O'Sullivan v Medical Council of New South Wales

NCAT Administrative and Equal Opportunity|2015-03-17

Solicitors: Slater and Gordon Lawyers (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 1410612

Background

Dr Brendan O'Sullivan is the applicant in these proceedings. On 6 March 2013, and 24 March 2013 the applicant requested information from the respondent Agency by way of two applications under the Government Information (Public Access) Act 2009 (the GIPA Act).

Application 1

On 11 May 2013 the applicant was asked to re-scope one of his applications in order to make it comply with the provisions of the GIPA Act. The applicant applied for access to the following material:

Application 2

On 24 March 2013 the applicant applied for access to the following material (inter alia):

Copies of internal policy protocol or procedure followed to record legal officer time consumed and / or fees applicable to any particular matter or case. How legal time is apportioned and priorities assigned to legal officers, and pay rates of legal officers currently working for the NSW Medical Board / Council.
Copies of any invoices and receipts for work done in any of the applicant's matters external to the NSW Medical Board / Council.

The respondent Agency determined the matter on 2 August 2013, having identified 98 documents, released 9 in full, 4 were withheld, and the balance of 85 documents were released in part.
The applicant sought an internal review of the 2 August 2013 decision and on 4 November 2013 the respondent Agency determined not to release any of the information sought by the applicant in the internal review.
The applicant sought a review by the Information Commissioner of this application (IPC Ref: 13/R000589) which is referred to in the proceedings as relating to the '6th application'.
The Information Commissioner finalised their review and issued a (separate) report dated 25 September 2014. That Report recommended that the agency make a new decision. The Information Commissioner also provided comment on the general claim of legal professional privilege and guidance as to the application of those matters to the facts in this case (having reviewed the confidential material).
The Information Commissioner made specific observations in respect of the respondent Agency's claims in respect of 92 of the documents. In recommending the new decision the Information Commissioner recommended that the respondent Agency have regard to the matters raised and the guidance given in the report.
This '6th' application formed part of the administrative review application lodged with the Tribunal on 30 October 2014. (See paragraph 5 above).
On 31 October 2014 the respondent Agency issued a fresh decision to release more information. In respect of the 89 documents previously withheld either partially or totally, the respondent Agency determined to release in full 18 of the documents, and to significantly narrow the restriction in the 71 remaining documents. Thus the new decision was that 27 documents were released in full, and 71 documents were released in part.
In general terms the material was eventually withheld on the basis that there was a public interest consideration against disclosure, which outweighed the overriding public interest in favour of disclosure. During earlier considerations, there was some reliance on the conclusive presumption against disclosure provisions referred to in section 14 (1) and Schedule 1 of the GIPA act. The respondent Agency withdrew from that position during the course of their reconsideration
The Tribunal's function on review under section 63 of the Administrative Decisions Review Act 1997 is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.
The matter was listed for two Planning Meetings prior to hearing. The matter first came before the Tribunal on 9 December 2014 whereby a number of procedural directions were made and a timetable set for the period leading up to the hearing of the matter. At this time the applicant was not legally represented. A hearing date was set down and the matter was adjourned until 17 March 2015.
In the interim the respondent filed detailed submissions on 22 January 2015. The first four pages of those submissions run a threshold / jurisdictional argument inferring that the Tribunal does not have the jurisdiction to entertain the application.

Jurisdiction

The application was lodged on 30 October 2014, enclosing copies of the Information Commissioner reports / decisions referred to in paragraphs 4 and 11 (above). It would appear that the application was provided in this form as it would appear that the matters referred to in section 101 (2) of the GIPA Act were in play. That section provides that: 101 Time for applying for NCAT administrative review (1) An application for NCAT administrative review must be made within 40 working days after notice of the decision to which the review relates is given to the applicant (unless subsection (2) gives a longer period to apply for NCAT administrative review). (2) If the decision is the subject of review by the Information Commissioner, an application for NCAT administrative review can be made at any time up to 20 working days after the applicant is notified of the completion of the Information Commissioner's review. (3) If an application for NCAT administrative review of a decision is made while the decision is the subject of review by the Information Commissioner, the Information Commissioner's review is to end. (4) NCAT may, on application by a person wanting to make an application for NCAT administrative review out of time, extend the time for the making of such an application by the person if NCAT is of the opinion that the person has provided a reasonable excuse for the delay in making the application. (5) An application to extend the time for the making of an application for NCAT administrative review must be in writing unless NCAT dispenses with the requirement in a particular case. (6) The time for making an application for NCAT administrative review may be extended under this section even if that time has expired. (Emphasis added)
In my view it is clear (in the absence of any evidence to the contrary) from the material before the Tribunal that the application was filed under section 101 (2) of the GIPA Act, and was lodged within the 20 working days provided for by that section.
Whilst the respondent submits that the application attaches two reviews / reports from the Information Commissioner, and that the Tribunal has no jurisdiction to review those reviews, in my view such a submission fails to take into account the contents of the actual application. The application states under grounds: Failure of the 'agency' to respond to the Information Commissioner's Reviews. Improper use of provisions of the GIPA Act by the 'agency' on multiple counts and over an extended period of time (covered by the IPC Reviews)
The review application to the Tribunal is clearly directed towards the decision of the respondent agency. I note that the fresh determinations issued on 31 December 2014 and 5 November 2014 arise directly from the Information Commissioner's reviews and form the crux of the outstanding business remaining between the applicant and the respondent. The approach taken by the applicant provides a means for administrative review by the Tribunal, out of necessity to comply with the provisions of section 101 of the GIPA Act.
I note that section 101 (4) of the GIPA Act provides that on application the Tribunal may extend time,… if the Tribunal is of the opinion that the person has provided a reasonable excuse for the delay in making the application. If the respondent resisted the jurisdictional question with a formal application, on the material currently before the Tribunal, I would either grant leave to amend the application to also annex the subsequent reviews of 31 October 2014 and 5 November 2014, or extend time to file those reviews until 8 December 2014. At the time of filing it appears that the applicant would have been entitled to rely on sections 93 (3) and section 63 of the GIPA Act, in that the agency was to make a fresh decision and has deemed to refuse to release the information.
In reaching this position I note in particular the first item listed at paragraph 21 (above) and also the matters submitted in the applicant's 3 December 2014 correspondence. I note that the agency did not address this jurisdictional issue at the hearing but relied on their written submissions.
I therefore find that there is a valid application for review of the two decisions by the respondent Agency, before the Tribunal.

