Thomas v Auburn City Council

Applicable Legislation

1. The objects of the GIPA Act are as follows: 3 Object of Act (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. (2) 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.
2. The case of Mannix v Department of Education and Communities [2014] NSWCATAD 35 provides a useful outline of the approach under the GIPA Act. At paragraph 5 Senior Member Walker provides the following outline of the provisions: 5. The objects of the GIPA Act as set out in s 3(1) are to advance the system and of responsible and representative democratic government by authorizing and encouraging public release of government information by agencies, giving the public an enforceable right to access to government information and providing that such access is restricted only when there is an overriding public interest against disclosure. 6. The term "government information" is given a wide meaning by s 4, being defined as "information contained in a record held by an agency". "Agency" is also defined in s 4 and includes "(a) a Government Department". It is not disputed that the Department of Education and Communities is such a department and is therefore an agency to which the legislation applies. 7. The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 5. Applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure: s 9. The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the "overriding secrecy laws" set out in schedule 1. In the case of those laws it is conclusively presumed that there is an overriding public interest against disclosure: ss11 and 14. 8. With respect to government information not covered by overriding secrecy laws, the Act establishes a principle that there is a public interest in favour of disclosure: s12(1). The category of public interest considerations in favour of disclosure is not limited: s 12(2). That subsection then sets out several examples of public interest considerations in favour of disclosure. 9. There can be an overriding public interest against disclosure only when the public interest test in s 13 is satisfied. It provides that "There is an overriding public interest against disclosure of the 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". 10In considering whether there is an overriding public interest against disclosure, the tribunal is to be guided by s 15, which provides, relevantly for present purposes, that agencies must exercise their functions so as to promote the objects of the GIPA Act and must have regard to any relevant guidelines issued by the Information Commissioner.
3. Section 14 of the GIPA Act provides the circumstances whereby public interest considerations against disclosure of government information may be applied. Relevant to this application, the Agency relied on the provisions outlined below (being public interest considerations) against disclosure of some of the information. Relevantly section 14 provides (inter alia): 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).

Concessions by the Parties

1. It is important to record that during the pre-hearing timetable for the filing of documents, and the early stages of the hearing, significant concessions were made by the Respondent in respect of waiving any claim to withholding some documents under the GIPA Act. Additionally, on the day of the hearing, the Applicant either established that some of the attachments to the e-mails that he was seeking, were actually publically available documents. (Eg: the legal advice that Council sought from Counsel in respect of the powers of the General Manager), or where it was agreed that the e-mail attachments were not in the public domain, the Applicant was content to waive his previously pressed claim for that data. Further, during the confidential section of the hearing (under section 107 (2) of the GIPA Act), the Respondent identified 3 further e-mail documents that could be put to the Applicant.
2. As outlined above, various concessions were made by both parties in both the volume of data in contention and the grounds relied upon for either withholding or seeking the data. By way of illustration, the Respondent as at November 2014 had refused access to 31 items of information. By the conclusion of the hearing only six of those items remained contentious to the Respondent (either wholly or in part).
3. Further, at the hearing the Applicant waived any requirement for the Respondent to produce attachments to the e-mails unconditionally. The Applicant withdrew its client legal privilege and legal professional privilege claim in respect of the documents. One item was considered (on review) not to be within the scope of the application. Another was considered to be a duplicate document but for a minor time signature relating to the copy being held on a server. In other aspects the Applicant was satisfied with the Respondents general description of the contents of certain documents in open hearing, and on that basis withdrew any claim over such material.
4. Finally, following the confidential hearing the Respondent put a conditional offer to the Applicant in respect of two documents, which (whilst outside of the scope of the GIPA Act and hearing), eventually was accepted by the Applicant.

Respondents Case

1. In respect of those six remaining items, in refusing access to the information, the Respondent relied upon and applied significant weight to the following 'public interest considerations' provision Responsible and effective government 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 (whether in a particular case or generally): (e) reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency.

