Katsifis v Canterbury Bankstown Council [2026] NSWCATAD 67;

(1) An Affidavit of the applicant dated 17 November 2025;

(2) A copy of the complaint made 20 December 2024;

(3) Correspondence from the Reviewer dated 8 January 2025 seeking further information from the applicant and the applicant's responses;

(4) Email correspondence from Centium advising him of the outcome of its inquiry;

(5) Follow up correspondence from the applicant to Council dated 18 February 2025;

(6) The applicant's request for internal review dated 4 May 2025;

(7) The internal review decision 29 May 2025;

(8) The notice of the original decision on the GIPA application dated 17 April 2025; and

(9) Written submissions dated 17 November 2025.

1. The applicant provided a further bundle on 26 November 2025, described as "Applicant's material in reply". This comprised

(1) Applicant's submission in reply to respondent's submission of 25 November 2025;

(2) Copies of orders made by the Tribunal on 11 August 2025; 16 September 2025 and 15 October 2025;

(3) A copy of the Procedures.

Hearing of the application and the parties' submissions

1. The application was heard by the Tribunal on 27 November 2025.
2. Counsel for the respondent outlined the process, governed by the Procedures, for dealing with complaints made about alleged breaches of the Code.
3. As explained above, the Reviewer had determined that the complaint fell outside that process at the time the statements that constituted the subject matter of the complaint were made. Thus, the Reviewer determined that no further action should be taken. However, the Reviewer went on to make five recommendations, each of which was couched as "that the CEO considers ...". It is in respect of the making of those recommendations that the respondent contended that the report ought not be released as there was an overriding public interest against disclosure of the Report.
4. Counsel for the respondent explained the relationship between the model Code and the LG Act; and explained how it came to be that only a code of conduct complaint about a councillor could be dealt with under the Procedures. Preliminary Assessment is dealt with at paras 6.12ff of the Procedures. However, para 6.18 of the Procedures provides that "The conduct reviewer must determine to take no action on a complaint that is not a code of conduct complaint for the purposes of these procedures".
5. A key provision referred to by the respondent is 6.25 which provides that "[t]he conduct reviewer is not obliged to give prior notice to or to consult with any person before making a determination in relation to their preliminary assessment of a complaint, except as may be specifically required under these procedures". It was accepted that in making a preliminary assessment of a complaint, there is no obligation of procedural fairness. But it was contended that where a complaint fell outside the Procedures, as was the case here, the common law requirements of procedural fairness applied as they were not expressly excluded. It was further contended that they had not been followed in this case, given that the Reviewer had made recommendations that affected Clr Saleh and to which it was contended, he had not been given an opportunity to reply.
6. In its written submissions, the respondent argued that release of the Report would:

(1) result in the disclosure of personal information about Clr Saleh that includes false or unsubstantiated allegations that are defamatory;

(2) thereby prejudice his legitimate professional and business interests;

(3) prejudice Council's ability to carry out its function to investigate and address misconduct; and

(4) not greatly advance the public interest in circumstances where the allegations were not sustained.

1. The respondent acknowledged one public interest consideration in favour of disclosure: that is, that release could inform the public about Council's process for investigating complaints and the operation of the Code. However, the respondent contended that the extent to which it could do that was limited as the applicant had already been provided by the Reviewer with the outcome, the reasons, and the recommendations.
2. The respondent relied on seven separate public interest considerations against disclosure, contending that disclosure could reasonably be expected to:

(1) Cl 3(a): reveal an individual's personal information;

(2) Cl 3(b): contravene an information protection principle under the PIPP Act;

(3) Cl 3(d): prejudice an individual's right to procedural fairness;

(4) Cl 3(e): reveal false or unsubstantiated allegations about a person that are defamatory;

(5) Cl 4(d) prejudice a person's legitimate business, commercial, professional or financial interests;

(6) Cl 1(f) prejudice the effective exercise by an agency of the agency's functions;

(7) Cl 6(1) contravene a secrecy provision.

1. The respondent acknowledged that each of these depends upon whether disclosure "could reasonably be expected" to have the stated effect.
2. It was contended that there need not be direct evidence of that effect, relying on what was said in Grande v Lismore City Council [2024] NSWCATAD 33 (Grande) at [65].
3. As for the identified considerations, it was submitted as follows:

(1) Clause 3(a) was said to be satisfied as the content of the report was "personal information" pursuant to the definition in Sch 4, cl 4(1). It has been held that complaints about (mis)conduct are personal information, referring to Kastanias v Georges River Council [2020] NSWCATAD 213 at [110]. The preliminary opinions expressed in the Report are personal information and thus publication of it would reveal Clr Saleh's personal information.

