Salmon v Department of Justice

NCAT Administrative and Equal Opportunity|2014-09-15

Applicable legislation 5The 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 to government information and providing that such access is restricted only when there is an overriding public interest against disclosure. 6The 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 an agency to which the legislation applies. 7The 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. 8With 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. 9There 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". 10In 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. 11The public interest considerations against disclosure are limited to those set out in the Table to s 14 of the Act. The respondent relies primarily on cll 3(a) and 3(f) in relation to Record 1, and cl 4(d) in respect of Record 2. 12In proceedings to review a decision made under the GIPA Act to refuse access to government information in response to an access application, the burden of establishing that the decision is justified lies on the agency, in this case the respondent: s 105. 13The tribunal's function on review under s 63 of the Administrative Decisions Review Act 1997 is to make the correct and preferable decision having regard to the material before it and any applicable "written or unwritten law" (meaning legislation or common law). In doing so it may exercise all the powers conferred on the original decision-maker: s 63(2). 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. 14The Act adopts a structured approach that requires decision-makers to: (i)identify relevant public interest considerations in favour of disclosure, (ii)identify relevant public interest considerations against disclosure, (iii)attribute weight to each consideration for and against disclosure, and (iv)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]). 15The public interest test must be applied in accordance with the principles set out in s 12 and s 15 of the GIPA Act.

Respondent's evidence 16Ms Margaret Fulford, manager of the information access and privacy unit with Corrective Services New South Wales (CSNSW) at the hearing adopted her affidavit dated 30 July 2014 (exhibit R1) in which she described her role as including responsibility for the management of information access and privacy legislation within CSNSW. Her role includes deciding internal review applications, providing advice and instruction to staff members who decide applications, and setting policies and procedures for the unit. 17 Ms Fulford described how Ms Mandy Beadle, an officer of the unit, sent requests to the State Parole Authority (SPA) and Corporate Records/CSNSW to obtain the records sought. 18The affidavit attaches correspondence and other documents generated at various stages of the proceedings, including a letter from the applicant to the unit dated 11 November 2013 (exhibit R1, attachment G) in support of his application, in which he accuses Mr Riviere of making false statements about him and declares that "These false claims are now the subject of probable criminal and civil actions. The evidence held by the parole board will likely be used in proceedings". Any police correspondence would also "be pertinent to any investigation and subsequent court action". The applicant argued that "To prevent information being provided to me in this application would only serve to encourage criminal action....". 19Also attached were a GIPA certification form and email from the State Parole Authority, expressing serious concerns about the release of the forwarded document (Record 1) to the applicant and requesting that it not be released to him. SPA offered to have the letter marked under s 194 of the Crimes (Administration of Sentences) Act 1999, but was not asked to do so. This document also incorporates copies of emails from other parties in relation to an incident at Chatswood police station in or about August 2011. 20Pursuant to the consultation process, Ms Fulford on 25 November 2013 wrote to Mr Riviere inviting him to consider whether all or part of his letter of 22 November 2011 and an SPA letter to him of 22 December 2011 could be released to the applicant (exhibit R1, attachment H). In his email response dated 13 December 2013, Mr Riviere objected to the release of this correspondence on a number of grounds, including a claim that the applicant had made some 12 complaints. He said that Document 1 was identical in all practical respects to a similar document forwarded to the police in or about 2011, which the applicant had already obtained. He believed releasing the information would expose him to a risk of harm, serious harassment and intimidation. He thought the applicant intended to use the information to commence unsubstantiated legal proceedings, which would prejudice his interests, without any possibility of financial redress, adding that costs awarded against the applicant in other jurisdictions had never been paid. 21In cross-examination Ms Fulford was asked whether SPA confidentiality would be maintained if a person's sentence was quashed and replied that it would, as nothing would change. She did not know the nature of the 12 complaints alleged by Mr Riviere, explaining that she did not need to as decision-makers may take the word of applicants or third parties in such matters. Mr Riviere's reply was not sworn, but solicitors are under certain obligations. She was not required to investigate his expectations of likely harm, but had no reason to doubt claims that had been set out in writing. Asked whether the position would change if a solicitor gave false information, she replied that it would not alter the position in relation to Record 1, but it would in relation to Record 2. She had no evidence on which to evaluate his assertion that he could expect no financial redress. Access to Record 1 had been rejected because it contained personal information and SPA's request for confidentiality had been strongly expressed. Their concerns had related to fears for the safety of a third party or parties. The fact that the applicant knew who had written to SPA was not decisive as there was more to personal information than names. 