Sharples v Tweed Shire Council

Applicable Legislation

1. The objects of the GIPA Act are as follows: 3 Object of Act (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. (2) It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
2. The case of Mannix v Department of Education and Communities [2014] NSWCATAD 35 provides a useful outline of the approach under the GIPA Act. At paragraph 5 Senior Member Walker provides the following outline of the provisions: 5. The objects of the GIPA Act as set out in s 3(1) are to advance the system and of responsible and representative democratic government by authorizing and encouraging public release of government information by agencies, giving the public an enforceable right to access to government information and providing that such access is restricted only when there is an overriding public interest against disclosure. 6. The term "government information" is given a wide meaning by s 4, being defined as "information contained in a record held by an agency". "Agency" is also defined in s 4 and includes "(a) a Government Department". It is not disputed that the Department of Education and Communities is such a department and is therefore an agency to which the legislation applies. 7. The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 5. Applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure: s 9. The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the "overriding secrecy laws" set out in schedule 1. In the case of those laws it is conclusively presumed that there is an overriding public interest against disclosure: ss11 and 14. 8. With respect to government information not covered by overriding secrecy laws, the Act establishes a principle that there is a public interest in favour of disclosure: s12(1). The category of public interest considerations in favour of disclosure is not limited: s 12(2). That subsection then sets out several examples of public interest considerations in favour of disclosure. 9. 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". 10.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.
3. Section 14 of the GIPA Act provides the following relevant provisions: 14 Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. (3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section. (4) The Information Commissioner must consult with the Privacy Commissioner before issuing any guideline about a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to this section).
4. In deciding to withhold some of the material from release the Respondent took into account and relied upon the following provisions in the Table to section 14, in determining that there was an overriding public interest against disclosure which overrides the general public interest in favour of disclosure.

Table 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): reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency, (f) prejudice the effective exercise by an agency of the agency's functions, (g) (h) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed). 4 Business interests of agencies and other persons There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects: (a) prejudice any person's legitimate business, commercial, professional or financial interests,

1. In doing so the Respondent applied significant weight to those provisions in determining that the stated outcome 'could reasonably be expected' to be achieved. In addition the Respondent determined that such a situation was significant enough to override the provisions of section 12 of the GIPA Act.
2. The Respondent also relied on a provision concerning a presumptive conclusion against disclosure as specified by Schedule 1 of the GIPA Act. That provision related to a claim for legal professional privilege as specified in Clause 5 of that Schedule.

The Respondents case

1. The Respondent filed two affidavits in the proceedings. The affidavit of Troy Green (General Manager) sworn 8 October 2014 was prepared for these proceedings. An affidavit of Kath Roach sworn 23 May 2014 was tendered in these proceedings, but prepared for other proceedings before the Tribunal which related to the Respondent and related developments (as referred to in paragraph 13 above).
2. The affidavit of Troy Green provides evidence as to the background and basis of the report commissioned by the Respondent in respect of the complaints by LEDA Developments. The affidavit sets out the history of the Applicant's GIPA Application and procedures applied, the background and provenance of the information sought by the Applicant, including how the Respondent came to commission the report (prepared by SINC Solutions) and be discussing the report at a closed session of Council.
3. The Respondent submits the following through Mr Greens affidavit:

• The disclosure of the disputed documents could reasonably prejudice the effective exercise by Council of its function of investigating Code of Conduct complaints.
• The disclosure of the disputed documents could reasonably prejudice the ability of Council employees who are the subject of the complaints to continue their work effectively for Council.
• If the final SINC Report were released to the public, it would result in the disclosure of information provided to Council in confidence and information that is subject to legal professional privilege.
• The disclosure of the disputed documents would contravene section 11 (3) of the Local Government Act which prohibits disclosure of material to the public when that material was treated as confidential under section 10(a) (2) of that Act.

1. There were also submissions provided concerning the Respondent Council's relationship with the third party (LEDA), and how the report was a response to matters that LEDA had raised with Council and that not all of the material had been provided to LEDA. The Respondent also submitted that they had not waived privilege.
2. The general submissions of the Respondent replicated the matters relied upon in their initial consideration of the GIPA request. The submissions addressed the observation that section 12 (2) (b) of the GIPA Act was not a relevant consideration in favour of disclosure by the Respondent because of the finding of the SINC Review, that in respect of the Code of Conduct complaints there were no corruption issues and no Code of Conduct breaches identified during the review.
3. The Respondent submitted the following in respect of the matters relied upon in the Table to section 14 of the GIPA Act.

