O'Grady v Sutherland Shire Council

NCAT Administrative and Equal Opportunity|2021-10-12

l (1999) HCA 66 (1999) 201 CLR 1 McDonald v Ku-ring-gai Council [2022] NSWCATAD 17 Neary v State Rail Authority [1999] NSWADT 107 O'Grady v Sutherland Shire Council [2021] NSWCATAD 165 Selby v Commissioner of Police (NSW) [2013] NSWADT 61 Taylor v Destination NSW [2017] NSWCATAD 272 Transport for NSW v Robinson [2018] NSWCATAP 123 Transport for NSW v Searle [2018] NSWCATAP 93 Texts Cited: None cited Category: Principal judgment Parties: Rodney O'Grady (Applicant) Sutherland Shire Council (Respondent) Representation: Solicitors: Applicant (Self represented) Sutherland Shire Council Legal Officer (Respondent) File Number(s): 2021/00059482 Publication restriction: Nil

Introduction

The Applicant, Mr O'Grady, seeks access to 33 documents from the Respondent, Sutherland Shire Council, pursuant a request made under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act).
Mr O'Grady's request under the GIPA Act having been originally made to the Council on 30 January 2020.
The decision under review was made on 5 August 2020. Mr O'Grady was dissatisfied with the extent of the documents produced and applied for the Tribunal to review the Council's August 2020 decision.
Mr O'Grady applied to the Tribunal for review on 2 March 2021. His application was made out of time. Mr O'Grady duly applied for an extension of time, that application was opposed by the Council. In June 2020, the Tribunal determined that Mr O'Grady's application should be permitted to be filed out of time; O'Grady v Sutherland Shire Council [2021] NSWCATAD 165.

Council's Interlocutory Applications

On 23 September 2021 the Council made applications to the Tribunal seeking; 1. that the proceedings should be dismissed, prior to hearing, pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s 55(b); or alternatively, 2. that the matter should be heard on the papers without a public hearing. The power to make such orders is provided under the Civil and Administrative Tribunal Act, s 50.
The applications were heard at the commencement of the hearing on 8 October 2021 and dismissed with reasons to be provided at a later date. Such reasons are now provided.

Council's Submissions on its Applications

The Council made written submissions in support of its application, the key points of which may be summarised as follows: 1. Prior to receiving Mr O'Grady's written submissions on 20 August 2021, the Council had no concerns with, or basis for concern about, the hearing of the application. On receiving his written submissions, however, the Council formed the view that the application was being used by Mr O'Grady not for the sole purpose of seeking access to information but as a means of litigating or raising allegations of corruption or maladministration. 2. While the Council conceded that Mr O'Grady had a "legitimate cause of action in seeking a review", it submitted the proceedings were not being conducted in good faith and Mr O'Grady's attitude towards the Council's witnesses was inappropriate. In support of this submission, the Council referred to a preliminary conference in the Tribunal which took place on 23 August 2021 and asserted that Mr O'Grady's "recent behaviour" was unacceptable and vexatious. 3. The Council acknowledged in its application that dismissal was "an extreme measure", but it nonetheless submitted it was appropriate for the Tribunal to exercise its discretion in favour of dismissing the application. 4. As to the alternative relief, seeking the matter be determined on the papers, the Council submitted that, since nothing new or relevant was raised in Mr O'Grady's submissions, then the hearing was likely only to be a forum for personal attacks on the Council's witnesses and that natural justice and procedural fairness could be achieved by dispensing with the hearing.

Mr O'Grady's Submissions on the Interlocutory Applications

Mr O'Grady also made written submissions addressing the Council's application. In summary, his submissions were to the following effect: 1. A hearing was necessary because Mr O'Grady would be able to demonstrate in the course of the hearing that the Council would not be able to establish the public interest considerations on which the Council relied on to withhold certain documents. 2. The Council had provided false and misleading information to the Tribunal in these proceedings and a hearing would allow this issue to be fully explored. 3. The Council's conduct, with respect to the interlocutory application specifically, but also in relation to other proceedings, demonstrated that it is incapable of self-regulation.

