Webb v Port Stephens Council

Background

1. From the material filed (see Ex R3, pp190 - 194) and the oral submissions of the appellant it is necessary to briefly set out the sequence of events relating to the development application of the appellant and her partner in so far as those events relate to the information that was the subject of the appellant's access requests and review applications before the Tribunal below. In summary these events are as follows: 1. on 21 April 2011, the respondent received a complaint about "a brick wall " that was being constructed in the back yard of the appellant and her partner. Greg Rodwell, the respondent's compliance officer, contacted the appellant's partner who advised that the wall was inside the existing fence to provide privacy. The appellant's partner advised that the wall was about 2.1 metres high and that he had contacted Council who had informed him that there was no issue in building the wall. Greg Rodwell advised the appellant's partner that the wall was not an exempt development and that the respondent's consent was required; 2. on 15 July 2011, the appellant and her partner submitted their DA to the respondent in regard to the backyard privacy screen (the privacy screen). That application was made under s 78A of Part 4 of the Environmental Planning and Assessment Act 1979 (NSW), as it applied at that time, (EPA Act); 3. on 27 October 2011, the respondent refused the DA of the appellant and her partner; 4. on 10 January 2012, the respondent issued an order, under s 121B (1) of Part 6 of the EPA Act for the partial demolition of the privacy screen (the partial demolition order); 5. in February and again in March 2012, the respondent gave notice to the appellant and her partner, under s 118C of Part 6 of the EPA Act, of its intention to enter their property for the purpose of conducting a swimming pool audit; 6. on 9 March 2012, the respondent withdrew the partial demolition order. In its letter to the appellant and her partner advising them of this withdrawal, the respondent informed them that the order was withdrawn on legal advice. The respondent also advised that it was intending to issue another order for full demolition, a copy of which was attached; 7. on 13 March 2012, pursuant to s 82A of Part 4 of the EPA Act, the appellant and her partner requested the respondent to review its determination to refuse their DA (s 82A request); 8. on 8 May 2012, the respondent refused the s 82A request of the appellant and her partner; 9. on 6 June 2012, the respondent issued the proposed full demolition order; 10. on 14 June 2012, the appellant attended the offices of the respondent and sought to submit a further s 82A review application. Paul Minette, Acting Manager, Development Assessment and Compliance of the respondent, attended the front counter of the respondent's offices and informed the appellant that the avenues for a further s 82A review had been exhausted; 11. on 4 July 2012, the appellant and her partner commenced proceedings against the respondent in the NSW Land and Environment Court; 12. on 3 October 2012, the appellant and her partner made a further s 82A review request in which they sought to amend their DA; 13. on 20 December 2012, the appellant and the respondent entered into a settlement agreement which included approval of the DA with a reduced height of the privacy screen.
2. The Tribunal summarised the background to the appellant's application at [26] and [27] of its reasons for decision: see also Port Stephens Council v Webb [2017] NSWCATAD 341, at [6] to [11]. We note the appellant and her partner sold their home in 2013 and now live in another town.

Appellant's Notice of Appeal

1. In her Notice of Appeal the appellant asserted that the Tribunal had erred in its decision. The appellant identified the orders the Appeal Panel should make, which included: 1. an order that the respondent provide evidence of searches undertaken to identify and locate the information requested in each of the matters (applications) for which she had sought access and external review; and 2. in respect of two matters (applications), file no 2017/0089311 (GIPA claim 2) and file no 2017/0089313 (GIPA claim 3), an order that the respondent provide an unredacted form of the information (documents) for which access was granted in part.
2. The appellant indicated she was seeking leave to appeal and in this regard said the following: "Respectfully, the Tribunal has been remiss in the following: • Not taking the full nature and classification of the documents and information requested into proper account, reflected in several paragraphs of the Tribunal's decision. • Not properly considering the complete omission of evidence of searches undertaken by the Respondent to the proceedings. • Not accurately recalling some of the oral evidence of the Respondent."
3. In her written submissions the appellant expanded on these grounds further in so far as they related to each review application she had lodged. We have dealt with the issues raised in the appellant's Notice of Appeal and written submissions below.

Respondent's Reply to Appeal

1. In its Reply to Appeal, the respondent said it did not agree that the Tribunal had erred. Nor did it agree with the orders sought by the appellant.

