Smith v Pittwater Council

The Issues before the Tribunal

1. The Applicant raised several issues in relation to the lack of information regarding the question of whether or not the Council carried out a proper investigation of his complaint. To a large extent these issue concern the content of documents that have been produced. The way in which the investigation was conducted and the determination of the investigation cannot be addressed under the GIPA Act. The Tribunal has no jurisdiction to consider that aspect of the Applicant's case.
2. As Senior Member Lucy noted at paragraph [45] of her decision in Raven v The University of Sydney [2015] NSWCATAD 104 "proceedings under the GIPA Act, like those under the former Freedom of Information Act 1989 (NSW), should not be used "as a vehicle for the collateral review of the merits or validity of official action" (Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 at [24])".
3. As Professor Walker noted at paragraph [72] of his decision in Kreutzer v University of Sydney [2015] NSWCATAD 270 "Such criticisms may, however, be relevant on the question of improper purpose under s 125" but it cannot be part of these proceedings.
4. However, the Applicant has also raised the issue of the adequacy of the searches that were undertaken and whether or not other information should have been located. He has also challenged the Council's decision to withhold document 2.
5. In my view these issues require the Tribunal to determine: 1. whether the Respondent undertake reasonable searches for the requested information; and 2. whether the Respondent's decision to refuse to release document 2 is the correct and preferable decision.

Applicable legislation

1. Section 3(1) of the GIPA Act provides: 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. Section 3(2)(a) of the GIPA Act requires that the Act be interpreted and applied so as to further that object.
3. "Personal information" is defined in clause 4 to Schedule 4 of the GIPA Act as follows: "personal information" means 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. …
4. Section 12 of the GIPA Act provides that there is a general public interest in favour of the disclosure of government information. Section 12 allows for the consideration of any public interest in favour of disclosure. Nothing in the GIPA Act limits any other public interest consideration in favour of the disclosure that may be taken into account when making a decision in respect of an access application.
5. Section 13 of the GIPA Act provides that there is an overriding public interest against disclosure of government information 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.
6. Subsections 14(1) - (2) 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 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.
7. The Council relies on clauses 1 and 3 from the Table to section 14. Relevantly, these provide: 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, (e) 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, … (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, (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). 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 , … (f) expose a person to a risk of harm or of serious harassment or serious intimidation, ...
8. Section 55 of the GIPA Act provides: 55 Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the "personal factors of the application") into account as provided by this section: (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14.
9. Pursuant to section 97(1) of the GIPA Act generally the onus is on the agency to justify its decision. Section 97(1) provides: 97 Onus on agency to justify decisions (1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section. ...
10. Section 5 of the Privacy and Personal Information Protection Act 1998 ("the PPIP Act") provides: 5 Government Information (Public Access) Act 2009 not affected (1) Nothing in this Act affects the operation of the Government Information (Public Access) Act 2009. (2) In particular, this Act does not operate to lessen any obligations under the Government Information (Public Access) Act 2009 in respect of a public sector agency
11. Section 25 of the PPIP Act provides: 25 Exemptions where non-compliance is lawfully authorised or required A public sector agency is not required to comply with section 9, 10, 13, 14, 15, 17, 18 or 19 if: (a) the agency is lawfully authorised or required not to comply with the principle concerned, or non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998 ).

The material before the Tribunal

1. The Council relies on an affidavit provided by Ms Gabrielle Angles - The Council's Manager, Customer Service & Information and written submissions provided by Ms Gallery. Copies of the located information have been provided to the Tribunal. This includes a copy of the document that is in dispute, which was filed with the Tribunal on a confidential basis. I have also been given a copy of the Council's Complaint Handling Guidelines.
2. The Council's arguments are essentially those set out in the determination. In summary these are that the release of Document 2 could reasonably be expected to: i. prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's function - section 14 table clause 1(d); ii. 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 - section 14 table clause 1 (e); iii. found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence -section 14 table clause 1(g); iv. 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) - section 14 table clause 1(h); v. reveal an individual's personal information - section 14, table clause 3(a); vi. contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 - section 14(3)(b); vii. expose a person to a risk of harm or of serious harassment or serious intimidation - section 14 table clause 3(f).

