Webb v Port Stephens Council

NCAT Administrative and Equal Opportunity|2017-03-20

Solicitors: L Marshall (Respondent) File Number(s): 2016/00378011; 2016/00378010; 2016/00377987; 2016/00378165

reasons for decision

The Applicant lodged a number of access applications with Port Stephens Council ("the Respondent" or "the Council") under the Government Information (Public Access) Act 2009 ("the GIPA Act") seeking access to information held by the Council.
The Applicant was not satisfied with the response that she received from the Council in response to her access applications and she sought external review in this Tribunal. While each of the matters is the subject of a separate application, the matters were listed for hearing together and there was significant overlap in the material placed before the Tribunal in the various matters. It is convenient to deal with the separate matters in a single decision.
These matters were also heard with a related matter and the evidence in that matter was also evidence in these matters: see McEwan v Port Stephens Council [2017] NSWCATAD 269 ("McEwan").

Applicable legislation

The approach to be taken in applications under the GIPA Act has been considered in numerous cases before this Tribunal. For a recent consideration see the discussion by Senior Member Leal in Kanak v NSW Department of Education and Communities [2017] NSWCATAD 206.
The objects of the Act are set out in section 3(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.
"Government information" is given a wide meaning under section 4 of the GIPA Act being "information contained in a record held by an agency."
The GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (section 5). In accordance with section 9(1) of the GIPA Act, the Applicant has a legally enforceable right to access the information requested, unless there is an overriding public interest against disclosing the information.
The general public interest considerations in favour of access to government information set out in section 12 of the GIPA Act mean that the balance is always weighted in favour if disclosure.
Section 13 of the GIPA Act provides - 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 13 of the GIPA Act requires decision makers to:

identify relevant public interest considerations in favour of disclosure,
identify relevant public interest considerations against disclosure,
attribute weight to each consideration for and against disclosure, and
determine whether the balance of the public interest lies in favour of or against disclosure of the government information.

Section 15 of the GIPA Act sets out the principles that apply to public interest determination as follows: 1. Agencies must exercise their functions so as to promote the object of this Act. 2. Agencies must have regard to any relevant guidelines issued by the Information Commissioner. 3. 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. 4. The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. 5. 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.
The table to section 14 sets out the relevant public interest considerations against disclosure. In one of these matters in which the Council determined that the requested information should not be released, the Council identified three public interest considerations against disclosure as relevant. These are: 1. Clause 3(a) - that disclosure of the information could reasonably be expected to reveal an individual's personal information; 2. Clause 3(b) - that disclosure of the information could reasonably be expected to 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; and 3. Clause 3(f) - that disclosure of the information could reasonably be expected to expose a person to a risk of harm or of serious harassment or serious intimidation.
Section 105 of the GIPA Act provides that the onus is on the agency to justify its decision. In relation to each of the asserted section 14 table factors the the Council must establish that the disclosure of the information could reasonably be expected to have the effect outlined in the table.
I discussed the applicable law in relation to these considerations in my decision in McEwan at paragraphs [15] - [22]. I will not repeat that discussion here.

Sufficiency of search

In Camilleri v Commissioner of Police NSW Police Force [2012] NSWADT 5 at paragraph [11] Isenberg JM applied the approach to sufficiency of search as had been applied under the Freedom of Information Act 1987 ("the FOI Act"). In doing so, she applied decision of Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201. In Hemeon at paragraph [18], O'Connor DCJ adopted the Information Commissioner of Queensland's approach to sufficiency of search issues as discussed in Shepherd and Department of Housing, Local Government and Planning [1994] QICmr 7; (1994) 1 QAR 464. In Shepherd the Information Commissioner said at paragraph [19]: [T]here are two questions which I must answer: (a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency …; and if so, (b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.
I agree with that approach. In relation to the first limb of the test, it is not enough for an applicant to merely assert non-compliance on the basis of a general distrust of the agency: Camilleri at paragraph [13] citing Cianfrano v Director General Department of Commerce and anor (No 2) [2006] NSWADT 195 where O'Connor DCJ stated at paragraph [69]: 69 An applicant, it seems to me, must put some credible material or submissions before the Tribunal which persuades the Tribunal that an arguable case of that kind exists. It cannot be enough that the applicant merely asserts a non-compliance of the kind to which s 24(2) is addressed. It is not enough for an applicant simply to base the assertion on a deep-seated distrust of the agency. Care must be exercised in putting the agency to the cost and effort of making further searches or putting on affidavit evidence.
In this regard, the Council submits that it has undertaken reasonable searches to locate all the information that it holds that is captured by the scope of the access applications and that the Applicant has not put any "credible material or submissions before the Tribunal" to persuaded the Tribunal that the Council holds any other information that it is within the scope of the access applications.

