Stalvies v Snowy Monaro Regional Council

Procedural history

1. A hearing was held before the Tribunal, differently constituted, on 28 September 2020 ("the first hearing"). The applicant was self-represented and the respondent was represented by its internal officer. The parties filed documents prior to the hearing.
2. The Tribunal provided a decision and reasons for its decision on 3 December 2020 (Stalvies v Snowy Monaro Regional Council [2020] NSWCATAD 292) ("the first decision"). In the first decision, the Tribunal made orders varying the decision of the respondent.
3. The applicant appealed the first decision to the Tribunal's Appeal Panel.
4. The Appeal Panel, constituted by Senior Member Durack and Senior Member Gracie, found that the Tribunal had made an error of law (Stalvies v Snowy Monaro Regional Council [2021] NSWCATAP 246) ("the appeal decision"). On 26 August 2022, the Appeal Panel set aside the Tribunal's order that the decision be varied and partly remitted the proceedings to the Tribunal, differently constituted, to be determined according to law.
5. The Tribunal was then constituted with its current member.
6. At a directions hearing on 27 July 2022, the parties consented to the proceedings being redetermined on the papers without a further oral hearing. This included that the transcript being obtained for the first hearing and that that transcript form part of the material for my consideration. I also arranged for the registry to request that the objectors to the GIPA request be afforded the opportunity to be heard pursuant to s104(3) of the GIPA Act. The Tribunal received a joint submission from the objectors which has been taken into consideration in the disposition of the application.
7. Following the directions hearing on 27 July 2022, the applicant wrote a number of times to the registry about the proceedings. That communication does not form part of the evidence before me as there was no order made for the parties to serve any further material.
8. I received the transcript on 31 March 2023.

Information in dispute

1. At the first hearing, the previously constituted Tribunal clarified the information in dispute by reference to an undated table to which both parties had access at the hearing(Information Table). In the first decision the following is recorded which I adopt at [10] - [13]: 10. "The Information Table recorded 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. 11. 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. 12. 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: 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. the letter dated 7 August 2017 has not been released to the applicant by the respondent under the GIPA Act. 13. 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.
2. It is apparent from the transcript, and, the first decision, that the information sought to be released relates to the following seven documents described in the Information Table (Disputed Information): Letter to the respondent from a third party dated 29 August 2016 (Document 1). Letter to the respondent from a third party dated 23 February 2017 (Document 2). Diary note of the respondent dated 9 January 2017 (Document 3). Diary note of the respondent dated 19 January 2017 (Document 4). File note of the respondent dated 19 December 2018 (Document 5). Letter from the respondent to a third party dated 7 August 2017 (Document 6). Letter from the respondent to a third party dated 11 August 2017 (Document 7).
3. The applicant sought administrative review of the decision of the respondent to refuse to provide access to information in respect of all or part of the information in Documents 1 to 7 (see s 80(d) of the GIPA Act).
4. The Appeal Panel remitted for reconsideration whether the disclosure of Documents 1 and 2 and the one redacted sentence in Document 5 should be granted to the applicant according to law. It is these three documents which are the subject of this second hearing.
5. Documents 1 and 2 were letters concerning works undertaken on the applicant's property and certain activities by the applicant on that property. Document 5 was a file note prepared by an officer of the respondent which included a record of communications with one of the authors of the two letters.
6. In respect of Documents 1 and 2, the respondent in the GIPA Decision determined that none of the contents were to be disclosed to the applicant because they contained "personal information". As to Document 5, the respondent decided in the GIPA Decision that one sentence in this document was not to be disclosed to the applicant on the same basis.