The Application to Dismiss

The Civil and Administrative Tribunal Act, s 55(b) allows the Tribunal to dismiss, at any stage, proceedings before it where the Tribunal considers that the proceedings are frivolous, vexatious, or otherwise misconceived or lacking in substance. The power to dismiss is discretionary and such discretion must be properly exercised; Choi v University of Technology Sydney [2019] NSWCATAD 176 at [37-39].
The matters set out in s 55(b) are to be given a broad interpretation to ensure that the processes of the Tribunal are not abused: BDK v Department of Education and Communities [2015] NSWCATAP 129 at [67].
Mr O'Grady's application seeks a review of a decision made under the GIPA Act and was not frivolous or otherwise misconceived or lacking in substance. The Council's concession to which I refer at paragraph 8(2) above, that Mr O'Grady had a legitimate cause of action, was properly made.
Mr O'Grady is not a legal practitioner and has been self-represented throughout these proceedings. Despite no legal training, I have observed that his submissions and other documentation were generally cogent, logical and relevant to issues relevant to the proceedings.
The Council's primary submission was that Mr O'Grady's application is vexatious in the sense described by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491, where an application was brought for some collateral purpose, or to annoy or embarrass the person against whom the proceedings are brought.
The Council's complaint about Mr O'Grady's behaviour at one encounter before the Tribunal should be considered a minor transgression and not a matter which warrants the dismissal of his application. It is not uncommon for a self-represented applicant to use words such as "lying" and "deceit" or terms such as "false or misleading" which have a particular meaning at law without appreciating the legal significance of such terms. It is also common for self-represented litigants to become frustrated or appear agitated in proceedings before this Tribunal.
I consider Mr O'Grady's submission that the Council was incapable of self-regulation as being an expression of his frustration arising from his interactions with the Council which have extended over a number of years. I do not consider that such submission demonstrates a collateral purpose. I do not consider that his conduct in bringing this application evidences an intention to merely annoy or embarrass the Council.
Accordingly, the Council's application pursuant to the Civil and Administrative Tribunal Act, s 55(b) is dismissed.

The Application to Determine the Matter Without a Hearing

I turn now to the Council's alternative application to have the matter determined 'on the papers' or without a hearing.
The Tribunal may dispense with a hearing and proceed to determine an application on the papers: Civil and Administrative Tribunal Act, s 50.
However, pursuant to the Civil and Administrative Tribunal Act, s 49, a Tribunal hearing is to be open to the public unless the Tribunal orders otherwise. That provision gives effect to the objects of the Tribunal as set out in the Civil and Administrative Tribunal Act, s 3 including that the Tribunal has processes which are open and transparent.
While hearings 'on the papers' provide an efficient method of disposing of some cases, proceeding in this way involves a clear departure from the fundamental precept of open justice, which characteristically requires giving the parties the opportunity to present oral submissions and argument, allow dialogue with the Tribunal member and enable the proceedings to be witnessed by the public: BDK v Department of Education and Communities [2015] NSWCATAP 129 at [33].
In this case and having regard to the above matters, I considered it preferrable that the matter should not be heard 'on the papers' and for the hearing of the matter to take place in the normal course.

The Substantive Issue

The role of the Tribunal in hearing the application for review is to decide the correct and preferable decision having regard to the material before it, including relevant factual material and the applicable law: Administrative Decisions Review Act 1997 (NSW), s 63(1).
In these proceedings there is a single substantive issue to be determined; is the Applicant entitled to obtain the information he has sought?
After considering the relevant facts and applicable law, the answer is that Mr O'Grady is entitled to access most of the information because, with respect to the majority of the withheld documents, the overriding public interest in favour of disclosure outweighs those matters the Council asserts are factors against disclosure.
As mentioned above, there are 33 documents which the Council has refused to release. Of these: 1. 31 documents are withheld on the basis that there are factors which out-weigh the overriding public interest in favour of disclosure; 2. 2 documents are withheld as business records, though they have been supplied in redacted form; and 3. 1 document is the subject of a claim of client legal privilege.

