Marist Brothers St Joseph's College v Transport for NSW

Applicable law

1. The parties are in general agreement regarding the applicable law and each has provided submissions in relation to the law. The Information Commissioner appears under section 104(1) of the GIPA Act and provided both written and oral submissions.
2. The GIPA Act provides for the informal and formal release of government information. The GIPA Act provides various mechanisms for the operation of these provisions as well as a series of guiding principles / objects.
3. The objects of the GIPA Act as set out in section 3(1) are to advance the system of responsible and representative democratic government by authorizing and encouraging public release of government information by agencies, giving the public an enforceable right to access to government information and providing that such access is restricted only when there is an overriding public interest against disclosure.
4. The term "government information" is given a wide meaning by section 4, being defined as "information contained in a record held by an agency". "Agency" is also defined in section 4 and includes "a Government Department".
5. 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.
6. Section 9 of the GIPA Act provides that applicants 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.
7. 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.
8. The Respondent identified as public interest considerations in favour of disclosure: 1. disclosure of the information could reasonably be expected to promote open discussion of public affairs; and 2. disclosure of the information could reasonably be expected to inform the public about the operations of TfNSW, and in particular, its practices for dealing with applications for the conditional registrations of motor vehicles.
9. Section 13 of the GIPA Act provides that there is an "overriding public interest against disclosure" of government information for the purposes of the 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.
10. 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.
11. The public interest considerations listed in the Table to section 14 of the GIPA Act are the only other public interest considerations against disclosure that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Even if the information falls within a public interest considerations against disclosure it remains open to the Tribunal to adopt the view that those interests are overridden by the public interest considerations in favour of disclosure.
12. The Table to section 14 relevantly provides: 3 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) ... (f) expose a person to a risk of harm or of serious harassment or serious intimidation,
13. In DTB v Commissioner of Police, NSW Police Force [2019] NSWCATAD 114, Senior Member Blake SC reviewed and summarised a number of authorities that have considered clause 3(f) of the table to section 14 as follows: 77. It is not necessary to decide whether such harm is likely. It is sufficient that there is a risk of it: Zonnevylle v Department of Education and Communities [2018] NSWCATAD 139 at [49]; Miskelly [v Transport for NSW [2017] NSWCATAD 75] at [94]. 78. "Harm", "serious harassment", and "serious intimidation" are not defined in the GIPA Act. Their meaning received extensive judicial consideration by the Tribunal in AEZ v Commissioner of Police, NSW Police Force [2013] NSWADT 90. Each is to be seen as a separate matter to be considered: AEZ at [89]; Miskelly at [95]. 79. As to "harm", the Tribunal has held that the meaning of harm should be confined to a real and substantial detrimental effect on a person, rather than on their business interests. A detrimental effect may be to a person's physical, psychological, or emotional wellbeing: AEZ at [85]; Miskelly at [96]. Mere discomfort or tension is not ordinarily enough: Ermel v Department of Finance and Services [2013] NSWADT 183 at [90]; Miskelly at [105]. 80. As to "harassment", the Tribunal has held that "harassment" requires a consideration of how the conduct complained of is experienced by the person alleged to be harassed, and is concerned with whether that person was offended, worried, tormented, distressed or harassed by the conduct. The assessment of the impact of the conduct on the individual concerned is an objective one, although particular circumstances and vulnerabilities relating to that individual may be taken into account when making that assessment: AEZ at [89]; Miskelly at [98]. 81. As to "intimidation", the Tribunal has held that "intimidation" is closely related to the concept of "harassment" and is "to make timid, or inspire with fear, overawe, cow": AEZ at [91]; Miskelly at [99]. 82. The requirement that the "intimidation" or "harassment" be "serious" means the decision-maker must be satisfied that release of the information could reasonably expose a person to intimidation or harassment that is "heavy, weighty or grave, and not trifling or transient": AEZ at [94];.Miskelly at [100].
14. Section 15 of the GIPA Act sets out the principles that apply when considering whether there is an overriding public interest against disclosure. Agencies must exercise their functions so as to promote the objects of the GIPA Act and must have regard to any relevant guidelines issued by the Information Commissioner. The Tribunal is guided by those principles.
15. Section 55 of the GIPA Act provides for consideration of personal factors of the application in determining whether to disclose the requested information. Personal factors include the applicant's identity and relationship with another person; the applicant's motives for making the access application; and any other factors particular to the applicant. Personal factors cannot be used account as factors against providing access on the basis of considerations referred to in clauses 1, 6 or 7 of the Table to section 14.
16. In his access application AA identified his motives for making the access application as: I would like to know about this specific permits/registration as I believe it is being abused and danger to the community.

