McEwan v Port Stephens Council

The information sought is open access information

1. It is common ground between the parties that the information sought by the applicant was "open access information" within the meaning of the GIPA Act. It is notable that the reasons for decision of the Tribunal contain no reference to this feature.
2. Because the information was "open access information", the Council was under a statutory obligation to make such information publicly available unless there was an overriding public interest against disclosure of the information: s 6(1) of the GIPA Act.
3. The key provisions of the GIPA Act concerning this application provide as follows: 6 Mandatory proactive release of certain government information (1) An agency must make the government information that is its "open access information" publicly available unless there is an overriding public interest against disclosure of the information. Part 3 lists the information that is open access information. (2) Open access information is to be made publicly available free of charge on a website maintained by the agency (unless to do so would impose unreasonable additional costs on the agency) and can be made publicly available in any other way that the agency considers appropriate. (3) At least one of the ways in which an agency makes open access information publicly available must be free of charge. Access provided in any other way can be charged for. (4) An agency must facilitate public access to open access information contained in a record by deleting matter from a copy of the record to be made publicly available if inclusion of the matter would otherwise result in there being an overriding public interest against disclosure of the record and it is practicable to delete the matter. (5) An agency must keep a record of the open access information (if any) that it does not make publicly available on the basis of an overriding public interest against disclosure. The record is to indicate only the general nature of the information concerned. (6) Nothing in this section or the regulations requires or permits an agency to make open access information available in any way that would constitute an infringement of copyright. … Division 2 - Public interest considerations 12 Public interest considerations in favour of disclosure (1) There is a general public interest in favour of the disclosure of government information. (2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. The following are examples of public interest considerations in favour of disclosure of information: (a) Disclosure of the information could 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. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) 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. … 13 Public interest test 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. 14 Public interest considerations against disclosure (1) t is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. … Table … 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, … (f) expose a person to a risk of harm or of serious harassment or serious intimidation …

… Part 3 - Open access information Division 1 - Preliminary 18 What constitutes open access information The following government information held by an agency is the agency's "open access information" that is required to be made publicly available by the agency under section 6 (Mandatory proactive release of certain government information): … (g) such other government information as may be prescribed by the regulations as open access information. .. 54 Consultation on public interest considerations (1) An agency must take such steps (if any) as are reasonably practicable to consult with a person before providing access to information relating to the person in response to an access application if it appears that: (a) the information is of a kind that requires consultation under this section, and (b) the person may reasonably be expected to have concerns about the disclosure of the information, and (c) those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information. (2) Information relating to a person is of a kind that requires consultation under this section if the information: (a) includes personal information about the person, or (b) concerns the person's business, commercial, professional or financial interests, or (c) concerns research that has been, is being, or is intended to be, carried out by or on behalf of the person, or (d) concerns the affairs of a government of the Commonwealth or another State (and the person is that government). The requirement to consult extends to consultation with other agencies and other governments. See the definition of "person" in Schedule 4. …. (4) The purpose of consultation under this section is to ascertain whether the person has an objection to disclosure of some or all of the information and the reasons for any such objection. (5) The agency must take any objection to disclosure of information that the agency receives in the course of consultation into account in the course of determining whether there is an overriding public interest against disclosure of government information. (6) If consultation establishes that a person objects to the disclosure of information but the agency decides to provide access to the information in response to the application, access is not to be provided until the agency has first given the objector notice of the agency's decision to provide access to the information and notice of the objector's right to have that decision reviewed, and is not to be provided while review rights on the decision are pending. (7) Review rights on a decision are pending while the objector is entitled to apply for a review of the decision under Part 5 (ignoring any period that may be available by way of extension of time to apply for review), or any review duly applied for is pending. 55 Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the "personal factors of the application") into account as provided by this section: (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14. (4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for. (5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to provide proof of his or her identity. (6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person. An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73. … Division 4 - Administrative review by Civil and Administrative Tribunal 100 Administrative review of decision by NCAT A person who is aggrieved by a reviewable decision of an agency may apply to NCAT for an administrative review under the ADR Act of the decision (referred to in this Division as an "NCAT administrative review"). … 105 Onus on agency to justify decisions (1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section. (2) If the review is of 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 on the applicant for review. (3) If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review.