Ms Angel's evidence

1. Ms Angel's evidence concerns the investigation process and addresses some of the concerns raised by the Applicant. She stated: "Page 7 of the Complaint Handling Guidelines state "As far as practical all complaints will be treated confidentially and in accordance with the Privacy and Personal Information Protection Act 1998". These guidelines thereby set up an expectation by all parties that as far as practicable complaints and the investigation of complaints is confidential and will be treated according to the principles of the Privacy and Personal Information Protection Act 1998. At no time did I bring to Mr Lawrence's attention that his statement may be released to the complainant. Rather the statement was received under the presumption of confidentiality as stated on page 7. This confidentiality is further evidenced in the security around the folders for complaints in Council's Electronic Records Management System. The vast majority of documents in this system are open to all Council staff to view but complaint folders have limited access for very specific staff members. This security around complaint folders is along the same lines as the security around Human Resources files. That is, they are not open to general access. As the architect of Council's Complaint Handling Guidelines I drafted these Guidelines with the intent of keeping documentation around complaints confidential where possible. My reasoning behind this intent is that I, and other members of Council's senior management team, want the culture of complaints to be embraced by Council and staff. Key to staff embracing what can be sensitive issues is to staff being willing participants in any investigation they are involved in and knowing their information will be kept confidential. This presumption of confidentiality provides staff with confidence in the process of complaint handling at Pittwater Council and helps to ensure investigators of complaints receive full and open accounts about complaints received. As such it is imperative, that Council as an organisation aiming to develop and preserve a culture of accepting complaints as a tool for improvement, treat these documents sensitively and in confidence. If I knew Mr Lawrence's statement was to be released I would have brought this to the attention of Mr Lawrence at the time of the meeting or at least at the time of receiving the statement from Mr Lawrence.
2. She further stated that made notes from her meeting with Mr Lawrence on 11 June 2015. Those notes have been provided to the Applicant. She did not take further notes or transcripts from the meeting that have not been produced. She wrote up her findings directly into Word documents over 15th and 16th June 2015. On those days she also attended to many other tasks and made no other notes relating to the complaint or the investigation process.
3. The Applicant relies on written submissions in which he disputed the Council's arguments in regard to the application of the various clauses of the table to section 14 to the decision to withhold Document 2.

Discussion

1. The Applicant has a legally enforceable right to access the information requested (section 9(1) of the GIPA Act), unless it is determined that there is an overriding public interest against disclosing the information. The general public interests in favour of disclosure which are set out in section 12(1) of the GIPA Act are weighed in the Applicant's favour.
2. In Commissioner of Police v Camilleri [2012] NSWADTAP 19, the Appeal Panel stated: 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.
3. I have set out above the section 14 Table considerations on which the Council relies. These must be weighed against the considerations in favour of release. I agree with the Council's view in regard to the considerations in favour of release. In addition to the factors set out in section 12, the Council found that release of the information could reasonably be expected to reveal the reason for a Council decision and any background or contextual information that informed that decision. I agree with that view and find this to be a strong consideration in favour of disclosure.
4. I also agree that personal factors of the application can be taken into account under section 55 of the GIPA Act. The Applicant indicated that he seeks the material requested to ascertain the thoroughness with which the investigation of his complaint was carried out.