The material before the Tribunal

The Council relies on the evidence of Mr Wickham. Ms Marshall also provided submissions on behalf of the Council.
The Applicant relies on her own evidence and submissions in support of her case.

Application No. 2016/00378165 (formerly matter No. 1610401)

The Applicant sought access to the following information: "Complete and unedited copies of all letters and/or documents, telephone transcripts and/or Council's notes on telephone conversations, Council's notes on personal conversations, all of which relate to third party consultations - DA No: 483/2011 as outlined within Council's letter of 15 February 2016 Ref No: PSC2016-00217 A full and unedited copy of the records of letters, notes, transcripts and dialogues between Council and all third parties concerning consultations undertaken by Council with objectors to the DA No: 483/2011, as per the document list provided by Council under cover of its letter dated 15 February 2016 (copy attached)."
The Council requested that the Applicant pay an advance deposit in relation to the cost of processing the application. The Applicant paid the deposit and the Council determined the access application. Its determination was to release some information in part and to refuse access to other information. It was subsequently agreed between the parties that the Council would undertake a redetermination of the access application.
The redetermination was undertaken by Mr Tony Wickham, the Council's Governance Manager and Public Officer. During the redetermination process additional information was identified as falling within the scope of the access application. Mr Wickham identified a total of 73 documents as falling within the scope. A copy of the withheld information has been provided to the Tribunal.
In the notice of decision Mr Wickham stated: I have decided, under section 58(1)(a) and (d) of the GIPA Act, to provide partial access to the information sought in your access application. Pursuant to sections 58(1)(e) and 60(1)(b), I have decided to refuse to deal with the access application in part regarding the request for documents 18, 20, 33, 44 and 45 of the "Records of Dates" schedule. ...
In his reasons for decision he stated: … I have applied the public interest test and have determined that there is an overriding public interest against part disclosure of the information sought regarding documents 1, 2, 28, 29, 30, 32, 38, 39, 40, 41, 42, 43, 46, 47, 48, 64, 65, 67, 68, 70, 71, 72 and 73 of the "Record of Dates" schedule. Pursuant to section 14 Table 3 (a), (b) and (f), I have decided to provide part access to the above mentioned documents as disclosure of the deleted information could reasonably be expected to: reveal an individual's personal information; contravene an information protection principle under the Privacy and Personal Information Protection Act 1998; and expose a person to a risk of harm or of serious harassment or serious intimidation. Pursuant to sections 58(1)(e) and 60(1 )(b), I have decided to refuse to deal with the access application in part regarding the request for documents 18, 20, 31, 33, 44 and 45 of the "Records of Dates" schedule. Council has already decided previous access applications seeking access to the above mentioned documents and access was refused on each occasion. Council believes there are no reasonable grounds for which Council would make a different decision on the access application for the above mentioned documents. I have decided to refuse access to the remaining documents listed in the "Record of Dates" schedule. I have applied the public interest test and have determined that there is an overriding public interest against disclosure of the remaining documents listed. Pursuant to section 14 Table 3(a), (b) and (f), I have decided that disclosure of this information could reasonably be expected to: reveal an individual's personal information; 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; and expose a person to a risk of harm or of serious harassment or serious intimidation.
The Applicant has challenged the Council's decision to withhold information.
The Council relies on AEZ v Commissioner of Police NSW Police Force [2013] NSWADT 90 in support of its argument that release of the information could reasonably expose a person to intimidation or harassment not of a trifling nature. Further, the Council relies on confidential evidence of Mr Wickham in support of that argument.
I have discussed the applicable law and evidence in my decision in the related matter of McEwan. In McEwan I referred to confidential evidence provided by Mr Wickham. I will not repeat that discussion here other than to note that the evidence is equally relevant to the circumstances of this matter.
The Applicant has provided a statement and detailed submissions in which she challenged the Council's position. I agree with the Council that this material is largely irrelevant and does not assist in this determination.
In McEwan I formed that view that the considerations in favour of release of the withheld information are outweighed by the considerations against release. I accepted that the release of the withheld information could reasonably expose a person to intimidation or harassment. For the same reasons I am satisfied that in this matter the release of the withheld information could reasonably expose a person to intimidation or harassment.
In the circumstances the appropriate order is to affirm the Council's decision.

