: 1. it had been prepared "solely" for use by Hurstville City Council for the purpose of identifying any evidence of possible misconduct by the applicant; 2. it raised "only those matters that came to the attention of IAB during the course of the preliminary assessment and are not necessarily a comprehensive statement of all the issues that exist", and 3. "No responsibility to any third party is accepted as the report has not been prepared, and is not intended, for any other purpose".
5. She says that, in light of these express limitations as to the preparation of the IAB Report, it is difficult to see what public purposes could be achieved by publishing the report as it was an internal confidential Hurstville City Council document, which was prepared for the purpose of assisting internal decision-making, which Hurstville City Council never acted on, and which was never intended to be made public.
6. She contends that: 1. All of the information in the IAB Report was provided/obtained on the basis that the report would be treated as confidential and would not be publicly disclosed, except as may be otherwise specifically required or permitted under the Code of Conduct, or the Hurstville City Council Code of Conduct Administration Procedures ("the Procedures"); 2. The IAB Report has never been acted on by the elected councillors or by the Division of Local Government, Department of Premier and Cabinet; 3. She has never had the opportunity to challenge any of the findings made in the IAB Report under Part 9 of the Procedures, and therefore those findings are not "substantiated"; 4. The subject-matter of the IAB Report concerns an alleged dispute between a local councillor and a local cafe, and therefore the disclosure of the report cannot reasonably be expected to promote government accountability, responsible government, or the open discussion of public affairs very much, if at all; and 5. The disclosure of the IAB Report will likely cause significant detriment to her, and constitute a serious breach of confidence.
7. The Applicant notes that the Respondent has accepted that disclosure of the IAB Report would: 1. constitute a contravention of sections 440(5) and 440AA(5) of the LGA if the disclosure was not in accordance with the Code of Conduct or the Procedures; 2. reveal information provided to the Council in confidence by the Applicant; 3. reveal the Applicant's personal information; 4. breach an information protection principle, in particular section 18 of the PPIP Act; and 5. reveal allegations of misconduct against the Applicant which are inherently defamatory.
8. The Applicant submits that these are all public interest considerations weighing against the disclosure of the IAB Report.
9. The Applicant contends that the allegations against her have not been substantiated. She says that the findings of the IAB Report are preliminary findings only. Pursuant to the relevant provisions of the Procedures, the final IAB Report must be referred for the council's consideration, and the Council must provide the subject person with an opportunity to make oral submissions. The Council may request a supplementary report prior to imposing a sanction. A council is not obliged to adopt an investigator's recommendations. Where a sanction is imposed on a person, the person may seek a review.
10. She says that she cannot seek review of any findings in the IAB Report because she is not a person who is the subject of a sanction imposed under Part 8 of the Procedures. Therefore, even though she is the subject of the preliminary findings in the IAB Report, she has no opportunity to seek review of those findings because the report has never been acted upon.
11. Therefore, the Applicant submits, an allegation is not "substantiated" merely because a finding is made in a final IAB Report that a councillor has breached the Code of Conduct.
12. She submits that the disclosure of the IAB Report could reasonably be expected to prejudice her legitimate business, commercial, professional or financial interests as a local councillor. If the allegations that she improperly used her position as a councillor are made public, it could reasonably be expected to prejudice her position as an elected councillor and, in particular, her chances of re-election in the future. Pursuant to clause 4(d) of the Table to section 14 of the GIPA Act, this is a public interest consideration against disclosure.
13. The Applicant further submits that the allegations against her are defamatory, unsubstantiated and/or false, and that the Respondent has not identified particular information in the IAB Report which would achieve or promote positive and informed debate on issues of public importance.
14. The Applicant submits that the disclosure of the IAB Report could reasonably be expected to prejudice the supply of confidential information to the Council, or prejudice the effective exercise by the Council of its functions. The disclosure would result in the disclosure of information provided in confidence. She submits that confidentiality was an essential aspect of the complaints handling scheme, and ordinary human experience suggests that a person is more likely to provide full and frank information in an investigation in circumstances where the recipient is bound to keep the information confidential. Persons will be less likely to provide information in respect of future code of conduct complaints if the information is not kept confidential.
15. Therefore, she submits, the disclosure of the IAB Report could reasonably be expected to prejudice the future supply of confidential information to the Council that facilitates the effective exercise of the Council's functions, and could reasonably be expected to prejudice the effective exercise by the Council of its functions.
16. The Applicant submits that the disclosure of the IAB Report could not reasonably be expected to promote open discussion of public affairs, enhance government accountability or contribute to positive and informed debate on issues of public importance.
17. She disputes the contention that there are significant and strong public interest considerations weighing in favour of disclosure of the IAB Report and submits that they should be rejected. She submits that the identified public interest considerations in favour of disclosure of the IAB Report should be given nil or very limited weight. The Applicant contends the Tribunal should find that the correct and preferable decision is that access to the IAB Report should be refused because there is an overriding public interest against disclosure.

