Sternberg v Blue Mountains City Council

NCAT Administrative and Equal Opportunity|2016-12-21|Before: Dr J

REASONS FOR DECISION

These proceedings concern a review of an agency's decision under the Government Information (Public Access) Act 2009 (NSW) ("GIPA Act") to refuse to confirm or deny that information is held by it.
Prior to making the access application the subject of these proceedings, the applicant had already sought from the respondent ("the Council"), under the GIPA Act, information about his property. The Council gave him a copy of a letter of complaint sent to Council about the location of the applicant's letterbox and other matters, but with the name and address of the author of the letter redacted (blacked out). The Council found that there was an overriding public interest against disclosure of this personal information. The Council's decision indicated that this letter had the reference "15/246177" in the Council's electronic record-keeping system.
The applicant then made another GIPA application to the Council, seeking information concerning correspondence from a specified person with the reference 15/246177. If the Council had decided it did not hold the information, this would have communicated to the applicant that the person named in the access application (that is, the person the applicant suspected of being the author of the letter), was not in fact its author. If, on the other hand, it had decided to refuse access to that information or some of it, this would have communicated to the applicant that the person specified in his access application was indeed the author of the letter. Accordingly, the Council decided to refuse to confirm or deny that it held the information.
I have decided to affirm the Council's decision, because there is an overriding public interest against disclosure of information confirming or denying that Council holds the information sought.

Relevant legislative provisions

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).
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)).
An agency may determine an access application by "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" (GIPA Act, s 58(1)(f)).
There is a general public interest in favour of the disclosure of government information (GIPA Act, s 12(1)). 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).
Subsections 14(1) and (2) of the GIPA Act provide: "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."
The Council contends that disclosure of information concerning the identity of the author of the Letter to Council could reasonably be expected to reveal an individual's personal information (GIPA Act, s 14, table, cl 3(a)). The term "reveal" is defined in clause 1 of Schedule 4 to the GIPA Act to mean "to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)".
The personal factors of an application may be taken into account in favour of providing an applicant with information, or in determining whether there is an overriding public interest against disclosure of the information, in accordance with s 55 of the GIPA Act. Those personal factors are (s 55(1)): "(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."
A decision to refuse to confirm or deny that information is held by an agency is a reviewable decision (GIPA Act, s 80(g)).
The applicant is a person aggrieved by the Council's decision who is entitled to apply to the Tribunal: GIPA Act, s 100, Administrative Decisions Review Act 1997 (NSW), s 9, Civil and Administrative Tribunal Act 2013 (NSW), s 30(1). The Tribunal's function is to decide what the correct and preferable decision is having regard to the material before it: Administrative Decisions Review Act, s 63(1).
The burden of establishing that its decision is justified lies on the Council: GIPA Act, s 105(1).

