Webb v Port Stephens Council

NCAT Administrative and Equal Opportunity|2017-08-23

Services Port Stephens Council File Number(s): 201700089313, 201700089311, 201700089292, 201700146396, 201700146393, 201700146399. Publication restriction: Confidential paragraphs 75-81 inclusive not to be disclosed to the applicant or the public pursuant to section 107 of the Government Information (Public Access) Act 2009

Background

On 14 March 2017 the applicant filed three applications for administrative review with the Tribunal. (201700089313, 201700089311, 201700089292). On 16 May 2017 the applicant filed a further three applications for administrative review with the Tribunal. (201700146396, 201700146393, 201700146399). All of those applications concerned how the respondent had dealt with an application for access to documents (information), which were of interest to the applicant. These documents were held by the respondent agency.
The applicant sought to understand the basis of various dealings with Council in respect of development applications, compliance matters, and orders arising under the Environmental Planning and Assessment Act 1979 (the EPA Act). In particular matters relating to legal affairs and legal proceedings arising from a dispute between these parties formed the basis of further applications for information.
The applications were made to the respondent under the Government Information (Public Access) Act 2009 (the GIPA Act) in late 2016 and early 2017 whereby the applicants were seeking copies of material relating to the matters referred to in paragraph (2 (above). Whilst the respondent eventually provided some of the information in response to the application, the respondent withheld specific items of information because in their view there was an overriding public interest against disclosure of the information, or there was a conclusive presumption of overriding public interest against disclosure. These decisions were made in February, March and April 2017.

The initial decisions

In the applications the scope of the request was characterised in the following manner: 201700089313: received 6 December 2016: "Council's TRIM Record - 3 Saphire Court Raymond Terrace / DA No: 483 of 2011 A full and unedited copy of Council's TRIM Record for 3 Saphire Court Raymond Terrace / DA No: 483 of 2011 from first record to this date. The record encompasses the FULL history of ALL Council internal and external actions, meetings, file notes, consultations, third party enquiries, correspondence, and telephone calls. An addendum was received on 8 December 2016: "I confirm I have requested the FULL Trim records, including information already provided by Council (which would undoubtedly expedite and simplify the task) from whatever sources they originate, as they all refer and relate to 3 Saphire Court Raymond Terrace / DA No: 483 of 2011. To this date I have only been aware of two sources, but your letter discloses that there are in fact more, and I do thank you for that information and confirm again I request the FULL TRIM Record from ALL Council sources. Again, it's just the TRIM record, not the actual documents." 201700089311: received 6 December 2011: "Background / Supporting Information - Revocation of Order of January 2012 & Issuing Order of June 2012 Unedited copies of the background and supporting documentation and information relating to the revocation of the Order for Partial Demolition of January 2012, and unedited copies of the background and supporting documentation and information relating to the issuing of the Order for Full Demolition of June 2012." 201700089292: received 12 December 2016: "1. COPIES OF BACKGROUND INFORMATION - ORDERS TO FORCIBLY ENTER PREMISES 2. COPIES OF THE RESULTANT REPORTS 3. COPIES AND CONFIRMATION OF THE DISBURSEMENT OF REPORTS 1. Full and unedited copies of the background information relating to the above Orders To Forcibly Enter Premises of 3 Saphire Court Raymond Terrace, of February and March 2012, both Orders of which were actioned by Paul Minett. This information and records will include the documented reasoning and justification, including meeting notes, records of telephone conversations and text messages, resultant formal approvals and instructions to investigate the Orders, all of which Council undoubtedly relied upon to issue and action the Orders. 2. Full and unedited copies of the resultant reports from these forced attendances at 3 Saphire Court Raymond Terrace in February and March 2012. 3. Full and unedited disclosure of where and to whom those resultant reports were dispersed, including internally between Council staff and externally. 201700146396: received 9 March 2017: (Application Form): "I am requesting the background information and supporting documents to the letter authored by Paul Minett dated 13th July 2012. I request these documents and information in full and unedited." (Covering letter): "I request Council provide the background and/or supporting information and documents for the letter authored by Paul Minett dated 13th July 2012. And I request this information in full and unedited." 201700146393: received 9 March 2017: (Covering letter): "I am requesting the background information and supporting documents to the letter authored by Paul Minett dated 15th June 2012. I request these documents and information in full and unedited." (Formal application): "I request Council provide the background and/or supporting information and documents for the letter authored by Paul Minett dated 15 June 2012. And I request this information in full and unedited." 201700146399: received 9 March 2017: (Covering letter): "I request Council provide the background and/or supporting information and documents for the letter authored by Anthony Randall dated 5 October 2012./ And I request this information in full and unedited." (GIPA Application): "I am requesting the background information and supporting documents to the letter authored by Anthony Randall dated 05th October 2012. I request these documents and information in full and unedited."
In the initial decisions the respondent decided under section 58 (1) of the Act, to provide access to some of the information and to refuse access to some of the information. A combination of grounds under section 58 (1) (a), (b), (d) and (e) of the Act were relied upon across the six decisions.
Section 58 provides: 58 How applications are decided (1) An agency decides an access application for government information by: (a) deciding to provide access to the information, or (b) deciding that the information is not held by the agency, or (c) deciding that the information is already available to the applicant (see section 59), or (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or (e) deciding to refuse to deal with the application (see section 60), or (f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact. (Emphasis added)
In respect of section 58 (1) (e) grounds (refusing to deal with an application) section 60 relevantly provides the following: 60 Decision to refuse to deal with application (1) An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason): (a), (b) the agency 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 grounds for believing that the agency would make a different decision on the application, (b1), (c). (d). (2). (3). (4). (5) Notice of an agency's decision to refuse to deal with an access application must state the agency's reasons for the refusal. (6) An applicant is not entitled to a refund of the application fee when the agency refuses to deal with the application.
The refuse to deal decision arose in respect of proceedings 201700089311 in that section 60 (b) was relied upon. The respondent claimed that in respect of document 23 and part of document 16 identified in the application were claimed to be documents previously subject to a GIPA Act application and a decision had been made. The section provides that if there is no reasonable ground as to why the agency would make a different decision then they are not required to re-decide the matter or deal with it again.

