McEwan v Port Stephens Council - [2021] NSWCATAD 110 - NSWCATAD 2021 case summary — Zoe

NSWNSWCATAD

McEwan v Port Stephens Council

[2021] NSWCATAD 110

NCAT Administrative and Equal Opportunity|2021-02-01

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Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2021-02-01

Source

Original judgment source is linked above.

Judgment (26 paragraphs)

[1]

Background

On 26 May 2020, the applicant filed in the Tribunal an Application for Administrative Review (Application) in respect of a decision made by the respondent (the Council) in response to an Access Application made by the applicant under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) on 28 October 2019 (Access Application).
Before Council made its decision, the applicant agreed to reduce the scope of his Access Application as set out in an email to Council dated 19 December 2019 (amended Access Application).
The information sought by the applicant concerned the historical and current Secondary Employment Registers and the Pecuniary Interests Register maintained by the Council. The amended Access Application limited the period in respect of which that information was sought to the period of the Financial Year Ending 2019 (FYE 19)
The decision of the Council was made on 15 January 2020 (the Decision).
As set out in the Schedule of Documents attached to the Decision (the Schedule), the Council provided the applicant partial access to: 1. the historical Secondary Employment Register, with redactions made substantially on privacy grounds giving rise to purported public interest considerations against disclosure (identified as documents 1 and 2 respectively in the Schedule); and 2. 100 Pecuniary Interest Return Forms (PI Returns), with redactions made substantially on privacy grounds giving rise to purported public interest considerations against disclosure (identified as documents 3-102 inclusive in the Schedule). The PI Returns comprise Council's Pecuniary Interests Register.
It is those redactions made in the Decision on the basis of public interest considerations covering the period of the FYE 19 that constitute the issues in dispute between the applicant and the Council and that now come before the Tribunal on review.

[2]

[4]

Preliminary Application at the Hearing

Before the date of the hearing that was fixed for 1 February 2021, the applicant notified the Council's solicitors that he required a Council officer, Ms Holly Jamadar for cross-examination. Ms Jamadar is the Council's Senior Governance Officer. The Council had filed and served an affidavit of Ms Jamadar dated 20 August 2020.
On 19 January 2021 the applicant also filed an Application for a Summons to be Issued (Application for Summons) to require the attendance of a person for cross-examination. The person to whom the summons was directed, Mr Brett Fatches had not provided any affidavit in the proceeding. Mr Fatches was referred to in the Application for Summons as "a member of several Port Stephen's Council Committees [and] it is expected Mr Fatches had Interest Disclosures to make during the period [2011-2012] as an interested party to the Development Application No 483 of 2011 of which I was the Applicant."
Council opposed the Application for Summons.
On 29 January 2021 I made the following directions for dealing with the opposed Application for Summons: I have considered the applicant's request to issue a summons and the respondent's email opposing that application. Having regard to the lateness of the application, I will deal with the application as a preliminary matter on Mon at the commencement of the hearing at 10am. If the application is allowed, it may necessitate the adjournment of the hearing and the making of some consequential orders. If it is not allowed, the matter should be able to proceed as planned. I see no need for the matter to be heard on the papers given the hearing date has been fixed for some time and is imminent. I also wish to avoid a further round of submissions - oral or written - which has been foreshadowed if the matter is to be dealt with on the papers. Given the parties' differing positions on the question of the summons, if there is any evidence to be relied upon in support or in opposition to the application, I direct that it be filed with the Registry and exchanged with each other by no later than 17000 today and I will deal with it on Mon as part of the preliminary hearing.
I heard the applicant's Application for Summons at the commencement of the hearing. In support of the application and without objection, I admitted into evidence: 1. a copy of the Application for Summons and the applicant's correspondence to the Council's solicitors, the Information Commissioner and the Tribunal with respect to this issue - Exhibit 1 (on the preliminary application); 2. a bundle of documents provided by the applicant in response to the directions I made on 29 January 2021 - Exhibit 2 (on the preliminary application);
In opposition to the application, and without objection, I admitted into evidence: 1. an email from the Council's solicitors to the Tribunal dated 25 January 2021 in response to the applicant's Application for Summons - Exhibit A (on the preliminary application); 2. an affidavit by the Council's solicitor Ms Elaine Yeo dated 29 January 2021 provided in response to my directions - Exhibit B (on the preliminary application). In her affidavit, Ms Yeo formally deposed to the matters contained in the email comprising Exhibit A based on her inquiries and instructions received from Council's in-house lawyer.
The Council objected to the Summons and submitted that "Mr Fatches is not an employee of Council or a councillor, and has not had any role in the decision made by Council in respect of Mr McEwan's access application ... Whether or not Mr Fatches made pecuniary interest disclosures, and whether or not he was required to make disclosures, are not issues in these proceedings." At the conclusion of the preliminary application, the applicant did not press his application to issue a summons for Mr Fatches to attend for cross-examination, having accepted that if his application was pressed and upheld, that would have necessitated an adjournment of the hearing.

[5]

Evidence and Submissions at the Hearing

On 9 October 2020 the applicant filed his written submissions together with some attached documents. Without objection, the attached documents were admitted into evidence and marked as Exhibit 3. The applicant was not cross- examined.
Council filed its submissions on 24 August 2020. The Information Commissioner filed submissions on 18 September 2020. Council filed submissions in reply to the submissions of the Information Commissioner on 23 October 2020.
As mentioned above, Council relied on an affidavit of Holly Jane Jamadar, dated 20 August 2020, which included documents in Exhibit HJ-1 of that affidavit. The affidavit including Exhibit HJ-1 was admitted into evidence without objection and marked as Exhibit C.
Ms Jamadar's affidavit also contained a Confidential Exhibit HJ-2 that was separately tendered by Council and marked as Confidential Exhibit CA.
The applicant did not seek to cross-examine Ms Jamadar.
Council's other documentary evidence was provided in three separate "bundles" of documents filed in the Tribunal comprising: 1. Bundle 3 (which was supplemented with some additional documents filed on 1 February 2021), containing copies of the documents in the redacted form released to the applicant under the Decision. Bundle 3 was admitted into evidence without objection and marked as Exhibit D. 2. Confidential Bundle 1 (marked as Confidential Exhibit CB) with the documents identified in the Schedule in an unredacted form. 3. Confidential Bundle 2 (marked as Confidential Exhibit CC) comprised the same documents as Bundle 1 but with highlights in yellow to identify those parts of the documents said to be outside the scope of the amended Access Application and blue highlights to identify the disputed information which Council opposed releasing to the applicant.
The hearing was conducted by an exchange of oral submissions after the evidence was tendered, which included a confidential session held in the absence of the applicant for the Tribunal to receive oral submissions from Council and an explanation of the documents contained in the Confidential Exhibits.
Confidential Exhibits, Submissions and Hearing
The confidential session was held in accordance with s 107 (2) of the GIPA Act, which provides that at a hearing on review, where the Tribunal is satisfied that it is necessary to prevent the disclosure of information for which there is an overriding public interest against disclosure, the Tribunal is required to receive that information and any submissions in confidence and in the absence of the public, the applicant and his or her representative.
A suppression order was made under s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) prohibiting the release of the confidential evidence, confidential submissions and the record of that part of the proceedings conducted in private on 1 February 2021, to either the applicant or the public.
In addition, I have made an order for non-publication of those parts of these Reasons marked "Not for Publication" that are confidential and not to be released to the applicant or the public.

