Police Act 1990.
Cases Cited: AIN v Medical Council (New South Wales) [2013] NSWADT 112
Applicants v Commissioner of Police, New South Wales Police Force (CoP) [2015] NSWCATAD 22
Source
Original judgment source is linked above.
Catchwords
Building Professionals Act 2005Civil and Administrative Tribunal Act 2013Police Act 1990.
Cases Cited: AIN v Medical Council (New South Wales) [2013] NSWADT 112Applicants v Commissioner of Police, New South Wales Police Force (CoP) [2015] NSWCATAD 22Attorney-General's Department and Australian Iron and Steel Pty Ltd v Cockcroft [1986] FCA 35Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252College of Law Ltd v Australian National University [2013] FCA 492CoP v Camilleri [2012] NSWADTAP 19Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409Donnellan v Ku-ring-gai Council [2013] NSWADT 115Hearne v Street [2008] HCA 36, (1986) 253 CLR 125Hurst v Wagga Wagga City Council [2011] NSWADT 307Kline v Official Secretary to the Governor-General [2013] HCA 52Luxford v Department of Education and Communities [2016] NSWCATAD 118Nature Conservation Council of New South Wales v Department of Trade and Investment [2012] NSWADT 195Pemberton v Macquarie University [2014] NSWCATAD 76Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98
Searle Australia Pty Ltd v PIAC [1992] FCA 241
Singh v Legal Aid Commission (No. 2) [2015] NSWCATAD 5
Smolenski v Commissioner of Police, New South Wales Police Force (CoP) [2015] NSWCATAP 235
TW v TX [2005] NSWADT 262
Watts v Department of Planning and Environment [2016] NSWCATAD 42
Judgment (21 paragraphs)
[1]
REASONS FOR DECISION
The applicant Dr Anthony G Place on 2 December 2015 made a complaint to the Building Professionals Board (BPB or the board) against a certifier, Mr Warrick Norris, of Urban Certifiers Pty Ltd, who is accredited under the Building Professionals Act 2005 (BP Act). The complaint, approximately 500 pages in length (exhibit A3, pp15ff), alleged 50 different breaches of duty on the part of Mr Norris in connection with the approval and construction by owner-builders, who will be referred to in these reasons as Mr and Mrs PW, of a development adjoining the applicant's property at Emu Plains. The genesis of the matter apparently lay in the applicant's objection to the installation of a flue for an unapproved wood-burning stove. The stove was removed and replaced with an approved gas heater, but the flue remained in place, though no longer connected.
On 10 March 2016, the applicant requested access to information held by the respondent in relation to that complaint. The application, which was made under the Government Information (Public Access) Act 2009 (GIPA Act), sought the following information:
1. All records held by the BPB in regard to development at [address] Emu Plains NSW (Lot 302 DP [number]) and in particular to BPB Complaint No.24/15; and
2. Any correspondence between the Building Professionals Board (BPB) and Urban Approvals Pty Ltd (ACN 096 508 842) or Mr Warrick B Norris (BPB 0298) in regard to a development at [address] Emu Plains NSW (Lot 302 DP [number]) and in particular to BPB Complaint No. 24/15; and
3. Submissions made to the BPB by Urban Approvals Pty Ltd (ACN 096 508 842) and/or Mr Warrick B Norris (BPB 0298) in regard to BPB Complaint No. 24/15 (understood to have been received 8 March 2016);
being records held by the BPB having the date range 1 January 2014 to 10 March 2016, but excluding copies of declarations by Anthony Place.
As the information requested ran to approximately 700 pages, discussions ensued between the parties concerning the scope of the information sought. The respondent states that on 22 March 2016, the applicant agreed to revise the scope of his GIPA application to limit it to documents that had been highlighted in an attachment sent to him by the respondent on 21 March 2016, which was a complete list of the records held by the respondent (bundle pp 14 - 19). That amounted to 128 pages. The applicant denies agreeing to limit the scope of his request, on the ground that all the information in the documents so identified was included in his original request. That proposition was relevant to his contention that the respondent had failed to comply with statutory time limits for decisions and that he was therefore entitled to a refund of the $30 application fee. It is not necessary to deal with that issue as the respondent is in any event liable to refund the fee because its decision on the merits was late.
A delegate of the respondent decided on 6 May 2016 to release in full documents numbered 1 to 5 in the schedule of documents, to release document 6 in part and to refuse release of documents 7 to 10, giving its reasons.
The information still in issue is that contained in the following five documents:
1. Document 6 (partial release): Email from W Norris to BPB - 4/02/16 (Requesting extension of time for making submissions in respect to complaint against him). The public interest considerations against disclosure relied on by the respondent were responsible and effective government; individual rights, judicial processes and natural justice; Business interests of agencies and other persons; Secrecy provisions. The clauses in the s 14 Table relied on were 1(g), 3(b),(c),(d); 4(d), 6(1).
2. Document 7: Email from W Norris to BPB - 8/03/2016 (Response to requests for submissions). The public interest considerations relied on by the respondent were responsible and effective government; individual rights, judicial processes and natural justice; Business interests of agencies and other persons; Secrecy provisions. The clauses in the s14 Table relied on were the same as for Document 6.
3. Document 8: Letter from W Norris to BPB - 22/02/2016 (Response to allegations raised by Mr A Place regarding complaint about [address] Emu Plains). The public interest considerations against disclosure and the clauses in the s14 Table relied on by the respondent were the same as for Documents 6 and 7.
4. Document 9: Attachments in support of letter of 22/02/2016 (33 attachments). The public interest considerations against disclosure and the relevant clauses in the s14 Table relied on by the respondent were the same as for Documents 6, 7 and 8.
5. Document 10: Attachments in support of letter of 22/02/2016. The public interest considerations against disclosure and the relevant clauses in the s14 Table relied on by the respondent were the same as for Documents 6, 7, 8 and 9.
The issue in the present application is whether the correct and preferable decision is that there is an overriding public interest against disclosure of the information contained in any or all of the five items in issue or any part or parts of any of them. As this is merits review, the tribunal is not concerned with the question of whether the decision under review itself was correct or incorrect.
[2]
Respondent's evidence
As is usual in such proceedings, at the hearing the respondent presented its case first. It relied on the documentary material and also called as a witness Mr Sean Fagan, acting team leader, investigations, of BPB in New South Wales Fair Trading, Department of Finance, Services and Innovation. He adopted his affidavit dated 30 August 2016 in which he stated inter alia that the BPB is responsible for, among other things, the accreditation of certifiers, the regulation of accredited certifiers and the investigation of complaints against them under the BP Act. He reports directly to the manager of BPB. His duties, broadly, are to coordinate and direct the investigative functions of BPB and to oversee investigators who are allocated to investigate alleged contraventions of the BP Act, the Environmental Planning and Assessment Act 1979 and other related legislation. He also liaises with Fair Trading Legal Services in relation to GIPA applications regarding certifiers under the BP Act.
During March 2016, Mr Ken Kehteesuran, a senior BPB investigator, supplied Mr Fagan with a list of documents he had assembled for the purpose of dealing with the applicant's GIPA applications. Copies of the documents described in the list were also provided to him. He gave the list and the copies to Mr Anthony Grey, the BPB principal legal officer, for the purpose of obtaining advice as to which of the documents ought to be released or ought not to be released, in accordance with the provisions of the BP Act and the GIPA Act.
On 30 March 2016, he received an email from Mr Grey which contained his advice on the principles behind the board's investigation and the disciplinary regime under the BP Act.
The board is empowered under the BP Act to receive and investigate complaints relating to certifiers in New South Wales. Integral to the receipt of complaints and the investigatory process generally is the ability of the board to receive complaints and investigate them independently in accordance with the provisions of the BP Act.
Once a complaint is received, access to the information, including submissions and other information received from a certifier, is restricted to the relevant investigator or investigators appointed to investigate the information received, and their managers.
If it did not receive such confidential information, the ability of BPB to obtain knowledge of alleged contraventions of the legislation it administers would be severely compromised and would probably result in consumer detriment, with a significant number of alleged contraventions not being investigated.
[3]
Confidential session
At the respondent's request the tribunal conducted a closed session in the absence of the applicant.
[Not for publication]
[Not for publication]
[Not for publication]
[Not for publication]
[Not for publication]
[4]
Applicant's evidence
The applicant declined to give oral evidence and was not required for cross-examination in respect of the two statutory declarations (with attachments) on which he relied. The first, dated 21 June 2016 (part exhibit A1), dealt with the procedural history of the applicant's request for information under the GIPA Act and has little, if any, relevance to the substantive merits of the review application now before the tribunal.
The second statutory declaration was made on 15 August 2016. Its first two pages, together with parts of the remaining 5 pages, consist of submissions rather than statements of fact. In the declaration the applicant states that he is aggrieved by BPB's "unsubstantiated allegations against me" and notes "I demand that any "personal factor" not found in evidence and causally related to a public interest consideration be formally withdrawn by the Agency and disregarded" (emphasis in the original). He denies any intention to involve himself in an investigation being conducted by the board's investigators and argues that unless invited by BPB, he had no ability to demand involvement in the investigation.
He had no intention to "usurping" the independence of the board when investigating a complaint or making a determination of professional misconduct by an accredited certifier. Indeed, he could only be involved as a witness. While he was not a party to the development from which the complaint of professional misconduct against the certifier arises, he was the complainant in the subject BPB investigation against the certifier for professional misconduct. He had a substantial and lawful association with the investigation.
He had not been, and was not, engaged in any long-term dispute with his neighbours regarding opposition to the development. In fact, having relied on State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 for four separate developments, he supported all complying development. Any consideration of the development or the neighbour in the present matter was unfounded.