1. The Agency has applied the provisions of Clause 1 (e) of the Table to section 14 of the GIPA Act (as outlined above), as a public interest consideration against disclosure which (in their assessment) outweighs the general public interest consideration in favour of disclosure as outlined in section 12 of the GIPA Act. These were the sole grounds which were remaining in relation to their decision to refuse to release the six remaining items of information.
2. The principles that apply to the application of the public interest considerations against disclosure (which can be taken into account when assessing whether to override the presumption in favour of disclosure), are set in section 15 of the GIPA Act. That section provides that: 15 Principles that apply to public interest determination A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles: (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
3. An important issue which arises in this application is that at the time that the information was created, the Applicant had knowledge of the information, due to being either the author or recipient of the e-mails.
4. Initially in written submissions the Respondent addressed the issue of sufficiency of reasons in their decisions to refuse access to some of the material. Additionally those early submissions addressed the issues of legal professional privilege and other concerns no longer relevant to the issues remaining in dispute. Additionally the Respondent relied upon an argument that in respect of the documents, there was no specific presumptions in favour of disclosure of those documents.
5. In closed session the Respondent took the Tribunal through the remaining documents. The documents were significantly identical in respect of their core content, being a series of e-mails that showed the development of the content through the e-mail chain, and the individual contribution of recipients via their replies added to the core content. The e-mails could be described as a request for information from the applicant by Councillors in respect of action previously taken in dealing with an issue that required external legal advice, and an issue that was already significantly in the public domain via media reports.
6. The Respondent pressed the point that these communications fell within the criteria outlined at Table (1) (e) to section 14 of the GIPA Act. The Respondent argued that the data showed members of an agency discussing advice or giving advice in respect of a legal process.
7. The Respondent argued that the provision should not be construed narrowly in that the reference to (1) (e) needed to be read in conjunction with 1 (f) 'prejudice the effective exercise by an agency of the agency's functions' (emphasis added). They submitted that in respect of an Agency's functions, if the term 'functions' was given a narrow construction, then it could not have any real practical application. As a preliminary finding, in my view, a deliberative process of government or an agency, if lawful, is clearly a function of the agency.
8. The Respondent further submitted that the GIPA Act is directed to the public interest in promoting and protecting public interest issues in respect of Government operation, not a 'private' interest, such as the Applicant's interest in seeking the documents. Reference was made to the case of JY v Commissioner for Police, NSW Police [2008] NSWADT 306 . The Respondent illustrated their point by reference to paragraph 55 of that case. 55 In my opinion a consideration of these authorities points to the conclusion that a private interest may coincide with or equate to a public interest in disclosure, but it is the public interest, not the private interest, which is to be considered when balancing the competing interests in disclosure. That public interest in disclosure must be identified. The private interest may, as it does here, graphically illustrate the public interest, but it does not constitute it.
9. In this respect the Respondent's submissions referred back to the provisions of Clause (1) (e) to Table 1, and that to prejudice a deliberative function of the agency, was in effect to stifle the public interest. The concern with this approach relates to the terms 'reveal' and 'deliberative process'. The Respondent's submission was that this provision should be interpreted in respect of past consultations, advices, or deliberations, but that the prejudice could attach to a present or future process.

Applicants Case

1. The Applicant, in response to both written submissions, and submissions in the open hearing submitted that the grounds relied on from Table 1 Clause (1) (e) related only to an active or live deliberation process.
2. The Applicant submitted that the matter in question was finalised in March 2013, and the nature and outcomes of the deliberations were published in Council's business papers and meeting minutes on Council's website.
3. The Applicant made detailed submissions on a number of other provisions of the GIPA Act, but as those matters do not need to be canvassed here as those documents to which those submissions related were either conceded by the Respondent or withdrawn by the Applicant.
4. In addition section 54 of the GIPA Act provides the following relevant provisions in respect of consultation. 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. ………… (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. (Emphasis added 2 (a))
5. Whilst some of these considerations were initially relevant, as the parties had in effect narrowed the scope of the information in dispute, these considerations and processes were of much less relevance to the determination of the matter. In effect, the significant volume of personal information in the contested documents was that of the Applicant himself.

Consideration

1. Whilst an Agency is not entitled to place conditions in the use of any information, when determining an access application an Agency is entitled to take into account any relevant personal factors of the Applicant. 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 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.
2. I note that under section 55 (3) (above), no personal factors of the Applicant can be taken into account as factors against providing access, due to the Respondent's reliance on Clause 1 (d) and (e).