Could reasonably be expected

1. The requirement, common to all the public interest considerations against disclosure in the Table to section 14, is that disclosure could reasonably be expected to have the nominated effect.
2. The phrase could reasonably be expected to has been the subject of judicial consideration with respect to its use in the Freedom of Information Act 1989 and the Freedom of Information Act 1982 (Cth). The words in the phrase are to be given their ordinary meaning. In Attorney General's Department v Cockcroft (1986) 10 FCR 180 at 190, Bowen CJ and Beaumont JJ interpreted the term in the following way: In our opinion, in the present context, the words "could reasonably be expected to prejudice the future supply of information" were intended to receive their ordinary meaning. That is to say, they 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 Commonwealth or any 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...
3. The word "expected" is not to be given too wide a meaning in light of the objectives of the statute: Cockcroft per Sheppard J at 112. The occurrence of the prejudice does not have to be established on the balance of probabilities but there must be something more than a possibility, risk or chance of the event occurring: Cockcroft per Bowen CJ and Beaumont J at 106.
4. Therefore with respect to each public interest consideration against disclosure upon which it relies, the Council is to show that disclosure of the information could reasonably be expected to have the nominated effect.
5. Schedule 4 to the GIPA Act provides these definitions: "disclose" information includes make information available and release or provide access to information. "reveal" information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure ).
6. The preliminary question therefore arises as to whether or not the information in the withheld document has already been disclosed to the Applicant. The nature of the document in issue is clear from the evidence filed by the Council. Ms Angles referred to it as "Mr Lawrence's statement". I have read the document and in my view, the vast majority of the information contained within it has already been disclosed. It does no more than relate the interaction that took place between Mr Lawrence and the Applicant. As the Applicant was present during that interaction, he would be aware of what transpired.
7. There are four exceptions to this. Those exceptions are: 1. firstly, the information contained in the five introductory paragraphs; 2. secondly, the information contained in the thirteenth paragraph i.e. the paragraph commencing with the words "This comment" and ending with the words "objected to."; 3. thirdly, the information contained in the sixteenth and seventeenth paragraphs .e. the paragraph commencing with the word "Both" and ending with the words " with staff."; and 4. fourthly, the information contained in the two concluding paragraphs.
8. It follows in my view that the factors relied on by the Council in relation to the information that has already been revealed cannot outweigh the factors in favour of release. Disclosure of information that has already been revealed could not reasonably be expected to have the nominated effect. It follows that the information that has already been revealed should be released.
9. It remains to be determined whether or not there is an overriding public interest against disclosure of any of the other withheld information.
10. In "B" and Brisbane North Regional Health Authority, Re [1994] QICmr 1; (1994) 1 QAR 279 at [154] - [160] the Commissioner analysed the meaning of the phrase "could reasonably be expected to" by reference to relevant Federal Court decisions. The Commissioner said that: The words call for the decision-maker ... to discriminate between unreasonable expectations and reasonable expectations, between what is merely possible (e.g. merely speculative/conjectural "expectations") and expectations which are reasonably based, i.e. expectations for the occurrence of which real and substantial grounds exist.
11. In my view this is the correct basis for determining whether the disclosure of a document "could reasonably be expected" to have a particular effect.

Section 14 table clause 1(d) - Prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's function

1. "Prejudice" under the GIPA Act has been held to have the same meaning as under the FOI Act, which is its ordinary meaning, that is, " to cause detriment or disadvantage " or "to impede or derogate from": Hurst v Wagga Wagga City Council [2011] NSWADT 307 at paragraph [60].
2. Under the GIPA Act, the determining question is whether, as a question of fact, the information is confidential. In determining the question of confidential information a number of principles apply: see Williams v Department Industry and Investment [2012] NSWADT 192: (i) The confidential quality of communications is a question of fact; (ii) To establish its confidential quality, information must have been supplied under an express or implied pledge of confidentiality; (iii) The confidential quality of the information may be inferred from the nature of the relationship between the informer and person informed; (iv) The confidential quality of the information must be determined in the light of all of the circumstances of the particular case.
3. The issue of the provision of information in confidence to an agency was examined in the case of McKinnon v Blacktown City Council [2012] NSWADT 44. In that case Judicial Member Molony considered the release of a confidential code of conduct report held by a local government entity. He stated: 42 … 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 .
4. 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.
5. 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: 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].
6. Ms Angel's evidence is that the Council's investigation process was treated confidentially. She also states that she did not bring to Mr Lawrence's attention that his statement may be released and that the statement was received under the presumption of confidentiality. However, the fact that an agency guarantees confidentiality of its process or the fact that an officer of the agency did not advise a staff member that a statement might be released can be no more than factors to be taken into account in the weighing process. They are not determinative of the issue of whether or not information should be disclosed.
7. It is necessary to form a view of whether release of the document would prejudice the supply of information in the future. In the circumstances of the present matter, Mr Lawrence provided the statement in response to the Applicant's complaint. In my view it is improbable that should he be the subject of a further complaint, he would not respond to the complaint if he considered that a response was warranted. It is also probable that any other officer of the agency who is the subject of a complaint from a third party outside of the agency would adopt the same approach. In my view, any prejudice to the supply of confidential information to the agency is minimal. In the circumstances I do not consider this to be a strong consideration against disclosure.