While engaged by his neighbour to facilitate development consent of the development, the certifier had a public obligation to ensure development complied with the consent. He had no dispute over the development per se, but with the certifier's gross professional misconduct in failing to enforce development consent. His complaint was only against the certifier, and excluded the local council as having no relevant role in the matter. The present GIPA request related only to obtaining information about the complaint, and in particular the certifier's defence against his allegations of professional misconduct. Extensive information was already publicly available regarding Warrick Norris, Urban Approvals and the development at [address] Emu Plains.
[5]
Respondent's submissions
The respondent tendered two outlines of submissions, one open (exhibit R1) and one closed (exhibit R2), which has since been made available to the applicant as an open document. After discussing the validity of the initial application and outlining the legislative framework of the matter, the respondent submitted inter alia that a number of effects referred to in the considerations in the Table to s 14 of the GIPA Act "could reasonably be expected" to occur. The first was clause 1(g), concerning information provided to an agency in confidence.
Mr Fagan's evidence established that, in general, information obtained pursuant to the exercise of the respondent's investigative functions regarding complaints against certifiers was treated confidentially within the department. On the basis of that evidence, a relationship of confidentiality, and therefore in relation to the withheld information, could be inferred: TW v TX [2005] NSWADT 262, [10], [49].
Further, the BP Act had specific provisions regarding the confidentiality of information obtained pursuant to its investigative and disciplinary processes. They included ss 27, 30, 32, 48 - 51, 59 and 83. The information in the withheld documents was thus confidential and its disclosure would entail the disclosure of information obtained in confidence within the meaning of the clause. It would also prejudice the certifier's right to procedural fairness and related rights under clause 3(d), as the BP Act does not allow confidential information supplied by the certifiers in confidence, as part of the complaint management process, to be released to the complainant: ss 32(1) and(3).
Disclosure would also prejudice investigation and enforcement, within the meaning of clauses 3(c) and (d), as the board is currently investigating the applicant's complaint against the certifier. Release of the withheld information would prejudice the certifier's right to a fair trial or impartial adjudication. The BP Act sets out the process to be followed by investigators and the board in dealing with complaints and the complainant is not a party to those proceedings. While mounting a defence to the investigation and while the matter is being heard by the board, the certifier has a right to confidentiality, not yet having been found guilty of the contraventions alleged. The certifier has the right to protect his or her reputation while the matter is being determined by the board, especially if the allegations are found to be unsubstantiated. Release of the information would prejudice the impartial adjudication of the complaint and the certifier's right to procedural fairness. It would provide the applicant with an additional procedure in the complaint management process that is not offered under the BP Act.
[6]
Applicant's submissions
In his letter to the respondent dated 7 May 2016, the applicant stated that, "In sum, I disagree with the Agency's late decision, and shall challenge all grounds/considerations for refusal that have been relied upon. Recent case law suggests that documents of the nature requested would not give rise to any overriding public interest consideration against disclosure". The applicant confirmed that position at the hearing. When asked whether he disputed all the matters of fact on which the respondent relied, he replied emphatically "Absolutely".
At the hearing the applicant stated that all his submissions were contained in the document headed "Applicant Reply Submission" (exhibit A2). As they run to 29 pages, it is appropriate and convenient to summarize their content and effect. After reiterating his earlier submissions that the respondent had failed to comply with any of the statutory time limits, the applicant turned to the merits of the decision itself, noting that the applicable law was summarized by the Appeal Panel in Smolenski v Commissioner of Police, New South Wales Police Force [2015] NSWCATAP 235, [20] - [25]. Section 105 of the GIPA Act placed on the agency the onus of justifying its decisions.
The requirement in the s 14 Table that release of the information "could reasonably be expected to" have the effects listed required a judgment on whether it was reasonable, as distinct from something irrational, absurd or ridiculous, to expect that, for example, those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the information in question were disclosed under the Act: Attorney-General's Department and Australian Iron and Steel Pty Ltd v Cockcroft [1986] FCA 35, [29]. It was for the decision-maker to determine whether, on the basis of the evidence, there was an expectation that disclosure would have a result, and that the expectation was reasonable: Searle Australia Pty Ltd v PIAC [1992] FCA 241. Public interest considerations are distinct from any prejudicial effect on a person or business: Searle at [49] - [52].
Where the evidence indicates that personal information has already been publicly disclosed, the agency is required to establish that it was not: Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98, [40]. The weight awarded to any consideration must be limited to the effect of disclosing the information in the light of existing public knowledge, not the effect of the information being public per se. In this case the respondent's submission deals with all documents as a whole, not the information or the effect of its disclosure in terms of public interest. It was necessary for the agency to determine which parts of the refused information were not already public. As the complaint is made by a member of the public, all information in the complaint is inherently public.
[7]
Consideration
The tribunal's function on review under s 63 of the Administrative Decisions Tribunal Act 1997 (ADT Act) is to make the correct and preferable decision having regard to the material before it and any applicable "written or unwritten law" (meaning legislation or common law). It is well established that in considering an application for review, the tribunal is not confined to the material that was before the deciding 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) 46 FLR 409.
[8]
The GIPA Act
The objects of the GIPA Act as set out in s 3(1) are to advance the system 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 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 respondent is such a department and that the BPB is "a public authority" within the meaning of s 4 (1)(c). As such they are agencies 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: ss 11 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: s 12(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.
[9]
Approach adopted
It is not disputed that the respondent is an agency, that the information withheld or redacted is government information within the meaning of the Act, and that the tribunal has jurisdiction to review the matter.
In relation to the adjudication process, the Appeal Panel declared in Commissioner of Police, New South Wales Police Force v Camilleri [2012] NSWADTAP 19, [25] it is important that the tribunal proceed in the structured way reflected by ss 12 to 15. A number of tribunal cases have elaborated the steps that decision-makers must follow in applying those provisions. In the context of the present case they are as follows:
1. identify relevant public interest considerations in favour of disclosure,
2. identify relevant public interest considerations against disclosure,
3. attribute weight to each consideration for and against disclosure, and
4. determine whether the balance of the public interest lies in favour of or against disclosure of the government information (Nature Conservation Council of New South Wales v Department of Trade and Investment [2012] NSWADT 195, [29]; Williams, [21] - [22].
Any application of the GIPA Act must start from an awareness of the legislation's object as stated in s 3(1), namely, to maintain and advance a system of responsible and representative democratic government that is open, accountable, fair and effective by opening government information to the public and providing that access to that information is restricted only when there is an overriding public interest against disclosure. In s 3(2) the Legislature expresses its intention that the Act should be interpreted and applied so as to further the object of the legislation.
That object is to be achieved through a balanced approach that seeks to reconcile the competing values recognized by the Act. As four members of the High Court pointed out in Kline v Official Secretary to the Governor-General [2013] HCA 52, "The FoI Act does not pursue its objects, as legislative purposes, at any cost. The statutory scheme is complex in achieving a balance between the exposure of some government processes and activities to increase public participation and scrutiny, by making information freely available to persons on request, and in the exempting of other government processes and activities from public participation and scrutiny, in order to secure a competing public interest in non-disclosure". For some functions of government, "freedom from interference or scrutiny by members of the public…. is an essential aspect of the making of decisions" (at [37], also [46] - [47]).
[10]
Preliminary matters
Before the merits of the application are considered, some preliminary matters require attention. The first is the applicant's contention, developed at length in his submissions, that his initial application was valid and that consequently the time for the making of the agency's decision on the access application began to run at the time of lodgement, with the result that the decision was out of time. That, he submitted, entitled him to a refund of the $30 access application fee.
The respondent argued that as the correspondence between the board and Dr Place amounted to some 700 pages and Dr Place had indicated that he was particularly interested in certain particular classes of information, the application as lodged was invalid as it had not sufficiently identified the information sought. The board then supplied the applicant with a list of relevant documents held in its records and invited him to highlight the ones that he was interested in, which he did, thereby making the application a valid one. Nevertheless, because of an error in calculating the time available due to the occurrence of public holiday, the substantive decision was a day late in any event. The respondent does not dispute that fact.
Consequently, the respondent concedes that it is obliged to refund the $30 application fee in any event. The question of the validity or invalidity of the initial access application is now therefore moot and does not require a decision by the tribunal. At one point the applicant appeared to have withdrawn his argument about validity, but later advanced it again. It is not, however, a live issue any more.
The applicant also sought an order under s 108 of the GIPA Act for a refund of the $96 NCAT filing fee (see para 59 above). As the respondent agency does not appear to have made any application under s 108(1), however, such an order cannot be made.
Next, the applicant raised a general proposition that the respondent bore an onus of proving that all the withheld or redacted information was unavailable to the public. He cited Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98, [40], in which Molony JM had stated that "Where there is material indicating that the information has already been publicly disclosed, that burden requires the agency to establish that it was not", and submitted that as the complaint against the certifier had been made by a member of the public, all information concerning it was itself inherently public. His complaint, consisting of 50 allegations and totalling 400 pages, was on his website and freely available to the public.
[11]
Relevant public interest considerations in favour of disclosure: the s 12 stage
In favour of the disclosure of the withheld information is the general public interest consideration in favour of the disclosure of government information enacted in s 12(1), and specifically those set out in s 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". The example in s 12(2)(b), that disclosure 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" could also be relevant. From the applicant's point of view, s 12(2)(e), " Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) is engaged in misconduct or negligence, improper or unlawful conduct" also supports release of the information.
Section 12(2)(b), dealing with informing the public about the operations, policies and practices of agencies would also be relevant. The general public interest referred to in s 12(1) is a weighty consideration, as it supports the presumption in favour of disclosure and the stated objects of the Act. The proper performance by public officials (such as BPB certifiers) of their statutory duties is undoubtedly an issue of public importance and, indeed, one of the central concerns of State government.
