Taylor v Mid-Coast Council

Jurisdiction

1. The Tribunal has jurisdiction to review the Second Decision under s 100 of the GIPA Act (which provides that a person who is aggrieved by a reviewable decision of an agency may apply to the Tribunal for administrative review under the Administrative Decisions Review Act 1997 (NSW) (ADR Act): ADR Act, ss 9 and 63 read together with s 30 of the Civil and Administrative Tribunal Act 2013 (NSW). The Tribunal is required to determine what is the correct and preferable decision having regard to the material then before it including any relevant factual material and any applicable written or unwritten law: ADR Act, s 63(1). The Tribunal may decide to set aside the decision and make a decision in substitution for decision it set aside: ADR Act, s 63(3)(c). The agency has the burden of establishing to the Tribunal that the decision it made is justified: GIPA Act, s 105.

GIPA Act

1. The object of the GIPA Act is to open government information to the public. This object is to be realised by agencies authorising and encouraging proactive public release of government information (s 3(1)(a)), giving members of the public an enforceable right to access to government information (s 3(1)(b)), and restricting access to government information only when there is an overriding public interest against disclosure (s 3(1)(c)). An "agency" includes "local authority", which relevantly means a council within the meaning of the Local Government Act 1993 (NSW): Sch 4, cl 1.
2. There is a presumption in favour of disclosure of government information unless there is an overriding public interest against such disclosure: s 5. A person who makes an application to access government information has a legally enforceable right to be provided with such access unless there is an overriding public interest against disclosure: s 9.
3. There is a general public interest in favour of the disclosure of government information: s 12. The Note to this section contains examples of public interest considerations in favour of disclosure, including: (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.
4. There is an overriding public interest against disclosure if and only if there are public interest considerations against disclosure which on balance outweigh the public interest considerations in favour of disclosure: s 13. The public interest considerations against disclosure are set out exhaustively in s 14 in a Table, which relevantly includes: 3 Individual rights, judicial processes and natural justice There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects: (a) reveal an individual's personal information,
5. "Personal information" relevantly means information about an individual whose identity is apparent or can reasonably be ascertained from the opinion: s 4(2) and Sch 4, cl 4.
6. 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: s 14(3).
7. A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the principles in s 15 which relevantly include agencies must have regard to any relevant guidelines issued by the Information Commissioner: s 15(b).
8. 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 the information includes personal information about the person, the person may reasonably be expected to have concerns about the disclosure of the information, and 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: s 54(1) and (2)(a).
9. 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 into account specified factors, which are defined as the personal factors of the application, and which relevantly include the applicant's identity and relationship with any other person: s 55(1)(a). 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 cll 2 to 5 (but not cl 1, 6 or 7) of the Table in s 14.
10. An agency may decide an access application for government information by deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information: s 58(d). Notice of an agency's decision to refuse to provide access to information because there is an overriding public interest against disclosure of the information must relevantly state the agency's reasons for its decision, and the findings on any material questions of fact underlying those reasons, together with a reference to the sources of information on which those findings are based: s 61(a) and (b).
11. An agency can delete information from a copy of a record to which access is to be provided in response to an access application (so as to provide access only to the other information that the record contains) where relevantly the agency has decided to refuse to provide access to the deleted information: s 74.
12. The decision of an agency in respect of an access application to refuse to provide access to information is a reviewable decision: s 80(d).
13. A person aggrieved by a reviewable decision of an agency is entitled to have the decision reviewed by the Information Commissioner: s 89(1). On a review of such a decision, the Information Commissioner may make such recommendations to the agency about the decision as the Information Commissioner thinks appropriate: s 92(1).

Guidelines of the Information Commissioner

1. GIPA Guideline 4: Personal Information as a public interest consideration under the GIPA Act dated 5 November 2018 issued by the Information Commissioner relevantly provides: "1.2 Information that can be classed as personal cannot be listed exhaustively. Below are common examples of information that generally falls into the category of personal information for the purposes of the GIPA Act: Common examples of personal information: (NB this is not an exhaustive list) - a person's name; - personal address and contact details, such as email and phone numbers; - information about a person's family life;"

The process for deciding whether to grant access to information

1. The process for deciding whether to grant access to information under the GIPA Act is to identify the factors in favour of granting access; then to identify the public interest factors against such disclosure (being only those items set out in the Table in s 14). Then it is necessary to allocate weight to each of the positive and negative factors. This is followed by a process of balancing the positive and negative elements to reach a decision as to whether access should be granted: Miskelly v Secretary, Department of Education [2019] NSWCATAD 48 at [9].

"could reasonably be expected to …" in the Table in s 14

1. The words "could reasonably be expected to" in the Table in s 14 have been held to require "something which is more than a mere risk or chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived". The public interest considerations against disclosure in cll 1 and 3 of the Table require an objective assessment as to whether the claimed effects could be expected to arise. Ultimately, it is a question of fact as to whether the disclosure of the information in issue could reasonably be expected to have the prescribed effect if disclosed: Flack v Commissioner of Police, NSW Police Force [2011] NSWADT 286 at [41]-[42].