22Record 2 had been refused on the basis of Mr Riviere's professional interests. He believed that the applicant would be initiating vexatious litigation against him, and Ms Fulford had no reason to doubt what he said. Asked what she would do if she had evidence that a party had misled her, she replied that such a situation had never arisen, but if it did she would raise it with their solicitors. Once again, it would not change the decision in relation to Record 1, but could in relation to Record 2. 23In re-examination Ms Fulford explained that it was not her role to decide whether any criminal offences had been committed. The information that came to her was not in the form of affidavits, but was either in writing or by telephone. It would be normal to respond to a consultation request by letter. 24Ms Fulford made a confidential affidavit, also on 30 July 2014. It is basically similar to exhibit R1, but incorporates some additional detail and documentation. While it was not formally tendered, it was clearly intended that it form part of the evidence before the tribunal, and it is appropriate to treat it as such.

Applicant's evidence 25The applicant at the hearing adopted his affidavit dated 11 August 2014 (exhibit A1). As Ms Singer pointed out in her objection, it consists in large part of opinion, argument and allegation. Nevertheless it is possible to extract the factual material from it. 26The applicant stated that as he already has full details of Mr Riviere's contact and other information, releasing the documents would be unlikely to reveal any new information about him or about his client, with whom Mr Salmon has had dealings in court proceedings for the past three years. 27He declared that a letter dated 22 August 2012 from Mr Riviere to Mr McIntyre, the costs assessor (exhibit A1, annexure A), contains false statements, including that he (Mr Salmon) had made a false allegation against Mr Riviere's client, that he had failed to comply with the normal rules of society and that an AVO application had been brought by police on behalf of Mr Salmon. Referring to the statement that "the children revealing at interview that they had been pressured into making the allegations by Mr Salmon", he stated that "No such thing has been admitted by the children nor was a finding by police. Further having viewed this interview that is by no means a truthful statement". He denied having lodged formal complaints in the Local Court and stated that Mr Riviere would have no way of knowing if he had ever lodged a formal complaint in the Family Court. The letter had also stated that he had been subsequently charged with further offences, which was untrue. 28He denied making an unfounded complaint to the Legal Services Commission, and stated that the matter did not proceed because Mr Riviere claimed client privilege. He denied making death threats against his former spouse or ever harming, harassing or intimidating Mr Riviere and stated that he did not recall ever speaking to him, except in connection with court proceedings. He did not recall corresponding with him except through other avenues such as the costs assessor. He might have, although he could not recall exactly, written a letter putting Mr Riviere or his client, or both, on notice to cease defaming him. The claim by his ex-wife's current husband, Mr McDermott, that he had made death threats on the day of a hearing at the Downing Centre on 13 December 2011 (when he had said after the hearing to Mr and Mrs McDermott, "You two better have a good doctor") was not a death threat or remotely like one. 29Referring to the passage in exhibit R1 stating that Mr Riviere claimed that he had made 12 complaints, he assumed that meant 12 complaints against Mr Riviere, and that was false. He had raised at a complaint against Mr Riviere with the Legal Services Commission. He had not received the document similar to Record 1 from the police, although he was aware of its existence and had sighted it at the Family Court where it had been subpoenaed, but had been unable to obtain a copy of it. In any event he thought it irrelevant to the current application. It was untrue also that costs ordered against him in other jurisdictions had never been paid, at the time when that statement had been made. But Mr Riviere had chosen to withdraw a costs application of his own when the assessor or had challenged some of his claims. 30He further stated that he did not intend to lodge any unsubstantiated proceedings against Mr Riviere or his client. Any such proceedings that resulted from the provision of the false allegations made against him would probably be made by the police, but there could also be liability for defamation. He repeated that there were not 12 complaints by him that had any relationship to Mr Riviere.

