Sneesby v Shoalhaven City Council

The information Commissioner

1. The Information Commissioner has a right to appear and be heard in the proceedings pursuant to s 104(1) of the GIPA Act. The Information Commissioner provided written submissions and attended the hearing by telephone.

The grounds of review

1. The public interest grounds against disclosure relied upon by the respondent were: 1. Clause 3(a) and (b) of the table to s 14 - disclosure of the information could reasonably be expected to reveal an individual's personal information, or contravene an information protection principle under the PPIP Act. 2. Clause 3(c) and 3(d) of the table to s 14- disclosure could reasonably be expected to prejudice any court proceedings by revealing matter prepared for the purposes of or in relation to current or future proceedings, or prejudice a person's right to procedural fairness,. 3. Legal professional privilege - clause 5 of Schedule 1 - disclosure would disclose information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege).
2. The applicant did not press his original claim that the search conducted by the respondent had been inadequate.

Relevant legislation

1. The GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5). Section 105(1) provides that the burden of establishing that its decision is justified lies on the respondent.
2. Sections 12 and 13 provide: "12 Public interest considerations in favour of disclosure (1) There is a general public interest in favour of the disclosure of government information. (2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Note. The following are examples of public interest considerations in favour of disclosure of information: (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. (3) The Information Commissioner can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies. 13 Public interest test There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure."
3. Section 14 provides: "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). … 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, (c) prejudice any court proceedings by revealing matter prepared for the purposes of or in relation to current or future proceedings, (d) prejudice the fair trial of any person, the impartial adjudication of any case or a person's right to procedural fairness, …"
4. Section 15 provides: "15 Principles that apply to public interest determination A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles: (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
5. Clause 5 of Schedule 1 provides: "5 Legal professional privilege (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege. (2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause. (3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5."
6. Clause 4 of Schedule 4 provides: "4 Personal information (1) In this Act, 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. (2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics. (3) Personal information does not include any of the following: (a) information about an individual who has been dead for more than 30 years, (b) information about an individual (comprising the individual's name and non-personal contact details, including the individual's position title, public functions and the agency in which the individual works) that reveals nothing more than the fact that the person was engaged in the exercise of public functions, (c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause."
7. Section 54 of the GIPA Act provides: "54 Consultation on public interest considerations (1) An agency must take such steps (if any) as are reasonably practicable to consult with a person before providing access to information relating to the person in response to an access application if it appears that: (a) the information is of a kind that requires consultation under this section, and (b) the person may reasonably be expected to have concerns about the disclosure of the information, and (c) those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information. (2) Information relating to a person is of a kind that requires consultation under this section if the information: (a) includes personal information about the person, or (b) concerns the person's business, commercial, professional or financial interests, or (c) concerns research that has been, is being, or is intended to be, carried out by or on behalf of the person, or (d) concerns the affairs of a government of the Commonwealth or another State (and the person is that government). Note. The requirement to consult extends to consultation with other agencies and other governments. See the definition of person in Schedule 4. (2A) If the agency considers that information about a person consulted under this section is likely to be included in the agency's disclosure log in relation to the access application, the agency must give a written notice to the person containing the following statements: (a) that information concerning the application is likely to be included in the agency's disclosure log and that the person can object to this, (b) that there is a right of review under Part 5 of a decision by the agency to include information in its disclosure log despite the person's objection. (3) If consultation is required concerning the release of personal information about a deceased person, that consultation is to be done by consultation with a close relative of the deceased. (4) The purpose of consultation under this section is to ascertain whether the person has an objection to disclosure of some or all of the information and the reasons for any such objection. (5) The agency must take any objection to disclosure of information that the agency receives in the course of consultation into account in the course of determining whether there is an overriding public interest against disclosure of government information. (6) If consultation establishes that a person objects to the disclosure of information but the agency decides to provide access to the information in response to the application, access is not to be provided until the agency has first given the objector notice of the agency's decision to provide access to the information and notice of the objector's right to have that decision reviewed, and is not to be provided while review rights on the decision are pending. (7) Review rights on a decision are pending while the objector is entitled to apply for a review of the decision under Part 5 (ignoring any period that may be available by way of extension of time to apply for review), or any review duly applied for is pending."
8. Section 104 of the GIPA Act provides: "104 Right of appearance before NCAT (1) The Information Commissioner has a right to appear and be heard in any proceedings before NCAT (and proceedings on an appeal in respect of any such proceedings) in relation to a review under this Division. (2) The Privacy Commissioner has a right to appear and be heard in any proceedings before NCAT (and proceedings on an appeal in respect of any such proceedings) in relation to a review under this Division of a decision that concerns a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to section 14). (3) Any person who could be aggrieved by a decision of NCAT on a review under this Division has a right to appear and be heard in any proceedings before NCAT in relation to the review."
9. Section 216 of the Protection of the Environment Operations Act 1997 provides: "216 Time within which summary proceedings may be commenced (1) Proceedings for an offence under this Act or the regulations may be commenced: (a) in the case of a prescribed offence - within but not later than 3 years after the date on which the offence is alleged to have been committed, or (b) in any other case - within but not later than 12 months after that date. (2) Proceedings for an offence under this Act or the regulations may also be commenced: (a) in the case of a prescribed offence - within but not later than 3 years after the date on which evidence of the alleged offence first came to the attention of any relevant authorised officer, or (b) in any other case - within but not later than 12 months after that date. …"
10. Section 289 of that Act provides: "289 Appeals against prevention notices (1) A person served with a prevention notice may, within 21 days (or such other period as is prescribed instead by the regulations) after being served with the notice, appeal to the Land and Environment Court against the notice. (1A) The lodging of an appeal does not, except to the extent that the Land and Environment Court otherwise directs in relation to the appeal, operate to stay the notice appealed against. (2) There is no appeal against a decision of an appropriate regulatory authority to extend the time for complying with a prevention notice. (3) For the purposes of this section, a prevention notice is a notice under Part 4.3, and includes a notice that varies such a prevention notice."
11. Section 18 of the Privacy and Personal Information Protection Act 1998 provides: "18 Limits on disclosure of personal information (1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless: (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person. (2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it."