• One of the functions of Council is to review its processes and decision making functions with the aid of independent consultants such as SINC. It is critical to an independent consultant's ability to carry out its duty and function to be able to receive and protect confidential information supplied to an agency ("the council") which is in turn passed onto the consultant. Any compromise or prejudice to the independent consultant's function affects, and prejudices, the effectiveness of the agency's functions.
• The Report contains confidential information.
• That the disclosure of the final report to third parties would both prejudice the Council's deliberative process and prejudice the effective exercise of the Council's function in having its processes independently reviewed.
• There was both a request for and a commitment to confidentiality in respect of the review and the report. This was maintained and not waived by Council.

1. It was also submitted that there was a claim of legal professional privilege attaching to some of the material in the report. If on assessment such material met those criteria, then it would be considered exempt from release in accordance with the provisions of schedule 1 of the GIPA Act.

The Applicants case

1. The Applicant provided two pieces of formal evidence in the proceedings. The affidavit of the Applicant sworn 19 March 2014 (as referred to in paragraph 6 above), addresses the issue of the delay in lodging the application for review by the Tribunal. The Affidavit of the Applicant (Terry Sharples) sworn 25 November 2014, was filed on 28 November 2014. That affidavit that addresses the substantive aspects of the application.
2. I have read the affidavit in the absence of any objection. I note that some of the affidavit provides evidence (or opinion) concerning the decision of Council to close part of the Council Meeting of 17 October 2013. I also note that aspects of the affidavit provide evidence (or opinion) in respect of the circumstances and basis for the sacking of the former General Manager of Council.
3. The Applicant did provide written submissions to the Tribunal. These submissions are brief in nature and have been considered by me in making my decision. I note the submission from the Applicant that the onus is on the Respondent to establish that its decision is justified.

