Steinle-Davies v Inner West Council

NCAT Administrative and Equal Opportunity|2024-12-20

Background

These proceedings concern a request (the GIPA request) that Rory Steinle-Davies (the applicant) made to Inner West Council (the respondent) on 12 March 2024 for the release of information under the Government Information (Public Information) Act 2009 (NSW) (the GIPA Act), in the following terms: 1) All submission in regards to public consultation of Jaggers lane. 2) Data of Waterview St and Colgate Ave Balmain. Independent tube counts and parking reports provided to IWC at the LEC, when approving development of 2a & 2b Caroline St, Balmain. LEC 2020/177043 IWC solicitors: Bartier Perry Lawyers, Samuel Alum. Publication restrictions: No Information access application REQ2021-111182 December 2021, DA/2020/0286 and complaint REQ2022-050472.
Between 27 March 2024 and 17 May 2024, the scope of the GIPA request was refined by the applicant and certain documents within the GIPA request were provided to him. Amongst other information, the applicant requested "All submissions to the Community Engagement public consultation on proposed permanent road closure, Jaggers Lane, Balmain in November & December 2023. 23 support and 8 objecting submission s to be identified."

Decision at first instance

On 17 May 2024, the respondent issued a Notice of Decision pursuant to s 60 of the GIPA Act. The respondent decided to provide access to some information (s 58(1)(b) of the GIPA Act) and it also decided to refuse access to some information (s 58(1)(d) of the GIPA Act). The respondent stated that it conducted reasonable searches to locate information in response to the GIPA request and that in making its decisions, it applied the public interest test as required by s 15 of the GIPA Act, as follows.

Public interest considerations in favour of disclosure

The respondent referred to s 12(1) of the GIPA Act, which provides that there is a general public interest in favour of disclosing government information, and s 12(2) which provides examples of public interests in favour of disclosure of information. The respondent identified the following considerations: Providing access, as per s.12(2)(a) of the Act, to traffic surveys and records related to the community engagement regarding the Jaggers Lane Balmain permanent road closure proposal, could reasonably be expected to promote open discussion of public affairs, enhance accountability, or contribute to positive and informed debate on matters of public importance, such as the potential impacts to pedestrian safety, vehicle parking and local traffic. I consider this to be a strong consideration in favour of disclosure. As provided for in s.12(2)(b) of the Act, disclosure of the information that Council holds regarding the community engagement for the Jaggers Lane Balmain permanent road closure proposal, could reasonably be expected to ensure to inform the public about the operations of Inner West Council. In particular our processes and practices related to Council's traffic and transport planning decision making. I consider this to be a strong consideration in favour of disclosure.

Personal factors of the application

The respondent noted that the applicant is a resident of the Balmain peninsula, with interests connected to the lane affected by its proposal, as well as a participant in the "Have your say Inner West" community engagement for the Jaggers Lane permanent road closure proposal. These personal factors support the public interest considerations in favour of disclosure.

Public interest considerations against disclosure

The respondent relied upon cll 1(d), 3(a), 3(e), 3(f) and 3(g) of the table to s 14(2) of the GIPA Act.

Clause 1(d)

This provides, "There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions".
The respondent decided that this consideration applies to an individual's feedback under its Community engagements, and that disclosure of this information could reasonably be expected to prejudice the supply of confidential information that facilitates the effective exercise of its functions. It also decided that this is a strong consideration against disclosure of the disputed information.

Clauses 3(a) & 3(b)

These provide that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects - (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,.
The respondent stated that its handling of personal information is guided by the Information Protection Principles (IPPs) at all times and that revealing an individual's feedback to community engagements could reasonably be expected to contravene an IPP under the Privacy and Personal Information Protection Act 1998 (NSW) (the PPIPA) or a Health Privacy Principle under the Health Records and Information Privacy Act 2002 (NSW) (the HRIPA).
The respondent decided that cll 3(a) and 3(b) of the table to s 14(2) were strong considerations against disclosure of the disputed information.