[12]
Relevant public interest considerations against disclosure: the s 14 stage
As the Appeal Panel declared in Camilleri, the questions arising under the s 14 Table are to be "examined at a broader operational level". "It would not be usual, as we see it," the panel continued, "to introduce at this stage of the process considerations connected with the particulars of the instant situation. The agency acknowledged that at the next stage of the inquiry, the s 13 stage, it would be proper to have regard to specific aspects of the instant case": at [24] - [26].
The personal factors referred to in s 55 may be taken into account in connection with the considerations for and, within limits, against providing access, but from the decided cases it is not altogether clear whether they are to come into play at the s 14 stage or at the s 13 weighing stage: Camilleri, [43]; AIN v Medical Council (New South Wales) [2013] NSWADT 112, [105]. But it would seem to follow from the reasoning in Camilleri that consideration of the personal factors should be deferred to the s 13 stage.
[13]
Clause 1(g)
The respondent relies, first, on clause 1(g) in the s 14 Table, which states that "There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally: …..(g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence".
The board did not seek to make a case under the first limb of 1(g), but submitted that disclosure would "result in the disclosure of information provided to an agency in confidence". Its submissions on that point related to all three of items 8, 9 and 10, which comprise the certifier's reply and attachments containing supporting material. Amounting to 113 pages, the items are relatively voluminous, but that is not surprising considering that the complaint ran to 400 pages.
A key point in the applicant's case was that the information in the three documents could not possibly have been provided in confidence because of the terms of two letters from the board's manager, Dr Gabrielle Wallace, to the certifier (exhibit A3, pp 186 to 189). In his oral evidence Mr Fagan described them as standard letters. The first, dated 9 March 2015, is an initial letter noting that a complaint has been received from the applicant and requesting certain material to assist the board in deciding whether or not the complaint should be investigated under the relevant provisions of the BP Act, and explaining that if it decided to conduct an investigation, Mr Norris would be notified and given the opportunity to provide written submissions. The letter's penultimate paragraph is in these terms: "Please note that any comments you make during the course of an investigation may be conveyed to the complainant".
The second, somewhat longer, letter is dated 13 January 2016. It refers to the documents and further submissions received from Dr Place dated 9 April and 2 December 2015 and encloses copies of the submissions, together with a CD containing audio recordings of telephone conversations. It states inter alia that "You are advised to respond to the complaint in a detailed fashion and to provide any relevant supporting material which may include plans, photographs and/or surveys".
The penultimate paragraph is in these terms: "Please note that as part of the investigation process, any comments that you make may be conveyed to the complainant". It is thus slightly different from the corresponding passage in the initial letter, as it indicates that the board has decided to conduct an investigation. In other respects it is to a similar effect.
[14]
Clauses 3(b), (c) and (d)
These clauses relate to individual rights, judicial processes and procedural fairness. Clause 3(b) refers to disclosure having the effect of "contraven[ing] 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". As the respondent did not adduce any evidence or make any submissions in relation to this consideration, it is not necessary to deal with it any further.
In the case of cl 3(c), the stated effect is that disclosure would "prejudice any court proceedings by revealing matter prepared for the purposes of or in relation to current or future proceedings". The applicant disputed the applicability of this consideration on the ground that the respondent had not identified the court proceedings that would be prejudiced. Further, if the present matter were to proceed before any court, the parties would be the certifier and the board. Consequently, as the documents are held by all parties relevant to any court proceeding, release of the information would not prejudice the proceedings.
The clause refers, however, to "current or future proceedings". The history of this matter to date suggests that future litigation is a real possibility. Who the parties would be cannot be predicted with any certainty at this stage. Mr Fagan's evidence states that the board is investigating the applicant's complaint against the certifier alleging professional misconduct or unsatisfactory professional conduct under the BP Act. The Act sets out the process to be followed by investigators and the board in relation to handling complaints against accredited certifiers. The certifier has a right to seek a review of a disciplinary determination made by the board to this tribunal. The complainants who initiated the investigation process are not parties to any such review proceedings, nor, presumably, to any judicial review proceedings that might arise from it.
The withheld information includes 14 pages of material (in item 10) relating to legal advice obtained by the certifier in relation to the applicant's complaint. That is "matter prepared for the purposes of or in relation to current or future [court] proceedings". Items 8 and 9, being the certifier's response, with attachments, to 50 serious complaints (although apparently a substantial number of counts are repeated or overlap), totalling 400 pages, about his professional performance. The material will inevitably have been prepared with an eye to his legal position, both in relation to the board investigation and to any possible litigious sequel.
[15]
Clause 4(d)
The effect relevant to this clause is "prejudic[ing] any person's legitimate business, commercial, professional or financial interests". The applicant submits that the respondent has provided no facts or reasoning for that consideration, only submitting a conclusory statement that the clause applies. "As the 50 allegations of professional misconduct against the Certifier (with 400+ pages of supporting facts) are public knowledge, it is not reasonable to expect that disclosure of the Certifier's defence against these allegations would cause any further prejudice to the Certifier".
It is not disputed that the certifier has legitimate business, commercial, professional or financial interests in his practice as an accredited certifier through his company, Urban Approvals Pty Ltd. As the applicant points out, however, there is no (open) evidence from him in relation to any prejudice to his legitimate interests. On the other hand, there is other relevant evidence, notably the fact that the applicant lodged a 400-page complaint incorporating 50 allegations of negligence or misconduct against the certifier, a complaint that arose out of a professional contract the certifier had with the applicant's neighbours, Mr and Mrs PW, not with the applicant himself. In the ordinary course of business affairs, it is likely that some potential clients will be wary of engaging his services as a result. Releasing the certifier's response (over his objection) would inevitably place the entire dispute in the public domain and could be expected to exacerbate the damage done to his practice by publication of the complaint itself.
The applicant's foreshadowed new access application in relation to the board's decision on his complaint, once it is delivered, could be expected to take the reputational damage to a new, higher level. There does not appear to be a great deal of caselaw on cl 4(d), but in Singh Montgomery SM found that it applied on the basis that the information concerned fees paid to a third party, without receiving evidence from that party (at [53]). On the evidence before me, I find that disclosure of the information could reasonably be expected to prejudice the certifier's legitimate business, commercial, professional or financial interests.
[16]
Clause 6(1)
This provision, headed "Secrecy provisions", provides as follows:
6 Secrecy provisions
(1)
There is a public interest consideration against disclosure of information if disclosure of the information by any person could (disregarding the operation of this Act) reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule (of this or another State or of the Commonwealth) that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions.
(2)
The public interest consideration under this clause extends to consideration of the policy that underlies the prohibition against disclosure.
The respondent submitted that the BP Act contains a provision of the kind referred to in cl 6, namely s 83:
83 Disclosure and misuse of information
(1) A person must not disclose any information obtained in connection with the administration or execution of this Act unless that disclosure is made:
(a) with the consent of the person from whom the information was obtained, or
(b) in connection with the administration or execution of this Act, or
(c) for the purposes of any legal proceedings arising out of this Act or of any report of any such proceedings, or
(d) in accordance with a requirement imposed under the Ombudsman Act 1974, or
(e) with other lawful excuse.
(2) A person acting in the administration or execution of this Act must not use, either directly or indirectly, information acquired by the person in that capacity, being information that is not generally known but if generally known might reasonably be expected to affect materially the market value or price of any land, for the purpose of gaining either directly or indirectly an advantage for the person, or a person with whom the person is associated.
(3) A person acting in the administration or execution of this Act, and being in a position to do so, must not, for the purpose of gaining either directly or indirectly an advantage for himself or herself, or a person with whom the person is associated, influence:
(a) the determination of a development application, or
(b) a decision concerning a complying development certificate, or
(c) the giving of an order under Division 2A of Part 6 of the Environmental Planning and Assessment Act 1979.
(4) In this section, a person is associated with another person if the person is the spouse, de facto partner (whether of the same or the opposite sex), sibling, parent or child of the other person.
Maximum penalty: 50 penalty units.
[17]
Weight of the considerations for and against disclosure: the ss 13 and 15 stage
This stage of the process involves applying ss 13 and 15, as the process of weighing necessarily implies the prior ascription of weightings, which in turn invokes the direction in s 15(a) to promote the object of the Act. Such ascription must have rational and objective grounds, based inter alia on statutory construction, known facts and evidence.
The general public interest in favour of the disclosure of government information (s 12(1)) must always be a key consideration, in view of the legislation's overall thrust. Similarly, the considerations in ss 12(2)(a), (b) and (e) which, as I have said above, are relevant in this case, must also be viewed as meriting substantial weight, as they are directly related to the Act's primary objective of maintaining and advancing "a system of responsible and representative democratic Government that is open, accountable, fair and effective…." (s 3(1)).
Of the considerations against disclosure, cl 1(g) may be considered first. I have found that the information was provided by the certifier on the understanding that it would be confidential, notwithstanding the board's reservation in its standard letter of the right to pass on any comments to the complainant. Mr Fagan's evidence was that access to such information was restricted to officers having a need to know. While it could be released when a complaint was settled or withdrawn, it would not normally be disclosed while the investigation was in progress, partly because the certifier might express his reply differently or more guardedly if he or she knew it would be transmitted to the complainant.
The applicant pointed out that in Applicants v CoP, information supplied on a confidential basis to an internal police investigation was released. In that case, however, Montgomery SM had found that cl 1(g) carried little weight because the police officers in question were required to supply information to the inquiry. Further, the incident giving rise to the inquiry had been the subject of criminal proceedings heard in open court. Those circumstances diminished the weight of the confidentiality consideration (at [123] - [125]). That is not the case here, however. The certifier had no obligation to provide a response, or a detailed response, and no open proceedings in relation to the complaint have been (or can be) heard. The investigation is still in progress and the applicant has made it clear that after its decision has been announced, there will be further proceedings continuing into the future.
