Newton v Newcastle City Council

NCAT Administrative and Equal Opportunity|2022-01-14

Introduction

This is an application by John Newton (the applicant) under section 55 of the Administrative Decisions Review Act 1997 (ADR Act) for an administrative review of a decision made by the delegate of Newcastle City Council (the agency) on 10 September 2021 under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) to refuse his access request for a non-redacted copy of a 'customer request', styled by the agency as a "complaint" (the complaint), which was submitted to the agency by email via an on-line portal included on its web site. The complaint contains objections to demotion and construction work the applicant was carrying out in the back yard of his residence. Specifically, the applicant wants to know the name of the person who made the customer request for the agency's intervention (the complainant). This application was received by the Registry on 1 October 2021. The applicant also applies for an order pursuant to section 60 of the Civil and Administrative Tribunal Act 2013 (NCAT Act) that would require the agency to pay his costs of the proceedings.
For reasons set out following, the Tribunal has affirmed the agency's decision not to release the name of the complainant to the applicant. There is an overriding public interest against the disclosure of this information as disclosure could reasonably be expected to prejudice supply to the agency of confidential information that facilitates the effective exercise of the agency's functions and prejudice the effective exercise of the agency's functions. In short summary, it is likely to discourage members of the public from notifying the agency of potential violations of development controls and public health and safety concerns. This is not in the public interest.
The Tribunal has made no order as to costs. The applicant has not been successful in his application, and in any event, there are no special circumstances that would justify an award of costs in the circumstances of this case.

Determination process and material considered

This administrative review has been conducted on the papers without a hearing with the consent of the parties pursuant to s 50(1)(c) of the NCAT Act. In this respect I am satisfied that the application can be satisfactorily determined on the documents that have been submitted by both parties. I have considered the following material:

Applicant 1. Administrative Review Application Form and its attachments, filed on 1 October 2021; 2. Statement of John Newton dated 29 November 2021. This statement has the following annexures: 1. "JN001": City of Newcastle: Notice of Invalid Application, dated 11 February 2021; 2. "JN002": City of Newcastle: NOTICE OF DECISION to release information, dated 29 March 2021; 3. "JN003": City of Newcastle: INTERNAL REVIEW - NOTICE OF DECISION, dated 4 May 2021; 4. "JN004": Information and Privacy Commission: Review Report under the Government Information (Public Access) Act, dated 30 July 2021; 5. "JN005": City of Newcastle: NOTICE OF DECISION - NEW DECISION, dated 10 September 2021; 6. "JN006": solicitor correspondence to the applicant on behalf of Garry and Carol Brown dated 17 May 2021 regarding the retaining wall and three photographs of the retaining wall. 1. Submissions filed on 29 November 2021; and 2. Further submissions and an application for costs, filed on 13 December 2021.

Respondent 1. Statement of Anne Merle, Privacy and Information Coordinator, Newcastle City Council, dated 15 November 2021. This statement annexes: 1. "A": a copy of a third party objection to the release of their name and contact details (this annexure is Confidential Information - a wholly redacted copy was supplied to the applicant); 2. "B": Notice of Decision - New Decision dated 10 September 2021 concerning the applicant's access request; 3. "C": City of Newcastle Privacy Management Plan 2018; 4. "D": Information and Privacy Commissioner: GIPA Guideline 4: Personal Information as a public interest consideration under the GIPA Act, November 2018 5. "E": A copy of further objections received from the third party objector to the release of their name and contact details (this annexure is Confidential Information - a wholly redacted copy was supplied to the applicant) 6. "F": A copy of the complaint PH2021/00215 as it was released by the agency to the applicant on 1 April 2021 with the complainant's personal information redacted; 1. A marked up version of PH2021/00215 (the complaint) showing the disputed information, being the name of the complainant (this is Confidential Information); 2. Statement of Anne Merle, Privacy and Information Coordinator, Newcastle City Council, dated 10 December 2021. This statement annexes: 1. "A": Information and Privacy Commission Guideline 5: Consultation on public interest considerations under section 54 and section 54A of the Government Information (Public Access) Act 2009 2. "B": Information and Privacy Commission Fact Sheet: Why consult third parties. 3. "C": Information and Privacy Commission: Applying for complaints information. 1. Submissions in reply dated 10 December 2021 2. Summary of legal arguments dated 10 December 2021 (filed on 13 December 202)

I note that the directions issued by the Tribunal at the case conference conducted on 1 November 2021 required the agency to notify the complainant of their right to participate in the proceedings. I am satisfied that the agency advised the complainant of this right. Annexure "E" of Anne Merle's Statement of 15 November 2021 is the complainant's response to this advice. In that response they indicate an intention to rely on the agency to present their views, and not to personally participate.
By email letter to the Registrar dated 15 December 2021 the agency's representative objected to the submission and costs application filed by the applicant on 13 December 2021 stating that they should not be taken into account, or in the alternative, should be given little weight because the Tribunal's procedural directions of 1 November 2021 did not provide scope for these submissions and application to be made.
I have determined to accept the applicant's submissions and costs application filed on 13 December 2021 despite this objection for two reasons.
First, in the cover letter to his submissions filed on 29 November 2021 the applicant reserved his position on the question of whether the Tribunal could dispense with a hearing of the application until he had the opportunity to consider all of the evidence and submissions relied upon by the agency. Generally speaking, a party to proceedings has a right to a hearing of the dispute, which includes the opportunity to present their own case and contest the opposing party's evidence. That right cannot lightly be dispensed with, and where it is dispensed with, both parties must be provided with a reasonable opportunity to have their submissions considered: s 38(5)(c) of the NCAT Act.
At a hearing, an applicant would be afforded the opportunity to reply to the respondent's case in chief. In his submissions of 13 December 2021 the applicant indicates that he consents to a hearing being dispensed and he also responds to the agency's submissions in chief. He should be permitted to do so because such an opportunity would have been afforded to him had there been a hearing of the application.
Second, a party to a proceeding has a subsisting right to apply for their costs of the proceedings which continues until after the substantive application is determined. The Tribunal cannot prevent the applicant from exercising that right. Such an application in this case falls to be determined under s 60 of the NCAT Act. In its objection, the agency has made a submission in response to the applicant's costs application. It is in the interests of efficiency and finality that the applicant's costs application is determined with the substantive application.