Consideration

The decision under review is to refuse to confirm or deny that information is held by the Council because there is an overriding public interest against disclosure of information confirming or denying that fact (GIPA Act, s 58(1)(f)). The Tribunal has not reviewed many decisions made under s 58(1)(f), so there is relatively little case law on its meaning. However, the provision has been considered by the Appeal Panel.
In Commissioner of Police, NSW Police Force v Barrett [2015] NSWCATAP 68, the Appeal Panel considered a decision made by an agency to refuse to confirm or deny that the agency held information under s 58(1)(f). The decision was made for intelligence reasons. The Appeal Panel noted, at [38], that in s 58(1)(f) the GIPA Act "introduces a public interest against disclosure that goes beyond those listed in the Table to s 14." It also said, at [74], that "[o]ne would expect [a claim under s 58(1)(f)] to be rare." The reason why such a claim should be rare is because the "response 'refuse to confirm or deny' or 'neither confirm nor deny' negates entirely the commitment to transparency that informs freedom of information and right to know legislation" (at [79]). The Appeal Panel identified the "key question" in reviewing a decision made under s 58(1)(f) as being "what is [it] about the case that justifies the exceptional response of choosing to refuse to confirm or deny that documents of the kind sought by the application exist or do not exist" (at [81]).
The Appeal Panel considered further the application of s 58(1)(f) in another decision in the same proceedings the following year, Commissioner of Police, NSW Police Force v Barrett (No 2) [2016] NSWCATAP 86 at [71] to [89]. However, the Appeal Panel in that case did not add anything of significance to the general comments made above.
The Appeal Panel did not elaborate upon its comment that s 58(1)(f) introduces a "public interest against disclosure" going beyond s 14. An implication which may be drawn from this proposition is that it is not necessary, when considering whether there is an overriding public interest against disclosure of information confirming or denying whether the agency holds information, to consider the public interest considerations against disclosure set out in the table to s 14. However, s 13 provides that "there is an overriding public interest against disclosure of government information … if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure." Further, the public interest considerations in Sch 1 and s 14 are the only considerations against disclosure which may be taken into account when determining whether there is an overriding public interest against disclosure of government information (s 14(1) and (2)).
It would seem to follow, from ss 13 and 14 of the Act, that even when considering whether there is an overriding public interest against disclosure of information confirming or denying the fact that information is held by an agency, an agency (and the Tribunal) must take into account only the public interest considerations against disclosure in s 14 (or Sch 1). It may be that the Appeal Panel's comment was intended to refer only to the circumstance that s 58(1)(f) requires an agency to weigh up the public interest in providing access to information about information (as it were), and not merely the public interest in providing access to the primary information (which is normally the concern of s 14).
Another possibility is that the Appeal Panel considered that s 58(1)(f) introduced a different test from that in s 13, because it does not refer in terms to "an overriding public interest against disclosure of government information" (my emphasis), as s 13 does, but rather to "an overriding public interest against disclosure of information confirming or denying" that such government information is held. As "government information" is defined as "information contained in a record held by an agency" (s 4(1)), and it is arguable that information about whether information is held is not information contained in a record, it is possible that ss 13 and 14 do not apply to the question of whether there is an overriding public interest against disclosure of information within s 58(1)(f).
As the decision of the Appeal Panel was not clear on this point, I have assumed that s 58(1)(f) does require the Tribunal to engage in the balancing exercise referred to in s 13, by reference only to the public interest considerations against disclosure referred to in s 14 (except where there is a conclusive presumption of an overriding public interest against disclosure by operation of Sch 1). This appears to be what the legislature intended by the use of the words "an overriding public interest against disclosure of information" in s 58(1)(f), even though the word "government" is omitted. It appears likely that, if the legislature intended to introduce a different test from that referred to in s 13, it would have done so explicitly and with markedly different language. However, in case I am wrong, I have also considered whether there is an overriding public interest against disclosure of the information, on the basis that it is not necessary to conduct the balancing test contemplated by s 13 of the GIPA Act.

Personal factors of the application (GIPA Act, s 55)

The applicant says that he was formerly a barrister and his professional integrity has never been questioned. He says that he is deeply concerned about the allegations made by Mr Neighbour against his wife and him. He states that he has never placed "Do not park here" signs along the edge of his nature strips, as alleged in the Letter to Council. He claims that it is also falsely suggested that he encroached on to the nature strip with the planting of a garden and five trees without Council permission, constructed a driveway without Council permission and placed a letterbox in a position which causes pedestrian to step off the nature strip on to the road to avoid it. He considers that his reputation has been impugned and his standing in the community adversely affected.
The applicant says that the malevolence of Mr Neighbour in the letter to the Council is clear and unequivocal. He submits that, where the letter states "I have a couple of issues with this [redacted]," the redacted word is clearly "neighbour". The applicant says further that, at the time the letter was written, Mr Neighbour was living in a different location due to renovation works on his property, so that the information given to the Council by Mr Neighbour was false (that is, he was not a neighbour at that time and falsely stated that he was).
The Council submits, in reply, that none of these matters are personal factors of the application within s 55(1) of the GIPA Act, with the exception of the applicant's own evidence that he is a former barrister of high integrity. It submits that there is no evidence that the applicant's standing in the local community or reputation has been affected by the letter. The Council also submits that there is no evidence to confirm that Mr Neighbour was, in fact, the author of the letter to Council.
The Council says that the way in which the applicant continues to insist that the Neighbour is the author of the letter to Council without evidence of this, and his insistence that allegations have been made with malevolence, might concern the Tribunal relating to the applicant's motives for seeking the information (within s 55(1)(b)) as a personal factor of the application supporting non-disclosure.