Applicant's submissions 31The applicant on 12 August 2014 filed detailed written submissions. They are somewhat repetitive and disjointed, but the main points may be summarized as follows. 32Mr Salmon starts from the proposition that he relies on the Act's presumption in favour of disclosure, supplemented by the consideration that the information sought is personal information of the person to whom it is disclosed and that disclosing it could reasonably be expected to reveal or substantiate misconduct by an agency or a member of an agency. His main target is the allegations made by Mr Riviere and Mr McDermott, and although they are not members of an agency as such, failure to disclose the information could conceal their misconduct or unlawful conduct. 33His main propositions of fact are:

that Mr McDermott instructed Mr Riviere to write letters alleging death threats that had not been made,
that Mr Riviere made a fraudulent costs claim that he was forced to withdraw,
that no outstanding costs orders or assessments from court proceedings were unpaid by the applicant when Mr Riviere made a statement to that effect to Ms Fulford in late November 2013,
that he has never been provided with the letter that Mr Riviere says he wrote to the police and that he claimed to Ms Fulford that the applicant has,
that there are not 12 complaints against Mr Riviere or related to him,
that there is no evidence that the applicant intends to use the reports for any unsubstantiated legal proceedings,
that Mr Riviere would have every opportunity of financial redress if he had any grounds to complain about proceedings commenced by the applicant,
that if, as Mr Riviere claims, he was not involved in any misconduct, then he would face no risk in any proceedings brought by the applicant. 34The applicant states that he has repeatedly maintained that there is no personal information held in the documents in issue that he is unlikely to have. He has long since known the identity of those involved, and indeed all the parties know one another. He says he has been grievously defamed and that attempts to have him jailed by having his parole revoked are of a criminal character and the admission recorded by Gosford Local Court that no explicit death threats were made confirms it. To further deny access would encourage criminal activity. The respondent is effectively seeking to conceal a crime and if this were to go to the court of public opinion, as it will, the Department would be in serious trouble with public perception. The applicant's motives in this matter are genuine while those attacking him seemed to be attempting to retain custody of his children at any cost. 35 He has never engaged in deleterious action against Mr Riviere and is at a loss to understand the motives of Ms Singer in suggesting that he has. He adds, "Perhaps she can provide this deleterious action to NCAT before I seek redress against her personally". Mr Riviere seemed to have breached several rules of professional conduct, as all the matters he listed that are discussed in Ms Fulford's affidavit are false. While he may have provided information in confidence, it was done only for nefarious purposes. 36 There can be no public interest in further suppression as there is no public interest to actually jeopardize. He is a law-abiding citizen who simply will not tolerate crimes against himself, he argues. It is not for the respondent to protect lawyers who do not meet the standards they are required to meet. "Whether or not the applicant declares intentions to pursue criminal charges or litigious actions is not for this tribunal or for this agency to be concerned about". Releasing the documents could not possibly reveal anyone's personal information, given the evidence that is currently before NCAT. 37Disclosure of the information could not expose a person to risk of harm or serious harassment or serious intimidation, as he had sworn in his affidavit that there had been no harm, harassment or intimidation. He has no history of any of this in this matter or any other matter. The applicant has been in trouble with the law in relation to one event in his adult life and was punished for it. However, he denies his guilt in that matter and the incident leading to the convictions against the applicant is now under further investigation. Even if he were to harass or intimidate anyone, there is lawful recourse available. The transcript shows Mrs McDermott being told by Magistrate Day that she had been untruthful either to his court or to the District Court. In 17 months, four provisional AVOs and one final AVO against him were dismissed. To make serious false allegations against him, and to have those allegations sent to multiple police commands, and presumably to the parole board requesting that his parole be revoked, was nothing short of criminal. 