Stalvies v Snowy Monaro Regional Council

Information in dispute

1. At the hearing, I sought to clarify the information in dispute in this matter by reference to an undated table to which both parties had access at the hearing (Information Table). The Information Table records information contained in documents identified by the respondent as being within the scope of the access application, as well as the extent to which access was given to the information, or if access was not given, the basis on which access was refused.
2. It was agreed by the parties at the hearing that the information in dispute in this matter is the information contained in nine documents in the Information Table.
3. However, from my review of the documentation filed by the applicant prior to the hearing, it became apparent that the applicant had obtained unredacted copies of three of the nine documents (those being, letters dated 5 September 2016 and 7 August 2017 and a file note dated 28 July 2017). As it was not clear how these three documents had been obtained and how they related to the decisions of the respondent under the GIPA Act, the respondent was ordered to clarify whether or not the three documents were released by the respondent to the applicant under the GIPA Act. On 12 October 2020, the respondent advised that: 1. the letter dated 5 September 2016 and the file note dated 28 July 2017 had been released to the applicant by the respondent under the GIPA Act. 2. the letter dated 7 August 2017 has not been released to the applicant by the respondent under the GIPA Act.
4. Given the applicant has the letter dated 5 September 2016 and the file note dated 28 July 2017 in unredacted form (and, by virtue of s 73(1) of the GIPA Act, without any conditions on the use or disclosure of the documents) these two documents cannot be in dispute for the purposes of this matter.
5. Accordingly, the information in dispute in this matter is information in the following seven documents described in the Information Table (Disputed Information): 1. Letter to the respondent from a third party dated 29 August 2016 (Document 1). 2. Letter to the respondent from a third party dated 23 February 2017 (Document 2). 3. Diary note of the respondent dated 9 January 2017 (Document 3). 4. Diary note of the respondent dated 19 January 2017 (Document 4). 5. File note of the respondent dated 19 December 2018 (Document 5). 6. Letter from the respondent to a third party dated 7 August 2017 (Document 6). 7. Letter from the respondent to a third party dated 11 August 2017 (Document 7).
6. Accordingly, the the applicant seeks administrative review of the decision of the respondent to refuse to provide access to information in response to an access application in respect of all or part of the information in Documents 1 to 7 (see s 80(d) of the GIPA Act).

The GIPA Act

1. The object of the GIPA Act is to "is to open government information to the public" in stated ways "[i]n order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective" (GIPA Act, s 3(1)). The GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (GIPA Act, s 5).
2. A person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information (GIPA Act, s 9(1)). There is a general public interest in favour of the disclosure of government information (GIPA Act, s 12(1)).
3. 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 (GIPA Act, s 13).
4. Subject to the application of Sch 1 of the GIPA Act, the public interest considerations listed in the table to s 14 to the GIPA Act (the Table) are the only considerations that may be taken into account as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information (GIPA Act, s 14(2)).
5. Section 15 of the GIPA Act sets out the principles that are to be applied when determining whether there is an overriding public interest against disclosure: 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.
6. The disclosure of information under the GIPA Act is disclosure to the world at large. This is because s 73(1) of the GIPA Act provides: An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application.
7. Section 105(1) of the GIPA Act provides that the burden of establishing that the decision is justified lies with the respondent.
8. The Tribunal's function on review under s 63 of the Administrative Decisions Review Act 1997 (NSW) is to decide what the correct and preferable decision is having regard to the material before it, including any relevant factual material and any applicable written or unwritten law.

Public interest considerations in favour of disclosure

1. There is a general public interest in favour of disclosure of government information referred to in s 12(1) of the GIPA Act. In her submissions, the applicant also referred to a public interest in greater transparency through the release of information about the operations of the respondent.
2. The respondent did not make any submissions in respect of the public interests in favour of disclosure but did refer to the general public interest in favour of disclosure in the Information Table in respect of information that had been disclosed to the applicant.