Consideration of personal factors of application

I consider that personal factors in favour of the application include that the applicant is a person of high integrity who has a relationship, as a neighbour, with the person he suspects of having written a letter to Council (GIPA Act, s 55(1)(a), (2)). The withheld information has a bearing upon this relationship, because it would either confirm that it was Mr Neighbour who wrote the letter or reveal that Mr Neighbour did not do so. I also consider that the applicant's motives in making the access application, which include to defend his reputation, constitute a personal factor in favour of the application (GIPA Act, s 55(1)(b), (2)).
The applicant said in oral submissions that, upon confirmation that Neighbour was the author of the Letter to Council, he and his wife would be in a position to make submissions to Council as to why the order to relocate the letterbox should be revoked. He said, further, that upon such confirmation, he wished to ask for an apology from Mr and Mrs Neighbour.
These motives in making the application may also be taken into account as a personal factor of the application. That is, I accept that the applicant's motives in making the application include to be able to put an effective submission to Council about the position of his letterbox and to ask for an apology from Mr and Mrs Neighbour, should his suspicions that one or both of them authored the letter be confirmed.
The personal factors of the application may be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to whether the disclosure of the information concerned could reasonably be expected to have the effect, relevantly, of revealing an individual's personal information (GIPA Act, s 55(3)). In this case, the personal factors of the application are not relevant to whether disclosure of the information concerned would reveal an individual's personal information. In addition, I am not satisfied that the applicant's motives for seeking the information are malicious; he simply wants to know who wrote the letter, partly so that he can respond effectively to Council. Accordingly, I have not taken into account any personal factors of the application as factors against providing access.

Public interest considerations in favour of disclosure

As indicated above, there is a general public interest in favour of the disclosure of government information (GIPA Act, s 12(1)).
The applicant submits, relying upon Fahey v NSW Office of Liquor, Gaming and Racing [2012] NSWADT 181 at [30] and [73], that there is a public interest consideration in disclosing the identity of a complainant who makes false complaints. He says that that the complaint contained in the Letter to Council was not made in good faith. The applicant refers to a published Council document which states that Council will not disclose the name, address or other personal information of members of the community who report, in good faith, information to the Council relating to the actions of others who have acted contrary to laws and regulations.
In support of the applicant's submission that the complaint was not made in good faith, he submits: 1. Council had advised Mr and Mrs Neighbour that neither the applicant's driveway nor the planting of trees on the nature strip contravened any regulations; 2. The placement of the applicant's letterbox complied with Australia Post's requirements, as it was positioned at the junction of the driveway with the road; 3. The applicant and his wife had never placed "Do not park here" signs in front of their property during the Leura Garden Festival, as claimed in the Letter to Council. Rather, the festival organisers placed them there. The claim in the Letter to Council that the author of the letter had seen the applicant or his wife place the signs in front of their property was accordingly a lie; 4. The request in the Letter to Council that the applicant and his wife remove plants on the nature strip and move their letterbox, "consistent with everyone else" was a malicious statement. This was because many other properties on the street had letterboxes and trees on the nature strip, some of which blocked pedestrian access and, contrary to the writer's claim, pedestrians did not have to step on to the road when walking in front of the applicant's property; 5. The Neighbours had a letterbox on the nature reserve and pedestrian thoroughfare was blocked by a garden bed between their property boundary and the roadway.
The applicant's allegations of bad faith depend in part upon his unproven assumption that Mr Neighbour is the author of the Letter to Council. To the extent that he relies upon the observation in the letter that the author saw the applicant and his wife place "do not park here" signs outside the property, it is possible that the author was mistaken as to the identity of the person he saw placing the signs. There is insufficient evidence for the Tribunal to conclude that the author of the letter was lying. The Tribunal accepts the applicant's evidence that the placement of his letterbox complies with Australia Post's requirements. It also accepts photographic evidence that shows there is room for pedestrians to walk next to the plants on the applicant's nature strip. However, there is nothing to suggest that the author's claim that pedestrians do, in fact, step on to the road is not correct or, at the very least, reflects a belief genuinely held.
The Tribunal is not satisfied that the complaint is "false", nor that it was made in bad faith. The applicant accepts that he and his wife have planted trees and plants on the nature strip as alleged and also accepts that their letterbox is located where the author of the letter says it is located. The author of the letter makes a claim concerning the placement of signs which may be incorrect, but this could be due to a mistake. It appears, in any event, that the substance of the complaint is not about the signs but about the location of the plants and letterbox on the nature strip, and about whether the applicant and his wife have council permission for their driveway.
For these reasons, the Tribunal does not consider that, if there is a public interest consideration in favour of disclosing the identity of a complainant who makes false complaints, or makes complaints in bad faith, such a consideration applies in these proceedings.