Background

The applicant is the registered proprietor of a residential block of land in a Newcastle suburb on which is situated a home where he lives with his family. At the material time for this dispute one of the boundary fences to the block incorporated a retaining wall which was subject to subsidence. In or about early January 2021 the applicant commenced work to rectify the defective fence and retaining wall which involved demolition of the wall and the construction of new structures. He did so without first obtaining development approval for this work from the agency in circumstances where such approval was required.
A person (the complainant) who observed this work being carried out made what is styled as a 'customer request' (now referred as the complaint) to the agency on 17 January 2021 via an on-line portal on the agency's web site which reported the work being carried by the applicant. The complaint contained the complainant's name, address, email address, and telephone number, as well as details of the complaint, being the address at which the work was being carried out, the date and time the work was observed, and the following "general information": I am concerned about construction at [specified address]. A large retaining wall is being conducted (sic, constructed) after the removal of an existing one, several other structures are being erected and also a pool has been removed. Construction has removed a fence allowing access from the street to a pool in a neighbouring property and nothing has been put in place to prevent children from accessing the pool.
A City of Newcastle compliance officer attended the site in response to this customer request on 19 January 2021 and conducted an inspection. As a consequence of that inspection the compliance officer issued the applicant with a notice to cease the work and obtain development approval for the work that he proposed to carry out.
In order to secure the pool area until works could be approved and completed the applicant was obliged to hire a temporary fence incurring a weekly hire fee in doing so.
On 17 May 2021 the applicant received a letter from a solicitor on behalf of the owners of an adjoining block of land (the adjoining owners) foreshadowing an application to court in relation to the applicant's removal of the retaining wall which it is stated had caused damage to the adjoining owners' land, if that damage was not rectified by the applicant.
The applicant contends that in September 2021 he discovered after heavy rain that the cause of the damage to the retaining wall was missing and damaged storm water pipes on the adjoining owners' land which requiring rectification by the adjoining owners before the work associated with the reinstatement of the retaining wall and fence could be completed. The adjoining owners' remedial work had not been completed as at 29 November 2021 when the applicant made his statement.
The applicant is annoyed by the delay caused to his reinstatement of the retaining wall and fence caused by the complaint and by the costs he continues to incur in relation to the temporary pool fence. The adjoining owners deny that they made or caused the complaint to be made to the agency, but by his access application the applicant seeks to discover whether that is true or not, stating that it goes to their 'credibility and reliability'. He believes this will be relevant in any litigation instituted against him by the adjoining owners.