Evidence and Facts

Mr O'Grady's original request for documents held by the Council under the GIPA Act was made on 5 November 2019. Shortly after, on 18 November 2019, Mr O'Grady narrowed the scope of his request. Item 3 of Mr O'Grady's request is the only item which is relevant to these proceedings. In that item, Mr O'Grady sought access to the following material: Record of Council's files CR19-344735, 344739, 358427, 361872, 374245, 375169 including all communications to and from the Conduct Review, SINC Solutions Pty Ltd
Each of the files identified in the request concern complaints made by Mr O'Grady about Council staff under its Code of Conduct. Pursuant to the Local Government Act 1993 (NSW), s 440, municipal councils in New South Wales are required to adopt a code of conduct that adopts the Model Code of Conduct. Councils are also required to adopt procedures for the administration of codes of conduct.
Initially, the Council refused to deal with Mr O'Grady's request on the basis that it would require a substantial and unreasonable diversion of resources. This refusal was communicated to Mr O'Grady on 18 December 2019.
The next day, Mr O'Grady sought internal review of the original refusal decision. He received no response within the required time period.
Mr O'Grady then applied to the Information and Privacy Commissioner (IPC). On 3 June 2020, the IPC recommended to the Council that it make a new decision under the GIPA Act, s 93.
Consequently, on 5 August 2020, an employee of the Council with the appropriate delegations under the GIPA Act made a new decision. The effect of the decision to withhold all the information requested. Ms Lewis, the Council officer who made the decision dated 5 August 2020 was the subject of one of the complaint files sought by Mr O'Grady (specifically CR 19-374245). In her affidavit read at the hearing, Ms Lewis explained that she had identified and disclosed this potential conflict of interest to Mr O'Grady and he had made no objection to her proceeding to determine the request.
According to the written submissions made for the Council, the basis of the decision of 5 August 2020 refusing to release records responsive to Mr O'Grady's request was that public interest considerations against disclosure outweighed the overriding public interest in favour of disclosure of all the material it had withheld from Mr O'Grady. In deciding not to release the information, the Council on 5 August 2020 relied on the matters set out in cl 1(g) and cl 1(h) in the Table at GIPA Act, s14(2).
Commendably, on 14 July 2021, the Council decided to release further material to Mr O'Grady responsive to Item 3 of his original request. The Council described that information as: (a) Information in respect of the code of the Code of Conduct complaints relating to [each complaint number and council officer named in those complaints], except for the communication between the Council and SINC [Solutions the third party conduct reviewer] in respect of the preliminary assessment conducted by SINC. Most of that information had previously been provided to Mr O'Grady as part of Council's correspondence to and from Mr O'Grady; (b) Information in relation to the Code of Conduct complaint regarding the CEO (CR19-361872), including correspondence between the Office of Local Government and Council; and (c) Business record in a redacted form. [footnotes omitted]
On 26 July 2021, the Council provided Mr O'Grady with a schedule of documents it continued to withhold from release. An updated version of that schedule was provided to the Tribunal and Mr O'Grady after the hearing of this matter. The Council described the withheld material as falling into two categories; 1. Firstly, information contained in emails between the Council's staff and SINC Solutions about the preliminary assessment conducted by SINC Solutions comprising documents 1 to 20 and 22 to 32. In each case, the Council relied on the matters set out in cl 1(g) and cl 1(h) of the Table and, in respect of document 31 the Council also relied on the exclusion on the basis of client legal privilege; and 2. Secondly, redacted information in a business record comprising documents 21 and 33 - the redacted records having been already provided to Mr O'Grady. In respect of these documents, the Council relied on the matters set out in cl 3(a), cl 4(b) and cl 4(d) of the Table.
The Council submitted to the Tribunal that Mr O'Grady made a further request for documents under the GIPA Act on 23 January 2020 (the Related Request). The Related Request was determined on 7 April 2020 by another Council staff member, Ms List, who gave evidence at the hearing of the present application.
The Council submits that in the Related Request, Mr O'Grady sought access to information which overlaps some of the material requested by him in Item 3 which is the subject of these proceedings.
Ms Lewis gave evidence on affidavit and was cross-examined by Mr O'Grady. In the course of that cross-examination, Ms Lewis stated that she had taken a "blanket approach" in deciding not to release any document sought by Mr O'Grady responsive to his request at Item 3.
Ms Lewis stated that all the documents were of the same nature and deemed the material to be of the same type and therefore took such an approach. Ms Lewis accepted that she did not read all the documents but instead she knew the type of documents which had been requested, she said she scanned some but that there were a number of documents she did not read since she had considered they would all disclose the same type of information. Ms Lewis' approach in determining the content of the documents is not the subject of any adverse finding; determination of content is only the first step in the determination of a request under the GIPA Act.
Ms Lewis stated that she was aware several complaints under the Code of Conduct were the subject of preliminary assessments by the external conduct reviewer. Ms Lewis concluded the process of investigation (or preliminary assessment) by a conduct reviewer was confidential and that disclosure of the information could reasonably be expected to prejudice the conduct, effectiveness or integrity if any audit, test, investigation or review conducted by or on behalf of the Council by revealing its purpose, conduct or results (whether or not commenced and whether or not completed). Aside from the finding that the process was confidential, Ms Lewis did not explain how she arrived at this conclusion. Ms Lewis considered it was not, on balance, in the public interest for the material to be released.
Mr O'Grady's cross-examination focused on the distinction between a preliminary assessment and an investigation under the Code of Conduct. This distinction, in terms of the matters to be determined on the present application was not relevant but achieved the purpose of exploring Ms Lewis' understanding of the request and the basis of her reasoning for non-release. Mr O'Grady's cross-examination formed the basis of his submission that the information he sought was acquired by the Council by engaging an unauthorised person and using "unlawful means" by which he meant the incorrect or inappropriate use of the Procedures for the Administration of the Code of Conduct (Procedures). The relevance of this submission to consideration of access under the GIPA Act is whether the disclosure of the information he requested could, for example, reveal or substantiate his opinion that the Council had engaged in misconduct, or negligent, improper or unlawful conduct.
The Council's next witness was Ms List, the council officer who determined the Related Request and who had conducted the third-party consultation with Ms Roach of SINC Solutions.
Ms List gave evidence on affidavit and was also cross-examined by Mr O'Grady. In cross-examination, she said Ms Lewis had been her supervisor up to 2018 and that she was aware that Ms Roach, the independent conduct reviewer, had formerly been employed by the Council. I do not conclude that there was any untoward conduct on the basis of those facts.
In determining the Related Request, Ms List conducted a third-party consultation with Ms Roach of SINC Solutions pursuant to the GIPA Act, s 54. The Council submits that the third-party consultation should be considered also in these proceedings. I concluded that the evidence regarding this consultation was relevant to the Tribunal's consideration of the present application.

