NSW Henry George Foundation v Director General, NSW Department of Attorney General and Justice

Supreme Court of NSW|2013-01-08

REASONS FOR DECISION 1The applicant, the NSW Henry George Foundation, seeks review of a decision of the respondent, the Director General of the NSW Department of Attorney General and Justice, made under the Government Information (Public Access) Act 2009 (the GIPA Act) in regard to an access application for access to the applicant's annual financial statements for the years 2004 to 2010. 2The GIPA access request was made by Mr Mark Hassed, on 30 August 2011. His request was in the following terms: Financial statements from the Henry George Foundation of NSW also possibly known as the Carr Trust. Statements required are the 3 most recent that you have available, but going back even further would be helpful, say the last 7 years. 3On 31 August 2011, pursuant to section 54 of the GIPA Act, Ms Lida Kaban, the Director of the Legal Services Branch of the respondent Department, wrote to Ms Giles, the Secretary of the applicant, informing her of the GIPA request. In the letter, Ms Kaban asked Ms Giles whether the applicant had any objection to the release of the information to Mr Hassed. Ms Kaban explained that the applicant was being consulted as the information requested may relate to the business, commercial or professional interests of the applicant. Ms Kaban set out the grounds on which the applicant could raise an objection to the release of the information. These grounds were those set out in item 4 of the table to section 14 of the GIPA Act. Ms Kaban also explained that even if the applicant were to object, the respondent might 'still decide to release your business affairs information if your reasons for objecting do not outweigh the public interest in releasing the information.' 4Ms Giles, on behalf of the applicant, responded to Ms Kaban's letter on 13 September 2011. Attached to her letter was a three-page submission of objection to the release of the information, together with supporting attachments. It is unnecessary to repeat the grounds of objection other than to note that Mr Hassed is a Victorian Trustee of the Henry George Foundation (Australia) and also a member of Prosper Australia (Victoria). 5On 16 September 2011, Ms Kaban wrote to Ms Giles informing her of her decision to release the information despite the objections raised by the applicant. In her letter, Ms Kaban explained that as the applicant was a charitable trust, she did not consider, on balance, that the release of the information could reasonably be expected to affect the business affairs of the applicant. On 26 September 2011, Ms Giles, on behalf of the applicant, requested an extension of time within which to make an internal review request, as the Chair of the Trustees of the applicant was overseas. That request was agreed to and on 10 October 2011, Ms Giles, on behalf of the applicant, made an internal review request. In that request Ms Giles set out some background information to the establishment of the applicant Fund, the circumstances in which the applicant had provided the information to the respondent and the grounds on which it objected to the release of the information to Mr Hassen. 6On 28 October and 1 November 2011, Ms Giles, on behalf of the applicant, provided some further information to the respondent for the purpose of its internal review determination. On 1 December 2011, the Director General of the respondent wrote to Ms Giles informing her of his internal review determination and the basis on which that determination had been made. The respondent determined to release the information sought by Mr Hassen, with the exception of the names of the trustees of the applicant. 7The applicant being dissatisfied with the internal review determination, made an application to the Tribunal for external review, as it was entitled to do: see paragraph 80(d) and section 100 of the GIPA Act and section 38 of the Administrative Decisions Tribunal Act 1997 (the ADT Act). 8The application came before me at a planning meeting on 21 February and 17 April 2012. At these planning meetings, by consent, I made orders for the parties to file and serve relevant material and written submissions. By consent, I also made an order that the application would be determined on the papers pursuant to section 76 of the ADT Act. The parties complied with the orders that were made. In its submissions, prepared by its solicitor, Terrance Dwyer, the applicant raised a number of issues including an assertion that the information was 'personal information' about the trustees, falling within the terms of the Privacy Act 1988 (Cth), and hence not 'government information'. It also argued that it was 'copyright' and protected under the Copyright Act 1968 (Cth) and in the event the information in issues is found to be 'government information' the disclosure of the information could reasonably be expected to have the effects set out in items 1(d), 1(f), 1(g), 2(a), 2(b), 3(d) of the table to section 14 of the GIPA Act. 9The respondent in its submissions relied on the reasoning set out in the internal review. The respondent also filed and served short written submissions in reply to those of Mr Dwyer. 10The role of the Tribunal in reviewing the decision of the respondent is to decide what is the correct and preferable decision having regard to the material before it, including (a) any relevant factual material and (b) any applicable written or unwritten law: see subsection 63(1) of the ADT Act.