The reviewable decision

This application arises from an access application the applicant made to the agency pursuant to the provisions of Part 4 of the GIPA Act on 5 February 2021 (the access application). That application sought access to "all the information relating to [a particular address]". The agency's Privacy and Information Coordinator (the delegate) determined that this was an invalid request because of its breadth and gave notice to the applicant to this effect by letter dated 11 February 2021.
As a consequence of discussions between the delegate and the applicant, the applicant later amended his access application to request "any development and building approvals and approved plans since 1990, and the complaint PH2021/00215" with respect to the particular address. By Notice of Decision issued to the applicant on 29 March 2021, the delegate determined this amended application substantially in the applicant's favour, granting him access to building and development approvals and to a copy of the complaint pursuant to s 58(1)(a) of the GIPA Act, but with the name and contact information for the complainant redacted. The decision to redact the name of the complainant and that person's contact information was expressed to be an interim decision made subject to consultation with the complainant which had not been completed at that point.
By Notice of Decision issued to the applicant on 1 April 2021 the delegate further determined the access application by refusing to grant access to the name and contact information of the complainant pursuant to s 58(1)(d) of the GIPA Act. She did so in circumstances where the complainant had not responded to her attempt at consultation by that date (the original decision).
The applicant sought an internal review of the original decision by an application made on 7 April 2021. This review was conducted by the agency's Manager, Legal. By Notice of Decision issued to the applicant on 4 May 2021 the Manager, Legal determined to refuse the applicant's request for access to the complainant's name and contact information. At section 4.4 of her Internal Review Report, the Manager, Legal sets out the outcome of consultation that was undertaken with the complainant in the course of the Review as follows: "the complainant did not object to the release of their name but did object to the release of their other personal information (address and contact details)".
On 6 May 2021 the applicant sought an external review of this decision by application to the Information Commissioner under s 89 of the GIPA Act. In a report issued on 30 July 2021 the Information Commissioner recommended pursuant to section 93(1) of the GIPA Act that the agency make a new decision having regard to regard to the observations made at paragraphs [16] to [32] which are summarised as follows at paragraphs [52] to [54] of the external review report: 52. I have considered the Agency's application of the public interest test to the name of the affected individual and I am not satisfied that the Agency has justified that there is an overriding public interest against disclosure of this information. 53. The Agency does not provide any reasons to explain why there is an overriding public interest against disclosure of the affected individual's name in circumstances where that individual expressly did not object to the disclosure of their name. While the Agency has provided further details for its reasons why it believes the name should not be disclosed, as this information does not form part of the notice of decision, it cannot be taken into account when considering if the Agency's decision is justified. 54. Separately, I am satisfied that the Agency's decision that the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure is justified regarding the contact details.
The agency accepted the Information Commissioner's recommendation to reconsider its original decision and to make a new decision pursuant to section 93(2) of the GIPA Act. By Notice of Decision issued to the applicant on 10 September 2021 the delegate made a new decision in relation to his amended access application refusing to provide him with access to the complainant's name and contact information pursuant to section 58(1)(d) of the GIPA Act on the basis that there was an overriding public interest against such disclosure (the new decision). It is this decision that is now the subject of this administrative review.
The relevant contents of that decision for the purpose of this administrative review are set out following: … 6.5 Balancing the public interest test I have reviewed the relevant public interest considerations in favour of and against disclosure of the information sought. (A) PREJUDICE EFFECTIVE EXERCISE OF AGENCY'S FUNCTIONS - section 12 Table Clause 1(f) and PREJUDICE SUPPLY OF CONFIDENTIAL INFORMATION - section 14 Table Clause 1(d) … CN [City of Newcastle] has regulatory and compliance functions under a number of legislative instruments, including the Local Government Act 1993 (LGA) and Environmental Planning and Assessment Act 1979 (EPA Act). These functions include compliance and enforcement functions, and rely on public participation and involvement including through members of the public reporting possible issues to CN. As evidenced by the objection received in this instance, members of the public are less likely to report matters to CN if they believe their personal information will be disclosed. If members of the public do not report matters to CN, CN's functions, including those related to compliance and enforcement, would be adversely impacted (table clause 1(f)) … I am satisfied the identity of the complainant was obtained "in confidence" in order for CN to conduct its compliance and enforcement functions. As noted above, CN relies on members of the public bringing matters to its attention to assist investigating potential breaches of the law. CN's email, web and mail systems record the contact details of those reporting issues or making complaints. In order to ensure such matters continue to be reported, CN generally keeps the personal information of complainants confidential to ensure the future supply of confidential information (names and contact details of complainants) is not affected. There is nothing in the making of the complaint that suggests that the personal information of the complainant would be disclosed to any party outside of CN (table clause 1(d)). As part of this fresh decision, consultation was undertaken with the complainant, and they objected to the disclosure of their information. This demonstrates that members of the public have an expectation that complainants' identity and contact details would be kept in confidence and failure to maintain confidentiality could reasonably be expected to result in members of the public less likely to report matters to CN. I am satisfied that the provision of confidential information facilitates the effective exercise of CN's compliance and enforcement functions (including investigate complaints received), and the provision of this information is relied upon by CN to investigate and enforce compliance with relevant legislation connected to its functions. Further, I am satisfied that the prejudice to the supply of that function could reasonably be expected to prejudice the effective exercise of CN's compliance and enforcement functions. I have given much weight to these considerations against disclosure. (A) DISCLOSURE OF PERSONAL INFORMATION - section 14 Table Clause 3(a) … In accordance with the Information Commissioner's Guideline and Clause 4(1) of Schedule 4(1) of Schedule 4 of the GIPA Act, I have identified the following personal information contained in complaint PH2021/00215: Name, address, email address and telephone number of complainant This information was given to CN to assist us perform its regulatory functions and investigate the complaint. I have no evidence that this personal information is known to you, and I am satisfied that it would be revealed if disclosed in response to your GIPA application. CN further consulted with the complainant in relation to the release of their personal information, and they objected to the release of both their name and contact information. I have therefore given greater weight to this consideration against disclosure. Applying the public interest test I have considered the disclosure of the complaint itself would inform the public about the operations of CN, however revealing the personal information (name and contact details) of the complainant would not further inform the public about the operations of CN. Accordingly, I did not give any weight to this consideration in favour of disclosure. Regarding the personal factors of the application, I note that details of the complaint itself were previously provided to you as the owner of the property and knowing the name or contact details of the complainant will not assist you in understanding the issues further. You advised this information would allow you to discuss any concerns with the complainant, and as a result, I have given this consideration for disclosure limited weight. The complainant, however, did not wish to be contacted by you and objected to the release of their personal information. I have taken this into account and considered that in the circumstances, providing you with the complainant's personal information would be inappropriate where the complainant chose to approach CN to raise their concerns, rather than you. Also, revealing the personal information of the complainant, and complainants in general, is likely to prejudice the functions of CN and prejudice the future supply of confidential information to CN. For these reasons, I have given much weight to the considerations against disclosure. On balance, I consider that the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure of such information. As a result, I do not intend to release the information sought under this application. ….
The applicant does not seek administrative review of the agency's decision not to release the complainant's contact information (address, email address and telephone number). His application is limited to the agency's decision to refuse to release to him the name of the complainant.

Jurisdiction

By operation of section 9 of the ADR Act, section 100 of the GIPA Act confers jurisdiction on the Tribunal to conduct administrative review under the ADR Act of "reviewable decisions" made by "an agency" as these are identified under section 80 of the GIPA Act. A decision to refuse to provide access to information in response to an access application is a reviewable decision: section 80(d). In this respect there is no issue that the agency is "an agency" for the purposes of the GIPA Act, it being a "local authority" within the meaning of section 4(1)(e) and Schedule 4 of the GIPA Act, being a "council" within the meaning of the Local Government Act 1993.
The time for the making of an application for administrative review of a reviewable decision under the GIPA Act is governed by section 101 of that Act. Relevantly to the circumstances of this case, an application may be made at any time up to 40 working days after notice of the decision to which the review relates is given to the applicant: section 101(1). In this case, the notice of the reviewable decision was given to the applicant on 10 September 2021 and this application was made on 1 October 2021. It has therefore been made within the time period permitted.

The Tribunal's role in an administrative review

In determining an application for administrative review under the ADR 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 any relevant factual material and any applicable written or unwritten law: s 63(1). 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: s 63(2).
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: s 63(3).

