Randhawa v Blacktown City Council

Background

1. The Applicant is a former President of the Community Resource Network Inc. ("the CRN"). The CRN works with community sector organisations to support them in providing services to the community. The Council is a member of the CRN and it works with the CRN and many of the other community groups that are part of the CRN. The CRN sits on the Council's clubs grant committee, and the Council attends inter agency meetings that the CRN holds.
2. The Council works with the CRN and other community groups to deliver services to the community.
3. In determining the access application the Respondent identified a number of documents that fell within the scope of the request. The Respondent consulted with a number of third parties under section 54(2)(a) and (b) of the GIPA Act. Those third parties objected to the disclosure of their information in response to the access application.
4. The Respondent has also communicated with third parties and advised them of the right to appear and be heard in these proceedings under section 104(3) of the GIPA Act. None of the third parties has applied to become involved in the proceedings but they have maintained their objection to the disclosure of their information.
5. In its original decision, the Respondent determined to release some information to the Applicant under section 58(1)(a) of the GIPA Act and refuse access to some information on the basis that the information was subject to an overriding public interest against disclosure.
6. The Applicant requested an external review of the Respondent's original decision by the Information Commissioner. The Information Commissioner noted that the Respondent had not made findings as required to demonstrate the considerations against disclosure and recommended that the Respondent reconsider its decision by way of an internal review. The Respondent accepted that recommendation and made a new determination.
7. The Respondent decided that release of the withheld information could reasonably be expected to: 1. prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions: clause 1(d) of the table to section 14 of the GIPA Act; 2. reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant: clause 2(a) of the table to section 14 of the GIPA Act; 3. reveal an individual's personal information: clause 3(a) of the table to section 14 of the GIPA Act; and 4. contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002: clause 3(b) of the table to section 14 of the GIPA Act.

Applicable legislation

1. The object stated under section 3(1) of the GIPA Act is to open government information to the public by authorising and encouraging proactive public release of government information (section 3(1)(a)); and giving members of the public an enforceable right to access government information (section 3(1)(b)). It is the intention of Parliament that the GIPA Act be interpreted and applied so as to further its object: section 3(2)(a).
2. The term "government information" is defined in section 4 of the GIPA Act as information contained in a record held by an agency. The term "record" is defined in clause 10 of Schedule 4 as: 10 Meaning of "record" (1) In this Act - record means any document or other source of information compiled, recorded or stored in written form or by electronic process, or in any other manner or by any other means. (2) A reference in this Act to a record includes a reference to a copy of the record. (3) For the purposes of the definition of record in this Act, the knowledge of a person is not a record.
3. The term " agency " is defined as: agency means any of the following - (a) a Public Service agency, (b) a Minister (including a person employed by a Minister under Part 2 of the Members of Parliament Staff Act 2013), (c) a public authority, (d) a public office, (e) a local authority, (f) a court, (g) a person or entity that is an agency pursuant to regulations under clause 5 of Schedule 4.
4. Clause 12 of Schedule 4 of the GIPA Act provides: 12 Government information held by agency (1) A reference in this Act to government information held by an agency is a reference to - (a) information contained in a record held by the agency, or (b) information contained in a record held by a private sector entity to which the agency has an immediate right of access, or (c) information contained in a record in the possession or custody of the State Records Authority (or that the Authority has in the custody or possession of some other person) to which the agency has an immediate right of access, other than a record that is withheld from public access under section 59 of the State Records Act 1998, or (d) information contained in a record that is in the possession, or under the control, of a person in his or her capacity as an officer or member of staff of the agency (including, in the case of a Minister, the personal staff of the Minister). (2) Information that would be regarded as government information held by an agency because the agency has access to a record that contains the information is not to be regarded as government information held by the agency if the public generally has access to the record (for example, because the record is available on the Internet). (3) Information contained in a record that genuinely forms part of the library material held by an agency is not government information held by the agency. (4) Information contained in a record held by the agency that is information that was unsolicited and is not relevant to the agency's business or functions is not government information held by the agency.
5. Section 5 of the GIPA Act provides that there is a presumption in favour of disclosure of government information. Section 9 of the GIPA Act provides that 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.
6. Section 12 of the GIPA Act provides that there is a general public interest in favour of the disclosure of government information that is not covered by overriding secrecy laws. The category of public interest considerations in favour of disclosure is not limited. Subsection 12(2) sets out several examples of public interest considerations in favour of disclosure.
7. Section 13 of the GIPA Act 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. The balancing exercise set out in section 13 "is a question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation": Battin v University of New England [2013] NSWADT 73 at paragraph [74].
8. Section 14(1) of the GIPA Act provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1 to the GIPA Act. The public interest considerations listed in the Table to section 14 of the GIPA Act are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. If it is conclusively presumed that there is an overriding public interest against disclosure because of the operation of Schedule 1 to the GIPA Act, no balancing process is undertaken to determine whether there is an overriding public interest against disclosure of the information.
9. Access is restricted only when there is an overriding public interest against disclosure: see Taylor v Destination NSW [2020] NSWCATAD 137 at paragraph [6].
10. The Respondent relies on several public interest considerations listed in the Table to section 14 of the GIPA Act. Insofar as it is relevant to the decision under review the table provides: 1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally)- … (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, 2 Law enforcement and security There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally- (a) reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant … 3 Individual rights, judicial processes and natural justice There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects- (a) reveal an individual's personal information (b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002,… …
11. The public interest considerations against disclosure need to be examined at a broad operational level and many of those considerations are concerned with systemic features of the operation of government: Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5.
12. The words 'could reasonably be expected to' require the Tribunal to determine whether the effect that is alleged to occur with disclosure of the information could reasonably be expected.
13. The term 'prejudice' has its ordinary meaning, that is, "to cause detriment or disadvantage" or "to impede or derogate from": see Hurst v Wagga Wagga City Council [2011] NSWADT 307 at paragraph [60].
14. Section 105 of the GIPA Act provides that the Respondent bears the onus of satisfying the Tribunal that its decision is justified.