Parties, Review and Onus

The decision of 20 August 2020 is a reviewable decision; GIPA Act, s 80(d) and the Applicant seeks administrative review of that decision pursuant to the GIPA Act, s 100.
As noted above, the Tribunal is to determine the correct and preferrable decision having regard to the material before it, including relevant factual material and the applicable law. The Tribunal's task is to re-make the decision as if it were the administrator; McDonald v Ku-ring-gai Council [2022] NSWCATAD 17.
In so doing the Tribunal is required to ensure that it does not, within its reasons for decision or otherwise, disclose any information in respect of which there is an overriding public interest against disclosure; GIPA Act, s 107. To that end, the Tribunal heard from the Council in a confidential session regarding some documents and these reasons will not refer in any detail to the subject matter of the documents; Ibrahim v Commissioner of Police (NSW) [2004] NSWADTAP 8 at [28].
As the decision-making agency, the Council bears the onus of establishing that its decision to refuse access to the information it has withheld is justified; GIPA Act, s 105(1).

Third Party Consultation

Consultation pursuant to the GIPA Act, s 54 has occurred in this case with Ms Roach and SINC Solutions Pty Ltd, the company through which Ms Roach's services were provided to the Council.
In the course of the third-party consultation, Ms Roach objected to the disclosure of some information, namely four emails. Those emails correlate to documents 11, 25, 27 and 30 in the schedule submitted by the Council to assist the Tribunal in its deliberations. Specifically, documents 11 and 27 are requests made of the Council by Ms Roach for information to be provided and documents 25 and 30 are emails providing the Council's responses. I note that material attached to document 30 has been provided to Mr O'Grady.
The basis of this opposition was disclosed to the Tribunal in a confidential session at the hearing of this matter. Though I have not set out the details of that opposition, I have considered the matters disclosed to me in that session in determining the outcome of this application.
The Council provided no explanation as to how such a release might prejudice the conduct, integrity or effectiveness of the investigation conducted by Ms Roach. At its highest, the Council's submissions on this subject were to the effect that: 1. The communications between the Council and SINC Solutions were intended to be confidential and that confidentiality had been maintained at all times; 2. The disclosure to Mr O'Grady of all communications between the Council and Ms Roach or SINC Solutions would impact on the flow of information between the Council and the independent conduct reviewer; 3. It was critical that the Council and its independent conduct reviewers are able to carry out their functions with an expectation of confidentiality; and 4. Disclosure of the communications would have likely caused detriment to Council and the independent conduct reviewer.
The lone fact arising from the evidence was that communications between Council and SINC Solutions were confidential. I was not taken to any other evidence on which the submissions listed above were based. While contextual or implied evidence, as opposed to direct evidence, is capable of establishing that disclosure "could reasonably be expected" to have the consequences asserted; Transport for NSW v Searle [2018] NSWCATAP 93; Anderson v University of Sydney [2018] NSWCATAD 196 at [81] - [83] there must be sufficient evidence on which a finding of prejudice may be made. In reviewing the materials, I was unable to discern what prejudice might arise to either SINC Solutions or the Council by the disclosure of the documents.
Ms Roach also objected to the unredacted release of two invoices issued by SINC Solutions to the Council. Those documents are listed at 21 and 33 of the Schedule, having been released to Mr O'Grady in redacted form. The amounts charged by SINC Solutions to the Council for the work undertaken by it were not redacted.

"Could reasonably be expected"

The Tribunal is called upon to examine whether the effect, set out in a relevant clause of the Table, is established and then to ask whether the disclosure "could reasonably be expected" to have the specified effect; Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [30]. That phrase is to have its ordinary meaning and requires the decision-maker to determine as to whether it is reasonable to expect that disclosure would have the relevant effect. The word reasonable, in that context, means something that is not irrational, absurd or ridiculous; Transport for NSW v Searle [2018] NSWCATAP 93 at [68].
As Mr O'Grady in his written submissions correctly states, something more than a mere risk or chance is required, there must be real or substantial grounds which are more probable than not; Leech v Sydney Water Corporation [2010] NSWADT 198 at [28]; Neary v State Rail Authority [1999] NSWADT 107 at [35]-[36] and the cases there cited.

The balancing of matters required under the GIPA Act

The Tribunal is required, in conducting the balancing analysis under GIPA Act, s 13, to have regard to the following matters: 1. the objects of the legislation contained in GIPA Act, s 3; 2. the presumption in favour of disclosure of government information as provided by, in particular, GIPA Act, s 5 and s 12 - those considerations to be given significant weight; 3. the considerations in s 14 against disclosure; and 4. to the principles set out in section 15 of the GIPA Act to determine whether there is an overriding public interest against disclosure or whether the presumption in favour of disclosure prevails.
Aside from those matters for which there exists a conclusive presumption against disclosure, the balancing of considerations for and against disclosure should favour disclosure; Taylor v Destination NSW [2017] NSWCATAD 272 at [17]. The process is not a matter of mere mechanistic tabulation; rather the balancing of competing interests "is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation: Hurst v Wagga Wagga City Council at [94]; Battin v University of New England [2013] NSWADT 73 at [74]. Instead, the process requires a broad value judgment 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 the GIPA Act, s 15: Transport for NSW v Searle [2018] NSWCATAP 93 at [104].
I have adopted the approach outlined in Transport for NSW v Searle [2018] NSWCATAP 93 at paragraph [104], in setting out the competing public interest considerations for and against disclosure, attributing weight to each consideration and to determine the balance in the light of such weighting.