The GIPA legislative scheme

The starting point for analysis of the legislative scheme to be applied in this administrative review is found in the object of the GIPA Act in section 3 which states: (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising an encouraging the proactive release of government information by agencies, and (b) by giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
This object is amplified with a statutory command, contained in section 3(2) which provides: (2) It is the intention of Parliament - (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest possible cost, access to government information
The object of the GIPA Act is operationalized by various 'machinery' provisions of that Act. Section 5 establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. Section 9(1) provides that applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure. Section 11 provides that the GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the "overriding secrecy laws" set out in Schedule 1, in relation to which it is conclusively presumed that there is an overriding public interest against disclosure of the information.
Section 12 of the Act provides that there is a general public interest in favour of the disclosure of government information that is not covered by overriding secrecy laws. Section 12(2) provides that the categories of public interest considerations in favour of disclosure are not limited, but include, relevantly: (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; and (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.
Section 13 contains a public interest test. It provides that there is an "overriding public interest against disclosure" of government information for the purposes of the GIPA 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.
Section 14(1) of the Act provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of any government information described in Schedule 1. Section 14(2) provides that the public interest considerations set out in the Table to section 14 are the only other public interest considerations against disclosure that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. The Table sets out 7 categories of public interest considerations against disclosure and 35 sub-categories.
As set out in the agency's notice of decision, the public interest considerations at issue in this review are found in Table 14 clauses 1(d), 1(f), and 3(a), which provide respectively: 1. Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally) - … (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions … (f) prejudice the effective exercise by an agency of the agency's functions … 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, …
In this respect the term "personal information" is defined in Schedule 4, clause 4 of the GIPA Act, relevantly, as follows: 4. Personal information (1) In this Act personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion. (2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics. …
The meaning of the word "reveal" for the purpose of clause 3(a) is found in Schedule 4, clause 1 of the GIPA Act. "Reveal" information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).
Section 15 of the GIPA Act sets out the principles that apply when considering whether there is an overriding public interest against disclosure. It provides: 15 Principles that apply to public interest determination A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles: (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of the information.
Section 55(1) of the GIPA Act provides that 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 "personal factors of the application" into account, which are: (a) the applicant's identity and relationship with another person; and, (b) the applicant's motives for making the access application; and, (c) any other factors particular to the applicant. Section 55(2) provides that these personal factors may also be taken into account as factors in favour of providing the applicant with access to the information.
Section 105(1) of the GIPA Act provides that in any administrative review conducted by the Tribunal under Part 5, Division 4 of the Act concerning a decision made by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by section 105. None of those exceptions are relevant in this case.
In relation to the parties' contentions it is necessary to note section 54 of the GIPA Act which concerns consultation on public interest considerations. It 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 … (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.
It is also necessary to note that s 58 of the GIPA Act sets out how an access application may be decided. This includes relevantly: 58 How applications are decided (1) An agency decides an access application for government information by: … (d) deciding to refuse to deal with the application (see section 60) … In this respect, section 60 relevantly provides: 60 Decision to refuse to deal with application (1) An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason): … (e) the agency reasonably believes the applicant, or a person acting in concert with the applicant, is: (i) a party to current proceedings before a court, and (ii) able to apply to that court for the information.

Applicant

The applicant contends that the correct application of the public interest test required by section 13 of the GIPA Act will result in a determination that the correct and preferable decision is that he be provided with access to the complainant's name. In this respect he places emphasis on the policy of the GIPA Act which he contends requires the public interest test to be applied on a case by case basis in the context of an explicit presumption in favour of disclosure. He refers to what he contends is the agency's obligation to provide "proactive" and "open access" to information. He contends that the public interest considerations against disclosure relied upon by the agency in this case should be given little weight for the following reasons.
First, the complainant did not object to the release of their name when consulted for the purposes of the original decision, and only did so when they were consulted again eight months later for the purpose of the new decision. In this respect it is submitted that the complainant was influenced to object to the release of their name by the agency so as to support its position and that it is not a genuine objection of complainant themselves.
Second, and relatedly, he contends that no prejudice to the agency's functions has been made out because the complainant did not originally object to their name being released, and by implication, the potential disclosure of their name had no bearing on their decision to make their original complaint. He also submits that he has no further intention to carry out any development on his land and that as a consequence there would be no occasion for any complaint about him in future that would engage the agency's functions in relation to development control.
Third, he submits that the fact that the contents of the complaint have been released to him is not a relevant consideration in the application of the public interest test concerning whether the complainant's name should be released. He contends that the agency has inappropriately attributed weight to this consideration.
Fifth, he submits that the agency has failed to explain why there is an overriding public interest against the disclosure of the complainant's name. He relies on what is said about this in the External Review carried out by the Information Commissioner, which he submits the agency has failed to properly take into account.
Sixth, he submits that the complainant would not be deterred from making future complaints to the agency because if they did have a genuine concern about the potential disclosure of their name, such a complaint could be made anonymously. He submits that this is also true for any other member of the public who did not want their identity disclosed.
The applicant is critical of the fact that the new decision was completed by the same person, the agency's Information and Privacy Officer, who completed the original decision. He contends that this gives rise to an apprehension of bias. The applicant also makes various submissions that are critical of the Information and Privacy Officer's experience and skills in dealing with access applications.

Agency

The agency submits that the delegate's decision is the correct and preferable decision for the reasons the delegate states in her Notice of Decision. It submits that the delegate correctly applied the public interest test in the specific circumstances of this case in arriving at her determination to refuse access to the complainant's name by balancing the considerations for and against disclosure of the information, while considering the personal factors of the application and the objection of the third party.
The agency submits that the delegate determined the access request in accordance with the provisions of Part 4 of the GIPA Act, which is distinct from the open access provisions found in Part 3 of that Act upon which several of the applicant's submissions are predicated. It contends that the delegate considered the observations contained Information Commissioner's External Review report in arriving at her determination and specifically addressed the criticisms made about the original decision in section 6.5 of the new decision. It further submits that the delegate's "understanding of Council's regulatory and compliance functions, complaint systems and how those functions may be prejudice should be preferred to the applicant's unsupported assertion that the release of personal information of complainants provided to Council in confidence would not prejudice Council's functions".
With respect to the prospective litigation between the applicant and the adjoining owners which the applicant refers to in his statement as a personal factor that ought to be taken into account, the agency contends that the applicant did not make any such submission to it before the new decision was made. It also submits that had such a submission been made the agency would have had grounds under s 60(1)(e) of the GIPA Act to refuse the access request because the applicant could apply to the court for the information sought if it was relevant in that litigation. Additionally, the agency submits the applicant's dispute with the adjoining owners is a private dispute, or a "private interest", that is not relevant to the public interest test to be applied in determining if access to the information sought is to be granted.
The agency contends that the fact that a non redacted copy of the complaint, except for the complainant's name and contact information, was provided to the applicant is a relevant consideration that was correctly taken into account by the delegate in her consideration of the personal factors of the application.
The agency rejects the applicant's criticisms of the Information and Privacy Coordinator's experience and skills. It submits that she was entitled by operation of s 93(4)(a) of the GIPA Act to make the new access determination and the fact that she did so could not reasonably lead to an apprehension that she was biased against the applicant. It contends that the applicant has not pointed to any interest (financial or other) that the Information and Privacy Officer had in relation to the outcome of the access application that could reasonably give rise to an apprehension of bias.
The agency submits that it was required by section 54 of the GIPA Act to consult again with the complainant in the course of its reconsideration of the access request. It denies that the delegate influenced the complainant to alter their position in relation to the release of their name. It contends that the complainant's objection was properly considered by the delegate in reaching her access determination.