Consideration

The applicant disputes the Council's decision that there is an overriding public interest against disclosure of information confirming or denying that the information he seeks is held by the Council.
The applicant submits that when he first saw the Letter to Council he immediately identified its author. The applicant relies upon Clarkin v Newcastle City Council [2013] NSWADT 44 at [42] and [43] as authority for the proposition that, if the identity of a person in a record is known, that identity cannot be "revealed" or "disclosed" by the provision of access under the GIPA Act. Thus, he says, the public interest consideration against disclosure of information which could reasonably be expected to reveal personal information, does not apply (see GIPA Act, s 14, table, cl 3(a)). He submits that Council's earlier decision, to redact the name and address of the author of the Letter to Council, was entirely based upon the personal information consideration in cl 3(a) of the table to s 14 of the Act.
The evidence the applicant relies upon to establish that the author of the Letter to Council is Mr Neighbour includes the following: 1. The applicant and Mr Neighbour had, in the past, had considerable differences of opinion and had had "heated disagreements" at neighbourhood plan meetings; 2. Mr and Mrs Neighbour submitted a development application to the Council. The applicant and his wife objected to Mr and Mrs Neighbour removing trees on the street which fronted their development. The Council refused the development application insofar as it related to the removal of mature streetscape plantings and a new driveway. Mr and Mrs Neighbour appealed to the Land and Environment Court which upheld the Council's decision; 3. Mr Neighbour has previously asked the applicant whether he had permission from Council to plant trees on the nature strip; 4. There is a reference in the Letter to Council to particular lots having been refused development consent, one of which belongs to Mr Neighbour; 5. Mr Neighbour is the applicant's next door neighbour and the other next door neighbours he had at the time of the Letter to Council would not have had the knowledge about lot numbers contained in that letter and would not have had an interest in a driveway coming off the applicant's street. The applicant considered that only his next door neighbours were his "neighbours" and was convinced that the redacted word in the first line of the Letter to Council was "neighbour".
I am not satisfied, from the evidence, that the identity of the author of the Letter to Council is known to Mr Sternberg or others, such that the author's identity would not be revealed or disclosed by providing access to this information pursuant to the GIPA Act (see s 14, cl 3(a) and definition of "reveal" in Sch 4, cl 1).
First, there is no evidence that the identity of the author of the Letter to Council has publicly been disclosed (within the definition of "reveal"). Thus, it could reasonably be expected that the author's personal information, being the author's name and address, would be "revealed" by disclosing the information, if providing it to the applicant would, in fact, be disclosing it (see definition of "reveal").
The "essence of disclosure" is "making known to a person information that the person to whom the disclosure is made did not previously know" (Nasr v State of New South Wales [2007] NSWCA 101 at [127]; see also, in the privacy context, JD v New South Wales Medical Board [2008] NSWADT 67, ZR v NSW Department of Education and Training [2009] NSWADT 84 and CYL v YZA [2016] NSWCATAD 314 at [15]). I am not satisfied that the applicant knows the identity of the author of the Letter to Council. The applicant has inferred from a variety of circumstances that the author is Mr Neighbour, or possibly Mrs Neighbour. However, none of the circumstances on which he relies is conclusive.
The circumstances that the applicant and the Neighbours have had a strained relationship and that the applicant objected to the Neighbours' development application do not, of themselves, mean that Mr Neighbour (or his wife) is the author of the Letter to Council. Nor does the circumstance that Mr Neighbour has raised with the applicant the issue of whether he had permission from Council to plant trees on the nature strip lead logically to the conclusion that he is the author.
I am not persuaded by the applicant's evidence and reasoning offered in support of the conclusion that Mr and Mrs Neighbour are the only persons who could have known that Council refused to allow driveways to be constructed to certain lots referred to in the Letter to Council. This is, presumably, publicly available information. Even if it were not, the applicant cannot know to whom his immediate neighbours have communicated this information. His assumption that the neighbours who are tenants would not be interested in the driveway issue is just that, an assumption. Further, his view that the author must be a resident or owner of one of three immediately neighbouring properties depends upon two contestable issues. The first is his guess that the redacted word in the first line of the letter is "neighbour." The second is his understanding that that word must mean "next door neighbour". Even if the first assumption were correct, the word "neighbour" has a broader meaning than he attributes to it.
Finally, the applicant asserted at the hearing that Mr Neighbour cannot type, so Mrs Neighbour probably typed the letter and Mr Neighbour was responsible for its contents. There is no evidence of Mr Neighbour's typing ability and no evidence that Mrs Neighbour could not have written the letter on her own behalf. It follows that, even if, on the evidence, Mr or Mrs Neighbour are the only persons who could have written the letter (a conclusion I do not accept), the applicant cannot be sure which of those two people in fact did write it.
For these reasons, I am satisfied that the provision of access to information concerning the identity of the author of the Letter to Council would constitute a disclosure of that information.