1. Because if s 18 (g) of the GIPA Act, the following provisions of the Government Information (Public Access) Regulation 2009 are also relevant : Schedule 1 Additional open access information - local authorities …. 3 Information about development applications (1) Information contained in the following records (whenever created) is prescribed as open access information: (a) development applications (within the meaning of the Environmental Planning and Assessment Act 1979) and any associated documents received in relation to a proposed development including the following: …, (vi) submissions received on development applications,
2. It was also uncontroversial that: 1. The Council made public announcements in the Port Stephens Examiner that: Please Note: The Government Information (Public Access) Act 2009 (GIPA) applies to Council. All submissions received are considered to be "open access information" under GIPA and therefore will be made available to members of the public, if requested. To have your say, Council will not consider your submission confidential, and may reproduce it in part or in whole. 1. In letters from the Council to the authors of objections to the development application in this case it was stated: PLEASE NOTE the Government Information (Public Access) Act 2009 (GIPA) applies to Council. All submissions received are considered to be "open access information" under GIPA and therefore would be made available to members of the public if requested.
3. At the hearing of the appeal we were informed by Mr Wickham that the practice of the Council at the relevant time was to make objections publicly available for viewing by attending the Council but without revealing the identity of the objector.

The Tribunal's reasons

1. Important parts of the Tribunal's reasons were ordered by it not to be disclosed to the appellant or to the public. Those parts were contained in paragraphs 29, 30, 31, 32, 46 and 49 and were marked as not for publication in the reasons for decision that were issued to the appellant. As will be seen below, at the first hearing of the appeal, the Appeal Panel raised with the parties a concern that the appellant suffered the disadvantage of being unable to consider grounds of appeal, and argument on the appeal, by reference to the reasons and evidence that had been kept confidential. This led to the Appeal Panel making directions in relation to these confidential aspects and a subsequent hearing of the appeal that considered the confidential reasons.
2. It can be seen from the reasons that in affirming the Council's decision the Tribunal relied upon the following three factors contained in cl 3 in Table 14, of the GIPA Act, namely: 1. Disclosure of the information could reasonably be expected to reveal an individual's personal information: cl 3(a). 2. Disclosure of the information could reasonably be expected to contravene a Health Privacy Principle under the Health Records and Information Privacy Act 2002: cl 3(b). 3. Disclosure of the information could reasonably be expected to expose a person to a risk of harm or of serious harassment or serious intimidation: cl 3(f).
3. The Tribunal attributed most weight to the cl 3(f) factor. It said that the cl 3(f) factor should be given significant weight (at [50] and [54]) whilst the factors in cl 3(a) and (b) should each be attributed reasonable weight (at [37] and [40]).
4. It also appears that the Tribunal regarded the personal factors of the application, as described in s 55 of the GIPA Act, as particularly relevant to the assessment of the cl 3(f) factor (at [45] and [54] and as further developed in the not for publication reasons in [46] and [49]).
5. With respect to the cl 3(a) factor, the Tribunal found it was the opinions of the individuals (accompanied by the disclosure of their identities) that constituted the personal information that would be revealed: at [35]. Accordingly, it found it was not feasible to redact any personal information from the withheld documents: at [38].
6. As to the cl 3(b) factor, the Tribunal made a finding, in general terms, that there was information withheld that related to the health of an individual: at [39]. In doing so, the Tribunal was not specific about which document it was referring to, nor did it express any more specific findings about this subject in the reasons that were not for publication.
7. With regard to the Tribunal's conclusions concerning the factor in cl 3(f), much of the Tribunal's reasoning was contained in paragraphs that were kept confidential in order to protect the personal rights in issue. Accordingly, we now refer to these reasons in parts of the reasons that are not for publication.
8. [NOT FOR PUBLICATION].
9. [NOT FOR PUBLICATION].
10. [NOT FOR PUBLICATION].
11. [NOT FOR PUBLICATION].
12. Returning to reasons that were not kept confidential: 1. The Tribunal made reference to the public interest considerations in favour of disclosure as well as the presumption in favour of release of the information: at [51] and [52]. 2. In weighing the considerations for and against disclosure, the Tribunal concluded: 54. I have indicated that I consider that significant weight should be given to the factors relevant to clause 3(f) of the table to section 14 of the GIPA Act. I also consider that significant weight should be given to considerations pursuant to section 55 of the GIPA Act. 55. In the circumstances of this matter, it is my view that these factors are sufficient to outweigh the considerations in favour of release of the information. Accordingly, I am satisfied that the Council has satisfied the burden placed on it by section 105. 56. Accordingly, it is my view that the Council's decision to refuse access to that information is the correct and preferable decision. The decision should therefore be affirmed.