The Respondent's case

1. The Respondent submits that there are significant and strong public interest considerations weighing in favour of disclosure of the IAB Report. Its decision was to release the report to the access applicant subject to redacting information that identified the complainant. This was on the basis that there was no overriding public interest against disclosure, as the public interest in disclosing information relating to misconduct, and facilitating open and responsible government, outweighed the public interest considerations against disclosure. The Respondent submits that the Applicant has failed to discharge the onus of establishing that there is an overriding public interest against disclosure of the report.
2. The Respondent submits that the release of reports such as the IAB Report are essential to the achievement of the overriding purpose of the GIPA Act, being the maintenance and advancement of responsible government which is open, accountable, fair and effective.
3. In addition to the general public interest in favour of the release of government information, the Respondent identified the following as public interest considerations in favour of disclosure: 1. disclosure of the IAB Report would reveal that the Applicant has engaged in misconduct or improper conduct; 2. disclosure could reasonably be expected to promote government accountability and responsible government; 3. tied to this, disclosure could reasonably be expected to promote the open discussion of public affairs and contribute to positive and informed debate on issues of public importance, including of elected officials and local government decision making processes.
4. The Respondent noted the IAB Report's conclusion that the Applicant committed multiple breaches of the Code of Conduct, and it contends that this amounts to misconduct under section 440F(1) of the LGA. The Respondent submits that the question of whether the allegations were substantiated is not affected by the subsequent resolution of the Council. It submits that this is because the Council has no role as an arbiter of fact and the independent Investigator found that the allegations were made out. The Respondent further submits that a political decision not to impose a sanction should have no bearing on whether the allegations are regarded as substantiated.
5. Further, it submits that the fact that the IAB Report was an internal Council document prepared for internal Council decision making does not mean that there is no real public interest in disclosing that document. It says that the disclosure of information related to internal decision-making processes of the Council is consistent with the object of the GIPA Act, to facilitate responsible and representative democratic government by opening government information to the public. This is even more so in the case of documents which relate to allegations of misconduct in public office.
6. Similarly, it says that the release of the report would promote public discussion as to the manner in which the governing body approaches its role under the Procedures.
7. In regard to the Applicant's reliance on various asserted public interest considerations against disclosure, the Respondent notes that the Applicant must establish that the disclosure of the information 'could reasonably be expected to' have the effect outlined in the Table to section 14 of the GIPA Act. Where she alleges that disclosure would result in 'prejudice' she must establish that there is more than a mere possibility, risk or chance of prejudice. It must be based on real and substantial grounds. It is not sufficient for the Applicant merely to proffer the view. It must be supported in some way.
8. In regard to the issue of secrecy, the Respondent submits that the provisions in the Code of Conduct, the Procedures and the LGA, on which the Applicant relies, do not prohibit disclosure of information under the GIPA Act. It submits that it is recognised that confidential information may be disclosed under the GIPA Act and any breaches associated with release of the IAB Report would not arise. Accordingly, this consideration should therefore be given minimal to no weight.
9. In regard to the Applicant's assertion that the release of the IAB Report would prejudice the supply of confidential information that facilitates the effective exercise of the Respondent's functions, the Respondent concedes that this consideration would arise in so far as release of the report would reveal the identity or identifying details of the complainant. However, the Respondent is not proposing to release information which reveals the identity of the complainant.
10. Further, the Respondent submits that the Applicant's understanding that her response to the allegations against her would be treated in confidence, does not establish that release of the report would affect the supply of confidential information. It is in the interests of persons to respond to allegations made against them which are the subject of investigation. A person who is the subject of an allegation is unlikely to act against their own interests and not respond to allegations made against them.
11. In regard to the Applicant's assertion that the release of the IAB Report would reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of Council, the Respondent submits that the Applicant has not pointed to any deliberative process that would be prejudiced by disclosure of the IAB Report. The Respondent notes that the process has been finalised, the Council has completed its consideration of that report and there are no processes which could be further prejudiced. The Respondent submits that there is no evidence of any further deliberative process that the Applicant says will be prejudiced and, in the circumstances, the consideration does not arise.
12. In regard to the Applicant's assertion that the release of the IAB Report would prejudice the effective exercise by Council of its functions, the Respondent submits that the Applicant has not established, on the basis of evidence, that the prejudice could reasonably be expected to arise.
