Peter Zonnevylle v Department of Education and Communities

Function of the Tribunal

1. The Government Information (Public Access) Act 2009 empowers this Tribunal to review decisions of an agency in respect of an access application, including decisions to refuse to provide access to information: sections 80 and 100. Where access has been refused, the burden of establishing that the decision is justified lies on the agency: section 105.
2. The function of the Tribunal on review of an agency's decision is 'to decide what the correct and preferable decision is having regard to the material then before it, including … any relevant factual material, [and] any applicable written or unwritten law': section 63, Administrative Decisions Act 1997.
3. On review of the agency's decision, NCAT must not disclose any information for which there is an overriding public interest against disclosure, and must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if it forms the opinion that this is necessary to prevent the disclosure of information for which there is an overriding public interest against disclosure: section 107.
4. To assist it to comply with this prohibition, the Tribunal has power to make suppression orders under section 64 of the Civil and Administrative Tribunal Act 2013. In this case it has ordered that confidential exhibit 1 not be disclosed except to the respondent.

Legislation

1. The objects of the Act are set forth in section 3 as follows. (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.
2. There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: section 5.
3. A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information: section 9.
4. There is a general public interest in favour of the disclosure of government information: section 12(1).
5. Public interest considerations in favour of disclosure include, but are not limited, to, the following - section 12(2): (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.
6. There is an overriding public interest against disclosure of government information for the purposes of the Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure: section 13.
7. In effect, on review by the Tribunal, the Act requires that the agency prove that the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure. This has been referred to by the Appeal Panel as the 'weighing of the balance required by section 13': Commissioner of Police, NSW Police Force v Barrett (No 2) [2016] NSWCATAP 86 [at paragraph 22].
8. An overriding public interest against disclosure is conclusively presumed in respect of the decisions set forth in Schedule 1 to the Act: section 14(1). Relevantly, clause 5 of that schedule provides: Legal professional privilege (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege. (2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause. (3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5.
9. In this case, the respondent decided that some of the documents to which access was sought were of this kind. In the decision under review, Mr Riordan indicated that he had considered whether legal professional privilege ought be waived, and decided against it. The latter decision is not reviewable.
10. In all other cases, in weighing the balance required by section 13, the only public interest considerations against disclosure which may be taken into account are those set out in the Table to section 14: section 14(2). Relevantly, clause 3 of the Table provides: 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: …. (f) expose a person to a risk of harm or of serious harassment or serious intimidation
11. A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the principles set forth in section 15, which are as follows: (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made to any conditions on the use or disclosure of information."
12. In determining whether there is an overriding public interest against disclosure, an agency is entitled to take the 'personal factors of the application' into account: section 55(1). These are: (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.
13. However, those factors may only be taken into account as factors against providing access to the extent that they relate to whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 of the Table to section 14: section 55(2).
14. In dealing with an access application, an agency must undertake reasonable searches for the information to which access is sought. Section 55 provides as follows: (1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. (2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency. (3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically. (4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures. (5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.
15. Section 64 authorises an agency to impose a charge for processing an access application: (1) An agency may impose a charge (a processing charge) for dealing with an access application at a rate of $30 per hour for each hour of processing time for the application. Note. The decision to impose a processing charge is reviewable under Part 5. (2) The processing time for an application is the total amount of time that is necessary to be spent by any officer of the agency in: (a) dealing efficiently with the application (including consideration of the application, searching for records, consultation, decision-making and any other function exercised in connection with deciding the application), or (b) providing access in response to the application (based on the lowest reasonable estimate of the time that will need to be spent in providing that access). (3) The application fee of $30 paid by an applicant counts as a payment towards any processing charge payable by the applicant. (4) Access to government information granted in response to an access application may be made conditional on payment of any processing charge imposed for dealing with the application.
16. In cases of financial hardship or special benefit to the public, an applicant is entitled to a 50% reduction in the processing charge: sections 65 and 66. Subject to the Regulations, section 127 empowers an agency 'to waive, reduce or refund any fee or charge payable or paid under this Act in any case that the agency thinks appropriate'. That power was used in this case.
17. Section 112 provides: If NCAT is of the opinion as a result of an NCAT administrative review that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act, NCAT may bring the matter to the attention of the Minister who appears to NCAT to have responsibility for the agency.