The issues to be determined

1. The Tribunal is to determine whether the public interest considerations for and against disclosure have been substantiated and where they are, determine the balance between them. The balancing exercise "is a question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation": Battin v University of New England [2013] NSWADT 73 at [74].
2. In undertaking this exercise the Tribunal is to be guided by s 15 of the GIPA Act.
3. It is the respondent's obligation to justify its decision and to identify the specific information which it says should be withheld from the applicant because certain public interest considerations against disclosure apply (s 105(1) GIPA Act; Taylor v Office of Destination NSW [2018] NSWCATAD 195 at [20]).
4. Under section 55 of the GIPA Act, the Tribunal is entitled to consider the applicant's motives for making the application to the extent that it is relevant to whether disclosure could reasonably be expected to have any of the effects referred to in clauses 2 - 5 of the Table to section 14. 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.
5. Apart from identifying the grounds relied upon, the respondent in this case did not provide any submissions on the interpretation of the legislation, or identify the specific information within documents to which it claimed the public interest considerations applied, except in response to direct questions at the hearing.
6. The Information Commissioner made submissions on the interpretation of the phrase "could reasonably be expected to" in s 14, identifying that: 1. the test is an objective one, approached from the viewpoint of the reasonable decision maker (Neary v State Rail Authority [1999] NSWADT 107); 2. There must be more than a mere possibility, risk or chance of the effect occurring (Australian Vaccination Network v Department of Finance and Services [2013] NSWADT 60); 3. It will not be sufficient for the decision maker to proffer the view, it must be supported in some way, by real and substantial grounds and probative evidence (Transport for NSW v Searle [2018] NSWCATAP 93 and Newcastle City Council v Newcastle East Residents Action Group Inc [2018] NSWCATAP 254); and 4. Consideration of the content and context of the information in question may satisfy the standard, but in the absence of evidence, the Tribunal may place less weight on the particular public interest consideration (Taylor v Office of Destination NSW and Transport for NSW v Searle).