[6]

Administrative Decisions Review Act 1997 (NSW)

Before dealing with the substance of the evidence and submissions in the proceedings, it is convenient to identify the legislative scheme and set out some of the legislative provisions that arise for consideration in these proceedings.
The Application is brought before the Tribunal under s 63 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act), which provides that the Tribunal may review certain decisions of a respondent agency, described as a "reviewable decision".
On application under s 63 of the ADR Act, the Tribunal undertakes an administrative review of the reviewable decision and determines the correct and preferable decision, having regard to any relevant factual material before it. Section 63 of the ADR Act states: 63. Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
As I discuss below, I have determined in the present review that the correct and preferable decision requires the Decision by the Council to be varied with respect to the disputed information.
The time at which the Tribunal is to determine the correct and preferable decision is the time that the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [55].

[7]

Government Information (Public Access) Act 2009 (NSW)

As stated above, the applicant submitted his Access Application on 28 October 2019. In respect of access applications, s 9 (1) of the GIPA Act relevantly provides: "A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information".
The Decision is a "reviewable decision" in respect of an access application within the meaning of s 80 of the GIPA Act and is reviewable by the Tribunal under s 100 of the GIPA Act.
In an administrative review under s 100 of the GIPA Act, there are several provisions of particular relevance to the Tribunal's consideration of the Decision.
Section 5 of the GIPA Act provides: "There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure."
Also, of particular significance in these proceedings is s 6 of the GIPA Act which concerns "open access information" and provides: 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. [Note: 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.
Section 6 of the GIPA Act directly concerns the disputed information that is the subject of the PI Returns. The Council accepts that this is "open access information".
Section 12 of the GIPA Act provides that there "is a general public interest in favour of the disclosure of government information" and relevantly to these proceedings, the Information Commissioner "can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies".
Section 13 sets out a "public interest test" which requires a determination of whether "on balance," there are public interest considerations in favour of disclosure which outweigh the public interest considerations against disclosure.
In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 and Hurst v Wagga Wagga City Council [2011] NSWADT 307, the Tribunal confirmed that the "public interest test" under section 13 requires agencies to start with the presumption in favour of disclosure of information and: 1. identify the public interest in favour of disclosure (s 12); 2. identify the public interest against disclosure with reference to the items listed in the Table to s 14 of the GIPA Act (the s 14 Table); and 3. determine whether the balance of the public interest lies in favour of, or against, the disclosure of government information.
The Tribunal must attribute the appropriate weight to each relevant consideration for or against disclosure but the balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17].
Section 14 relevantly provides: 14. Public interest considerations against disclosure (1) 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. (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. (3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section.
In the present proceedings, in accordance with s 14 (2), the matters relied upon by the Council in the s 14 Table to be taken into account as "public interest considerations" against the disclosure of government information are set out in clause 3 (a) and (b) and clause 6 which relevantly provide: 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.
And: 6. Secrecy provisions (1) There is a public interest consideration against disclosure of information if disclosure of the information by any person could (disregarding the operation of this Act) reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule (of this or another State or of the Commonwealth) that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions. (2) The public interest consideration under this clause extends to consideration of the policy that underlies the prohibition against disclosure.
It is only necessary that the considerations in the s 14 Table "could reasonably be expected" to have the effect identified. The onus is on the agency "to demonstrate with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect": McKinnon v Secretary, Department of Treasury [2006] HCA 46 per Hayne J at [61]. This calls for an objective test to be made from the point of a view of a "reasonable" administrator: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. This is also to be determined as a question of fact based on real and substantial grounds and not just a "mere risk or chance" - Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [41]; also Leech v Sydney Water Corporation [2010] NSWADT 298 at [25].
Section 14 (3) provides for the Information Commissioner to issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies.
As discussed later, the Information Commissioner has issued several statutory guidelines relevant to the issues in these proceedings.
Section 105 of the GIPA Act places the onus on the respondent agency to establish that its decision was justified. The respondent agency is not limited to defending or justifying its decision on the same grounds as the original decision-maker: Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 at [10]; Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 at [7].

[8]

Applicant's Submissions

The written and oral submissions of the applicant covered many matters and raised numerous issues, including by way of summary only, the following contentions: 1. A request for "open access information" mandated for release should be provided informally and without charge; 2. The Council has acted in a biased manner in dealing with the Access Application; 3. The request for information is a matter of public interest; 4. Council repeatedly and unnecessarily pressured the applicant to reduce the scope of his Access Application; 5. The applicant has serious concerns about Council's claims as to the impact on the well-being of third parties should the information sought by the applicant be made public; 6. There is no evidence that Council advised the nature of the requested information to any potential third party objector as being open access information mandated for release or that such objectors had the right "to seek an administrative review, as a response to Council complying with its statutory obligations" (ie to the release of any information to which they had objected); 7. That "the documents the subject of this valid request for open access information should have been made available to me at first instance, without any third party consultation, even if access was granted at Council's front counter for perusal only and no copies provided to me" and that "responding to my request in this way may have satisfied the request"; 8. The applicant "did not see any reference whatsoever to Section 14 Table 3 (f) of the GIPA Act as a reason for withholding the information, and I am very concerned Council's repeated reference to persons being concerned about their well-being is an attempt to rely on that clause without actually stating so. In this regard I would ask the Tribunal to agree that since no clear claim or reference to Section 14 Table 3 (f) has been made that any claim of any concern for well-being be disregarded as Council has not referred to any section of the legislation"; 9. The suggestion made by a senior Council officer contained in a letter to the Information Commissioner dated 17 March 2015 in Exhibit 3 - which was tendered by the applicant and without objection by Council - raises serious allegations against the applicant and his wife which he strenuously rejected and described as being made falsely in an attempt to refuse the release of certain information on the grounds that it could impact the well-being of those individuals to whom the information relates; 10. With reference to the letter in Exhibit 3, the applicant said that "no apprehended violence order has ever been issued against my wife or I, nor has anyone ever contacted either of us about concerns for any person's safety"; 11. The applicant regarded the statements made in Exhibit 3 by the Council officer, Mr Tony Wickham, who is Council's Governance Section Manager and who considered but declined to act on the recommendations made by the Information Commissioner in its External Review, as "hurtful, untruthful, and damaging" and that Mr Wickham's letter "effectively criminalized both my wife and I and as such any decision [Council] makes concerning requests for information remain fully corrupted"; 12. The letter in Exhibit 3 was provided by Mr Wickham to "influence an Investigating Officer of the [Privacy] Commissioner" and was forwarded by Mr Wickham to the NSW Office of Local Government. The applicant only became aware of the letter when it was released to his wife by Council's solicitors in about July 2018; 13. The letter in Exhibit 3 demonstrates that Council's "Senior Right to Information Officer" has "continuously acted out in a biased fashion towards me, compromising and jeopardizing every request for information I lodge with Council ...". 14. I interpose here to note that Council did not seek to rely on the contents of that letter in Exhibit 3 in support of its submissions with respect to the possible impact on such persons of the release of their personal information; 15. The applicant objected to the oral submission made by counsel at the hearing that the release of certain information (such as a person's signature) could lead to "identity theft"; 16. The applicant supported the recommendation of the Information Commissioner in the External Review and the written submissions made by the Information Commissioner in these proceedings; 17. By reason of the above matters, the applicant made a "request the Tribunal does not remit this matter back to Council for further consideration".