[18]
Determining where the public interest balance lies: the ss 13, 15 and 55 stage
The determination of where the balance lies between competing interests is "a question of fact and degree, requiring the weighing of competing matters, and a task that is not amenable to mathematical calculation": Hurst, [70]. The Act provides no set formula for calculating the weight of considerations or for determining whether one set of considerations outweighs the other. Any reasonable approach that follows s 15 principles seems to be acceptable.
At the weighing stage the tribunal is entitled by reason of s 55 to take into account the personal factors of the application, namely:
1. the applicant's identity and relationship with any other person,
2. the applicant's motives for making the access application,
3. any other factors particular to the applicant.
Under s 55(6), the tribunal is under no obligation to inquire into, or verify, claims made by an applicant or any other person about the personal factors, but is entitled to have regard to evidence or information provided by them.
As regards s 55(1)(a), it is not disputed that the applicant owns the property adjacent to that occupied by Mr and Mrs PW. They entered into a contract with Mr Norris's company for the purpose of obtaining certification for a development on their property. In issuing the necessary certifications, the certifier did not require removal of a flue for an unapproved wood-burning heating stove that was not part of the development approval. The flue has been disconnected and the stove replaced with a complying gas heater, but the flue is still in place.
As owner of the adjoining property, the applicant has a personal interest in ensuring that the development on the subject land complies with applicable regulations and that approval processes are carried out in a proper and transparent manner. To that extent the s 55 factors favour disclosure. But in light of other facts, as will be explained below, the s 55 factors militate against release of the withheld information.
As regards s 55(2)(b), the applicant states that his motives include confirming that the certifier's responses to Dr Place's allegations are correct and not misleading, confirming that the complaint is being dealt with properly and transparently by the board, and furthering the accountability, responsibility and openness of the board, in a manner similar to that adopted in Applicants v CoP (at [116]) (exhibit A2, p 23). The applicant rejects as unsubstantiated the board's finding in its GIPA decision that he has been engaged in a long-term and ongoing dispute with his neighbours in opposition to their development, and that the dispute includes the certifier and the local council for their roles in approving the development (at para 4.4).
[19]
Orders
The decision under review is varied as follows:
1. Item 7 is to be released to the applicant.
2. Pages 115 to 122 and 125 to 128 of item 10 are to be released to the applicant.
3. The respondent is to refund the $30 access application fee.
4. Pursuant to s 64 of the CAT Act, paragraphs 18 to 22, 175 and 176 are not for publication or disclosure to the applicant.
5. Exhibit R5 is not to be released or used for any purpose other than these proceedings.
6. The quoted passage in paragraph 173 is not for publication.
7. In all other respects the decision under review is affirmed.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
[20]
Amendments
12 January 2017 - Paragraph 173 is corrected by deleting the quoted passage and substituting the words "Not for publication".
[21]
Order (6) is renumbered (7) and a new Order (6) in the following terms is inserted: "(6) The quoted passage in paragraph 173 is not for publication".
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: 12 January 2017
At present BPB is investigating the applicant's complaint against the certifier, Mr Warrick Norris, relating to alleged professional misconduct or unsatisfactory professional conduct under the BP Act.
In cross-examination, the witness said he had consulted Mr Grey, the board's principal legal officer, when preparing his affidavit. Paragraphs 7 to 10 of his affidavit (paras 18 to 20 above) constituted an overview of the investigative process. Asked how release of the information would affect an investigation, he replied that the process is laid down by the BP Act. After the complaint is accepted, the board's involvement with the complainant ends. There is no ongoing process involving the complainant.
Dr Place then asked the witness what the effect of releasing the certifier's response to the complaint would be. Mr Fagan replied that the certifier is not bound to respond. He had not reviewed the response in this instance, but certifiers respond in confidence, and if that were not the case they might say other things. It could also give rise to further complaints. Mr Fagan agreed that information received from the complainant was not usually confidential and that complaints were received on that understanding. The standard letters sent by the board to certifiers inviting a response to a complaint did not expressly mention confidentiality. Sometimes the responses came from the certifier's lawyers. In some 70 percent of cases the board's decision was to take no further action, and in some such cases the certifier's reply might be released to the complainant, but it was not automatic and the board would not routinely release the response. In this case the certifier had objected to the release of his response documents for GIPA Act purposes.
The witness said that the reference to "confidential information" in exhibit R4, para 9 referred to the complaint, the response and other information the board had obtained. The descriptions in paras 9 and 10 constituted a general statement of board practice where an investigation was in progress and were not specific to the present case. Asked what was the basis for para 10, given that the complaint itself was not confidential, the witness replied that in many instances the complaint was not comprehensive and further information was needed. Certifiers are not required under the Act to respond to complaints and might be unwilling to supply information on a non-confidential basis, as might other sources as well.
After further comments in the nature of submissions, the deponent states that he finds it highly improbable and even inconceivable that release of the refused information would prejudice decisions made or actions taken by members of the board, as selected by the minister for planning on the basis of their knowledge or experience, and having proclaimed strict standards for ethical decision-making, accountability and abilities for providing impartial decisions. He also found it highly improbable, or even inconceivable, that the refused information would be considered further to prejudice the certifier or his company. He noted that complainants currently have no confidentiality before the board, and in making his complaint he had acknowledged that the complaint would be forwarded to the certifier, but nevertheless provided all relevant information at hand. He therefore disagreed with the opinion expressed in para 12 of Mr Fagan's affidavit.
He had sought confirmation from the agency regarding details of the non-redacted affidavit and that Mr Fagan would be available for cross-examination. The agency essentially relied on confidentiality as providing an overriding public interest against disclosure, but correspondence from the board to the certifier clearly showed that there was no express or implied confidential association between the board, the certifier and the complainant or any of them. By responding, the certifier had accepted the notice that comment might be passed on to the complainant.
He also found that the agency's "personal factors" comments directed to any personal motivation were unwarranted, incorrect and irrelevant. He particularly found the suggestion that it was not appropriate that the GIPA Act be used by the applicant to obtain information unprofessional. In fact that was the purpose of the GIPA Act. The agency had made further suggestions that he should be using other avenues available for redress: "I demand the agency's withdrawal of these comments". The agency should be aware that the present matter before the board would have no bearing on his neighbour or on Penrith City Council. "The Agency is respectfully requested to contain the comments to the matters at hand".
Some secrecy must accompany an effective investigation of complaints, given the potentially negative impact a malicious or unfounded complaint could have on a certifier's reputation and professional practice. If confidential information were disclosed in the early stages, the board would be severely handicapped in the performance of its investigative and disciplinary functions.
While the respondent did not dispute that there is a statutory presumption in favour of disclosure, it noted that the applicant has a relevant personal interest in the information that may be considered under s 55 of the GIPA Act. Indeed, the respondent submitted that the applicant's personal interest in the information and the fact that he is the complainant in the investigation is a consideration against disclosure because it increases the likelihood of the effects listed in clause 3(c) and (d) and clause 4(d).
Further, disclosure would prejudice the certifier's legitimate business, commercial, professional or financial interests within clause 4(d). As the disciplinary process had not yet been completed, release of the information was inappropriate. Disclosure could prejudice the legitimate interests of the certifier, as it is information likely to cause reputational damage and lead to potential clients being wary of dealing with him. It would also contravene a provision prohibiting disclosure of information within the meaning of clause 6(1), as s 83(1)(b) of the BP Act prohibits the disclosure and misuse of information obtained in connection with the administration or execution of the Act, except in limited circumstances, none of which favour disclosure in the present case.
Because of the harm that would be caused to the conduct of the investigation and disciplinary process, it was against the public interest to allow the applicant to access confidential information submitted by parties while an investigation is in progress. More weight should therefore be given to the considerations against disclosure.
The respondent's formerly closed written submissions (exhibit R2) contended that the relationship between the applicant and the certifier who was previously employed by the applicant's neighbour, and with whom the applicant had been in dispute about the development application, is a relevant "personal factor" under s 55(3) of the GIPA Act. A substantial part of the information not released related to the certifier's response to the complaint lodged with the board. It annexed documents that belonged to his client, the applicant's neighbour.
Other personal factors included the fact that the applicant is not a party to the development in question, but is a next door neighbour who has been engaged in a long-term dispute with his neighbours in opposition to their development on the property. The certifier was engaged by the applicant's neighbours to facilitate the regulatory approval of their development. There was no contractual obligation in place between the applicant and the certifier. The applicant's dispute over the development included the certifier and the local council, for their roles in approving the development.
The submission included a table setting out the redacted information and withheld information, together with summaries of the relevant public interest considerations against disclosure. In relation to item 6, p 13, there is a redacted part dealing with legal advice obtained by the complainant regarding the recording of private telephone conversations between the certifier and the complainant applicant. The other statements of reasons in the table are similar to those already given in the respondent's open submissions.
At the end of the second day of the hearing, following the applicant's submissions, the respondent noted that as the applicant had stressed that there was no evidence before the tribunal of s 54 consultations or of Mr Norris's refusal to consent to the release of the information, the respondent would file and serve evidence to that effect. It had not done so previously because it had been under the impression that the point was not disputed. The respondent was accordingly directed to file and serve the material within seven days, and the applicant was to have a further seven days to comment on it. After the hearing the respondent duly filed and served an affidavit by Brenda Bourke sworn on 13 October, together with attachments (exhibit R5). The applicant filed and served submissions in reply on 20 October 2016, which appeared to contain an indication that the applicant wished to cross-examine Mr Norris. The applicant was asked to indicate whether he was in fact seeking an opportunity to do so and accordingly lodged some further submissions on that subject (exhibit A6). The respondent replied to those submissions by letter dated 11 November 2016.