Consideration

1. Whilst I have received the Applicant's affidavits, it is clear from the content of those affidavits that the Applicant's evidence goes somewhat beyond the scope of his application before the Tribunal. This application relates to the decision of the Respondent agency to withhold some of the material sought by the applicant under the GIPA Act. Specifically the Tribunal's role is to affirm or set aside / vary the decision of the administrator agency. The Tribunal's function on review under section 63 of the Administrative Decisions Review Act 1997 is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. (See paragraph 8 above).
2. Whilst the basis of the Councils decision to close the meeting may be linked in some way to their withholding of certain material in response to the Applicant's GIPA Act application, the function of the Tribunal is to consider the Respondent's Notice of Decision in light of the relevant legislation and all of the material before the Tribunal. Matters relating to the decision to close the meeting, and the termination of the former General Manger are outside of the scope of this application for review.
3. The Respondent's submissions and evidence refer to the relevant provisions of the Local Government Act 1993 and it's applicability to both the decision to release / withhold information under the GIPA Act, and the decision to conduct a closed session of Council. I reiterate that this review is only concerned with the consideration of the provisions of the GIPA Act by the Respondent in respect of its consideration of the application before it.
4. However, whilst the Respondent broadly submits that sections 10A, 11 and 440AA (4) of the Local Government Act 1993 add weight to the relevant consideration under the Table to section 14 of the GIPA Act, those sections must be considered in the context of section 11 of the GIPA Act. The GIPA Act, overrides secrecy provisions in other legislation such as the Local Government Act 1993.
5. On the material before the Tribunal, the Respondents argument can be summarised as follows: Significant weight should be attached to the provisions of Table 1 (1) (e), (f) (g) and (h), and (4) (d) such that the considerations on the available evidence outweigh the general public interest considerations in favour of disclosure. I note that Item (1) (g) was not referred to in the decision, but has been canvassed regularly throughout the Respondents evidence and submissions. There were also other provisions cited in the submissions as the basis for withholding information, which were not manifest in the initial Notice of Decision. Section 14 Table (1) (g) 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,
6. The issue of a breach of confidence and the provision of information in confidence to an agency, were examined in the case of McKinnon v Blacktown City Council [2012] NSWADT 44. In that case Judicial Member Molony (as he was) sitting in the ADT examined the release of a confidential code of conduct report held by a local government entity. However the decision canvassed the public interest considerations against disclosure relevant to these proceedings being items from the Table to section 14 at 1 (g) and 4 (d). At paragraph 40 in relation to 14 1 (g) the Tribunal stated: 40 There is a requirement, common to all the public interest considerations against disclosure in the Table to s 14, that disclosure "could reasonably be expected to" have the nominated effect. The words "could reasonably be expected to" have been the subject of considerable judicial consideration with respect to their use in the Freedom of Information Act 1989 and the Freedom of Information Act 1982 (Cth). They are to be given their ordinary meaning: Attorney-General's Department v Cock croft (1986) 10 FCR 180. In that case, Bowen CJ and Beaumont J explained, at 190, that the words - ... require 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, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like. 41 Hayne J pointed out in McKinnon v Secretary, Department of Treasury [2006] HCA 45 that , at [61] - ... when their Honours said, as they did, that the words required 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," to expect certain consequences, they are not to be understood as having used the latter expression as a paraphrase of the former. Rather, they are to be understood, and have since been understood, as doing no more than drawing an emphatic comparison. To do more would have been, as their Honours correctly said, "to place an unwarranted gloss upon the relatively plain words of the Act." ... See also XZ v Commissioner of Police, NSW Police Force [2009] NSWADTAP 2. 42 In Flack v Commissioner of Police, NSW Police Force (2011) NSWADT 286 at [41] and [42] the Deputy President Higgins explained - The word 'reasonable' in the context in which it appears in clause 1 and 3 of the Table is that set out by the Tribunal in Leech v Sydney Water Corporation [2010] NSWADT 298 at [25]. That decision concerned the construction of the words 'could be reasonably expected to' in clause 7(1)(c), of the Schedule 1 of the repealed FOI Act. These words were also contained in clauses 4, 4A, 5, 13(b), 14, 15, and 16 of Schedule 1 of the repealed Act. At [25] the Tribunal gave the following explanation on the accepted construction of these words: '25 The term 'could reasonably be expected' has been considered in a number of cases. The words have their ordinary meaning: Searle Australia Pty Ltd v PIAC [1992] FCA 241; (1992) 108 ALR 163. The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority . Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC.' That is, the public interest consideration against disclosure in clause 1 and 3 of the Table requires an objective assessment as to whether the claimed effects could be expected to arise. Ultimately, it is a question of fact as to whether the disclosure of the information in issue could reasonably be expected to have the prescribed effect if disclosed. That fact being established to the relevant standard of proof, on the balance of probabilities. 43 In submissions the Agency argued that the suggestion that a fact had to be established on the balance of probabilities was at odds with established authority in dealing with the same phrase in the context of the Freedom of Information Act 1989 . The Agency referred to the Tribunal decisions in Leech and in Neary v State Rail Authority [1999] NSWADT 107, where the President said, at [35] - .. it is not necessary that the level of risk be such that it be assessed as more probable than not. Nor is it necessary for the administrator to apply a balance of probabilities calculus similar to that used to set the burden of proof in litigation. 44 In my view the weight of authority establishes that it is necessary for the Agency to demonstrate, with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect as explained in Cockroft and elucidated in McKinnon v Secretary, Department of Treasury .