[9]

Respondent's Submissions

As set out above, the first category of documents in the Schedule to the Decision comprise a current and historical Secondary Employment Registers. The second category of documents in the Schedule is the 100 PI Returns comprising the Pecuniary Interests Register.
Council's submissions acknowledged that: 1. there is a general public interest in favour of the disclosure of government information: s 12(1) GIPA Act; 2. since the Secondary Employment and Pecuniary Interests Registers are a part of Council's systems for ensuring the accountability of its councillors and employees, disclosure of those Registers could reasonably be expected to enhance public accountability: s 12 GIPA Act; 3. the information in the Pecuniary Interests Register is "open access information": s 18 (g) GIPA Act.
The Council identified two broad grounds by which it refused access to the documents by its Decision and redacted the information on the documents provided to the applicant as replicated in Bundle 3 (Exhibit D).
The first is that the information was outside the scope of the Access Application as revised by the applicant's email dated 19 December 2019.
While all redactions in the copies of the documents in Bundle 3 appear in black, as explained above, Bundle 2 (Confidential Exhibit CC) was provided with yellow highlights to identify those redactions in Bundle 3 that were made because the Decision determined that the information in those documents was outside the agreed and revised scope of the (amended) Access Application.
All redacted entries in Document 1 were said to "fall outside the date range specified by Mr McEwan in his correspondence with Council and were thus out of scope".
The historical Secondary Employment Register (Document 2) and the PI Returns (Documents 3-102) also contained yellow scope highlights.
The second ground was the subject of blue highlights in Confidential Exhibit CC, which identified those redactions in Bundle 3 in black where access was refused under the Decision in reliance on overriding public interest considerations against disclosure under the GIPA Act. In the case of the first category of documents, only the historical Secondary Employment Register (Document 2) contained blue highlights. In the case of the second category of documents, Council identified blue highlights on all of the PI Returns at Documents 3-102 in Confidential Exhibit CC but in some cases where the information on the PI Return was outside scope, the blue highlight was limited only to the signature of the person identified on the PI Return.
It is the information in the historical Secondary Employment Register and the PI Returns highlighted in blue in Confidential Exhibit CC that constitute the disputed information the subject of these proceedings.
The public interest considerations against disclosure raised by Council in respect of the historical Secondary Employment Register were founded on clause 3 (a) and (b) of the s 14 Table of the GIPA Act. In the Decision, Council had relied upon clauses 3 (a) and 4 (d) of the s 14 Table to refuse disclosure of certain information in the historical Secondary Employment Register. The ground under clause 4 (d) which raised the issue of prejudice to a person's legitimate business, commercial, professional or financial interests, was not relied upon in these proceedings.
In the case of the second category of documents, namely the PI Returns, the public interest considerations against disclosure in the proceedings were founded on clause 3 (a) and clause 6 of the s 14 Table "in light of ss 57 and 58" of the Privacy and Personal Information Protection Act 1998 (NSW) PPIP Act). Council did not initially rely upon clause 3 (a) and clause 6 of the s 14 Table in the Decision, basing its Decision in respect of the PI Returns, on cl 4 (d) which, as stated above, was not relied on in these review proceedings.
The fresh and additional reliance on clause 3 (b) and clause 6 of the s 14 Table in these proceedings is permissible. As set out above, Council is not limited to defending its decision on the same grounds relied upon in the reviewable decision: Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 at [10]; Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 at [7].

[10]

Clause 3 (a) and (b) of the s 14 Table: Secondary Interests Register - Document 2 of the Schedule

As set out above, clause 3 (a) and (b) of the s 14 Table are concerned with "individual rights" and in particular, privacy rights relating to the disclosure of an individual's "personal information" and matters arising under the PPIP Act.
Council submitted that some entries were redacted as being outside of the date range requested by the applicant and certain other information such as employee's names was outside the scope of the amended Access Application.
Council's submissions identified the following information redacted from Document 2 on the basis that there was an overriding public interest against disclosure because disclosure would reasonably be expected to have the effect of revealing personal information about an individual: clause 3 (a) of the s 14 Table. That information was described as comprising: 1. the location of the employees' secondary employment; 2. the type of work done by employees; 3. the risk rating, in terms of the potential for conflict or fatigue, of that secondary employment; 4. the date that secondary employment ceased; and 5. whether a designated person's form has been prepared.
Council submitted that disclosure of that personal information could also reasonably be expected to constitute a contravention of Information Protection Principle (IPP) in s 18 of the PPIP Act, thereby "enlivening" clause 3 (b) of the s 14 Table. Council submitted that the exception in s 18 (1) (a) of the PPIP Act does not apply, namely where "the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure". Council contended that the purpose of collecting the information was not for the purpose of disclosing it to the public but for the purpose stated above, namely to avoid potential conflicts of interest and manage workplace issues.
Council also said that five individuals expressly objected to the information in Document 2 being disclosed. In the case of those individuals who were consulted by Council but provided no response, so neither consenting nor objecting to the disclosure of their personal information, Council submitted that "[s]ilence does not equal consent" as there may be any number of reasons a person does not or cannot respond: citing CGU Workers Compensation (NSW) Ltd v Department of Planning and Environment [2018] NSWCATAD 169 at [49].
In the instances of those who did object, while acknowledging that each case will depend on its own facts, Council submitted that it placed significant weight on the objections received from individuals to the disclosure of their personal information: citing Chetcuti v University of Sydney [2020] NSWCATAD 164 [76]; Pollington v Commissioner of Police, NSW Police Force [2019] NSWCATAD 1 [46]-[48], [61].
Council also candidly submitted that "the mere fact that an objection is made to disclosure of personal information is not determinative of the question of whether there is an overriding public interest against disclosure: Anderson v Tweed Shire Council [2017] NSWCATAD 61 [19]. This is confirmed in IPC Guideline 4 [3.9]..."

[11]

Clauses 3 (a) and 6 of the s 14 Table - PI Returns - Documents 3-102 of the Schedule