Procedural history

1. On 8 February 2019, the applicant filed administrative review application 2019/00045457 against the respondent.
2. On 27 March 2019, the Tribunal made orders that the application is to be determined "on the papers" on the basis that the statutory declaration is the only information in dispute.

The respondent's evidence

1. The respondent relied upon the following evidence: 1. the "open" Affidavit of Rachael Webb affirmed on 9 April 2019, which relevantly annexes the Second Decision and the redacted Coastplan letter; 2. the "confidential" Affidavit of Rachael Webb affirmed on 9 April 2019, which relevantly annexes the statutory declaration.

The Second Decision

1. Section 4.1 is headed "Public interest considerations in favour of disclosure" and relevantly provides: "I find the following considerations in favour of disclosure are relevant to your application:

• There is a general public interest in favour of the disclosure of government information,
• Disclosure may assist in the Council being held accountable by the public for its decisions.
• Disclosure may reveal the reason(s) for a Council decision and any background or contextual information that informed that decision,"

1. Section 4.2 is headed "Personal factors of the application" and relevantly provides: "I consider there are no personal factors which will impact on the weighting of the public interest test in making this determination."
2. Section 4.3 is headed "Public interest considerations against disclosure" and relevantly provides: "I find the following considerations in favour of disclosure are relevant to your application: • 3(a) Disclosure of the information could reasonably be expected to reveal a person's personal information. Both documents contain personal information relating to the current and former owners of the land. The release of personal information has been objected to by the owner of the information."
3. Section 4.4 is headed "Consultation" and relevantly provides: "Consultation with the Consultant and the owner of the Statutory Declaration was undertaken in relation to this application as mentioned above. Both parties objected to their personal and business information being released. In accordance with section 54(5) of the GIPA Act I must take any objection to disclosure of information that we receive into account in the course of determining whether there is an overriding public interest against disclosure."
4. Section 4.5 is headed "Balancing the public interest test" and relevantly provides: "I have considered the relevant public interest considerations in favour of and against disclosure of the information you requested."

The applicant's evidence

1. The applicant did not provide any evidence to the Tribunal.

The written submissions of the applicant

1. The applicant did not provide any submissions to the Tribunal.

The written submissions of the respondent

1. The solicitors for the respondent in their Submissions dated 10 April 2019, after setting out the relevant provisions of the GIPA Act and the applicable legal principles under the GIPA Act, make the following submissions in support of the refusal of access to the statutory declaration pursuant to cl 3(a) of the Table in s 14: 1. a review of the statutory declaration would reveal that the document "is littered" with information about the individual whose identity would be apparent or could reasonably be ascertained from the information in that document, and accordingly contains a significant amount of personal information; 2. the level of personal information in the document is such that it would not be able to be issued in a redacted form; 3. in regard to the personal factors as set out in s 55(1) of the GIPA Act, while it is understood that the applicant's motive for making the application was to ascertain the reasons why the respondent has made its decision regarding use of land, those reasons are readily ascertainable from a review of the Coastplan letter, and accordingly access to the statutory declaration is not necessary to ascertain that information.

Public interest considerations in favour of disclosure

1. I find that there are public interest considerations in favour of disclosure of the statutory declaration as the information is government information regarding the use of land at Lot 10 DP 1230599. Paragraphs (a) and (b) of the Note to s 12 state relevant public interest considerations in favour of disclosure of the statutory declaration.

Personal factors of the application

1. I am not satisfied that there are any personal factors of the application which should be taken into account in determining whether there is an overriding public interest against disclosure of information.

Public interest considerations against disclosure

1. I find that there is a public interest consideration against disclosure of the statutory declaration to the extent that its release could reasonably be expected to reveal an individual's personal information (s 14, Table, cl 3(a)), namely personal information of the current and former owners of the land.

Third party consultation

1. I am satisfied that the respondent in compliance with s 54(1) and (2)(a) consulted with the maker of the statutory declaration, who refused consent to disclosure of personal information therein.

Balancing the public interest test

1. I am satisfied that the positive factors in favour of granting access should be accorded some weight. However, the negative factors in favour of granting access should be accorded far greater weight, and outweigh the positive factors.

The correct and preferable decision

1. I am satisfied that the correct and preferable decision in relation to the Second Decision is that access to the statutory declaration with personal information redacted should be provided to the applicant. I disagree with the respondent's submission that the level of personal information in the document is such that it would not be able to be issued in a redacted form. On examination, part of the statutory declaration does not reveal any personal information of the maker of the statutory declaration. This part is the second paragraph including the four subparagraphs commencing with bullet points other than the fourth sentence, which should be redacted to read "Pasture improvement works in this area include [reacted words] have included:". This information has in substance already been revealed to the applicant in the redacted Coastplan letter. The rest of the statutory declaration contains personal information and should be redacted.

Decision

1. I set aside the Second Decision and in substitution for the Second Decision decide that the respondent should provide to the applicant access to the statutory declaration with the redactions specified in paragraph 43 above. 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: 23 May 2019