The Applicant's Case

1. The Applicant relies on a number of statements and written submissions that were filed on a confidential basis. All of the Applicant's witnesses have requested that an order be made to preserve their anonymity in these proceedings. The basis for this request is that they do not want their names and statements to be provided to AA as they do not want to be subjected to any harm, harassment or intimidation by AA. In light of the evidence that has been given I have determined that the confidential material should not be disclosed other than to the parties to these proceedings. AA is not a party to the proceedings.
2. The Applicant contends that AA has been known to the Applicant for many years and that disclosure of the information could reasonably be expected to expose a person to a risk of harm or of serious harassment or serious intimidation having regard to clause 3(f) of the Table to section 14 of the GIPA Act. It submits that significant weight should be attributed to this public interest consideration against disclosure. It further submits that this consideration outweighs the public interest considerations in favour of disclosure.
3. The Applicant relies on the following statements: [NOT FOR DISCLOSURE]
4. Each of the Applicant's witnesses requested that their name and evidence be kept confidential and not be provided to [AA]. Each indicated that they did not want to be subjected to any harm, harassment or intimidation by AA. I have agreed to those requests.
5. [NOT FOR DISCLOSURE]
6. The Applicant's evidence identifies conduct of AA which it says demonstrates a history of abuse, bullying and premeditated confrontational outbursts to anyone associated with the Applicant. It also provided evidence that AA has passed himself off as a Council Ranger. The Applicant also provided evidence that AA has: 1. harassed the Applicant's staff, students, visitors and contractors; 2. pretended to be a Council officer; 3. verbally abused the Applicant's staff and contractors; 4. threatened to damage vehicles owned by the Applicant's staff when parking on public roads near the home of AA's parents; 5. verbally abused, sworn and yelled at staff of the Applicant whilst they were undertaking their employment duties. AA has been doing this for many years; and 6. verbally abused students including racially abusing a student.
7. The Applicant's evidence also includes letters and correspondence that the Applicant has written to AA: 1. asking him to refrain from such conduct as entering the Applicant's school premises without permission; representing himself as affiliated to the local council and taking photographs and videos of the school premises and vehicles during pick up times; 2. advising AA that his behaviour has caused staff, parents and students to "fear for their safety"; and 3. issuing two notices under section 4 of the Inclosed Lands Protection Act 1901 prohibiting his presence at or near the entrance to the Applicant's school site over consecutive years.
8. The Applicant's evidence includes documentation of a report to police about AA confronting four school children when driving past the school, swearing at the school children and making a racially vilifying statement using offensive language. There is also evidence of AA driving above the speed limit and honking his horn whilst driving past the Applicant's property.
9. The Applicant also provided evidence that AA had made complaints to Hunter's Hill Council, Ryde and Gladesville Police, the RMS, NSW Government Revenue and Burwood Local Court about the Applicant's no parking zones, proposed pedestrian crossing, and construction works completed at the school; and taking photographs of the Applicant's dorm areas where students reside including their bathrooms and invading the students' privacy.
10. The Applicant also provided evidence of other conduct of a similar nature engaged in by AA.
11. The Applicant submits that AA's behaviour, as documented over several years, amounts to serious harassment and serious intimidation as contemplated by clause 3(f).
12. The Applicant's contention is that the release of the information could reasonably be expected to expose a person to a risk of harm or of serious harassment or serious intimidation. It submits that it could reasonably be expected that AA would continue to engage in the type of behaviour that is identified by the evidence and that if he is able to obtain access to the information he would be able to use the information to escalate the harassment and intimidation.
13. The Applicant contends that it could reasonably be expected that disclosure of the information would encourage a continuation of AA's behaviour of entering the Applicant's premises and filming vehicles during pick-up times for the purpose of collecting information to inform AA's complaints and a continuation of AA's behaviour towards the Applicant's staff and students, thereby exposing them to the risk of further harm, serious harassment or serious intimidation.
14. It further submits that: 1. such harm will have a real and substantial detrimental effect on the physical, psychological or emotional wellbeing of staff, students, contractors and visitors of the Applicant; 2. such intimidation or harassment is likely to be heavy, weighty or grave; 3. such intimidation or harassment is very unlikely to be trifling or transient; 4. AA has a demonstrate history of fixating behaviour; and 5. AA's past and ongoing harassing and intimidating conduct is sufficiently heavy, weighty or grave so as to amount to serious harassment or serious intimidation.

