Walker v Northern Beaches Council

Walker v Northern Beaches Council - [2021] NSWCATAD 251 - NSWCATAD 2020 case summary — Zoe

[7]

NCAT Proceedings-Applicant Seeking Leave to Make GIPA Applications

In late 2015, the applicant filed proceedings in the Tribunal seeking leave to make two applications for access to information from the respondent under the GIPA Act.
The first GIPA application involved a decision by the respondent in a letter of 15 December 2015.
The applicant had made a written complaint to the respondent dated 4 December 2015 about the alleged behaviour of Mr Lawrence at a Council meeting. Mr Lawrence had, according to the applicant, "failed to restrain" the Chief Planner of the respondent from making a "personal attack" on the applicant.
On 15 December 2015 Mr Ferguson of the respondent wrote to the applicant stating that he had spoken to two staff members of the respondent who were present at the meeting, and had decided to take no action because the complaint was "trivial, frivolous, vexatious and without substance".
The applicant sought: All documentation regarding formal complaint 4 December 2015 resulting in a decision of no action as per letter of 15 December (attached).
The second GIPA application for which the applicant sought leave was in respect of the respondent's letter of 14 December 2015 in which the respondent "banned" the applicant from "attending every Council workplace and meeting venue" due to the 8 identified "inappropriate behaviours".
The applicant sought: All documents regarding "further restrictions" (letter 14 December attached) including the eight (8) alleged behaviours and the notification to the local Police and Ombudsman's office.
On 27 April 2016 in Walker v Pittwater Council [2016] NSWCATAD 78 the Tribunal granted the applicant leave to make access for information applications to the respondent in respect of the following categories of information: 1. All documentation regarding formal complaint of 4 December 2015 resulting in a decision of no action as per letter of 15 December (attached). 2. All documents regarding "further restrictions" (letter 14 December attached) including the eight (8) alleged behaviours and the notification to the local Police and the Ombudsman's office.
The reasons of the Tribunal relevantly stated: The Council did not address the merits of substance of the application in its written submissions except to state that Mr Walker is "attempting to circumvent the due diligence processes of Council by using the GIPA Act…as a form of review of the complaint issues decided by Pittwater Council". Instead, the Council focussed on the number of applications Mr Walker has made (78 since 2006) and the effect of his applications on "the extremely limited resources of a small outer-metropolitan local government council." Since the making of the restraint order in March 2015, Mr Walker has applied for a further nine applications to be approved. For the reasons which I have given, whether or not the applications are vexatious is irrelevant. Unreasonable interference with the agency's operations is not a restriction that the GIPA Act places on the making of an application. That restriction only applies to the form of access: GIPA Act s 72. One matter which the Council did not raise directly but is potentially relevant is that dealing with the application would require an unreasonable and substantial diversion of the agency's resources. That is one of the grounds on which the Council may refuse to deal with an access application: GIPA Act s 60 (1) (a). Despite the number of applications Mr Walker has made it is not apparent from the applications themselves that they would have that effect nor did Council provide any evidence in support of that submission. Subject to certain qualifications and restrictions, Mr Walker has an enforceable right to access government information. On the basis of the applications themselves and the parties' submissions, none of these qualifications or restrictions apply to the applications Mr Walker has sought to make.
The applicant made a further application to the Tribunal to be granted leave to make a GIPA application upon the respondent. That application involved "compliance monitoring" by the respondent on a business located at Warriewood NSW.
The applicant was granted leave to make such an application by the Tribunal in Walker v Northern Beaches Council [2016] NSWCATAD 161. Review of the decision arising from that application is not the subject of review in these proceedings.

[9]

The Current GIPA Application for Review

On 6 February 2019, the Tribunal made a consent order that the applicant be granted leave to make an access application to the respondent for the following categories of information: 1. All electronically stored information (including information concerning costs) but excluding information falling within cl 5 (1) of schedule 1 of the Act (sic) regarding the banning of Phil Walker by Pittwater Council form Council Meetings and Buildings. 2. All electronically stored information (including information concerning costs) but excluding information falling within cl 5 (1) of schedule 1 of the Act (sic) relevant to the respondent's decision to commence the s 110 application under the Act in File No 1410548 (sic).
Clause 5 (1) of Schedule 1 of the GIPA Act states as follows: 5 Legal professional privilege It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege. …
On 26 March 2019, the respondent determined the access application. Written reasons were provided for the decision. Nine documents were produced to the applicant.
Of those documents, 8 documents were produced in full, and one document (being a "confidential memorandum" from an employee of the respondent to Mr Lawrence) was produced in a heavily redacted form.
The basis of the redaction by the respondent (and concomitantly a denial of the applicant access to that information) was that there was an overriding public interest against disclosure of the information (s 58 (1) (d) of the GIPA Act).
On 29 January 2020, the applicant emailed the respondent stating he had received the notice of decision, but not the documents attached to the notice of decision. The respondent subsequently emailed and sent by registered post copies of the said documents.
On 27 February 2020, the applicant filed proceedings in the Tribunal seeking review of the respondent's decision of 26 March 2019.
At a Case Conference at the Tribunal on 7 April 2020, the Tribunal relevantly made orders as follows: 1. The respondent is to conduct a review of the documents uncovered in response to part (a) of the access application (complaints about the applicant's alleged behaviour) having regard to the respondent's own reference to their being "a substantial number of documents retrieved which relate to your request" as set out on page 1 of their (sic) correspondence dated 18 July 2016. That reference is in contrast to current searches identifying 3 pages only under item (a) being the redacted memorandum listed as Document 1 in the decision. 2. The review in accordance with order (1) is to be completed and any supplementary decision (and any documents identified for release) is to be completed and filed and served on or before 8 May 2020. 3. The time for Phil Walker to lodge the application is extended to 27 February 2020.