Applicable Legislation

The objects of the GIPA Act are 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.
The case of Mannix v Department of Education and Communities [2014] NSWCATAD 35 provides a useful outline of the approach under the GIPA Act. At paragraph 5 Senior Member Walker provides the following outline of the provisions: The objects of the GIPA Act as set out in s 3(1) are to advance the system and of responsible and representative democratic government by authorizing and encouraging public release of government information by agencies, giving the public an enforceable right to access to government information and providing that such access is restricted only when there is an overriding public interest against disclosure. The term "government information" is given a wide meaning by s 4, being defined as "information contained in a record held by an agency". "Agency" is also defined in s 4 and includes "(a) a Government Department". It is not disputed that the Department of Education and Communities is such a department and is therefore an agency to which the legislation applies. The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 5. Applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure: s 9. The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the "overriding secrecy laws" set out in schedule 1. In the case of those laws it is conclusively presumed that there is an overriding public interest against disclosure: ss11 and 14. With respect to government information not covered by overriding secrecy laws, the Act establishes a principle that there is a public interest in favour of disclosure: s12(1). The category of public interest considerations in favour of disclosure is not limited: s 12(2). That subsection then sets out several examples of public interest considerations in favour of disclosure. There can be an overriding public interest against disclosure only when the public interest test in s 13 is satisfied. It provides that "There is an overriding public interest against disclosure of the 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". In considering whether there is an overriding public interest against disclosure, the tribunal is to be guided by s 15, which provides, relevantly for present purposes, that agencies must exercise their functions so as to promote the objects of the GIPA Act and must have regard to any relevant guidelines issued by the Information Commissioner.
Section 14 of the GIPA Act provides the circumstances whereby public interest considerations against disclosure of government information may be applied. Relevant to this application, the Agency relied on the provisions outlined below (being public interest considerations) against disclosure of a small quantity of the information. Relevantly section 14 provides: 14 Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. (3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section. (4) The Information Commissioner must consult with the Privacy Commissioner before issuing any guideline about a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to this section).
The Table to section 14 provides the various criteria or considerations referred to in section 14 (2). The Table lists seven areas whereby relevant public interest considerations against disclosure are set out. In respect of the 5th application concerning the authorship of the complaint document, the respondent agency relied on Clause 3 (f) and attached significant weight to the provisions. Table 3 Individual rights, judicial processes and natural justice There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects: (a) reveal an individual's personal information, (b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002, (c) prejudice any court proceedings by revealing matter prepared for the purposes of or in relation to current or future proceedings, (d) prejudice the fair trial of any person, the impartial adjudication of any case or a person's right to procedural fairness, (e) reveal false or unsubstantiated allegations about a person that are defamatory, (f) expose a person to a risk of harm or of serious harassment or serious intimidation, (g) in the case of the disclosure of personal information about a child - the disclosure of information that it would not be in the best interests of the child to have disclosed. (Emphasis added)
In respect of the 6th application concerning the invoices and fee documents relating to legal work, the respondent agency relied on Clause 4 (d) and attached significant weight to the provisions. 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) undermine competitive neutrality in connection with any functions of an agency in respect of which it competes with any person or otherwise place an agency at a competitive advantage or disadvantage in any market, (b) reveal commercial-in-confidence provisions of a government contract, (c) diminish the competitive commercial value of any information to any person, (d) prejudice any person's legitimate business, commercial, professional or financial interests, (e) prejudice the conduct, effectiveness or integrity of any research by revealing its purpose, conduct or results (whether or not commenced and whether or not completed). (emphasis added)

Respondents Case / Submissions

At the hearing, the respondent proceeded with their case first. This practice is appropriate as when having regard to the GIPA Act, the onus is on the agency to justify their decision.
The respondent filed detailed submissions which addressed both the jurisdictional issue outlined earlier in this decision, and the history of the applications and the various decisions.
In respect of what I have referred to as Application One (see paragraph two above or referred to by the respondent as the fifth application) the following is apparent.