As mentioned above, clauses 3 (a) and 6 of the s 14 Table are relied upon by the Council to assert an overriding interest against disclosure of the PI Returns.
In relation to clause 6 of the s 14 Table (the "secrecy provisions"), Council contended that there is a public interest consideration against disclosure of information in the PI Returns, as disclosure could reasonably be expected to contravene ss 57 and/or 58 of the PPIP Act.
Council submitted at [34] -[35] and [37]-[38] of its written submissions: 34. ... disclosure of some of the disputed information could (disregarding the operation of the GIPA Act) reasonably be expected to contravene sections 57 and or 58 PPIPA Act. As a consequence, it is necessary to consider clause 6 of the table to section 14 of the GIPA Act. 35. Council's Pecuniary Interests Register, which is a collection of the completed pecuniary interest disclosures it receives from council's and staff, is a public register as defined in section 3 of the PPIP Act, because it is a register of personal information required by the GIPA Act and regulations to be made publicly available or open for public inspection. Consequently, section 57 of the PPIP Act applies ... 37. Disclosure of the personal information in the Pecuniary Interests Register without satisfaction as to matters in section 57 of the PPIPA Act could reasonably be expected to be a contravention of that provision. 38. Parliament has also provided specific avenues for individuals to protect themselves against disclosure of personal information in public registers (with reference to s 58 of the PPIP Act)
Sections 57 and 58 of the PPIP Act provide: 57 Disclosure of personal information contained in public registers (1) The public sector agency responsible for keeping a public register must not disclose any personal information kept in the register unless the agency is satisfied that it is to be used for a purpose relating to the purpose of the register or the Act under which the register is kept. (2) In order to enable the responsible agency to comply with subsection (1), the agency may require any person who applies to inspect personal information contained in the public register to give particulars, in the form of a statutory declaration, as to the intended use of any information obtained from the inspection. 58 Suppression of personal information (1) A person about whom personal information is contained (or proposed to be contained) in a public register may request the public sector agency responsible for keeping the register to have the information - (a) removed from, or not placed on, the register as publicly available, and (b) not disclosed to the public. (2) If the public sector agency is satisfied that the safety or well-being of any person would be affected by not suppressing the personal information as requested, the agency must suppress the information in accordance with the request unless the agency is of the opinion that the public interest in maintaining public access to the information outweighs any individual interest in suppressing the information. (3) Any information that is removed from, or not placed on, a public register under this section may be kept on the register for other purposes.
It was not in dispute that the PI Returns comprising documents 3 to 102 of the Schedule constitute "open access information" giving rise to the matters prescribed in s 6 (1) of the GIPA Act, which has been set out above. In summary, s 6 provides for the "mandatory proactive release" of "open access information" unless there is an overriding public interest against disclosure of the information.
The Council accepted that under s 6 (1) of the GIPA Act, the "consequence of the pecuniary interest forms being open access information is that Council is required to make it publicly available unless there is an overriding public interest against disclosure of the information." (emphasis in the Council's submissions)
In the case of the PI Returns, Council submitted that it received forty-two responses to its inquiry of potentially affected persons as to whether they "consented to the release of their personal information". Four individuals consented and thirty-eight did not. Council relied upon its previous submissions in relation to clause 3 (a) of the s 14 Table as to what weight should be attributed to a particular person's consent or objection to disclosure or where there has been no response received.
Further, Council submitted at [92]-[97]: 92. The 38 objections referred to in paragraph 90 above [relating to the Pecuniary Interests Register] should also be treated as requests by the individuals to Council pursuant to section 58 the GIPA Act to not disclose their personal information in the public register to the public. In those circumstances, as set out in paragraph 40 above, the Tribunal (standing in Council's shoes on review) is obliged to consider whether the well-being of these individuals would be affected by not suppressing the personal information as requested. 93. If the Tribunal is satisfied that the person's well-being would be affected, section 58 of the PPIPA Act would ordinarily require it to suppress the information unless it is of the opinion that the public interest in maintaining public access to the information outweighs any individual interest in suppressing the information. 94. A number of individuals' objections state that the particular private circumstances result in them having a greater than usual need to protect their privacy and personal information… Some individuals also express their concern about the personal information being disclosed to an individual who is not known to them, for purposes that are not known to them… 95. Certain employees… base their objections on previous conduct by Mr McEwan. If their personal information is disclosed to Mr McEwan over their objections, this will cause these employees a significant degree of concern and distress, which will affect their well-being. These issues will be addressed further in a closed session by reference to the confidential evidence. 96. The impact on these individuals' well-being outweighs the limited public question Mr McEwan being provided with the personal information of a large number of council employees. As with the secondary employment register, the purpose of the Pecuniary Interests Register is to permit Council to ensure that conflicts of interest did not arise. The information within it has only tangential relevance to council employees' public functions.
Council submitted that "information about residential addresses, trusts, source of income and debts is outside of the scope of the access application, as amended. As such, Counsel submitted that it was entitled to redact it. The balance of the information was redacted by Council because there is an overriding public interest against disclosure in respect of that information."
The submissions identified the following information contained in the PI Returns as having been redacted: 1. copies of signatures (noting that some signatures were inadvertently not redacted); 2. addresses of properties in which the councillor or designated person had an interest; 3. occupations and locations of secondary employment and names of secondary employers; 4. names and addresses of settlors and trustees of trusts from which that councillor or designated person received income; 5. sources of other income received by the councillor or designated person; 6. debts owed by the councillor or designated person; 7. names and addresses of corporations in which that councillor or designated person had an interest, including the description of the position occupied by the person in that corporation and the objects of the corporation; 8. the names of trade unions or professional business associations that the councillor or designated person held a position in; and 9. discretionary disclosures: the responses to this section of the PI Return included further personal financial information, information about positions occupied in private organisations by the councillor or designated person and information about the family businesses.

[12]

Submissions by the Information Commissioner

The Information Commissioner exercised her "right to appear and be heard" in these proceedings under s 104 (1) of the GIPA Act in the manner explained by the Appeal Panel in Rice Marketing Board for the State of NSW v Forbidden Foods Pty Ltd [2020] NSWCATAP 183. The Information Commissioner's submissions were expressed as being "made in the performance of the Information Commissioner's functions" which are set out in s 17 of the GIPA Act as follows: 17 Role of Information Commissioner The Information Commissioner has the following functions in connection with the operation of this Act - (a) to promote public awareness and understanding of this Act and to promote the object of this Act, (b) to provide information, advice, assistance and training to agencies and the public on any matters relevant to this Act, (c) to assist agencies in connection with the exercise of their functions under this Act, including by providing services to assist with the lodgment, handling and processing of access applications, (d) to issue guidelines and other publications for the assistance of agencies in connection with their functions under this Act, (e) to issue guidelines and other publications for the assistance of the public in connection with their rights under this Act (including rights of review), (f) to review decisions of agencies pursuant to Part 5, (g) to monitor, audit and report on the exercise by agencies of their functions under, and compliance with, this Act, (h) to make reports and provide recommendations to the Minister about proposals for legislative and administrative changes to further the object of this Act.
I acknowledge the helpful written and oral submissions of Ms C Higgins on behalf of the Information Commissioner. I have not set out those submissions here but I refer and make attribution to them in my consideration of the parties' evidence and the issues below.
Copies of the following "Information and Privacy Commissioner Guidelines" were contained in Exhibit HJ-1 of Ms Jamadar's affidavit (Exhibit C): 1. Guideline 1: For local councils on the disclosure of information contained in the returns disclosing the interests of councillors and designated persons developed under the GIPA Act; 2. Guideline 4: Personal Information as a public interest consideration under the GIPA Act; 3. Guideline 5: Consultation on public interest considerations under section 54 and section 54A of the GIPA Act.

[13]

Scope

As discussed above, the scope of the Access Application was amended by the correspondence between the parties before the Decision was made. The first reduction of scope was in a letter from the applicant dated 9 December 2019 that limited the request to "encompass the period 1 January 2010 to 31 December 2013". The next and final scope reduction was the email referred to above dated 19 December 2019, which contained the words: I am happy to have the following information redacted for the period 2011/2012 ...
As stated by Ms Jamadar in her affidavit (Exhibit C), she "read Mr McEwan's email as stating that Mr McEwan only sought information for the 2011-2012 financial year ..." (paragraph [16]).
I accept that inference was open to Ms Jamadar, particularly in the case of PI Returns covering disclosures across a financial year as the note on the Return makes clear at item 2 of the form. However, there is a degree of ambiguity in light of the applicant's earlier letter based on calendar years, so it was not entirely clear whether the time span of the request was to apply across both calendar years of 2011 and 2012 or only for the FYE 2012. The applicant's letter does not use the words "financial year" or "years". The Decision is not clear as to the approach taken by the Council (simply restating the relevant part of the applicant's email of 19 December 2019 in section 1). However, it is apparent when reviewing the Confidential Exhibits that it was limited to the FYE 2012.
Notwithstanding the applicant's assertions that he was "repeatedly and unnecessarily pressured to reduce the scope" of his Access Application, the applicant did not challenge that aspect of Ms Jamadar's affidavit evidence, so I accept that in determining the question of the scope of the amended Access Application, at least in terms of the period of time during which information was sought, the applicant's request for information is limited to the FYE 2012.
As set out above, whether information withheld from a document is outside the scope of an access application is not reviewable under s 80 of the GIPA Act.