(2) It was also contended that release would contravene s 18 of the Privacy Act and none of the exceptions were said to apply. For this ground, the respondent relied on the two statements made by Clr Saleh indicating that he objected to disclosure. It was also contended that he would not have expected that the complainant would have received the information sent him by the Reviewer, relying on cl 12.1 of the Procedures.

(3) The third category relied on is cl 3(e): unsubstantiated allegations that are defamatory. The respondent accepted that there were two separate elements: first, that there were false or unsubstantiated allegations and that they were defamatory and contended that it was not necessary to establish either, but rather, relying on Purcell v Department of Climate Change, Energy, the Environment and Water [2025] NSWCATAD 192 (Purcell) at [62], it was necessary only to establish that release "could reasonably be expected to have the relevant effect". The respondent stated that as the primary allegations were never substantiated and the reviewer found that there was no breach of the Code, the matters the subject of the complaint are "allegations that are unsubstantiated". It was also submitted that release of the allegations would cause an ordinary reasonable person to think less of Clr Saleh and thus they were also defamatory.

(4) As for cl 4(d), the respondent relied on what was said by Clr Saleh in his statement about his reputation being damaged in the context of his business, commercial or professional interests: it was contended that damage to his reputation could reasonably be expected to damage his professional and business interests.

(5) The respondent relies on cl 3(d) and contends that as the Reviewer did not afford Clr Saleh an opportunity to respond to the allegations, he has been denied procedural fairness and thus this public interest has been established. While he has provided statements in these proceedings, that relates only to the release of the material, not to the making of the recommendations responding to the conduct the subject of the complaint.

(6) Clause 1(f): "prejudice the effective exercise of the Council's functions". The respondent relies on the Hitchens affidavit at [9] and contends that the effectiveness of the process of investigating misconduct allegations relies on confidentiality. Release of the report, which would be released to the world, would give rise to a "genuine risk that the candour upon which the effective investigation of the complaints depend will be eroded [which would] prejudice Council's ability to carry out its relevant functions".

(7) Clause 6(1) refers to breach of a secrecy provision. The respondent relies on s 664 of the LG Act which prohibits a person from disclosing "any information obtained in connection with the administration or execution of this Act ...", subject to certain exceptions which are said not to apply.

1. The respondent then turned to the balancing exercise and stated that the release of unsubstantiated defamatory allegations and personal information that could prejudice Clr Saleh's professional and business interests should be given substantial weight, as should the fact that he was not given an opportunity to comment before the Report was finalised and the recommendations made.
2. It was also contended that the applicant was already aware of the outcome and thus release of the Report does not "practically advance the public interest other than having the prejudicial effects" relied on by the respondent.

1. As already noted, the applicant received a summary of the Report, setting out the reasons why the Preliminary Assessment could not be finalised. He was also provided with the recommendations made by the Reviewer. When he sought to follow up with the respondent, he was advised to make an application under the GIPA Act.
2. The applicant contended that the Council had misapplied the public interest considerations, noting that the grounds relied on had changed over the course of the various decisions. He also identified that the Act requires that public interest considerations in favour of disclosure be given "paramount weight" unless a "specific and compelling consideration against disclosure is clearly made out".
3. As for the particular matters relied on, he contended as follows:

(1) Cl 3(d) - the Clr has not been denied procedural fairness as there have been no findings against him and no adjudication of the matter;

(2) Cl 3(e): the claims are not "unsubstantiated" in the usual sense of that term, but rather, they were not investigated for jurisdictional reasons; and thus release would not reveal "false allegations".

(3) As for 4(d), an elected councillor is in a different position from a professional or business operator. This is because election to office carries with it an acceptance that there will be "scrutiny, criticism and reputational consequences which attach to complaints and oversight processes".

(4) As for the argument that the preliminary report was provided in "strict confidence" and its release could prejudice future misconduct allegations, the applicant contended that this was undermined by the fact that the Reviewer, when consulted pursuant to s 54 of the GIPA Act, had expressed no objection to the release of the Report.

(5) The applicant also contended that the public has a far stronger interest in knowing how complaints against their elected officials are handled and that that interest outweighs the matters raised by the respondent.