Clause 3(e)

This provides, "There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to reveal false or unsubstantiated allegations about a person that are defamatory."
The respondent decided that this was a strong consideration against disclosure.

Clause 3(f)

This provides: "There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to expose a person to a risk of harm or of serious harassment or serious intimidation."
The respondent decided that this is a strong consideration against disclosure of the disputed information.

Clause 3(g)

This provides, "There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to in the case of the disclosure of personal information about a child - the disclosure of information that it would not be in the best interests of the child to have disclosed."
The respondent decided that this was a strong consideration against disclosure of the disputed information.
The respondent also stated that s 54 of the GIPA Act requires it to consult with those people who responded to the community consultation before releasing their personal information. Thirty one responses qualified for inclusion in the community engagement, of which seventeen submissions were received by email, nine submissions were received via an online survey and five submissions were received by phone. The latter did not have callers' remarks recorded verbatim and the Traffic Engineer summarised the sentiment of each caller's remarks. As those submissions were not in the caller's own words, consultation with those callers was not appropriate.
The respondent stated that it consulted with those individuals who responded by email and via the online survey. Eight responses were received with either consent or objection to the disclosure of personal information and a further two did not return a written consent or objection. There were six objections to the disclosure of personal information and about half of these also objected on the basis of exposure to a risk of potential harm. Eighteen did not actively respond and therefore it was considered that there was no objection to disclosure by twenty persons. However, the PPIPA still applies to that personal information.
The respondent decided that the public interest considerations against disclosure outweighed those in favour of disclosure of the disputed information. It therefore decided to grant access to redacted email and online survey responses for the twenty responses for which objections were not received. It decided that there was an overriding public interest consideration against disclosure of the six responses for which objections were received.
The respondent also decided that there is an overriding public interest against disclosure of the parking and traffic report to DA/2020/0286 (Transport and Traffic Planning Associates' Assessment of Traffic and Parking Implications February 2020).
However, the respondent decided to release additional information to the applicant, namely a synopsis of the data from the fifty-two responses to the community consultation, in which personal information is redacted and shows why some of the submissions did not qualify for inclusion in the assessment by the Traffic Engineer.

Current proceedings

On 29 May 2024, the applicant filed the current application for administrative review with the Tribunal, and he sought a review of the decision dated 17 May 2024 on the following grounds: The requested information has not been provided. I request 52 submissions including duplicates be released. I request 52 addresses be released to validate/respond to the traffic report. I request a Parking survey for 2 Caroline and tube traffic counts of surrounding streets be released.
On 17 June 2024, Senior Member McAteer conducted a case conference, at which the applicant was self-represented and Ms R Dunstan appeared for the respondent. There was no appearance by or on behalf of the Information and Privacy Commissioner. By consent, the Senior Member remitted the matter to the respondent for reconsideration and ordered it to make advise the Tribunal and the applicant by 12 August 2024 whether its decision was affirmed, varied and set aside and if there was a new decision. He ordered the applicant to advise the Tribunal and respondent by 19 August 2024 as to whether the application was continuing or withdrawn. He listed the matter for a further case conference on 19 August 2024.
On 19 August 2024, Senior Member Ziegler conducted a further case conference, at which the applicant was self-represented and Ms Dunstan appeared for the respondent. There was no appearance by or on behalf of the Information and Privacy Commissioner. The Senior Member made orders for the filing and service of evidence and submissions by the parties and she directed the respondent to file material on a confidential basis by 21 October 2024. She also ordered the parties to exchange a list of witnesses who were required for cross-examination and she noted that the applicant and Ms Dunstan had agreed to meet on 1 October 2024, to attempt to resolve the dispute, failing which the matter was listed for hearing on 29 December 2024.
On 21 October 2024, Principal Member Robinson extended the timetable from the second case conference and confirmed the hearing date. On 3 December 2024, she made a further extension to the timetable and confirmed the hearing date.