[10]

Respondent's Notice of Decision Dated 11 May 2020

On 11 May 2020 the respondent made a Supplementary Notice of Decision with written reasons provided.
That decision did not change the earlier decision to produce 9 documents to the applicant, with Document 1 (the 'confidential memorandum' to Mr Lawrence) remaining heavily redacted.
However, a further 14 documents were released to applicant. 13 of those documents were released in full. One document (identified as document 14) was released with redactions.
Document 14 was an email dated 8 December 2015 between officers of the respondent that referred to an alleged "threat" by the applicant to a member of the respondent's staff. The name of the staff member who reported the conduct was redacted.
The basis of the redaction given by the respondent was that there was an overriding public interest against disclosure of the information (s 58 (1) (d) of the GIPA Act).
The supplementary decision also referred to the 2016 GIPA application by the applicant.
The supplementary decision reasons stated that the respondent had provided information in respect of "the notification to the local police and the Ombudsman's Office" but had refused to deal with part of the 2016 GIPA Application on the basis that the volume of information sought was "an unreasonable and substantial diversion of Council's resources".
The supplementary decision referred to the respondent's letter of 18 July 2016 which relevantly stated: In this case, that part of your application which requests the information for "all documentation regarding "further restrictions" (letter 14 December) including the eight (8) alleged behaviours would encompass the scope of provided the records for all matters you have brought to Council over may years. This is because the ban from Council which has been imposed on you takes in account (sic) the cumulative effect of your ongoing behaviours and actions and therefore the scope of this requirement encompasses such a high volume of work to collect, collate, and assess that is well beyond the available resources of Northern Beaches Council.
The supplementary decision stated that no NCAT review was sought of the 18 July 2016 decision, and the respondent had: …approached the Current Access Application as not being concerned with the documents sought in the 2016 Access Application. If it is considered that he scope of the 2016 Access Application is identical to the scope of the Current Access Application it would have been (and is) open to the Council to refuse access to the information sought, pursuant to s 60 (1) (b) of the GIPA Act on the basis that Council has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant and there are no reasonable ground for believing that the agency would make a different decision on the application. Council could also have opposed NCAT allowing Mr Walker to make the Current Access Application under section 110 of the GIPA Act rather than consenting to it.

[13]