Legislation

1. The object of the GIPA Act as set out in s 3 is to open government to the public. This is done by authorising and encouraging the proactive release of information by agencies and by giving members of the public an enforceable right to access government information. Access to government information is to be restricted only when there is an overriding public interest against disclosure.
2. It was not disputed that the information the subject of this application is government information that is held by an agency: s 4(1) of the GIPA Act.
3. There is a presumption in favour of the disclosure of government information unless there is an "overriding public interest against disclosure": s 5 of the GIPA Act. 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: s 9(1) of the GIPA Act.
4. There is a general public interest in favour of disclosure of government information: s 12(1) of the GIPA Act. Examples of public interest considerations in favour of disclosure, which are not limited, are provided in a Note to s 12.
5. 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.
6. Section 13 of the GIPA Act sets out the test that is to be applied in determining whether there is an overriding public interest against disclosure: 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.
7. The public interest considerations against disclosure are set out in a Table in s 14 of the GIPA Act, and as relevant to this review are discussed below.
8. The determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the principles set out in s 15 of the GIPA Act which provides as follows: 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.
9. In determining whether there is an overriding public interest against disclosure of government information, the personal factors of the applicant may be taken into account: s 55 of the GIPA Act. Those factors are the applicant's identity and relationship with any other person, the applicant's motives for making the access application, and any other factors particular to the applicant.
10. Disclosure of information in response to an access application cannot be made subject to any conditions on the use or disclosure of the information: s 73 of the GIPA Act.
11. Relevantly, where a person is aggrieved by a decision of the Tribunal on a review under the GIPA Act, that person, or persons, have a right to be heard pursuant to s 104(3) of the GIPA Act, which provides: 104 RIGHT OF APPEARANCE BEFORE NCAT (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.
12. As indicated above, the Tribunal contacted the authors of Documents 1 and 2, which persons are those referred to in the file note Document 5, seeking whether they wished to be heard. The persons ("the objectors") did wish to be heard. The objectors made submissions and do not consent to the release of their personal information to the applicant.

Issues

1. In determining this application the Tribunal is required to: 1. Identify the public interest considerations in favour of disclosure of the information; 2. Consider whether the information in issue, if released, would give rise to a public interest against disclosure on the grounds that release of the information could reasonably be expected to have the effect as contended by the respondents; and 3. If so satisfied, consider where the balance lies between the public interest considerations in favour of disclosure and those against disclosure, having attributed weight to each consideration, and taking into account the personal factors identified under, the objectors submissions, and as permitted by, s 55 of the GIPA Act: Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19.
2. That process requires a broad value judgment to be made, having regard to the objects of the legislation, the general presumption in favour of disclosure of government information, and the principles set out in s 15 of the GIPA Act: Transport NSW v Searle [2018] NSWCATAP 93 at [104].

Public interest considerations in favour of disclosure

1. In addition to the general public interest in favour of disclosure of information, what can be gleaned from the respondent's oral submission at the first hearing is that it accepts that the public interest considerations in favour of disclosure are those identified in s12(1) of the GIPA Act and paras (b) and (c) of the Note to s 12 in the GIPA Act (see para [30] - [31] above).
2. The applicant contends the general interest in favour of disclosure of the information is high. The applicant contends, referring to a period from as early as August 2016 when the respondent and the applicant's neighbour was in contact over a fence complaint "Any information at all from that period was made without any consultation or notification to me. It's highly biased in favour of neighbours in terms of what they have written elsewhere and so that's fundamental to my needs. … The information from council indicated that they have been in touch with my neighbours and had received a letter from them about complaints at my residence on 29 August. I've asked for a copy of those complaints."
3. The applicant believes that third parties have made erroneous and adverse comments about her, which she rejects and seeks to redress. In these circumstances, the applicant seeks to achieve transparency by obtaining the information sought in her access application under the GIPA Act. The applicant contends that she was wrongly required to pay money in respect of the issue affecting her property and that the respondent made mistakes in some of its decisions. The applicant is motivated to correct those mistakes.
4. I interpolate her submission to be that is important to inform the public about the operations of the respondent and, in particular, their policies and practices for dealing with members of the public. Further that the information is personal information of the applicant because it relates to her and her property. Particular emphasis is placed on consideration (b) and (d) in the note to s 12 of the GIPA Act by the Applicant.
5. The applicant also submits that significant weight should be given to general public interest considerations in favour of disclosure due to the direct relationship the information sought (being the complaint) has to her property.
6. I find, each of the matters is described in paragraphs [38] - [42] are relevant public interest considerations in favour of disclosure of the information sought in the access request. The matters in [39] and [40] are matters to consider pursuant to s 55 of the GIPA Act subject to its limitations.