7. At paragraph 54 Judicial Member Molony considered the issues relating to whether information is explicitly received in confidence. 54 The Agency also relied on the decisions in Department of Education & Training v Mullet [2002] NSWADTAP 13, Alexander v University of Sydney [2008] NSWADT 214 and TW v TX [2005] NSWADT 262 to advance a proposition that "the confidentiality of information communicated by officers of agencies in the course of an internal investigation can be inferred from all of the circumstances." 55 While I accept that, in an appropriate case, confidentiality with respect on information communicated in the course of an investigation can be inferred, the factual background must justify the making of such an inference. Here it does not. While the report is labelled confidential and had been treated as confidential, the evidence indicates that this has occurred as a matter of convention, rather than on the basis of a statutory requirement, or in accordance with a policy of the Agency. Indeed a reading of the policy makes it clear it does not establish a regime of confidentiality, with the exception of circumstances to which the Protected Disclosures Act 1994 applies. That is not the case here. 56 In the open affidavit Mr Mills expressed the opinion that disclosure of the report would impede the ability of the Agency to obtain and rely on such information in the future. He explained that he considered it "reasonable to assume that other council officers will be reluctant to report misconduct or inappropriate behaviour in future, for fear of reprisal." In my view the cross-examination of Mr Mills demonstrated that he had no reasonable basis for holding this opinion, and that the assumption was not reasonably held. He had no experience of anyone withholding information that they were duty bound to disclose, whether for fear of reprisal or otherwise. 57 Additionally, Mr Mills gave evidence that all the investigations he had been associated with had been treated as and kept confidential. As a result he has no experience of investigations where confidentiality has not been maintained. A consequence is that, in the formation of his opinion, he did so from the basis of having no experience he could contrast with the confidential treatment he was used to. 58 His concern that staff will be reluctant to provide information in the future, therefore, is not based on experience or informed by fears voiced by him or other council staff. It is not based on a rational, underlying factual basis. Indeed his evidence in cross-examination points to conclusion that he has no reasonable or rational basis for the opinion he expressed. The assumption he relies on takes a very dim poor of the integrity of council staff, which is entirely at odds with his own experience. I do not accept his opinion.
8. At paragraph 88 the Judicial Member examined the issue of whether disclosure of the information could reasonably be expected to prejudice any person's legitimate business, commercial, professional or financial interests. However, the facts were substantially different in these proceedings, in that the financial amounts were not information which was sought by the applicant.
9. I note from the Respondent's Affidavit of Kath Roach and their submissions, that there was an intention that the material remain confidential. However I note that the report (in reduced form) has been released to a third party (LEDA), and at paragraph 15 of the Respondent's submissions, they submit that: Witnesses supplied information in confidence under this regime of confidentiality and that information is disclosed in the Final SINC Report (ie in the sections of the Final SINC Report that have already been released to LEDA in the Confidential LEDA Extract).
10. The case of Media Research Group Pty Ltd v Department of Premier and Cabinet (GD) [2011] NSWADTAP 7 examines similar provisions as they applied under the former Freedom of Information Act 1989.
11. Clause 7 (1) (c ) of Schedule 1 of the Freedom of Information Act 1989 (repealed) provided that: 7 Documents affecting business affairs (1) A document is an exempt document: (c) if it contains matter the disclosure of which: (i) would disclose information (other than trade secrets, commercial-in-confidence provisions or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any agency or any other person, and (ii) could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency.
12. The Appeal Panel was considering a different aspect of a business or commercial ground for withholding government information from release. However at paragraph 59 the Appeal panel makes some general observations about the public interest basis for releasing such information in relation to the operation Clause 7(1)(c) 59. Further, as noted in the discussion in relation to cl 7(1)(b), there is an increasing demand for transparency on the part of government in relation to its spending decisions and the contracts it enters into. Section 15A speaks to that pressure. This is also a relevant consideration in considering whether, viewed objectively, an applicant has demonstrated an unreasonable adverse effect flowing from disclosure of the information.
13. The relationship between the relevant sections of the GIPA Act that address the public interest considerations was examined in the ADT Appeal Panel case of Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 24 Putting to one side the cases where a conclusive presumption is relied upon, the Act envisages a two-step approach to the question of whether information has been properly refused. 25. The new Act has a more structured approach to the decision-making task than was seen under the previous legislation. The agency case for refusal must rely on one or more of the section 14 Table considerations. The Tribunal's task is then to weigh that case against the factors favouring disclosure (s 13), mindful of the injunctions that appear in both ss 12 and 15. It is important, in our view, that the Tribunal proceed in the structured way reflected by these provisions. The Table considerations are concerned with systemic features of the operation of government. 26. We agree with the agency's submission that the section 14 questions needed to be examined at a broader operational level than occurred in this case. The record in issue was generated in one of the standard services of the police force. It would not be usual, as we see it, 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 enquiry, the section 13 stage, it would be proper to have regard to specific aspects of the instant case. 27. The approach to be adopted is similar to that commended by the Appeal Panel under the previous legislation, there in connection with cl 13(b)(ii). Clause 13(b)(ii) provided that 'a document is an exempt document if it contains matter the disclosure of which could reasonably be expected to prejudice the future supply of such information to the Government or to an agency'. Clause (b)(iii) went on to provide 'and would, on balance, be contrary to the public interest'. 28. In Director General, Department of Education & Training v Mullett & anor (GD) [2002] NSWADTAP 13 (Mullett), the Appeal Panel said: 58 In our view cl 13(b)(ii) requires the Tribunal to engage in a relatively abstract analysis. It must ask whether material of the kind sought to be protected on the present occasion would, if released, prejudice the supply of similar material to government in the future, as a matter of reasonable expectation. That requires the Tribunal to characterise the nature of the material sought to be protected on the present occasion; to identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; the extent to which guarantees of confidentiality may be necessary. We agree with the dicta of Young CJ in Ryder v Booth [1985] VR 870 as to how a similar question arising under the Victorian FOI Act's in-confidence exemption (whether disclosure would be reasonably likely to impair the ability of an agency to obtain information communicated in confidence) should be approached. His Honour said at 872: `The question then is, would disclosure of the information sought impair (i.e. damage) the ability of the [agency] to obtain similar information in future. ... It may be noted that it is the ability of the [agency] that must be impaired. The paragraph is not concerned with the question whether the particular doctor whose report is disclosed will give similar information in future but with whether the agency will be able to obtain such information. ...' 