Respondent

The respondent's evidence in the public hearing comprised of affidavits of Mr Cameron Peters dated 24 June 2020 and 4 August 2020. Mr Peters is the Access to Information-Team Leader of the respondent.
The respondent also filed and served a written outline of submissions dated 12 August 2020.
The affidavit of Mr Peters dated 24 June 2020 sets out at paragraphs [30]-[31] the searches conducted in respect of the Supplementary Decision. Mr Peters deposes that he searched the respondent's electronic databases for the period from 29 December 2014 and 14 December 2015, and sets out the keywords he used in respect of the searches (12 different keywords were identified).
Mr Peters also deposed that he reviewed "the history of the applicant's many matters" and consulted with "third parties where personal information was contained in documents".
After such searches, Mr Peters identified the further 14 documents that were produced (in whole or part) to the applicant in the Supplementary Decision.
At paragraphs [34]-[36] of his affidavit dated 24 June 2020, Mr Peters sets out his reasoning process for producing a redacted version of Documents 1 and 14. Mr Peters sets out how he weighed public interest considerations in favour of producing the documents in an unredacted form with the public interest considerations against producing the documents in an unredacted form.
At paragraphs [38]-[53] of the affidavit dated 24 June 2020, Mr Peters identifies searches he performed in late May and early June 2020 using the respondent's information systems using 9 search keywords, 8 of which included the name of the applicant and one included the name of Mr Lawrence. The searches were not limited by any date or time period.
Mr Peters states that the search results identified a total of 2461 records. Mr Peters stated that it took "cumulatively 2.5 days to locate the documents" and that he had not read the documents "for duplication, legal privilege, relevance or even if it relates to the applicant and not another person with a similar name" because: "… To undertake such a review would be onerous, unreasonable and a substantial diversion of Council resources. I estimate, from my experience in reviewing such documents and records, to review the records and information would take at least 5 full days totally devoted to that task, that is, at least 38 hours. This does not include the time involved in consultation, decision making and copying, collating and printing any records. This will take, I estimate another 5 full days totally devoted to the task, that is at least 38 hours. Applying the cots provided in s 64 of the GIPA Act the cost of the 76 hours would be $2,280. I estimate that the time I have already spent in conducting the searches to date, in both 2019 and 2020, and in consultation, decision making and copying, collating and printing any records and preparing the Notices of Decision to be at least 8 cumulative days in full. Notwithstanding 2461 records identified through the broad searches, I am confident from the targeted searches that I undertook in making the 2019 Decision and the Supplementary Decision that all relevant documents within the date range (29 December 2014 to 14 December 2015) pertaining to the applicant's banning from Pittwater Council have been supplied to him through the original 2019 Decision and the Supplementary Decision."
Mr Peters states at paragraphs [49[-[53] that the 2016 Access Application (i.e. the application that the applicant was granted leave to make pursuant to the decision in Walker v Pittwater Council [2016] NSWCATAD 78) was determined on 18 July 2016 by producing information in respect of the notification to the Police and Ombudsman's Office, but refusing to deal with the application for documents "regarding further restrictions" under s 60 (1) (a) of the GIPA Act on the basis that dealing with the remainder of the application would require an unreasonable and substantial diversion of resources, as set out in the decision of 18 July 2016.
Further, Mr Peters states that the applicant had not sought review of the decision of 18 July 2016, and that if the scope of the 2019 application was considered as involving the same scope of the 2016 Access Application, then it may be refused under s 60 (1) (b) of the GIPA Act on the basis that the information sought is substantially the same, and there are no reasonable grounds for believing the respondent would make a different decision.

[15]

WHAT IS THE SCOPE OF THE ACCESS APPICATION UNDER REVIEW?

There appears to be significant overlap between the applicant's GIPA application the subject of the decision of the respondent dated 18 July 2016 (which was not the subject of an application for review) and the GIPA application for which the respondent was granted leave by the Tribunal to make on 6 February 2019, which led ultimately to the decision of the respondent on 11 May 2020.
The Tribunal is satisfied that the scope of the access application under review is in respect of paragraph (a) of the 2019 orders, being all "electronically stored information" (but excluding information the subject of legal professional privilege) regarding the "banning" of the applicant from Council Meetings and Buildings".
The Tribunal accepts the submission of the respondent that the 2019 access application is for all electronically held information regarding the banning of the applicant from the respondent's Council meetings and buildings being all information regarding the decision of the respondent expressed in its letter of 14 December 2015 (which involved "further restrictions being imposed on the applicant since restrictions imposed in December 2014). The relevant "further restrictions" involved banning the applicant from attending the respondent's Council meetings and buildings.
The decision to "ban" the applicant was due to further conduct after December 2014, not due to all conduct of the applicant.
The 2016 application was in respect of information pertaining to "all conduct" of the applicant. Thus, the scope of the 2016 application was significantly broader than the scope of the 2019 application that is the subject of this review.
The Tribunal also accepts the submission of the respondent that the 2019 application the subject of this review is not a review of the decision of the respondent dated 18 July 2016 because the applicant has not sought a review of such a decision, and if it were considered such a review, then the correct and preferable decision would be that the respondent may refuse to deal with such an application on the basis that the respondent has already decided a previous application for the information concerned (or information that is substantially the same as that information) and there are no reasonable grounds for believing the agency would make a different decision on the application under Section 60 (1) (b) of the GIPA Act.
The affidavit of Mr Peters dated 24 June 2020 contains the decision of 18 July 2016 and the reasons why, if that decision was to be made again, the production of over 2400 documents would involve an unreasonable and substantial diversion of the agency's resources. There are no reasonable grounds for believing the respondent would make a different decision to the decision of 18 July 2016.