Considerations in Favour of Disclosure

There exists a presumption in favour of disclosure of government information unless there is an overriding public interest against disclosure; GIPA Act, s 5.
A person who makes a valid application for access to government information has a legally enforceable right to be provided with access to that information unless there is an overriding public interest against disclosure; GIPA Act, s 9(1).
The presumption in s 5 and the right created in s 9 of the GIPA Act give effect to the object stated at GIPA Act, s 3(1)(c) which provides that access to government information should only be restricted where there is an overriding public interest against disclosure.
The finding of an "overriding public interest against disclosure" requires a balancing between considerations in favour of and against disclosure; GIPA Act, s 13; Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [19] and Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [47].
The operation of the GIPA Act, s 5 and s 12 recognise the significance of the presumption in favour of disclosure which applies without limitation, in every case. Such consideration should be accorded, therefore, "significant weight" when determining whether access to information should be granted; Selby v Commissioner of Police (NSW) [2013] NSWADT 61 at [89]; Camilleri v Commissioner of Police (NSW) [2013] NSWADT 80 at [48].
At hearing the Council did not make further submissions identifying those considerations it considered to be in favour of disclosure. However, in her written reasons for decision, Ms Lewis stated the following were relevant to the present application and in favour of disclosure: 1. Disclosure of the information could reasonably be expected to inform the public about functions and procedures carried out by the Council. 2. The information relates to a stormwater drainage matter which affected Mr O'Grady's property. 3. Disclosure supports the objects of the GIPA Act.
Ms Lewis conceded in cross-examination that another matter in favour of disclosure was that the information disclosed may or could reasonably be expected to reveal or substantiate that an agency has engaged in misconduct or negligent, improper or unlawful conduct. Contrary to the assertions made in Mr O'Grady's written submissions, I found Ms Lewis to be a credible and helpful witness. I did not consider Ms Lewis' evidence to be an admission that there in fact existed misconduct or negligence, improper or unlawful conduct. However, in my opinion, it was a proper concession and is further consideration in favour of disclosure relevant to the present application.
In addition to the objectives set out in the GIPA Act, s 3, I consider the public interest considerations in favour of disclosure in this case are as follows: 1. the general public interest in favour of disclosure of government information; 2. the disclosure of the information could reasonably be expected to enhance government accountability in regard to dealing with allegations of misconduct, including the handling of a preliminary assessments of complaints made under the Code of Conduct; 3. disclosure of the information could reasonably be expected to contribute to positive and informed debate on issues of public importance, namely alleged misconduct on the part of senior staff of the Council; 4. disclosure of the information could reasonably be expected to inform the public about the operations of the Council in regard to its approach to Code of Conduct complaints; and 5. the personal factors of the Applicant, in particular that he seeks access to information in order to understand in detail, how his complaints have been handled.

Considerations Against Disclosure

GIPA Act, s 14 sets out public interest considerations against disclosure. The only material where there is a conclusive overriding public interest against disclosure are described in the GIPA Act, Sch 1.
The determination of whether there exists an overriding public interest against disclosure also requires consideration of the matters set out in GIPA Act, s 15. Those principles are clear and do not require further elucidation.
In submissions before this Tribunal, the Council relied on the following public interest considerations against disclosure provided by reference the following clauses in the Table; 1. 1(g) - that it could reasonably be expected that the disclosure of the information may have the effect (in particular or generally) of founding an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence; 2. 1(h) - that it could reasonably be expected that the disclosure of the information may have the effect (in particular or generally) to prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).
Relevant to the redacted information in the business records (being documents 21 and 33 in the Council's schedule), the Council relied on the following public interest considerations against disclosure, which I have also listed by reference to the clauses in the Table; 1. 3(a) - that the disclosure could be reasonably expected to reveal an individual's personal information; 2. 4(b) - that the disclosure of the information could reasonably be expected to reveal commercial-in-confidence provisions of a government contract; and 3. 4(d) - that the disclosure of the information could reasonably be expected to prejudice any person's legitimate business, commercial, professional or financial interests.
Lastly, and as to the document provided to the Tribunal in a sealed envelope (being document 31 in the Council's schedule), the Council asserted a claim for legal professional privilege. An overriding public interest against disclosure is to be conclusively presumed where the disclosure of information is the subject of legal professional privilege (or, more correctly, client legal privilege) unless the person in whose favour the privilege exists has waived that privilege; GIPA Act, Sch 1, cl 5.

Consideration

In determining the correct or preferrable decision, the Tribunal is not limited to considering only those matters submitted by the parties. However, having reviewed the other clauses in the Table, I have concluded that the clauses identified by the Council are the most applicable to the present case. I will address those considerations below by reference to the particular clauses in the Table.
I have reviewed each of the documents to which public interest considerations against disclosure are asserted by the Council to apply. I have also reviewed the descriptions for those documents applied in the Council's schedule. The descriptions are detailed and accurate and, to a greater extent disclose the manner in which the investigation was conducted.