1. During the course of the hearing, it was pointed out to the respondent that the primary, internal review and remitted decisions all were expressed to apply to the entirety of the information which comprised the Report, and some 21 Attachments to it. Each of those 21 attachments comprised material provided by the applicant. This included the 2022 Code of Conduct (information about which was also in evidence from the respondent), the Procedures (put in evidence by both the respondent and the applicant); the respondent Council's social media policy and social media terms of use, as well as the complaint and supporting information from the applicant.
2. The respondent accepted that it did not seek to press its argument that there was an overriding public interest against disclosure of the information in the attachments.
3. In view of the fact that the applicant has received a direct response from the Reviewer which contains a summary of the content of the Report, and sets out the five recommendations made, the respondent was asked to identify which parts of the Report it contended were subject to the public interest considerations on which it relied. The respondent was provided the opportunity to submit to the Tribunal a marked up copy of the Report, identifying the particular parts of the Report that it contended were the subject of an overriding public interest against disclosure of the information.
4. A further copy of the report was provided to the Tribunal (but not to the applicant in light of the orders that at that time applied under s 64 of the CAT Act) on 4 December 2025 pursuant to that order. In that version, certain parts of the Report are highlighted. The Tribunal has approached the matter on the basis that it is now contended that only those highlighted parts of the information the subject of the application should be withheld/redacted and the remaining part of the Report provided to the applicant.

1. The relevant findings that must be made are whether the respondent has met its onus of establishing that there is a public interest against disclosure of the information sought (or part of it) pursuant to one or more of the factors relied on by the respondent, and whether one or more of the public interest consideration(s) against disclosure outweigh the public interest considerations in favour of disclosure.
2. The appropriate approach to the Tribunal's task, as set out by the Tribunal in Potts v Commissioner of Police [2022] NSWCATAD 86 at [22] (and authorities cited there), is to:

(a) Identify public interest considerations in favour of disclosure;

(b) Identify relevant public interest considerations against disclosure;

(c) Attribute weight to each consideration; and

(d) Determine whether the balance lies in favour or against disclosure of the government information.

1. That exercise takes place in the context of the legislation as a whole, including the objects and purposes, noting that s 3(2) of the GIPA Act provides:

(a) that this Act be interpreted and applied so as to further the object of this Act, and

(b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.

1. Before turning to the assessment of the information in the framework of that balancing exercise, the Tribunal notes that the considerations that are relied on by the respondent have changed over time. Specifically, the primary decision and the internal review decision were based on cl 1(f), cl 1(h) and cl 6(1). The remitted decision referred to cll 3(d), 3(e) and 4(d). In the written submissions and at hearing, the respondent identified 7 separate matters from the s 14 Table. None of those matters was said to apply to any identified or specific part or passage of the Report. The same applies to the marked up copy provided to the Tribunal on 4 December 2025. Rather, the claims in relation to public interest considerations against disclosure are made globally.

1. The Act imposes no limits on the factors that might be found to favour disclosure (by contrast with those that may be considered to operate against disclosure: see the language of "if and only if" in s 13 of the GIPA Act). In this case, the matters that would favour disclosure are the following:

(1) That the objects of the GIPA Act include that there is an enforceable public right to access government information (GIPA Act, s 3(1)(b)); and that access to government information is restricted only when there is an overriding public interest against disclosure;

(2) That the Act provides for a general public interest in favour of disclosing government information: (s 12(1) of the GIPA Act). This is consistent with the enforceable public right referred to in s 3;

(3) That disclosure of the information could reasonably be expected to enhance the accountability of government (in this case, local government);

(4) That disclosure of the information could reasonably be expected to inform the public about the processes for investigating complaints against local government councillors (and the limits of those processes); and

(5) The personal factors of the applicant including that he is a resident in the area and he has received a summary of the outcome of the complaint, but no further information that assists him in knowing how if at all his complaint may be resolved.

1. The matters identified by the respondent as establishing an overriding public interest against disclosure have, as the applicant noted, changed over the course of decision making in this matter. As contended in these proceedings, there are seven separate matters that are said to apply: they are listed above at [47]. There is a well-established case law in relation to each of the matters and where relevant, that will be referred to below.
2. In respect of each of the matters relied on by the respondent, it is necessary to establish that "disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally)".
3. The Appeal Panel in Transport for NSW v Searle [2018] NSWCATAP 93 (Searle) at [68] summarised the authorities on whether something could "reasonably be expected to occur" relevantly as follows:

"The words "could reasonably be expected" are to be given their ordinary meaning. They 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 disclosure would have the relevant effect: Attorney-General's Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180 at 190.5; Raven v The University of Sydney [2015] NSWCATAD 104 at 48.