Issues

1. The appellant has at all times been self represented and is not legally qualified. In her written submissions raise she has raised numerous matters, the majority of which go to the merits of the decision of the Tribunal below. At the hearing, we explained to the appellant that in order to have the merits of the findings of the Tribunal below re-examined and re-determined, she must first establish that the Tribunal erred in law, or that the Tribunal had otherwise erred warranting a grant of leave to appeal: see Collins v Urban [2014] NSWCATAP 17, at [84].
2. In light of the appellant not being legally qualified, we have identified the following as possible grounds of appeal from the material she filed: 1. the Tribunal failed to adequately deal with the issue as to whether the respondent had carried out reasonable searches in regard to the information for which she sought access (adequacy of search ground); 2. a reasonable apprehension of bias (apprehended bias ground); and 3. the Tribunal applied the wrong test to the issue of: 1. open access information the subject of the appellant's access requests (open access ground); and 2. legal professional privilege (legal professional ground).
3. The appellant also complained about the manner in which officers of the respondent dealt with her access requests and responded to her external review applications before the Tribunal below. In this regard the appellant requested that we have regard to s 111, 112 and 116 of the GIPA Act. These sections make provision for; (a) the referral of any systemic issues to the Information Commissioner, (b) bringing to the attention of the Minister any officer of an agency who appears to have failed to exercise his of her function under the Act in good faith and (c) an offence where an officer of an agency makes a reviewable decision that the officer knows to be contrary to the requirements of the Act.
4. In our view, in this appeal no systemic issues arise. Nor has any improper conduct by the officers of the respondent been identified. On the contrary, we found the respondent and its officers to have exercised their respective functions under the GIPA Act appropriately.
5. We note that the Tribunal below was not critical of the conduct of the officers of the respondent. Tony Wickham, Governance Manager and Public Officer of the respondent filed a statement in those proceedings. He also gave oral evidence and was cross-examined by the appellant and, in our opinion, it was open to the Tribunal to accept his evidence. While the appellant does not accept his evidence she has not provide any material to indicate that his evidence was untruthful.
6. Before we deal with each of these matters we have briefly dealt with the material that is before us, the terms of the appellant's access requests and the relevant provisions of the GIPA Act.

Material before the Appeal Panel

1. The appellant filed and served four bundles of documents in support of her appeal. These included written submissions, evidence (including fresh evidence) and three unofficial transcripts of hearings before the Tribunal on 20 March 2017, 19 July 2017 and 23 August 2013.
2. On objection from the respondent we disallowed the material in the appellant's bundle marked "3 of 4" and the unofficial transcript of the 20 March 2017 hearing. The documents in the bundle marked "3 of 4" was an Administrative Guide (i.e. manual) for Hewlett Packard Enterprise Computer Software, dated July 2017. This material was not before the Tribunal below, yet it was material the appellant could have obtained for that hearing. In our view, the manual was otherwise of no relevance to the issues in this appeal.
3. We disallowed the unofficial transcript of the hearing before the Tribunal, differently constituted, on 20 March 2017, as those proceedings related to earlier external review proceedings of the appellant and her partner and not relevant to the issues in this appeal.
4. The respondent filed and served a bundle of documents which contained a copy of the following documents in regard to each of the external review applications (i.e. GIPA access requests 1 to 6) that were before the Tribunal below: 1. the decision of the respondent the subject of external review by the Tribunal. Included with the decision was a copy of the information that the respondent had determined access should be granted; 2. the additional information provided to the appellant, following the decision of the Tribunal below; 3. the written submissions of the respondent before the Tribunal below; and 4. the evidence relied on by the respondent before the Tribunal below.
5. The respondent also relied on a short statement of Tony Wickham, Governance Manager and Public Officer of the respondent, dated 13 April 2018. The statement responded to submissions made by the appellant in this appeal and supplemented his statements that were before the Tribunal below.
6. The respondent provided to the Appeal Panel, on a confidential basis, a copy of the information for which access had been refused on the grounds of there being an over-riding public interest against disclosure. We made an order, under s 64 of the NCAT Act, prohibiting the disclosure of that information to the applicant, her representatives (if any) or the public to give effect to the requirements of s 107 of the GIPA Act. We also had access to the Tribunal's confidential reasons for decision as set out at [75] to [81].
7. The respondent filed and served written submissions and the appellant filed written submissions in reply.

The GIPA Act

1. The objects of the GIPA Act are set out in s 3(1) as follows: "3 Object of Act (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. (2) It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information."
2. The GIPA Act then sets out in a logical and systematic manner the way in which requests for access to government information can be made, how they are to be dealt with, how they are to be determined and what review rights are available to persons who are aggrieved by a decision of an agency in regard to that person's access request.