[17]

STATUTORY FRAMEWORK FOR REVIEW-GENERAL PRINCIPLES AND ADEQUACY OF SEARCHES

The objects of the GIPA Act are set out in s 3 (1) as being to open government information to the public, in order to maintain and advance a system of government that is open, accountable, fair and effective. That is done by: 3 Object of Act … (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. …
Pursuant to s 3 (2) of the GIPA Act, the Act is to be interpreted and applied so as to further the objects of the Act; and discretions are to be exercised, as far as possible, to facilitate and encourage promptly and at the lowest reasonable cost, access to government information.
Section 5 of the GIPA Act 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 (1) of the GIPA Act provides that a person who makes an application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 of the GIPA Act unless there is an overriding public interest against disclosure.
Later in the decision, the applicable principles to weighing public interest considerations in favour of disclosure against public interest considerations against disclosure will be discussed.
Section 58 of the GIPA Act sets out the manner in which an agency decides an application for government information.
The decision of the respondent to refuse access is a reviewable decision under s 80 (d) (e) and (f) of the GIPA Act. The Tribunal has jurisdiction to conduct the review by reason of s 7, 8, and 9 of the Administrative Decisions Review Act 1997 (NSW) ('the ADR Act').
The Tribunal's function on review is to decide the correct and preferable decision, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law (s 63 (1) ADR Act). In deciding what is the correct and preferable decision, the Tribunal stands in the shoes of the decision maker and remakes the decision, as if it were the administrator (s 63 (2) of the ADR Act).
In conducting a review, the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any material before it at the time of the review (Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179). The time at which the Tribunal is to determine the correct and preferable decision is at the time the Tribunal makes its decision (YG and GG v Minister for Community Services [2002] NSWCA 247 at [55]; Shi v Migration Agents Registration Authority [2008] HCA 31; Betzis v Commissioner of Police [2020] NSWCATAD 71 at [24]).
In opposing release of information under the GIPA Act, a respondent may raise, and the Tribunal may consider, grounds other than those relied upon by the original decision maker (Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Director General, Premier's Department [2002] NSWADT 277; Danis v Commissioner of Police, NSW Police Force [2020] NSWCATAD 138 at [33]).
In respect of the burden of establishing that a decision is justified, s 105 of the GIPA Act states: 105 Onus on agency to justify decisions (1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section. (2) If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review. (3) If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review. (4) If the review is of a decision to include information in a disclosure log despite an objection by the applicant for review, the burden of establishing whether the objection outweighs the general public interest to have the information included lies with the applicant for review.
Section 53 of the GIPA Act states: 53 Searches for information held by agency (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.
In respect of whether searches are adequate under s 53 of the GIPA Act, the Appeal Panel stated in Wojciechowska v Commissioner for Police [2020] NSWCATAP 173 at [42]- [44]: 42. The role of the Tribunal in reviewing an "information not held" decision (ss 58(1) (b), 80(e)) is "to decide what the correct and preferable decision is having regard to the material then before it": s 100(1) of the GIPA Act and s 63(1) of the Administrative Decisions Review Act. The "burden of establishing that the decision is justified lies on the agency": s 105(1) of the GIPA Act. In summary, the burden is on the agency to prove that the decision that the government information applied for is not held by the agency, is the correct and preferable decision. 43. In the context of a decision made under s 58(1)(b) of the GIPA Act, the issues of fact which an agency must establish on the balance of probabilities, will depend on the reasons given by the agency that it does not hold the requested information. If the stated reason is that the agency has searched for the information but is unable to find the requested information, a factual issue will be whether the agency has undertaken "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": s 53(2) of the GIPA Act. A further relevant issue may be whether material has emerged since the search was undertaken which suggests that the requested information exits and is held by the agency. Other relevant factual issues may include whether any search for information would require an unreasonable and substantial diversion of the agency's resources: s 53(5) of the GIPA Act. 44. In summary, the task for the Tribunal when reviewing a decision that the requested information is not held by the agency, is to: (1) identify on the basis of the agency's reasons and the applicant's submissions, any relevant factual issues including those derived from s 53(1) - (5); (2) determine whether the agency has proved any relevant factual issues on the balance of probabilities; (3) consider any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency; (4) applying those findings, decide what the correct or preferable decision is; (5) affirm, set aside or vary the agency's decision: s 63(3) of the Administrative Decisions Review Act.
It is a question of fact as to whether the searches of the respondent that were undertaken were reasonable and adequate. It is also a question of fact whether further searches are likely or unlikely to locate the information sought that is responsive to the GIPA application (Thomson v Commissioner of Police [2021] NSWCATAD 53 at [57]-[58]).

[18]

Did the Respondent Conduct Reasonable Searches?