Particular Public Interest Considerations Against of Disclosure

Document 31 and the Council's Claim of Client Legal Privilege

The Council asserts client legal privilege over information contained in document 31 in the Council's schedule.
GIPA Act, Sch 1, cl 5 provides for a conclusive overriding interest against disclosure where the document contains material which is subject to legal professional privilege. The effect of material coming within GIPA Act, Sch 1 is that an agency is not required to balance the public interest in favour of or against disclosure before refusing access to it, and the Tribunal is precluded from considering the public interest test in relation to that information; Betzis v Commissioner of Police [2020] NSWCATAD 71 at [31].
While not a reviewable decision, GIPA Act, Sch 1, cl 5(2) requires an agency to consider whether it would be appropriate to waive legal professional privilege in any event. Aside from asserting its claim to legal professional privilege, there is nothing before the Tribunal to suggest the Council has in fact given the relevant consideration under this provision.
The GIPA Act does not contain a definition of client legal privilege. Client legal privilege, also commonly referred to as legal professional privilege, has both statutory and long-standing common-law definitions; Transport for NSW v Robinson [2018] NSWCATAP 123.
While the common law definition is not precluded, the definition of client legal privilege in the Evidence Act 1995 (NSW), ss 118 and 119 provide a helpful definition which may inform whether a document could come within the exclusion provided under GIPA Act, Sch 1, cl 5. In summary, those elements are: 1. the information is a confidential communication (whether between lawyer and client, or between 2 or more lawyers acting for a client, or between the client and another person, or a lawyer acting for a client and another person that was made for the dominant purpose of the client being provided with professional legal services); 2. such communication having been created or prepared for the dominant purpose of providing legal advice to the client or the client obtaining legal services relating to a proceeding; and 3. the client objects to the release of that material.
In its written submissions the Council asserted that the document: 1. was an email from Ms Danysz, an in-house lawyer of the Council; 2. contained sensitive and confidential communications; 3. was created for the dominant purpose of Council, as the client, obtaining legal advice in connection with other proceedings in this Tribunal; and 4. contained information over which the Council has not waived its right to claim client legal privilege.
All of these submissions address the characteristics of client legal privilege set out in the Evidence Act and explained in decisions such as Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49.
I accept that the emails sent by Ms Danysz contained information that, subject to my findings below, there would have been a conclusive presumption against disclosure on the basis of the Council's claim of client legal privilege.
In Mann v Carnell (1999) 201 CLR 1, a decision handed down on the same day as its decision in Esso, the High Court, citing Attorney-General (NT) v Maurice (1986) 161 CLR 475, stated: Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. [footnotes omitted]
Consistent with the description provided in the Council's schedule, document 31 is not just an email from Ms Danysz but is in fact an email sent by Mr Usher, a Council staff member, to Ms Roach which encloses an email chain between Ms Danysz and other Council staff regarding legal proceedings. Ms Roach is a third party. It is a deliberate communication from a Council staff member whose position description denotes some seniority.
The confidential communication contained in Ms Danysz's original emails has been sent to a third party by the holder of that privilege. This is inconsistent with the maintenance of a claim for client legal privilege. It was not asserted that the communication in document 31 was made in the context of the preliminary assessment being conducted under the Procedures and there is no other basis on which it is said that confidentiality attaches to the communication between Mr Usher and Ms Roach. Mr Usher's email to Ms Roach has no marking to assert confidentiality.
There was no evidence before me and it is not apparent from the document itself that the communication was made by Mr Usher to Ms Roach for the purpose of obtaining legal advice in connection with other proceedings though this was submitted as a basis on which the Council claimed client legal privilege over the document.
Document 31 is, in my opinion, a clear example of a client relinquishing or waiving its entitlement to claim privilege from disclosure.
Consequently, I find that there is no conclusive consideration against disclosure with respect to document 31.
The Council also submits, in the event there is no conclusive consideration against disclosure of document 31, that considerations under cl 1(g) and cl 1(h) of the Table should apply to this document. I will consider this document below together with the other materials below.

Clause 1(g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to the agency in confidence;