Application No. 2016/00377987 (formerly matter No. 1610211)

The Applicant sought access to the following documents: "A full and unedited record of the dates Council published the following statement/decision on its website under its Non-Disclosure Log for GIPA Applications, this statement being "Release of information would expose a person to serious harm, harassment or intimidation", separate to those it published relating to the DA No: 483/2011 The period of time such statements, if any, remained on Council's website."
The original decision by Council determined that it did not hold the requested information. It was subsequently agreed between the parties that the Council would undertake a redetermination of the access application. The Applicant provided a document that showed a screenshot of the Council's website containing the statement "Release of information would expose a person to serious harm, harassment or intimidation". This was intended to assist the Council in locating the requested information.
Mr Wickham undertook the redetermination. In his reasons for decision he referred to further search of Council's records that were undertaken to identify all government information falling within the scope of the access application. Mr Wickham stated: A further search of Council's records has been undertaken, to identify all government information falling within the scope of the application. Council has searched physical as well as electronic records located on Council's electronic documents database (HPRM8). This includes reviewing the original application file. Council's existing website was also searched. It should be noted that based on the information provided by the Applicant, it would appear that the information is from Council's former website, which is no longer accessible. This view is held as Council's former logo is visible from the Applicant's documents - Council has not used this logo on its new website.
Mr Wickham concluded: Under section 53 of the GIPA Act, Council is required to conduct reasonable searches as may be necessary to locate the government information you have sought access to in your application. I am satisfied that reasonable searches were undertaken and the requested information is not held by Council.
Mr Wickham provided a statement in which he confirmed the extent of the searches that he had undertaken in relation to the access application.
Mr Wickham attended the hearing and was cross-examined. His evidence in this regard was not varied.
Mr Wickham also advised that he had attempted to contact the Council's former website contractor, Energetica, but was advised that Energetica had gone into liquidation. Mr Wickham stated: I was provided with a contact for the company that had taken over the client base for Energetica, a company by the name of Morpht. I received an email from Morpht dated 19 July 2016 which stated that it had reviewed both the former Energetica Fluke server and the Local-e government distribution now residing on the Acquia platform and that no codebase for the Council could be found. I note that Council is not a customer of Morpht. The email also noted that a forensic review would take time and money and was unlikely to produce anything. A copy of the email is attached at Annexure A to this statement. I also made enquiries with Council's Information Technology Section and Communications Sections as to whether backups were available. It was determined backups were not available for the information sought. In addition I also undertook a search on the Internet Archive Wayback Machine website but was unable to locate the information.
Mr Wickham provided copies of correspondence from Morpht's Business Manager, Mr Ian Humble which supports that evidence.
The Council contends that apart from a forensic review by Morpht, no other avenues are available to it to locate the requested information.
The Applicant indicated that she had contacted the former CEO of Energetica who had advised her that the Council was in full control of its website content and management. She contends that it is implausible that the Council would not have retained the requested information and that with further searches that information should be able to be located.

Conclusion

As noted above, I must consider whether there are reasonable grounds to believe that the requested information exist and if so, whether the search efforts made by the Council to locate the information have been reasonable in all the circumstances of this case.
I accept Mr Wickham's evidence of the efforts made to locate the information. I do not consider that a forensic review by Morpht is warranted in the circumstances. I do not consider that the information that the Applicant has provided from the former CEO of Energetica contradicts Mr Wickham's evidence. The Applicant has made assertions in regard to how she believes Council should have acted or would have acted but these are no more than her assertions. She has not suggested other searches that could reasonably be undertaken.
It appears to me that the circumstances of these matters are comparable to that referred to in Cianfrano in that the Applicant has made broad assertions that are clearly based on "a deep-seated distrust of the agency".
I am satisfied that the searches that the Respondent undertook to locate the requested information were reasonable for the purposes of meeting its obligations under section 53 of the GIPA Act. In my view it is unlikely that further searches would be successful in locating any other information which falls within the scope of the access application.
In the circumstances the appropriate order is to affirm the Council's decision.