There remains only one document in contention, that is the document that (in un-redacted form) identifies the individuals who created / authored/ modified, the electronic document with the file name: Vexatious complaints.aij.ap.doc
The respondent holds a concern that bearing in mind the history of the applicant's dealing with the respondent agency, and noting the contents and subject matter of the document, revealing the identity of the persons responsible for creating the document could reasonably be expected to expose those persons to a risk of harm or of serious harassment or serious intimidation.

The respondent submits that the relationship between the applicant and various staff members of the respondent Agency has been acrimonious, and there is a history of the applicant referring to those individuals in extremely disparaging terms. Significant parts of the submissions focus on what might be referred to as the applicant's attitude towards various individuals within the respondent Agency who have been involved (necessarily) in the applicant's dealings with that Agency. It appears uncontroversial that the applicant has had significant professional disputes which have necessitated his protracted interaction with the respondent Agency.
The respondent's submission set out cases decided by this Tribunal and the Administrative Decisions Tribunal in respect of clause 3 (f) under the table to section 14 of the GIPA Act. Those submissions deal with AVN v Department of Financial Services [2013] NSWADT 60, Camilleri v Commissioner of Police [2013] NSWADT 80, AEZ v Commissioner of Police [2013] NSWADT 90 in addition to other cases.
Reliance is placed on the decision in AEZ at paragraphs 82 - 99. In that decision, Judicial Member Molony (as he was) examined the clause. Disclosure of the information could reasonably be expected expose a persons to risk of harm or of serious harassment or serious intimidation (s 14 Table 3(f)) 82. The question here is whether if the information is disclosed, it could reasonably be expected that the disclosure would "expose a person to a risk of harm or of serious harassment or serious intimidation." 83. The GIPA Act does not contain a definition of harm, serious harassment or serious intimidation. It is to be noted that harm is not qualified by the adjective serious. The Macquarie Dictionary online defines harm thus - noun 1. injury; damage; hurt: to do someone bodily harm. 2. moral injury; evil; wrong. -verb (t) 3. to do harm to; injure; damage; hurt. -phrase 4. in harm's way, in danger. 5. out of harm's way, out of danger. [Middle English; Old English hearm] 84. Harm is a concept frequently used by the law. The criminal law prohibits assaults occasioning bodily harm. This has been interpreted in its ordinary meaning to" include any hurt or injury calculated to interfere with the health or comfort of [the injured person]": see R v Donovan [1934] 2KB 498. "Serious harm" is a concept used in criminal defamation, which requires proof of an intent to cause serious harms. Section 40 of the Civil Law (Wrongs) Act 2002 (ACT) on the other hand defines "harm" to be harm of any kind, including personal injury, damage to property and economic loss. Harm is also a concept in child protection: in section 9 of the Child Protection Act 1999 (Qld) it is defined as "as any detrimental effect of a significant nature on the child's physical, psychological or emotional wellbeing." 85. In the context of s 14 of the GIPA Act I am inclined to the view the meaning of harm should be confined to a real and substantial detrimental effect on a person, rather than on their business interests. This is so given the juxtaposition of the word "harm" with the concepts of serious harm and intimidation, and the fact that economic and business interests are the subject of public interest consideration against disclosure in part 4 of the section 14 Table. A detrimental effect may be to a person's physical, psychological or emotional wellbeing. 86. Serious harassment is a separate and distinct concept. The Macquarie Dictionary online defines harass - verb (t) 1. to trouble by repeated attacks, incursions, etc., as in war or hostilities; harry; raid. 2. to disturb persistently; torment. [French harasser, from Old French harer set a dog on] 87. The concept of harassment is one familiar to anti-discrimination law, with sexual harassment being prohibited and subject to remedies. A consideration of those laws reveals that a common element in most jurisdictions is that the person harassed would be offended, humiliated or intimidated by the conduct in the circumstances: see Sex Discrimination Act 1984 (Cth), s 28A(1); Anti-Discrimination Act 1977 (NSW), s 22A; and Equal Opportunity Act 1984 (SA), s 87(9). 88. In Henderson v McKenzie [2009] ACTSC 39 Higgins CJ was considering a charge of stalking with intent to harass contrary to s 35(1)(c) of the Crimes Act 1900 (ACT). His Honour said, at [6-8] - 6. Harassment is not defined in the Crimes Act, nor, indeed, in the Criminal Code 2002 (ACT) (Criminal Code). However, it does seem in context to bear its usual meaning, ie "to trouble by repeated attacks; harry; (1) to worry or unnerve (an enemy) by continuous small attacks; (2) to disturb, worry, torment, distress with annoying labour, care or misfortune" (World Book Dictionary); "Vex by repeated attacks; trouble, worry" (Concise Oxford Dictionary). 