General Principles

1. Part 2 of the GIPA Act sets out the general principles applicable to the object of "open government". In this regard, s 5 provides that there is a presumption in favour of the disclosure of government information unless there is an "overriding public interest against disclosure".
2. Section 6(1) of the GIPA Act provides that an agency must make the government information that is "open access information" publicly available unless there is an overriding public interest against the disclosure of the information. We have dealt with this provision in more detail below.
3. Section 9(1) of the GIPA Act provides: "9 Access applications (1) A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information."
4. Section 13 of the GIPA Act defines what is meant by the term "overriding public interest against disclosure" as follows: "13 Public interest test There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure."
5. Section 12(1) of the GIPA Act provides that there is a general public interest in favour of disclosure of government information. Section 12(2) provides that the public interests in favour of disclosure are not limited.
6. However, the public interest considerations against disclosure of government information are limited to that which is prescribed in s 14. Section 14(1) provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of any government information described in Schedule 1 of that Act. Clause 5 of Sch 1 deals with information that would be privileged from disclosure in legal proceedings. That clause is in the following terms: "5 Legal professional privilege (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege. (2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause. (3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5."
7. The Table in s 14(2) lists the only other public interest considerations that can be taken into account. In this appeal the relevant public interest considerations against disclosure are: "3 Individual rights, judicial processes and natural justice There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects: (a) reveal an individual's personal information, (b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002, … (f) expose a person to a risk of harm or of serious harassment or serious intimidation, …"
8. Section 15 sets out the principles that are to apply in determining whether there is an overriding public interest against disclosure as follows: "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."

Open access information

1. Sect 18 defines what constitutes "open access information": "18 What constitutes open access information The following government information held by an agency is the agency's open access information that is required to be made publicly available by the agency under section 6 (Mandatory proactive release of certain government information): (a) the agency's current agency information guide (see Division 2), (b) information about the agency contained in any document tabled in Parliament by or on behalf of the agency, other than any document tabled by order of either House of Parliament, (c) the agency's policy documents (see Division 3), (d) the agency's disclosure log of access applications (see Division 4), (e) the agency's register of government contracts (see Division 5), (f) the agency's record (kept under section 6) of the open access information (if any) that it does not make publicly available on the basis of an overriding public interest against disclosure, (g) such other government information as may be prescribed by the regulations as open access information."
2. Regulation 3(1) of the Government Information (Public Assess) Regulation 2009 (NSW) (repealed) made provision for additional open access information of a local authority as listed in Schedule 1 to that Regulation. Included in that Schedule is information about development applications, as follows: "3 Information about development applications (1) Information contained in the following records (whenever created) is prescribed as open access information: (a) development applications (within the meaning of the Environmental Planning and Assessment Act 1979) and any associated documents received in relation to a proposed development including the following: (i) home warranty insurance documents, (ii) construction certificates, (iii) occupation certificates, (iv) structural certification documents, (v) town planner reports, (vi) submissions received on development applications, (vii) heritage consultant reports, (viii) tree inspection consultant reports, (ix) acoustics consultant reports, (x) land contamination consultant reports, (b) records of decisions made on or after 1 July 2010 on development applications (including decisions made on appeal), (c) a record that describes the general nature of the documents that the local authority decides are excluded from the operation of this clause by subclause (2). (2) However, this clause does not apply to so much of the information referred to in subclause (1) (a) as consists of: (a) the plans and specifications for any residential parts of a proposed building, other than plans that merely show its height and its external configuration in relation to the site on which it is proposed to be erected, or (b) commercial information, if the information would be likely to prejudice the commercial position of the person who supplied it or to reveal a trade secret, or (c) development applications made before 1 July 2010 and any associated documents received (whether before, on or after that date) in relation to the application. (3) A local authority must keep the record referred to in subclause (1) (c)."
3. The Government Information (Public Access) Regulation 2018 (NSW) contains provisions in the same terms to the above in reg 4 and Sch 1.

Processes for dealing with access applications

1. The processes for dealing with an access request are set out in Division 3 of Part 4 of the GIPA Act. Section 53 in that Division sets out the obligation of an agency in conducting a search for the information an access applicant has requested. That section is in the following terms: "53 Searches for information held by agency (1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. (2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency. (3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically. (4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures. (5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources."
2. Section 54 deals with consultation with a third party, on public interest considerations where the information for which access is sought is personal information about that person, or concerns the person's business or research, or concerns the affairs a government of the Commonwealth or another State and the person is that government. Section 55 makes provision for the consideration of personal factors of the access applicant in determining an access request.

How an access request is decided

1. Section 58 sets out what decisions an agency can make in determining an access application. That section relevantly provides as follows: "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. Note. These decisions are reviewable under Part 5. (2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for."
2. As indicated in the note to s 58(1), each of these decisions are reviewable decisions: see GIPA Act, s 80. They are internally reviewable by the agency (s 82), the Information Commissioner (s 89) and the Tribunal (s 100).