The Respondent's Case

1. The Respondent acknowledged the Applicant's evidence regarding AA's conduct and accepts that the conduct is serious. However, it submits that it is not clear how the release of the requested information to AA would exacerbate the situation. It noted that redactions can remove any personal information.
2. The Respondent acknowledges that the information could be used as a basis for further complaints but submits that it would be rare that complaints would constitute harassment when directed at an institution rather than individuals.
3. The Respondent submits that the release of the requested information would not create any greater risk than already exists. It relies on the reasoning from its decision to release the requested information and submits that it made the correct and preferable decision.

Consideration

1. The Applicant asserts that the public interest consideration against disclosure in clause 3(f) of the table to section 14 of the GIPA Act outweighs the public interest in favour of disclosure of the information sought by AA. The burden of establishing that there is an overriding public interest against disclosure of the information lies on the Applicant for review.
2. The presumption in favour of disclosure of information in section 5 and the legal entitlement to access information held by an agency is qualified by the limitation on access recognised in section 3(1)(c) of the GIPA Act. This provides that access to government information is restricted only when there is an overriding public interest against disclosure.
3. Section 13 requires the Tribunal to undertake a balancing exercise between the factors in favour of disclosure of the information and the factor against disclosure.
4. The Tribunal is entitled to consider AA's motives for making the application to the extent that they are relevant. AA indicated that he was motivated by his belief that permits/registration were being abused and danger to the community. However, the Applicant submits that AA's motive is to obtain information to use in escalating his actions against the Applicant's staff and students and contractors.
5. Section 12 captures the general public interest in favour of disclosure and specific public interest considerations in favour of disclosure of the information that may be identified. There is no limit to the public interest considerations in favour of disclosure that may be taken into account. If these considerations attract greater weight than the public interest considerations against disclosure, then the information must be released.
6. The Respondent has identified as public interest considerations in favour of disclosure the fact that disclosure of the information could reasonably be expected to inform the public about the operations of Transport for NSW, and in particular, its practices for dealing with applications for the conditional registrations of motor vehicles. I agree with that view. In my view those considerations should be given reasonable weight.
7. Clause 3(f) of the Table to section 14 of the GIPA Act provides that there is a public interest consideration against disclosure of information if disclosure could reasonably be expected to expose a person to a risk of harm or of serious harassment or of serious intimidation. As noted in Zonnevylle v Department of Education and Communities, It is not necessary to decide whether this outcome is likely. It is sufficient that there is a risk of it.
8. The Applicant contends that AA's past and ongoing conduct amounts to serious harassment or serious intimidation. It also submits that it could reasonably be expected that AA would continue to engage in that type of behaviour if he is able to obtain access to the information that he has requested.
9. In my view, this is highly probable. On the evidence before me I am satisfied that the Applicant's staff and students and contractors are already exposed to a risk of harm or of serious harassment or of serious intimidation. There is no information to suggest that AA would limit his conduct in the foreseeable future.
10. On the material before me, it is my view that AA's behaviour is likely to continue regardless of whether he receives access to the requested information. It could reasonably be expected that the conduct will be directed at the Applicant's staff and students and contractors.
11. However, clause 3(f) requires that it could reasonably be expected that the disclosure of the information would expose a person to a risk of harm or of serious harassment or of serious intimidation.
12. The question to be determined is whether the disclosure of the information would escalate the harassment and intimidation.
13. The Applicant contends that it could reasonably be expected that disclosure of the information would not merely encourage a continuation of AA's behaviour but it would also escalate the level of his actions. For example, the Applicant contends that with the benefit of the information, even though it is apparently innocuous, AA would be able to pass himself off as a council officer.
14. I agree with that contention. In my view it is likely that AA would escalate the level of his actions if he were given the requested information. It would allow him to target his conduct more accurately than he has been able to do in the past. In doing so, it is likely that his conduct will be directed at the Applicant's staff members who are responsible for operating the vehicles to which the information relates. It could reasonably be expected that the escalated behaviour would exposing them to the risk of further harm, serious harassment or serious intimidation. I am satisfied that there is a real risk that there could be a detrimental effect a person's psychological, or emotional wellbeing if that were to occur. That person could be offended, worried, tormented, distressed or harassed by the conduct.
15. I am satisfied that the release of the information could reasonably expose a person to intimidation or harassment that is serious i.e. "heavy, weighty or grave, and not trifling or transient"
16. In my view, this consideration should be given significant weight.
17. When a balancing exercise is undertaken between the factors in favour of disclosure and the factor against disclosure of the information, it is my view that greater weight should be given to the public interest consideration against disclosure. I am not satisfied that the information could be redacted in a way that would remove this risk.
18. It follows, that the correct and preferable decision is to refuse to grant AA access to the requested information.

Orders 1. The decision under review is set aside. 2. The decision is made that access to the request information is refused.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 November 2020