Section 14 table clause 1(e) - 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

1. As noted above, in order for clause 1(e) to be a relevant consideration against the release of the document the Council must establish that there would be prejudice to a deliberative process. The Council must therefore establish that there is "a deliberative process of government or an agency". In my view it has not done so. All deliberative processes in relation to the complaint have been completed. In the circumstances I do not consider this to be a consideration against disclosure.

Section 14 table clause 1(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

1. In my view, with the exception of the information contained in the thirteenth and twenty-first paragraphs of the withheld document, the withheld information cannot be regarded as satisfying the criteria identified in Williams v Department Industry and Investment that I have referred to above. In my view, it is not clear that the information was provided to the Council in confidence. I am not satisfied that the release of that information could found an action against for breach of confidence.
2. If I am wrong on this point, I do not consider this to be a strong consideration against disclosure.

Section 14 table clause 1(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)

1. There is no evidence before me of any audit, test, investigation or review that is either underway of proposed that could in any way be affected by the withheld information. In the circumstances I do not consider this to be a consideration against disclosure.

Section 14, table clause 3(a) - reveal an individual's personal information

Section 14 table clause (3)(b) - contravene an information protection principle under the Privacy and Personal Information Protection Act 1998

1. I am satisfied that the information contained in the thirteenth and twenty-first paragraphs of the withheld document is personal information for the purposes of the GIPA Act. With the exception of those paragraphs, I do not consider that the withheld information falls within the definition of ''personal information'' in Clause 4 of Schedule 4 to the GIPA Act.
2. If I am wrong on this point, I do not consider this to be a strong consideration against disclosure.
3. In regard to the information contained in the thirteenth and twenty-first paragraphs of the withheld document, I am satisfied that this is personal information. The paragraphs contain information or an opinion about an individual whose identity is apparent. I am also satisfied that release of the information would reveal that personal information. I note that section 25 of the PPIP Act addressed the question of breaches of the PPIP Act where personal information is disclosed. However, that must be seen in the light of Section 14 table clause (3)(b) of the GIPA Act.
4. I note that Mr Lawrence has objected to the release of this information. In the circumstances of this matter I consider this to be a strong consideration against disclosure. Relevant to this conclusion is my view that the release of this information would not assist the Applicant in ascertaining the thoroughness with which the investigation of his complaint was carried out.
5. On balance when this factor is weighed against the factors in favour of release of the information, it is my view that the information contained in the thirteenth and twenty-first paragraphs of the withheld document should not be released.

section 14 table clause 3(f) - expose a person to a risk of harm or of serious harassment or serious intimidation