Consideration

At the outset it is appropriate to observe that this administrative review involves reconsideration of the applicant's access application on its merits to determine what the correct and preferable decision is in all the circumstances of the case. The applicant's criticisms of the delegate's skills and experience, and his allegation of apprehended bias, are addressed by this reconsideration and will not otherwise be the subject of specific comment.
The application of the public interest test contained in section 13 of the GIPA Act requires a staged approach to determine if there is an overriding public interest against the disclosure of government information: Flack v Commissioner of Police, NSW Police [2011] NSWADT 286; Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [23]. It involves: 1. identifying the public interest considerations in favour of disclosure; 2. identifying the public interest considerations against disclosure; 3. attributing weight to each consideration for and against disclosure; and then: 4. determining where the balance lies between these competing public interests.
In Rock v Legal Aid NSW [2021] NSWCATAD 308 at [19] SM Montgomery observed that the term "public interest" is not a defined or fixed concept citing with approval the following passage from Director of Public Prosecutions v Smith [1991] VR 63: The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and the well-being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals.
Nevertheless, a private interest may be co-extensive with the public interest, but where this is the case, it is the public interest, as distinct from the private interest, which is to be considered when balancing the competing interests in disclosure: JY v Commissioner for Police (2008) NSWADT 306 at [55].
Balancing the competing public interest considerations is "a question of fact and degree, requiring the weighing of competing matters, and a task that is not amenable to mathematical calculation": Hurst v Wagga City Council [2011] NSWADT 307 at [70]. It requires broad value judgements to be made having regard to the objects of the legislation, the general presumption in favour of disclosure of government information, and the principles set out in s 15 of the GIPA Act: Transport for NSW v Searle [2018] NSWCATAP 93 at [104]

Public interest considerations in favour of disclosure

As set out above, the public interest considerations in favour of disclosure are not limited, but the starting point is that there is a general public interest in the disclosure of government information (section 12(1) of the GIPA Act).
In her decision of 10 September 2021 the delegate of the agency identified one public interest consideration in the s 12(2) examples, and no other additional consideration, in favour of disclosure. The s 12(2) example was that disclosure of the complainant's name could reasonably be expected to inform the public about the operations of council, in particular, its policies and practices for dealing with members of the public (the s 12(2)(b) consideration). The delegate does not explain how this would be the case, and nor is that apparent to me. Nor can I see that any of the other s 12 examples of public interest considerations in favour of disclosure of information are relevant in this case.
The public interest considerations in favour of disclosure are not limited. In some circumstances there may be a public interest in the exposure of persons who make false complaints: Fahey v NSW Office of Liquor, Gaming and Racing [2012] NSWADT 181. But there is no suggestion by either party in this case that the complaint was false. It was substantiated.
I therefore conclude in accordance with s 12(1) that there is a general public interest in the disclosure of the complainant's name, being a constituent of the government information that was the subject of the applicant's access request, but that there are no specific public interest considerations in favour of disclosure beyond this general principle.

Personal factors of the application

In her access determination the delegate also considered, pursuant to section 55(2) of the GIPA Act, that there were personal factors of the application that weighed in favour of the disclosure of the complainant's name. Those factors were that the applicant was the owner of the property that was the subject of the complaint, and the applicant's stated objective of discussing the complainant's concerns about the work he was carrying out with that person directly.
Although not explicitly stated, it would appear that the delegate took these personal factors into account in relation to each of the Table 14 clause 1(d), 1(f) and 3(a) considerations. She was only entitled to take these personal factors of the application into account as considerations in favour of disclosure in respect of the clauses 1(d) and 1(f) because of the operation of s 55(2) and (3) of the Act. However, she was also entitled to take these personal factors of the application into account as factors against providing access in respect of clause 3(a) because of the operation of s 55(3), but she does not appear to have done so. Rather, her approach appears to have been to deal with the countervailing implications of disclosure in the weight to be attributed to the personal factors she had identified.
The delegate did not take into account as a personal factor of the application the prospective litigation between the applicant and the adjoining owners concerning the subsidence of the adjoining home owner's land because the applicant had not made her aware of this. Nor did the delegate take into account the delay to the remedial works triggered by the complaint, or the cost the applicant has incurred by reason of the necessity to install a temporary pool fence until the works are completed. These are further personal factors the applicant has raised in the context of this administrative review, which I am able to take into account.
However, I cannot see how any of these personal factors of the application weigh in favour of the disclosure of the complainant's name. They all weigh against such disclosure pursuant to clause 3(a). It is clear that the applicant is motivated to know the complainant's name so as to reveal the identity of the person who caused the agency to intervene in the works he was carrying out on his property in January 2021. This is in a context where he is annoyed at the delay and expense the suspension of this work has caused and he is alarmed that the collapse of the retaining wall may also result in litigation against him by adjoining owners. It is also in a context where he suspects the complainant may be a neighbour who has deceived him by stating that they were not the author of the complaint.
The applicant says he wants to "discuss" the work he has or will carry out on his property with the complainant, but there is no plausible reason why that would be appropriate. The applicant's right to develop his land is not in the gift of the complainant. The power to consent to such development rests with the agency alone.
In the complainant's submission to the agency found at Annexure "E" to the Statement of Anne Merle dated 15 November 2021 the complainant states a concern that the applicant wants to learn their name "so he can seek some form of vengeance". While that is a particularly strong characterisation of the applicant's motive for making the access application, from an objective point of view, there is a significant risk that the applicant is motivated to retaliate against the complainant in the circumstances that have been outlined above, even if that is limited to verbally criticising that person for the trouble he believes they have caused him. That is a consideration that weighs against disclosure of the complainant's name.
In respect of this it is also important to note the terms of s 15(5) of the GIPA Act, which provides that a disclosure made in response to an access application cannot be made subject to any conditions on the use of the information. The agency could not stipulate, for example, that the release of the complainant's name was subject to the applicant not contacting the complainant.