13. The Respondent concedes that the information contained within the IAB Report was provided in confidence. The release of the IAB Report would disclose information provided in confidence. However, the Respondent submits that the policy behind that confidentiality is achieved primarily by redaction of the identifying details of the complainant. The Applicant has not established that there is any other basis associated with the confidentiality of the complaints process upon which the report should be kept confidential. The Respondent submits that the consideration should be given little weight.
14. Pursuant to 1(h) of the Table to section 14, there is a public interest consideration against disclosure of information if the disclosure could reasonably be expected to prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed). The investigation which could be expected to be prejudiced must be the investigation whose purpose, conduct, or results are revealed. The Respondent submits that the process has already been completed. The question is whether revealing the purpose, conduct, or results of that investigation would prejudice future investigations carried out on behalf of the Council. The Respondent submits that the Applicant has not pointed to any evidence that would support the finding that she contends.
15. In regard to the Applicant's assertion that the release of the IAB Report would reveal an individual's personal information and breach an information protection principle, the Respondent concedes that this would be a result of the release. However, the Respondent submits that those considerations should not outweigh the public interest in favour of disclosure.
16. In regard to the Applicant's assertion that the release of the IAB Report would reveal false or unsubstantiated allegations about a person that are defamatory, the Respondent concedes that allegations of misconduct are inherently defamatory. However, the Applicant must identify allegations that she says are defamatory and false or not substantiated, and not merely dispute the IAB Report's finding.
17. Further, the Respondent submits that, on a proper understanding of the Code of Conduct and Procedures, the allegations proposed to be released by the Respondent have been substantiated. It relies on views expressed in DDL v Mid-Western Regional Council [2018] NSWCATAD 2 at paragraph [26] in support of the submission that an allegation will be regarded as substantiated where a person or body, with authority to find that the allegations have been made out, makes such a finding. The Respondent submits that under the Procedures, it is the investigator who has authority to determine whether the allegations have been made out, and not the governing body of the Council. The role of the investigator is to make findings of fact and determine whether there has been a breach of the Code of Conduct.
18. The Respondent submits that the Procedures establish a clear demarcation in functions. Findings of a breach of the Code of Conduct are to be made by an independent person separate from the political process. The sanction is to be determined by the Council. The Council did not have authority to make a finding that the allegations were not made out. The Tribunal does not have jurisdiction to carry out an administrative review of the IAB Report. In that respect, the evidence of the Applicant that the allegations are false does not assist.
19. The Respondent submits that the allegations were found to be substantiated by the independent investigator appointed under the Procedures, and that the Council resolution does not establish that the complaints were not substantiated.
20. In regard to the Applicant's assertion that the release of the IAB Report would prejudice her legitimate business, commercial, professional or financial interests, the Respondent submits that if the disclosure would prejudice her interests 'at the ballot box' it is a consideration in favour of disclosure, not against.
21. The Respondent notes that the core object of the GIPA Act is to maintain and advance a system of responsible and democratic government. It submits that the central tenet of responsible government is that elected representatives are responsible to the public, and only remain in government so far as they enjoy the confidence of the public. That confidence is given or denied at the ballot box. It further submits that it would invert and undermine the purpose of the GIPA Act if the Applicant's business, commercial, professional, or financial interests were interpreted to include her interests as an elected representative. It would provide that there is a public interest against the disclosure of any information that could reasonably be expected to result in the public exercising its democratic right as a body of electors not to re-elect a particular individual. The Respondent submits that this would extend to all evidence of corruption no matter how serious, and such an interpretation is to be avoided. However, it says that if the consideration included an elected representative's interests at the ballot box, such an interest is so contrary to the overriding purpose of the GIPA Act, that it should be given no weight.
22. The Respondent argues that the public interest in favour of disclosure outweighs the considerations against disclosure. It submits that there is a very strong public interest in favour of the disclosure of documents that disclose instances of misconduct or breaches of the applicable code of conduct which have been upheld. The release of such information is central to the overriding purpose of the GIPA Act, being the advancement of responsible government which is 'open, accountable, fair and effective'. Hindering public release of that information would inevitably prejudice the ability of the public to hold their elected representatives to account. That public interest is not outweighed by the public interest considerations against disclosure which might arise.