29. This approach was endorsed in many subsequent Tribunal and Appeal Panel decisions. The same approach is required, as we see it, in relation to many of the s 14 Table considerations. They squarely focus on considerations relating to the conduct of the business of government. Under the first five clauses of the section 14 Table there are a total of 35 possible 'effects' listed (clause 1, nine; clause 2, nine; clause 3, seven; clause 4, five; clause 5, five). Each of the five clauses is introduced by the words: 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:. 30. The Tribunal is called on to examine whether the effect is established and then to ask whether the disclosure 'could reasonably be expected' to have the specified effect. 31. In this case the Tribunal was required to form an opinion on whether disclosure of the information could reasonably be expected to have the effect of prejudicing the supply to an agency of confidential information that facilitates the effective exercise of the agency's functions (cl 1(d)); or, if not seen as 'confidential information', would nonetheless prejudice the effective exercise by an agency of the agency's functions (cl 1(f)). As to the different spheres of operation of cl 9(d) and cl 1(f) and their connection to the provisions of the previous legislation, see generally, Robinson, New South Wales Administrative Law (NSWAL service) [50.6890] and [50.6930]. 32. The agency asserted that it ran the triple zero service as a confidential service. As we see it, the Tribunal approached the question - whether the information was confidential information for the purpose of cl 1(d) - primarily by drawing distinctions between various classes of communicator, and having regard to the particulars of the instant case. The danger of this approach is the subject of the observations of Young CJ in the early Victorian case, Ryder v Booth, referred to in Mullett.
14. Adopting the approach from 'Camilleri' it is clear that if some of the material in the Code of Conduct complaint investigation was released, it could possibly prejudice the supply of similar information in the future. Local and State Government employees provide information to investigations, proceedings and inquiries predominantly in the same manner as members of the public. Unlike sworn officers who are subject to direction in relevant subordinate legislation, local government officers, public servants and members of the public predominantly provide information on a discretionary basis. Investigators and finders of fact are often reliant on the ability and willingness of individuals to provide cogent and valuable information and evidence in respect of an untested allegation.
15. Based on my reading of the report and the submissions and evidence of the Respondent, and following the line of reasoning in Camilleri, it is open to conclude that significant weight should attach to the considerations in (1) (d) of the Table to section 14 of the GIPA Act.
16. I note that the (1) (d) ground is first pressed by the Respondent at paragraphs 9, 10 and 11 of their written submissions. Along with a number of other grounds which have been added by the Respondent under Items (1) and (4) to the Table to section 14, some of these grounds were not relevant considerations of the Respondent as provided for in its Notice of Decision dated 5 December 2013.
17. This application concerns a significant issue between Council and a major business entity that had real and potential ramifications both for Council (as an entity) and the wider community both directly and indirectly. There was significant public interest and activity about how land was being developed in the region and the probity and equity of all parties dealing in such matters. Council invested significant ratepayer resources in commissioning a detailed and in my view robust investigation to attempt to define, examine and adjudicate on the problems, as well as mitigate and provision for remedies to prevent a reoccurrence of such problems. Such a situation seems to fit squarely within the terms of section 3 (1) of the GIPA Act.
18. The material contains a large volume of information which redrafts and clarifies the third party's (LEDA) significant complaints of Council, and provides detailed commentary on the steps taken and evidence and information gathered during the detailed investigation. In my view to provide this information in its current form would reasonably be expected to be prejudicial to both the future supply of information, but also provide grounds for a breach of confidence or cause the disclosure of information obtained in confidence.
19. In my view it was open to the Agency to release the findings and recommendations sections of the Report predominantly in the form which had been provided to LEDA. I note that the Findings and Recommendations (as released to LEDA) contained minor redactions. Such redactions in respect of material captured by Schedule 1 of the GIPA Act in relation to legal professional privilege are in my view, appropriate. In addition some further minor redactions should apply to the 'Findings' document.
20. Broadly, significant concerns were raised with Council by the Third Party, which caused significant inquiries and investigations to ultimately occur. Whilst it was open to Council to consider whether the report should be discussed in open or closed session, in respect of the release of the data contained within the report, the amount of weight which the Respondent applied to many of the provisions in section 14, was in my view, disproportionate to the objects of the GIPA Act, and in particular the provisions of section 12 (2) (a) (b) and (c). The matters under section 12 are not exhaustive and agencies are required to interpret and apply the Act so as to further the objects of the Act. It is in this broad context, that the need for significant openness and transparency of Council is of significant weight in applying any discretion under the Act.
21. The case of McKinnon also provides guidance on to the extent that personal information should be withheld from any public release of a Code of conduct report. At paragraph 101: 101 Given that the report is concerned with maladministration and misconduct by an employee of the Agency and has been the subject of considerable public discussion and media attention, I think that the public interest considerations in favour of disclosure deserve significant weight. Release of the report would inform the public about what has actually occurred, and at what public cost. It could be reasonably expected to focus attention on accountability mechanisms with the Agency, improve the transparency of tis operations, and expose evidence of maladministration and misconduct within the Agency. 102 On balance, the public interests considerations in favour of disclosure outweigh the public interest against disclosure of personal information concerning the conduct of the employee and contractor and concerning the private relationship between them, which provides context to the former. 103 I am not persuaded, however, that the public interests considerations in favour of disclosure outweigh the public interest against disclosure of personal information relating to other individual private affairs of the employee and contractor, and their families. That personal information was provided incidentally and does not add to, and is not relevant to, the substance of the report. 104 I consider that this latter material can be readily deleted form the report under s 74 of the GIPA Act.
22. On the evidence and material before me, I adopt the approach as set out in McKinnon. For that reason, and the fact that the information cannot be readily redacted from the substantial body of the report, in addition to the matters that I have set out at paragraphs 43 to 50 (above) and adopting the approach In McKinnon and Camilleri, the material set out below in this paragraph should be withheld. I find that on balance there is an overriding public interest against the release of the following information, sufficient to outweigh the overriding public interest in favour of disclosure.