...

It will not be sufficient for the decision-maker to proffer the view. It must be supported in some way: Manly v Ministry of Premier and Cabinet (1995) 14 WAR 550 at 573G; Raven at [53]."

1. Thus, something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: see also Commissioner of Police, NSW Police Force v Barrett (No 2) [2016] NSWCATAP 86 at [40], Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [40]- [41], Leech v Sydney Water Corporation [2010] NSWADT 298 at [25].
2. The respondent relies on what was said in Grande at [65] to suggest that it is not necessary to establish the requisite potential effect by direct evidence. But that paragraph must be read in the context of the reasons as a whole, as the following extract demonstrates:

"65 Whether information could reasonably be expected to cause this prejudice is a question of fact to be determined on the material before the Tribunal. However, the Table to s 14 considerations are to be understood as being of a systemic character. It is thus not necessary for the agency to prove in a positive sense that specific information will have the asserted effect, rather, the agency's onus is discharged if it is established that the information is of a particular character, and that character of information is likely to have the asserted effect: Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWCATAP 259 at [26]; Transport for NSW v Searle [2018] NSWCATAP 93 at [61]. However, this is a granular not a global analysis. It requires consideration of each item of information where the public interest against disclosure is asserted: Destination NSW v Taylor [2019] NSWCATAP 123 at [69].

66 In Transport for NSW v Searle [2018] NSWCATAP 93 at [68] an Appeal Panel helpfully distilled the following principles to be applied in a case in which a Table to s 14 consideration is relied on by an agency:

(i) the agency bears the onus of establishing the existence of the public interest consideration against disclosure in accordance with s 105 of the Act,

(ii) the words "could reasonably be expected" are to be given their ordinary meaning. They require a judgement 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 disclosure would have the relevant effect,

(iii) in order to discharge the onus, the agency needs to show more than a mere possibility, risk or chance of prejudice. It must be based on real and substantial grounds,

(iv) It will not be sufficient for the decision-maker to proffer the view. It must be supported in some way,

(v) "prejudice" is to be given its ordinary meaning, that is, to cause detriment or disadvantage, or to impede or derogate from.

67 In Newcastle City Council v Newcastle East Residents Act Group [2018] NSWCATAP 259 at [59] another Appeal Panel provided guidance as to how evidence relied upon by an agency to establish that the disclosure of information "could reasonably be expected" to have the asserted effect is to be evaluated:

(i) a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient,

(ii) there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect,

(iii) prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses." (emphasis added)

1. The respondent has provided no specific explanation for why in the copy of the Report provided following the hearing some particular parts of the Report are highlighted and others that contain the same or similar information are not. A clear example is the treatment of the list of matters that were the subject of the complaint. They are obviously known to the applicant. They appear in the summary of the Report (at 1.2 (page 4)) yet are sought to be redacted when described as "ancillary issues".
2. The decisions made by the respondent identify that one third party was identified and was consulted pursuant to s 54 of the GIPA Act. That third party "advised that they have no objection to the release of the information".
3. It can be inferred that this was the author of the Report (which is marked as "Strictly Confidential"). As noted above, the respondent included in its evidence two statements of Clr Saleh, in both of which he objected to disclosure of the information. That appears to be the main evidence relied on by the respondent against disclosure.
4. There was no explanation as to why Clr Saleh was not consulted pursuant to s 54 of the GIPA Act. Had he been so consulted, he could have provided his view in accordance with the statutory process and could also have sought to become a party to the proceedings. He did neither. In the hearing on 27 November 2025, the respondent acknowledged that the respondent Council does not act for Clr Saleh.
5. However, it is clear that the Councillor's view on the matter was treated as determinative by the decision maker in the remitted decision, where she stated:

"Given the document contains allegations not investigated and not put to Councillor Saleh OAM, I support the three provisions raised by Councillor Saleh OAM in his submission as being of relevance being 3(d), (3(e)) and 4(d) of the Table in s 14 of the GIPA Act ..."