Discussion

1. As noted, the decision under review is the Respondent's decision to provide access to the IAB Report in response to an access application. The Respondent has identified a number of considerations in favour of disclosure as being relevant to the access application which the Applicant has disputed. The burden of establishing that there is an overriding public interest against disclosure of the report lies on the Applicant.
2. This is not a matter in which there is a conclusive presumption against release of the report. Therefore, the public interest considerations against disclosure listed in the Table to section 14 of the GIPA Act, are the considerations that can be taken into account.
3. The Applicant has identified a number of considerations against disclosure of the IAB Report that she submits should be given significant weight. The Applicant relies on the public interest considerations against disclosure found in clauses 1(d), 1(e), 1(f), 1(g), 1(h), 3(a), 3(b), 3(e) and 4(d) of the Table to section 14 of the GIPA Act. These provisions are set out above.

Clause 1(d)

1. The Tribunal in Collins v Department of Finance, Service and Innovation (2018) NSWCATAD 60 at [61] cited the three steps the Tribunal should consider in determining the application of clause 1(d). The first being that the information was obtained in confidence, the second is that the disclosure of information could reasonably be expected to prejudice the supply of information to the agency in the future and, third, that the information facilitates the effective exercise of the agency's function.
2. It is ultimately a question of fact as to whether information was obtained in confidence: AFW v WorkCover Authority of NSW [2013] NSWADT 51.
3. In Camilleri, the Appeal Panel held that the question as to whether information is "confidential information" is to "be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received"
4. and that the enquiry "should focus on the point of receipt, and the administrative standards and community understandings which surrounded it".
5. In the circumstances of this matter, I am satisfied that the IAB Report contains information that was obtained in confidence.
6. The second limb of clause 1(d) relates to prejudice. Prejudice under the GIPA Act has been held to have its ordinary meaning, that is, 'to cause detriment or disadvantage' or 'to impede or to derogate from': see Hurst v Wagga Wagga City Council at paragraph [60]. Clause 1(d) is concerned with the future supply of confidential information in determining whether disclosure would prejudice the supply of information. The test is not whether the particular person would, in future, refuse to supply that information but whether information of the kind in question facilitates the exercise of the respondent's functions, and, whether the disclosure of such information could reasonably be expected to prejudice the supply of such information: see Flack v Commissioner of Police, New South Wales Police at paragraph [52].
7. The third limb in considering the application of clause 1(d) involves an evaluation of the effect of disclosure on the agency's functions.
8. The test for clause 1(d) is whether the agency will be able to obtain such confidential information in the future if the information in question is disclosed, and this is to be determined at a broad operational level: Camilleri v Commissioner of Police (NSW) [2013] NSWADT 80.
9. If it is possible to remove the name and identifying details of a complainant, the overriding public interest against the release of the remainder of the document may not arise: see Webb v Port Stephens Council [2019] NSWCATAD 47.
10. So as to ensure that members of the public come forward voluntarily, it has long been accepted that confidentiality ordinarily attaches to such communications and any investigation that may follow as a result.
11. In Office of Liquor, Gaming and Racing v Fahey [2012] NSWADTAP 55, the Appeal Panel accepted that there may be a public interest in disclosure of information relating to a false complaint. However, the Panel emphasised that "the mere fact that the complaint is not substantiated in whole or in most respects does not make it a 'false' complaint. Rather, "[t]he description 'false', when used in the complaint handling context, should be reserved, at the least, for a complaint that lacks any foundation."
12. In the present matter, I agree that the disclosure of the IAB Report could have some prejudicial effect in regard to whether the agency will be able to obtain such confidential information in the future. However, I agree with the Respondent that a person who is the subject of an allegation is unlikely to act against their own interests. I also agree with the Respondent that the prejudice will largely be contained by removing the name and identifying details of the complainant.
13. In my view, the agency will be able to obtain such confidential information in the future, if the IAB Report is disclosed in a form which removes any identifying details of the complainant. In the circumstances, it is my view that clause 1(d) should be given little weight.