Consideration of the grounds that release of the information gives rise to a public interest against disclosure

1. I will first deal with Documents 1 and 2, which are the letters from third parties to the respondent. Document 1 consists, largely, of expressions of concerns about the aspects of the applicant's property and her activities on that property. The authors of that letter seek certain questions to be answered by council about the applicant in that regard.
2. Document 2 consists, largely about the understanding of the authors about certain steps that have been taken, or occurred, concerning the applicant's property and a request of the respondent.
3. The respondent has refused disclosure of the basis that there is a public interest against disclosure because to do so would reveal "personal Information" about the authors of the two documents (see Clause 3(a) and (b) to the Table to s 14 of the GIPA Act) which provides: 3. 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
4. The applicant presses for the disclosure of the information.
5. "personal Information" is defined in clause 4 to Schedule 4 to the GIPA Act 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.
6. To 'reveal' information means to "disclose information that has not readily been publicly disclosed (otherwise than by unlawful disclosure)" (clause 1 of Schedule 4). The issue for consideration is not whether the relevant document has been publicly disclosed, but whether the information it contains has been publicly disclosed (Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98 at [40]).
7. In DRP v Orange City Council [2020] NSWCATAD 220, I set out the following with respect to what constitutes 'personal information' at [38]-[44]: 38 'Personal Information' is defined by section 4 of the PPIP Act as: (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 whose identity is apparent or can reasonably be ascertained from the information or opinion. 39 S4(3) sets out information that is excluded from the definition of 'personal information', including information about an individual that is contained in a publicly available publication (s4(3)(b)). 40 The definition of 'personal information' is very broad (AIN v Medical Council of New South Wales [2017] NSWCATAP 23 at [112]). 41 In Office of Finance and Services v APV & APW [2014] NSWCATAP 88 at [4], the Appeal Panel found that the words 'whose identity is apparent or can be reasonably ascertained from the information or opinion' do not mean that the individual's identity must be apparent or reasonably ascertainable 'solely from the information or opinion'. The Tribunal found that '[d]epending on the circumstances, other information may be consulted in order to ascertain the identity of the person concerned.' In that case, the applicants' identity could be ascertained from the information or opinion, together with information on a website controlled by the agency. 42 The Full Federal Court in Privacy Commissioner v Telstra Corporation Limited [2017] FCAFC 4 found at [63] in applying the definition of 'personal information' in the Privacy Act 1988 (Cth): 'The words 'about an individual' direct attention to the need for the individual to be a subject matter of the information or opinion. This requirement might not be difficult to satisfy. Information and opinions can have multiple subject matters. Further, on the assumption that the information refers to the totality of the information requested, then even if a single piece of information is not 'about an individual' it might be about the individual when combined with other information. However, in every case it is necessary to consider whether each item of personal information requested, individually or in combination with other items, is about an individual. This will require an evaluative conclusion, depending upon the facts of any individual case, just as a determination of whether the identity can reasonably be ascertained will require an evaluative conclusion.' 43 The Supreme Court of New South Wales Court of Appeal found in Turnbull v Strange [2018] NSWCA 157 'The phrase 'about an individual' provides an essential qualification of the subject matter of the definition, namely 'information or an opinion'. It may be that the content of a telephone conversation, including statements made by one party, will constitute 'opinions' about the other party to the conversation. However, statements by the relevant individual will not constitute opinions about himself or herself, in most circumstances. On the other hand, statements made by the individual may identify 'information' about that individual, in that they may reveal that he or she held a particular opinion or knew certain things at a particular time. It is unlikely that the whole of the records apparently sought by the subpoena would constitute 'personal information' in relation to the deceased. The importance of giving weight to information or an opinion 'about' an individual was explained in relation to the equivalent, Commonwealth legislation in Privacy Commissioner v Telstra Corporation Limited.' [Citation omitted] 44 The Administrative Decisions Tribunal found that the mobile, home and work telephone numbers, and email addresses of an objector to a prospective development application was personal information (see Donnellan v Ku-ring-gai Council (2013) NSWADT 115 (at [39]-[43]). However, not all of the information contained in emails by objectors to the agency is their personal information. Where information comprised expressions of opinion, it was opinions about the development application and not about an individual. The fact that information was sent from the objector's email addresses did not make the information personal information.
8. I pause to record that the definition of personal information in both the GIPA Act and the Privacy and Personal Information Protection Act 1998 ("PPIP Act") is the same.
9. As a preliminary matter, I find that the information contained in Documents 1 and 2, apart from the name and address of the objectors, is not personal information. This is because the expressions of opinion, or purported statements of fact, which could be statements of opinion, are not about the objectors themselves. They relate specifically to the applicant's property and the activities that she conducts on that property. This in my view can not be personal information of the objectors within the definition in Clause 4 of Schedule 4 to the GIPA Act, nor when considering the authorities as set out in DRP. The identity of the objectors in not apparent, nor can it be reasonably be ascertained from the information of the opinion. This is primarily because it relates to, and refers specifically to the applicant and her property.
10. I also find that there is no potential breach of an information protection principle under the PPIP Act if the information is revealed. This is because the information is not "private Information" of the objectors, except in so far as their name and address is concerned.
11. Notwithstanding these findings, the name and address of the objectors is clearly their personal information. However, it is evident from the GIPA Decision that the identity of the objectors had already been disclosed to the applicant. I find, clauses 3(a) and (b) of the Table to s 14 of the GIPA Act are not a relevant considerations in relation to Documents 1 and 2.
12. Document 5 is a file note of an officer of the respondent dated 19 December 2018. The unredacted part of the file note contains the recording of a concern that the applicant's neighbour had in relation to a dividing fence. It records part of a conversation between the respondent's officer and the neighbour. The opinion is personal to the neighbour and expresses an opinion about the fence and consequences of its dilapidated state. The opinion is personal to her and it is about the neighbour's state of mind.
13. In my view the opinion is an opinion about the neighbour whose identity is apparent. It is "personal information" within the definition found in clause 4 of Schedule 4 to the GIPA Act. Clause 3(a) of the Table to s 14 of the GIPA Act is a relevant public interest consideration against disclosure of the information. I also find that disclosure of that information attracts consideration of Clause 3(b) of the Table to s 14 of the GIPA Act.
14. Section 18 of the PPIP Act 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.
15. I am satisfied that the information in Document 5 was collected by the respondent and it expressed views and opinions by the neighbour, which, has not been disclosed in any way as foreshadowed in the exceptions contained in s 18 (a) -(c) of the PPIP Act. Release of the information could contravene s 18 of the PPIP Act.