The affidavit of Mr Peters dated 24 June 2020 at paragraphs [38]-[44] sets out the information systems of the respondent (at [38]). There is no evidence to indicate that there are other information systems of the respondent available to locate information that is held electronically that were not searched by Mr Peters.
At paragraphs [30-[32] and [40]-[44] of his affidavit dated 24 June 2020, Mr Peters sets out the results of searches using keywords involving the name of the applicant and Mr Lawrence that were not limited by any date or time period. As discussed previously, that search located 2461 documents.
However, Mr Peters sets out at paragraph [44] of his affidavit dated 24 June 2020 that when he performed searches using the identified keywords for the period 29 December 2014 to 14 December 2015, that such "target searches" produced the 14 documents identified and produced (in whole or part) in the decision of 11 May 2020. Mr Peters states that he is "confident from the targeted searches that I undertook…that all relevant documents within the date range (29 December 2014 to 14 December 2015) pertaining to the Applicant's banning form the then Pittwater Council have been supplied to him through the original 2019 Decision and the Supplementary Decision".
Mr Peters was not cross-examined about the information systems of the respondent or whether he had conducted adequate searches of those information systems. Accordingly, the evidence of Mr Peters and the searches performed was not contested and is given significant weight.
Although there are clearly a large number of documents held electronically by the respondent that involve the applicant, the scope of the GIPA application the subject of this review was for all electronically held information relating to the decision of the respondent to impose further restrictions on the applicant by way of banning him from Council meetings and buildings.
Accordingly, in respect of the adequacy of searches performed, the temporal period is between no greater than 29 December 2014 (when the first restrictions were imposed) and 14 December 2015 (when the further restrictions were imposed), not all information held by the respondent regarding the applicant for an indeterminate period.
As discussed previously, the evidence of Mr Peters is that his "targeted search" produced all information in the period from 29 December 2014 to 14 December 2015 that led to the decision of the respondent to impose upon the applicant the "further restrictions" of being banned from attending Council meetings and premises, in addition to the restrictions imposed in December 2014.
The Tribunal must consider whether further reasonable searches of the respondent would be likely or unlikely to locate any further information sought that is responsive to the GIPA application.
In the context of this matter, what that equates to is whether, of the 2461 documents of the respondent that refer to the applicant (as set out at paragraph [40] of the affidavit of Mr Peters dated 24 June 2020) further reasonable searches would likely produce information in addition to the 14 documents produced to the applicant that arose from the "targeted search" of Mr Peters for the period between 29 December 2014 and 14 December 2015.
The Tribunal is satisfied on the evidence of Mr Peters that such further searches are unlikely to locate any further information sought that is responsive to the information sought in the GIPA application under review. The Tribunal is also satisfied on the evidence of Mr Peters that the searches conducted were reasonable in accordance with s 53 of the GIPA Act.
Additionally, if a further search involved analysis of all of the 2461 documents that involve the applicant to ascertain whether or not they fell within the period between 29 December 2014 and 14 December 2015 and whether or not the information "regarded" the decision of the respondent to ban the applicant from Council meetings and Council buildings, the Tribunal is satisfied on the basis of the evidence set out in paragraph [42] of Mr Peters dated 24 June 2020 that such a further search would require an unreasonable and unnecessary diversion of the respondent's resources under s 53 (5) of the GIPA Act.

[19]

SHOULD THE RESPONDENT HAVE PROVIDED A LIST OF DOCUMENTS?