Clause 1(e)

1. A relevant connection must be established between the deliberation as contained in the withheld information and the 'deliberative processes': see Fire Brigade Employees' Union v Fire and Rescue NSW [2014] NSWCATAD 113 at [57] - [58].
2. The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action: Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588 at paragraph [58].
3. The release of records revealing sensitive deliberations could be reasonably expected to hinder future communications, thus impacting on the ability of the Respondent to effectively address such issues: Cameron v Commissioner of Police, NSW Police Force [2014] NSWCATAD 13.
4. In the present matter, I agree with the Respondent's submission that the Applicant has not pointed to any deliberative process that would be prejudiced by disclosure of the IAB Report. The IAB process has been finalised, the Council has completed its consideration of that report, and there is no evidence of any further deliberative process that might be prejudiced.
5. In the circumstances, it is my view that clause 1(e) should be given no weight.

Clause 1(f)

1. Clause 1(f) relates solely to the reasonable expectation of prejudice to the effective exercise of the agency's functions concerning the information sought to be disclosed. The Applicant is required to establish that the release of the IAB Report would prejudice the effective exercise of the agency's functions. This provision has been considered in a number of Tribunal decisions. As with Clause 1(d) above, this provision has often been considered in relation to an agency's assertion as to the importance of obtaining confidential information in order to effectively exercise its functions. Clause 1(f) does not require that the information in issue had been provided in confidence.
2. I am not satisfied that the Applicant has established that the asserted prejudice could reasonably be expected to arise.
3. As noted above, in my view the agency will be able to obtain such confidential information in the future if the IAB Report is disclosed in a form which removes any identifying details of the complainant. In the circumstances, it is my view that clause 1(f) should be given little weight.

Clause 1(g)

1. As I have noted above, in the circumstances of this matter I am satisfied that the IAB Report contains information that was obtained in confidence.
2. In Re B and Brisbane North Regional Health Authority [1994] QICmr 1; (1993) 1 QAR 279 it was held that the words "found an action for breach of confidence" in the Queensland Freedom of Information Act, should be taken to refer to a legal action brought in respect of an alleged obligation of confidence in which reliance was placed on one or more of the following causes of action: 1. a cause of action for breach of an obligation of confidence; 2. a cause of action for breach of a contractual obligation of confidence; 3. a cause of action for breach of a fiduciary duty of confidence and where account is taken of the recognised defences to an action for breach of confidence.
3. This case was followed in Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Director General, Premier's Department [2002] NSWADT 277. That matter concerned an application under the repealed Freedom of Information Act 1989, however I am satisfied that it applies equally under the GIPA Act.
4. However, the possibility of an action for breach of confidence is restricted by section 113 of the GIPA Act.
5. In the circumstances, it is my view that clause 1(g) should be given little or no weight.

Clause 1(h)

1. Clause 1(h) operates to protect the ongoing effectiveness of the methods adopted by an agency in preventing, detecting, investigating or dealing with crime and complaints. This is to ensure that the agency is able to maintain the integrity of its investigatory methods by protecting the identity of its informants and methods: Sheehy v Commissioner of Police [2018] NSWCATAD 73.
2. In McDonald v Commissioner of Police, NSW Police [2019] NSWCATAD 66 the Tribunal dealt with the question of whether disclosure of complaint information generally would have a tendency of revealing the purpose of the investigation being conducted, and the manner in which it was being conducted. The evidence supported the view that there is a real public interest in not revealing information about the conduct of internal investigations to the world at large, so that any person can scrutinise the manner in which an investigation is conducted.
3. The IAB investigation process has already been completed. However, the clause requires consideration of whether revealing the results of the investigation will prejudice the conduct, effectiveness or integrity of future investigations.
4. I am not satisfied that the Applicant has provided a basis to support the finding that she contends.
5. In the circumstances, it is my view that clause 1(h) should be given little or no weight.