Material before the Tribunal

1. The Respondent has provided a copy of the withheld information on a confidential basis. It relies on the affidavit evidence of its Manager, Procurement and Governance, Right to Information Officer, Mr Ralph Esther. Ms Tipene, the Respondent's solicitor provided submissions in support of the Respondent's case.
2. The Applicant appeared on her own behalf and provided submissions in support of her case.
3. In his affidavit of 6 August 2021 Mr Esther identified the information that remains for consideration in the following way: "In preparing this affidavit I have further reviewed the documents which have been withheld from the Applicant. The following documents have been identified as coming within the scope of the access application and released to the Applicant in part: (a) Email chain between Council and the Applicant dated 12 February 2018 at 12:17pm and 12 February 2018 at 11:34am (Partial Released Document 1); (b) Email chain between Council and the Applicant dated 19 February 2018 at 3:54pm to 19 February 2018 at 5:52am (Partial Released Document 2); (c) Email to CRN board dated 19 August 2018 at 12:37pm (Partial Released Document 3); (d) Email between Council and the Applicant dated 28 September 2018 at 1:26pm (Partial Released Document 4); and (e) Email between Council and the CRN board dated 26 October 2018 at 11:40am and 25 October 2018 at 11:16am (Partial Released Document 5), (together, the Partially Released Documents). The following documents have been identified as coming within the scope of the access application and refused in full on the basis that there is an overriding public interest against the disclosure of the documents: (a) Email dated 10 August 2018 at 12:36pm; (b) Email dated 2 November 2018 at 4:54pm; (c) Email dated 17 October 2018 at 6:57pm; (d) Email dated 8 August 2018 at 2:16pm; (e) Email dated 10 August 2018 at 4:06pm; and (f) Email dated 4 September 2018 at 11:45am; (the Withheld Documents)."

Public Interest Considerations in favour of disclosure

1. The Note to subsection 12(2) of the GIPA Act provides a number of examples of public interest considerations in favour of disclosure of information.
2. The Respondent accepts that the following public interest considerations weigh in favour of disclosing the withheld information to the Applicant: 1. 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; and 2. disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.
3. I accept that those considerations are relevant in this matter.