[16]

Council's Reliance on Clause 3(a) and (b) of the s 14 Table: Document 2

I have determined that Council's reliance on the considerations in clause 3 (a) and (b) of the s 14 Table to assert an overriding public interest against disclosure of the non-scope redactions highlighted in blue of Document 2 in Confidential Exhibit CC, should not be upheld.
I accept the correctness of the submissions of the Information Commissioner that where the Council has relied on personal information and PPIP Act considerations as public interest considerations against disclosure relying on clause 3(a) and 3(b) of the s 14 Table, the relevant test remains the public interest test and the balancing exercise mandated by s 13 of the GIPA Act.
Section 5 the GIPA Act ensures that the PPIP Act does not modify the operation of the GIPA Act where, in the matters relevantly under consideration, the disclosure of information under the GIPA could reasonably be expected to reveal an individual's personal information (clause 3(a)) or contravene an IPP under the PPIP Act (clause 3(b)).
Section 5 of the PPIP Act is expressed as follows: 5 Government Information (Public Access) Act 2009 not affected (1) Nothing in this Act affects the operation of the Government Information (Public Access) Act 2009. (2) In particular, this Act does not operate to lessen any obligations under the Government Information (Public Access) Act 2009 in respect of a public sector agency.
In DRP v Orange City Council [2020] NSWCATAD 220 (DRP), the Tribunal held at [47]-[50]: 47. The PPIP Act and the IPPs do not modify the operation of the GIPA Act. In other words, non-compliance with the PPIP Act may be authorised where an agency is complying with an obligation under the GIPA Act. Personal information may be used or disclosed pursuant to an obligation under the GIPA Act, even if a provision of the PPIP Act would be breached. 48. S 11 of the GIPA Act provides that the GIPA Act overrides a provision of any other Act or statutory rule that prohibits the disclosure of information (whether or not the prohibition is subject to specified qualifications or exceptions), other than a provision of a law listed in Schedule 1 as an overriding secrecy law. 49. Those provisions operate and affect IPP 11 under s18 of the PPIP Act which imposes a limitation on the disclosure of information by public sector agencies, and s57 of the PPIP Act which concerns the disclosure of personal information contained in public registers. As set out below, because of s5 of the PPIP Act, IPP 11 and s57 do not affect the obligations of local councils in relation to the mandatory proactive release of 'open access information'. 50. Open access requirements are, however, subject to the public interest test under s13 of the GIPA Act (see s 6(1)). It follows that the applicable test for deciding whether a person's personal information is required to be included in open access information for the purpose of s6 of the GIPA Act is the public interest test in s13 of the GIPA Act.
The Council sought to distinguish DRP by submitting: 1. The comments set out above were obiter (to the extent that term is appropriate to use in relation to Tribunal decisions: referring to Shoebridge v Office of Environment and Heritage [2018] NSWCATAP 144 at [31]; and 2. the Tribunal in its reasons in DRP did not refer to the "Note" in s 11 of the GIPA Act which provides: Note: For overriding secrecy laws it is conclusively presumed that there is an overriding public interest against disclosure of the information. Other secrecy laws are to be taken into account as considerations against disclosure in determining whether there is an overriding public interest against disclosure. See section 14 (emphasis in Council's submissions)
The latter submission by Council only concerns the matters under consideration in clause 6 of the s 14 Table which is raised in the context of the PI Returns and which I deal with below.
The Information Commissioner submitted that the Tribunal's analysis in DRP at paragraphs [47]-[50] correctly explains the operation of the provisions in the PPIP Act in sections 5, 18 and 57 and that the PPIP Act does not modify the operation of the GIPA Act. The Information Commissioner submitted that "this is a correct interpretation of the statutory regime. For this reason, the Commissioner submits that the comments in DRP are persuasive and directly relevant to the current proceedings".
I agree. The Tribunal's comments may have been obiter but they represent a considered approach to the interplay of the GIPA and PPIP Acts. Further, the "Note" in s 11 relied upon by Council does no more than reiterate that in the absence of the conclusive presumption in the case of overriding secrecy laws, section 14 has a role to play by identifying considerations against disclosure in the context of "other" secrecy laws and in which case, the decision-maker must determine whether there is otherwise an overriding public interest against disclosure.
In the balancing of interests under s 13 of the GIPA Act, non-compliance with the PPIP Act is permitted where an agency is complying with its obligations under the GIPA Act. Personal information may be used or disclosed pursuant to an obligation under the GIPA Act even if a provision of the PPIP Act would be breached. The weight to be given to the contravention or non-compliance is significantly reduced and still favours disclosure because nothing in the PPIP Act operates "to lessen any obligations" under the GIPA Act: s 5 (2).
In my opinion the comments in DRP are a correct statement of the statutory regimes under the GIPA and PPIP Acts.
In any event, I am not satisfied that the evidence relied upon by Council reaches a level to satisfy me that personal and privacy considerations constitute a public interest to outweigh competing public interest considerations in favour of disclosure.
Exhibit HJ-1 of Ms Jamadar's affidavit (Exhibit C) provided a copy of a pro forma letter that Ms Jamadar sent on behalf of Council on 19 December 2019 to 19 people whose personal information was contained in the historical Secondary Employment Register. This was prior to the Decision being made. Ms Jamadar said that 7 people provided responses: 5 objected to the release of their information and 2 consented to its release.
Exhibit HJ-1 of Exhibit C also provided a pro forma example of the type of correspondence sent by Council to potential third party objectors after these proceedings were commenced.
That form of letter according to Ms Jamadar went to the same 19 people that Council had previously consulted in relation to the amended Access Application and the historical Secondary Employment Register. Only one person consented to the release of his information: of the 18 others, 5 objected but the majority of persons (namely, 13) did not respond at all.
The position as I understand it for the purpose of these proceedings is that Document 2, in the form provided in Confidential Exhibit CC, has 3 un-redacted entries but each of those relates to the same person who previously provided his consent to disclosure.
I am of the view that none of the redactions highlighted in blue in Document 2 are justified on the grounds relied upon by the Council on review in these proceedings. Having considered the blue highlighted entries with respect to Document 2 in Confidential Exhibit CC, I do not accept that the content of the redacted information constitutes personal information giving rise to public interest considerations to justify Council's contention that they constitute an overriding public interest against disclosure.
Accepting that such redacted information constitutes "personal information", based on that definition in clause 4 (3) of Schedule 4 of the GIPA Act (or even under the slightly different definition in s 4 of the PPIP Act), Council has not articulated why and how in the context of Document 2, there is a public interest in that personal information not being disclosed and that it outweighs the general public interest in favour of the disclosure of government information. The full extent of the submission seems to be that s 58 of the PPIP Act effectively permits Council "to not disclose their personal information in the public register to the public" and there have been some objections received from individuals who oppose the release of that information.
However, applying the test in s 13 of the GIPA Act, having regard to the statutory presumptions in ss 5 and 12 set out above, one of the accepted purposes (if not a primary purpose) of Council maintaining a Secondary Employment Register is to ensure accountability and transparency of councillors and Council employees in the discharge of their duties and functions. Redacting information which includes the nature of the secondary employment disclosed on the register is antithetical to the concept of that document being a public document and limits any disclosures to persons that only Council itself deems fit to disclose. Public accountability cannot be openly and properly maintained if it is limited to the unilateral decision of Council as to what is important and relevant in terms of ensuring accountability of Council to the public in the context of an Access Application. This underscores the importance of the review provisions prescribed by the GIPA Act in respect of public information and the primacy of the GIPA Act over the secrecy provisions of the PPIP Act.
Public accountability must prima facie extend beyond disclosures of secondary employment interests only to Council officers or being subject to an individual's consent for that information to be publicly disclosed. Objections to the release of personal information by third parties are factors for the agency (and the Tribunal "in its shoes") to assess as to whether there are any private and personal interests overriding public interest considerations in favour of disclosure; but an objection of itself is not a determinative factor against disclosure and the weight to be afforded to any objection is to be assessed by evidence establishing the reason or specific interest relied upon.
Personal information is known to be disclosed in the Secondary Employment Register as a condition of employment with the Council and potentially therefore, available to a member of the public pursuant to an Access Application.
None of the five written objections which related to the historical Secondary Employment Register contained in Exhibit JH-2 of Exhibit C raised any objection beyond a purported concern that the information was personal, the person seeking it was unknown (or rather unidentified) and the purpose for seeking the information was unknown. Yet Council said that it "placed heavy weight" on those objections. Curiously, equal weight was given to those persons who did not respond at all. Council has effectively deemed an absence of a response to be an objection. This seems to be an unsound approach to the weighing of specific objections and a lack of objection. When balancing the competing interests of those who did object and considering those who did not provide an objection with the presumptions underlying the GIPA Act in favour of disclosure, it would have been more appropriate to have at least only redacted the personal information of those who made a positive objection. This seems to accord with the intent of Guideline 4. Council did not in my opinion properly explain why it applied a far more indiscriminate approach which treated all objections the same as those who did not respond at all.
Unlike the issues with respect to the PI Returns which I discuss below, I did not understand that Council suggested that any of the objections to the release of information in the Secondary Employment Register raised any matter of public interest rather than personal interests against disclosure. A private interest may highlight a public interest but it does not of itself necessarily constitute a public interest against disclosure.
I do not accept the submission by Council that the information disclosed about a person's employment outside of Council "is only of tangential relevance to their responsibilities as Council employees" when at the same time, Council acknowledged that the information is collected "to guard against any possible conflicts of interest...". In my opinion, maintaining such a Register is of fundamental importance in the public accountability of Council decision-making and the conduct of officers and employees of Council who may be involved in such decision-making. For those reasons, the weight to be afforded public considerations in favour of disclosure in the balancing exercise under the s 13 test is both significant and compelling.