89. All of the definitions of harassment require a consideration of how the conduct complained of is experienced by the person alleged to be harassed, and are concerned with whether that person was offended, worried, tormented, distressed or harassed by the conduct. In the context of the GIPA Act where the decision maker has to be satisfied that, if the information is disclosed, it could reasonably be expected that the disclosure would expose a person to serious harassment, the assessment of the impact of the conduct on the individual concerned is an objective one, although particular circumstances and vulnerabilities relating to that individual may be taken into account when making that assessment. 90. The GIPA Act makes specific mention of serious intimidation as another element of the public interest consideration against disclosure in point 3(f) of the Table to s 14, despite the fact that the two concepts of intimidation and harassment are clearly related. 91. Intimidation is defined by The Macquarie Dictionary online as - verb (t) (intimidated, intimidating) 1. to make timid, or inspire with fear; overawe; cow. 2. to force into or deter from some action by inducing fear: to intimidate a voter. [Medieval Latin intimidātus, past participle, made afraid. See TIMID] 92. Intimidation is defined in s 7 of the Crimes, Domestic and Personal Violence Act 2007 (NSW) thus - (1) For the purposes of this Act, intimidation of a person means: (a) conduct amounting to harassment or molestation of the person, or (b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or (c) any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property. 93. In PE V MU [ 2010] NSWDC 2 William DCJ referred to that definition and said - 15...intimidatory conduct... is conduct amounting to harassment or molestation or contact by one person with another such as would cause the other person to fear for their safety. 16 Harassment is not defined in the Act but in its legal sense refers to ongoing behaviours that are found to be threatening or disturbing. ... 94. Importantly the intimidation or harassment referred to in point 4(f) is required to be serious intimidation or serious harassment, requiring that the decision maker be satisfied that release of the information could reasonably expose a person to intimidation or harassment that is heavy, weighty or grave, and not trifling or transient. 95. In the case of the information sought by AEZ, despite AQE's subjective beliefs, I do not think that, when considered objectively, the evidence demonstrates that disclosure of any of the information in issue could reasonably be expected to expose AQE to a risk of harm or of serious harassment or serious intimidation. While AQE may have a subjective fear that release of the information may expose him to such a risk, I am not persuaded on the evidence justifies that conclusion could be reasonably expected to expose him to such a risk. 96. While I accept that AEZ's determined pursuit of AQE after such a short relationship may well have justified an apprehension of harassment on his part at that time, it is important to bear in mind that there is no evidence that at any time threatened AQE or exposed him to harm. The evidence demonstrates that at all times she was seeking to understand why AQE had terminated their relationship. I accept that she did not make unusual or special efforts to obtain information regarding his whereabouts in an effort to contact him. In this regard AEZ knew when he would be at the airport, where he was staying in the US, and where he lived. 97. The fact that AQE did not pursue the granting of an AVO, instead allowing AVO application to be withdrawn is also relevant to this assessment. 98. Also is the fact that in the years since then, there is no evidence that AEZ has in any way attempted to contact, harm, harass or intimidate him. While AQE protested that his cross-examination by her Counsel represented her harassing him, I do not accept that was the case. That cross-examination while not attractive or edifying was necessary in order to put AEZ's case, and to test whether AQE's very poor recollection was a result of him being deliberately evasive or not. 99. In all the circumstances I do not accept that it could reasonably be expected that disclosure of any of the information in issue will expose AQE to a risk of harm or of serious harassment or serious intimidation
I note that in the above case evidence was put on by the Respondent on behalf of the third party (AQE). In the current case however no specific evidence has been filed on this point, however the two Exhibits tendered by the applicant could apply equally as the evidence of both parties. However what they submit that the Tribunal can or should glean from those exhibits is divergent. The approach has been one whereby the respondent has set out the nature of the information and placed it in a specific context based on the background history and material concerning the applicant's dealings with the respondent. Whilst there are significant submissions and arguments in respect of the invocation of the conditions present in clause 3 (f) there is little before me which indicate why, the factors outlined in section 14 (2) of the GIPA Act should invoke section 13 so as to rebut the general public interest in favour of disclosure as outlined in section 12 (1). The relevant provisions of the GIPA Act are reproduced below. 12 Public interest considerations in favour of disclosure (1) There is a general public interest in favour of the disclosure of government information. 13 Public interest test There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. 14 Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. (Emphasis added).