The public interest considerations against disclosure

Mr Ralph Esther

1. As noted, the Respondent relies on Mr Esther's evidence. He provided a useful outline of the context in which the information is held and the Respondent's position in relation to the information. Withheld and Partially Withheld documents The Withheld and Partially Withheld documents in dispute relate to the Community Resource Network. The authors of those documents contacted Council about a concern they had with how the Community Resource Network was running as staff had been let go and they had not been able to see the finances of the organisation. Council was approached to see if we could provide assistance or support to resolve the issue. Public interest considerations against disclosure The information contained in the Withheld and Partially Withheld Documents is confidential information provided to Council in the course of Council being asked to assist with an issue being experienced in relation to the Community Resource Network. … Council is sometimes asked to assist with disputes between local community groups and their members or other community groups. One of the Withheld Documents confirms the content of the email is "very confidential" and another one advises "[t]his is a confidential email - not for sharing". I consider the disclosure of the Withheld Documents will disclose information which was shared with Council on a confidential basis. Further, I consider the disclosure of the Withheld Documents will prejudice the extent to which Council is asked to assist in issues in future, which will impact on Council's ability to effectively intervene in complaints. I also think if Council were to release the confidential information is holds, this would impact on the services Council is able to provide the community as the relationship between Council and community groups would break down. We rely on these groups as Council is not able to fund all programs/services to the community. The impact of releasing the Withheld Documents would affect our working relationship and those groups may no longer come to us for support and participate in joint programs, which would impact the services being provided to our residents. A number of the individuals named in the Withheld Documents were consulted under the GIPA Act as part of making the original decision. They have objected to the release of their information. One of those individuals has identified themselves as a "whistleblower" and has a very strong objection to the release of their emails. I am concerned that if the emails from this individual are released their identity will be revealed and this could cause distress or concern to this person. The Partially Released Documents and the Withheld Documents contain a range of personal information. The personal information includes: (a) the names of authors and recipients of the documents; (b) the mobile telephone number of a number of persons; (c) the email addresses of a number of persons; (d) the sensitive information of an individual; and (e) the names of individuals who applied for a position and the outcome of the shortlisting process (in terms of which individuals where invited to interview and who we unsuccessful in the process). In respect to the Partially Released Documents, I note the Applicant is a recipient to these five (5) emails and, as such, the personal information contained in those Partially Released Documents has been "revealed" to the Applicant for the purposes of the GIPA Act. However, I consider the disclosure of the personal information would contravene an information privacy principle under the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act), being section 18 of the PPIP Act which limits Council's ability to disclose personal information it collects other than disclosure for the primary purpose for which the information was collected. The personal information contained in the Withheld Documents has not been released to the Applicant and has not otherwise been "revealed" for the purposes of the PPIP Act. Specifically, I note the following: (a) Some of the Partially Released Documents and Withheld Documents include Mr Tony Barden's mobile telephone number. Mr Barden is an officer of Council. Mr Barden's mobile telephone number was included in the Partially Released Documents and Withheld Documents for the limited purpose of enabling the recipient of the email to contact him in relation to the subject matter of the email. To release Mr Barden's mobile telephone number in response to an access application would be for a secondary purpose and contrary to the PPIP Act. (b) One of the Partially Released Documents contains a list of names of individuals who applied for a position and the outcome of the shortlisting process (in terms of which individuals where invited to interview and who we unsuccessful in the process). This personal information was collected for the primary purpose of assessing those individual's suitability for employment. To release that information in response to an access application would be for a secondary purpose and contrary to the PPIP Act. (c) The Withheld Documents include the names and email addresses of the senders and recipients of the Withheld Documents. This information is only available to the recipients and is not otherwise available. Given the context in which the Partially Released Documents and Withheld Documents were created, I do not consider it appropriate to release the personal information contained in the documents to the Applicant. I also understand, from my review of the file, that a number of the individuals whose personal information is contained in the Withheld Documents object to the disclosure of their personal information in response to the access application. One of the Withheld Documents contains information provided to Council by an individual providing information to Council about concerns that individual held in relation to CRN. Council considers that to disclosure of that information in response to the access application would reveal the identity of an informant to Council. That individual was consulted by Council under section 54 of the GIPA Act and has objected to the disclosure of their personal information. For the reasons set out … above, I consider the disclosure of information of this nature will prejudice the future supply of this information to Council and prejudice Council's effectiveness to assist in the resolution of community disputes in future. Information outside the scope of the access application A number of the Partially Released Documents and the Withheld Documents contain handwritten annotations of a Council officer. These handwritten annotations were made in the course of collating documents in response to the access application. They are not records held by Council at the time the access application was received. They are outside the scope of the access application.

The Respondent's position

1. As noted, the Respondent relies on the public interest considerations against disclosure in clauses 1(d), 2(a), 3(a) and 3(b) of the table to section 14 of the GIPA Act.
2. The Respondent submits that the public interest consideration against disclosure in clause 1(d) of the table applies to confidential information in some of the withheld documents. It notes that some of the documents are marked confidential, "very confidential" and "[t]his is a confidential email - not for sharing".
3. Ms Tipene noted that the Respondent's core function is to provide the community with the best living and working environment through commitment to service. She points to Mr Esther evidence that the Respondent relies on community sector organisations to support the Respondent in providing services to the community. She submits that there is a strong public interest in ensuring that the Respondent can continue to work closely with community sector organisations in order to be able to deliver on its core function.
4. The Respondent submits that the public interest consideration against disclosure in clause 2(a) of the table applies to some of the withheld information. Some of the information addresses concerns and complaints made by members of the CRN to the Respondent. Those concerns and complaints were made on a confidential basis, so that the Respondent could assist and provide support to those members with a view to resolving the issue.
5. The Respondent considers that if it does not respect to confidentiality of those concerns and discloses the information, members of the community would be less likely to raise concerns with the Respondent in future. The Respondent submits this is a strong public interest consideration against the disclosure of the Withheld Documents.
6. The Withheld Documents contain a range of personal information as noted by Mr Esther.
7. This information has not been "revealed" and the Respondent submits there is a strong public interest in the personal information about individuals who report concerns or complaints to the Respondent not being disclosed.