The hearing

The matter came before me for hearing on 20 December 2024, at which the applicant appeared in person and Ms E Beljic of counsel appeared for the respondent. There was no appearance by or on behalf of the Information and Privacy Commissioner.

Reviewable decision

The parties agreed that the decision under review is that dated 17 May 2024.

Respondent's case

Ms Beljic stated that the respondent relied upon the following documents and evidence: 1. Minutes of the Traffic Committee Meeting dated 9 December 2024 - Marked MFI1; 2. Statement of Prue Foreman dated 28 October 2024 - Exhibit A; 3. Statement of Prue Foreman dated 25 November 2024 - Exhibit B; 4. Statement of Craig Hollands dated 28 October 2024 - Exhibit C; and 5. Written submissions dated 4 November 2024.
I note that document (1) above indicates that the respondent has since decided not to close Jaggers Lane. The applicant initially objected to the respondent relying upon this document, but ultimately he did not press the objection and it was admitted and marked as MFI1.
The applicant did not require Ms Foreman or Mr Hollands to attend for cross-examination and their evidence was admitted without challenge.
Ms Beljic stated that in November/December 2023, the respondent engaged in a public consultation regarding a proposed permanent closure of Jaggers Lane to the left side of 2 Duncan Street, Balmain. This was indicated in a map that is before the Tribunal and properties marked in red were sent letters by the respondent. The respondent subsequently received and considered thirty one submissions, of which 17 were received by email, 9 were received by way of an online survey and five were communication by phone. In all, fifty two people responded and there is a table of responses at page 55 of the respondent's Amended Bundle of Evidence. Certain duplicate responses were excluded., however, the majority of responses supported the closure of Jaggers Lane. The applicant has a personal interest in the lane remaining open.
Ms Beljic stated that that the consultation engagement process that is the subject of the GIPA request has become redundant, as evidenced by the statement of Prue Foreman dated 28 October 2024. Accordingly, the respondent will not use the responses from the previous public engagement process.
The respondent commenced a new community engagement process on 28 October 2024, which was completed on 1 December 2024. And it provided three optional responses. The Traffic Committee ultimately recommended option 2 and this decision was endorsed and has been submitted to Transport for NSW for approval.
Ms Beljic stated that in relation to the disputed information, the respondent relied upon cll 1(d), 1(f), 3(a), 3(b) and 3(f) of the table to s 14(2) of the GIPA Act. However, it did not press its previous reliance on cl 3(e).
I note that there are numerous typographical errors in the respondent's written submissions, which may confuse the reader. These include a reference to cl 1(b) of the table to s 14(2) in circumstances where the correct provision is clearly cl 1(d), and certain case names have been misspelt.
In relation to cl 1(d), the respondent's written submissions press the argument that the responses received from the public were received on a confidential basis and that disclosure of personal information contained in them could reasonably be expected to prejudice the supply of confidential information to the respondent.
The respondent relied upon the decision in Hurst v Wagga Wagga City Council [2011] NSWADT 307 (at [60]), where the Administrative Decisions Tribunal held that "prejudice" means "to cause detriment or disadvantage" or "to impede or derogate from".
The Tribunal must determine whether the information that was provided to the respondent was confidential and this is a question of fact. In Williams v Department of Industry and Investment [2012] NSWADT 192, the Administrative Decisions Tribunal held that the principles that apply to this determination are: 1. The confidential quality of communications is a question of fact; 2. To establish its confidential quality, information must have been supplied under an express or implied pledge of confidentiality; 3. The confidential quality of the information may be inferred from the nature of the relationship between the informer and the person informed; and 4. The confidential quality of the information must be determined in the light of all of the circumstances of the particular case.
In relation to cl 1(f), the respondent relied upon the decision in Director-General, Department of Education & Training v Mullett & Anor (GD) [2002] NSWADTAP 13 (Mullett), in which the Appeal Panel of the Administrative Decisions Tribunal considered cl 13(b)(ii) (which provided that a document is an exempt document if it contains matters the disclosure of which would reasonably be expected to prejudice the future supply of such information to the Government or Agency), and stated, relevantly: 58 In our view cl 13(b)(ii) requires the Tribunal to engage in a relatively abstract analysis. It must ask whether material of the kind sought to be protected on the present occasion would, if released, prejudice the supply of similar material to government in the future, as a matter of reasonable expectation. That requires the Tribunal to characterise the nature of the material sought to be protected on the present occasion; to identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; the extent to which guarantees of confidentiality may be necessary. We agree with the dicta of Young CJ in Ryder v Booth [1985] VR 870 as to how a similar question arising under the Victorian FOI Act's in-confidence exemption (whether disclosure would be reasonably likely to impair the ability of an agency to obtain information communicated in confidence) should be approached. His Honour said at 872: 'The question then is, would disclosure of the information sought impair (i.e. damage) the ability of the [agency] to obtain similar information in future. … It may be noted that it is the ability of the [agency] that must be impaired. The paragraph is not concerned with the question whether the particular doctor whose report is disclosed will give similar information in future but with whether the agency will be able to obtain such information. …'