Review of access decisions of an agency

1. As we have noted, the abovementioned decisions of an agency are reviewable by the Tribunal. Where an access applicant seeks review by the Tribunal, s 105 provides that the burden of establishing that the decision the subject of review is justified lies on the agency.
2. Section 107, provides that in determining an application for review, the Tribunal is to ensure that it does not, in its reasons for decision or otherwise, disclose any information for which there is an overriding public interest against disclosure.

Summary of the appellant's access requests and the determination of the respondent

1. In summary, the information for which the appellant sought access and the original determination of the respondent in respect of each request was as follows: 1. File no 2017/0089313 (GIPA access request 1): 1. the appellant sought access to the respondent's TRIM records that refer to or relate to DA No 483 of 2011, being the former premises of the appellant and her partner; 2. the respondent identified four documents falling within this request and granted full access to one document (Doc 3). Access was refused in part to the information in the remaining three documents (Doc 1, 2 and 3) on the grounds of s 14(2) Table cl 3(a) & (b); 1. File no 2017/00089311 (GIPA access request 2): 1. the appellant sought access to the background/supporting information relating to the revocation of the partial demolition order of January 2012 and the issuing of the June 2012 full demolition order. These orders were issued by the respondent to the appellant and her partner in regard to their screening fence; 2. the respondent identified 23 documents falling within this request. Access in full was granted to 16 documents (Doc 1 - 5, 9, 11, 13 - 15 and 17 - 22). Access was refused to one document (Doc 23) as the respondent had already provided the appellant with a copy of that document in response to an earlier access request: GIPA Act, s 60(1)(b). Access was refused in regard to one document (Doc 8) on the grounds that it would be privileged in legal proceedings and the respondent had decided not to waive that privilege. Access was refused in part to the information in the remaining documents (Doc 6, 7, 10, 12 and 16) on the grounds of s 14(2) Table cl 3(a), (b) & (f); 1. File no 2017/0089292 (GIPA access request 3): 1. the appellant sought the background information relating to the order to forcibly enter the appellant's former premises in February and March 2012, full and unedited reports from the forced entries and full and unedited copies of to whom and where those reports were disclosed (including internally within the respondent); 2. the respondent identified three documents falling within this request and granted full access to two documents (Doc 1 and 3). Access was refused in part to the information in the remaining document (Doc 2) on the grounds of s 14(2) Table cl 3(b); 1. File No 2017/00146393 (GIPA access request 4): 1. the appellant sought access to the background information and supporting documents to the letter of Paul Minett dated 15 June 2012; 2. the respondent identified three documents falling within this request and granted full access to two documents (Doc 1 and 3). Access was refused in part to the information in the remaining document (Doc 2) on the grounds of s 14(2) Table cl 3(b) 1. File no 2017/0014696 (GIPA access request 5): 1. the appellant sought access to the background information and supporting documents to the letter of Paul Minett dated 13 July 2012; 2. the respondent identified nine documents falling within this request and granted full access to one document (Doc 2). Access was refused in part to the information in another document (Doc 1) on the grounds of legal professional privilege. Access was refused in part to the information in the remaining documents (Doc 3 - 9) on the grounds of s 14(2) Table cl 3(b); and 1. File no 2017/00146399 (GIPA access request 6): 1. the appellant sought access to the background information and supporting documents to the letter of Anthony Randall dated 5 October 2012; 2. the respondent identified seven documents falling within this request and refused access to the information in six documents (Doc 1 - 5) on grounds of legal professional privilege. Access was refused in part to the remaining document (Doc 6) on the grounds of s 14(2) Table cl 3(b).
2. We note that during the course of the proceedings below, some additional information was found and disclosed in part or full to the appellant. It is unnecessary to identify this additional information, or additional disclosures that were made for the purpose of this appeal.