[18]

Pecuniary Interests Register is "open access information"

The starting point for any consideration pertaining to the PI Returns is s 6 of the GIPA Act, which as set out above, provides for mandatory and proactive release obligations in respect of "open access information".
In relation to the issues associated with s 6 of the GIPA Act, the Information Commissioner submitted at [27]-[32] of her written submissions: 27. The Information Commissioner has identified the benefit of open access information in Fact Sheet, Open Access Information under the GIPA Act -Agency Requirements: … The mandatory public release of open access information under the GIPA Act promotes consistent and transparent information sharing practices across New South Wales agencies. It provides members of the public with an immediate right of access to important government information. In line with the object of the GIPA act, mandatory release of this information helps to foster responsible and representative government that is open, accountable, fair and effective. 28. The obligation for mandatory proactive release under section 6 is a compliance obligation on agencies. It therefore applies regardless of whether an application for information has been made under the GIPA Act: see Donnellan v Ku-ring-gai Council [2013] NSWADT 115 at [72]. What constitutes "open access information" in the GIPA Act is stipulated by section 18 which lists a range of government information, and relevantly includes the agency's policy documents (section 18(c)) and such other government information as may be prescribed by the GIPA Regulation as open access information (section 18(g)). ... 29. The GIPA Regulation places additional open access obligations on local councils with respect to information contained in prescribed records about local authorities (clause 1(1) of Schedule 1), including information contained in "returns of the interests of councillors, designated persons and delegates" (clause 1 (2) (a) of Schedule 1). Access to this information is to be proactively made available in accordance with the ways set out in clause 5 of the GIPA Regulation. 30. The information Commissioner's Guideline 1 (at [1.1]-[1.8]) describes the statutory regime for returns disclosing the pecuniary interests of councillors and designated persons, including the Model Code of Conduct For Local Councils in NSW 2020 (the Model Code) made under section 440 of the Local Government Act 1993 (NSW) and Part 8 of the Local Government Regulation 2005. ... 31. Guideline 1 (at [2.5]) confirms that the combined effect of the disclosure provisions in the GIPA Act and regulations is that the returns of interest must be made available on a council's website unless there is an overriding public interest against disclosure, or placing it on the web would impose unreasonable cost on the council. These statutory requirements facilitate the public interest in the information in the returns being made available to the public. 32. Councillors and designated persons may be required to disclose personal information in their returns (Guideline 1 at [3.4]. Consistent with the statutory requirements, Guideline 1 recognises that there may be circumstances where Council determines that there is an overriding public interest against disclosing the personal information (section 6 (1) GIPA Act)
I accept the correctness of the Information Commissioner's submissions to the matters under consideration on this review with respect to the Pecuniary Interests Register.
In relying on clause 6 of the s 14 Table, Council submitted that the provisions of ss 57 and 58 of the PPIP Act are enlivened. As I have found above in relation to Document 2 and when considering the reasons of the Tribunal in DRP, s 5 of the PPIP Act provides that the operation of the GIPA is not affected by the obligations under the PPIP Act, including ss 57 and 58. The provisions of the PPIP Act relied upon by the Council are not determinative of whether information should be released by Council. The issue remains a question of weighing the competing personal and private interests raised by ss 57 and 58, being the secrecy provisions of the PPIP Act raised by clause 6 of the s 14 Table, as a public interest consideration against disclosure and s 6 of the GIPA Act relating to the mandatory public release of open access information.
Neither ss 57 or 58 are an "overriding secrecy law" which are subject to a conclusive or absolute restriction on disclosure under Schedule 1 of the GIPA Act. The Information Commissioner referred me to the Tribunal's decision in Mannix v Department of Education and Communities [2014] NSWCATAD 35 at [5] which held that in the case of government information which is not covered by overriding secrecy laws, there is a public interest in favour of disclosure. Therefore, it is necessary to determine whether the public interest in favour of disclosure outweighs the considerations in clauses 3 (b) and 6 of the s 14 Table that are said by Council in the case of the PI Returns to enliven the secrecy provisions of the PPIP Act.
A decision-maker has to identify the secrecy provision and form an opinion about whether there is a public interest consideration against disclosure. If the secrecy provision provides a public interest consideration against disclosure, the decision-maker is then entitled to consider the secrecy provision in applying the s 13 test and making a decision. This was explained in the submissions of the Information Commissioner in the context of the decision of the Appeal Panel in Fraser v SafeWork NSW [2020] NSWCATAP 92 at [34]-[37].
In seeking to diminish the weight to be attributed to the open access information constituted by the PI Returns, Council submitted (as it did in relation to the Secondary Employment Register) that information such as the Pecuniary Interests Register was of only "tangential relevance" to its employees' public functions.
Such a submission by a local government agency in the context of information prescribed by Parliament as "open access information" by s 6 of the GIPA Act, should be rejected. Section 18 of the GIPA Act provides inter alia for the regulations to prescribe government information that constitutes open access information. Clause 5 of the GIPA Regulation 2009 (GIPA Regulation) reiterates the obligation on Councils to pro-actively make available open access information. The GIPA Regulation places open access obligations on local government authorities which specifically includes the matters the subject of the Pecuniary Interests Register, namely the "returns of the interests of councillors, designated persons and delegates": cl 1(2)(a) of Schedule 1.
I also reject the submission by the Council based on the evidence which I now discuss, that the impact on the "well-being" of those individuals whose information would be disclosed "outweighs the limited public interest" in providing the applicant with open access information because that information "has only of tangential relevance to Council employees' public functions." (my emphases)
In my view, there is a positive and high onus placed on an agency to establish by cogent and probative evidence that the personal and privacy considerations arising under ss 57 and 58 of the PPIP Act provide a relevant public interest consideration and not a mere personal or private consideration to operate against disclosure. I make that observation not only mindful of s 5 of the PPIP Act but this must be even more so where the disputed information is open access information and therefore subject to mandatory and pro-active release obligations imposed on a Council by s 6 of the GIPA Act and the GIPA Regulations.
I now discuss the nature of the evidence relied upon by Council in support of its submission that there is an overriding public interest against disclosure of the PI Returns comprising the Pecuniary Interests Register.
For the reasons which follow, I am not satisfied that the Council has established that ss 57 and/or 58 of the PPIP Act give rise to a public interest against disclosure by reference to any of the considerations relied upon by Council under s 14 of the GIPA Act.