In AMH v Western New South Wales Local Health District [2014] NSWCATAP 33 the appeal panel reiterated the approach to be taken when considering section 14 of the GIPA Act. Importantly they reinforce the fact that any reliance on public interest considerations against disclosure involves a two stage approach. The Tribunal's decision and the appellant's arguments 20. At [34] of the Tribunal's decision, the Judicial Member set out the Tribunal's task in determining the appellant's application for review. Put simply, that task was to determine whether the respondent had established (s 105 of the GIPA Act places the onus on the respondent) the following: (a) a disclosure of the information in issue would give rise to one or more of the public interest considerations against disclosure (see s 14 of the GIPA Act), and (b) on balance, the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure of the information in issue (see ss 12 and 13 of the GIPA Act). 21. In regard to the public interest considerations against disclosure, the Judicial Member, at [39] to [41], noted that common to all the public interest considerations against disclosure in the table to subs 14(2), is that a disclosure of the information in issue 'could reasonably be expected' to have the nominated effect as set out in the table. The Judicial Member also cited the well accepted meaning of 'could reasonably be expected' in the context of the GIPA Act and other legislation proving for access to government information. 22. The Judicial Member found, at [83], that the respondent had established that public interest considerations against disclosure of the information in issue, on balance, outweighed the public interest considerations in favour of disclosure. That is, the Judicial Member found that the respondent had established that there was an overriding public interest against disclosure, in accordance with the public interest test in s 13 of the GIPA Act. 23. In regard to the public interest considerations against disclosure of the information in issue, the respondent relied on a number of those prescribed in the table to subs 14(2) of the GIPA Act: see at [37] to [68] of the Tribunal's decision. (Emphasis added).
In the case of Hurst v Wagga Wagga City Council [2011] NSWADT 307 also examines the Tribunal's task. 47. The Tribunal's task is to determine whether there is an overriding public interest against disclosure of the information in those documents in accordance with the Act, paying due regard to the principles in s 16. This requires that the public interest consideration both in favour and against disclosure be identified, so that the question of whether, on balance, the public interest considerations against disclosure outweigh those in favour of disclosure can be determined. Unless there is an overriding public interest against disclosure the presumption in favour of disclosure applies (s 5). 48. Public interests considerations in favour of disclosure are set out in section 12. The section makes it clear that those considerations are not limited.
In summary the respondent's submissions go to the issue that on the material that they have submitted in support of their submissions, that the disclosure of the information in their view could reasonably be expected to the person(s) to a person to a risk of harm or serious harassment or serious intimidation.
In oral submissions at hearing the respondent submitted that the Tribunal is entitled to take into account the individual who is seeking the information. This submission appears in part linked to the provisions in section 55 of the GIPA Act. I note that section 55 is a discretionary consideration when agencies determine access applications. 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.
The respondent relied on the case of Department of Agriculture and Rural Affairs v Binnie [1989] VR 836 to give meaning to the adverb 'reasonably' as it appears in clause 3. In that case the Court considering the meaning of terms used in the Victorian FOI legislation. At 842 the following was observed. The expression "reasonably likely" is substantially idiomatic, its meaning not necessarily unlocked by close dissection. In its ordinary use, it speaks of a chance of an event occurring or not occurring which is real - not fanciful or remote.
I note that the term "reasonably likely" is different to the relevant words in the GIPA Act (as in 'reasonably be expected'), however it does provide guidance in so far as what cannot be considered in making such an assessment. Ie: it cannot be fanciful or remote to meet the precondition.
The respondent submitted that the 'egg shell skull test' applied when considering clause 3(f), in so far as whether the actions might result in the undesirable outcomes for a third party (such as harm, feeling harassed or intimidated).
In respect of what I have referred to as Application Two (see paragraph seven above or referred to by the respondent as the sixth application) the following is apparent.