Preliminary observation

In respect of the relevant public interest considerations against disclosure, the respondent appears to have relied upon a range of considerations from the Table to section 14 of the GIPA Act, and applied those considerations across many of the applications. The respondent appears to have based these decisions upon their assessment that the specific public interest considerations against disclosure overrode the general public interest considerations in favour of disclosure. However I note that such language is not used in the Notice of Decision. Some of the Notices of Decision make the following observations: 'I have applied the public interest test and have determined that there are grounds of overriding public interest against disclosure.' (201700146393) 'I have applied the public interest test and decided to provide part access to this information as there are no public interest considerations in favour of disclosure and a public interest consideration against disclosure.' (201700089311) 'However, I have decided that there are no public interest considerations in favour of disclosure of the deleted information of the additional information.' (201700089292) 'I have applied the public interest test and decided to provide part access to this information as there are no public interest considerations in favour of disclosure and relevant public interest consideration against disclosure.' (201700089313)
The specified listing or examples of public interest considerations in favour of disclosure as set out in section 12 (2) is not exhaustive, and the fact that an enumerated example is not applicable on the facts is itself not determinative. Section 12 (1) provides for a general public interest in favour of disclosure, as well as the Note to section 12 (2) stating: Note. The following are examples of public interest considerations in favour of disclosure. Section 12 (2) must be considered in the context of the objects of the GIPA Act, Section 12 (1) and the Note (to section 12 (2) ). Importantly all determinations must have regard to the relevant principles as set out in section 15.
For convenience sections 12, 13, 14 and 15 are set out below. Division 2 Public interest considerations 12 Public interest considerations in favour of disclosure (1) There is a general public interest in favour of the disclosure of government information. (2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. 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. (3) The Information Commissioner can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies. 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. 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). 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 addition to the observations at paragraphs 9 and 10 (above) it appears that in considering some of the public interest considerations against disclosure, the respondent did not indicate the presence of any evidence so as to tip the balance (to 'override') whereby on balance, those considerations outweigh the public interest considerations in favour of disclosure. (as referred to in section 13). In a couple of the applications the respondent did infer the existence of evidence to support a public interest consideration against disclosure (the existence of evidence arising from consultations with third parties). However on at least some of the decisions it appears that the respondent applied the section 12 examples as preconditions and in their absence having found an applicable public interest consideration against disclosure from the Table to section 14, applied the matter determinatively.
I observe that the existence of a public interest consideration against disclosure is not in itself determinative in any way under the Act. The operation of the Act contemplates that there must be the existence of sufficient evidence in a specific access application on a particular public interest consideration against disclosure so as to (on balance … outweigh ) / override the general presumption to release government information. In some of the matters the reasons for decision neither demonstrate this process or any evidence so as to enliven this approach.

The applications to the Tribunal

The applicant applied for external review to the Tribunal within the period provided for under Part 5 Division 4 of the GIPA Act. Being 40 working days after receiving the notices of the decision in accordance with section 101 (1) of the GIPA Act. Those decisions could be subject to a review by the Tribunal even though in this matter there had been no internal review. Section 100 provides: 100 Administrative review of decision by NCAT A person who is aggrieved by a reviewable decision of an agency may apply to NCAT for an administrative review under the ADR Act of the decision (referred to in this Division as an NCAT administrative review). Note. A reviewable decision does not have to be internally reviewed or reviewed by the Information Commissioner before it can be the subject of an NCAT administrative review.

Jurisdiction

There is no dispute that the Tribunal has jurisdiction to hear these applications. Section 100 of the GIPA Act provides jurisdiction. In addition there is no dispute that all six the applications were filed within time, as the matters were lodged within the period provided for by the GIPA Act in respect of a Tribunal Review in the absence of an Internal Review or an External Review by the Information Commissioner.

The Legislative Provisions

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.
The respondents grounds for withholding some of the information ranged from grounds referred to in Schedule 1 of the GIPA Act (conclusive presumption of overriding public interest against disclosure) being 'legally privileged material' to the fact that material met the definition of personal information and as a result the material should be withheld because of the weight that should be applied to those considerations against disclosure.

Hearing of matters before the Tribunal

The matters were heard concurrently over one day with the Tribunal sitting at Newcastle. The Tribunal understands that this course was adopted to assist the availability of the respondent's witnesses, upon whom the onus rests. It is the respondent's obligation to satisfy the Tribunal that the decision under review should be affirmed.