The Applicant's position

1. The Applicant has provided written submissions in support of her contention that the information in issue should be disclosed.
2. In relation to the public interest consideration against disclosure in clause 1(d) of the table, the Applicant submits that the release of the withheld information could not compromise an agency's function if that function is not part of the agency's remit in the first place.
3. She submits that the Council is not a dispute resolution practice, nor does it have any authority or accreditation to undertake such activities. Therefore, it cannot be argued that the release of the information would compromise a function that the agency does not have.
4. She submits that the Council used public funds and resources in acting outside of its functions and role and that the misuse of public resources in such a way is very much a matter in the public interest.
5. In relation to the Respondent's assertion that the withheld documents are marked as confidential, the Applicant submitted that confidentiality cannot be claimed to excuse inappropriate actions, behaviours or exchange of false or misleading information. She identified conduct by named individuals and submitted that the conduct was improper. She submits that if actions were improper, any related correspondence does not warrant confidentiality.
6. She contends that the consequences to CRN of the actions of the complainants are very serious in that CRN's funding has been jeopardised and reputations have been affected. She submits that in light of these consequences, any related information cannot be considered confidential as the actions around them are illicit and damaging.
7. In relation to the public interest consideration against disclosure in clause 2(a) of the table, the Applicant submits that there is little legitimate basis to further encourage the practice of supply of information where the supply of Information has been used to undermine or sabotage the operations of an organisation.
8. She contends that the non-disclosure appears as a means to cover up the misuse of information that has occurred and as such is weighted in favour of public interest to release such documents.
9. She submits that the Council has neither authority nor accreditation to be a complaints resolution practice unless the complaint is directly about its functions, activities, personnel or Council matters. She further submits that there is nothing to suggest any complaints resolution process was followed, but instead acted in a punitive manner to CRN. She contends that the public cannot be expected to have confidence unless there is accountability and in not releasing these documents it bodes a cover up of improper actions using public resources. The release of the information is a matter firmly weighted in the public interest.

Consideration

1. The relevant public interest considerations against disclosure in this matter are those in clauses 1(d), 2(a), 3(a) and 3(b) of the table to section 14 of the GIPA Act.
2. I understand that the Applicant does not press for access to the withheld personal information. It is therefore not necessary to consider the public interest consideration against the disclosure in clauses 3(a) and 3(b) of the table to section 14 of the GIPA Act.
3. However, completeness I note that, on the basis of the evidence given by Mr Esther, I agree with the Respondent that the public interest consideration against the disclosure of that personal information outweighs the considerations in favour of its release.

Clause 1(d)

1. It is a public interest consideration against disclosure where disclosure of information could reasonably be expected to prejudice the supply of confidential information necessary for the effective exercise of an agency's functions.
2. The relevant elements of clause 1(d) are that: 1. the information was obtained in confidence; 2. disclosure of the information could reasonably be expected to prejudice the supply of such information to the agency in the future; and 3. the information facilitates the effective exercise of the agency's functions.
3. With respect to the first limb of clause 1(d), the Appeal Panel outlined the general approach to determining whether or not information is confidential information in Camilleri at paragraph [33]. The Panel held: "In our view, the question of whether the information supplied is 'confidential information' must be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received. The agency's case is that all information received by the triple zero service at the point of receipt is treated as confidential. The agency's case is that members of the community expected the triple zero service to be a confidential service."
4. In the present matter, Mr Esther has explained the relationship between the Council and the various third parties who have provided the withheld information. That evidence is uncontested. The Council has also provided a copy of the withheld documents.
5. In my view, it is apparent from the circumstances and the nature of the information that it was provided to the Council on a confidential basis.
6. Mr Esther's uncontested evidence has also set out the basis for the Council's concern that disclosure of the information could reasonably be expected to prejudice the supply of such information to the agency in the future.
7. I note the Applicant's submission in regard to the Council's functions. I do not agree with her that the Council has no role to play in dealing with issues raised by the third parties. In my view, the complaints are directly related to matters that concern the Council's functions. I am satisfied that an ongoing relationship between the Council and the third parties is important to the Council's role in delivering services to the community. It is reasonable to expect that the Council relies on information and feedback from third parties in relation to the provision of those services. I am satisfied that the information facilitates the effective exercise of the agency's functions.
8. In my view, this public interest consideration against release of the withheld information should be given significant weight.
9. There are other avenues available to the Applicant if she has concerns in regard to improper use of public resources.