Application No. 2016/00378011 (formerly matter No. 1610236)

The Applicant sought access to the following documents: "Copy of Councillor Ken Jordan's request to Council staff to call the DA No 483/2011 before the free Council public forum. We are advised this request was made in August 2012."
This was clarified as a request for: "A full and unedited copy of the request form submitted by Councillor Ken Jordan (advised to have been made in August 2012) to bring the DA No: 483/2011 before the Free Council Public Forum."
The original decision by Council determined that the Council did not hold the requested information. It was subsequently agreed between the parties that the Council would undertake a redetermination of the access application. It was agreed that the Applicant would provide the Council with information that she believed showed that the Council did hold the requested information.
Mr Wickham undertook the redetermination. During the redetermination process a further search of Council's records was undertaken to identify all government information falling within the scope of the access application. However, Mr Wickham noted: A further search of Council's records has been undertaken, to identify all government information falling within the scope of your application. Council has searched physical as well as electronic records located on Council's electronic documents database (HPRM8). This includes reviewing the original application file. Council retrieved physical records from Council's external records archive to search multiple relevant files. … Under section 53 of the GIPA Act, Council is required to conduct reasonable searches as may be necessary to locate the government information you have sought access to in your application. I am satisfied that reasonable searches were undertaken and the requested information is not held by Council.
The Council relies on a statement by Mr Wickham in which he confirms the steps that he took in attempting to locate the requested information. He stated: In undertaking the redetermination, I conducted a further search of Council's physical as well as electronic records of Council including the original development application file. Records archived externally were also retrieved and searched. The physical file searched was the file for DA no: 483/2011. As detailed in the determination, the electronic database searched was Council's HPRM8 database. The applicant did not accept this decision and the matter was set down for Hearing. In total, I spent 2.5 hours on the re-determined notice of decision. In her statement and submissions dated 21 September 2016, the Applicant has referred to Council's Working Together and Provision of Information policy as being the relevant policy for call up of matters to Council. The purpose of the Working Together policy is to provide Council officials with clarity in respect to their obligations and responsibilities in dealing with each other. It is not a policy to do with calling matters to Council. The relevant policy at the time was "Planning Matters to be Reported to Council". A call up sheet requesting reporting of a development application to Council was required. ... In any event, Council does not hold a record of a call up reguest in relation to DA no: 483/2011. Contrary to the Applicant's assertion, neither email traffic around the matter nor a Councillor visit to the property the subject of a DA constitute a request to call up to Council.
Mr Wickham attended the hearing and was cross-examined. His evidence in this regard was not varied.
The Applicant relies on her own statement and submissions and she annexed a significant amount of material to her statement. This material provides background information in regard to her request and sets out the basis for her belief that the requested information should be held by the Council. This belief appears to be based in communications that she had with Councillor Jordon.
She contends that the Council has not undertaken all necessary searches for the information.

Conclusion

As noted above, I must consider whether there are reasonable grounds to believe that the requested information exist and if so, whether the search efforts made by the Council to locate the information have been reasonable in all the circumstances of this case.
In my view the Applicant's material does no more than present her opinion that the information should have been created and therefore it should be held. At its highest, the Applicant's material may raise questions in relation to whether or not the Council's processes are adequate. It does not establish that the requested information is held and it does not assist in providing a basis for further searches.
I accept Mr Wickham's evidence of the efforts made to locate the information. I accept that the Council has searched its records extensively and can find no record of a call up sheet for this development application.
The Council does not have any obligation to explain why a matter was not called to Council. Its obligation under section 53 of the GIPA Act is to "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".
I am satisfied that the searches that the Respondent undertook to locate the requested information were reasonable for the purposes of meeting its obligations under section 53 of the GIPA Act. In my view it is unlikely that further searches would be successful in locating any other information which falls within the scope of the access application.
In the circumstances the appropriate order is to affirm the Council's decision.