The respondent relies on the principles set out in Lawrence v Port Stephens Council [2008] NSWADT 243 and Neary v State Rail Authority [1999] NSWADT 107 in respect of the withholding of the remaining material in respect of the sixth application.

In Neary v State Rail Authority [1999] NSWADT 107 the President of the ADT considered clause 7 of the former Freedom of Information Act 1999. Agency's Objections 32 In its initial reply of 26 August 1998 the agency relied on the business affairs exemption set out in cl 7(1)(c) of Schedule 1 of the Act. At hearing the agency also relied on cl.7(1)(b) of Schedule 1 of the Act. As relevant, cl 7 provides: "7 Documents affecting business affairs (1) A document is an exempt document: (a) ... (b) if it contains matter the disclosure of which: (i) would disclose information (other than trade secrets) that has a commercial value to any agency or any other person, and (ii) could reasonably be expected to destroy or diminish the commercial value of the information, or (c) if it contains matter the disclosure of which: (i) would disclose information (other than trade secrets or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any agency or any other person, and (ii) could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency. (2) A document is not an exempt document by virtue of this clause merely because it contains matter concerning the business, professional, commercial or financial affairs of the agency or other person by or on whose behalf an application for access to the document is being made." The Clause 7(1)(c) Objection: 33 Sub-paragraphs (i) and (ii) of cl 7(1)(c) need to be satisfied. As to sub-para (i), the agency submits that the fees and disbursements incurred by it in defending the applicant's earlier application concern its financial affairs' as well as those of the Crown Solicitor's Office. I agree that expenditures on external professional services involve the conduct of the financial affairs of an agency. Financial affairs' in this context would also, I consider, cover the negotiation of fee arrangements with external providers, including such matters as the hourly rates charged, and the actual amounts paid. I am satisfied that the information contained in the invoices relates to the financial affairs' of the agency. 34 The key question is that which is required to be satisfied by sub-para (ii), i.e. whether the disclosure of the contents of the invoices for professional services could reasonably be expected to have an unreasonable adverse effect on those affairs'. 35 An objective view must be brought to bear on an agency's claim that release will have an adverse impact on its financial affairs. The Tribunal should approach issue from the viewpoint of a reasonable administrator. The administrator should have reasonable grounds for his or her perception. There must be more than a mere risk. While the key word used in the relevant provision - expect' - carries a firmer connotation than words such as anticipates', it is not necessary that the level of risk be such that it be assessed as more probable than not. Nor is it necessary for the administrator to apply a balance of probabilities calculus similar to that used to set the burden of proof in litigation. All relevant factors, including public interest considerations, should be taken into account. The extent and nature of the effect will be relevant, and often decisive. It is necessary to assess what is reasonable in the circumstances. 36 That approach emerges from a consideration of the Federal Court cases which examined this issue in the context of the early Commonwealth FOI cases concerned with the interpretation of the similar Commonwealth exemption (Freedom of Information Act 1982 (Cth) s 43). See News Corporation v National Companies and Securities Commission [1984] FCA 400; (1984) 5 FCR 88 and Attorney-General's Dept v Cockcroft (1986) 64 ALR 97; Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 100 ALR 111 at 120-1, 123-4; Searle Australia v PIAC (1992) 108 ALR 163, 178 and generally, Cossins, Annotated Freedom of Information Act New South Wales (1997) [107.15]-[107.18]. 37 The agency submitted that it wished to maintain confidentiality in relation to its legal fees' expenditure, so as not to convey to other firms that it engages or to other firms that are competing for its work any knowledge of what it is prepared to pay to rivals. It also noted that the Crown Solicitor's Office has a similar interest to protect. 38 The Tribunal has inspected the documents in dispute. They contain references to the total amount of fees charged including disbursements such as counsel's fees. As to the issue of counsel's fees, there were no submissions to the effect that the relationship with counsel would in any way be adversely affected by disclosure of their fees. 39 Accordingly in so far as the documents in dispute relate to counsel's fees they should be released. 40 As to the information in relation to expenditure on services provided by the Crown Solicitor's Office, release of information as the total amounts paid does not, I consider, place at risk in any meaningful way the nature of the arrangements that might exist between the agency and that Office. The only information shown in the invoices which might, arguably, fall within the protection of the exemption is the reference (found in hand-writing on two of the invoices) showing a multiple of a number (the hours of service rendered) and an hourly rate. 41 That information does, I consider, bear on the contractual relationship between the agency and the Office. It gives an insight into what rate the Office charges for a certain class of work. That information, if known to others with whom the agency deals in relation to the provision of legal services, might give an advantage to those third parties in negotiation of rates. Consequently, applying the tests referred to, I consider that the hand-written references to the hours and hourly rates The Clause 7(1)(b) Objection: 42 The information in issue could not reasonably be regarded as information with "commercial value", within the meaning of the case-law under the Commonwealth FOI Act: See Re Hopper and Australian Meat and Livestock Research and Development Corp (1989) 16 ALD 658; Public Interest Advocacy Centre and Searle Pty Ltd (AAT, Cth, unreported, 19 September 1991; in Federal Court (1992) 108 ALR 163). These cases involved product or similar information that resulted from the investment of significant research and time and effort by a business organisation. See also the Queensland case, Re Cannon and Australian Quality Egg Farms Ltd [1994] QICmr 9; (1994) 1 QAR 491. 43 Moreover, in applying the exemptions contained in cl 7 to business information, the hierarchy of interests sought to be addressed by paragraphs (a), (b) and (c) of cl 7(1) must be acknowledged. Paragraph (a), not in issue in this case, protects "trade secrets". There is no additional requirement of satisfaction of a public interest test. Paragraph (b) concerns "information (other than trade secrets) which has a commercial value". A public interest test applies but it is less stringent than that applicable under (c). Paragraph (c) deals with "information (other than trade secrets or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any agency or any other person". 44 While, as previously explained, I do regard the information in issue as "business" information to which the test in cl 7(1)(c)(ii) might be applied, I do not consider it to be information of the higher category reflected in para (b) - information that has an intrinsic commercial value of the kind considered in the Commonwealth and Queensland cases.

Evidence

The only evidence tendered in the proceedings (other than the material which is subject of these proceedings - the withheld material), are two documents filed by the applicant. Exhibit A1 is a letter of 1 March 2013 authored by the applicant. The exhibit includes copies of subsequent letters by the applicant dated 4 April 2013, 25 May 2013 and 25 August 2013. All letters in the correspondence refer to matters arising from the contents of Exhibit A2.
Exhibit A2 comprises two and a half page document created on behalf of the respondent Agency. The document is titled 'DEALING WITH DR O'SULLIVAN AS A MAKER OF VEXATIOUS COMPLAINTS'. The information held by the respondent concerning the identity of the author of that document (Exhibit A2) comprises the outstanding data in dispute in Application 1 (known previously as the fifth application).
As outlined earlier, neither party gave specific evidence in the proceedings, but the two exhibits (especially Exhibit A1) outline matters which could be applied to consider what weight if any attaches to the clause 3 (f) ground for refusing access, because release would 'expose a person to a risk of harm or of serious harassment or serious intimidation'. Exhibit A 1 also provides evidence which the Tribunal can take into account in considering whether there has been an appropriate application and consideration of the matters in section 55 of the GIPPA Act.