Apprehended bias ground of appeal

1. It is convenient to first deal with the appellant's apprehended bias ground.
2. Section 38(2) of the NCAT Act provides that the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. These rules of natural justice traditionally involve two requirements; the fair hearing rule and the rule against bias. The hearing rule requires that each party be given an opportunity to be heard before the decision maker makes a decision affecting that person's interest.
3. The rule against bias ensures that the decision maker is and can be objectively considered to be impartial and not to have pre-judged the issues for determination. The rule ensures that there is no actual or apprehended bias. In Khashashneh v Travel Compensation Fund [2015] NSWCATAP 142, at [15], the Appeal Panel made the following observations in regard to apprehended bias: "15 It is a fundamental principle of procedural fairness that a member of the Tribunal must be, and must be seen to be, impartial: Johnson v Johnson [2000] HCA 48; 201 CLR 488 at 501. The test is an objective one. A Tribunal Member should not hear a case if a fair minded lay observer might reasonably apprehend an impartial judicial mind might not be brought to bear on the resolution of the proceedings: Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345 the High Court held that the question whether a fair-minded lay observer might reasonably apprehend a lack of impartiality requires two steps. The first is to identify what it is said might lead a decision-maker to decide a case other than on its legal and factual merits. The second requires the articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits."
4. A breach of the hearing rule and a breach of the bias rule give rise to a question of law: see John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, at [13].
5. The appellant asserts that, at the hearing before the Tribunal below, Tony Wickham and Lisa Marshall (solicitor appearing for the respondent) took advantage of the Tribunal Member in regard to evidence from third party objectors to the disclosure of their personal information and the evidence of alleged of risk of harm if such information were to be disclosed to the appellant. She asserts that in anticipation of Senior Member Montgomery being allocated to hear and determine her applications for review, Tony Wickham and Lisa Marshall had decided to rely on the same evidence and findings that were before Senior Member Montgomery, on 20 March 2017, in regard to the issue of personal information and risk of harm. On this day, Senior Member Montgomery heard earlier review applications the appellant and her partner had made in regard to their initial access requests concerning their 2011 DA application, where the same issues of public interest considerations against disclosure were raised: i.e. personal information and risk of harm as set out in s 14 Table 3 (a), (b) and (f) of the GIPA Act. That evidence, as required under s 107 of the GIPA Act was given in confidence, in the absence of the appellant, her partner and the public.
6. We understand the appellant to contend that when Tony Wickham and Lisa Marshall became aware that Senior Member Montgomery would not be hearing and determining her review applications they nevertheless relied on the same information "even though those earlier confidential submissions, statements, and concocted documentation, "had fallen away"". The appellant assets that Tony Wickham and Lisa Marshall did this intentionally to mislead the Tribunal.
7. The Tribunal dealt with this evidence at [71] to [74] of its reasons for decision: "71 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. 72 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. 73 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. 74 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."
8. The Tribunal also dealt with this evidence in its confidential paragraphs [75] - [77] of its reasons for decision.
9. In accordance with s 107 (2) and (3) of the GIPA Act, at a hearing on review, where there is information for which there is a claim of an overriding public interest against the disclosure of that information, the Tribunal (on application of the agency, or on its own motion) is required to receive that information into evidence and hear argument in confidence, in the absence of the public, the access applicant and the applicant's representative. As noted above, it was in that context that the Tribunal below accepted the evidence and argument of the respondent. Whether the evidence was exactly the same we cannot say. However, the public interest considerations against disclosure in cl 3(a), (b) and (f) of the Table in s14 and the circumstances in which they arose appear to have been the same, or similar in both proceedings. We have examined the material that was before the Tribunal below in regard to these public interest considerations against disclosure and we are satisfied that this material fell within the requirements of s 107(2) and (3) and that is how the Tribunal dealt with that material. Accordingly, we can find no error in the manner in which the Tribunal proceeded to deal with that material.
10. Nor are we satisfied that the decision of the Tribunal below was affected by an apprehended bias. That is, we reject the appellant's contention that a fair-minded lay observer might reasonably apprehend a lack of impartiality by the Tribunal Member in determining her applications.
11. Accordingly, we find that this ground of appeal has not been established.