Grounds of appeal and submissions in support

1. The grounds of appeal set out in the Notice of Appeal were: • Not taking the full nature and classification of the documents and information requested into proper account, reflected in several paragraphs of the Tribunal's Decision. • Not taking the Respondent to the proceeding's amended statement, confidential discussions, and closing submissions into proper consideration in forming its decision. • Not allowing the Applicant to the proceedings to cross-examine his summonsed witness. • In allowing the Applicant's summonsed witness to participate and give evidence during the confidential session of the proceedings, at the Applicant's exclusion. • Not accurately recalling the statement and submissions of the Applicant to the proceedings, reflected in several paragraphs of the Tribunal's Decision.
2. In the Notice of Appeal the appellant, who did not have legal representation, listed these grounds under the heading of leave to appeal. Nevertheless, although some of the grounds of appeal were expressed in very general terms, it is clear enough that some of them did, or were capable of, raising questions of law.
3. The references to the applicant's summoned witness was a reference to Mr Logan. He had been summoned by the appellant to attend the hearing before the Tribunal to give evidence.
4. In support of his appeal Mr McEwan provided written submissions and written submissions in reply. Many arguments were advanced in these written submissions, but the following matters were given some prominence: 1. The information sought was open access information, the Council publicly stated this position and had told objectors about it. Council should comply with what they publicly stated and the appellants could not understand why this situation should not apply to them, as it did to others seeking this information. 2. There was unfairness to them in the process involving the confidential sessions. Such unfairness included that the witness they had summoned (Mr Logan) gave evidence in a confidential session without the appellant being allowed to hear that evidence and cross examine the witness, there was evidence from Mr Wickham that the appellant was not able to see or hear, after one of the confidential sessions Ms Marshall for the Council remarked that some submissions had fallen away as a result of what transpired in the confidential session and they thought this was a reference to the allegations that they were a danger to others, there was a third confidential session at the conclusion of the proceeding in relation to which the appellant does not know what occurred or what impact it had on the final decision and in their view gave rise to apprehended bias, and that the Tribunal did not make any enquiries of them in order to ascertain whether the claims of risk of harm, harassment or intimidation were legitimately founded. 3. The Tribunal did not take account of the full submission from the appellant about any threat that they posed, namely that they had at the hearing and available to be examined their police records and that if they were a danger to others then Council or some other person would have taken, but had not, action to restrain them or charge them, and that nobody had spoken to them about this issue of the threat they posed. 4. As to the existence of health information, the appellant had not requested any health records and there were no health implications relating to the development and no reference to a health record issue when the Council first decided the application.