Respondent's material

The respondent filed the following open evidence in each of the proceedings: 201700089292

Exhibit R 1 comprising a signed and witnessed Statement of T Wickham dated 18 July 2017.
Exhibit R 2 comprising a further signed and witnessed Statement of T Wickham dated 14 August 2017.
Written outline of submissions dated 18 July 2017.
Written outline of submissions in reply dated 14 August 2017. 201700089313
Exhibit R 1 comprising a signed and witnessed Statement of T Wickham dated 18 July 2017 and 11 pages of annexures.
Exhibit R 2 comprising a further signed and witnessed Statement of T Wickham dated 14 August 2017.
Written outline of submissions dated 18 July 2017.
Written outline of submissions in reply dated 14 August 2017. 201700146399
Exhibit R 1 comprising a signed and witnessed Statement of T Wickham dated 24 July 2017.
Exhibit R 2 comprising a further signed and witnessed Statement of T Wickham dated 14 August 2017.
Written outline of submissions dated 24 July 2017.
Written outline of submissions in reply dated 14 August 2017. 201700146396
Exhibit R 1 comprising a signed and witnessed Statement of T Wickham dated 24 July 2017.
Exhibit R 2 comprising a further signed and witnessed Statement of T Wickham dated 14 August 2017.
Written outline of submissions dated 24 July 2017.
Written outline of submissions in reply dated 14 August 2017. 201700146393
Exhibit R 1 comprising a signed and witnessed Statement of T Wickham dated 24 July 2017.
Exhibit R 2 comprising a further signed and witnessed Statement of T Wickham dated 14 August 2017.
Written outline of submissions dated 24 July 2017.
Written outline of submissions in reply dated 14 August 2017. 201700089311
Exhibit R 1 comprising a signed and witnessed Statement of T Wickham dated 18 July 2017 including 3 pages of annexures.
Exhibit R 2 comprising a further signed and witnessed Statement of T Wickham dated 14 August 2017.
Written outline of submissions dated 18 July 2017.
Written outline of submissions in reply dated 14 August 2017. The respondent also filed confidential exhibits during the confidential session in addition to the closed written submissions.

Applicant's material

Whilst there was no onus on the applicant, the applicant filed and served a suite of material in accordance with the Tribunal's prior directions at Case Conferences. The applicant filed the following evidence and material in the proceedings. As the material was tendered rather than received as evidence it was marked for identification (MFI) to locate it amongst the material filed and served in the proceedings.

'MFI' - A 1 (referred to as Attachment A) in each matter comprising a statement / chronology and annexure s / attached documents.
'MFI - A2 (referred to as Attachment B) on each matter comprising an outline of submissions and attached material.

Further material was received by the Tribunal shortly after the hearing, under covering letter dated 24 August 2017. That material comprised the covering letter, a 'table of explanation' and documents and was received by the Tribunal on 28 August 2017. In September 2017 the Divisional Registrar wrote to the applicant in respect of the material, noting that other than the matter being reserved, no further orders were made for filing and serving material. The Registry correspondence indicated that the material needed to be served on the respondent is the applicant wished the Tribunal to consider it.
It is unclear whether this material has been served. The material canvasses procedural matter concerning: whether the respondent would be making confidential submissions, the situation whereby the respondent declined to make any open submissions and the strategic disadvantage the applicant perceived as to whether the respondent's case was broader than she understood.
The material is in the context of a final submission, predicated on the fact that following the confidential session at hearing, the matter had run over time, and whilst the respondent agreed to proceed, she was allowed approximately a quarter of an hour to make her submissions. In addition the applicant seeks to bring to the Tribunal's attention letter of 5 October 2012, which it is submitted relates to the legal professional privilege argument in respect of Land and Environment Court proceedings (as canvassed in these GIPA Act proceedings).
The material also restates a repeated claim by the applicant that various senior officers in the planning area of Council at the relevant time were engaged in secondary employment which constituted a conflict of interest, and this employment was tacitly approved (contrary to Council Policies, Codes of Conduct and Local Government Office / Department Guidelines and rulings). These submissions are well know to the respondent and in my view no prejudice results from them being re-stated in summary post hearing.
Notwithstanding the uncertainty of whether this material has been subsequently served on the respondent, I propose to deal with it on a limited basis. I do so on the basis of the reasons set out above (concerning the repeated known arguments) and the specific document (letter of 5 October 2012) being authored by Council's lawyers, and addressed to the applicant's lawyers, concerning the central dispute in these proceedings and not being legally privileged.
The applicant gave a verbal outline of the background matters to the six applications. In January 2012 Council issued an order for partial demolition of a privacy screen erected on the applicant's property. However the applicant submitted that they were advised in March 2012 that the demolition order was being revoked and replaced with an order for full demolition which was issued in June 2012.
It was further submitted that in order to conduct a swimming pool audit Council issued a 'force-able entry order' and the applicant's queried why this was issued twice. Further it was submitted that a Mr Minett (who was a Council officer at the time) had advised the applicant in response to the swimming pool and screen issues that she had exhausted all avenues of review. The applicant submitted that if that was the case why had the Council issued a second letter, which held a contrary view to the one allegedly expressed by Mr Minett.