[19]

Council's Evidence to Oppose Disclosure of the PI Returns

Exhibit HJ-1 of Exhibit C provided a second pro forma example of the type of correspondence sent by Council to potential third party objectors after these proceedings were commenced, seeking consultation with respect to the release of personal information included within the information sought by the applicant in the Pecuniary Interests Register.
This second type of pro forma letter went to 93 persons whose information was redacted by the Decision but who had not been consulted in relation to the Access Application prior to making the Decision: see paragraphs [36]-[37] of Exhibit C. The Council's written submissions stated that 111 individuals (not 93) were consulted.
Nothing would seem to turn on this discrepancy. Both the Council's written submissions and Ms Jamadar's affidavit stated that responses were received by 42 persons: 4 consented to the release of their information and 38 provided written objections.
According to Council's submissions, all 111 consultative letters (or 93 if Exhibit C is correct) concerned "the disclosure of their personal information in the [PI] returns".
As explained above in Council's submissions, the inference made by Council in its Decision and which it submitted to the Tribunal on review, was that in the absence of any response from those to whom Council issued letters, that person should be deemed to have not consented to disclosure. I have earlier rejected that approach as being flawed.
In my view, and in the absence of other known circumstances, that approach applies the wrong inference in the context of the GIPA Act which provides a presumption that there is a public interest in favour of disclosure: s 12. A presumption such as that provided by the GIPA Act requires evidence in rebuttal of that presumption: not mere inference. It may be that a small number did not receive the request but given the presumptions in the GIPA Act and the weighting in favour of the disclosure of government information discussed above, the Decision in so far as it was based on such an assumption and by which it equates silence with a positive objection, is in my opinion incorrect and not sufficient to override the statutory presumptions in favour of disclosure.
Section 54 of the GIPA Act obliges an agency to consult with individuals in the circumstances set out in s 54 which relevantly provides: 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). [Note: The requirement to consult extends to consultation with other agencies and other governments. See the definition of "person" in Schedule 4.]
Section 54 is a consultative and procedural provision and does not of itself provide a ground against disclosure in the case of an objection by a person - and about which s 54 is silent. I accept that depending on the circumstances of the particular case, the objections of individuals may be relevant and accorded varying degrees of weight.
However, even taking the lower figure of 93 notifications, more people did not respond at all (51) than provided positive objections (38). In my view, Council has failed to assess the relative weight to be afforded to objections received by a person and those instances where in numerous cases there had been no response at all. As I have found earlier, these factors cannot be treated equally as Council has sought to do. At the very least, in the first instance, Council could have sought to only redact the information of the 38 persons who did object. In my view, as I have stated earlier, Council did not properly explain why it did not adopt that far more circumscribed approach to the redaction of information in the PI Returns.
In relation to the 38 objections to the release of the Pecuniary Interests Register received by Council, I have discerned three broad types of objection identified in Council's written submissions, as follows: 1. Some individuals said that "their particular private circumstances result in them having a greater than usual need to protect their privacy and personal information" (which I have described as the "Private Circumstances Objection"); 2. Some individuals expressed their concern about "personal information being disclosed to an individual who is not known to them for purposes that are not known to them" (which I have described as the "Unknown Person and Unknown Purpose Objection"); 3. Certain Council employees based their objections "on previous conduct by the applicant. If their personal information is disclosed to Mr McEwan over their objections, then this will cause these employees a significant degree of concern and distress which will affect their well-being" (which I have described as the "Personal Concern and Distress Objection").
Each of the three types of objections described above was referenced in Council's submissions by examples of correspondence received from the objectors and contained in Confidential Exhibit CA. I have carefully reviewed and considered that confidential evidence in the context of Council's submissions (including its confidential oral submissions).
Council submitted in its written submissions: If the Tribunal is satisfied that the person's well-being would be affected, s 58 of the PPIP Act would ordinarily require it to suppress the information unless it of the opinion that the public interest test in maintaining public access to the information outweighs any individual interest in suppressing it.
And as referred to earlier: The impact on these individuals' well-being outweighs the limited public interest Mr McEwan being provided with the personal information of a large number of Council employees. As with the secondary employment register ... the information within [the pecuniary interests register] has only tangential relevance to Council employee's public functions."