In his oral and written submissions, the applicant submits that the respondent should have provided a "list" or a "log" of the information held by it, and the production of such a list would not involve an unreasonable and unnecessary diversion of the respondent's resources.
It appears from the applicant's submissions that what he is referring to is a list identifying all of the 2461 documents referring to him held by the respondent, rather than a list of documents in the period from December 2014 to December 2015.
Section 72 of the GIPA Act states: 72 Forms of access (1) Access to government information in response to an access application may be provided in any of the following ways - (a) by providing a reasonable opportunity to inspect a record containing the information, (b) by providing a copy of a record containing the information, (c) by providing access to a record containing the information, together with such facilities as may be necessary to enable the information to be read, viewed or listened to (as appropriate to the kind of record concerned), (d) by providing a written transcript of the information in the case of information recorded in an audio record or recorded in shorthand or other encoded format. (2) The agency must provide access in the way requested by the applicant unless - (a) to do so would interfere unreasonably with the operations of the agency or would result in the agency incurring unreasonable additional costs, or (b) to do so would be detrimental to the proper preservation of the record, or (c) to do so would involve an infringement of copyright, or (d) there is an overriding public interest against disclosure of the information in the way requested by the applicant. Note - Decisions about how to provide access are reviewable under Part 5.
Section 75 of the GIPA Act states: 75 Providing access by creating new record (1) An agency is not prevented from providing access in response to an access application to government information held by the agency by making and providing access to a new record of that information. (2) An agency's obligation to provide access to government information in response to an access application does not require the agency to do any of the following - (a) make a new record of information held by the agency, (b) update or verify information held by the agency, (c) create new information, or produce a new record of information, by deduction, inference or calculation from information held by the agency or by any other use or application of information held by the agency.
Schedule 4 Clause 10 of the GIPA Act defines "record" as follows: 10 Meaning of "record" (1) In this Act - record means any document or other source of information compiled, recorded or stored in written form or by electronic process, or in any other manner or by any other means. (2) A reference in this Act to a record includes a reference to a copy of the record. (3) For the purposes of the definition of record in this Act, the knowledge of a person is not a record.
There are a number of difficulties with the applicant's submission that the respondent should provide a "list" of documents.
The first difficulty is that it is outside the scope of the GIPA application that is the subject of review. The applicant sought "all electronically stored information…regarding (his) banning…" He did not identify in the application that he was seeking a "list" or "log" of specified information held by the respondent.
The second difficulty is that the applicant appears to now seek a list of documents that fall outside the temporal scope of the period between 29 December 2014 and 14 December 2015. As discussed previously, such period falls outside the scope of the GIPA application under review.
The third difficulty is that the respondent has produced documents for the period within the scope of the GIPA application, and the Tribunal is satisfied that it has conducted reasonable searches. There is no utility in the respondent making a list of documents it has already produced to the applicant.
The fourth difficulty is that the creation of a "list" or "log" detailing the contents of all information held by the respondent involving the applicant involves the creation of a new record under s 75 (2) (a) of the GIPA Act. This matter does not involve seeking information that is already in the form of a "list" or a "log"; or information that can be simply listed in the manner of the Schedule of Documents that was attached to the respondent's decision of 11 May 2020; but the creation of a new record by way of producing a new document giving a description and details of the substance of existing documents.
Although government agencies have provided information in the form of a list of documents (e.g. Fisher v Commissioner of Police [2021] NSWCATAD 44 at [125]-[136]), if the application for access for information did not seek a "list" of documents, the provision of a "list" of the type now sought by the applicant arises in circumstances where the agency has exercised its discretion under s 75 (1) of the GIPA Act to create a "new record" of the information held. In circumstances where the applicant only sought a "list" of documents in his submissions, even if the provision of a "list" of documents held for the period between 14 December 2014 and 29 December 2015 fell within the scope of the application, the Tribunal is satisfied that the correct and preferable decision is that no such list be provided under s 75 (1) of the GIPA Act.
The Tribunal is satisfied that the production of such a list or log falls outside the scope of the decision under review and is not required under s 75 (2) (a) of the GIPA Act in any event.

[20]

DOCUMENTS PROVIDED IN REDACTED FORM

The test for determining whether there is an overriding public interest against disclosure is set out in s 13 of the GIPA Act. Section 13 of the GIPA Act states as follows: 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.
Section 12 (1) of the GIPA Act states that there is a general public interest in favour of the disclosure of government information.
Section 12 (2) of the GIPA Act states that there is no limit to the public interest considerations that can be taken into account in favour of disclosure. The Note to Section 12 (2) of the GIPA Act gives examples of public interest considerations in favour of disclosure as follows: Note - The following are examples of public interest considerations in favour of disclosure of information - (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.
Section 14 of the GIPA Act identifies public interest considerations against disclosure. Section 14 (1) of the GIPA Act states that there is a presumption there is an overriding public interest against disclosure of the government information described in Schedule 1 of the Table. The respondent in this matter does not rely upon s 14 (1) of the GIPA Act, and the government information in the redacted documents clearly does not invoke Section 14 (1) of the GIPA Act.
Section 14 (2) of the GIPA Act states that there public interest considerations against disclosure of information if disclosure could reasonably be expected to have one or more of the effects set out in the Table to s 14. Relevant to this application for review are the following considerations: 1. 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: … (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions. (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. (f) prejudice the effective exercise by an agency of the agency's functions. (g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provide to an agency in confidence, … 3. Individual rights, judicial processes and natural justice There is a public interest 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, … (f) expose a person to a risk of harm or serious harassment or serious intimidation. …
Section 15 of the GIPA Act states: 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.
In deciding whether public interest considerations against disclosure outweigh public interest considerations in favour of disclosure, the Tribunal must conduct a balancing exercise involving broad value judgements. However, that judgment is not made in a vacuum, but in a context that has regard to the objects of the legislation; the general presumption in favour of disclosure of government information; and the principles set out in s 15 of the GIPA Act (Transport for NSW v Searle [2018] NSWCATAP 93 at [104].
The applicable authorities in respect of the meaning of the phrase "could reasonably be expected" are summarised in Seremetis v Commissioner of Police; Seremetis v Department of Communities and Justice [2020] NSWCATAD 317 at [64]-[68]. Whether disclosure of information "could reasonably be expected" to have a particular effect is a question of fact to be established on the balance of probabilities. Any findings of fact are based upon "logically probative material" rather than "mere suspicion or speculation". The following principles are applicable: 1. A mere statement that disclosure could reasonably be expected to have a particular effect is insufficient; 2. There must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect. 3. Prominence should be given to the inferences capable of being drawn from established facts, rather than on the subjective views of witnesses.