Clause 3(a) and (b) of Table to s 14 - personal information

1. Personal information is information or an opinion about an individual whose identity is apparent or can reasonably be ascertained from the information.
2. This ground was said to relate to the identities of individuals who were landowners and/or directors of the companies mentioned in the information as well as any employees of those companies. These names had been redacted from information provided to the applicant, along with addresses. The respondent said that it had redacted information of the businesses such as email addresses, postal addresses and telephone numbers because it considered that in this case the information of the business was so interconnected to the individuals concerned that it constituted an individual's personal information. The applicant said that he did not seek the names of employees.
3. It should be noted that the withheld documents were not withheld on the basis of this ground. They were withheld on the basis of clause 3(c) and (d).
4. The respondent did not identify which Information Privacy Principle (IPP) it claimed would be breached. For the purposes of these reasons I have assumed that the relevant IPP is s 18 of the Privacy and Personal Information Protection Act 1998 (PPIP Act) which prohibits disclosure of personal information except in certain specified circumstances.
5. Clause 3(a) applies if disclosure of the information could reasonably be expected to have the effect of revealing a person's personal information.
6. To "reveal information" is defined by Clause 1 of Schedule 4 to the GIPA Act to mean: "…to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)."
7. A person's name and address can be personal information (WL v Randwick City Council [2007] NSWADTAP 58). The applicant submitted that the names of the directors of one company concerned were known to him and in any event the names of directors of companies were available on the ASIC website. In support of this submission he provided a copy of an ASIC search showing the directors of one of the companies concerned. Section 4(3)(b) of the PPIP Act states that information about an individual that is contained in a publicly available publication is not "personal information".
8. The Information Commissioner made submissions on whether disclosure of information in fact occurred when the information was already known to the applicant. Reference was made to the following statement in Foster v Federal Commissioner of Taxation (1951) 82 CLR 606 at [11] per Latham CJ: "…it is not possible, according to the ordinary use of language, to 'disclose' to a person a fact of which he is, to the knowledge of the person making a statement as to the fact, already aware."
9. This principle has been applied in the Tribunal in decisions concerning the GIPA Act (eg. Luxford v Department of Education and Communities [2016] NSWCATAD 118)
10. I am not satisfied that the respondent has discharged the onus of establishing that the grounds apply to the information.

Clause 3(c) and (d) of Table to s 14 - prejudice to court proceedings

1. It emerged at the hearing that this ground was based on penalty notices, clean up notices, prevention notices and other notices issued by the Council to third parties in relation to possible offences or breaches of legislation, and the information in question (the withheld documents) consisted of correspondence between the Council and the third parties concerning those notices.
2. No evidence was adduced of any actual court proceedings relied upon by the respondent. The respondent submitted that release of the withheld documents could reasonably be expected to prejudice future legal proceedings or the right to procedural fairness of the individuals concerned. It provided copies of objections from two third parties to release of the information on those grounds. One third party did not respond. As noted above, however the respondent did not consult the third parties directly; instead they consulted their legal and planning representatives. The content of those objections does not provide any material assistance as to their factual basis.
3. In my view clause 3(c) cannot be relied upon by the respondent in the absence of any court proceedings being identified.
4. Clause 3(d) would apply if the disclosure of the information could reasonably be expected to prejudice a person's right to procedural fairness. This presupposes that the person concerned is involved or will be involved in a process where they are entitled to procedural fairness. If that were the case, it would be necessary to examine whether disclosure could reasonably be expected to prejudice that right. The respondent did not identify any process which might allow the third parties to object to the notices which were issued to them apart from the rights to appeal under the relevant legislation. However there was no evidence as to whether any such rights still existed. I note that in many cases the information dates from more than six years ago which suggests that the prospect of any prejudice to a subsequent legal process would be remote.
5. In my view, the respondent has not discharged the onus of establishing that either clause 3(c) or (d) apply.

Clause 5 of Schedule 1 - Legal Professional Privilege

1. Section 118 of the Evidence Act 1995 provides: 'Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication made between the client and a lawyer, or (b) a confidential communication made between 2 or more lawyers acting for the client, or (c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person, for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.' A lawyer-client relationship must exist for the communication or document to be privileged under s 118 and the communication or document must be confidential. The burden of establishing that is on the respondent. The clause does not apply if the privilege has been waived; however there was no evidence that this has occurred.
2. This ground related to one document only (D12/268393) which was in the nature of internal legal advice to the respondent. No evidence was provided by the respondent as to the nature of the relationship between the author and the recipient. Therefore I have reviewed the document itself to determine the issue.
3. Legal professional privilege may apply to legal advice provided by an employed government lawyer to another employee or branch of government, provided that the relationship is a professional relationship with an independent character notwithstanding the employment (Waterford v The Commonwealth of Australia (1987) 163 CLR 54).
4. [NOT FOR PUBLICATION]
5. I am satisfied from my perusal of the document that this is a confidential communication between a lawyer and a client for the dominant purpose of the lawyer providing legal advice to the client and that the relationship is a professional lawyer-client relationship of an independent character. Therefore it is to be conclusively presumed that there is an overriding public interest against disclosure of this document and there is no discretion to release it.

Unspecified ground - financial information

1. With reference to one document, D17/146096, the internal review stated that this document was redacted by the respondent to withhold "financial decision undertaken by Council in relation to a third party." The applicant pressed for access to this information. The respondent did not address this document in its submissions and did not provide any evidence in relation to this redaction. It is apparent that this information relates to a company. In the absence of any apparent material to substantiate any ground, the respondent's onus is not discharged in respect of this information.