Appeal right

1. The appellant had a right of appeal on any question of law or could appeal with leave of the Appeal Panel: s 80(2)(b) of the NCAT Act.
2. As to leave, we apply the following from the decision of the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [84]: The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];

The hearing of the appeal

1. On the first day of the hearing of the appeal, Ms Webb on behalf of the appellant made oral submissions in support of the appeal, as well as in support of her own appeal. Ms Marshall, Manager Legal Services with the Council, made oral submissions on behalf of the respondent.
2. The appeal papers provided to the Tribunal by the parties did not include the not for publication reasons or copies of the documents containing the information sought or a transcript of the confidential sessions conducted by the Tribunal.
3. After hearing oral submissions from the parties, including questions from the Appeal Panel, particularly questions of Ms Marshall, about the documents the subject of the application and the confidential aspects of the hearing before the Tribunal, the hearing of the appeal was adjourned. Following that adjournment and the making of various directions by the Appeal Panel, further documents were supplied to the Appeal Panel including: 1. Unredacted copies of the four documents containing the information the subject of the Tribunal's decision: marked Exhibit RC1. 2. A transcript of the confidential sessions (3 of them) of the hearing before the Tribunal: marked Exhibit RC3. 3. The respondent's confidential outline of submissions in respect of Mr McEwan's application dated 12 September 2016: marked Exhibit RC5. 4. A copy of Mr Wickham's confidential statement provided to the Tribunal in respect of Mr McEwan's application dated 9 September 2016: marked Exhibit RC6.
4. On the resumption of the hearing of the appeal, much of the time was spent in a confidential session with the respondent's representatives, including Mr Zoppo, solicitor, who appeared for the Council on that occasion, instructed by Mr Wickham. In addition, further oral submissions in open session were received from Ms Webb on behalf of Mr McEwan and from Mr Zoppo.
5. Amongst the issues raised by the Appeal Panel with the respondent's representatives during this confidential session on the resumed hearing of the appeal were: 1. The adequacy of the Tribunal's reasons in respect of its conclusion that the factor in cl 3(f) of Table 14 had been established and was to be given significant weight. 2. The evidentiary support for the Tribunal's conclusion that the factor in cl 3(f) had been established. 3. Testing of the confidential evidence adduced by the Council in support of the existence of the factor in cl 3(f). 4. The lack of opportunity given to the appellant to respond to the material against them in relation to the cl 3 (f) factor.

Consideration - Generally

1. In view of our conclusions below in relation to the open access issue, the cl 3(f) issue and the cl 3 (b) issue, it is not necessary for us to address all of the points and arguments that were advanced by the appellant.

Consideration - open access information issue

1. In relation to the open access information point on the appeal, the Council: 1. Said that it did not dispute that some of the information sought was open access information and it had made no reference to it in its submissions before the Tribunal because this was not in issue. 2. Submitted that the mandatory release of open access information was subject to the standard overriding public interest against disclosure assessment. Accordingly, protection of privacy and health information principles still applied. 3. Submitted that, whilst there was a need to take into account the open access factor in the weighing of the public interest considerations for and against disclosure, this factor made no significant difference to the weighing exercise required of the Tribunal in this case.
2. We do not agree with this last submission (in paragraph 39(3)).
3. We agree that the mandatory release requirement in s 6 of the GIPA Act is substantially qualified such that it does not apply when the balancing exercise required by the overriding public interest against disclosure test set out in s 13 of the GIPA Act is against disclosure. This is apparent from the terms of s 6(1) of the GIPA Act.
4. However, we think that because the information in issue was open access information the Tribunal needed to start with the position that this was an important factor in favour of disclosure which was additional to other relevant factors in favour of disclosure, including the general public interest in favour of disclosure provided for in s 12(1) of the GIPA Act. In our view such an approach is necessary in order to give meaningful effect to the mandatory release requirement expressed in s 6.
5. In our opinion, it also follows that the Tribunal erred in concluding that the disclosure of the opinions of the objectors (as the disclosure of personal information), simply because they were the individuals' opinions about the development, and not because of any other aspect of the opinions, was to be given reasonable weight against disclosure of the information. In our opinion, such an assessment was at odds with the important value to be attributed to the disclosure of submissions on development applications which is implicit in the prescription of such submissions as open access information in Schedule 1 of the Government Information (Public Access) Regulation 2009.
6. As we have mentioned, the Tribunal made no reference to the open access nature of the information sought. It seems that this point, or its potential significance, may not have been drawn to the attention of the Tribunal. Nevertheless, it raises a question of law and, properly, in our opinion, no objection to it being raised on appeal was taken by the Council.
7. Accordingly, in our opinion, the Tribunal erred in law in failing to carrying out the balancing exercise it was required to undertake by reference to the implications of the open access feature of the information which was sought by the appellant.