Open Hearing

The Tribunal heard form only one witness in the open hearing. It was necessary to take evidence from the witness in each of the six matters consecutively. Mr Tony Wickham the respondent's Governance Manager was sworn and gave evidence at the hearing. 201700089292
The witness adopted his two statements 'R1" and 'R 2' as true and correct in evidence in chief.
In cross-examination the witness was asked about his 'public officer' role under GIPA. He was asked whether there had been any changes to the GIPA process within Council, and the witness answers that there had been changes over time. Council had 'refined' the process.
The witness was asked whether there was any third party consultation in this application. The witness confirmed that consultation had taken place. When asked who that consultation was with the witness advised that he did not know as he was not the officer responsible.
The witness gave evidence that Mr Minett was no longer employed at Port Stephens Council and as a result he can't be consulted. The witness indicated that he did not search for Mr Minett or try and locate his name in order to contact him. When asked whether there was any reason that evidence was not provided in respect of the relevant GIPA searches undertaken, the witness answered no. 204700089311
The witness adopted both statements as true and correct in evidence in chief. In cross examination the witness was asked what his role was in the matter, and he advised that it was to review the files in the context of the necessary searches undertaken. Questions arose about legal professional privilege and it's meaning to which the Tribunal advised that if the role was only to review searches (not identify documents within scope and basis for withholding) such knowledge was not specifically relevant to that role.
The witness gave evidence that in respect of the searches, the document title is the only word 'returned' or that comes up on a search. That is how all searches of the Council's documents are done. 201700089313
The witness adopted both statements as true and correct in evidence in chief. In cross-examination the witness was asked whether all of the applicant's GIPA matters go to him. The witness answered that sometimes, yes, they do and sometimes no. Sometimes they are addressed to T Wickham as the witness did not deal directly with GIPA from a transactional perspective. When asked why he supervised some aspects from time to time the witness advised that he needed to check on the officer's workloads as if he did not then they might go outside of or exceed the parameters of the legislation.
When asked about the redactions to the screen shots the witness advised that they are often heavily redacted because the searches often bring up other matters (outside of scope). The witness could not comment and the alleged absence of certain e-mails from the information uncovered. In his view the outcomes of the searches is all down to how matter are titled. The TRIM system only picks up matters from the titling. Some re-examination occurred concerning the scope of the application. 201700146393
In evidence in chief the statements were adopted as true and correct. In cross-examination the witness stated that no further searches were conducted as they were not required. (The Tribunal notes that the scope of the searches was the only potentially outstanding issue in this specific application). A question arose concerning the evidence at paragraph 4 of 'R 2' , which indicated that due to delegated functions many actions occur without reference to supervisors and 'background' to the actions is not necessarily produced.
Re-examination covered the level of notes made / recorded by delegated officers. On a related issue the witness gave evince that only the General Manager possesses both delegated functions and the power of delegation. This evidence was relevant to the issues surrounding which officers performed functions relevant to the applicant and what level of records (if any) were kept / required concerning such matters. 201700146396
In evidence in chief the statements were adopted as true and correct. In cross examination the witness stated that he was not specifically aware of Mr Minett's letter concerning section 82C of the Environmental Assessment Planning and Assessment Act 1979. 201700146399
In evidence in chief the statements were adopted as true and correct. In cross- examination the witness was asked about his knowledge of the matter. The witness advised that he had examined the decision. He has seen the attachments but had not read them.