Adequacy of search ground

1. In her written submissions, the appellant said that, in respect of each access request the subject of this appeal and the proceedings below, the respondent did not provide the information requested. The appellant had made a similar argument before the Tribunal below.
2. As we have noted above, s 53(1) of the GIPA Act provides that the obligation of an agency is limited to information the agency holds at the time the request for access is received. Section 53(2) requires the agency to undertake reasonable searches for the information sought by using the most efficient means reasonably available to it.
3. In its reasons for decision the Tribunal made a number of references to the evidence of Tony Wickham in regard to searches that were undertaken for information falling within the appellant's access requests: see at [32] to [34], [36], [37], [45], [46], [49] and [68] of the reasons for decision. It is also evident from the unofficial transcript of the hearing before the Tribunal below that the appellant cross-examined Tony Wickham in regard to this evidence, as she was entitled to do.
4. At [46], of its reasons for decision, the Tribunal noted the submissions of the respondent that the Tribunal has no jurisdiction to review an alleged failure by an agency to comply with its obligation under s 53(2) to undertake reasonable searches for the information sought. The Tribunal went on to cite with approval the remarks of Senior Member Dr Lucy in McClymont v Department of Family and Community Services [2017] NSWCATAD 202, at [25] and [46], in regard to the issue as to whether the agency had met its obligation under s 53(2). We reiterate what Senior Member Dr Lucy said at [25]: "While it is this evidence which appears to be of concern to the appellant, this is an issue concerning the merits of the matters before the Tribunal below and do not give rise to a question of law or identify any error by the Tribunal in its decision or reasons for decision."
5. At [26], Senior Member Dr Lucy said: "In this case, the agency has not included in its original notice of decision any explicit decision that it does not hold information. The notice of decision identified certain information and provided the agency's decisions to grant and refuse access to subsets of that information."
6. In that case, the issue was whether the respondent had, by implication, also made a decision that it did not hold certain information. At [30], Senior Member Dr Lucy concluded: "In circumstances where the agency has made an explicit decision that it does not hold information, the question of whether the Tribunal has jurisdiction to review an implicit decision that it does not hold information does not arise. …"
7. Senior Member Dr Lucy went on to find that, on the basis of the agency's supplementary determination that it did not hold any further documents, this determination was an explicit decision of the agency falling within ss 80(e) and 100 of the GIPA Act.
8. A decision of this nature was not made in this case. The respondent's position was that it had conducted adequate searches for the information the appellant sought access to. Notwithstanding this evidence, the appellant's position was that the searches were not adequate because so few documents were identified when one would expect more documents to have been created in support of the events that were the subject of the appellant's access requests. The appellant went on to say that these additional documents were being deliberately withheld by the respondent, in particular Tony Wickham and Lisa Marshall.
9. In our view, on the material before us, there is no evidence to support the contentions of the appellant. The fact that the appellant assumed there would be more documents does not mean that the respondent did hold further documents.
10. Accordingly, we can find no error in the decision of the Tribunal below in regard to the manner in which it dealt with the issue of adequacy of search. It was not a decision that was reviewable by the Tribunal in any event and the decisions that were reviewable did not include a decision by the respondent that it did not hold the information for which the appellant sought access.