Public Interest considerations against disclosure

In her access determination the delegate determined that disclosure of the complainant's name could reasonably be expected to impact negatively on responsible and effective government by prejudicing the supply to the agency of confidential information that facilitates the effective exercise of the agency's functions, and by prejudicing the effective exercise by the agency of the agency's functions, (clause (1)(d) and (f) respectively of the Table to section 14 of the GIPA Act). She also determined that it would impact negatively on individual rights because it could reasonably be expected to have the effect of revealing an individual's personal information (clause 3(a) of the Table to section 14 of the GIPA Act)
The term "could reasonably be expected to" was considered by the Full Court in a broadly equivalent statutory scheme in Re Attorney-General's Department and Australian Iron and Steel Pty Limited v Peter Cockcroft G260 of 1985 Administrative Law [1986] FCA 35. At [29] Bowen CJ and Beaumont J said: 29. the words "could reasonably be expected to prejudice the future supply of information" were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like. To construe s.43(1)(c)(ii) as depending in its application upon the occurrence of certain events in terms of any specific degree of likelihood or probability is, in our view, to place an unwarranted gloss upon the relatively plain words of the Act. It is preferable to confine the inquiry to whether the expectation claimed was reasonably based.
In Leech v Sydney Water Corporation [2010] NSWADT 298 the Tribunal concluded at [25] after reviewing the relevant authorities that the test for whether disclosure "could reasonably be expected to prejudice the future disclosure of information" is an objective one: 25. …The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC
The Tribunal must ask itself if the disclosure of the information, in this case the complainant's name, could reasonably be expected to have the relevant effect. This is ultimately a question of fact to be established to the relevant standard of proof on the balance of probabilities: Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42].
In Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254, after reviewing the relevant authorities, an Appeal Panel of the Tribunal considered the quality of evidence required to establish that disclosure of the information could reasonably be expected to have the relevant effect. It held at [59]: 59. Based on these authorities when considering the evidence on which it is asserted that disclosure "could reasonably be expected" to have a particular effect, the following principles should be kept in mind: (1) a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient; (2) there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect; (3) prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses.
Clauses 1(d) and (f) are overlapping considerations. The focus of clause 1(d) is the flow of confidential information to the agency that facilitates the effective exercise of its functions, whereas the focus of clause 1(f) is the effective exercise of the agency's functions. There may be no practical difference between the two for the purposes of this case.
The elements of clause 1(d) are: 1. The information was obtained in confidence; 2. The information facilitates the effective exercise of the agency's functions; and 3. Disclosure of such information could reasonably be expected to prejudice the supply of such information to the agency in future.
The elements of clause 1(f) are: 1. There is an agency function relevant to the information; 2. Disclosure of the information could reasonably be expected to prejudice the agency's exercise of that function.
In Ansoul v City of Sydney [2017] NSWCATAD 65 the Tribunal summarised the principles to be applied in considering clause 1(d) as follows: 33 "Prejudice" under the GIPA Act has been held to have the same meaning as under the repealed Freedom of Information Act 1989, which is its ordinary meaning, that is, "to cause detriment or disadvantage" or "to impede or derogate from": Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60]. 34. In Commissioner of Police, New South Wales Police Force v Camilleri [2013] NSWADT 80 the Appeal Panel stated that the question of whether information is "confidential information" is to 'be examined, primarily at least, by the relevance to the agency's evidence as to the conditions under which it conducts a service within which the information was received". The inquiry "should focus on the point of receipt, and the administrative standards and community understandings which surrounded it". 35. In Macquarie University v Howell (No 2) [2009] NSWADTAP19 at [10] the Appeal Panel said: "In our view, the Tribunal is required to engage in a relatively abstract analysis. The Tribunal needs to characterise the nature of the material sought to be protected on the present occasion; identify the extent to which information of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; and consider the extent to which guarantees as to confidentiality may be necessary. It is then necessary to evaluate the effect on the agency's ability in future to obtain similar information. 36. In determining whether disclosure would reasonably be expected to prejudice the supply of information, the test is whether information of the kind in question facilitates the exercise of the respondent's functions and, whether the disclosure of such information could reasonably be expected to prejudice the supply of such information: Flack v Commissioner of Police, New South Wales Police Force [2011] NSWADT 286 at [52].
With respect clause 1(d) it is first necessary to determine if the complainant's name was obtained in confidence by the agency. If it wasn't, the other elements of clause 1(d) are not reached and the consideration against disclosure cannot be made out.
In Williams v Department Industry and Investment [2012] NSWADT 192 at [52] and [76] JM Montgomery accepted with approval a submission made on behalf of the Information Commissioner that the following principles apply in determining if information is confidential information: 1. The confidential quality of the communications is a question of fact; 2. To establish its confidential quality, information must have been supplied under an express or implied pledge of confidentiality; 3. The confidential quality of the information may be inferred from the nature of the relationship between the informer and the person informed; 4. The confidential quality of the information must be determined in the light of all the circumstances of the particular case.
The agency obtained the complainant's name in this case from an on-line form completed by the complainant on the agency's website. There is a hardcopy of this form in evidence. The form does not state that the information contained in it will be treated as "private" or "confidential" nor does it appear to permit a person completing it to stipulate that this should be the case. These factors may weigh against an intention or inference that the information set out on the form, including the complainant's name, is confidential information. On the other hand, the form is a closed, bilateral communication from the person completing the form to the agency that is conveyed via a secure server to an address identified as "official mail", which the agency directs internally upon receipt in accordance with the matters raised in the form. This is to be contrasted with an open, multilateral communication forum (such as a blog) that can be viewed by others.
The on-line form has fields which permit or require the person completing it to set out identifying information. This includes a field for the person's "first name" and "last name" both of which have an asterisk which apparently indicates that these are required fields. That is, the form cannot be submitted without these fields being completed.