The primary question I am considering upon review of the Council's decision is not, however, whether the Council's decision to redact (deny access to) the name and address of the author of the Letter to Council in response to the applicant's first GIPA application was the correct and preferable decision. It is, rather, whether the Council's decision to refuse to confirm or deny that it holds the information sought in his second application - in effect, information that the Letter to Council was written by Mr Neighbour - is the correct and preferable decision.
There is a public interest consideration against disclosure of information confirming or denying that the information sought is held by the Council, because this is personal information. If the Council were to decide that it did not hold the information sought, it could reasonably be expected that this would reveal Mr Neighbour's personal information, being the information that Mr Neighbour did not write the Letter to Council. If, on the other hand, the Council decided to refuse access to the information sought (thereby confirming that the information is held by it), it could reasonably be expected that this would also reveal Mr Neighbour's personal information, being the information that Mr Neighbour did write the Letter to Council.
The public interest consideration against disclosure of information confirming or denying that the information sought is held by the Council (being that in cl 3(a) of the table to s 14) is to be balanced against the general public interest in favour of the disclosure of government information (s 12) and the personal factors of the application which favour disclosure.
The public interest in protecting the personal information of persons making complaints to the Council is, in my view, to be given a reasonable degree of weight. The protection of such persons' identity encourages them to report issues to the Council which it may be in the public interest to have addressed. If, for example, the placement of a resident's letterbox or plants on a nature strip was in fact endangering pedestrian safety by making pedestrians walk on the street, then it may be in the public interest to encourage reporting of this. Some individuals will only put concerns in writing (or express them at all) if they can be confident that their identity will be protected.
The public interest in disclosure of the information that the information sought is, or is not, held by the Council, is to be given less weight. Further, the personal factors of the application only carry limited weight, in the circumstances. The applicant has been given the substance of the complaint made about his property. This is all that is necessary from a procedural fairness perspective. Although the applicant said he would be able to make additional submissions to Council if it were confirmed that the author of the letter was Mr Neighbour, there is nothing stopping him from making those submissions now, on the basis that such submissions would only be pressed if he were correct about the identity of the author of the letter. The identity of the author is not relevant to whether or not his letterbox is illegally placed, or whether he has permission for the plants on the nature strip. Finally, the evidence at the hearing was that the Council had taken no steps since February 2016 in relation to the applicant's letterbox. There was no basis for his submission that the Council had "ordered" him to move it.
There is no evidence to support the applicant's assertions that his reputation or standing in the community has been adversely affected by the Letter to Council. Some weight is to be given to his desire to know who wrote the letter so that he can request an apology, if appropriate. However, this does not outweigh the public interest in protecting the identity of persons making complaints to local government.
This is, in my view, a case in which the "exceptional response" of refusing to confirm or deny that information is held by the agency is justified (to use the Appeal Panel's language in Barrett). This is because the confirmation or denial of that fact would, of itself, reveal the personal information of Mr Neighbour. It would do this either by revealing that Mr Neighbour is the author of the Letter to Council, or by revealing that Mr Neighbour is not the author of that letter.
Unlike the situation envisaged by the Appeal Panel in Commissioner of Police, NSW Police Force v Barrett [2015] NSWCATAP 68, where a "refuse to confirm or deny" response could negate the commitment to transparency underlying the GIPA Act, in this case such a response upholds the scheme of that Act. This is because any other response would undermine the agency's earlier finding that there was an overriding public interest against disclosure of personal information (being information about the author of the letter). It would thus be inconsistent with the Act's object of "providing that access to government information is restricted only when there is an overriding public interest against disclosure" (Act, s 3(1)(c)) because it would reveal personal information in relation to which there is such an overriding public interest against disclosure.
If it is not necessary to conduct the balancing exercise contemplated by s 13 of the GIPA Act when reviewing a decision made under s 58(1)(f), I would still come to the conclusion that there is an overriding public interest against disclosure of information confirming or denying that the information sought by the applicant is held by the Council. This is because there is a strong public interest in protecting the identity of complainants and, for reasons given above, this is greater than the interest in disclosing whether or not the information sought is held by the Council.

Confidential evidence

The Council adduced confidential evidence. I have not had to have regard to that evidence in coming to my substantive decision. I did, however, have regard to it in making a non-prohibition order at the hearing of this matter, which is reproduced on the cover sheet of this decision.
The confidential evidence includes correspondence from the person with whom the Council consulted about the release of the person's personal information. As the applicant is aware, that person objected to the release of such information.

Orders

For the reasons given above, the Tribunal affirms the respondent's decision. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 03 March 2017

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Judgment (10 paragraphs)

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