Personal factors of the application

1. Section 55(1) of the GIPA Act provides that, in determining whether there is an overriding public interest against disclosure of information, an agency is entitled to take into account the following "personal factors of the application": (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 may be taken into account as considerations against disclosure in respect of cll 2 to 5 of the Table (but not cll 1, 6 or 7 of the Table).
3. Section 55(2) of the GIPA Act provides that 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.
4. At the hearing, the applicant indicated that (and I summarise and paraphrase): 1. The applicant believes that third parties may have made adverse and erroneous comments about the applicant arising from the ongoing disputes that the applicant rejects and which, the applicant wishes to address. 2. The applicant believes she was wrongly required to pay money in respect of an issue affecting her property and the Adjoining Property and she is motivated to challenge the basis on which the payment was required. 3. The applicant alleges that the respondent, acting as the local council, made mistakes in some of its decisions and the applicant is motivated to challenge those mistakes.
5. The respondent did not make any submissions in respect of the personal factors of the application.

Public interest considerations against disclosure relied on by respondent

1. As set out above, this matter relates to the respondent's reliance on cll 3(a) and 3(b) of the Table to refuse to provide access to all or part of the Disputed Information. Given this, I will preface consideration of the documents with some comments about the applicable law.
2. Relevantly, cll 3(a) and 3(b) of the Table provide as follows: 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 (c) …
3. Clause 4 of Schedule 4 to the GIPA Act defines person information as follows: 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.
4. With respect to cl 3(a) of the Table, the term 'reveal' is defined in cl 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)".
5. With respect to cl 3(b) of the Table, the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) contains a number of information protection principles. Relevantly for this matter, the information protection principles include the following principle in s 18 of the PPIP Act: 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.

Evidence at the hearing

1. No affidavits or witness statements were filed. Each party filed written submissions and attached various documents they considered relevant to their case.
2. The Tribunal was also provided with an unredacted copy of the Disputed Information on a confidential basis.

Documents 1, 2 and 5

1. Documents 1 and 2 are letters from third parties to the respondent. The respondent has refused access to Documents 1 and 2 in full.
2. Document 5 is a file note of the respondent dated 19 December 2018. The respondent has disclosed all of Document 5 except one sentence.

Submissions of the parties

1. The respondent submitted that: 1. The respondent has consulted with the relevant third parties to determine if they consented to the disclosure or Documents 1 and 2. The third parties did not consent. The respondent submitted that it relied on cll 3(a) and 3(b) of the Table to refuse access to in respect of Documents 1 and 2. 2. The respondent reviewed Document 5 to limit the redactions made to the one sentence that, in the respondent's view, is personal information of a third party. 3. The respondent had regard to the information privacy principles in the PPIP Act and determined that the information in Documents 1, 2 and 5 was personal information collected by the respondent (in the form of the views and opinions of the third parties). 4. The respondent carried out searches of its records to determine if the information contained in Documents 1, 2 or 5 has been revealed or disclosed to the applicant previously and determined that it had not. 5. It determined that revealing or disclosing the information would be inconsistent with how the respondent is required, by its procedures and the law, to treat personal information.
2. While the respondent did not provide a copy of its privacy policy in the material filed for the hearing, the following statement is publicly available on the respondent's website in a section of the website entitled "Privacy": The privacy of our customers is highly important to Snowy Monaro Regional Council. Any personal information that Council collects from you on your visit to our website may be recorded by Council and may be used by it for the lawful purpose for which it was collected.
3. The applicant submitted: 1. The applicant does not have copies of Documents 1 and 2 or the information redacted from Document 5. 2. Documents 1 and 2 are particularly important to the applicant as they are communications "early on" in the dispute regarding the Adjoining Land and may form the basis of "mistakes" the applicant alleges the respondent has made about matters arising from the dispute and actions taken by the respondent. 3. The information contained in Documents 1 and 2 also contains personal information about the applicant and should, therefore, be released to her. 4. The information in Document 5 is relevant because "it seems it is about the state of the fence". 5. As a member of the public, the applicant should be entitled to see the information as it forms the basis of actions taken by a statutory agency. 6. The applicant alleges that the information contained in Documents 1 and 2 is false and therefore should not be protected by the GIPA Act.