As regards third party consultations under s 54, an agency would not have discharged its responsibilities regarding the proper application of the public interest test if it makes a decision about the release of information based solely on the views of third parties whom the agency has consulted. No evidence was on record concerning consultations with Warrick Norris or Urban Approvals, nor was there any evidence to show that Mr Norris had actually objected to release of the information.
The respondent had failed to provide any relevant fact or reasoning for arriving at its expressed conclusions. It submissions are mere conjecture and fail to discharge its burden of justifying its decision under s 105. Mr Fagan's assessment was insufficient ground for establishing prejudice arising from disclosure, and he was not sufficiently skilled to provide a relevant opinion on issues of prejudice. Where the evidence consists merely of a person's opinion as to the likelihood that people will behave in a certain way, the usefulness of such evidence is likely to be limited: Applicants v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 22, [63] - [64]. His evidence should be disregarded.
Further, Mr Fagan's affidavit states that "generally this access is limited to the appointed investigators" (applicant's emphasis), not that it is strictly limited. Any claim to confidentiality is also contradicted by the correspondence, in which the certifier is explicitly notified on 9 March 2015 that any comments made during the course of an investigation may be conveyed to the complainant. Consequently, the certifier, by responding to the complaint, accepts that information provided to the agency is not in confidence within the meaning of clause 1(g) of the s 14 Table. Further, having advised the certifier that any comments made in response could be conveyed to the complainant, the respondent could not now suggest that such action would prejudice the effective exercise of the respondent's functions or prejudice the conduct or effectiveness of any investigation or review conducted by it within the meaning of clauses 1(f) and 1(h).
The applicant submitted that clause 2(b) could not apply because the refused material related only to certifier response. A certifier could reasonably be expected to provide a full and complete response to allegations of professional misconduct for the purpose of maintaining his or her registration, irrespective of whether it was available to the complainant. The certifier made his response on notice that it could be provided to the complainant and there is no evidence to the contrary.
The applicant's submissions then state that the respondent has not presented any facts or reasoning in support of applying clause 3(b) of the Table in s 14 of the Act, relating to personal and health privacy principles. Nor has it identified any court proceedings that would be prejudiced by disclosure within clause 3(c). Any documents relevant to such proceedings would already be in the possession of the parties and the release could not prejudice the proceedings. Clause 3(d) could not apply, for if the BPB is independent, any public knowledge of the facts would have no bearing on the fairness of any trial.
As regards clause 4(d), the respondent submits that the board has not provided any facts or reasoning for concluding that disclosure would prejudice any person's legitimate business, commercial, professional or financial interests, but has put forward only conclusory statements that the clause applies. He continues: "As the 50 allegations of professional misconduct against the Certifier (with 400+ pages of supporting facts) are public knowledge, it is not reasonable to expect that disclosure of the Certifier's defence against these allegations would cause any further prejudice to the Certifier". For that clause to apply, the agency must tender evidence from the certifier showing how information contained in a response is expected to cause further prejudice to his business interests.
Clause 6 did not assist the respondent, as the BP Act does not constitute a complete prohibition on the release of the refused information, as it provides for disclosure "in connection with the administration or execution of this Act" and with any "other lawful excuse": s 83. As the board advised the certifier in writing that any comments made during the course of an investigation might be conveyed to the complainant, it must acknowledge that there is no prohibition against disclosure. Further, the board could not raise the consideration regarding material received from third parties. As the certifier provided all documents in the response subject to the provision that all comments could be provided to the complainant, the release of the refused material could have no effect. He further anticipated that many of the third-party documents might already be public.
The fact that the certifier had provided a response was not a consideration against disclosure. "Consideration must be had to the effect of releasing each refused item of information".
Besides the general public interest in disclosure of government information, a significant public interest was the public interest in giving members of the public information allowing them to assess whether complaints are dealt with properly and transparently, and the related and overlapping consideration that the disclosure of the requested information would further the accountability, responsibility and openness of government. It would allow members of the public (and in this case the applicant) to assess whether such complaints were being dealt with in accordance with law and the relevant procedures. The review process under the BP Act was not strictly ex parte after submission of an initial complaint. The BP Act s 27(3) allows for additional and later allegations to be combined. Timely release of information might reasonably assist with ensuring the complaint is assessed on the basis of bona fide facts.
As regards personal factors, the applicant submitted, the applicant's relationship as complainant in relation to the certifier response establishes personal factors in favour of disclosure, including confirming that the response to allegations is correct and not misleading and that the complaint is being dealt with properly. The board's assessment of personal factors was false and misleading. The matters identified were not obtained from the applicant and were not the subject of evidence.
The applicant contended that in relation to the application of the public interest test, the board had put forward only conclusory statements in support of the refusal to release requested information. They had provided only conjecture and continued to fail to provide facts or reasons. The weight of any consideration against disclosure must be based on the public interest. "It is assumed that a certifier, in preparing a response to [a] public allegation, would not present material further prejudice [sic] their case, or contained [sic] information that was false or misleading. No evidence has been presented to establish a causal link from release of refused information to any reasonable expectation of prejudice".
The evidence in this case established that a certifier would defend against allegations of professional misconduct when advised that any response could be provided to the complainant. There was no evidence of prejudice to the investigation. Nor was there any demonstrated prohibition against release of the refused information….[T]he applicant seeks individual review of each document, seeking the Agency's identification and confirmation of" the nature of each item of information, the facts surrounding disclosure of each item, the relevant considerations under s 14 of the GIPA Act for each information item, the evidence supporting effect and weight, the Agency's reasoning and assessment of balancing public interest considerations for and against and the Agency's reasoning and assessment for production of the specific information. "While it is recognised that this may take time, the Agency has been put on early notice to prepare the necessary arguments". The applicant assumed that the response to an allegation of professional misconduct would contain little personal information and would not be likely to prejudice any decision on the matter.
As the original GIPA application was valid, the board's decision was late and the applicant seeks a refund from (or costs against) the board for the GIPA application fee in the amount of $30 and the NCAT fee of $96.
In his concluding remarks, the applicant contended that "It appears that the Agency Decision, and Submissions, provide mere lip-service to the provisions of the GIPA Act while supporting a biased/predetermined position to maintain concealment of information before the BPB - thereby evidencing procedural bias by the Agency in determining the GIPA Application…. It is unreasonable for the agency to suggest that a response from a defendant certifier was provided in confidence. The certifier is not a confidential source. Documents released by the Agency further contradict this position". In Applicants v Commissioner of Police (at [100] - [101] and [126], it was found that public interest can still favour the release of information that was provided in confidence. In addition to the public interest considerations, personal factors weighed in favour of disclosure. As the applicant is relying on an enforceable right to access government information, "timely release of the information will enable oversight of the certifier defence in regard to accuracy and completeness".
In oral submissions at the hearing, the applicant said that all his contentions were contained in exhibit A2 and his statutory declarations. He reiterated the points made in those documents, and added that there was no relevant evidence for any of the points that the respondent needed to establish.
The matter was then adjourned part heard to 6 October 2016.
On the adjourned date the applicant announced that he would be making a further GIPA access application when the board made its decision about his complaint concerning the certifier.
On that date the applicant also tendered further written submissions headed "Applicant Closing Statement" (exhibit A4) in which he argued inter alia that the only factual basis provided by the agency for opposing disclosure was inference and conjecture, and consequently it had failed to meet its burden in the case: Singh v Legal Aid Commission (No. 2) [2015] NSWCATAD 5, [205]. The weight carried by a public interest consideration against disclosure also had to be supported by cogent evidence that could be scrutinized and tested: Watts v Department of Planning and Environment [2016] NSWCATAD 42, [61]. There was also no evidence that the certifier objected to the release of the information, or that any such objection was based on a valid public interest consideration, and was therefore irrelevant.
Luxford v Department of Education and Communities [2016] NSWCATAD 118 and Applicants v Commissioner of Police [2015] NSWCATAD 22 were distinguishable from the present case. Notably, in Luxford, witnesses were informed in advance that information was to be received in confidence, whereas here the certifier was informed on two occasions that information provided could be passed on to the complainant. The confidential quality of communications was a question of fact to be determined in the light of all the circumstances of the case: Williams v Department of Industry and Investment [2012] NSWADT 192, [70]. The factual background presented by the agency did not justify an inference that information communicated in the course of an investigation was confidential. In his evidence Mr Fagan had said that the board had previously provided information received by a certifier to the complainant. The standard letters they use establish that a discretion to disclose information is maintained. There was no factual basis for asserting that investigations relied on confidentiality or that documents were provided in confidence. Opinions on such matters carried little weight: Hurst v Wagga Wagga City Council [2011] NSWADT 307, [64] - [65]. As some information had previously been made public, the respondent bore the burden of establishing that the withheld information was not public: Applicants v CoP, [68]; Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98, [40].
The agency had not established that client privilege applied to the refused documents, but even if it had, the privilege had been waived: College of Law Ltd v Australian National University [2013] FCA 492. Further, under GIPA Act, schedule 1, clause 5(1), legal profession privilege existed only in favour of the agency, not a third party.
The agency had also failed to identify the nature and form of the refused information. It had consequently failed to provide a valid notice of decision to refuse to provide access in accordance with s 61 and as a result its decision was invalid. As regards considerations against disclosure, the agency had relied on conjecture and had tendered no probative evidence or reasons in relation to any of the considerations relied on or the weight to be accorded to them. It had been inappropriate for the tribunal to hold a confidential session to review the refused documents.
No probative evidence had been adduced by the agency to justify its decision. The tribunal could not affirm those decisions in the absence of such probative evidence and reasoning. The tribunal should release all requested documents in full, or alternatively redacted only to the extent necessary to remove specific information to which an overriding public interest consideration against disclosure was established. The applicant also sought a declaration that the original access application had been valid as filed and that consequently the agency was liable to refund the $30 access application fee pursuant to s 63 of the GIPA Act, and also a refund of the tribunal filing fee of $96 under s 108.