In relation to cl 1(f), Ms Foreman explained the importance of community consultation in relation to the respondent's work as follows: Community consultation is an essential part of Council's work. As stated in Council's Community Engagement strategy: "Community engagement is the basis for understanding decision, sharing perspectives, improving outcomes and building trust between Council, the community, and other partners. It encourages open dialogue, ensures Council understands community needs and expectations, identifies critical issues and opportunities early and fosters local problem solving."
Ms Foreman also stated that the preservation of personal information through community consultation is imperative to effective participation and the ability of Council to collect information that is necessary to its consultative process. She explained the significance of preserving the confidentiality of personal information as follows: Council takes the protection of personal information very seriously. If Council did not commit to protecting personal information provided through community engagement, it would be difficult for Council to perform its duties. This is because there would be a barrier to participation in community consultation as people would feel reluctant to be able to offer up an honest opinion especially in circumstances where there may be anything contentious or that may divide the community. For example, where there may be conflict between neighbours, it is important that the community are able to provide a private opinion on the impact of a potential decision in order for Council to take that into account. In my view, people would feel quite threatened if their submission, together with their personal information was made public. It has the potential to cause problems in the neighbourhood and people's day to day lives. Ultimately, community consultation aims to build trust between the community and Council and it is very important that Council is able to maintain that trust by protecting the private personal information.
In relation to cl 3(a), the respondent referred to the definition of "personal information" in Sch 4 cl 4 of the GIPA Act, which provides: (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.
Ms Beljic stated that "personal information" includes the names, addresses, phone numbers and email addresses of individuals.
In relation to cl 3(b), the respondent relied upon s 18 of the PPIPA and it noted that s 10 of the PPIPA sets out the requirements for when a public sector agency collects information, including taking reasonable steps to ensure any person is made aware before the information is collected that it is being collected amongst other things.
In relation to cl 3(f), the words "risk of harm" and "risk… of serious harassment" are not defined in the GIPA Act. The respondent referred to the definitions in the Cambridge Dictionary (online), which defines "harassment" as "behaviour that annoys or upsets someone," "behaviour that annoys or troubles someone," "illegal behaviour towards a person that causes mental or emotional suffering, which includes repeated unwanted contacts without a reasonable purpose, insults, threats, touching or offensive language," and "behaviour towards someone that is threatening or annoys or upsets them."
The respondent argued that in the context of the GIPA Act, it has been held that the decision maker must be satisfied that if the information is disclosed, it could reasonably be expected that the disclosure would expose a person to serious harassment. The assessment of the impact of the conduct on the individual concerned is an objective one, although particular circumstances or vulnerabilities relating to that person may be taken into account.
In relation to balancing the public interest, the respondent argued that the public interest against disclosure of the names, email addresses and/or contact details of persons who participated in the public engagement survey outweighs any public interest in the disclosure of that information.
The respondent noted that the applicant stated that he requires the disputed information "to verify the data that Council had collected", which implies that he would seek to initiate unwanted contact with persons who had participated in the survey in order to "verify" the data. In any event, while the purpose of the survey was to inform the respondent's decision making regarding the potential closure of Jaggers Lane, the survey did not inform its decision and Jaggers Lane has not been closed.
On the contrary, the respondent decided that a new community consultation should be undertaken, as a result of a recent decision of the Land and Environment Court. The effect of that decision is that the results of the engagement survey that is the subject of this GIPA request are redundant. Therefore, the public interest in disclosure of that information is "very low".
Accordingly, Ms Beljic argued that there is an overriding public interest against disclosure of the disputed information and that the correct and preferable decision is for the Tribunal to affirm the decision under review.