1. In his two statements, Clr Saleh referred to a number of contexts in which he claimed that his reputation was important to him (his business interests; his work as a translator). However, in none of those statements is there any evidence that extends beyond the view of Clr Saleh as to the potential effect of publication beyond the applicant of the matters the subject of the complaint, and which were the subject of the recommendations.
2. The only other evidence that addresses the potential effect of the disclosure of the information is paragraph 9 of the affidavit of the decision maker, Ms Hitchens. The respondent indicated at hearing that only that paragraph was relied on.
3. Ms Hitchens was the decision maker for both the internal review decision and the remitted decision. She is the Senior Governance Officer at the Governance and Property Services team of the respondent, a position she has held since September 2024, and from January 2024 to September of that year, she was a Business Paper Administration Officer in the same team, She stated in paragraph 9 of her Affidavit that her decision "took into account the clauses 1(f) & 1(h) of the GIPA Act section 14 Table, whereby it would make it difficult for future reviews to be conducted due to the risk that people will be less forthcoming when interviewed as part of conduct reviews". She added:

"If Council promises confidentiality in the conduct of investigations, Council needs to be able to uphold that promise and maintain confidentiality. This risk at the loss of candour and confidence in people either making or responding to Code of Conduct complaints could prejudice Council's effective conduct of audits, reviews or investigations. This is an essential function of Council to ensure it is building and maintaining a culture of legislative, policy and procedural compliance, and speaking up when something is not right. Therefore, release of the Preliminary Assessment Report would be prejudicial to how Council functions effectively in conjunction with how investigations and reviews are conducted."

1. As noted above at [47], at the hearing (and in its written submissions), the respondent relied upon cl 1(f) of the s 14 table but did not seek to rely on cl 1(h). That clause applies where it could reasonably be expected that disclosure would "(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)."
2. The Tribunal notes that there is nothing in the evidence before it, save for the assertion by Ms Hitchens, from which it could find that it could reasonably be expected that disclosure of the information in the Preliminary Report would prejudice the effectiveness or integrity of any "audit, test" etc "by revealing its purpose, conduct or results". In those circumstances, cl 1(h) can have no application.
3. As for the remaining categories of public interest against disclosure relied on by the respondent, a key theme in the authorities referred to is that, in a context where the respondent carries the onus of proof, evidence to establish the requisite potential effect of disclosure must go beyond the mere expression of opinion of the decision maker: see Searle at [68]; Grande at [67]. In this case, the only evidence that attests to the potential effects is that contained in the two statements of Clr Saleh, and what is said by Ms Hitchens at [9] of her affidavit. Neither Ms Hitchens nor Clr Saleh gave oral evidence and neither was cross examined.
4. The Tribunal finds that their evidence is of such a general nature as to not be able to establish that it could reasonably be expected that disclosure would have one or more of the claimed effects.
5. The respondent is correct to point out that the authorities indicate that there need not always be direct evidence that the proposed effect will occur, but, as also noted in Grande at [65] (on which the respondent relies), referring to the decision in Destination NSW v Taylor [2019] NSWCATAP 123 at [69], this is "a granular not a global analysis. It requires consideration of each item of information where the public interest against disclosure is asserted".
6. As noted above, neither the respondent's evidence nor the respondent's submissions initially drew attention to any particular passage in the material the subject of the application: rather, the decision and the approach to defending it was based on the claim that the information as a whole (including, initially, all the material supplied by the applicant and which formed attachments 1-21 to the report) was subject to one or more overriding public interests against disclosure.
7. The copy of the Report provided after hearing does not identify the category of claimed public interest by reference to any particular marked passage. The respondent's approach appears to be that one or another of the identified categories of public interest applies and it is for the Tribunal to identify which, if any, applies to which passage. Indeed, that that is the respondent's approach is confirmed by its written submissions (provided in respect of the entire Report plus appendices) where it was stated that the Tribunal should affirm the decision, or, "[i]n the alternative, the Tribunal should make such redactions as it considers necessary to address the identified public interest considerations against disclosure".
8. If that is the respondent's approach, the Tribunal considers it to be generally inconsistent with the "granular, not ... global analysis" referred to by the Tribunal in Grande.
9. While the Tribunal has found that the minimal nature of the evidence provided by the respondent militates against its meeting its onus of establishing that it is reasonable to expect that disclosure of the information could have one or more of the effects identified ("whether in a particular case or generally"), the Tribunal will briefly consider whether any of the identified matters could apply in this case, in the event that it were able to be established that the contended for effect could reasonably be expected to occur.
10. Would reveal an individual's personal information: cl 3(a): The first thing to note is that the identity of the person about whom the complaint was made is clear from the complaint itself, from the decisions made by the respondent (where Clr Saleh's objection to disclosure has been identified), and from the information provided to the applicant by the Reviewer as well as from the parts of the Report that are not marked by the respondent. Thus this is not a case where to disclose the information would identify a person. Rather, it is contended that it would reveal something specific about the person, in this case, the content of some parts of a Report that have not otherwise been disclosed. That does not in itself preclude the application of cl 3(a) as disclosure under the GIPA Act is "disclosure to the world at large and not merely to the applicant": see Adams v Commissioner of Police, NSW Police Force [2025] NSWSC 1181 at [71] per Griffiths AJ, referring to both s 15(e) and s 73 of the GIPA Act which provide that disclosure cannot be made subject to any conditions on the use of the information (albeit a condition may be imposed on how the right of access is to be exercised).
11. The respondent relies on the decision in Katsanias v Georges River Council [2020] NSWCATAD 213 at [110] for the proposition that complaints and information and opinions about the (mis)conduct of persons are personal information. In that paragraph, the Tribunal referred to complaints about "employees". Clr Saleh is not an employee of the respondent and the complaint was focused on matters directly related to his role as a Councillor (cf the definition of "personal information" in Schedule 4 of the GIPA Act).
12. Even if it were the case that the parts of the report highlighted by the respondent comprise personal information, in light of the context and their similarity to parts of the Report already made public, the Tribunal would not give significant weight to this factor.
13. Cl 3(b): contravene an information protection privacy principle under the PIPP Act: As noted above, while s 18 of the PPIP Act is relied on by the respondent, s 25 provides an exemption where the disclosure is otherwise authorised by law. That includes disclosure under the GIPA Act.
14. In Burke v Health Education and Training Institute [2016] NSWCATAD 194 (Burke), the Tribunal said at [114]:

"The respondent has not identified the privacy principle it says would be contravened by disclosure of the information within cl 3(b) of the table to s 14 of the GIPA Act. Presumably, the respondent relies upon a non-disclosure principle (see Privacy and Personal Information Protection Act 1998 (NSW), s 18; Health Records and Information Privacy Act 2002 (NSW), Sch 1, HPP 11). However, in order to discharge its burden of establishing that its decision is justified (insofar as that decision relied upon cl 3(b)), the respondent must do more than simply state that disclosure could reasonably be expected to contravene an information protection principle or a health privacy principle. It must identify the principle in question and explain why there could be a reasonable expectation of a contravention."

1. The situation before the Tribunal is identical: there is no identification of the basis upon which the respondent contends that an Information Privacy Principle (IPP) is breached and on that basis, as the Tribunal found in Burke, the respondent is unable to meet its onus on this basis.
2. Clause 3(d): prejudice a person's right to procedural fairness: it is certainly the case that, as pointed out by the respondent, the High Court has confirmed that potential damage to reputation is the type of interest that can, in an appropriate case, give rise to an obligation of procedural fairness. But as the Tribunal stated in Burke at [43]-[45]:

"The applicant appears to be under a misapprehension that the rules of procedural fairness required the respondent to provide him with all of the information it had concerning the allegations against him (including witness statements). Procedural fairness ordinarily requires only that he be provided with adverse information that is credible, relevant and significant to the decision to be made: Kioa v West (1985) 159 CLR 550, Brennan J at 629.

I accept that it is in the public interest for an agency to comply with the rules of procedural fairness when conducting a workplace investigation, and that the circumstance that disclosure of information is required by those rules may be a public interest consideration in favour of disclosure of information to the person the subject of an investigation. However, there is not enough material before me for me to form a state of satisfaction that the rules of procedural fairness required disclosure of more information than was disclosed to the applicant in this case.

It is unclear from the material before the Tribunal exactly how much information was provided to the applicant about the allegations which had been made against him before the investigation reports were made. The Tribunal is therefore not in a position to make a finding that information that is credible, relevant and significant to the decision to be made was not provided to the applicant at the requisite time. The Tribunal is also mindful that its function when reviewing a decision under the GIPA Act is not to undertake a "collateral review of the merits or validity of official action": Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 at [24] (concerning the former Freedom of Information Act 1989 (NSW)); Raven v The University of Sydney [2015] NSWCATAD 104 at [45]; Smith v Pittwater Council [2016] NSWCATAD 67 at [11]."