Applicable law 11The applicable law is that set out in the GIPA Act, the objects of which are set out in section 3 as follows: 3 Object of Act (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 and encouraging the proactive public release of government information by agencies, and (b) 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. (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 reasonable cost, access to government information. 12The term 'government information' is defined in section 4 of the GIPA Act to mean 'information contained in a record held by an agency'. Government information 'held' by an agency is defined in clause 12 of Schedule 4 of the GIPA Act. It provides as follows: 12 Government information held by agency (1) A reference in this Act to government information held by an agency is a reference to: (a) information contained in a record held by the agency, or (b) information contained in a record held by a private sector entity to which the agency has an immediate right of access, or (c) information contained in a record in the possession or custody of the State Records Authority (or that the Authority has in the custody or possession of some other person) to which the agency has an immediate right of access, other than a record that is withheld from public access under section 59 of the State Records Act 1998, or (d) information contained in a record that is in the possession, or under the control, of a person in his or her capacity as an officer or member of staff of the agency (including, in the case of a Minister, the personal staff of the Minister). (2) Information that would be regarded as government information held by an agency because the agency has access to a record that contains the information is not to be regarded as government information held by the agency if the public generally has access to the record (for example, because the record is available on the Internet). (3) Information contained in a record that genuinely forms part of the library material held by an agency is not government information held by the agency. 13Section 5 of the GIPA Act contains a presumption in favour of the disclosure of government information unless there is an 'overriding public interest against disclosure'. Section 13 of the GIPA Act sets out the test to be applied in determining whether there is an overriding public interest against disclosure. That test is in the following terms: 'There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.' 14Section 12(1) of the GIPA Act provides that there is a general public interest in favour of disclosure of government information. Subsection 12(2) provides that public interest considerations in favour of disclosure are not limited. The section goes on to provide some examples of public interest considerations in favour of disclosure of government information. These include: Note. The following are examples of public interest considerations in favour of disclosure of information: (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. 15The public interest considerations against disclosure are limited. These are set out in section 14 of the GIPA Act. Subsection 14(1) provides that government information described in Schedule 1 of the GIPA Act is to be conclusively presumed to give rise to a public interest consideration against disclosure. The information in issue in this application does not fall into this category of government information. 16Subsection 14(2) sets out the only other public interest considerations against disclosure. For the purposes of this application, the relevant public interest considerations against disclosure are as follows: 14 Public interest considerations against disclosure (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) ... Table 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): (a) ..., (b) ..., , (c) ..., (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, (e) ... (f) prejudice the effective exercise by an agency of the agency's functions, (g) found an action against the agency for breach of confidence or otherwise result in the disclosure of information provided to the agency in confidence. 2 Law enforcement and security 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): (a) reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant, (b) prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law, (c) ... 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) ... 4 Business interests of agencies and other persons 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) ... (d) prejudice any person's legitimate business, commercial, professional or financial interests, (e) ... 17Section 15 sets out the principles that are to be applied when determining whether there is an overriding public interest against disclosure. That section provides as follows: 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 of information 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 information. 18Where the information for which access is sought contains 'personal information' about a person (other than the access applicant), or concerns the person's business, commercial, professional or financial interests, section 54 of the GIPA Act requires an agency to consult with that person before providing access where (a) the person may reasonably be expected to have concerns about the disclosure of the information, and (b) 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. 19Section 55 provides for personal factors to be taken into account in determining where the public interest lies. That section is in the following terms: 55 Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section: (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14. (4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for. (5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to provide proof of his or her identity. (6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person. Note. An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73. 20In this application, by reason of subsection 105(2) of the GIPA Act, the onus is on the applicant, and not the respondent, to establish that there is an overriding public interest against disclosure of the information in issue. 21Section 107 of the GIPA Act sets out how the Tribunal is to deal with information for which there is, or is claimed to be, an overriding public interest against disclosure. In essence that section provides that the Tribunal is to prevent the disclosure of such information to the public, GIPA applicant and the applicant's legal representative. In accordance with the nondisclosure requirements of this section the Tribunal was provided with a copy of the disputed information in confidence. 22Section 72 of the GIPA Act sets out the form in which access is to be given where the agency determines to grant access to the information sought. That section provides: 72 Forms of access (1) Access to government information in response to an access application may be provided in any of the following ways: (a) by providing a reasonable opportunity to inspect a record containing the information, (b) by providing a copy of a record containing the information, (c) by providing access to a record containing the information, together with such facilities as may be necessary to enable the information to be read, viewed or listened to (as appropriate to the kind of record concerned), (d) by providing a written transcript of the information in the case of information recorded in an audio record or recorded in shorthand or other encoded format. (2) The agency must provide access in the way requested by the applicant unless: (a) to do so would interfere unreasonably with the operations of the agency or would result in the agency incurring unreasonable additional costs, or (b) to do so would be detrimental to the proper preservation of the record, or (c) to do so would involve an infringement of copyright, or (d) there is an overriding public interest against disclosure of the information in the way requested by the applicant. 23Section 74 of the GIPA Act makes provision for the deletion of information in providing an applicant access to information in a record, which contains, in part, information for which there is an overriding public interest against disclosure. That section is in the following terms: 74 Deletion of information from copy of record to be accessed An agency can delete information from a copy of a record to which access is to be provided in response to an access application (so as to provide access only to the other information that the record contains) either because the deleted information is not relevant to the information applied for or because (if the deleted information was applied for) the agency has decided to refuse to provide access to that information. 24Section 73 of the GIPA Act deals with conditions on access. It provides as follows: 73 Access to be unconditional (1) An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. (2) A condition may be imposed as to how a right of access may be exercised (such as a condition that prevents an applicant making notes from or taking a copy of a record that is made available for inspection) but only to avoid there being an overriding public interest against disclosure of the information. (3) A condition may be imposed that access to medical or psychiatric information will only be provided to a medical practitioner nominated by the applicant and not to the applicant personally. Note. Access can also be made conditional on the payment of processing charges (s 64) and on the provision of evidence of identity or other personal factors relevant to the agency's decision to provide access (s 55).