[21]

Public Interest Considerations in Favour of Disclosure

The conduct of the applicant on 30 November 2015 was a factor in the decision of the respondent to impose "further restrictions" on the applicant on 14 December 2015.
The Tribunal is satisfied that that information which led to a decision of the respondent to ban the applicant from attending Council premises and meetings (i.e. the "further restrictions") could reasonably be expected to enhance Government accountability under Note (a) of Section 12 (2) of the GIPA Act. Members of the public have the right to attend Council premises to conduct transactions with their local Council; and attend public meetings of Council to contribute to public debate of issues pertaining to the powers and responsibilities of their local Council.
A decision to "ban" the applicant is a decision that is a serious matter and information regarding the applicant's conduct on 30 November 2015 which led, in part, to that decision could reasonably be expected to enhance Government accountability because it allows scrutiny and understanding of the conduct of the applicant which led to the decision of the respondent to curtail the general rights of members of the public to attend the premises of their local Council and attend public meetings.
The Tribunal does not accept that the information, however, could reasonably be expected to promote open discussion of public affairs, or contribute to positive and informed debate about issues of public importance, because the information relates solely to a decision to impose a ban on the applicant due to his behaviour.
The Tribunal is satisfied that the disclosure of the redacted information in Document 1 and Document 14 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 under Note (b) of Section 12 (2) of the GIPA Act. As discussed previously, the respondent used the information contained in Document 1 as information relevant to its decision to "ban" the applicant from Council premises and meetings, which involves the policies and practices of the respondent in dealing with members of the public.
The Tribunal is satisfied that it could reasonably be expected the redacted information in Document 1 is personal information of the applicant under Note (d) of Section 12 (2) of the GIPA Act, because it involves conduct of applicant at a meeting. The Tribunal is not satisfied that it could reasonably be expected the redacted information in Document 14 contains personal information of the applicant.
The Tribunal is not satisfied that redacted information in Document 1 and Document 14 engage the public interest considerations identified in Notes (c) and (e) of Section 12 (2) of the GIPA Act. In particular, there was no evidence to make a finding that the redacted information could reasonably be expected to reveal or substantiate that an agency (or member of an agency) has engaged in misconduct, or negligent, improper or unlawful conduct under Note (e) of Section 12 (2) of the GIPA Act.
In respect of personal factors of the applicant, Section 53 of the GIPA Act states: 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. …
There was no clear evidence given by the applicant regarding his motives for making the access application. However, the Tribunal infers that a motive for making the access application is to understand the basis of the decision of the respondent to impose the "further restrictions" of banning him from Council premises and meetings. The Tribunal has taking this into consideration as a factor in favour of providing the applicant with the redacted information contained in Document 1 and Document 14. There are no other personal factors of the applicant that are relevant to public interest considerations in favour of access to the redacted information contained in Document 1 and Document 14.
The Tribunal gives moderate weight to the above public interest considerations in favour of disclosure of the redacted information contained in Document 1 and Document 14.

[23]

Prejudice the Supply to the Agency of Confidential Information
The Tribunal is satisfied from the evidence of Mr Peters that the information contained in Document 1 was created and disclosed in circumstances that were confidential.
In respect of whether the information would prejudice the supply to the respondent of confidential information that facilitates the effective exercise of the respondent's functions, the Tribunal must consider whether material of the kind sought to be protected would, if released, prejudice the supply of similar material in the future as a matter of reasonable expectation (Director General, Department of Education & Training v Mullett & Anor (GD) [2002] NSWADTAP 13 at [58]; cited in Medlyn v Commissioner for Police [2020] NSWCATAD 125 at [88]-[89].
The Tribunal is satisfied that the effective exercise of the respondent's functions includes management of its premises and Council meetings. Such functions include ensuring that employees of the respondent and members of the public are reasonably free from harassment; and that meetings are conducted in an efficient manner without unnecessary rancour or harassment. Concomitantly, the respondent's functions include placing restrictions on members of the public whose display conduct of a type set out in the respondent's letter to the applicant of 14 December 2015.
The Tribunal is satisfied that there is a real risk that, if the information contained in Document 1 was provided to the respondent, it would prejudice the supply of confidential information that facilitates the effective exercise of the respondent's functions, because employees of the respondent and members of the public would be significantly less likely to provide information of the type set out in the unredacted version of Document 1, and that would significantly impair the ability of the respondent to consider what, if any, restrictions should be placed on members of the public who engage in in inappropriate and harassing conduct towards employees of the respondent.
The same consideration applies to Document 14, because it contains information from which the identity of the author of Document 14 could be inferred.
The Tribunal gives substantial weight to this consideration.