Consideration

1. First, the Tribunal must consider if the relevant elements of cl 3(a) of the Table or s 18(1) of the PPIP Act apply to the information in the circumstances.
2. Reveal is defined in cl 1 of Sch to the GIPA Act as "to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)".
3. In Nakhl Nasr v State of New South Wales; George Nasr v State Of New South Wales [2007] NSWCA 101 at [127] the NSW Court of Appeal stated that "essence of disclosure" is "making known to a person information that the person to whom the disclosure is made did not previously know". In JD v New South Wales Medical Board [2008] NSWADT 67 at [33] the Tribunal noted that "the issue as to whether there is a 'disclosure' is ultimately a question of fact".
4. I have reviewed Documents 1, 2 and 5 and confirm that the information that has not been disclosed to the applicant is "personal information" for the purposes of the GIPA Act. I am also satisfied from the material filed by the respondent and submissions of both the applicant and the respondent that the information contained in Documents 1, 2 and 5 has not been revealed or disclosed to the applicant for the purposes of cl 3(a) of the Table and s 18(1) of the PPIP Act.
5. I am also satisfied that the information in Documents, 1, 2 and 5 is information that is 'held' by the respondent at the relevant time and that none of the exceptions set out s 18(1)(a) to (c) of the PPIP Act apply to the information in the circumstances of this matter.
6. Having established these matters, I must now consider whether disclosure of the information "could reasonably be expected to" have an effect identified in cll 3(a) and 3(b) of the Table. In Searle v Transport for NSW [2018] NSWCATAP 93 at [68] the Appeal Panel set out the relevant issues for this matter in the following terms: … (2) The words "could reasonably be expected" are to be given their ordinary meaning. 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 disclosure would have the relevant effect: Attorney-General's Department v Cockcroft (1986) 10 FCR 180 at 190.5; Raven v The University of Sydney [2015] NSWCATAD 104 at 48. As was made clear by Hayne J in McKinnon v Secretary, Department of Treasury [2006] HCA 45 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." (3) In order to discharge the onus, the appellant needed to show more than a mere possibility, risk or chance of prejudice. It must be based on real and substantial grounds: Australian Vaccination Network v Department of Finance & Services [2013] NSWADT 60 at [22]. (4) It will not be sufficient for the decision-maker to proffer the view. It must be supported in some way: Manly v Ministry of Premier and Cabinet (1995) 14 WAR 550 at 573G; Raven at [53]. ...
7. In my view, it is clear that personal information will be revealed for the purposes of cl 3(a) of the Table and that that personal information held by the respondent will be disclosed (in circumstances where none of the exemptions in s 18(1)(a) to (c) of the PPIP Act apply) for the purposes of cl 3(b) of the Table. Having come to this conclusion, I must balance the factors for and against disclosure to as required by s 13 of the GIPA Act.
8. The applicant has identified the public interest of transparency about the operations of the respondent. To this can be added the general public interest in favour of the disclosure of government information in s 12(1) of the GIPA Act. In this matter, the respondent has provided the applicant with access to information where the information relates to functions or activities carried out by the respondent. The respondent submitted that it has only redacted information that it considers is personal information of third parties and in respect of which it considers there is an overriding public interest against disclosure. From my review of the unredacted copies of the Disputed Information, I am satisfied that the respondent has redacted the Disputed Information in this manner.
9. As a result, the applicant has been provided with a significant amount of information, generally, and, in particular, about the operations of the respondent and for her purposes. Given this, I consider that a medium weight should be given to this consideration.
10. The applicant has identified that she has certain beliefs about the nature of the information that has not been disclosed and has formed a view as to what the information must be about. While this may be a natural reaction to being refused access to all or part of the information sought, it is not a persuasive reason, in my view, for revealing or disclosing personal information that is not currently publicly available. This is particularly the case where the circumstances of this matter are that much of the information identified as within the scope of the access application has been disclosed. I consider that a low weight should be given to this consideration.
11. The applicant identified that she wishes to take action to redress certain alleged "mistakes" by the respondent and what the applicant considers (without the benefit of seeing Documents 1, 2 or 5) must include adverse or erroneous statements about the applicant. Again, the respondent has disclosed a large amount of information the applicant. This will assist the applicant with the redress she wishes to consider. Further, the information disclosed includes (through the release to the applicant of a letter dated 5 September 2016) the respondent's summary of certain matters raised in Document 1 and therefore summarises, to some extent, aspects of Document 1 that the applicant seeks.
12. I also note that, as would be expected given the applicant does not have access to the information, the applicant's motives arise from her belief about what may be in the documents. However, such assumptions, when balanced against the public release of personal information should not be given a significant weight. In the circumstances, I consider that a medium weight should be given to this consideration. For the same reason, the same weighting should be given to the applicant's submission that the information contained in Documents 1, 2 and 5 is false and should, in the applicant's view, be given no weight.
13. In my view and given all of the circumstances of this matter, greater weight should be given to the public interests against disclosure of the personal information on the basis that: 1. The personal information of third parties has not been revealed or disclosed. 2. Significant amounts of information identified as within the scope of the access applicant have been disclosed to the applicant. 3. The respondent has received objections in respect of the disclosure of the information. 4. The respondent's stated processes are to keep the information confidential and not disclose it. 5. The respondent has a regulatory function and, as is clear from the documents provided in this matter, accepts correspondence from all persons in its jurisdiction regarding local government matters and obligations not to disclose personal information obtained in this manner.
14. I should not that, in coming to my conclusions as to where the balance lies, I have considered the NSW Information Commissioner's GIPA Guideline 4 - Personal Information as a public interest consideration under the GIPA Act, which was published pursuant to s 14(3) of the GIPA Act (Guideline 4). Section 15(b) of the GIPA Act requires me have regard to Guideline 4. Paragraph 3.4 of Guideline 4 states: "Clause 3(a) … should not be used as a reason for denying people access to their own personal information. Rather, it is intended as a balance between the public interest in having access to government information, and the public interest in protecting and controlling the disclosure of personal information to people other than the person to whom the information relates."
15. However, in this case, the information is (depending on the document) either almost all, or significantly intertwined with, information of other persons. Given this, a process of redacting the personal information is not feasible in the circumstances. Accordingly, I consider the weightings I have given above to be appropriate.
16. For the reasons given above, the information in Documents 1 and 2 and the information redacted from Document 5 should not be disclosed to the applicant on the basis of the public interests against disclosure in cll 3(a) and 3(b) of the Table.