Balancing the considerations

1. As I am not satisfied that any of the grounds relied upon by the respondent are substantiated apart from the ground in clause 5 of Schedule 1, it is not necessary to conduct the balancing exercise contemplated by s 13 of the Act.

Third party consultation

1. During the hearing it became apparent that the rights of certain third parties to be consulted under s 54 of the GIPA Act were not properly observed. The consultation which was carried out was not carried out directly with the individuals concerned but with firms who had represented them, and there was no evidence as to whether this was done at the request of the individuals. It is known that one representative did not respond. Moreover the consultation was conducted after the internal review decision had been made.
2. Section 104(3) of the GIPA Act provides that any person who could be aggrieved by a decision of the Tribunal on a review has a right to appear and be heard in any proceedings in relation to the review. The question then arose whether the third parties should have an opportunity to be heard. I canvased the available options with the parties, including remittal, and invited the parties to file submissions on this point which I would consider prior to issuing my reasons.
3. In Quipolly Water Action Group v NSW Department of Industry [2016] NSWCATAD 252 a similar question arose, although in that case the parties were otherwise in agreement and the respondent proposed to release the remaining information to the applicant. Senior Member McAteer held: In my view the rights of the third party (Whitehaven) are enlivened predominantly by the operation of section 104 (3) of the GIPA Act… The third party has had time to take action in the Tribunal under section 54 (6) and extending to section 80 (d) of the GIPA Act. Notwithstanding the external review to the Information Commissioner and subsequent further decision by the respondent, it was open to the third party to commence proceedings under the period allowed under section 101 (1) of the GIPA act, noting the import of section 98 and the words 'is or has been the subject of review by NCAT.' … In my view the appropriate course of action is to provide the third party with a final opportunity to consider whether it seeks to be heard and exercise such latent rights as may exist at the time of filing on 5 September 2016."
4. The Senior Member made orders that on the date that the decision was published, the respondent already having been alerted by the Divisional Registrar to the date of publication, the respondent was to write to the third party drawing their attention to the published reasons, their right to appear and be heard under section 104 (3) and the order that if it decided to exercise that right it must do so within 7 days. In that case the matter would be listed for a case conference.
5. If no correspondence was received, the orders of the Tribunal would take effect after the 7 days had passed.
6. The applicant submitted that I should make similar orders in this case, and that failing any appearance by the third parties I should set aside the respondent's decision.
7. The respondent submitted that if I were minded to vary or set aside its decision so that the withheld and redacted documents were released, it would be appropriate for the parties to be consulted prior to the release of the information. The respondent contended that the legal firm and the town planning firm should be consulted as well as the individuals as their professional interests were affected.
8. The respondent submitted that remitting the matter for reconsideration pursuant to s. 63(3)(d) of the Administrative Decisions Review Act 1998 was not the preferred course of action as all its suitable officers have been involved in the consideration or review of the matter and remittal would not achieve a fast, quick and cheap resolution of this matter for the parties.

Orders

1. I make the following orders: 1. On the date on which this decision is published, the respondent having been notified in advance of the decision by the Divisional Registrar, the respondent is to correspond directly with: 1. the directors and/or secretaries of the third parties Aulsebrook Constructions and South Coast Timber Supply; 2. RMB Lawyers; 3. Cowman Stoddart; and 4. M.E.McMahon and Associates; concerning these proceedings. 1. That correspondence shall draw the following matters to the attention of the third parties: 1. These reasons for decision. 2. The existence of their right to appear and be heard in these proceedings under section 104(3) of the Government Information (Public Access) Act 2009. 3. That if they decide to exercise their rights under section 104 (3), they must do so by advising the respondent and the Tribunal within seven (7) days of the date of the respondent's correspondence. 1. On receipt of a communication from any or all of the third parties referred to in Order 1 above, the matter will be listed for a Case Conference before Senior Member Ludlow on a date to be advised to all parties. 2. In the absence of any action by any third party in accordance with order (2) (c), the decision of the respondent under review is set aside and in substitution of that decision the respondent is to: 1. provide the applicant with access to documents which were fully withheld from the applicant, with the exception of D12/268393; 2. provide the applicant with copies of the documents already released to him but with only the names of directors of the companies who are also third parties removed; 3. provide the applicant with a copy of D17/146096 without redaction. 1. The operation of Order 4 is not to take effect before the expiry of fourteen (14) days after the publication of this decision..

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

Amendments 21 November 2019 - Orders in coversheet and reasons - Order 4(b) 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: 21 November 2019