The form in evidence does not contain any reference or link to any agency privacy statement. Nevertheless, the agency submits that information received via the completion of this form is governed by its Privacy Management Plan (paragraph 15 of Anne Merle's Statement of 15 November 2021). The agency's Privacy Management Plan (PMP) is found at Annexure C of the Statement. Section 6 of the PMP explains what personal information is for the purpose of the plan. It is based on section 4 of the Privacy and Personal Information Protection Act 1998 and therefore includes information "where the identity of the individual is apparent". Section 8 of the PMP explains the types of records of the agency that may contain personal information. This includes in section 8.1.6 "complaints made to [the agency]". Section 28 of the PMP explains how the agency discloses information. In the summary that appears in that section, it is stated (relevantly to the present case) that disclosure is: Restricted - [the agency] may only disclose personal information: With the individual's consent If the individual was told at the time of collection that the personal information would be disclosed If the use is for directly related purpose and [the agency] considers that the individual would not object Disclosure is necessary to prevent or lessen a serious and imminent threat to life or health of a person.
In their objection to the release of their name to the applicant (Annexure "A" to the Statement of Anne Merle dated 15 November 2021) the complainant states: I do not approve of my name or personal information being released. I had made the complaint to Newcastle council and did not wish for my details to be released to third party. If I knew my information would have been shared with a third party I would not have disclosed that information and this contradicts councils privacy statement which I read before submitting my complaint [a web link to the PMP is provided]
Having regard to the provisions of the PMP set out above and the complainant's statement I am satisfied that the complainant provided their name to the agency under the express pledge of confidentiality set out in section 28 of the PMP. Additionally, I am satisfied that such confidentiality is implied by the secure bilateral mode of communication of the customer request (or complaint) to the agency. The complainant's name is therefore confidential information for the purposes of clause 1(d) of the Table to section 14.
There is no issue in this case that the agency's functions include regulatory, compliance and enforcement functions under a number of legislative instruments, including the Local Government Act 1993 and the Environmental Planning and Assessment Act 1979 as the delegate states in section 6.5 of her access determination. It also appears to be uncontroversial that these functions necessitate interactions with members of the public who wish to report (or complain about) alleged contraventions by others of their statutory obligations related to development and public health and safety. The complaint in this case concerned work being carried out by the applicant on his property without development approval from the agency and which resulted in a public safety risk related to a swimming pool. The complaint was substantiated. I am thus satisfied that the complaint made by the complainant facilitated the effective exercise of the agency's functions with respect to these matters. Complaints and notifications from other members of the public to the agency of a similar nature would also facilitate the effective exercise of the agency's functions.
The delegate concluded that the disclosure of the complainant's name to the applicant could reasonably be expected to result in members of the public being deterred from making complaints or notifications to the agency about possible breaches by others of development controls and public health and safety obligations. She does not expressly state why this would be the case. However, it appears to me that there is an obvious reason why this would be so. It could reasonably be expected that it would lead to other potential complainants being concerned that their identity would be disclosed to a person impacted by a prospective complaint, giving rise to the risk that they would be approached directly by the impacted person and be subject to some form of retaliation from that person. This is a real and substantial concern arising from the potential disclosure of a complainant's name. As has already been set out above, that is what the complainant is concerned about in this case.
As I have set out above, the "customer request" form completed by the complainant did not permit an anonymous submission to be made because the customer's name fields were required information. The agency could therefore not have received from the complainant information relevant to the exercise of its functions via that form had the complainant determined not to supply their name. The non-supply of this information may have resulted in the unapproved development and public health and safety risk going undetected which would have been prejudicial to the effective exercise of the agency's regulatory functions.
However, I will assume for the purposes of argument that there are other means by which an anonymous complaint could be made to the agency. I do not accept the applicant's submission that an anonymous complaint is an equally effective means of facilitating the exercise of the agency's functions that is available to a person who wishes to make a complaint. While the agency is not prevented from taking action in relation to information received anonymously, information obtained this way may present difficulties. The information supplied may be incomplete or insufficiently specific in some way to enable action to be taken and there is no means of overcoming these limitations by contacting the person who made the complaint.
The fact that the complainant did not initially object to the release of their name to the applicant is of limited relevance in this administrative review. The agency was required to determine from an objective point of view if the release of the complainant's name could result in other persons being deterred from making similar complaints to the agency in the future and it concluded that this would be the case notwithstanding the complainant's initial position. It was reasonable for it to do so for the reason stated above.
The agency was required to consult with the complainant again in the course of making a new decision. By then the complainant objected to the release of their name to the applicant. The complainant's stated reason for their change of position is a concern that the applicant would "seek some form of vengeance". That concern appears to have crystalized over time in the context of the applicant's persistence to obtain disclosure of their name.
While the complainant's position was a relevant consideration in the balance of considerations for both the delegate's original and new decisions, it is not determinative in either case. The risk to the flow of confidential information to the agency from members of the public arising from the disclosure of the name of a complainant to a person affected by a complaint had to be considered objectively.
For the foregoing reasons I am satisfied that the clause 1(d) and (f) public interest considerations against disclosure are made out in the circumstances of this case.
Clause 3(a) of the Table to section 14 has the following elements that must be satisfied for that consideration to be engaged: 1. The information is an individual's personal information; 2. This information would be revealed by disclosure.
There can be no doubt that the complainant's name is personal information within the meaning of s 4(1) of the GIPA Act because it identifies who that person is. It is also not in issue that the applicant does not know the name of the complainant and that its disclosure by the agency would reveal it to him. The delegate was obviously correct in reaching these conclusions. The clause 3(a) public interest consideration against disclosure is therefore also made out.