Respondent's Open Submissions

In respect of application 201700146393 the respondent submitted that three documents fell within scope, and one of these contained personal information (of a third party) as defined in the Privacy and Personal Information Protection Act 1998 (the PPIP Act) and as defined in the GIPA Act.
Council maintained that release of this information would contravene an Information Protection Principle (IPP) as referred to in the PPIP Act and Clause 3 (b) of the Table to section 14 of the GIPA Act.
In respect of 201700146399 the respondent submitted that they provided part access to one document only, on the basis that there was an overriding public interest against disclosure due to the fact that disclosure would breach an IPP under the PPIP Act.
The remaining documents were withheld on the basis of legal professional privilege (LPP). Clause 5 of Schedule 1 of the GIPA Act provides that if the information is properly characterised as material to which LPP applies, then there is a conclusive presumption against disclosure.
In respect of 201700146396 a claim of legal professional privilege was also apparent. The respondent submitted that the applicant's submission that the provision of the sought information is in the public interest was misguided and unsubstantiated. In respect of the sufficiency of searches the respondent submitted that it followed the test as set out in the FOI decision of Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464. The rest was articulated as: "Whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency; and if so "Whether the search efforts made by the agency to locate such documents have been reasonable in all of the circumstances of a particular case."
The respondent relied on the reasoning of the Tribunal in the case of McClymont concerning the scope of the Tribunal's jurisdiction in respect of searches. McClymont v Department of Family and Community Services [2017] NSWCATAD 202. At paragraphs 25 and 46 Senior Member Lucy observed: 25. Notwithstanding that the Tribunal now has jurisdiction to review a decision that an agency does not hold information, it does not have jurisdiction to review an alleged failure by an agency to comply with the obligation under s 53(2) of the GIPA Act to conduct reasonable searches. 46. It is not correct, as the applicant submits, that a search cannot be adequate if it only produces a meagre amount of documents. Where an agency only has a limited amount of information meeting the terms of an access application, no amount of searching will produce more than that amount of information. For this reason, the applicant's reliance upon Morgan v Department of Family & Community Services [2016] NSWCATAD 125 is misplaced.
Whilst the respondent submitted that it was not obligated to 'prove to the applicant' the basis for determining not to disclose information on the basis of risk of harm (in accordance with a consideration of personal factors under section 55 of the GIPA Act), it is still required to assess the evidence and balance it when determining the matter and provide a sufficiency of reasons in any decision.
Further In respect of application 201700146396 the respondent submitted that one document had been released in its entirety, one had been only partially released because of the potential breach of an IPP, and the remainder were subject to LPP. I note again that in respect of the IPP issue, the respondent appears to have decided that the issue was present, rather than identify evidence to establish what weight should be given to the fact that the matter was enlivened (as a preliminary step) in respect of Clause 3 (b) of the Table to section 14 of the GIPA Act. I agree that disclosure of the information could reasonably be expected to contravene an IPP, but I restate that such a position is not the end of the matter. Once the pre-condition is enlivened then an analysis of the situation requiring evidence (on review) should occur. After consideration of that evidence the preliminary position may remain, or it may alter. I note in particular the provisions of section 5 of the PPIP Act. Privacy and Personal Information Protection Act 1998 No 133 Part 1 Section 5 5 Government Information (Public Access) Act 2009 not affected (1) Nothing in this Act affects the operation of the Government Information (Public Access) Act 2009. (2) In particular, this Act does not operate to lessen any obligations under the Government Information (Public Access) Act 2009 in respect of a public sector agency.
In respect of application 201700089311 additional submissions were made concerning the reasonable searches. The respondent submitted that it had conducted further searches at the direction of the Tribunal and no other documents were forthcoming.
In respect of application 201700089313 the respondent submitted the same broad submissions (as in the other matters) rebutting the applicant's submissions and at times assertions.
In respect of application 201700089292 the respondent submitted the same broad submissions (as in the other matters) rebutting the applicant's submissions and at times assertions. In addition the respondent submitted that in respect of one document, the matter had previously been decided and there was no basis for believing that in respect of the applicant the respondent would make a different decision.