Issues for determination

1. The issues for determination are as follows: 1. Whether information at page 7 of the document attracts legal professional privilege and therefore an overriding public interest against disclosure. 2. Whether disclosing the names of departmental officers not involved in any decision to block Mr Zonnevyille's email addresses or websites could reasonably be expected to 'expose [them] to a risk of harm or of serious harassment or serious intimidation' in terms of clause 3 to the Table at section 14. 3. Whether reasonable searches were conducted in accordance with section 55 for the information in items 2 and 3 of the access application and for information with regard to P&C associations incorporated under the Parents and Citizens Associations Incorporation Act 1976. 4. Whether it was correct and preferable to impose a processing charge of $262.50, being $525 for 17.5 hours spent on processing the application, less a discount of 50%. 5. Whether as a result of this review, the Tribunal is satisfied that any or all of Mr Riordan, Ms Pendergast, Ms Southern or Ms Bailey has failed to exercise in good faith a function conferred on them by or under the Act and, if so, whether the matter should be brought to the attention of the Minister under section 112.

Evidence

1. Mr Zonnevylle did not give a statement or oral evidence in a formal sense. He made oral submission from the bar table, tendered documentary evidence and made written submissions. Those submissions and documents have been taken into account in preparing these reasons.
2. The respondent relied on a statement by its Principal Information Access Officer, Ms Pendergast. The background summary in paragraphs 1-8 above is drawn from the documents annexed to her statement. Ms Pendergast's evidence as to the searches she caused to be conducted for documents the subject of the access application is considered below. During the proceedings, an issue arose as to whether the department had replied to certain correspondence from Mr Zonnevylle and the department complied with a direction that it provide a statement dealing with the issue, by filing a statement of Ms Stathis. By leave, Mr Zonnevylle filed voluminous material in reply touching on other issues, but as the effect of Ms Stathis' evidence was that simply she had advised against reply, there is no need to consider the evidence on other issues here.

Whether legal professional privilege attracted

1. As indicated, Mr Riordan decided that some 11 pages of information should be released in response to the access application, subject to the payment of the processing charge. On the seventh page, material has been redacted on the basis that it attracts legal professional privilege. That material is preceded by the following unredacted passage: Legal advice and direction was sought to determine the department's position in relation to blocking spam emails and determine appropriate measures to be taken.
2. The redacted material that follows details the effect of the legal advice given.
3. As indicated, Clause 5 of Schedule 1 provides there is an overriding public interest against disclosure of 'information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege)'.
4. Section 118 of the Evidence Act 1995 provides: Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication made between the client and a lawyer, or (b) a confidential communication made between 2 or more lawyers acting for the client, or (c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person, for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
5. In Singh v Legal Aid Commission (No 2) [2015] NSWCATAD 5, the Tribunal considered the meaning of 'information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege)' in Clause 5 of Schedule 1. It observed [at 60-63): 60 The law in relation to claims for client legal privilege is clear. For a summary of the principles see Priest v State of New South Wales [2006] NSWSC 1281 from paragraph [21]. ... 61 There has been some debate within the Tribunal as to whether the reference in clause 5 of Schedule 1 to the GIPA Act to "client legal privilege (legal professional privilege)" is intended as a reference to that concept as it appears in Part 3.10 of the Evidence Act 1995 or, alternatively, to legal professional privilege as recognised at common law. The Tribunal decisions support the application of the Evidence Act test in cases such as the present. 62 Nevertheless, it is my view that the application of the principles of common law advice privilege would be unlikely to lead to a different outcome in the present case. 63 The onus of establishing the claim for client legal privilege falls on the party asserting or claiming the privilege and is met by establishing the facts giving rise to the claim.
6. In Saggers v Environment Protection Authority [2014] NSWCATAD 37, the Tribunal found [at 36]: Client legal privilege is capable of attaching to communications between a salaried legal advisor and his or her employer provided that the legal advisor is consulted in a professional capacity in relation to a professional matter and the communications are made in confidence and arise from the relationship of lawyer and client: Waterford v Commonwealth of Australia [1987] HCA 25; (1987) 163 CLR 54 at 96; AWB v Cole (No. 5) at [44]. Where client legal privilege is claimed over documents produced by an in-house lawyer, particularly when that in-house lawyer is employed in government service, the question is whether the document would meet the statutory test of being a confidential document, that is to say, was it prepared in such circumstances that the person who prepared it was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under the law: Commonwealth of Australia v Vance [2005] 157 ACTR 47 at 53 [24].
7. As in Singh, it makes no difference in this case whether legal professional privilege is conferred by statute or otherwise. The redacted information sets out the content of advice given by lawyers to officers of the department. I am satisfied from its contents and from its context within the document in question that it was a confidential communication for the dominant purpose of the lawyer or lawyer providing legal advice to their client, the department. It therefore attracts both: 1. legal professional privilege by operation of section 118 of the Evidence Act and, 2. an overriding public interest against disclosure by operation of Clause 5 of Schedule 1 to the Government Information (Public Access) Act 2009.
8. The decision to redact this information was the correct and preferable decision.