Submissions

The applicant filed detailed written submissions. The applicant set out examples of how the interaction between sections 12, 13 and 15 of the GIPA Act apply. The applicant cited the case of Australians for Sustainable Development v Barangaroo Delivery Authority [2013] NSWADT 252. 54. That is, on external review, where the conclusive presumption of an overriding public interest against disclosure in subs 14(1) does not apply, the Tribunal (as the agency before it) must first be satisfied that one or more of the public interest considerations against disclosure (which are closed) in the table to subs 14(2) applies to the information in issue. If so satisfied, the Tribunal must then weigh these factors against the public interest considerations in favour of disclosure, which are not closed, to ascertain where the balance lies. In doing so, the Tribunal (as the agency before it), must have regard to the general public interest in favour of disclosure in subs 12(1) and the requirements of s 15 (i.e. exercise its functions to promote the objects of the Act and disregard matters such as a disclosure of information might embarrass the Government, or be misunderstood). 55. Ultimately, in determining where the balance lies between the competing interests, this 'is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation': see Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [70].
The applicant then summarised the respondent's case in respect of the document to which was submitted the clause 3 (f) ground applied. At page three of the applicant's submissions the following is reproduced: ….. I have identified the following considerations against disclosure as being relevant to your application: …. The information deleted from document 11 details 2 members of staff of the then Medical Board who apparently authored and last worked on a document with the file name vexations complainants.aij.ap.doc There is a concern that releasing this information might subject the individuals in question to harassment or intimidation. I have given this consideration significant weight due to the disrespectful, discourteous and emotive language used in your correspondence with the former Board, the Council and their officers. I have given particular consideration to the statement in your letter to me of 25 May 2013 (copy attached, relevant passage highlighted) in relation to Ms ('M XX') "(we know a lot about her now, and yes, including her home address)". …..
The applicant reviewed various cases which considered clause 3 (f). The applicant cited the ADT case of Black v Hunter New England Local Health District & Dr Lattimore (No 2) [2012] NSWADT 235. The 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 FOI Act 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.
Other cases referred to by the applicant were also referred to by the respondent in both oral and written submissions.
However in the applicant also referred to the case of Edwards v Department of Family and Community Services, Housing NSW (No 2) [2012] NSWADT 273. The applicant sets out the background to that case, in that the applicant had sought information concerning complaints and complainants that had led to the respondent refusing to move her to a particular address. 60. Nonetheless, some of the documents already disclosed to Ms Edwards record that she and others associated with the premises engaged in abusive and threatening behaviour towards the respondent's officers (e.g. folios 50, 52 of the partially redacted documents), although it is understood that Ms Edwards denies such behaviour. It appears that aspects of the applicant's conduct observed by some of the complainants, gave rise, at least in part, to some of the letters of complaint (F1 - 34). The undisclosed material contains several allegations of serious intimidatory behaviour and some serious harassment. Whether or not the behaviour has occurred need not and cannot be determined on the evidence currently before me. However, the test for the purposes of cl. 3(f) is whether the information "could reasonably be expected to" expose a person to a risk of harm, serious harassment or serious intimidation.
In that case the Tribunal decided that the public interest against disclosure in item 3 (f) was made out. The applicant submits that Edwards contained documentary evidence which disclosed allegations of abuse, threatening behaviour, serious harassment and serious intimidation. The applicant submitted that in the current case there is no such evidence, but rather that the applicant's expression of his point of view is in strong (rather than threatening) language. The rest of the applicant's submission on the clause 3 (f) provision followed a similar line to the put forth in their submissions on Edwards. Other cases were led in both written and oral submissions.
In oral submissions at hearing the applicant restated the principles concerning clause 3 (f) and that there must be 'real and substantial grounds' for such a finding, as set out in Leech v Sydney Water Corporation [2010] NSWADT 298. 25. The term 'could reasonably be expected' has been considered in a number of cases. The words have their ordinary meaning: Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163. The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC.
Reference was also made to the Information Commissioner's Report where at paragraphs 50-53 the Information Commissioner considered the 3 (f) ground. 51. This behaviour and correspondence appears to be disrespectful and discourteous towards Agency staff. However, clause 3 (f) requires the threshold of serious harm; serious harassment or serious intimidation to be met. In the current circumstances the information relied upon by the agency does not demonstrate 'serious' harassment, harm or intimidation. 52. Nor does it appear to indicate that future behaviour of the Applicant would escalate to the point of being serious harassment or intimidation. Similarly it does not indicate what risk of harm would be reasonably expectable if the information were disclosed and the severity of that harm. It does not appear that the Agency has demonstrated that consideration 3 (f0 applies. Therefore the decision in relation to item 11 is not justified.
The applicant at hearing submitted that the Tribunal was not bound by the Information Commissioner's report but that the Tribunal should take notice of the fact that it reinforces the applicant's submissions.
The applicant then summarised the respondent's case in respect of the documents to which was submitted the Business interests of agencies and other persons the clause 4 (d) ground applied.
The applicant submitted that in respect of some of the entities to whom the information of a potential commercial value related to, one Barrister and one law firm did not raise any objections to release of the material when consulted by the respondent Agency. The applicant submitted that the case of Lawrence v Port Stephens Council [2008] NSWADT 243 which dealt with a similar approach under the former Freedom of Information Act 1989, applied. The Council's case 14 The Council no longer relies upon the legal professional privilege exemption under Clause 10 of Schedule 1 of the FOI Act in refusing access to each invoice. However, it asserts that the invoices are exempt pursuant to Clause 7(1)(c) of Schedule 1 of the FOI Act. 15 The Council argues that if the withheld amounts were disclosed, Mr Lawrence would be able to calculate the hourly rate that Sparke Helmore charges for certain classes of work. It is submitted that it is reasonable to expect that the consequence of disclosing the withheld amounts would enable Sparke Helmore's competitors to understand and perhaps undercut Sparke Helmore's pricing strategy 16 The Council relies on a letter dated 24 April 2008 from Mr Daryl Gray, a partner of Sparke Helmore, objecting to Council granting access to the invoices. In particular, Mr Gray stated that: "Of particular concern to us is that the Invoices disclose details of our firm's hourly charge out rate. The information contained in the invoices is not common knowledge and is not otherwise in the public domain. This information, if disclosed to the public at large (which would be the effect of a grant of access in the present circumstances), could assist a competitor law firm to compete more effectively against our firm, and therefore diminish the commercial value of the information." (Emphasis added)
It was submitted that in the absence of any objections, and that in another matter the practitioner had retired from practice, then the respondent's reliance on clause 4 (d) was misplaced.