The NSW Henry George Foundation 25The NSW Henry George Foundation is a charitable trust: see Attorney General for NSW v The NSW Henry George Foundation Ltd [2002] NSWSC 1128. As explained by His Honour Justice Young in this decision, at [2] and [3], on 15 September 1941 a trust deed was signed and sealed between Frederick Carr, as settlor and Messrs Swan, Dobbie and Donohue as trustees (the Carr Trust Deed). The recitals to the deed provided that the assets of the trust were to be held 'for the purpose of promulgating and spreading knowledge of the teachings and economic principles elaborated by Henry George and also for the objects hereinafter mentioned'. These included the following: To furnish financial aid and assistance to the Henry George League of New South Wales (hereinafter called 'the League') and/or to other organizations and bodies for the time being engaged in furthering public knowledge of the teachings and economic principles set forth by Henry George in his books 'Progress and Poverty' and 'The Science of Political Economy' and other writings relating to the science of political economy and particularly to land-rent and freedom of trade commerce and industry with the object of establishing the said teachings and economic principles in practical operation by legislation and common usage and financially to aid such organizations and bodies in their publishing lecturing and educational activities and in pursuance of such objects to administer the Trust Fund and the income arising the reform. 26His Honour also noted that clause 2 of the Carr Trust Deed named the trust fund of the trust as 'The New South Wales Henry George Foundation.' 27His Honour went on to explain the essence of Henry George's teachings and the time these were made and where they were made. It is unnecessary to repeat these for the purpose of this decision, other than to note that the objects of the applicant is to provide financial assistance to organisations that are engaged in furthering public knowledge of the teachings and economic principles of Henry George. 28On the information provided by the applicant, the Henry George Foundation (Australia) and Prosper Australia (Victoria) are also based on the same teachings. As I understand it, the Henry George Foundation (Australia) is the national body, the trustees of which are made up of nominees from each state body founded on the teachings of Henry George. The majority of trustees are nominees from the Victorian organisation. The applicant has nominees on this national body and the beneficiary of the applicant's fund also receives funding from the national body. However, the applicant, each state organisation and the national body effectively operate independent of each other. 29In regard to the information in issue, the applicant provided the information to the respondent in late August 2011, at the request of the respondent. He respondent was acting on behalf of the NSW Attorney General who wanted to monitor the management of the fund. The applicant provided the information voluntarily. As pointed out by the applicant, within a matter of days after providing the information, it received the letter from Ms Kaban in regard to Mr Hassen's application for access (see paragraph 4 above).