[25]

Contravenes an Information Protection Principle Under the Privacy and Personal Information Protection Act 1998.
Section 18 of the Privacy and Personal Information Protection Act 1998 (NSW) ('the PPIP Act) states as follows: 18 Limits on disclosure of personal information (1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless - (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person. (2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.
The definition of "personal information" in s 4 (1) of the PPIP Act is substantially in the same terms as the definition of "personal information" in Sch 4 Cl 4 of the GIPA Act.
The Tribunal is satisfied having viewed the unredacted version of Document 1 and from the evidence of Mr Peters that Document 1 contains "personal information" of the author of the "confidential memorandum" and Document 14 contains "personal information" because the identity of the author of the "confidential memorandum" is disclosed, or can be inferred. The Tribunal also accepts that the author of the confidential memorandum has made clear that no consent is given to personal information being disclosed.
There is nothing to indicate that the matters identified in Sections 18 (1) (a); (b); or (c) of the PPIP Act apply.
The Tribunal gives this consideration substantial weight.

[26]

Expose a Person to a Risk of Harm or of Serious Harassment or Serious Intimidation
The respondent submits that there is a real risk that the author of Document 1 would be exposed to harm or serious harassment or serious intimidation if an unredacted version of Document 1 and Document 14 was provided to the applicant.
In DTB v Commissioner of Police, NSW Police Force [2019] NSWCATAD 114, Senior Member Blake SC reviewed and summarised a number of authorities that have considered clause 3(f) of the Table to s 14 of the GIPA Act as follows: 77. It is not necessary to decide whether such harm is likely. It is sufficient that there is a risk of it: Zonnevylle v Department of Education and Communities [2018] NSWCATAD 139 at [49]; Miskelly [v Transport for NSW [2017] NSWCATAD 75] at [94]. 78. "Harm", "serious harassment", and "serious intimidation" are not defined in the GIPA Act. Their meaning received extensive judicial consideration by the Tribunal in AEZ v Commissioner of Police, NSW Police Force [2013] NSWADT 90. Each is to be seen as a separate matter to be considered: AEZ at [89]; Miskelly at [95]. 79. As to "harm", the Tribunal has held that the meaning of harm should be confined to a real and substantial detrimental effect on a person, rather than on their business interests. A detrimental effect may be to a person's physical, psychological, or emotional wellbeing: AEZ at [85]; Miskelly at [96]. Mere discomfort or tension is not ordinarily enough: Ermel v Department of Finance and Services [2013] NSWADT 183 at [90]; Miskelly at [105]. 80. As to "harassment", the Tribunal has held that "harassment" requires a consideration of how the conduct complained of is experienced by the person alleged to be harassed, and is concerned with whether that person was offended, worried, tormented, distressed or harassed by the conduct. The assessment of the impact of the conduct on the individual concerned is an objective one, although particular circumstances and vulnerabilities relating to that individual may be taken into account when making that assessment: AEZ at [89]; Miskelly at [98]. 81. As to "intimidation", the Tribunal has held that "intimidation" is closely related to the concept of "harassment" and is "to make timid, or inspire with fear, overawe, cower": AEZ at [91]; Miskelly at [99]. 82. The requirement that the "intimidation" or "harassment" be "serious" means the decision-maker must be satisfied that release of the information could reasonably expose a person to intimidation or harassment that is "heavy, weighty or grave, and not trifling or transient": AEZ at [94];.Miskelly at [100].
However, there was limited evidence provided by the respondent that disclosure of the identity of the author of Document 1 would expose that person to a risk of "harm" or "serious harassment" or "serious intimidation" by the applicant.
The Tribunal accepts from the evidence that the author of Document 1 has a subjective concern that if the identity of the person and the substance of what is set out in the "confidential memorandum" is disclosed to the applicant that the person will be harmed, intimidated and/or harassed based upon other past conduct of the applicant.
However, other than the contents of the "confidential memorandum"; the opinion of Mr Peters based upon what he had been told by the author of the "confidential memorandum" and the reference to certain types of behaviour of the applicant set out in the letters of 29 December 2014 and 15 December 2015, no evidence was provided to demonstrate examples of "harmful"; "harassing" or "intimidating" conduct of the applicant towards employees of the respondent.
This is unlike the circumstances of Tribunal decisions on this issue in matters such as Zonnevylle v Department of Educations and Communities [2018] NSWCATAD 139; and Marist Brothers St Joseph's College v Transport for NSW [2020] NSWCATAD 288, where evidence was provided demonstrating the type of past conduct that was harmful, harassing or intimidating to employees of the agency and from which the Tribunal could be satisfied there was a real risk of harm, serious intimidation and/or serious harassment in the future if the information sought was disclosed.
The Tribunal gives no weight to this public interest consideration against disclosure.

At a glance

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Judgment (29 paragraphs)

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Legislation Cited (5)

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