The balancing exercise required by s 13 of the GIPA Act

1. I have found that there are public interest considerations in favour of disclosure of the information sought by the applicant. Indeed, it is not disputed by the respondents, that, particularly (a) and (d) to the note in s12(1) are apposite. I am satisfied that disclosure of the information sought would certainly promote each of the matters as contained in those provisions. I have attached weight to each of those matters.
2. It is trite to say that disclosure of the information sought would further the identified public interest considerations in favour of disclosure, and the general public interest (s 12(1) of the GIPA Act).
3. I have also considered the personal factors of the application to which s 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. (4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for. (5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to take reasonable steps to provide proof of his or her identity. (6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person.
4. I accept that the matters in [39] - [40] weigh in favour of disclosure as it relates to Documents 1 and 2. I am not satisfied that the personal circumstances weigh the balance in favour of disclosure concerning Document 5. This is because the information is a personal opinion about the neighbour. However, I have given them some weight in considering where the balance lies.
5. I have taken into consideration the submissions made by the objectors.
6. [NOT FOR PUBLICATION]
7. [NOT FOR PUBLICATION]
8. In relation to Documents 1 and 2 I have found that the information is not personal information and if it was that it has already been revealed. To the extent relevant, if at all, the public interest considerations against disclosure (cll 3(a) and (b)) do not sufficiently outweigh those public interest considerations in favour of disclosure. The correct and preferable decision is to set aside the GIPA Decision insofar as it relates to Documents 1 and 2 and make a new decision that the two documents be disclosed in full.
9. In relation to Document 5, the public interest considerations against disclosure (cll 3(a) and (b)) sufficiently outweigh those public interest considerations in favour of disclosure. I have considered and weighed the stated public interest considerations against disclosure and find that the balance lies in not releasing the redacted part of that document. This is because it is an opinion that is personal information. The information is required to be protected to ensure its confidentiality and personal nature of the author. I find the correct and preferable decision is to affirm the decision to redact that part of Document 5. This is because release of the information would reveal the personal opinion about the author, which, in my view outweighs the public interest considerations in favour of disclosure.

ORDERS 1. The decision not to give access to the letter dated 29 August 2016 (Document 1) is set aside. 2. The decision not to give access to the letter dated 23 February 2017 (Document 2) is set aside. 3. The respondent is to give to the applicant access to the letter dated 29 August 2016 (Document 1). 4. The respondent is to give to the applicant access to the letter dated 23 February 2017 (Document 2). 5. The decision to redact part of the file note of the respondent dated 19 December 2016 (Document 5) is affirmed. 6. 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 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: 27 June 2023