Is the information 'government information' that is 'held' by the respondent 30The applicant contends that 'government information', as defined in subsection 4(1) of the GIPA Act should be construed so as to refer to information generated, created or owned by government. That is, it should not be construed to include private information supplied to government. As I understand the applicant's written submission, it contends that the information is private as it is 'personal information' of the trustees. I have dealt with the concept of 'personal information' as it applies in the GIPA Act below. In this regard I agree that the names of the trustees is arguably personal information. However, the information in the annual financial statements is not in substance 'personal information' about the trustees. In substance it is financial/accounting information about the applicant. 31There is also no basis on which the definition of 'government information' could be construed to exclude 'personal information' or private information. As I have identified in paragraph 12 above, clause 12 of Schedule 4 of the GIPA contains a very broad meaning to the phrase 'government information held by an agency'. For example, it expressly includes any 'information' contained in a 'record' 'held' by an agency. The word 'record' is also broadly defined in clause 10 of Schedule 4 of the GIPA Act to mean 'any document or other source of information compiled, recorded or stored in written form or by electronic process, or in any manner or by any other means.' The word 'held' is not defined and should be given its ordinary meaning. 32Accordingly, on its proper construction, government information held by an agency includes any information contained in a document that is in the possession or control of an agency. The applicant's financial statements, the subject of this application, clearly fall within this description and are government information held by the respondent.

Public interest considerations against disclosure 33The introductory words to items 1, 2 and 3 require the decision maker to enquire if disclosure of 'the information' could reasonably be expected to have the effect as prescribed in one or more of the paragraphs in these items (my emphasis). It is an enquiry of a general and abstract nature as to whether the disclosure of the information in issue could reasonably be expected to have the prescribed effect. 34The term 'disclose information' is defined in clause 1 of Schedule 4 of the GIPA Act to include 'make information available and release or provide access to information.' 35The phrase 'could reasonably be expected to' has been the subject of considerable judicial consideration with respect to its use in the context of exempt documents under the repealed Freedom of Information Act 1989 (NSW)(FOI Act repealed) and also the Freedom of Information Act 1982 of the Commonwealth. The same meaning has been applied to this phrase as it appears in the table to section 14 of the GIPA Act. That is, the words in the phrase are to be given their ordinary meaning and ' require a judgement to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous' to expect to have the prescribed consequences: see McKinnon v Secretary, Department of Treasury [2006] HCA 45, at [61] and Attorney-General's Department v Cockcroft (1986) 10 FCR180, at 190. 36Although there is some overlap in the various grounds of public interest considerations against disclosure relied on by the applicant, for convenience I have dealt with them separately.

Item 1(d)- prejudice the supply to an agency of confidential information 37In Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [33], the Appeal Panel considered the construction and application of item 1(d) of the table to section 14 of the GIPA Act. At [33], the Appeal Panel said that the question as to whether information is 'confidential information' is to be examined, primarily at least, by reference to the agency's evidence and the conditions under which it conducts the service in which the information in issue was obtained. At [34], the Appeal Panel said that, the enquiry under this item 'should focus on the point of receipt, and the administrative standards and community understandings which surrounded it.' 38I agree with this analysis of the Appeal Panel. 39The word 'prejudice' is not defined in the GIPA Act and should be given its ordinary meaning; namely 'to cause detriment or disadvantage' or to 'impede or derogate from'; see Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60]. 40It is the contention of the applicant that if a precedent is set, in disclosing the applicant's annual financial statements, which were demanded by a government agency, to the world - 'then hundreds of charities, from the smallest to the largest', will reconsider providing such information voluntarily. 41While I accept that this is the view of the applicant, the respondent has not expressed a similar view. That is, the respondent has not contended that disclosure of the applicant's annual financial statements could reasonably be expected to have the effect of prejudicing the supply, to it, of information of this kind. 42As pointed out in Camilleri, the fact that the person who supplied the information in issue has indicated that it will not in future provide information of this kind, is not determinative of the issue as to whether this ground of public interest consideration against disclosure has been established. As I have explained above, it is a more general question, to be objectively assessed, as to whether disclosure of the information in issue can reasonably be expected to have the effect of prejudicing the supply of information of the kind in issue. In my view, this is a matter the relevant agency is best able to assess and not the person who provided the information to the agency. Accordingly, as the respondent has not relied on this ground of public interest consideration against disclosure, I find that this ground of public interest consideration against disclosure does not arise.

Item 1(f)- prejudice the effective exercise by an agency of its functions 43It is the contention of the applicant that a disclosure of its annual financial statements would prejudice the respondent in the exercise of its functions as it would no longer be provided with this information voluntarily. Consequently, the respondent would need to resort to exercising its statutory powers of search and seizure and seeking the issue of a warrant or a court order. Having to resort to such powers, the applicant contends will prejudice the effective exercise of the respondent's functions in regard to overseeing charitable institutions. 44In my view, for the same reasons set out in regard to the public interest consideration against disclosure in item 1(d), the applicant has failed to establish this particular ground of public interest consideration against disclosure. That is, it is a ground, which the respondent is best able to assess, as it is a question about the effect on its exercise of its functions. While the view of the applicant is of some relevance to this question, it cannot be determinative thereof. Hence in the absence of the respondent contending that a disclosure of the applicant's annual financial statements could reasonably be expected to have the prescribed prejudicial effect, I find that this public interest consideration against disclosure is not established.