Open access information ground

1. In McEwan v Port Stephens Council [2018] NSWCATAP 211, the Appeal Panel dealt with the issue of open access information, at [39] to [44], in its reasons for decision. In that regard, at [41] and [42] the Appeal Panel said: "41 We agree that the mandatory release requirement in s 6 of the GIPA Act is substantially qualified such that it does not apply when the balancing exercise required by the overriding public interest against disclosure test set out in s 13 of the GIPA Act is against disclosure. This is apparent from the terms of s 6(1) of the GIPA Act. 42 However, we think that because the information in issue was open access information the Tribunal needed to start with the position that this was an important factor in favour of disclosure which was additional to other relevant factors in favour of disclosure, including the general public interest in favour of disclosure provided for in s 12(1) of the GIPA Act. In our view such an approach is necessary in order to give meaningful effect to the mandatory release requirement expressed in s 6."
2. In that case, Mr McEwan had sought access to: "A full and unedited copy of all the objecting submissions and attachments for the DA No: 483/2011, including the original DA and subsequent 82a Requests for Review".
3. As noted above, cl 3(1) of Sch 1 of the GIPA Reg, provides that information contained in; 1. a development application falling within the meaning of the EPA Act and any associated document received in relation to such an application; 2. a record of a decision (including decisions on appeal) made on or after 1 July 2010 on a development application is open access information falling within s 6 of the GIPA Act.
4. In submissions at the hearing, the respondent conceded that the information contained in the demolition orders, the notices to enter the property of the appellant and her partner and the s 82A determinations were all records containing open access information. However, the respondent went on to contend that the information in the TRIM records for which the appellant sought access was not open access information.
5. The TRIM records for which the appellant sought access were screenshots from the respondent's electronic record management system in response to searches of records referring to the property owned by the appellant and her partner and their 2011 DA. Each screenshot listed numerous document titles and against each title was an item document number, the name of the person etc. from whom the document came, the subject/file name of the document and the date of the document. The appellant we understand sought access to this information so that she could identify those documents held by the respondent which were of interest to her and for which she may decide to make a further request for access.
6. In our opinion, given the nature of this record it does not fall within cl 3(1) of Sch 1 of the GIPA Reg as it is not a development application, a document received in association with such an application, or a record of a decision of the respondent in regard to a development application.
7. We make a similar finding in regard to the background information and supporting documents the subject of the remaining applications of the appellant, unless that information or document falls within the terms of cl 3(1) of the GIPA Reg. Whether they do fall within the cl 3(1) description is ultimately a question of fact to be determined in the context of each individual case. There is insufficient material before the Tribunal to determine whether the disputed information the subject of the appellant's applications before the Tribunal below in fact falls within cl 3(1).
8. Where the information in issue is in fact open access information, as noted by the Appeal Panel in McEwan, this is an "important factor in favour of disclosure" (in addition to other relevant factors in favour of disclosure, including the general public interest in favour of disclosure provided for in s 12(1) of the GIPA Act) when it comes to determining whether the balance lies between a public interest consideration against disclosure and the public interest in favour of disclosure.
9. In this case, the respondent relied on four public interest considerations against disclosure. These were the personal information of a person(s) other than the appellant in cl 3(a) and (b) of the Table to s 14(2), a risk of harm or of serious harassment or serious intimidation in cl 3(f) of the Table to s 14(2) and legal professional privilege in cl 5 of Sch 1 to the GIPA Act. As we have explained below, where a claim of legal professional privilege is satisfied this gives rise to a conclusive public interest consideration against disclosure. Hence, on an application for review, where a claim for privilege is made by the agency and the Tribunal is satisfied that the claim has been appropriately made, the Tribunal must affirm the decision of the agency to refuse access to that information.
10. However, in regard to the remaining information for which access was refused, the Tribunal was required to determine whether the public interest consideration against disclosure had been appropriately made and if so satisfied, determine, as at the date of hearing where the balance lay between that public interest consideration against disclosure and the public interest considerations in favour of disclosure.
11. In its written submissions the respondent said that during the hearing of the appellant's review applications below, it had not challenged the appellant's contention that the information for which she sought access was open access information. The respondent went on to say that even accepting that the material was open access information this did not mean that the entirety of the information was required to be disclosed, as s 6 of the GIPA Act expressly provided that access to such information was nevertheless subject to there being an overriding public interest against disclosure. In this regard, the respondent contended that the Tribunal had correctly applied the s 13 public interest test to the personal information of a person other than the appellant and the risk of harm in the disclosure of that information.
12. While the respondent is correct that disclosure of open access information is subject to there being an overriding public interest disclosure against disclosure, the Tribunal made no mention of the information having been open access information as contended by the appellant and the respondent. While we have some doubt as to whether all the information in issue was open access information, we nevertheless find, as the Appeal Panel found in McEwan, at [44] and [45], that the Tribunal's failure to make any reference to the open access nature of the information sought, raises a question of law in that it failed to carry out the balancing exercise it was required to undertake by reference to the open access nature of the information.
13. As noted by the Tribunal below, at [88] and [89], it was called upon to examine whether the s 14(2) public interest consideration against disclosure relied on by the respondent "could reasonably be expected" to have the specified effect of those considerations if the information were to be disclosed: e.g. reveal an individual's personal information, contravene an information protection principle, or expose a person to a risk of harm. However, as we have mentioned above, even where the Tribunal is so satisfied this alone does not meet the s 13 test, which requires the Tribunal to undertake a balancing test between the established s 14(2) public interest considerations against disclosure and the applicable and established public interest considerations in favour of disclosure.
14. While it is evident that the Tribunal understood the relevant principles (see at [12] and [13]), in our opinion, it also failed to give adequate reasons for the conclusions it reached that the information for which a public interest consideration against disclosure had been claimed "could be expected" to have the specified effect in cl 3(a), (b) and (f) of s 14(2) of the GIPA Act. The Tribunal dealt with this issue briefly in its confidential reasons, but these do not, in our opinion, fully satisfy the requirements of s 62(3) of the NCAT Act. That section requires the Tribunal to set out it's reasoning processes that led it to the conclusions it made". As explained in McEwan, at [50], this "requires that the process by which the competing evidence was rejected or overridden be explained".
15. A failure to give adequate reasons is also an error of law.