Preliminary consideration

From examining all of the evidence and material provided in open session, it is clear that at the relevant times the respondent consulted with third parties. It is also clear that this process was both in connection with seeking the third party views about general release of ('their') information, as well as considering how to approach the personal factors of the application / applicant.
Section 55 provides the following relevant to this issue: 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.
I note from section 55 (3) of the GIPA Act that only the clause 1 (a) grounds would be applicable to the arguments advanced by the respondent in these proceedings relating to personal factors, even though such arguments were not officially submitted in open reasons, submissions and evidence. It is clear from section 54 that where indicated by the respondent, consultation was both necessary and permitted under the GIPA Act.
The respondent sought a confidential hearing in accordance with section 107 of the GIPA Act. The section provides that: 107 Procedure for dealing with public interest considerations (1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. (2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. (3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of: (a) the public and the applicant, and (b) the applicant's representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure. The Tribunal dealt with the confidential (withheld) material in the confidential session.
In my view it is not necessary to limit what transpired in all of the confidential session. In the interests of open justice I will deal with the material that can be addressed openly consistent with sections 107 (1) (2) and (3) of the GIPA Act.
In Claim 201700089313 the respondent submitted that the issue was only about scope. The respondent had released to the applicant nine pages of material (with significant redactions) that the respondent submitted met the requirements of the application. 122 un-redacted line entry records were provided. A further 23 line entry records were provided with minor redactions. A total of 217 line entry records were fully redacted / withheld. However the earlier decision indicated that some personal information grounds had been relied upon in redacting some of the entries. In my view on the available evidence the respondent could have provided all information within scope and specifically deleted from that information any personal identifiers of third party non-council employees. The personal information ground appears based on evidence provided to the Tribunal in separate (but related) proceedings. I accept that submission, but believe that the residue of those entries (after redacting private names and any information that could constructively identify the names of those members of the public) should be provided.
After examining the entire suite of redactions I confirm that many of the entries are appropriately redacted as they are not within scope. I accept the respondent's evidence that it was not possible to create a record that did not include these irrelevant TRIM records due to software limitations.
In respect of 201700089313 I make a finding that the non-personal information within the line entries marked as personal information of third parties, for which the respondent has applied an overriding public interest against disclosure, shall be released to the applicant. Those entries are to be released except in so far as they name members of the public who are not council employees, identifying information such as addresses, phone numbers or references that would otherwise constructively identify those persons.
In Claim 201700089311 (in respect of the non LLP claimed matters), I have reviewed all of the confidential material. I believe that the respondent should release the signature to the correspondence dated 23 November 2011 as that information has already been disclosed to the applicant. In respect of the other material withheld, I propose to affirm the respondent's decision on the basis of the personal information / IPP basis and consideration of evidence in confidential session that significant weight should attach to the claimed public interest consideration against disclosure.
LPP. I note from both oral and written submissions a level of understandable apprehension by the applicant concerning the respondent's claim in this area. The concept of LPP (like Cabinet confidentiality and commercial in confidence provisions) is generally a somewhat alien concept to the public when first encountered. The idea that any matter would be argued without full candour is instinctively aberrant in an everyday concept. Only sensitive and highly important matters would at first instance attract a level of caution amongst the general public.
However in respect of legal proceedings, statutory provisions and the world of commerce, society has developed over many centuries to protect these matters (where desired) but in respect of individual freedoms and protections rights regimes appear to scramble to keep up to date to provide similar protections. In any event the concept is in no way alien to the law, and I wish to convey to the applicant that the claims made in this area (by the respondent) are orthodox claims that subject to sufficient evidence, can be generally supported by law. In the current context however I note the applicant's observation that any such 'convention' goes counter to the objects and purpose of the GIPA Act.
In the case of Hutchinson v Walcha Shire Council [2015] NSWCATAD 132 I dealt with the issue of LPP. At paragraphs 54 - 59 inclusive of that case I examined the meaning of the term and it's applicability to the evidence in that matter. There are numerous cases which deal with LPP in GIPA and many other legal areas concerning admissibility of evidence and discovery. The general concept relates to the dominant purpose and sole purpose tests. In Hutchinson I observed the following: Legal Professional Privilege (Sch 1 Cl 5) 54. The general provisions relating to the existence of legal professional privilege are as follows. The material must be: In the context of a client and lawyer relationship, That there is a confidential nature to the communication or the document(s), The communication or the documents was brought into existence for the dominant purpose of either: (a) assisting the client in obtaining, or the lawyer to give or provide legal advice or services, (b) for use in either existing of proposed / contemplated proceedings / litigation. 55. These provisions have a current statutory authority within sections 118 and 119 of the Evidence Act 1995 (NSW). 56. I note the applicant's repeated assertion that the employee of LGNSW whilst holding a practising certificate, was not employed as legal officer or a solicitor by LGNSW, the evidence being that he was an industrial officer. However I note that whilst the industrial officer's practising certificate is 'restricted', in that it has conditions attached to it, there is a lawyer employed in LGNSW who holds an unrestricted practising certificate. In this regard, legal work performed by an officer with a restricted practising certificate, would be supervised and covered by the unrestricted certificate of the more senior officer. 57. During both the open hearing and the confidential session, no evidence arose which would indicate that any of the communications between the respondent and the employee of LGNSW related to any issue other than the apparent provision of legal advice. Whilst the applicant maintained that other persons (such as the General Manger) should have been available to give evidence and be subject to cross-examination by the applicant on this issue, this did not eventuate. As no statement or affidavit had been tendered in that regard, and notice had not been given of witnesses required (in accordance with the directions of 20 January 2015), only the applicant and Ms McKenna gave evidence. 58. Having reviewed the material for which the claim of legal professional privilege is made, and having regard to the written submissions and in particular the evidence of Ms McKenna, in my view the claimed material falls within the definition and description of material which can be subject to a valid claim of legal professional privilege. 59. As a result there is a conclusive presumption of an overriding public interest against disclosure of the material subject to the legal professional privilege claim.
In respect of the material for which LPP has been claimed on this matter, I have reviewed the material comprising documents 7(a) and 8 (a). In my view after reviewing that material, the claim is made out. The material is an at early stage of the engagement of legal services over the central substantive dispute between the parties. Any subsequent waiver of privilege by the contents of the final correspondence (many months later concerning the Court proceedings) and its relationship to LPP claimed material does not in my view apply to 7(a) and 8(a). The material was clearly prepared for the purpose of obtaining legal advice and as such the LPP claim is made out. I will return to LPP (and the concept) later in these reasons.
In Claim 201700146393 only a very small suite of information was withheld. Whilst there was a dispute about the scope of what could be considered a fairly narrow request (background information and supporting documents to one letter), the Tribunal was unable to settle this aspect further. Within the limitations of the documents produced it is clear that those three documents are relevant. However it is clear from the confidential material submitted in other related matters (and in the absence of a statement from the relevant officer - Brown) that the documents identified could constitute a strict reading of the scope of the application.
The applicant's complaints that the records are not 'unedited' is noted, however the GIPA Act envisages (where permissible) the ability to withhold information from release and to redact or release information is clearly evident in the provisions of the GIPA Act. Section 74 provides: 74 Deletion of information from copy of record to be accessed An agency can delete information from a copy of a record to which access is to be provided in response to an access application (so as to provide access only to the other information that the record contains) either because the deleted information is not relevant to the information applied for or because (if the deleted information was applied for) the agency has decided to refuse to provide access to that information.
I am satisfied that it was permissible for the respondent to respond to the applicant's request by providing an 'edited record' and I so find.
In claim 201700089292 the remaining issue was whether reasonable searches had been conducted. The respondent's decision was that the information was not held. Later after further searches further information was identified, and some personal information withheld and information provided was outside the scope of the application.
The respondent relied on their earlier submissions (as set out above) in this and other matters decided at this hearing, concerning no reasonable grounds to believe that the requested documents exist. In particular I note again the respondent's witness's evidence about when records may or may not be created in practice when officers are operating under specific or broad delegations.
In claims 2017000146393 and 201700146396 the contentious issue related to Legal Professionally Privileged information. Some debate and discussion occurred in confidential session so as to ultimately foreshadow that not all the claimed information might be properly characterised as LPP. Ultimately due to the issuance of the final letter from the respondent's Solicitors to the applicant's Solicitors (to settle the matter), I determined after examining the confidential material, that the most recent suite of that information was no longer privileged, (5 October 2012 letter) as the privileged matters had ultimately been waived by the sending of the final letter. I also requested that the respondent review the material to see if any other information could be released having regard to these overall (confidential) reasons.
I also address the evidence upon which I uphold the majority of the personal information / IPP arguments, in the confidential session. Whilst it is not permissible to reproduce that evidence in open reasons, the applicant was alerted to these issues prior to this session, and was advised of the Tribunal's role and approach in camera, prior to that session.
During open submissions both parties referred to evidence that was tendered in a related suite of claims brought by the applicant against the respondent. There was some discussion as to whether I would have access to that material and that for reasons not further explained the parties had an understanding that both sets of proceedings would be heard by the same Tribunal Member.
As was evident to the parties at hearing, that situation did not transpire however when I inquired if it raised any procedural or other problem both parties stated that it did not. The related suite was subsequently determined by Senior Member Montgomery with reasons being published a few weeks after this hearing. Webb v Port Stephens Council [2017] NSWCATAD 271.
As indicated by the parties, I have considered the matters in that matter in so far as they relate to the personal information consideration, IPP's and 'risk of harm' arguments. However I have not examined any evidence in addition to that reproduced in those reasons or referred to in the confidential session of these proceedings.