The thrust of the Council's submissions regarding this consideration was that the material to which it was asserted this consideration applied was created solely for the purpose of confidential communications between the Council and its independent conduct reviewer in accordance with the Procedures in place at that time.
Mr O'Grady's principal submissions, both orally at hearing and in writing, may be summarised in two points; 1. Firstly, the Council has to show the effects that it believes may be reasonably expected to occur if the information was to be disclosed; and 2. Secondly, the GIPA Act does not authorise the withholding of information obtained by an unauthorised person via unauthorised means (a reference to Mr O'Grady's central contention that his complaints should not have been referred to a third-party conduct reviewer under the Procedures) and therefore neither the considerations in cl 1(g) nor cl 1(h) of the Table should apply.
There are two elements to the consideration at cl 1(g) of the Table. The Council did not rely on the first element, that disclosure of the information to Mr O'Grady may found an action against the Council for breach of confidence, rather the Council relied on the second element of cl 1(g) that release to Mr O'Grady would result in disclosure of information provided to the agency in confidence.
In regard to this consideration, the Council submits that: 1. The information held in relation to the preliminary assessment conducted by SINC Solutions was created for the sole purpose of the investigation and that it was never intended to be made public. 2. The Procedures in place at the time of the alleged misconduct expressly contained provision that information about code of conduct complaints was to be treated as confidential and not publicly disclosed unless expressly authorised to do so. 3. Council staff are obliged to comply with those Procedures, including as to confidentiality. 4. SINC Solutions had a clear expectation of confidentiality and that confidentiality was maintained at all times even though most attachments had been provided to Mr O'Grady in other circumstances. 5. Access to electronic code of conduct files was restricted within the Council.
The disclosure under cl 1(g) must be of information provided to the agency in confidence. Information provided by the agency is not captured by this clause.
As to the specific documents over which the Council says this consideration applies: 1. Documents 1, 2, 3, 4, and 22 to 26 are emails and letters concerning the referral of the code of conduct complaints. While the communications have a character of confidentiality, the information is being provided by the Council - not to it. 2. Similarly, document 31 is a communication from the Council to Ms Roach. It is doubtful that document 31 is made in the context of any review and it is similarly doubtful that the communication was made by Mr Usher on a confidential basis. 3. Documents 6, 7, 10, 13, 15, 16, 18 and 28 are emails between Council staff internally. None of those communications result in the disclosure of information provided to the agency in confidence by SINC Solutions or any other person. 4. Documents 11, 14, 17 and 27 are communications initiated by Ms Roach and are expressed as being confidential communications. I find that the consideration at cl 1(g) does apply to these communications. 5. Documents 20 and 32 are the emails from Ms Roach which attach the preliminary assessments and determinations of the code of conduct complaints. Those communications are provided to the Council and are expressed as being confidential. The attached assessments and determinations were provided to Mr O'Grady. I find that the consideration at cl 1(g) also applies to these communications.

Clause 1(h) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or, on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed);

The Council submits that disclosure of communications between Council staff and Ms Roach would prejudice the conduct, effectiveness or integrity of the investigation and preliminary assessment process by revealing, in particular, its conduct. However, as I note above at paragraph 54 above, it is not sufficient to merely assert that a consideration applies, there must be an evidential basis upon which to support a finding that a consideration may apply; see, for example the evidence adduced in APD v Commissioner of Police [2012] NSWADT 42.
To meet the public interest consideration against disclosure under clause 1(h), the following elements are required: 1. Prejudice to the conduct, effectiveness or integrity of any audit, test, investigation or review; 2. Conducted by or on behalf of the agency; 3. By revealing its purpose, conduct or results; 4. Whether or not the investigation is commenced and whether or not it is completed.
The Council's contention that clause 1(h) applies is not made out because: 1. The disclosure of communications between Council staff and Ms Roach would not cause the purpose of the investigation to be revealed. The purpose of the investigation or preliminary assessment was not confidential as Mr O'Grady had initiated the complaint and would have known, from the Procedures, that such an assessment was to occur. 2. The result of Ms Roach's investigation or preliminary assessment was disclosed to Mr O'Grady. 3. The fact that the preliminary assessment was conducted was known. It is the manner in which the assessment was conducted which is relied upon by the Council to assert this consideration applies. It is to be expected that it would be necessary for Council staff and Ms Roach to communicate with each other in order to provide information to allow the preliminary assessment to take place and to receive requests for information and a copy of the completed assessment. There is no evidence that any prejudice to the process arises by revealing the manner of how that process was conducted.
Further and as to particular documents, or groups of documents I find that; 1. Documents 1, 2, 3 and 4 are a series of emails and letters concerning the referral of the first set of code of conduct complaints. Documents 22 to 26 are a series of similar emails and letters concerning the referral of the second set of code of conduct complaints. None of the information in those documents could be said to reveal the manner in which the investigation was conducted. None of that material, on its face, could be reasonably expected to be prejudicial to the process adopted by the Council under the Procedures. 2. Document 20 is described by the Council as an email from Ms Roach to Mr Usher attaching three Assessments and Determinations - being the first set of code of conduct complaints referred to SINC Solutions. Document 32 attaches the two Assessments and Determinations prepared by Ms Roach. These emails which send over the assessments and determinations and contain some observations on process does not disclose the conduct of an investigation. I find that none of the information in documents 20 or 32 reveals anything which could lead to a finding that the disclosure could be reasonably expected to prejudice the conduct, effectiveness or integrity of the process being undertaken by the Council. 3. Documents 5, 8, 9, 11, 12, 14, 17 and 19 are emails between Ms Roach and various Council staff either requesting, providing or following up on requests for documents for the purposes of the preliminary assessment or investigation with respect to the first set of code of conduct complaints. Documents 27, 29 and 30 are of similar ilk though they pertain to the second set of code of conduct complaints. According to the Council's schedule of documents, most of the documents provided to Ms Roach and attached to these emails have been provided already to Mr O'Grady by the Council and it is only the emails themselves which are withheld on public interest grounds. It is obvious that an external reviewer will need to request materials from the Council in order carry out the work they are contracted to do. The communications, while asserted to be confidential, do not reveal any details about the conduct of the preliminary assessment which could reasonably be expected to prejudice that or any other investigation or assessment. 4. Documents 6, 7, 10, 13, 15, 16, 18 and 28 are, as I note above, emails between various staff of the Council. None of those communications reveal the purpose of results of the investigation into Mr O'Grady's complaints. To the extent these documents reveal something of the conduct of that investigation, I find that these communications do not reveal any details about the conduct of the preliminary assessment which could reasonably be expected to prejudice that or any other investigation or assessment. 5. Document 31 is a communication from Mr Usher to Ms Roach forwarding an email communication by Ms Danysz. From reading of the document, I have concluded there is no information contained in it which could be reasonably expected to prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or, on behalf of an agency by revealing its purpose, conduct or results.
Accordingly, I do not consider that this public interest consideration against disclosure would apply in relation to the information requested by the Applicant.