Documents 3 and 4

1. Documents 3 and 4 are files notes of the respondent from which certain information has been redacted.
2. Consideration of Documents 3 and 4 can be dispensed with quickly. From my review of the unredacted copies of the Disputed Information, the information redacted is clearly outside the scope of the access application as it relates to persons, properties and issues other than the applicant's property, the Adjoining Property or any of the issues identified in the scope of the access application.
3. Accordingly, the information redacted from Documents 3 and 4 should not be disclosed to the applicant because she does not seek the information according to the terms of her access application.

Documents 6 and 7

1. Documents 6 and 7 are letters of the respondent to third parties from which certain information has been redacted.
2. It is apparent from my review of Documents 6 and 7 that the redacted information is personal information of third parties. However, it is also apparent from my review that the redacted information is the same personal information that has been disclosed to the applicant by the respondent under the GIPA Act through the release of letters dated 5 September 2016 and 7 April 2017.
3. As stated above, s 73(1) of the GIPA Act provides disclosure is to be that without any conditions on the use or disclosure of the documents. On this basis, disclosure under the GIPA Act is considered to be to the world at large and the information redacted from Documents 6 and 7 has already been disclosed.
4. Further, I note that paragraph 3.5 of Guideline 4 states that "if the personal information has already been publicly disclosed, this consideration against disclosure cannot be relied on".
5. For the reasons given above, the information redacted from Documents 6 and 7 should be disclosed to the applicant.

Conclusion

1. It is clear from the hearing that a number of issues have arisen for the applicant due to the dispute in respect of the Adjoining Property. While that may be the case, the Tribunal is required to apply the GIPA Act according to its terms and based on the material available to the Tribunal.
2. For the reasons set out above, I am of the view that the correct and preferable decision in view of all of the circumstances of this matter is that the GIPA Decision should be varied to disclose to the applicant the information redacted from Documents 6 and 7, but that the GIPA Decision of the respondent is otherwise affirmed.

Orders

1. The order of the Tribunal is as follows: 1. The decision of the respondent is varied in respect of the letters of the respondent dated 7 April 2017 and 11 August 2017 in that the information redacted from those documents is to be disclosed to the applicant within 14 days of the publication of these reasons. 2. The decision of the respondent is otherwise affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 14 January 2021 - Updated Date in Section 69 (1) from 7 August 2017 to 7 April 2017 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 January 2021