Confidential paragraphs not for PUBLICATION OR disclosure to the applicant or the public

Not for publication:
Not for publication:
Not for publication:
Not for publication:
Not for publication:
Not for publication:
Not for publication:

End of confidential paragraphs

In open session due to time constraints the hearing went straight into the applicant's closing submissions. The respondent indicated at the end of the hearing that that they would not be making any further submissions.

Applicant's closing submissions

The applicant submitted that the respondent should be open and transparent. The applicant took issue with and has always maintained an issue with an assertion relating to 'harm' being a ground for denying access to information concerning third parties.
The applicant submitted that she and Mr McEwan had obtained their 'police' records / holdings and submitted that there was nothing adverse in the material that they had obtained. In such circumstances they believe that the assertions against them concerning threats etc. are unfounded.
It was submitted that there was no evidence of 'threats' and Council's own compliance reports contained no reference to violence from the applicant or any person associated with her.
The applicant highlighted the Council's (respondents) assertion that there are no records to support the issuing of the order to forcibly enter the premises. The applicant submits that Council's position is that Mr Minett made the decision to forcibly enter entirely of his own volition.
Many of the applicant's submissions about the respondent's practices, alleged lack of transparency and unprofessionalism and lack of compliance with the law were raised at various times during the proceedings, and responded to by the respondent in both written and oral evidence / submission by way of rebuttal.