1. In AEZ v Commissioner of Police NSW Police Force [ 2013] NSWADT 90 from paragraphs [82] to [94] Judicial Member Molony considered clause 3(f) and reviewed a number of relevant authorities as part of his consideration. He stated Disclosure of the information could reasonably be expected expose a persons to risk of harm or of serious harassment or serious intimidation (s 14 Table 3(f)) 82 The question here is whether if the information is disclosed, it could reasonably be expected that the disclosure would "expose a person to a risk of harm or of serious harassment or serious intimidation." 83 The GIPA Act does not contain a definition of harm, serious harassment or serious intimidation. It is to be noted that harm is not qualified by the adjective serious. The Macquarie Dictionary online defines harm thus - noun 1. injury; damage; hurt: to do someone bodily harm. 2. moral injury; evil; wrong. -verb (t) 3. to do harm to; injure; damage; hurt. -phrase 4. in harm's way, in danger. 5. out of harm's way, out of danger. [Middle English; Old English hearm] 84 Harm is a concept frequently used by the law. The criminal law prohibits assaults occasioning bodily harm. This has been interpreted in its ordinary meaning to" include any hurt or injury calculated to interfere with the health or comfort of [the injured person]": see R v Donovan [1934] 2KB 498. "Serious harm" is a concept used in criminal defamation, which requires proof of an intent to cause serious harms. Section 40 of the Civil Law (Wrongs) Act 2002 (ACT) on the other hand defines "harm" to be harm of any kind, including personal injury, damage to property and economic loss. Harm is also a concept in child protection: in section 9 of the Child Protection Act 1999 (Qld) it is defined as "as any detrimental effect of a significant nature on the child's physical, psychological or emotional wellbeing." 85 In the context of s 14 of the GIPA Act I am inclined to the view the meaning of harm should be confined to a real and substantial detrimental effect on a person, rather than on their business interests. This is so given the juxtaposition of the word "harm" with the concepts of serious harm and intimidation, and the fact that economic and business interests are the subject of public interest consideration against disclosure in part 4 of the section 14 Table. A detrimental effect may be to a person's physical, psychological or emotional wellbeing. 86 Serious harassment is a separate and distinct concept. The Macquarie Dictionary online defines harass - verb (t) 1. to trouble by repeated attacks, incursions, etc., as in war or hostilities; harry; raid. 2. to disturb persistently; torment. [French harasser, from Old French harer set a dog on] 87 The concept of harassment is one familiar to anti-discrimination law, with sexual harassment being prohibited and subject to remedies. A consideration of those laws reveals that a common element in most jurisdictions is that the person harassed would be offended, humiliated or intimidated by the conduct in the circumstances: see Sex Discrimination Act 1984 (Cth), s 28A(1); Anti-Discrimination Act 1977 (NSW), s 22A; and Equal Opportunity Act 1984 (SA), s 87(9). 88 In Henderson v McKenzie [2009] ACTSC 39 Higgins CJ was considering a charge of stalking with intent to harass contrary to s 35(1)(c) of the Crimes Act 1900 (ACT). His Honour said, at [6-8] - 6. Harassment is not defined in the Crimes Act, nor, indeed, in the Criminal Code 2002 (ACT) (Criminal Code). However, it does seem in context to bear its usual meaning, ie "to trouble by repeated attacks; harry; (1) to worry or unnerve (an enemy) by continuous small attacks; (2) to disturb, worry, torment, distress with annoying labour, care or misfortune" (World Book Dictionary); "Vex by repeated attacks; trouble, worry" (Concise Oxford Dictionary). 89 All of the definitions of harassment require a consideration of how the conduct complained of is experienced by the person alleged to be harassed, and are concerned with whether that person was offended, worried, tormented, distressed or harassed by the conduct. In the context of the GIPA Act where the decision maker has to be satisfied that, if the information is disclosed, it could reasonably be expected that the disclosure would expose a person to serious harassment, the assessment of the impact of the conduct on the individual concerned is an objective one, although particular circumstances and vulnerabilities relating to that individual may be taken into account when making that assessment. 90 The GIPA Act makes specific mention of serious intimidation as another element of the public interest consideration against disclosure in point 3(f) of the Table to s 14, despite the fact that the two concepts of intimidation and harassment are clearly related. 91 Intimidation is defined by The Macquarie Dictionary online as - verb (t) (intimidated, intimidating) 1. to make timid, or inspire with fear; overawe; cow. 2. to force into or deter from some action by inducing fear: to intimidate a voter. [Medieval Latin intimidātus, past participle, made afraid. See TIMID] 92 Intimidation is defined in s 7 of the Crimes, Domestic and Personal Violence Act 2007 (NSW) thus - (1) For the purposes of this Act, intimidation of a person means: (a) conduct amounting to harassment or molestation of the person, or (b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or (c) any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property. 93 In PE V MU [2010] NSWDC 2 William DCJ referred to that definition and said - 15...intimidatory conduct... is conduct amounting to harassment or molestation or contact by one person with another such as would cause the other person to fear for their safety. 16 Harassment is not defined in the Act but in its legal sense refers to ongoing behaviours that are found to be threatening or disturbing. ... 94 Importantly the intimidation or harassment referred to in point 4(f) is required to be serious intimidation or serious harassment, requiring that the decision maker be satisfied that release of the information could reasonably expose a person to intimidation or harassment that is heavy, weighty or grave, and not trifling or transient.
2. I adopt that summary here.
3. While I accept that the relationship between the Applicant and Mr Lawrence, (and possibly between the Applicant and other officers of the Council) are difficult, there is no basis on which I could conclude that disclosure of the withheld information could reasonably be expected expose a person to risk of harm or of serious harassment or serious intimidation. In my view, the fact that the Applicant is already aware of the majority of the withheld information suggests that if any such risk does exist, it is low.
4. In the circumstances, at its highest, I do not consider this to be more than a very low consideration against disclosure.
5. It is necessary that I balance the public interest considerations against disclosure of the remaining information (i.e. the information other than that contained in the thirteenth and twenty-first paragraphs of the withheld document) against the public interest considerations in favour of release. On balance when the factors identified by the Council are weighed against the factors in favour of release of the information, it is my view that the information contained the withheld document should be released.