Consideration - the cl 3(f) issue

1. For the reasons set out below, most of which must remain confidential, in our opinion, the Tribunal erred in law in failing to give adequate reasons for its conclusion that the factor in cl 3(f) had been established. This was because the Tribunal's reasons did not refer to the material evidence concerning the matters that were against the conclusion that the Tribunal arrived at (much of which was given in response to pertinent questions by the Tribunal during confidential sessions) and set out the reasoning process that led to the conclusion that the cl 3(f) factor did exist despite such evidence.
2. We add that we gained the impression that this competing evidence meant that the Council's contention that this factor did exist was unpersuasive, although we recognise that we did not have presented to us all of the material in relation to this issue, as was pointed out to us by Mr Zoppo.
3. An alternative way to characterise the Tribunal's error is that in failing to address this competing material it went about the fact finding process in a way that was likely to produce an unfair result so that it would be in the interests of justice that the Tribunal's decision should be reviewed. This justifies a grant of leave to appeal: see (2)(e) of the passage from Collins v Urban referred to above.
4. It is, of course, well established that a failure to give adequate reasons is an error of law.
5. One aspect of this is that the Tribunal is statutorily obliged to set out in written reasons the findings on material facts, referring to the evidence on which those findings were based and to set out the reasoning process that led to the relevant conclusions; s 62(3) of the NCAT Act. This latter step requires that the process by which the competing evidence was rejected or overridden be explained.
6. [NOT FOR PUBLICATION].
7. [NOT FOR PUBLICATION].
8. [NOT FOR PUBLICATION].
9. None of these material aspects of the evidence were addressed in the Tribunal's reasons.

Consideration - the cl 3(b) issue

1. The Tribunal's reasons that were not for publication do not contain any additional reasons concerning the existence of the factor in cl 3(b) to those set out in open reasons.
2. We have looked at the four documents that fall within the scope of the access request. It seems to us that only two of the documents contain anything that is capable of amounting to health information and these references (which are expressed in very general terms) make up a very small part of these two documents. It would be a simple matter to have these parts redacted if that was thought necessary or desirable.
3. The Tribunal did not refer to these specifics in its reasons. In our opinion, that was either a failure to provide adequate reasons or a failure to consider the material before it and, hence, an error of law in failing to decide what was the correct and preferable decision having regard to the material before the Tribunal; see s 63(1) of the ADR Act and Bushell v Repatriation Commissioner [1992] 175 CLR 408 at 424 - 425 per Brennan J.

Consideration - Apprehended bias

1. We reject the contention made on the appeal that the decision was affected by an apprehension of bias. As we understood it, this was based solely on the appellant's reaction to the carrying out of a third confidential session on 20 March 2017 after, as they understood it, the hearing had concluded.
2. We have read the relevant transcripts, including that of the third confidential session. In our view, nothing untoward occurred in respect of this confidential session and no basis for an apprehension of bias exists.
3. This process began with the Tribunal remarking in open session, after the parties had told the Tribunal they had nothing else to say and the Tribunal said it would reserve its decision, that there was something it wanted to raise with the Council in confidential session. A very short confidential session then took place in which the Tribunal pursued a relevant issue concerning one of the objectors.

Orders

1. For the above reasons, we make the following orders; 1. The appeal is allowed. 2. The decision of the Tribunal to affirm the decision under review made on 20 March 2017 be set aside. 3. The matter be remitted to a differently constituted Tribunal for redetermination.

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: 14 September 2018