As was noted above, after the hearing the respondent by leave filed and served and affidavit by its solicitor, Ms Brenda Bourke sworn on 13 October 2016 (marked as exhibit R5) attaching a copy of the correspondence arising out of the consultation process undertaken by the Ministerial and Executive Services of the respondent with the certifier, including an email enclosing a letter and fact sheet regarding third-party consultation, and the certifier's email response. The applicant filed and served submissions in reply on 20 October and asked that they be taken into evidence. They were marked as Exhibit A5.
In that document the applicant summarized his earlier submissions and argued inter alia that Mr Norris's objection merely stated a lack of support for release of the information, rather than objection, and did no more than set out opinions unsupported by facts or reasons. His reasons were not directed to any particular public interest consideration against disclosure and did not identify the particular information or documents under consideration. His opinions on the interests of third parties were irrelevant and inadmissible. He opined that disclosure could expose an innocent person to the risk of harassment, but not serious harassment or serious intimidation, nor did he identify the purported innocent party. His opinions about the applicant's character were not public interest considerations against disclosure. If the respondent sought to rely on Mr Norris's opinions, the applicant demanded the right of cross-examination.
In relation to cl 4(d), the applicant contended, the agency had failed to establish that the refused information concerned any particular legitimate business, commercial or financial interests or how disclosure could reasonably be expected to prejudice those interests. As the applicant had not been given an opportunity to scrutinize and test Mr Norris's opinions under cross-examination, they were challenged on the record and must be found inadmissible.
The applicant then argued that cl 3(f) had no application, and that the agency had not discharged the onus of establishing that cll 1(d) to (h) applied. Luxford, on which the respondent relied, was distinguishable in several respects on the facts, including that witnesses in that case had been informed at the outset that information was to be received in confidence, which was not the case here, and that the complaints handling policy in that case required maintaining a high degree of confidentiality. There was also a substantive distinction between information received from a confidential witness and information received from a public official in defence of allegations of professional misconduct.
The applicant further submitted that the respondent's evidence as a whole was inadmissible. Mr Fagan's was incomplete, and had been contested and contradicted during oral questioning. Statements he made were not specific to the refused information and he had not inspected or read the relevant documents. Ms Bourke's submissions must be disregarded as she had no established suitable qualifications or experience to lead opinion evidence in the matter. Mr Norris had not provided any relevant evidence for any public interest consideration relied on by the respondent. As his evidence had not been tested under cross-examination, it was inadmissible and his letter was irrelevant and must carry no weight. The opinions expressed by Mr Kolenberg in his decision on the access application were immaterial and the author was not suitably qualified to provide opinion evidence in the matter.
The applicant also sought a tribunal ruling that there were no limitations imposed on the use he could make of the evidence submitted by the respondent, specifically exhibit R5.
By letter from the registry dated 27 October 2016, the applicant was asked to advise the tribunal by 4 November whether he wished to cross-examine Mr Norris on the contents of his email dated 13 April 2016. By Friday 11 November the respondent was to respond to any such request and provide any submissions concerning any limitations on the use of evidence supplied by the respondent.
The applicant replied on 2 November by letter (exhibit A6) stating inter alia that "Mr Norris is not presently established as a witness in this case at this time; Mr Norris can therefore not be cross-examined …. Under the present status, the Applicant does not seek [the] burden of calling Mr Norris as an Applicant witness in this case, but contests the relevance and admissibility of each opinion annexed in the affidavit by Ms Bourke. The Applicant does not seek to cross-examination [sic] Ms Bourke on her submission, as the Affidavit provides no weight to the Respondent's case. Upon clarification by the Respondent as to whether or not they seek to rely on any opinion from Mr Norris as a Respondent witness, and approval by the Tribunal for the Respondent to introduce a new witness out of time (against the Applicant's objections), the Applicant reserves the right to cross-examine Mr Norris (at the Respondent's cost)" (emphasis in the original).
The respondent had submitted that the publication of exhibit R5 was somehow restricted, relying on Hearne v Street [2008] HCA 36, [1], which related to a document obtained during discovery but not placed into evidence. "The Respondent has submitted NCAT exhibit R5 as evidence in open court". The applicant submitted that there was no support for restricting the use of any evidence read or filed in an open court or tribunal.
In its reply dated 11 November, the respondent wrote that "the Respondent notes the Applicant does not wish to cross-examine Mr Norris" and submitted that the affidavit of Ms Bourke and annexure could not be released. As the applicant did not appear to be seeking to cross-examine Mr Norris, the tribunal proceeded to the decision on the matter and on whether Ms Bourke's affidavit could be released. In the meantime it was not to be released.
The public interest considerations against disclosure are limited to those set out in the Table to s 14 of the Act. In the present case the respondent relies on six items in the Table in respect of each of the items in issue.
In the case of clause 1(g), the consideration against disclosure of information arises "if disclosure of the information could reasonably be expected to have one or more of the following effect ts (whether in a particular case or generally)….(g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence".
In the case of clauses 3(b), (c) and (d), the consideration against disclosure arises if "disclosure of the information could reasonably be expected to have one or more of the following effects:…. (b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or 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".
In the case of clause 4(d), the public interest consideration against disclosure of information arises if "disclosure of the information could reasonably be expected to have one or more of the following effects….(d) prejudice any person's legitimate business, commercial, professional or financial interests".
Clause 6(1) provides that "There is a public interest consideration against disclosure of information if disclosure of the information by any person could (disregarding the operation of this Act) reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule (of this or another State or of the Commonwealth) that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions".
In his reply relating to the Norris email, the applicant also made submissions concerning the non-applicability of cll1(d), (e), (f), (h) and 3(f), but as the respondent does not rely on those provisions, there is no need to deal with them.
The public interest test must be applied in accordance with the principles set out in ss 12 and 15 of the GIPA Act. In any review of a reviewable decision, s 105 places the burden of justifying the decision on the agency concerned. The test to be applied in regard to requests for access to government information is set out in s 13, which provides that "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". While s 12 establishes a general public interest in favour of disclosure and declares that there is no legal limit to any other public interest considerations favouring disclosure, the public interest considerations against disclosure are limited to those set out in the Table to s 14 of the Act. Further, the Act contains provisions, such as ss 72 to 78, that mitigate the considerations against disclosure.
In s 55(1) the Act permits an agency to have regard to the personal factors of the application for release of information, including reference to:
1. the applicant's identity and relationship with any other person,
2. the applicant's motives for making the access application,
3. any other factors particular to the applicant.
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 clauses 1, 6 or 7) of the Table. The personal factors can also be taken into account as factors in favour of providing access: s 55(2).
From the list in the s 14 Table, the respondent has relied throughout on the six considerations set out in para 86 above. The requirement in the chapeau to each of those considerations (except clause 6(1), where it is part of the main provision) that disclosure "could reasonably be expected" to have the effect prescribed in one or more of the paragraphs in each clause is to be given its ordinary meaning and "require[s] 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": Nature Conservation Council at [146]. It does not require that the occurrence of certain events be likely in terms of any particular degree of likelihood (such as the balance (preponderance) of probabilities). It is a question of whether the expectation claimed is reasonably based: Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252, [57].
Ultimately, determining where the balance lies between the competing interests is "a question of fact and degree, requiring the weighing of competing matters, and a task that is not amenable to mathematical calculation": Hurst at [70]. The Act provides no set formula for calculating the weight of considerations, or for determining if one set of considerations outweighs the other. Any reasonable approach that follows s 15 principles seems to be acceptable. For while s 13 it is expressed in terms of outweighing, any concept of weighing in this context can only be a metaphor, one that perhaps gives the process a greater aura of scientific measurement than it actually possesses. It is really a matter of placing identified considerations in order of priority or importance.
It does not, however, logically follow that the public availability of a detailed complaint necessarily means that the detailed response to that complaint and supporting material must also be deemed to be public. There is thus no material indicating that the information sought has already been disclosed. Consequently I do not think that the respondent carries any special burden of proving that the information sought is not in the public domain, apart from its general burden of justifying its decision under s 105(1).
An exception should be made, however, in relation to item 7. The respondent has released item 6, which relates to legal advice obtained by the complainant regarding the complainant Dr Place's recording of private telephone conversations between the certifier and Dr Place without the certifier's knowledge. As the legal advice, if any, had been obtained by the complainant (applicant), not by the certifier, the applicant would already have been fully aware of it. The originally redacted information also refers to correspondence between the certifier and the applicant concerning the recording of those telephone conversations, but again the applicant would have had to be fully aware of it.
Item 7 is in a somewhat similar position. It attaches Mr Norris's response to the complaint and lists some files of supporting attachments by number. The applicant, however, must be fully aware, if only from the terms of the document schedule itself, that Mr Norris had lodged a response attaching a quantity of supporting material. The document item 7 itself has not been released, but as Dr Place correctly points out, the GIPA Act operates on information, not on documents. I therefore find that the information in item 7 should be released to the applicant. I also note that the respondent has decided that pages 115 to 122 and 125 to 128 of item 10 should be released to the applicant.
The next preliminary matter relates to Ms Bourke's affidavit. At the close of the hearing the respondent sought leave to file an affidavit attesting to the board's compliance with the obligation to consult an affected third party (Mr Norris) pursuant to s 54 of the GIPA Act, explaining that it had not done so earlier because it had been under the impression that the point was not in dispute. That appears to have been correct. When in cross-examination Mr Fagan stated that the certifier had objected to the release of his response documents for GIPA Act purposes, the applicant did not challenge that answer (see para 15 above)..