Whether names of departmental officers should be redacted

1. As indicated, the names of departmental officers not involved in the blocking of email addresses and websites associated with Mr Zonnevylle were redacted from the material for disclosure, on the basis that disclosure 'could reasonably be expected to … expose a person to a risk of harm or of serious harassment or serious intimidation': clause 3(f), Table at section 14.
2. In oral submissions, Mr Zonnevylle denied that disclosure would expose the officers to a risk of harm from him, because he had ceased to send email correspondence to individuals within the department (except for the purposes of making access applications and associated correspondence) as long ago as 2014.
3. In Zonnevylle v Department of Education and Communities (NSW) [2015] NSWCATAD 10, Ms Maxine Zonnevylle sought review of the department's decision to redact the names of its officers from documents disclosed in response to a different access application, and the department brought evidence that she and Mr Zonnevylle had sent a considerable number of emails to officers of the respondent. The Tribunal made the following findings of fact [at 125ff]: 125 I accept Ms Bailey's evidence of an exceedingly high number of emails sent by the Applicant or Mr Zonnevylle to a number of officers within the Respondent. It is readily apparent from the face of the documents that are before me that staff of the Respondent were concerned about both the number and the tone of those emails. It is also apparent that staff were concerned that if their names were released to either the Applicant or Mr Zonnevylle then they would be the subject or recipients of high numbers of emails in the future. 126 I agree with the Respondent that Mr Zonnevylle's conduct falls within the definition of serious harassment or serious intimidation. I accept that some staff members genuinely fear that their names may be published on websites operated by Mr Zonnevylle and that they fear that they will be harassed by receiving unsolicited correspondence from either the Applicant or Mr Zonnevylle. 127 I am satisfied that if the information is released to the Applicant it is likely that it will be obtained by Mr Zonnevylle. I am also satisfied that disclosure could reasonably be expected to expose a person to a risk of serious harassment or serious intimidation. 128 The simple way of ensuring that the staff are not subjected to serious harassment or serious intimidation in the future is to redact their names from the information that is released. In my view, the Respondent's decision to redact the names of officers was warranted.
4. These findings do not bind the Tribunal in this case, because those proceedings were between different parties and therefore cannot give rise to an issue estoppel in this case.
5. As indicated, in this case Mr Zonnevylle assured the Tribunal in his oral submissions that he had ceased to conduct significant email communications with individual officers since 2014. However, the department annexed to its written submissions evidence of continuing fax and email communications of considerable volume from 2015 through to 2017. On the basis of that evidence, I am satisfied that Mr Zonnevylle continues to send a high volume of correspondence, often of an accusatory nature, to officers within the department. I accept that he feels genuinely aggrieved, and that he considers the correspondence to be appropriate.
6. The issue for determination is whether release of the redacted names of departmental officers would expose them to a 'risk of harm or of serious harassment or serious intimidation'. It is not necessary to decide whether such harm is likely. It is sufficient that there is a risk of it. In circumstances where, as here, accusatory correspondence continues to be sent on a regular basis, which is well capable of causing upset to the officers who receive it in the course of their duties, I am satisfied that there is such a risk.
7. Pursuant to section 13, that factor must be weighed against the factors in favour of disclosure. They include the general public interest in favour of disclosure, an applicant's legally enforceable right to government information, the fact that disclosure could reasonably be expected to inform the public about the operation of agencies, and to reveal how a department deals with ongoing complaints. The principles in section 15 (above) must be taken into account. The personal factors of the application are also relevant - namely, that Mr Zonnevylle feels aggrieved by his treatment at the hands of the department (in particular, by the blocking of email addresses associated with him) and has made a number of complaints about the concoct of departmental officers.
8. Weighing these factors together, I am satisfied that the public interest in favour of disclosure is outweighed by the public interest against it, and that there is an overriding public interest against disclosure of the names of these officers. It follows that the decision to redact their personal details was the correct and preferable decision.