• The SINC Solutions Final Report (Less the Executive Summary, Findings and Recommendations) dated 9 October 2013.
• Attachment 'B' to that report listing the complaints raised by LEDA Developments (Item 2b of the Schedule of Information) dated 9 October 2013.
• The Findings and Recommendations summary of the Final Report dated 9 October 2013 less any legal professional privilege material.

1. However, in my view the overriding public interest in favour of disclosure is not outweighed by any of the matters in the Table to section 14 of the GIPA Act, in respect of the following material. This material should be released in both the context and the form set out below: Release the Confidential Extract of the final report as provided (in redacted form) to LEDA but with the following additional deletions / redactions:

• Delete the content of Finding 51.
• Delete the personal information (Names) contained in Finding 55.
• Delete the personal information (Names) contained in Finding 59.
• Delete the personal information (Names) contained in Finding 68.
• Delete the words in between the Brackets '( )' from Finding 69.
• Delete the personal information (Names) contained in Finding 95.
• Delete the personal information (Names) contained in Finding 96.
• Delete Attachment A.
• Delete Attachment B.

Orders

1. I consider that the correct and preferable decision in this matter is to - 1. Under section 101 (4) of the GIPA Act extend time to file the application until 5:00pm 23 April 2014 2. Set aside the decision of the Respondent Agency and instead determine that within 30 days of the publication of these reasons the Respondent Agency release to the Applicant a copy of the report in the form referred to, and subject to deletions as indicated in these reasons at paragraph 52 above. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 March 2015