Leave was therefore granted and the affidavit was filed and served. In several places in his submissions commenting on that affidavit, the applicant challenged the admissibility of its contents on the ground that he had not had an opportunity to cross-examine. As it was not completely clear whether he was in fact seeking to cross-examine or not, the tribunal asked him to indicate whether he did in fact seek to cross-examine and gave the respondent an opportunity to respond to any such request.
Dr Place's response (exhibit A6) was again not free from ambiguity, and proposed conditions on any exercise of the right of cross-examination. As it did not contain any clear request for an opportunity to cross-examine, the tribunal has taken the decision to proceed to decide the substantive matter.
The admission of exhibit R5 does, however, raise the question of the weight that should be given to it, bearing in mind that the tribunal is not bound by the rules of evidence (CAT Act s 38(2)) and its acceptance of evidence that might otherwise be open to objection, such as hearsay, is subject only to relevance and the question of weight.
Mr Norris's email of 13 April 2016, an attachment to exhibit R5, begins with the words "I wish to formally advise that I do not support the release of documents I have submitted to the Building Professionals Board requested under a recent GIPA application…." Dr Place contends that the words "I do not support the release" do not amount to an unequivocal objection to release, but I think the meaning is plain enough and the email constitutes clear evidence of his objection.
The email also states that the "documentation will disclose information pertaining to other people's personal information and other organizations' information that could affect someone personally or someone's business". As it is not disputed that Mr Norris was engaged as a certifier by Mr and Mrs PW in connection with their development next door to the applicant's property, the email is credible evidence of the proposition that the withheld material includes information about their personal or commercial affairs.
The remainder of the email consists of Mr Norris's assertions about the likely consequences of releasing the information and the propriety of the applicant's conduct in seeking to obtain it. As it consists of general statements and expressions of opinion without detailed substantiation, I accept the applicant's contention that it does not merit substantial weight.
The final preliminary matter concerns the respondent's evidence. In his document headed Applicant Reply to Agency Late Submissions (exhibit A5), the applicant submitted that the totality of the respondent's evidence was inadmissible for the reason that it was hearsay, opinion evidence from non-experts and on other grounds. But, again, this tribunal is not bound by the rules of evidence and its acceptance of evidence is guided by the criteria of relevance and weight. To exclude the whole of a party's evidence on the grounds advanced by the applicant would constitute an error of law and presumably a denial of procedural fairness.
In relation to the three remaining items of information that the respondent seeks to withhold from disclosure, I have carefully considered the submissions of both parties and all the evidence and materials placed before the tribunal. That is the case even for matters not specifically referred to in these reasons, as the submissions, especially those of the applicant, are lengthy and detailed.
In analysing the evidence and the submissions relating to the three items, it is convenient to follow the four steps indicated in Nature Conservation Council above, beginning with the identification of considerations favouring disclosure.
Those letters plainly lend considerable support to the applicant's submission that the response and attachments could not have been received in confidence. They are not, however, and cannot be, the end of the inquiry in themselves. In Luxford, Montgomery SM set out the criteria to be applied in determining whether the information in issue is confidential, as laid down in Williams v Department of Industry and Investment [2012] NSWADT 192:
1. The confidential quality of communications is a question of fact;
2. To establish its confidential quality, information must have been supplied under an express or implied pledge of confidentiality;
3. The confidential quality of the information may be inferred from the nature of the relationship between the informer and the person informed;
4. The confidential quality of the information must be determined in the light of all of the circumstances of the particular case (at [70]).
Dr Place sought to distinguish Luxford on a number of factual grounds, but did not dispute Montgomery SM's enunciation of the test for confidentiality.
In TW v TX [2005] NSWADT 262, Hennessy DP developed the test further, stating that there was no need to prove a legal obligation to keep the information confidential. It was enough if the person providing the information was not bound to disclose it but did so [i.e. withheld it] on the basis of an express or inferred understanding that it would be kept confidential (at [9]).
Similarly, in Barangaroo, when referring specifically to clause 1(g), the tribunal stated that there did not need to be an express relationship of confidence, but such a relationship could be inferred from the circumstances in which the information had been provided (at [68]).
In the present case, an important indicator that the information was provided to the board in confidence is provided by the statutory framework of the board's complaints handling machinery in the BP Act. As Ms Bourke pointed out, the Act contains specific provisions relating to the confidentiality of information forming part of its investigative and disciplinary processes. They include the following provisions:
investigation of complaints is mandatory, whether the complaints have substance or not: s 27(1);
investigations are not limited to the terms of the complaint or the person who is the subject of the complaint: s 27(3);
The BP Act has extensive coercive powers of investigation, including the power to compel the provision of information and documents; powers of entry into non-residential premises, including the authority to use force; access to the power given by search warrants to enter residential premises, if they are deemed necessary for the determination of the matter: ss 48 to 51;
The Act contains offence provisions for obstructing investigators;
There is a limitation on self-incrimination available to accredited certifiers: s 59;
The board conducts disciplinary hearings in the absence of the public: s 30(3)
Confidential information can be excluded from any statement of decision made by the board which is provided to the complainant: s 32(3)
There is a general secrecy provision regarding the disclosure and misuse of information obtained in connection with the administration or execution of the Act: s 83(1).
The evidence of Mr Fagan, who coordinates and directs the board's investigative functions and oversees the investigators allocated to alleged contraventions of the Act, was that once a complaint is received, access to the information, including submissions and other information received from a certifier, is restricted to the relevant investigator or investigators appointed to investigate the information received, and their managers. The confidential information is retained on files maintained by the board, access to which is restricted on a "need to know only" basis. Generally that access is limited to the appointed investigator and his or her managers. He believed that without such confidential information, the board's ability to learn of alleged contraventions would be severely compromised and would probably result in a significant number of alleged breaches not being investigated.
In oral evidence Mr Fagan explained that once a complaint has been accepted, the board's involvement with the complainant ends. There is no ongoing process involving the complainant. The complaint itself is not treated as confidential.
Although certifiers received no express promise of confidentiality, they responded in confidence, and might say other things if they did not have the assurance of confidentiality. The statement in the board's letters to Mr Norris that comments could be passed on to the complainant was part of a standard letter. The board would not routinely release a response when an investigation was in progress, but reserved the power to do so. In this case the certifier had objected to the release of the information. Some 70 percent of complaints were resolved with no further action taken, and in such a case the board might release the certifier's reply.
The applicant submitted that Mr Fagan's evidence constituted only an in-house assessment and that no balanced evidence was presented for establishing prejudice. Mr Fagan was "also not sufficiently skilled to provide relevant opinion on issues of prejudice".
It should be noted, however, that cl 1(g), unlike cll 1(f) and (h) (on which the respondent does not rely) is not conditioned on any prejudice being caused to the respondent's operations. For the purposes of cl 1(g), it is sufficient to establish that the information was provided to the agency in confidence. The statutory scheme for complaints handling under the BP Act and Mr Fagan's overview of the manner in which that scheme is administered in practice point to that conclusion. Further, if there had been no mutual understanding that a certifier's response was normally treated as confidential, there would have been little practical point in the board, having once sought Mr Norris's consent to the release of the information, acting on his refusal.
The certifier's response includes the attachments, items 9 and 10. Item 10 consists entirely of correspondence and other documents created in the course of Mr Norris's obtaining of legal advice in relation to the complaint. While the respondent does not rely on client privilege (legal professional privilege) in relation to that item, there can be no doubt that the information in it was provided to the board on the understanding that it would be kept confidential. Item 9 consists of the attachments to Mr Norris's response, and they are listed in confidential exhibit CR3 at page 26.
Although that material no doubt includes some individual documents or pieces of information that may have been released (such as, hypothetically, architectural sketches of the neighbours' development), the contents of the attachments as a whole all form part of the certifier's response and show his approach to making his case in answer to the complaint. As such they were provided to the board in confidence.
In light of all the circumstances, I find that the consideration in cl 1(g) has been established in relation to all three items.
Such material is inherently confidential, and all the more so as the certifier has not yet been found guilty of the allegations, which could be found to be unsubstantiated. I find that the consideration in cl 3(c) has been established.
As regards cl 3(d), "prejudic[ing] the fair trial of any person, the partial adjudication of any case or a person's right to procedural fairness", the applicant submits that it cannot apply as the board asserts its independence and integrity. If the board is indeed independent, then any public knowledge of the facts would have no bearing on any impartial adjudication.
The board submits that releasing the subject documents would provide the applicant with an additional procedure in the complaint management process that is not offered under the BP Act and that he should be using other avenues that are available to him. Possession of the information in question would place him in a position to interfere in the investigation and adjudication of the complaint and to usurp the board's statutory role.
It is questionable whether it is appropriate for this tribunal to decide that an applicant is not entitled to an additional procedure in the complaint management process that is not offered by the Act if such a procedure is in law available, or that he should be making use of other remedies at his disposal. Such an opinion on a matter of policy cannot affect the application of the Act. Further, the applicant denies any intention of intervening in the investigation process or of usurping the board's function.
On the other hand, his intentions in that regard could change. Given this matter's history, it might not be altogether surprising if they did, given the amount of time and resources the applicant has already invested in these proceedings. He has also openly foreshadowed a new access application in relation to the board's decision on his complaint, when it is issued. Enabling a person who is not a party to the adjudication proceedings to mount a collateral attack on them that would be likely to divert time and resources from the statutory process and distract a party who is seeking to defend himself would appear to compromise the certifier's right to procedural fairness. Further, when a person is mounting a defence to an investigation which may lead to sanctions, it is normally considered that he or she is entitled to confidentiality. The certifier has a right to protect his or her reputation while the matter is being determined by the board, especially as some complaints are found to be malicious or baseless. Hampering the certifier's ability to do so would also seem to be inconsistent with procedural fairness. I therefore find that consideration 3(d) has been established.