Weight be attributed to considerations for and against disclosure

Significant weight should be given to the general public interest in favour of the disclosure of government information, but there are no specific public interest considerations in favour of disclosure in this case.
Little weight should be given to the personal factors of the application in favour of disclosure of the complainant's name. As the delegate correctly concluded disclosure of the complainant's name will not assist the applicant to better understand the complaint, or the agency's functions, because the whole of the substance of the complaint has already been disclosed to him. The complainant's name will add nothing of objective value in this respect. Nor would it enable him to discuss the complaint with the complainant because the complainant does not want to be contacted by him.
Significant weight should be given to the personal factors of the application against disclosure of the complainant's name. There is a real risk that such disclosure would result in the applicant attempting to contact the complainant against their wishes and result in the exposure of the complainant to some form of retaliation from the applicant. Additionally, with respect to the possibility of litigation between the adjoining owners and the applicant this is a private dispute involving private interests which has no concurrent public interest.
Significant weight should also be given to the clause 1(d), 1(f) and 3(a) public interest considerations against disclosure of the complainant's name. From an objective point of view the disclosure of the name of a complainant has a real risk of deterring members of the public from reporting possible breaches by others of statutory obligations related to development and public health and safety. That is because a person contemplating making a complaint would apprehend the possibility that they would be contacted by a person impacted by the complaint, and be exposed to retaliation from that person. This would impact negatively on the agency's performance of its regulatory functions and not be in the public interest.

Where does the balance lie?

It follows from what has been stated above that the balance in this case lies firmly against the disclosure of the complainant's name to the applicant. The personal factors of the application and the public interest considerations against disclosure decisively displace the general presumption in favour of disclosure.

The correct and preferable decision

For the foregoing reasons, the correct and preferable decision in this case is to refuse the applicant's request for access to the complainant's name. The agency's decision in this respect is affirmed.

Costs

The applicant applies for an order that would require the agency to pay his costs of the proceeding, which is the filing fee of $107.00.
The cost regime applicable in these proceedings is found in section 60 of the NCAT Act. In short summary, that section provides that in proceedings before the Tribunal each party is responsible for its own costs. However, the Tribunal is reposed with discretion to make an award of costs if there are special circumstances that justify this. In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the matters set out in section 60(3). Relevantly to the applicant's cost application, they include (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party, and (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings. "Special circumstances" means circumstances that are out of the ordinary but do not need to be exceptional or extraordinary: Roberts v Chan & Naylor Parramatta Pty Ltd aft Chan & Naylor Parramatta Trust [2018] NSWCATAP 240 at [33]ff. The term "costs" is defined in section 60(5). It includes, relevantly, (a) the costs of or incidental to the proceedings and (b) the costs of, or incidental to, the proceedings giving rise to the application, as well as the costs of or incidental to the application.
As I understand it, the applicant's claim for costs is based on what he contends was the Privacy and Information Officer's lack of skill in dealing with his access request, including according to the guidance provided by the Information Commissioner as a result of her external review. The gist of this submission appears to be to the effect that the Information and Privacy Officer's original decision not to release the name of the complainant to him in circumstances where the complainant did not object to its release was wholly unreasonable and that, as a consequence, he was obliged unnecessarily to institute these proceedings.
The applicant also contends that he was disadvantaged in the proceedings by what he claims was the Information and Privacy Officer's bias towards him because of his challenge to her original determination of his access application. He contends that this meant that the agency should not have permitted her to make the new (reviewable) decision because she did not come to that decision with an open mind, but rather with a view to justifying her earlier decision. In particular, the applicant is critical of the fact that the Information and Privacy Officer consulted the complainant again in the course of making the new decision. He believes that the complainant was influenced by the Information and Privacy Officer in the course of this consultation to change their position to object to the release of their name to the applicant.
The agency opposes the applicant's costs application submitting that there are no special circumstances that warrant an award of costs and that the applicant is not a solicitor who is entitled to costs in any event.
The agency's second submission cannot be accepted. As set out above, "costs" includes disbursements incurred by a party in the course of conducting a proceedings, which would include a filing fee, whether or not they are a solicitor: Profitability Consulting Pty Ltd v Thorpe [2018] NSWCATAP 41at [8]ff.
This administrative review has reconsidered the applicant's access application on its merits and it has decided to affirm the agency's decision of 10 September 2021 as the correct and preferable decision. No significant defect in the agency's approach to arriving at that decision has been identified. In these circumstances, as the unsuccessful party, the applicant would usually not be entitled to his costs even if special circumstances existed that would justify an award of costs. To do so it would be necessary for him to show that there are exceptional circumstances which mean that the agency ought to be ordered to pay his costs despite being the successful party: Arian n Nguyen [2001] NSWCA 5 at [37]. There are no exceptional circumstances that would justify such an outcome in this case.
A decision made by an agency pursuant to s 93(2) following the acceptance of a recommendation by the Information Commissioner made under section 93(1) of the GIPA Act is a decision de novo (a new decision). It required the decision making process to be carried out afresh and for a new decision to be made in light of all the circumstances as they stood at that time, and not at any earlier time. As a consequence, the agency was required to consult with the complainant again in the course of making a new decision by operation of s 54(1), (2) and (5) of the GIPA Act.
In the course of this review the Tribunal has considered the complainant's stated objections to the release of their name and they weigh against the disclosure of this information. On the evidence before the Tribunal it is not possible to know with certainty why the complainant changed their mind from the position they expressed on or about 1 April 2021. But in any event such a consideration is weighed in the balance in the application of the public interest test. It does not operate as a veto to the release of this information.
The Information and Privacy Officer had the power to determine the new decision following the agency's acceptance of the Information Commissioner's recommendation by operation of s 93(4)(a) of the GIPA Act as the applicant accepts. The fact that she did so does not establish bias towards the applicant. She was merely carrying out the statutory functions of the agency that are delegated to her. In any event this independent review of the Information and Privacy Officer's decision is capable of overcoming any defect in her access determination, should there have been one, and none has been identified.
For the foregoing reasons there will be no order as to costs.

Orders

For the foregoing reasons: 1. The agency's decision to refuse to provide the applicant with access to the complainant's name is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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 January 2022

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