Clause 2(a)

1. Clause 2(a) provides: There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally) - (a) reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant,
2. Clause 2(a) provides for two alternatives: firstly that disclosure could reveal the identity of an informant; and secondly that disclosure could prejudice the future supply of information from an informant.
3. The term "informant" is not defined in the GIPA Act, and would seem to differ from someone who has merely provided information to an agency in confidence, as public interest considerations of this kind are considered under clauses 1(d) and 1(g). In NSW Office of Liquor, Gaming and Racing v Fahey [2012] NSWADTAP 55, the Appeal Panel held at paragraph [47] that an "informant" is not "restricted to 'police informers' or people who might be seen as themselves involved in the conduct of interest and are ready to 'inform' on their comrades"; rather it is "a person who gives information":.
4. The concept is not limited to a person who gives information in the context of the prevention and detection of crimes that engage the attention of Police forces.
5. In Selby v Commissioner of Police (NSW) [2013] NSWADT 61 Judicial Member Naida Isenberg stated at paragraphs [59] - [601]: 59. While "informant" is not defined in the GIPA Act, the respondent submitted that it should be taken to convey the meaning usually associated with the common law meaning of "informer" and that cl.2 (a) of the Table should be used to protect the identity of informers who may be subject to reprisals and ensure that they continue to supply evidence to the Police: Williams v Department of Industry and Investment [2012] NSWADT 192 (Williams)at [63]-[66] and [92]. 60. I was referred to my finding as to the purpose of cl.2(a) of the Table in Tziolas v New South Wales Department of Education and Communities [2012] NSWADT 69 at [42]: The function of Table 2(a) is to preserve and protect the identity of the informant and the information provided to an agency. The provider of information should be protected from any harm or detriment that would occur if certain information were disclosed, in circumstances where there is an express or implied obligation of confidence on the agency entrusted with the information.
6. In McDonald v Commissioner of Police, NSW Police [2019] NSWCATAD 66 Senior Member Hamilton SC adopted a similar view. He stated from paragraph [90]: 90. The function of cl. 2(a) of the Table "is to preserve and protect the identity of the informant and the information provided to an agency": (Tziolas v Department of Education and Communities (NSW) [2012] NSWADT 69 at [42]). 91. The term "informant" is not defined in the GIPA Act, and would seem to differ from someone who has merely provided information to an agency in confidence, as public interest considerations of this kind are considered under ell. 1(d) and 1(g). However, in NSW Office of Liquor, Gaming and Racing v Fahey [2012] NSWADTAP 55, the Appeal Panel held that an "informant" is not "restricted to 'police informers' or people who might be seen as themselves involved in the conduct of interest and are ready to 'inform' on their comrades"; rather it is "a person who gives information" (at [47]); see also Bourke v Roads and Maritime Services (NSW) [2012] NSWADT 272 at [40]). The concept is not limited to a person who gives information in the context of the prevention and detection of crimes that engage the attention of Police forces.
7. In the present matter I am satisfied that while the third parties who provided the information to the Council are not 'police informers' and they have not given information in the context of the prevention and detection of crimes, they are nevertheless persons who have given information.
8. I am satisfied that disclosure of the information could reasonably be expected to reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant.
9. As I have noted, I am satisfied that an ongoing relationship between the Council and the third parties is important to the Council's role in delivering services to the community. The disclosure of information of this kind could reasonably be expected to prejudice that relationship.
10. In my view, this public interest consideration should be given significant weight.

Balancing the public interest

1. I have indicated above the general public interest in disclosure of government information and the public interest considerations in favour of disclosure.
2. Section 13 of the GIPA Act provides for the balancing of the public interest considerations in favour of disclosure and those against. I have indicated that it is my view that the public interest considerations on which the Respondent relies should be given significant weight.
3. In my view, when balanced, the weight to be given to the public interest considerations against disclosure of the withheld information is greater than the public interest considerations in favour of disclosure.
4. In the circumstances, it is my view that the Respondent's decision is the correct and preferable decision. Therefore, it should be affirmed.

Order 1. 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 June 2022