Applicant's case

The applicant pressed his claim for access to all of the information that was sought in his GIPA request. However, he applicant eventually stated that he is not seeking access to the personal information of those who responded to the community engagement survey that is the subject of his GIPA request.

Confidential hearing

As the respondent lodged unredacted copies of the disputed information with the Tribunal on a confidential basis, it was necessary for the Tribunal to conduct a confidential hearing in relation to that information, in the absence of the applicant, pursuant to s 107 of the GIPA Act.
The Tribunal explained the operation of s 107 to the applicant and advised him that upon completion of the confidential hearing, it would reserve its decision. He was then excused from further attendance and left the hearing room.
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]

Decision reserved

Upon completion of the confidential hearing the Tribunal reserved its decision.

GIPA Act

Section 3(1) states that the object of the Act is to open government information to the public and s 3(2) provides that it is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
Section 5 provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
Section 9 confers on a person making an access application a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information.
Section 12 provides for public interest considerations in favour of disclosure and sets out certain examples.
Sections 13 and 14 provide, , relevantly: 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. 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).
The relevant clauses in the table to s 14(2) have been set out previously in this decision and they are not repeated here.
Section 15 provides principles that apply to a determination as to whether there is an overriding public interest against disclosure of government information: 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.
Section 53 provides: (1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. (2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency. (3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically. (4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures. (5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.
Section 54 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.
Section 55 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. Note : 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. See section 73.
Section 58 governs how GIPA requests are decided and provides, relevantly: (1) An agency decides an access application for government information by- (a) deciding to provide access to the information, or (b) deciding that the information is not held by the agency, or (c) deciding that the information is already available to the applicant (see section 59), or (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or (e) deciding to refuse to deal with the application (see section 60), or (f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact. Note- These decisions are reviewable under Part 5… (3) If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired.
Section 80 sets out decisions that are 'reviewable decisions' under Part 5 of the GIPA Act.
Section 100 provides that a person aggrieved by a 'reviewable decision' under the GIPA Act may apply to the Tribunal for review of that decision.
Section 105(1) provides that the onus on the agency is to establish that its decision is justified.
Section 107 provides: Procedure for dealing with public interest considerations (1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. (2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. (3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of- (a) the public and the applicant, and (b) the applicant's representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.

The Administrative Decisions Review Act 1997 (NSW) (the ADR Act)

Section 63 provides: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act)

Section 64 provides, relevantly: Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders- (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report, including a sound recording or transcript, of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.
Section 107 has been set out previously in this decision.