38As regards cl 4(d), the law has ample protections in place if the applicant were ever to make false or unsubstantiated allegations that could prejudice any person's legitimate business, commercial, professional or financial interests. What is being overlooked is that there never was any legitimate business, commercial, professional or financial interest involved, as the transcript shows Mr Riviere's client fabricated these serious allegations. Further, it was Mr Riviere who apparently was called to account for false costs claims. Given the context and the allegations of criminal conspiracy, the State has an obligation not to suppress any of this. 39Specifically in relation to Record 1, cl 3(a) is no longer relevant as the details of the writers and the client are widely known and have been referred to in multiple documents held in these proceedings. Withholding the personal information of others is not in the public interest. Disclosure would not provide confidential information or details about either of the parties but details of a deliberate and mischievous attempt at defamation and a deliberate attempt by a solicitor and his client to have someone wrongfully charged and jailed for a breach of parole. 40In relation to Record 2, the applicant contends that there can be no justification for rejecting access in full as any correspondence in this matter could not further prejudice any legitimate business or professional interest. The statements that Mr Riviere provided to Ms Fulford and that she has paraphrased in her affidavit are all false. Thus there are not 12 complaints. Any complaints against Mr Riviere are with the Legal Services Commission and have no bearing on this proceeding. Once again, the applicant has not been provided with the document that Mr Riviere states is "identical in all respects" and paraphrased at para 19 of exhibit R1. 41The police professional standards unit staff have suggested that the applicant involve the Ombudsman. Police will review the matter only if the applicant provides the relevant documents in full. The current delay in providing the full documents is now preventing him from having a police investigation into this matter. The overriding public interest is now to make people accountable for their actions. "There is absolutely no reason to protect any of these documents any further and should they not be provided, this matter will end up in the Supreme Court, with ICAC and with my local member of Parliament, as it is protecting the wrong people". 42In his oral submissions the applicant stressed that the onus of establishing an overriding public interest in withholding information is on the respondent. This case concerned information about himself, not a third party. He was alleging wrongdoing by a solicitor, not by a government agency, but releasing the documents to him would reveal misconduct by another person. The Act was not designed to protect the wrong people. SPA takes the information it receives at face value, but in this case that information was false. He had not made 12 complaints against Mr Riviere, but only one letter to the Legal Services Commission, and that did not amount to deleterious action. Mr Riviere would have recourse against him if he were to make vexatious claims. It was untrue that costs orders against him had been unpaid, at the time Mr Riviere made that assertion. There was no evidence that he had ever made death threats and he had no history of harassment. Thus AEZ did not apply; if he had been going to engage in harassment, it would have happened by now. The case was years old, so there was no risk of harm. 43Unlike the situation in AMH v Western New South Wales Local Health District [2014] NSWCATAP 33, his purpose was not retaliation but to prevent crime, particularly sending him back to jail. Hurst v Wagga Wagga was relevant only if he was proposing to misuse the information, which he had no intention of doing. The respondent should not be protecting the conduct of people who continually make up allegations. The cases on protection of legitimate professional or business interests were irrelevant because in this case there were no legitimate interests to protect. His conduct was not vexatious, but New South Wales is the corrupt state - he himself had been in jail with a judge. But he refused to allow crimes to be committed. The respondent had blanked out the name of the addressee of the letter [Record 2], making it useless as it is.