Clause 3(a)

1. Issues under clause 3(a) tend to be determined on the particular facts of the case. The kind of information withheld under clause 3(a) is often personal information such as a person's name, employment information and personal opinions. This kind of information is generally only disclosed to the person to whom the information directly relates.
2. Information and opinions about the conduct or misconduct of employees is personal information, as are complaints about employees or information about work performance: McKinnon v Blacktown City Council [2012] NSWADT 44; Singh v Legal Aid Commission (No.2) [2015] NSWCATAD 5.
3. In Polden v University of Sydney [2016] NSWCATAD 201, I found that information regarding employment was personal information, and that clause 3(a) applied, but nevertheless gave greater weight to considerations in favour of release.
4. In this matter, I am satisfied that the IAB Report contains the Applicant's personal information and that the release of the report would reveal the Applicant's personal information. I am satisfied that this consideration should be given reasonable weight.

Clause 3(b)

1. Sections 18 and 19 of the Privacy and Personal Information Protection Act 1998 ("the PPIP Act") deal with disclosure of information. The Health Records and Information Privacy Act 2002 contains similar provisions. Clause 3(b) describes a category of information the disclosure of which would breach an information protection principle ("IPP") were it not for the GIPA Act: Flack v Commissioner of Police (NSW) at paragraph [45]. By section 25 of the PPIP Act, disclosure under the GIPA Act will not be a breach of sections 18 or 19 of the PPIP Act.
2. In this matter, I am satisfied that the release of the IAB Report would breach an IPP were it not for the GIPA Act. In my opinion, this consideration should be given reasonable weight.

Clause 3(e)

1. Clause 3(e) of the Table to section 14 of the GIPA Act provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to reveal false or unsubstantiated allegations about a person that are defamatory.
2. To demonstrate that this is a relevant consideration, in the application of the public interest test, the Applicant must show that the information to which the access applicant seeks access, contains false and unsubstantiated allegations against a person, and that those allegations are defamatory.
3. A publication is defamatory of a person if it tends, in the minds of ordinary reasonable people, to injure his or her reputation either by: (1) disparaging him or her; (2) causing others to shun or avoid him or her; or (3) subjecting him or her to hatred, ridicule or contempt.
4. In Pemberton v Macquarie University [2014] NSWCATAD 76, the Tribunal found that the information contained false or unsubstantiated allegations that were defamatory, and gave significant weight to this consideration in view of the effect that the release of such information would have in a work or other environment.
5. In Zonnevylle v NSW Department of Finance and Services [2015] NSWCATAD 175, the Tribunal found that this consideration applied with respect to the names of individuals who were the subject of complaints, as the complaints were unsubstantiated and defamatory.
6. In this matter, I am satisfied that the allegations are defamatory. The question remains as to whether the release of the IAB Report could reasonably be expected to reveal false or unsubstantiated allegations.

Whether the allegations have been substantiated

1. The Applicant has submitted that weight should only be given to the identified considerations in favour of disclosure, if the information contained in the report was true or had been substantiated by Hurstville City Council.
2. I do not agree with that submission. While the Tribunal may make a finding of fact in regard to whether allegations have been substantiated, it cannot engage in a review of the IAB Report in order to determine whether its conclusions are justified.
3. I accept that the Hurstville City Council noted that some persons held the perception that some of the investigator's conclusions were not supported by the evidence, but this is not a matter for the Tribunal. The Tribunal does not have jurisdiction under the GIPA Act to determine the accuracy of the IAB Report. Similarly, it does not have jurisdiction to determine whether the Hurstville City Council should have acted on the recommendations contained in the report.
4. It is necessary to consider whether or not the IAB Report found that the allegations were substantiated. I accept that it is the intention of the Code of Conduct and Procedures, that an allegation of a breach of the Code of Conduct would be considered independently of the governing body of the Council. IAB performed that role in regard to the allegations against the Applicant. IAB's role was to determine whether or not the allegations were substantiated. The role of the investigator was to make findings of fact and determine whether there had been a breach of the Code of Conduct.
5. In my view, the fact that the IAB Report was prepared for use in internal decision-making by the Hurstville City Council is not determinative of this issue. I am satisfied that the role of the governing body of the Council did not extend to determining whether there had been a breach of the Code of Conduct.
6. The IAB Report found that there had been a breach of the Code of Conduct. The Hurstville City Council did not have authority to make a finding that the allegations were not made out. The Council's role was to determine whether or not a sanction was to be imposed in relation to the findings.
7. I agree that an allegation is to be regarded as substantiated where a person or body with authority to find that the allegations have been made out makes such a finding. I am satisfied that the allegations have been substantiated through the IAB investigation and report.
8. I accept that the allegations against the Applicant are defamatory. However, I am not satisfied that she has established that any of the allegations are false.
9. In my view, the Applicant's contentions in regard to clause 3(e) should be given little or no weight.