Clause 3(a) reveal an individual's personal information

Clause 4(b) reveal commercial in confidence provisions of a government contract

Clause 4(d) prejudice any person's legitimate business, commercial professional or financial interests

These considerations apply to the withholding of some information contained in documents 21 and 33 to the Council's schedule. At hearing, Mr O'Grady submitted that he was not interested in hourly charge-out rates tendered by SINC Solutions or the hours taken by Ms Roach or SINC Solutions to complete the preliminary assessment. Mr O'Grady stated he was only interested in how much the Council had paid for the external reviewer to conduct the preliminary assessments and did not wish to challenge the withholding of further material on the basis of cl 3(a), cl 4(b) and cl 4(d) of the Table.
Documents 21 and 33 as released to Mr O'Grady in redacted form provide him with the information about how much the Council paid the external reviewer. I am satisfied, taking into account the objection to the release of that material and Mr O'Grady's concession, that further material should not be disclosed to Mr O'Grady from those documents.

Is there an Overriding Public Interest Against Disclosure?

On the basis of my findings above; 1. there are no public interest considerations against disclosure of information contained in documents 1 to 10, 12, 13, 15, 16, 18, 19, 22 - 26 and 28 - 31. Had I concluded that any public interest consideration applied with respect to these documents, I would have attributed some, but not significant, weight to those considerations. 2. there exists a public interest consideration against disclosure of information contained in documents 11, 14, 17, 20, 27 and 32 on the basis that release of those documents may result in the disclosure of information provided to the agency in confidence. I assign some weight to this when balancing the competing considerations in favour of and against disclosure. 3. Documents 21 and 33 have been provided in a form acceptable to Mr O'Grady and he does not press for further release of information redacted from those documents.
I have set out at paragraph 68 those considerations in favour of disclosure which I consider are relevant in this case. I have concluded that the release of the documents may enhance government accountability and may provide further information to Mr O'Grady or the public concerning the policies and practices of the Council and I attribute significant weight to these considerations in favour of disclosure.
Having regard to: 1. the considerations both for and against disclosure as set out above; and 2. the principles set out in the GIPA Act, s 15, I have concluded that, on balance, the public interest considerations against disclosure do not outweigh the public interest considerations in favour of disclosure, and applying s 13 of the GIPA Act, there is an overriding public interest in favour disclosure of the information contained in the material listed at documents 1 - 20 and 22 to 32 in the schedule.

Conclusion

Accordingly, and for the reasons set out above, I find that the decision of the Council dated 5 August 2020 should be set aside and in place of that decision, the documents numbered 1 to 20 and 22 to 32 in the schedule provided by the Council to the Tribunal and Mr O'Grady are to be released to Mr O'Grady without redactions no later than 28 days from the date of this decision. Such period of delay is consistent with GIPA Act, s 107.
As to the balance of the documents, being documents numbered 21 and 31 which are two business records of SINC Solutions and which have been released to Mr O'Grady in redacted form, unredacted copies of those documents are not to be released.

Orders 1. Pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(c) and s 64(1)(d), the transcript and recording of the hearing of those parts of the hearing which took place in private and in the absence of the applicant are not to be published or disclosed to the applicant or the public. 2. Pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(c), the publication of the confidential exhibits filed by the respondent in these proceedings and the matters contained in those exhibits is prohibited. 3. Pursuant to the Civil and Administrative Tribunal Act 2013 (NSW) s 64(1)(d), disclosure to the applicant of the confidential exhibits filed by the respondent in these proceedings and of matters contained in those exhibits is prohibited. 4. The respondent's application for summary dismissal is refused. 5. The respondent's application for the matter to be determined without a hearing is refused. 6. The respondent's decision dated 5 August 2020 is set aside. 7. Order that documents numbered 1 to 20 and 22 to 32 inclusive in the schedule provided by the respondent to the Tribunal and applicant at the conclusion of the hearing of this matter are to be released to the applicant without redactions no later than 28 days from the date of this decision. 8. Order that unredacted copies of the documents 21 and 33 in the schedule are not to be released to the applicant in unredacted form.

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 April 2022

Government Information (Public Access) Act 2009(NSW)ss 3, 4, 5, 9(1), 12, 13, 14, 15, 53, 54, 55, 80(d), 93, 104, 105, 107, Sch

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