Consideration

The legal principles are not in dispute. The current proceedings have been commenced pursuant to s 63 of the ADR Act.
I am satisfied that the reviewable decision is that of the respondent dated 17 May 2024.
The time at which the Tribunal is to determine the correct and preferable decision the time that it makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].
In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 (Flack) and Hurst, the Tribunal confirmed that the "public interest test" under s 13 requires agencies to start with the presumption in favour of disclosure of information and: 1. identify the public interest in favour of disclosure (s 12); 2. identify the public interest against disclosure with reference to the items listed in the table in s 14 of the GIPA Act (s 14 Table); and 3. determine whether the balance of the public interest lies in favour of, or against, the disclosure of government information.
Unless there is a conclusive presumption that there is an overriding public interest against disclosure, the Tribunal must attribute the appropriate weight to each relevant consideration for or against disclosure but the balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17].
In this matter, there is no conclusive presumption that there is an overriding public interest against disclosure.
Where the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure, there is an "overriding public interest against disclosure": s13.
While a very broad value judgment is required to be made, it is not to be made in a vacuum and a judgment must be made having regard to the objects of the Act, the general presumption in favour of disclosure of government information and the principles set out in s 15 of the GIPA Act: Transport for NSW v Searle [2018] NSWCATAP 93 at paragraph [104].
Sections 15(a) to (d) operate to promote disclosure of information and the promotion of the object of the GIPA Act, despite any embarrassment to Government or potential misinterpretation. Only section 15(e) identifies a principle that mitigates the pro-disclosure aim of the GIPA Act.
It is only necessary that the considerations in the s 14 Table "could reasonably be expected" to have the effect identified.
The onus is on the agency "to demonstrate with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect": McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 46 per Hayne J at [61]. This calls for an objective test to be made from the point of a view of a "reasonable" administrator: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. This is also to be determined as a question of fact based on real and substantial grounds and not just a "mere risk or chance": Flack (at [41]) and Leech v Sydney Water Corporation [2010] NSWADT 298 at [25] (Leech).
Section 105 of the GIPA Act places the onus on the agency to establish that its decision is justified. The agency is not limited to defending or justifying its decision on the same grounds as the original decision-maker: Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 at [10] (Fisher No 1); Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 at [7] (Meldru).
I conducted a confidential hearing in the applicant's absence as required by s 107 of the GIPA Act.

Public interest considerations in favour of disclosure

I am satisfied that the respondent correctly identified the relevant public interest considerations in favour of disclosure of the disputed information pursuant to s 12(1) of the GIPA Act, including the examples provided in s 12(2).
I am also satisfied that the respondent correctly identified that some of the disputed information is the applicant's personal information.
In Commissioner of Police, NSW Police Force v Barrett (No 2) NSWCATAP 86 at [52], the Appeal Panel found that the weight to be attributed to the first of those considerations will depend on the "functions of the agency to which the access application is directed, and the character of the information".
Based on the evidence before me, including the undisputed evidence of Ms Foreman and Mr Hollands, I am satisfied that the public interest considerations in favour of disclosure of the withheld information should be given moderate weight. However, the fact that the relevant public engagement survey has become redundant reduces the weight to be given to the personal factors of the GIPA request.

Public interest considerations against disclosure

Based on the evidence before me, including the respondent's confidential evidence, I am satisfied that the public interest considerations identified by the respondent have been properly applied to the disputed information and that these considerations should be given significant weight.

Balancing the public interest

In applying s 13 of the GIPA Act, I have adopted the approach discussed in decisions including Flack and Hurst.
For the reasons set out above, I am satisfied that there is an overriding public interest against disclosure of the disputed information, as the public interest considerations in favour of its disclosure are outweighed by those against its disclosure.

Conclusion

Accordingly, I am satisfied that the correct and preferable decision is to affirm the respondent's decision dated 17 May 2024.

Orders

I make the following orders: 1. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication or disclosure of documentation lodged by the respondent with the Tribunal on a confidential basis and the parts of these Reasons marked "NOT FOR PUBLICATION", other than to the respondent (Inner West Council), are prohibited. 2. The respondent's decision dated 17 May 2024 is 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: 04 March 2025

Government Information (Public Information) Act 2009(NSW)

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Judgment (27 paragraphs)

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Legislation Cited (6)

Cases Cited (7)