Sufficiency of search

1. In Camilleri v Commissioner of Police NSW Police Force [2012] NSWADT 5 at paragraph [11] Isenberg JM applied the approach to sufficiency of search as had been applied under the Freedom of Information Act 1987 ("the FOI Act"). In doing so, she applied decision of Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201. In Hemeon at paragraph [18], O'Connor DCJ adopted the Information Commissioner of Queensland's approach to sufficiency of search issues as discussed in Shepherd and Department of Housing, Local Government and Planning [1994] QICmr 7; (1994) 1 QAR 464. In Shepherd the Information Commissioner said at paragraph [19]: [T]here are two questions which I must answer: (a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency …; and if so, (b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.
2. I agree with that approach. In relation to the first limb of the test, it is not enough for an applicant to merely assert non-compliance on the basis of a general distrust of the agency: Camilleri at paragraph [13] citing Cianfrano v Director General Department of Commerce and anor (No 2) [2006] NSWADT 195 where O'Connor DCJ stated at paragraph [69]: 69 An applicant, it seems to me, must put some credible material or submissions before the Tribunal which persuades the Tribunal that an arguable case of that kind exists. It cannot be enough that the applicant merely asserts a non-compliance of the kind to which s 24(2) is addressed. It is not enough for an applicant simply to base the assertion on a deep-seated distrust of the agency. Care must be exercised in putting the agency to the cost and effort of making further searches or putting on affidavit evidence.
3. In this regard, the Council submits that the documents that have been identified are responsive to the Applicant's access application and that there are no reasonable grounds for thinking that other documents would exist. I accept that submission.
4. I note the Applicant's concerns in regard to the initial searches that were undertaken and the time that the Council took to complete the process, however I do not regard that there was any lack of good faith on the part of those within the council who performed functions under the GIPA Act.
5. On the material that is before me I am satisfied that it is improbable that further searches would locate additional information that falls within the scope of the access application. In my view, the searches that were ultimately undertaken were reasonable.
6. Accordingly, I accept the Council's assertion that it does not hold other information that falls within the scope of the Applicant's request.

Conclusion

1. For the reasons outlined above, it is my view that the Council's decision to refuse to release the document referred to as Document 2 should be set aside.
2. In its place the decision should be made that the information should be released with the exception of that information contained in the thirteenth and twenty-first paragraphs of the withheld document.
3. The information should be made available to the Applicant after 28 days of the date of this decision.

Order

1. The decision under review is set aside
2. The decision is made that the withheld information is to be released to the Applicant except as provided for in these reasons. 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: 12 April 2016