Item 1(g) - found an action against the agency for a breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence 45It is the contention of the applicant that it provided its annual financial statements to the respondent in confidence and no consent was given to the information being provided to the world. The applicant went on to state that deliberations of the trustees and their decisions about financial matters are necessarily confidential and a disclosure of the annual financial statements would be a clear breach of confidence. 46In my view, other than mere assertions, the applicant has failed to put any material before the Tribunal which evidences that the applicant, when it provided its annual financial statements to the respondent it did so under a contractual, equitable or fiduciary obligation of confidence: see Re B and Brisbane North Regional Health Authority (1994) QAR 279 at 296 and Public Service Association v Premier's Department [2002] NSWADT 277. Indeed the applicant's written submissions stating that the information was provided voluntarily, suggests that there was no obligation of confidence in providing the information. 47Nor am I satisfied, on the material before the Tribunal, that the annual financial statements were provided in confidence generally. In this regard, I note that they have not been marked confidential. Nor do they appear to contain information of a kind to suggest they were confidential. The information is of a kind that is usually found in reports of this nature. As explained in the internal review decision, they were provided to the respondent, acting on behalf of the Attorney General as the representative of the Crown in ensuring the due administration of established charities. 48Accordingly, I find that the applicant has failed to establish this ground of public interest consideration against disclosure.

Item 2(a) - reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant 49The applicant contends that disclosure of its annual financial statements could reasonably be expected to prejudice the future supply of information from an informant. As I understand the applicant's submissions it is contended that if the information is disclosed, it could reasonably be expected that trustees will not provide such information in future as this might expose them to penalties for inadvertent errors made in the statements. 50The applicant clearly has little understanding of the application of this ground of public interest consideration against disclosure. What this ground of public interest consideration against disclosure is directed towards is the long held claim of public interest immunity for persons who give information about unlawful activities to a law enforcement agency; see Attorney General (NSW) v Stuart (1994) 34 NSWLR 667. That situation does not arise in this application. 51Accordingly, I find that this ground of public interest consideration against disclosure is of no relevance to this application.

Item 2(b) - prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law 52It is the applicant's contention that trustees of a charitable trust will rethink voluntarily supplying information to the respondent if it could leave them open to harassment for innocent actions or actions taken in good faith. Again, for the reasons stated above, the applicant has misconceived the operation of this public interest against disclosure. It is directed towards the protection of the methods used by police and other government agencies in preventing, detecting, investigating or dealing with contraventions of the law. 53The information contained in the annual financial statements of the applicants does not fall within this category. Accordingly, this ground of public interest consideration against disclosure is also of no relevance to this application.

Item 3(a) - reveal an individual's personal information 54In its decision, the respondent found that this ground of public interest consideration against disclosure was established in regard to the names of the trustees and that on balance this public interest consideration outweighed the public interest consideration in favour of the disclosure of the names of the trustees of the applicant. 55As the Tribunal's role is to consider the matter a fresh I have also considered this ground of public interest consideration against disclosure. 56'Personal information' is defined in clause 4 of Schedule 4 of the GIPA Act. It relevantly provides 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) ... (3) ... 57'Personal information' is also defined in similar terms in section 6 the Privacy Act 1988 (Cth). 58The term 'reveal information' (see item 3(a) of section 14 above) is defined in clause 1 of Schedule 4 of the GIPA Act to mean 'information that has not already been publicly disclosed (otherwise than by unlawful disclosure).' The word, 'publicly' in this context should be given its ordinary meaning; namely openly disclosed. 59I note that Ms Giles, in her written submissions, of 28 October 2011, in support of the applicant's internal review request said that the NSW trustees had been referred to as 'the faceless men' by the Victorian trustees and that she believed 'they should remain unknown, there being no legal basis on which they need to be known to Trustees of an entirely separate Trust ...' I note that the trustees are only named on the first page of each annual statement. 60The respondent accepted this contention of Ms Giles. 61In my view, the respondent was correct to categorise the names of the NSW trustees as they are contained in the annual financial statements of the applicant, to be personal information about these persons. However, the question is whether the disclosure of their names could reasonably be expected to 'reveal' this information (their names as NSW trustees). 62In this regard, I note that the trustees in 2002 where named as defendants in The New South Wales Henry George Foundation v Booth and OTHERS [2002] NSWSC 245. They were also named in the 2 September 2003 order of the Supreme Court in the proceedings before His Honour Justice Young. A copy of the order was provided to the respondent in support of the applicant's internal review request. In addition to this, I note that the current trustees are clearly named in the letterhead of the applicant's correspondence. In light of this correspondence and the earlier disclosures, it is difficult to see how the disclosure of the names of the trustees in the annual financial statements of the applicant will 'reveal' their personal information. If the applicant's correspondence contains their names in its letterhead, then their names have already been publicly disclosed and this ground of public interest consideration against disclosure would not apply. 63As this is not a ground raised in the submissions, I do not propose to make a final determination in regard to the names of the trustees of the applicant. It is appropriate that the respondent's decision in regard to this information (i.e. the names of the trustees of the applicant as stated in the annual financial statements of the applicant for 2004 to 2010), be remitted for further consideration.