1. In this case, it is apparent that Clr Saleh was aware of at least some of the concerns of the applicant, as he had received correspondence from him. It is also the case that had the complaint fallen within the ambit of a Code of Conduct complaint, the rules of procedural fairness would not have applied (see Procedures at 6.25). The contention appears to be that because it fell outside those Procedures, the common law position applied and he was entitled to be heard before a response was provided by the Reviewer.
2. It must be noted that the Reviewer made no decision (other than that the complaint fell outside the process of the Code) and has proposed some recommendations to Council. None of those recommendations has any determinative effect. There is no obligation on Council to accept or implement any of the recommendations. Thus none could go to a decision that could affect Clr Saleh negatively. While Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, on which the respondent relies, is authority for the proposition that a reputation interest may give rise to an obligation of procedural fairness, and, where there is no decision to quash, a court may issue declaratory relief, in this case, there is no evidence that Clr Saleh has been denied an opportunity to respond to credible, relevant and significant information that might affect a decision made. Moreover, should the Council proceed to act on any of the proposed recommendations (notwithstanding there being no obligation to do so), he would likely have an opportunity at that stage to comment on them before any decision is made about implementation.
3. Even if, contrary to the Tribunal's view that the consideration in cl 3(d) does not apply, it were considered that Clr Saleh had been denied procedural fairness, this consideration would be given little if any weight in circumstances where the matters in the Report go no further than recommendations to Council, that is, where they have no determinative effect on him.
4. Cl 3(e): disclosure could reasonably be expected to reveal false or unsubstantiated allegations about a person that are defamatory. The respondent relies on the fact that because the Preliminary Assessment concluded that the complaint did not fall within the Code of Conduct and thus could not be evaluated by reference to the Procedures, it contains allegations that are "unsubstantiated". Even if that were the case, it would also need to be determined that the material subject to the overriding public interest comprises "allegations about a person that are defamatory".
5. The respondent submitted that "allegations will be defamatory if the imputations contained with them are likely to lead an ordinary reasonable person to think less of the person": referring to the decision of the High Court of Australia in Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460 at [5], a reference to the common law test.
6. In Hurst v Wagga Wagga City Council [2011] NSWADT 307 the ADT (at [83]-[84]) accepted a submission by the Information Commissioner on what was required to establish this element, which it set out as follows:

"52. In order to satisfy the second element of this consideration, the respondent must consider and reach a conclusion about whether the allegations are defamatory according to the general principles of defamation law. A general statement of the elements of defamation from Halsbury's Laws of Australia (chapter written by David Rote) states (with notes removed):

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.

The cause of action in defamation is complete upon the publication of a defamatory imputation and damage may be inferred without proof of actual loss or injury to the plaintiff.

53. The respondent has not considered whether the allegations are defamatory."

1. Notably, the only evidence adduced in relation to this consideration is that of Clr Saleh. He has given evidence about how important his reputation is to his various professional activities. However, that does not establish that any part of the content of the Report is defamatory, nor that it could reasonably be expected that disclosure of it would lead to him being subjected to "hatred, ridicule or contempt" or that it would cause others to "shun or avoid" him. At its highest, the respondent's case is that release of the allegations "would likely cause a reasonable person to think less of the Councillor".
2. In the absence of any evidence beyond what is contained in Clr Saleh's statements, and in the absence of identification of what parts of what is highlighted are said to be defamatory, the Tribunal is not in a position to find that disclosure could reasonably have the effect contemplated by clause 3(e).
3. Cl 4(d) prejudice a person's legitimate business, commercial, professional or financial interests: The cases that have considered this issue tend to be about matters of competition, that is, that disclosure of the information would put information that might be commercial in confidence into the public domain and thus disadvantage the business interest at issue: see for example Murphy v Broken Hill City Council [2015] NSWCATAD 135 at [30]- [32]; Male v Kempsey Shire Council [2022] NSWCATAD 39 at [301]- [314]. While in a particular case, the possibility of disadvantaging a person's future employment prospects may come within "professional and financial interests" (as was held in Pemberton v Macquarie University [2014] NSWCATAD 76 at [54]), the evidence before the Tribunal does not rise above assertions from Clr Saleh that if the full Report is disclosed, his various activities, particularly those that he performs outside his role as a councillor, could reasonably be expected to be negatively affected. In the absence of more concrete evidence, the Tribunal finds that this public interest consideration cannot be established.
4. Cl 1(f) prejudice the effective exercise by an agency of the agency's functions; The evidence in support of this consideration comprises paragraph 9 of Ms Hitchens Affidavit, which is set out above at [77]. As is apparent, it is expressed in very general terms and focuses on promises of confidentiality. However, there is no evidence of any particular promise of confidentiality to any particular person. Ms Hitchens also opines that there is a risk that "people will be less forthcoming when interviewed as part of conduct reviews". But that does not appear to relate to the present case: there is no evidence that any person was interviewed for the purpose of the preparation of the Report.
5. Despite there being little or no evidence of the matters identified by Ms Hitchens, the Tribunal finds that, to the extent to which the Reviewer stepped outside the scope of his prescribed role after determining that the complaint did not fall within the Procedures, some parts of what was said by the Reviewer in the Report could have the potential to impede Council's consideration of the Recommendations made to it. To that extent, the Tribunal finds that cl 1(f) applies to some parts of the material in the report as outlined in the following (confidential) paragraphs.
6. [NOT FOR PUBLICATION].
7. [NOT FOR PUBLICATION].
8. [NOT FOR PUBLICATION].
9. [NOT FOR PUBLICATION].
10. Cl 6(1) contravene a secrecy provision: The final consideration relied on is based on what is set out in s 664 of the LG Act. It will be recalled that s 664 relevantly provides