Consideration 44The framework within which the tribunal is to decide questions of this nature, including the four-stage process identified in Nature Conservation Council is set out above. 45Most of the considerations invoked by both sides in the present case require a determination that disclosure "could reasonably be expected" to have the effect prescribed in one or more of the paragraphs in the various clauses. The quoted phrase is to be given its ordinary meaning and "require[s] a judgment to be made by the decision maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous": see 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 whether the expectation claimed is reasonably based: Australians for Sustainable Development Inc v Barangaroo Authority [2013] NSWADT 252, [57]. 46Ultimately, determining where the balance lies between the competing interests is "a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation": Hurst 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 is expressed in terms of outweighing, any concept of weighing in this context can only be a metaphor, one that 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. 47One of the s 15 principles to guide public interest determinations is s 15(b), which directs agencies to have regard to any relevant guidelines issued by the Information Commissioner. The Commissioner's Guideline 4 notes that under s 54 agencies are required to consult third parties whose personal information is the subject of an access application and whose concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information. The guideline states that the views of third parties about disclosure of their personal information to an access applicant will be relevant to determining the weight to be given to the consideration against disclosure in cl 3(a): para 3.8. 48Under s 55, the tribunal may take into account personal factors of the application in favour of providing access. Those factors are the applicant's identity and relationship with any other person, the applicant's motives for making the application and any other factors particular to the applicant. Those factors may also be taken into account against disclosure when the tribunal is considering whether disclosure could reasonably be expected to have any of the facts referred to in cll 2 to 5 of the Table to s 14. As all of the considerations relied on by the parties in this case fall within that range, personal factors may be relevant either for or against granting access.

Record 1 49In the case of this document, the general public interest in favour of disclosure of government information applies, as the document was received and dealt with by SPA in the course of its statutory duties. Further, the case for disclosure is strengthened by the example in s 12(2)(d), as it contains personal information of the applicant, specifically his name, which is mentioned seven times. Guideline 4 notes that when dealing with the request by a person for access to their own personal information, agencies need to consider any relevant considerations against disclosure. "However, those considerations would have to be very significant to override the general presumption of disclosure in the GIPA Act, and the specific consideration in favour of disclosure of giving people access to their own information": para 2.3. 50The applicant also claims that the example in s 12(2)(e) applies, in that disclosure 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". He bases that argument on the claim that the respondent and its officers, specifically Ms Fulford and Ms Singer, have probably been engaged in concealing a crime within the meaning of s 316 of the Crimes Act 1900, being the making of false accusations against him by Mr Riviere and his clients (exhibit A1, para 70) and have participated in a criminal conspiracy to that end (applicant's submissions filed 12 August 2014, para 118). He also repeatedly accuses the respondent and Ms Singer of defamation and threatens Ms Singer personally with legal action in relation to it (id., paras 34, 35, 94, 95). 51Without canvassing whether any third party has committed a criminal offence, an enterprise that this tribunal has no jurisdiction to undertake, I find that the evidence before the tribunal indicates that the respondent and its officers have performed their functions in good faith and in accordance with the legislation applicable. There is no evidence of any criminal intent or act, or any action by the respondent's officers that would take them outside the normal legal protections for public officers in the course of their duties. The applicant strongly disagrees with the position the respondent takes, but his allegations of official misconduct are unsupported. Consideration (e) is therefore inapplicable. 52As regards consideration (d), the applicant in his written submissions denies the allegations in Mr Riviere's consultation reply dated 13 December 2013 as paraphrased by Ms Fulford (exhibit R1, paras 18 - 23). His argument appears to be that because the letter consisted of false statements, he was entitled to access to Record 1 in order to vindicate his conduct. 53But his denials are qualified and partial. He states that he did not make 12 complaints against Mr Riviere, but only the one complaint to the Legal Services Commission. The affidavit, however, says only that there were 12 complaints by Mr Salmon, not 12 complaints against Mr Riviere. The applicant's premise, therefore, is merely an assumption. He also denies the statement that Document 1 was identical in all practical respects to a similar document forwarded to the police in or about 2011, which the applicant had already obtained. But it appears from his other material that this could possibly have been the letter that Mr Salmon sighted in the course of Family Court proceedings but of which he was unable to obtain a copy. Although he was not given a copy, he may in that sense have been provided with it, even if he can no longer recall its contents or was never actually aware of them. The applicant then rejected Mr Riviere's concerns that release of the information would expose him to a risk of harm, serious harassment and intimidation, saying there was no evidence that he intended to use the documents for any "unsubstantiated" legal proceedings. That leaves open his personal interpretation of "unsubstantiated". 