Clause 4(d)

1. Clause 4(d) of the Table to section 14 of the GIPA Act provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to prejudice a person's legitimate business, commercial, professional or financial interests. The Applicant contends that the release of the IAB Report could reasonably be expected to prejudice her interests as a local councillor and, in particular, her chances of re-election in the future.
2. In contrast, the Respondent contends that this is a consideration in favour of disclosure of the report.
3. Clause 4(d) has commonly been the subject of applications with respect to the release of information concerning the affairs of others, rather than those of the agency that holds the relevant information. Whether or not this consideration applies will turn on the particular facts of the case.
4. In DDL v Mid-Western Regional Council the Tribunal dealt with an application for access to an ICAC report that concerned DDL. The report stated that no findings of corrupt conduct were made. The Tribunal stated at paragraphs [57] - [61]: 57 DDL gave evidence of the implications for his professional career and financial interests should the report be disclosed. His evidence was unchallenged. ... 58 The contents of the report lead him to believe that if they were disclosed, his contract of employment would be terminated. ... 60 I accept that adverse impacts upon a person's professional reputation which could disadvantage their future employment prospects come within "professional and financial interests" (Pemberton v Macquarie University [2014] NSWCATAD 76). 61 In my view certain parts of the report could reasonably be expected to make it more difficult for DDL to retain or obtain new employment in certain roles. On the basis of DDL's evidence, which was not challenged, I am satisfied that the disclosure of the report as a whole, even excluding those adverse sections outlined above, could reasonably be expected to prejudice DDL's legitimate professional and financial interests to some extent, although whether it would go so far as to lead to termination of his current employment was unclear.
5. In the circumstances of this matter, I am satisfied that the release of the IAB Report could reasonably be expected to prejudice the Applicant's chances of re-election. I agree that this consideration should be given some weight. However, the weight should be minimal given the time that has passed since the report's findings were made.
6. I am not satisfied that there are personal factors identified under section 55 that warrant more than minimal weight. I am not satisfied that the provision in the LGA, the Code of Conduct or the Procedures on which the Applicant relies, prohibit disclosure of information under the GIPA Act.

Considerations in favour of release of the IAB Report

1. As stated above, the Respondent has identified considerations in favour of release of the report. The Applicant disputes that those considerations are applicable.
2. I agree with the Respondent that the release of the IAB Report could reasonably be expected to: 1. promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance; 2. reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct; and 3. reveal that IAB found that the Applicant has engaged in misconduct or improper conduct.
3. In my view, each of those considerations is to be given significant weight.
4. It is necessary that I consider where the balance lies between the public interest considerations in favour of disclosure, and those against disclosure.
5. The IAB Report's conclusion was that the Applicant committed multiple breaches of the Code of Conduct. I agree with the Respondent that the disclosure of information related to internal decision-making processes of the Council is consistent with the object of the GIPA Act to facilitate responsible and representative democratic government by opening government information to the public. This is even more so in the case of documents which relate to allegations of misconduct in public office. In my view, the weight to be given to this consideration in favour of the release of the IAB Report, far outweighs the identified considerations against disclosure.
6. It follows that, in my view, the correct and preferable decision is to release the IAB Report to the access applicant, subject to the redaction of information that identifies the complainant. This is the decision that was taken by the Respondent. Accordingly, the decision under review should be affirmed.

Order 1. The decision under review is affirmed.

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

Amendments 02 September 2020 - Duplicate paragraph removed. 02 September 2020 - Duplicate paragraph removed. 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: 02 September 2020