Application No. 2016/00378010 (formerly matter No. 1610235)

The Applicant sought access to the following documents: "A full and unedited record of the dates Council consulted with third parties regarding the objecting submissions to the DA No: 483/2011, specifically relating to only those persons who are not employed by Council in any capacity including on a sub-contractual basis. Confirmation as to the nature of the consultations including whether or not those consultations were written or verbal, in person or over the telephone."
The original decision by Council identified forty seven occasions where third party consultation had occurred.
The Tribunal subsequently made a direction that the Council re-determine the application following receipt of additional information from the Applicant. Mr Wickham undertook the redetermination. He noted that the re-determination was based on the period 28 July 2011 to 16 February 2016. The 28 July 2011 was the first occasion the development application was advertised, therefore any "objecting submission" would be received post this date. The 16 February 2016 end date is the determination date of the original GIPA application.
Mr Wickham noted that during the redetermination process a further search of Council's records was undertaken to identify all government information falling within the scope of the access application. He stated: A search of Council's records has been undertaken, to identify all government information falling within the scope of your application. Council has searched physical as well as electronic records located on Council's electronic documents database (HPRM8). Council retrieved physical records from Council's external records archive to search multiple relevant files and has also searched relevant staff members' electronic calendar entries. By way of explanation, I can advise that a search found that the original GIPA determination did not include any third party consultation in relation to applications made under GIPA. The decision to not include these matters was based on previous advice from the Applicant when an informal application was lodged for the same information as this application, however it was refused, and the Applicant was advised that a formal application would be required. This current application is the formal application that as referred to above. ...
Mr Wickham concluded: I have decided, under section 58(1)(a) of the GIPA Act, to provide access to the information sought in your access application.
He attached a Schedule of Documents that were to be released to the Notice of Decision.
The Council relies on a statement from Mr Wickham that supports the views that he expressed in his reasons for the redetermination decision. He stated: At the first Case Conference on 31 May 2016 the Applicant claimed not all third-party consultations have been included in Council's Notice of Decision parties. The parties agreed the Applicant would provide Council with information about the instances the applicant believed were omitted from Council's list. On receipt of that information and in accordance with the directions of the Tribunal, Council then proceeded to re-determine the formal access application. A notice [of] decision dated 27 June 2016 was provided. I was the Decision-maker. In the notice I noted the redetermination was based on the period 28 July 2011 to 16 February 2016, with 28 July 2011 being the first occasion DA no: 483/2011 was advertised and therefore any submission would have been received after this date. The additional information received from the Applicant did clarify for Council what the Applicant was requesting. In undertaking the redetermination, I searched the physical as well as electronic records of Council. These records were the physical file for DA no: 483/2011 and Council's electronic database HPRM8. These were listed in Council's redetermination. I discovered that the original determination did not include any third-party consultation in relation to applications made under GIPA as it was understood at the time that the applicant did not wish to be advised of the particular third-party consultations. I included these as part of my redetermination and provided a total record of 73 instances Council consulted with third parties. The applicant did not accept this decision and the matter was set down for Hearing. In total, I spent ten (10) hours on the redetermined notice of decision.
Mr Wickham attended the hearing and was cross-examined. His evidence in this regard was not varied. He confirmed that he had personally undertaken the searches and that no other records had been located.
The Applicant contends that the list that has provided is not complete. She stated that from her own knowledge that is the case. For example, she referred to a telephone call that was said to have been made to check on the safety and well-being of objectors. She indicated that she does not accept that the Council would not have made a record of that telephone call. She asserted that the Council has not undertaken the necessary searches to locate the totality of the information that she has requested.

Conclusion

As noted above, I must consider whether there are reasonable grounds to believe that the requested information exist and if so, whether the search efforts made by the Council to locate the information have been reasonable in all the circumstances of this case.
I accept Mr Wickham's evidence of the efforts made to locate the information. I accept that the Council has searched its records extensively and can find no further record that fall within the scope of the access application.
Notwithstanding her assertions, the Applicant has not provided any reasonable basis to support the view that further searches would locate additional information.
The Council's obligation under section 53 of the GIPA Act is to undertake such reasonable searches as may be necessary to find the requested information. I am satisfied that the searches that the Respondent undertook were reasonable for the purposes of meeting its obligations under section 53 of the GIPA Act. In my view it is unlikely that further searches would be successful in locating any other information which falls within the scope of the access application.
In the circumstances the appropriate order is to affirm the Council's decision.

Orders 1. The decision by Port Stephens Council in regard to each of matters 2016/00378011; 2016/00378010; 2016/00377987; 2016/00378165 is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 June 2018

At a glance

Court

Decision date

Source

Judgment (15 paragraphs)

Parties

Cases Cited (2)

Cited By (5)