(1) A person must not disclose any information obtained in connection with the administration or execution of this Act unless that disclosure is made -

...

(d) in accordance with a requirement imposed under the Ombudsman Act 1974 or the Government Information (Public Access) Act 2009,

...

1. The respondent submitted that s 664(1)(d) did not have the effect it was said to have and referred in support of that proposition to Coppock v Willoughby City Council [2021] NSWCATAD 166 (Coppock) at [281] and [283]. As is made clear in that decision, the provision in issue there was s 664(1A):

(1A) In particular, if part of a meeting of a council or a committee of a council is closed to the public in accordance with section 10A (1), a person must not, without the authority of the council or the committee, disclose (otherwise than to the council or a councillor of the council) information with respect to the discussion at, or the business of, the meeting.

1. The Tribunal in Coppock said that "cl 6(1) of the table in s 14 of the GIPA Act requires that the exception be ignored" at [281]. However, in other Tribunal decisions that were considering s 664 (the provision relied on in this matter, which does not engage s 664(IA)), s 664(1)(d) has been found to have the effect that disclosure pursuant to the GIPA Act is an exception: see for example Clarke v Blacktown City Council [2013] NSWADT 36 at [67] where the Tribunal said:

"In my opinion, section 664 of the LG Act is no more than an expression by Parliament that disclosure of information obtained in the administration of the LG Act is to be done in an orderly and appropriate manner having regard to the purpose for which it was obtained or created. This in my view is reflected in the breadth of the circumstances in which information can be disclosed as set out in paragraphs 664(1)(a) to (e) (including under the GIPA Act) and subsection 664(1B). Accordingly, in my view little weight can be given to this public interest consideration against disclosure."

1. In Hooper v Willoughby City Council [2021] NSWCATAD 208 the Tribunal stated at [173] that "s 664(1) is expressly stated to be subject to the provisions of the GIPA Act".
2. In those circumstances, the Tribunal finds that cl 6(1) does not apply in this case.

1. The Tribunal has found that there is an overriding public interest against disclosure, arising from clause 1(f) of the table in s14 of the GIPA Act. This is because it could reasonably be expected that disclosure of the information could prejudice the effective exercise by an agency of the agency's functions, specifically its function of investigating complaints against councillors.
2. Thus, the Tribunal varies the decision under review by finding that the Report and its Attachments are to be released to the applicant, subject to the parts identified in the confidential parts of the reasons being redacted.

(1) The Tribunal varies the decision under review. The Report and its Attachments are to be released to the applicant, subject to the parts found by the Tribunal to be subject to an overriding public interest against disclosure being redacted in accordance with the confidential parts of the reasons for decision before release.

(2) Pursuant to s 64(1)(c) and/or (d) of the Civil and Administrative Tribunal Act 2013 (NSW) any confidential evidence filed with the Tribunal; any confidential evidence provided during a confidential hearing pursuant to s 107 of the Government Information (Public Access) Act 2009 (NSW), and any confidential part of this decision is not to be disclosed without further order of the Tribunal.

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.