Public Interest Considerations in Favour of Disclosure

1. Section 12 of the GIPA Act sets out the application of this aspect of the legislation, and the Note to the section provides some (non-exhaustive) examples of public interest considerations in favour of disclosure.
2. Section 12 (1) states that there is a general public interest in favour of the disclosure of government information. Whilst the Respondent submits that significant weight should be given to the nominated public interest considerations against disclosure, and that provisions within those considerations should not be given a narrow construction, the Applicant submits that the public interest in disclosing this information to him is not insignificant.
3. As outlined above, the six e-mails contain significantly information authored by the Applicant. Then schedule to the GIPA Act provides interpretive provisions. At Schedule 4 the term 'reveal information' is defined to mean: to disclose information that has not already been publically disclosed (otherwise than by unlawful disclosure).
4. It is clear that the information has been disclosed to the Applicant previously either as author of sole / joint recipient. It is also clear that these 'disclosures' occurred in the course of the Applicant's official functions as the former Director of Business and Finance with Auburn City Council. But there is no evidence that the details of the material have been made publically available at any time.
5. However, the import of the process, i.e.: the resolution in respect of the General Manager, either has (or should) be made public. This provision lies in Clause 253 of the Local Government (General) Regulation 2005. The clause provides that any resolution passed in a closed session of council must be made public as soon as practicable after the meeting has ended or that (confidential) part of the meeting has concluded.
6. In my view significant weight attaches to the release of substantial parts of the withheld information. The outcome of the process which the information refers to has already been placed in the public domain, both by the media and by the operation of the provision of the Local Government (General) Regulation 2005. Nothing which could prejudice a deliberative process could (in my view) arise from a disclosure of significant aspects of the information.
7. In respect of the data, a series of propositions were put to an officer about the process that Council had engaged in. The answers arose from either a review of the record (and appropriate reporting back), or an analysis of the question requiring consultation with various Council polices and other documents which were all available as open access information in the public domain. Nothing in the material on my assessment amounts to client legal privilege or can be cast in some other way as legal professional privilege, thereby invoking the provisions of Schedule 1 of the GIPA Act.
8. When turning to the Note to section 12 (2) (a) of the GIPA Act, in my view significant weight should attach to the fact that: The 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.

Does the disclosure of the information give rise to a situation whereby it would reveal a deliberation or consultation conducted or an opinion given in such a way as to prejudice a deliberative process of government or an agency.

1. When weighing this aspect up against the grounds relied upon by the Respondent, I find that the submissions (when one has regard to the content of the data), do not reveal or otherwise disclose any particular process, other than seeking information to inform an individual as to how they should best decide a particular matter. No evidence or submissions have been put forth as to how the process either was or might be prejudiced. Similarly, any suggestion that it could (on the material in this case) have a general impact on other deliberative processes in a prejudicial manner, has simply not been made out.
2. The import of the information (as evidenced by the content of the information) was already in the public domain (through other sources) at the time the information was generated.
3. Noting the 'public interest' / 'private interest' fall-back position at paragraph 28 (above), in my view, in respect of the data in contention in this matter, the provisions are complimentary. Whilst it is possible that the Applicant has a private and sole interest in obtaining the data, and the use that he may put it to in the future, nothing before me (when one has regard to the content of the data) in my view identifies a lack of public interest, such as to be outweighed by a private interest. In my view, the public interest consideration outlined at paragraph 44 (above) clearly is the greater of the submitted 'competing interests'. Whilst a public interest [provision, this goes directly to the Applicant's case.
4. On my assessment, the overriding public interest in favour of disclosure, is not outweighed by the relevant public interest consideration against disclosure. The information is predominantly in the public domain (albeit in different form), the information is significantly the personal information of the Applicant, and having regard to the information, the weight that attaches to the information under clause (1) (e) of section 14, is much less than the general public interest consideration in favour of disclosure generally (and by way of the example from Note (a) to section 12 (2) of the GIPA act.
5. However, a small portion of the material should be withheld because in my view, it shows a finding about an individual that is not determinative solely on the facts referred to in that material. The relevant material being the answer to Question 10, as and where it appears in the relevant e-mails. In my view this information falls within Clause 3 (d) of the Table to section 14 of the GIPA Act. In my view, the release of the information could reasonably be expected to: (d) prejudice the fair trial of any person, the impartial adjudication of any case or a person's right to procedural fairness (Emphasis added).
6. I believe that significant weight should attach to the provision outlined above, so as to limit the disclosure of that information (the answer to question 10). Such weight would override the general presumption in favour of disclosure.
7. In addition I note that no consultation on that (Q 10 data) has occurred in accordance with the provisions outlined at paragraph 33 (above). This situation in my view adds further weight to the public interest consideration against disclosure that can be taken into account in respect of the (Q) 10 data.

Conclusion

1. It follows that under section 63 of the Administrative Decisions Review Act 1997 the correct and preferable decision is to set aside the decision of the agency, and make the following decision.
2. The Respondent is to provide the Applicant with the information in the following documents (redacted as noted). 1. Document 92 in its entirety 2. Document 146 (with the answer to Question 10 redacted) 3. Document 148 in its entirety 4. Document 213 (with the answer to question 10 redacted) 5. Document 258 (with the answer to question 10 redacted) 6. Document 272 in its entirety 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: 16 February 2015