[22]

Personal Concern and Distress Objection

As to the third category of objections, Council's submissions referred to the following pages of Confidential Exhibit CA: p47 and pp88-92. I note here that the Tribunal's copy of Confidential Exhibit CA does not contain pp88-92. Therefore, there was only 1 specific example referenced in Confidential Exhibit CA at p47 relating to this category of objection.
The objection at p47 said no more than words to the effect that "I maintain my previous objection" to the release of confidential and private business/commercial information.
Since pp88-92 are not in the Tribunal's copy of the Confidential Exhibit CA, and it may be a referencing error, I have taken it upon myself to consider some of the other communications from objectors contained in that Confidential Exhibit but not specifically referred to in Council's written submissions, although I was taken to some of these during Council's oral submissions in the confidential session. These additional pages of Confidential Exhibit CA are pp10-12; 14-16, 30-31 and 74-76.
Those objections may be summarised as follows: 1. objections based on the private and confidential nature of the information; 2. two of the objections were written as letters to the Council's external solicitors in identical terms, which somewhat diminishes their weight as they are not necessarily the product of the particular objector's individual concerns. In any event, both of these letters went no further than making a series of mere objections to disclosure without providing any substantive reasons to support those objections; 3. an objection based on the detrimental impact on Council's recruitment of staff in the future if personal information could be released to the general public. I interpolate here to note that Council did not rely upon that ground as a public interest consideration against disclosure; 4. a "preliminary" objection, requesting more time to detail the objection. [NOT FOR PUBLICATION] 5. [NOT FOR PUBLICATION]

[23]

Assessment of the Evidence as to "well-being"

The seriousness of the submission by Council based on concerns for the "well-being" of objectors if their personal information was disclosed, requires me to be satisfied that the evidence in support of such a submission is of sufficient probative weight before I accept it, particularly when it is relied upon to outweigh and rebut the strong legislative and evidentiary presumptions in favour of disclosure in the GIPA Act.
Council submitted that the disclosure of "some" of the redacted information "could" reasonably be expected to contravene ss 57 and/or 58 of the PPIP Act Unlike the GIPA Act, s 57 of the PPIP Act imposes an obligation on the agency to inquire of the person who is applying for access to personal information in a public register to provide a statutory declaration particularising "the intended use" of any information obtained. Council did not provide any evidence of having sought such particulars of the applicant required under s 57 of the PPIP Act.
In relation to s 58, the agency is required to be satisfied that the "safety or well-being of any person would be affected by not suppressing the personal information as requested" (my emphasis) and imposes an obligation on the agency (ie: "must") to suppress the information. Even putting aside any consideration of s 5 of the PPIP Act to the general effect that the GIPA Act overrides the operation of the PPIP Act as discussed above, taking all of the above evidence at its highest, there is not a scintilla of evidence that the "safety or well-being" of any person would or might be affected or impacted if the applicant accessed the disputed information presently redacted in the documents released to him and reproduced in Exhibit D.
I acknowledge that Council did not raise the issue of any person's "safety" and limited it submissions to the issue of "well-being." Council also provided a definition of "well-being" which I adopt as being uncontentious: "a good or satisfactory condition of existence; welfare". As Council submitted, that definition is broader than "harm" and "serious harassment or intimidation" which are used in the GIPA Act: citing the discussion in DTB v Commissioner of Police, NSW Police Force [2019] NSWCATAD 114 [77]-[82].
The submissions of Council as I understand them is that the considerations in cl 6 of the s 14 Table arise because disclosure of personal information would cause a contravention of s 58 of the PPIP Act in that it would affect the "well-being" of one or more objectors. There is a two-step process in s 58 because even if that is established to the satisfaction of a decision-maker, s 58 permits disclosure "if the public interest in maintaining public access to the information outweighs any individual interest in suppressing it."
The evidence does not disclose any objective reasons or circumstances to be satisfied that the well-being of any individual is likely to be affected by the release of the disputed information redacted by Council. The evidence does not require consideration of the second step, but even if it did, as I have explained, I am satisfied that the public interest in maintaining public access to the information outweighs any individual interest, which might be said to constitute a public interest, in allowing Council to suppress it.
The applicant submitted that if the Council wanted to raise the issue of the "well-being" of objectors and if the effect of the confidential evidence refers to objector's concerns about possible harassment by the applicant as a valid consideration against disclosure, then it was incumbent on Council to squarely raise this and rely upon cl 3 (f) of the s 14 Table. Clause 3 (f) of the s 14 Table provides a public interest consideration against disclosure if disclosure could reasonably be expected to "expose a person to a risk of harm or of serious harassment or serious intimidation". Council did not rely upon this consideration either in its Decision or on the present review by the Tribunal.
I accept the applicant's submissions in this respect. Inexplicably, Council did not seek to rely upon this consideration that could have arguably have been raised on the basis of the submissions made by Council. In saying this, I should not be taken to have in any way accepted any evidentiary basis for the submissions made by the Council that a person or person's well-being may be impacted or affected by the release of the personal information it has sought to withhold from the applicant.
Even accepting (for present purposes) that a few individuals have been the subject of sustained and even unsubstantiated complaints made by the applicant and/or his wife Ms Webb about them in the performance of their public duties in the recent past, there is no credible evidence or any substantiated allegation that those complaints have had an impact on that person's "well-being" or that the release of the redacted information would have such an effect on that person's well-being. Nor is there any evidence as to the precise nature of these complaints and allegations. Given the opportunity for Council to rely on confidential evidence, there was no reason of which I was made aware that Council could not have sought to obtain and rely on confidential evidence from certain individuals to provide some substance to the matters associated with the purported impact of the release of their personal information on any individual's well-being. Also, the mere fact, that the complaints (whatever their nature) were found to be unsubstantiated, which I will accept for present purposes, it does not allow me to draw the inference on the evidence before me that they were therefore vexatious, malicious or intended to harass a person.
Having reviewed the letters and actual objections raised by those who responded to Council's inquiries with respect to the PI Returns, I accept the applicant's submission that there is no evidence that Council advised any potential third party objector that the nature of the requested information was open access information mandated for release and that third party objectors had the right "to seek an administrative review, as a response to Council complying with its statutory obligations [ie if it disclosed that information]".
In my view, that is an additional consideration in my assessment of the weight to be attributed to those objections received by Council, since I cannot be satisfied that all or any of the objections received by Council were fully informed objections.
By virtue of s 5 of the GIPA Act, the GIPA Act relevantly overrides the provisions of the PPIP Act.
As set out above, the onus is on the agency to demonstrate that disclosure could reasonably be expected to have the nominated effect (McKinnon v Secretary, Department of Treasury [2006] HCA 46 at [61]). This is to be determined as a question of fact based on real and substantial grounds (Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [41]; also Leech v Sydney Water Corporation [2010] NSWADT 298 at [25]).
Mere assertion is not a sufficient evidentiary basis to establish a serious matter against a person, particularly where that person is not afforded the opportunity of him or herself responding to the allegation and these matters are raised to oppose a legitimate request for access to public information going to the heart of the accountability of local government.
I am required to ensure that the evidence relied upon by Council to withhold disclosure actually does support its submission that it should be withheld due to its impact on the "well-being" of those who have objected to its disclosure. It is a serious matter to make in a submission against a person, particularly on behalf of a Local Government authority, without sound reasons and probative evidence.,
I find that there is no evidentiary basis to support the submission made by Council that the well-being of any person may be impacted by the release of the disputed information in the PI Returns such as to outweigh the public interest considerations in favour of disclosure.
Council has not established in its evidence that ss 57 and/or 58 of the PPIP Act give rise to any public interest consideration against disclosure. I am not satisfied that either the Secondary Employment Registers or Pecuniary Interests Register are of "tangential relevance to Council employee's public functions". In my view, there are fundamental considerations underlying the importance of access to such registers to ensure the public accountability of Council officers, particularly the PI Returns which Parliament under the GIPA Act and the Executive in Council has specifically prescribed in the GIPA Regulations as being "open access information".

McEwan v Port Stephens Council

At a glance

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Judgment (26 paragraphs)

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Legislation Cited (6)

Cases Cited (19)

Cited By (1)