The respondent submitted that the information sought is protected by the s 83 secrecy provision, which prohibits disclosure of any information obtained in connection with the administration or execution of the BP Act, except in very limited circumstances. As none of the limited circumstances permitting disclosure applied, the requirements for that consideration against disclosure to apply in the matter had been met.
The applicant replied that s 83 does not constitute a complete prohibition on the release of the refused information, as it provides for disclosure "in connection with the administration or execution of this Act" and with "other lawful excuse". As the board had advised the certifier in writing that any comments made during an investigation could be conveyed to the complainant, it was compelled to acknowledge that there was no "prohibition against disclosure".
The board argued that none of the exceptions in s 83(1) applied in relation to the withheld information, but made no submissions as to why that might be so, or in particular whether paras (b) or (e), which on the face of it could be argued to apply, might not operate in the present circumstances. As the statutory burden of justifying the decision to withhold remains on the respondent, I find that cl 6 has not been shown to apply.
The statutory structure of the BP Act also shows that confidentiality is an important component of the board's complaint processing mechanism. Some of the relevant provisions are enumerated in para 121 above. Notable are the power to broaden the investigation beyond the terms of the complaint or the particular complainee in question, the limitation on the right to refuse to answer on the ground of self-incrimination, the direction to conduct disciplinary hearings in the absence of the public and the power to exclude confidential information from any statement of a decision made by the board that is provided to the complainant.
Asked whether the police practice of keeping material collected in the course of criminal investigations confidential (as in Applicants v CoP) had any bearing on the weight to be given to cl 1(g), Dr Place replied that it did not, as the confidentiality of police investigations is required by the Police Act 1990, whereas the BP Act makes no similar provision. That is not correct, however. As was shown above, the statutory procedures for complaint handling are largely predicated on confidentiality before a decision is delivered.
In passing it may also be noted that the New South Wales Ombudsman has articulated the rationale behind this consideration in his guidelines relating to administrative investigations such as those conducted by the board (New South Wales Ombudsman, Managing Information Arising out of an Investigation - Balancing Openness and Confidentiality, May 2009). The guidelines note that while the Ombudsman has long supported a positive approach by agencies to the disclosure of information, it is also recognized that there are circumstances where effective public administration or the privacy rights of individuals require confidentiality or secrecy. "Confidentiality serves a number of important functions. Preserving the confidentiality of the identity of the person making the complaint and person the subject of the complaint minimises the risk of harm to those parties. Another important function of confidentiality is to ensure the integrity of the investigation. If a potential witness feels that they are unable to trust the discretion of the investigator, they will be more reluctant to come forward with relevant information…. (at 18.1).
Other considerations include minimizing possible detrimental impact on individuals, minimizing possible detrimental impact of disclosure on current or future investigations and the future supply of information (part C). In the present context, the guidelines cannot be used to indicate how the balance should be struck on the facts before the tribunal, but they do constitute an alternative expression of the considerations alluded to in Mr Fagan's evidence and the respondent's submissions. In light of all the evidence, I therefore conclude that cl 1(g) carries substantial weight in this case.
The same applies to cll 3(c) and (d). The information sought was clearly prepared for the purpose of making the certifier's case in the board proceedings and any future legal proceedings, and is inherently confidential, especially as the certifier has not yet been found to have committed any contraventions or acts of negligence, and the allegations or some of them could be found to be unsubstantiated. The complainant's defence in the present board proceedings, as well as in relation to any further complaint arising from the applicant's foreshadowed access application, could be disrupted, distracted and protracted as a result of the release of the certifier's reply and supporting material at this stage. The resulting potential unfairness to the certifier and the prejudice to his legal position merit substantial weight.
Clause 4(d) takes into account the certifier's business and professional interests. As I have indicated above, release of the withheld information plainly has the potential to prejudice his interests in that regard by increasing substantially the quantity of material in the public domain dealing with the applicant's BP Act complaint and exacerbating the damage done to his professional reputation and practice by publication of the complaint itself. It could cause more potential clients to become wary of engaging his services and the time demands involved are likely to distract him from attending to the needs of his professional practice. According to the evidence referred to below, that has already occurred on occasion.
The BP Act has no objects clause, but the legislative purposes as stated in the preamble include the accreditation of certifiers and the handling of complaints. While that process can lead to the imposition of sanctions, one would not attribute to the Legislature an intention to impair a certifier's business activities before it had been determined that there has been a contravention. Clause 4(1) therefore commands substantial weight.
The objectives espoused by the applicant seem, however, a little less than adequate to account for his relentless pursuit of the current application, which to date has involved inter alia:
700 pages of correspondence with the board by the time of the application;
a 400-page (with attachments) complaint to the board about the certifier;
persistence with the issue of the validity of the initial access application to obtain a refund of the $30 application fee when the respondent is bound, and willing, to refund it under s 63 in any event and the issue is thus moot;
a foreshadowed further access application in relation to a board decision that has not yet been made or delivered; and
the recording of private telephone conversations (or half thereof, it is not completely clear) with the certifier without the permission or knowledge of the other party, and the obtaining of legal advice in connection with his doing so.
Those actions, or at least the first four of them, are steps that the applicant was entitled to take, but they do tend to suggest the existence of an intense and long-running dispute, which is relevant to the question of relationship and motivation under s 55. It may also be borne in mind that Dr Place was not the party who applied to the local council for development approval and he has never been in a contractual relation with the certifier. Consequently, he is essentially in the position of an intervener.
Also relevant in this context are the s 54 consultations and the certifier's reply. In an email and letter dated 5 April 2016, Mr Simon Bechara of Fair Trading explained Mr Norris's right to object and referred to an accompanying fact sheet on the subject (part exhibit R5). Mr Norris's emailed reply dated 13 April refused consent to disclosure in these terms:
[Not for publication]
The applicant at one point appeared to wish to cross-examine Mr Norris on that letter but, as was explained above, did not press that request (see exhibit A6). As I have already indicated, that email, besides being evidence of Mr Norris's objection to release, also supports the other evidence that the withheld information includes some material that is personal to Mr and Mrs PW.
[Not for publication]
[Not for publication]
Consideration of an applicant's motives under s 55(1)(b) raises the question of the kinds of motives that could weigh against disclosure and why they would have that effect. In Camilleri the tribunal took into account the fact that the applicant was seeking business information about a competitor, and was in a long-running dispute with the person to whom the information related.
In Pemberton v Macquarie University [2014] NSWCATAD 76, [54] - [55] the tribunal considered that the release of information would exacerbate pre-existing acrimony and personal conflicts within the university. That circumstance, in the tribunal's view, strongly weighed against disclosure:
The applicant claimed that his 'motives' for his access application is to add to the body of university records already held which, through public scrutiny, allow for proper accountability of this organisation. In an earlier statement made by the applicant dated 27 July 2010 it was clear that there was some factional interests at the University and the applicant had made serious allegations of impropriety against Dr Slade and Dr Mack. Whether as a result of those allegations, or independently, relations between various members of the faculty could only be described as acrimonious. The Respondent submitted that there is more than reasonable cause for concern that the purpose of the application is obtain information for the purpose of publicly discrediting Dr Slade and Dr Mack. In Camilleri v Penrith City Council [2012] NSWADT 196 I considered the relationship between the applicant and the person referred to in the information sought ('the other person'), and its bearing on s.55(1)(b) and (c) of the GIPA Act. In that matter I considered that because of the acrimony between the applicant and the other person, I found no purpose would be served in providing the applicant with the information which gave rise to the investigations the subject of the application. To do so would only serve to exacerbate the already poor relations between the applicant and the other person. Similarly, in this matter, I consider that there is evidence of clear tension between Dr Slade and Dr Mack on the one hand, and Dr Pemberton, on the other. Disclosing the information is likely to exacerbate their personal conflicts. This weighs heavily in my view against disclosure.
Donnellan v Ku-ring-gai Council [2013] NSWADT 115, [60], held that in circumstances where the issue of motive becomes relevant, that motive must be established on reliable evidence and not by mere assertion. In the present case the evidence set out above shows that an acrimonious and protracted dispute exists between the applicant, the board and Mr Norris and that it is likely to continue and be exacerbated by release of the remaining three items of information (see generally M Robinson, J Lucy, New South Wales Administrative Law (2015), para 50.12490). I therefore find that s 55 factors add substantial weight to the considerations against disclosure in cll 3(c), 3(d) and 4(d).
Camilleri and Pemberton show that personal factors under s 55, such as the applicant's motives, can be the decisive factor against the disclosure of government information. For the above reasons, the personal factors in the present case assume greater than usual importance and predominantly do not favour disclosure. I am satisfied that the present application forms part of a long-running and all-consuming controversy between the applicant and the other parties to the dispute which disclosure would be likely to aggravate without significantly advancing the public interest or the goals of the GIPA Act.
As has been explained above, the evidence in this case establishes that the considerations in clauses 1, 3 and 4 carry substantial weight. The personal factors under s 55 render the consequences referred to in cll 3(c), 3(d) and 4(d) all the more likely to come about and consequently impart further weight. They also constitute weighty considerations against disclosure in themselves. In light of all the evidence I therefore conclude, bearing in mind the injunctions in the GIPA Act ss 3(2) and 15(a), that the public interest considerations favouring disclosure of the withheld information to the applicant are outweighed by the considerations against providing access. The decision under review is therefore varied accordingly.
There remains the question of possible restrictions on the use of exhibit R5. That document was not covered by the access application and was not read or tendered at the hearing of this matter. In my view the High Court's decision in Hearne v Street [2008] HCA 36, (2008) 253 CLR 125 applies in this situation and the document should not be released or used for any purpose other than these proceedings, and I so order.