Consideration

The case of Commissioner of Police NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 examined how the Tribunal might approach the task when dealing with material for which there is claimed a public interest consideration against disclosure. At paragraphs 28-30 the Appeal Panel observed: 28. In Director General, Department of Education & Training v Mullett & anor (GD) [2002] NSWADTAP 13 (Mullett), the Appeal Panel said: 58 In our view cl 13(b)(ii) requires the Tribunal to engage in a relatively abstract analysis. It must ask whether material of the kind sought to be protected on the present occasion would, if released, prejudice the supply of similar material to government in the future, as a matter of reasonable expectation. That requires the Tribunal to characterise the nature of the material sought to be protected on the present occasion; to identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; the extent to which guarantees of confidentiality may be necessary. We agree with the dicta of Young CJ in Ryder v Booth [1985] VR 870 as to how a similar question arising under the Victorian FOI Act's in-confidence exemption (whether disclosure would be reasonably likely to impair the ability of an agency to obtain information communicated in confidence) should be approached. His Honour said at 872: `The question then is, would disclosure of the information sought impair (i.e. damage) the ability of the [agency] to obtain similar information in future. ... It may be noted that it is the ability of the [agency] that must be impaired. The paragraph is not concerned with the question whether the particular doctor whose report is disclosed will give similar information in future but with whether the agency will be able to obtain such information. ...' 29. This approach was endorsed in many subsequent Tribunal and Appeal Panel decisions. The same approach is required, as we see it, in relation to many of the s 14 Table considerations. They squarely focus on considerations relating to the conduct of the business of government. Under the first five clauses of the section 14 Table there are a total of 35 possible 'effects' listed (clause 1, nine; clause 2, nine; clause 3, seven; clause 4, five; clause 5, five). Each of the five clauses is introduced by the words: 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:. 30. The Tribunal is called on to examine whether the effect is established and then to ask whether the disclosure 'could reasonably be expected' to have the specified effect.
I have already observed the respondent's approach to determining matters for which there is a claimed public interest consideration against disclosure sufficient to override the general presumption in favour of disclosure. Whilst these proceedings may not have resulted in much more information becoming available to the applicant, the decisions under review (and in part the written submissions) highlight what appears to be a misunderstanding of how such matters should be decided. Whilst some evidence was adduced from the broad picture painted by some of the confidential material, it was not always determinative of the matters referred to in paragraph 30. of Camilleri.
A number of other issues arose with the LPP claim in the confidential session. It was difficult to understand from the documents (and the passage of time) the context of an apparent draft letter prepared by Council Officer Randall, which takes the form of a draft letter to council from the applicant and Mr McEwan dated 5 October 2012. It appears to be a draft 'resubmission' which Council would deem acceptable in order to process the section 82A Review (under the EPA Act). Some discussion occurred about how the final settlement correspondence and consent orders were prepared for transmission to the applicants then Solicitors for her and Mr McEwan to execute ultimately resolving the Land and Environment Court proceedings.
However the applicant does not appear to posses this draft (or letter) even though a letter of 5 October 2012 is referred to in an e-mail from Council's lawyers to the applicant's Solicitors. (E-mail Lisa Gowing to John Prescott 5 October 2012 at 5:02pm. The e-mail states: Dear John Attached is a copy of letter which has been faxed to you. Regards Lisa Gowing Special Counsel Harris Wheeler Lawyers
In her documents the applicant has produced this e-mail and handwritten on it '*ANTHONY RANDALL'S LETTER OF 05TH OCT 2012' It remains unclear to the Tribunal whether the relevant document that this e-mail is referring to is the 'Randall draft' for the applicant and Mr McEwan's signature, or the Harris Wheeler letter of 5 October 2012 signed by Lisa Gowing (one and one half pages in length and dealing with 'existing ground height' amongst other planning / approval related issues).
In my view the way that this issue can be resolved is for the respondent to provide a copy of the letter referred to in their Lawyer's e-mail of 5 October 2012 (if they have not already done so) 28 days after the publication of these reasons. Clearly any claimed privilege was waived by the transmission of that letter to the applicant's Solicitors.
I have some concerns with the manner in which the respondent's reasoning was expressed in it's Notices of Decision, and a possible misunderstanding about the import and operation of sections 12 and 14 of the GIPA Act. However, except in the manner in which I slightly depart form the respondent's conclusions, predominantly their conclusions are permissible under the GIPA Act. On this basis I will, be predominantly affirming the respondent's decisions.
In reaching this position I have had significant regard to the fact that a significant part of the hearing occurred in the applicant's absence and that there is an inherent unfairness in such a situation. However balancing that unfairness is the text of the statue whereby it is clear that such matters (where appropriate) were intended to be dealt with in this manner. Such a position is not inconsistent with the objects of the GIPA Act in that a confidential session ensures that there is sufficient scrutiny of the information and the arguments in a frank and candid manner.
Whilst arguable prejudice might attach to the applicant if they were to be denied the remaining information, that must be balanced against the broader public interest and the basis of the inclusion of these provisions (to be applied in significant circumstances) under the legislation. In addition the manner in which I have drafted these reasons has been designed to limit the 'in camera' arguments wherever possible, consistent with the objects of the Act.
I therefore find that the remaining information should be withheld because the evidence against disclosure, when applied to the relevant public interest considerations against disclosure, outweighs the public interest in favour of disclosure, and in respect of the LPP arguments, where indicated Clause 5 of Schedule 1 applies.
I have had regard to all of the evidence and material filed and submitted in open and confidential session even if I have not referred to every aspect of it explicitly in these reasons.
I have set out much of the consideration of the matters as I set out the evidence and submissions, as it seemed more appropriate bearing in mind that this is a joint set of reasons covering six different applications between the parties. However I have also analysed the evidence and arguments in the later part of these reasons. Hopefully the provision of joint reasons will facilitate the discharge of the guiding principle of the Tribunal under the Civil and Administrative Tribunal Act 2013.
In closing I also determine that the open reasons including the material filed and served between the parties provides sufficient grounds (having regard to the constraints of section 107 of the GIPA Act) to discharge a duty to give reasons in accordance with the provisions of Section 62 (3) of the Civil and Administrative Tribunal Act 2013.

Conclusion

Having examined all of both the open and confidential material filed with the Tribunal by the respondent, and having noted all of the evidence and submissions in the proceedings (both written and oral), in my view the correct and preferable decision is to affirm the decision of the respondent in respect of claims: 201700146393 and 201700089292 and to vary the decisions in respect of the remaining four claims in the manner set out below.

Orders 1. The decision of the respondent is affirmed in Claim 201700146393. 2. The decision of the respondent is affirmed in Claim 201700089292. 3. In respect of 201700089313 the non-personal information within the line entries marked as personal information of third parties, for which the respondent has applied an overriding public interest against disclosure, shall be released to the applicant. Those entries are to be released except in so far as they name members of the public who are not council employees, identifying information such as addresses, phone numbers or references that would otherwise constructively identify those persons. 4. In Claim 201700089311 (in respect of the non LLP claimed matters), the respondent should release the signature to the correspondence dated 23 November 2011. The decision is otherwise affirmed. 5. In respect of claim 201700146396 the e mail identified in paragraph 78 of the Confidential Reasons shall be released 28 Days after publication of these reasons. I also direct that the respondent review the matter in accordance with the terms of paragraph 81 of the Confidential Reasons within 28 days of the date of publication of these reasons and advise the Tribunal whether any further information is forthcoming. The respondent has liberty to apply on this point. The decision is otherwise affirmed. 6. In respect of claim 201700146399 (the e mail identified in paragraph 79 of the Confidential Reasons shall be released 28 Days after publication of these reasons. I also direct that the respondent review the matter in accordance with the terms of paragraph 81 of the Confidential Reasons within 28 days of the date of publication of these reasons and advise the Tribunal whether any further information is forthcoming. The respondent has liberty to apply on this point. The decision is otherwise 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: 29 November 2017

At a glance

Court

Decision date

Source

Judgment (20 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (4)

Cited By (6)