54Next, the applicant denies the assertion that costs ordered against him in other jurisdictions have never been paid, saying that "no outstanding costs orders/assessments from court proceedings were unpaid by me when Mr Riviere stated this to Ms Fulford in late November 2013". But that leaves open the position at other times. As regards the reference to an incident at Chatswood police station in or about August 2011, which he states refers to "the children revealing at interview that they had been pressured into making the allegations by Mr Salmon" (exhibit A1, para 15), the applicant states that "No such thing has been admitted by the children nor was this a finding by police. Further having viewed this interview that is by no means a truthful statement" (ibid.). But if he had been applying pressure, the children would not have been the ones making admissions about it. Nor does he explain in what respect the claim was "by no means a truthful statement". 55Although the applicant's criticisms of those parts of Ms Fulford's affidavit appear to add little to the strength of his argument, the general presumption in favour of disclosure and the particular force of consideration (d) concerning information about an applicant together form a substantial case. It is now necessary, however, to identify and weigh the considerations against disclosure. 56The respondent relies on cl 3 of the Table to s 14, that disclosure of "could reasonably be expected to have" the effect of "(a) reveal[ing] an individual's personal information" and "(f) expos[ing] a person to a risk of harm or of serious harassment or serious intimidation". As regards cl 3(a), "personal information" is defined in cl 4 of schedule 4 as "information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion". Guideline 4 gives a number of examples, including a person's name and contact details, information about a person's family life and medical and health information (cl 1.2). 57Guideline 4 explains that cl 3(a) is "intended as a balance between the public interest in having access to government information, and the public interest in protecting and controlling the disclosure of personal information to people other than the person to whom the information relates" (cl 3(4). Also relevant is the fact that, unlike information and documents produced on subpoena and discovery, the disclosure of information pursuant to the GIPA Act is declared by s 73 to be unconditional and therefore cannot be controlled: Tziolas v New South Wales Department of Education and Communities [2012] NSWADT 69. 58Record 1 does contain personal information about the applicant, including an opinion about him, but it also discloses personal information about a number of other individuals who would be readily identifiable in the context of the information. As the applicant displays no awareness of its contents, it seems likely that Record 1 has never been publicly disclosed and is therefore considered to be confidential. The record has been the subject of an endorsement under s 194 of the Crimes (Administration of Sentences) (CAoS) Act 1999 by a judicial member of SPA on the ground that it would "endanger any person, or jeopardise the conduct of a lawful investigation or prejudice the public interest", the "public interest" in this case referring to issues of privacy and third-party references and materials. SPA has explicitly stated that it has real concerns about the release of the records to the applicant and the consultation process elicited a strong objection to disclosure to Mr Salmon. 59Given the form and contents of Record 1, it would be impracticable to determine what information could be separated from the rest of the document. Even if the Record were redacted, the personal information of others would be readily ascertainable in the circumstances. As personal factors under s 55 include an applicant's motives for making the access application, it is relevant to note his expressed intention to pursue criminal charges and litigious action. As cl 3(e) suggests, laying the foundation for private litigation, though it could in some circumstances be a consequence of disclosure, is not a primary goal of the GIPA Act. The tribunal's comments in APD v Commissioner of Police, New South Wales Police Force [2012] NSWADT 42, [43] are pertinent. In finding that the public interest considerations against disclosure outweighed those for disclosure, the tribunal noted that "having regard to the content of the disputed information, access to it will not contribute in any substantial way to enhancing Government accountability. Yet, disclosure of the information would reveal personal information about a private citizen....". The fact that the applicant intended to commence legal action did not alter the balance (ibid). 60On balance, in light of the open evidence and submissions, I find that the considerations against disclosure of Record 1 outweigh the considerations in favour of disclosure. It is now necessary to consider the confidential evidence and submissions. 61(Not for publication) 62(Not for publication) 63(Not for publication) 64(Not for publication) 65(Not for publication) 66(Not for publication) 67(Not for publication) 68(Not for publication) 69(Not for publication) 70I conclude that the cl 3(a) considerations, together with the s 55 factors, including the applicant's motives for bringing the application, have the result that the public interest considerations against disclosure outweigh the factors in favour of disclosure in relation to Record 1. That conclusion makes it unnecessary to consider the claims in relation to Record 1 based on cl 3(f) of the Table.