Item 4(d) - prejudice a person's legitimate business, commercial or financial interests 64It is the contention of the applicant that it is legitimate for an organisation that seeks funds 'to wish to keep private the sources of its private donations so that no donor reduces his donations on the understanding that others can or are contributing.' That is, if information of this kind is disclosed 'there is a clear detriment or prejudice' to the financial interests of that organisation. 65The applicant has not identified those sections of the annual financial statements, which it asserts to be a record of a private donation source. Nor am I able to identify such a record. I note, that in its submissions of 10 October 2011, the applicant expressed some concern about disclosure of the amount the applicant had paid to its beneficiary during the relevant years, may prejudice future funding its beneficiary will receive from the national body, the Henry George Foundation (Australia). In my view, this is not a matter relevant to the financial interests of the applicant. Nor is there any material before the Tribunal to suggest that a disclosure of this information could reasonably be expected to have such a result. Indeed it may be information the beneficiary provides, or is required to provide, to the national body in any event. 66Accordingly, I find that the applicant has not established this ground of public interest consideration against disclosure.

Public interest consideration for disclosure and the public interest test 67As I have explained in paragraph 13 and 14 above, section 5 contains a presumption in favour of disclosure of government information unless there is an overriding public interest against disclosure and subsection 12 (1) provides that there is a general public interest in favour of disclosure of such information. Leaving aside the information that is the names of the trustees, for the reasons set out above, I have found that the applicant has failed to establish any public interest considerations against disclosure of information in the applicant's annual financial statements for 2004 to 2010. Accordingly, it is unnecessary to consider the section 13 public interest test. And on this basis, I agree with the findings of the respondent in its internal review. 68In regard to the information that is the names of the trustees, as I have indicated the respondent's decision in regard to that information should be set aside and remitted for reconsideration.

Form of access 69The applicant contends that in the event it is found that there are no public interest considerations against disclosure of the information in issue, or the public interest considerations against disclosure do not, on balance, outweigh the public interest considerations in favour of disclosure, Mr Hassen should only be granted access in the form of viewing the information: see paragraph 72(1)(a) of the GIPA Act- set out in paragraph 22 above). The applicant argues that the information in the annual financial statements falls within the terms of the Copyright Act 1968 (Cth) and to copy the information would amount to a breach of that Act. 70Again, other than by mere assertion, the solicitor for the applicant has not identified how that Act has any application to the information in issue. I note that section 31 of that Act describes copyright as existing in an original literary, dramatic, musical or artistic work. The information in issue can hardly be described as falling into this category.

Conclusion and orders 71For the reasons set out above, other than the information that is the name of the trustees, I find that the decision of the respondent is the correct and preferred decision. In light of this, the appropriate order is to affirm the decision of the respondent in this regard. In my view, it is also appropriate to order that the respondent provide Mr Hassen with a copy of the information, with the names of the trustees deleted, within 28 days of the publication of these reasons for decision. 72In regard to the names of the trustees, for the reasons set out above, I am not satisfied that the decision of the respondent is the correct and preferred decision. On the basis of my findings, the appropriate order is an order under paragraph 63(3)(d) of the ADT Act to set aside the decision of the respondent in regard to the information that is the names of the trustees and remit it for reconsideration by the respondent in accordance with these reasons for decision.

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: 08 January 2013

Freedom of Information Act 1989(NSW)

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