Whether reasonable searches were conducted

1. In her statement, Ms Pendergast said that after receiving Mr Zonnevylle's access application, she identified those directorates of the department as being most likely to hold the information requested, and caused searches for documents to be made by the following directorates or business units of the department: 1. Information Technology Directorate. 2. Procurement Directorate. 3. Schools Finance 4. Asset Management Directorate. 5. Leadership and High Performance.
2. The search officers in each such directorate or unit responded that no relevant records, except for the Procurement Directorate, which responded that a search would take 5 days and 2 hours.
3. On 10 May 2017, Ms Pendergast said, following the Tribunal's directions that Mr Zonnevylle narrow the scope of the access application, Mr Zonnevylle gave particulars of the kind of documents he was seeking, and Ms Pendergast sought the assistance of the Procurement Directorate. On 24 May 2017, she said, that Directorate provided some documents in response to the access application, which were ultimately included in the material which Mr Riordan decided to release on 20 June 2017.
4. Ms Pendergast said that, after 14 June 2017 when Mr Zonnevylle proposed an amendment to his access application, it was unnecessary to conduct any further searches, because the relevant documents had been obtained from the Procurement Directorate.
5. Ms Pendergast's evidence is uncontradicted, and I accept it as accurate. In particular, I accept that she identified those directorates and units of the department most likely to hold the information concerned, caused appropriate searches to be made within them, and that those researches revealed relevant documentation was held only by the Procurement Directorate.
6. In his oral submissions, Mr Zonnevylle said the searches conducted were deficient because they did not include the servers of individual schools. He made a similar submission in Zonnevylle v Department of Education [2017] NSWCATAD 101. In that case, the Tribunal found [at 70-71]: The applicant submitted that the respondent's searches were not reasonable in circumstances where individual schools were not asked to search their email servers in response to the application. The respondent submitted that the obligation to undertake reasonable searches would not extend so far in circumstances where, as at 2015, the Respondent was responsible for administering over 2200 public school, including over 400 secondary schools. The respondent submitted that it would have been unreasonable to have required it to make separate enquiries with some or all of those schools, and to require those schools to separately review the email accounts of their employees. I agree with the Respondent's submissions on this issue. The search in such terms would be too broad, and oppressive, to be considered "reasonable". The Applicant did not suggest any other locations which would have been reasonable for the Respondent to have searched for the information in response to the access application, which were not otherwise searched. I concur. In the circumstances, the evidence demonstrates that the Respondent complied with the obligations imposed on it by section 53 of the GIPA Act to conduct reasonable searches.
7. The Tribunal's reasoning in that case applies equally to the submissions in this case. To require the respondent to conduct such extensive and wide ranging searches in the circumstances would exceed what is reasonable. So far as access was sought to documents of various Parents and Citizens Associations, those associations are incorporated under separate legislation and there is no evidence that the department has access to their documents. On the evidence, all relevant documentation of any kind held by the department is likely to have been discovered and, subject to redactions and the payment of a processing charge, disclosed.
8. I am satisfied that the searches conducted were reasonable, and that the respondent has complied with its obligations under section 55.

Processing charge

1. Mr Riordan imposed a processing charge of $262.50, being $525 for 17.5 hours spent on processing the application, less a discount of 50%. The calculations set forth in the decision suggest that in fact 18.5 hours was spent, which would amount to $555.
2. An agency is entitled to charge $30 per hour for processing an application: section 64. The decision itself recorded that at least 17.5 hours (and apparently as much as 18.5 hours) had been spent by the relevant officers in processing the application. There is no evidence to the contrary, and I accept that 17.5 or 18.5 hours was spent.
3. For these reasons, I am satisfied that a processing charge of $550 (for 17.5 hours) or $525 (for 18.5 hours) was reasonable and appropriate in the circumstances.
4. It was within the agency's power to reduce the fee, which it did. The decision to reduce a processing charge is not a reviewable decision for the purposes of section 80.

Whether an officer has failed to exercise a function in good faith

1. Mr Zonnevylle has tendered material to the Tribunal which, in effect, alleges that Mr Riordan, Ms Pendergast, Ms Southern, Ms Bailey and Ms Stathis (an information access officer) failed to exercise their functions under the Act in good faith.
2. Mr Riordan made a reasoned decision which is the subject of these proceedings. There is no evidence that he failed to exercise his decision-making function, or any other function, in good faith. Ms Pendergast caused searches to be conducted within the department for the material to which access was sought. There is no evidence that she exercised her functions as Principal Access Information Officer otherwise than in good faith. Ms Southern and Ms Bailey gave evidence in other proceedings. Similarly, there is no evidence that they, or Ms Stathis, exercised any statutory function other than in good faith.
3. The material produced amounts to a series of allegations, without proof. Some of those accusations are not connected with functions under the Act.
4. For all those reasons, I am not satisfied on the material before me that any of these officers has failed to exercise a function under the Act in good faith, and section 112 is not attracted.

Conclusion

1. For the reasons given, I am satisfied that the decision of 20 June 2017 was the correct and preferable decision, and should be affirmed. ​

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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: 02 July 2018