Consideration

I have carefully reviewed the material in the two exhibits. In particular I have considered the statements and phrases in Exhibit A1 in a detailed manner. In my view the statements made by the author and the general tone and pitch of the various letters do not convey the type of content that the respondent refers to in their submissions.
When the reviewer appreciates the history between the parties, and the understandable acrimony that has arisen, the language and tenor of the applicant are in my view understandable, and whilst somewhat emphatic and colourful in nature, provide a narrative with various assertions and statements (factual or otherwise). It is not the Tribunal's role to assess this evidence any more than to ascertain whether the evidence indicates any of the matters referred to in clause 3 (f), and if so, whether it establishes (in addition to other material before the Tribunal), that significant weight should attach to the ground (3) f, so as to outweigh the general public interest consideration in favour of disclosure that applies to all material not covered by Schedule 1 of the GIPA Act. In addition note the comments of the ADT Appeal Panel in the case of Commissioner of Police NSW Police Force v Camilleri [2012] NSWADTAP as to the approach to be taken by the Tribunal.
It is in this regard that I have some trouble with the respondent's case. Whilst detailed and helpful submissions have been prepared and made, and various concessions have been made during the course of the various internal reviews and Information Commissioner external reviews, little material was put before the Tribunal which established how significant weight should be applied to the material, to decide that these matters should be taken into account to the extent that they determine that there is a public interest consideration against disclosure. (in accordance with section 14 (2) of the GIPA Act).
At the hearing the Respondent essentially relied on their written submissions. The Respondent did provide helpful oral submission to amplify aspects of their case, but essentially relied on the matters as put. I have already commented on the minimal evidence tendered in the proceedings. It was open to the Respondent to take the Tribunal through the documents in a confidential hearing, but this option was not taken up. In the preliminary stages the respondent wished for the matter to be determined on the papers.
Importantly the respondent and the applicant relied on similar evidence and in many instances relied on similar cases to amplify their submissions.
A consideration available in any access application is a consideration of personal factors of the application. As outlined above section 55 is discretionary, but in my view section 55 (b) (and others) would be relevant considerations. 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.
In this instance the respondent relies on clauses 3 and 4 of the Table to section 14, so section 55 (3) can apply. However, the only evidence before the Tribunal of the applicant's motives (s- 55 (1) (b) ), are that he is currently authoring a book about his 13 year plus history of dealings with the respondent. The applicant's evidence is that he wishes the record to be accurate, and as complete as possible. In my view, whilst it is possible that such a publication might cause embarrassment to individuals within the respondent Agency (or former employees), the applicant's motivation are (when one has regard to the history of the matter) understandable and otherwise uncontroversial.
On my reading of the evidence, the contents of the letters cannot be read as high as the respondent submits that they should. When the facts in the various cases cited by both parties and in part referred to in this decision, in my view any principles that would otherwise apply to the applicant's detriment (in respect of clause (3) f), are not applicable on the facts and evidence before the Tribunal.
In respect of the clause 4 (d) reliance by the respondent, having reviewed and received all of the documents, it is not entirely clear exactly what information has been withheld from the applicant. This is in part due to the fact that at least three releases of this information have occurred, and in each instance more information was provided to the applicant.
Looking at the material broadly, and having regard to the cases outlined above (and in particular the findings in Neary v State Rail Authority), in my view, to release the totals of each invoice, rather than the individual items whereby the hourly rates or charges could be extrapolated, does not offend the wording of clause 4 (d).
In addition, I note that (in the absence of objections from some of the authors of the information in dispute), it is difficult to see what prejudice if any would attach to such a release. In that regard I note the minimal evidence that has been tendered on this point, in particular evidence which might establish how significant weight should be applied to the material, and to decide that these matters should be taken into account to the extent that they determine that there is a public interest consideration against disclosure. (in accordance with section 14 (2) of the GIPA Act).

Conclusion

On the basis of all of the evidence and material before the Tribunal, and having regard to the matters outlined above, it follows that the correct and preferable decision is to set aside the decisions of the respondent, to the following extent.

Orders

The decision of the Respondent in Decision 2 is set aside in respect of it's decision to withhold information under clause 3 (f) of the Table to section 14 of the GIPA Act. (IPC Ref: 13/R00410 (Document 11)
The decision of the Respondent in Decision 1 is set aside in respect of documents: 22, 52, 61 and attachments to documents 4, 46, and 68 (to be disclosed in full) IPC Ref 13/R000589.
The remaining 64 partially withheld documents are to have the totals of the invoices disclosed (to the extent that they have been previously withheld). In all other aspects Decision 1 (IPC Ref 13/R000589) is not varied from the agency's decision of 31 October 2014 in respect of the 64 remaining documents - unaffected by order 2 (above). 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: 09 June 2015

Crimes, Domestic and Personal Violence Act 2007(NSW)

(Freedom of Information Act 1982(Cth)s 43).

At a glance

Court

Decision date

Source

Judgment (12 paragraphs)

Parties

Legislation Cited (8)

Cases Cited (11)