Record 2 71This record is a letter from SPA dated 22 December 2011 which outlines the stage reached in the authority's handling of correspondence received by it on 28 November 2011 regarding the applicant and indicating that neither the Probation and Parole service nor the police intended to take any action in relation to the correspondence. The implication is that unless further information were to come to light, SPA would not be taking action either. The letter is, however, included in SPA's order made under s 194 of the CAoS Act by Judicial Member Moore on 11 June 2014. The record has been released to the applicant, subject to the redacting of the addressee's name and address on the basis of cl 4(d) of the Table, which states that there is a public interest consideration against disclosure of information if disclosure could reasonably be expected to prejudice any person's legitimate business, commercial, professional or financial interests. 72Under the GIPA Act, the word "prejudice" has been held to have the same meaning as under the Freedom of Information Act, which is its ordinary meaning, that is, "to cause detriment or disadvantage", or "to impede or derogate from": Hurst at [60]. In Pemberton v Macquarie University [2014] NSWCATAD 76 the tribunal accepted that disclosing the information sought by the applicant could reasonably be expected to have the effect of prejudicing a person's legitimate professional interests, in that the information would be likely to prejudice their professional and personal reputations and also adversely affect their financial positions. 73The applicant has been engaged in a long-running series of legal actions and complaints to official bodies involving his ex-wife and Mr Riviere. He has made it clear in the course of the present proceedings that he intends to pursue further charges or complaints about alleged misconduct by Mr Riviere. Specifically, he complained in the course of his oral submissions that Record 2 was "useless" for his purposes unless it shows the name and address of the addressee. It is therefore probable that he intends to use it for the purposes of such charges or complaints. He has also foreshadowed other steps including possible criminal complaints against officers or representatives of the respondent. 74The applicant contends that neither Mr Riviere nor anyone else has anything to fear if they have acted properly and lawfully, as unsubstantiated complaints and actions could be expected to lead to costs orders against himself, so they would be protected against any financial harm. Mr Riviere replies that the path to success in litigation or similar proceedings can be a long and arduous one and that costs orders are at best only a partial indemnity, and in the applicant's case perhaps not even that if he is right about past costs orders not being satisfied. Given that the applicant gives his occupation as "unemployed business executive", that would appear to be a realistic prospect. 75Further, while Mr Riviere is no doubt an experienced litigator in his field, proceedings against him personally would take time away from his practice and could be damaging to his professional reputation. In recent times, moreover, the courts have clearly recognized the reality of the personal strain created by litigation, especially on individual parties: GSA Industries Pty Ltd v Northern Territory Gas Ltd [1990] NSWLR 710, 715 -6; Richards v Cornford (No 3) [2010] NSWCA 134. 76As against that, however, Mr Riviere's objections to disclosure all relate to Record 1. The respondent's submissions also focus on Record 1 and say little about what deleterious effects might flow from the disclosure of Record 2 specifically, especially as the text of the letter has already been released to the applicant. 77Again, the applicant's complaint to the Legal Services Commission has already been adjudicated in Mr Riviere's favour. Neither the evidence nor the submissions in this case disclose any reason why he could not raise the same defence again if the applicant were to make a new complaint, this time armed with Record 2. 78In addition, unlike Record 1, Record 2 is a communication from a government agency in the performance of its duties, and not a letter from a private third party. It contains no information about Mr Riviere other than his name and address, which are already known to the applicant, who also knows that the letter was actually addressed to Mr Riviere. 79The fact that a judicial member of SPA included Record 2 in his s 194 order is relevant, but it must be borne in mind that under the CAoS Act the authority is not required to balance the public interest in favour of disclosure of government information against other considerations. 80In light of all the evidence, open and confidential, and all the submissions, I therefore conclude that the public interest considerations against disclosure do not outweigh the general public interest in favour of disclosure of Record 2. 81The decision under review is thus affirmed in relation to Record 1 and set aside in relation to Record 2.

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: 01 October 2014

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