Legal professional privilege ground

1. Legal professional privilege is a long-standing rule of law. At common law, the privilege protects confidential communications between legal practitioners and their clients from disclosure under compulsion of a court or statute. The privilege protects two kinds of confidential communication between a client and his or her lawyer. These are confidential communications that are made for the dominant purpose of seeking or being provided with legal advice (advice privilege) and confidential communications that are made for the dominant purpose of existing or reasonably contemplated legal or quasi-legal proceedings.
2. Sections 118 and 119 of the Evidence Act 1975 (NSW) are a reflection of the common law doctrine of legal professional privilege. However, the terminology that is used in these sections is "client legal privilege", which is an appropriate description as the privilege, or right is that of the client and not the lawyer. In this case, the right to make a claim for privilege was that of the respondent, who bore the onus of establishing that the information for which it sought to make that claim was a confidential communication made with its lawyers for the dominant purpose of seeking or for the dominant purpose of existing or reasonably contemplated legal or quasi-legal proceedings and that privilege had not been waived.
3. The appellant contends that a claim of this nature goes against the objects of the GIPA Act. For the reasons explained by the Tribunal, the appellant's contention is misconceived. As we have noted, where information for which a person seeks access is privileged, s 14(1) provides that there is a conclusive overriding public interest against disclosure of that information, unless the client in whom the right to claim privilege has waived its right by having already disclosed that information. In this case, the respondent claimed its right to privilege and as is made clear in cl 5(3) of Sch 1 of the GIPA Act the Tribunal cannot review a decision of an agency to not waive its right to a claim of privilege following its consideration of a possible waiver under cl 5(2).
4. The Tribunal dealt with legal professional privilege (LPP) at [61] to [64] of its reasons for decision. At [61] and [62], the Tribunal said: "61 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. 62 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."
5. The Tribunal then set-out the concepts applicable to client legal professional privilege as described in an earlier decision it had made in another matter. In this regard, the Tribunal noted that a lawyer employed with a government agency is nevertheless a lawyer for the purpose of client legal professional privilege where that lawyer has a practising certificate and the communication in issue was a confidential communication for the dominant purpose of providing legal advice or existing or reasonably contemplated legal or quasi-legal proceedings. In this case, we note that the information for which the respondent made a claim for legal professional privilege was communication between compliance officers of the respondent and the respondent's employed solicitors as well as its external lawyers. The names of the authors and recipients of these communications were disclosed to the appellant. Subject to the disclosure of the matters in the confidential paragraphs at [78] and [79], the Tribunal found that the communications for which the respondent had made a claim for legal professional privilege were satisfied.
6. At [64], the Tribunal set out its findings in regard to the information for which client legal privilege had been claimed by the respondent in respect to file no 2017/0089311 (GIPA access request 2) as follows: "64 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 (sic) 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."
7. At [70], the Tribunal dealt with file no 2017/00146393 (GIPA access request 4) and file no 2017/00146396 (GIPA access request 5) as follows: "70 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) reason."
8. We can see no error by the Tribunal in this regard.
9. It is unclear whether the abovementioned confidential paragraphs have been disclosed to the appellant. If not, they should be immediately disclosed as the respondent has not appealed the Tribunal's findings in this regard. In our view, it is difficult to understand why these matters were included in the confidential section of the reasons for decision. As the respondent had numbered and disclosed the nature of the communications for which the claim of legal professional privilege was made, we can see no reason why the essence of this paragraphs could not have been included in the open reasons for decision. However, nothing turns on this for the purpose of this appeal.
10. Accordingly we can find no error by the Tribunal below in its application of the principles of client legal privilege to those sections of the information the subject of the appellant's GIPA access request for which the respondent made a claim for privilege.

Conclusions

1. For the reasons set out above, we have found that the Tribunal erred in law in failing to carry out the balancing exercise it was required to undertake by reference to the information that was open access information falling within cl 3 of Sch 1 of the GIPA Reg.
2. We have also found that the Tribunal erred in law in failing to adequately set out its reasoning processes that led it to the conclusions it made in regard to the information for which it found that a disclosure of that information could reasonably have the effect set out in the public interest considerations against disclosure in cl 3(1)(a), (b) and (f) of the Table to s 14(2) of the GIPA Act and why those public interest considerations against disclosure overrode/out weighed the public interest considerations in favour of disclosure.
3. We have otherwise found no error by the Tribunal in regard to its findings about the information for which legal professional privilege was privileged.
4. Accordingly, the appropriate order is to allow the appeal in part and to set aside the decision of the Tribunal in so far as it relates to the information for which the Tribunal affirmed the decision of the respondent on the grounds of the public interest consideration against disclosure in cl 3(1)(a), (b) and (f) of the Table to s 14(2) of the GIPA Act. The respondent's decision in regard to this information should be remitted for reconsidered by the Tribunal. In our view, given the similarities to the issues raised in the earlier applications of the appellant and her partner, these should be reconsidered by the same Tribunal Member allocated to hear and determine the matters remitted by the Appeal Panel in McEwan and Webb [2018] NSWCATAP 224.
5. On the material before us, it would appear that each review application of the appellant included documents which contained information for which the respondent made a claim that specified information in one or more documents gave rise to the public interest consideration against disclosure in cl 3(1)(a), (b) and (f) of the Table to s 14(2) of the GIPA Act. On the material before us, it would appear that the respondent listed and numbered each document it had located falling within each GIPA access request of the appellant. To avoid any unnecessary argument about the information to which our findings relate, in our view, it is appropriate that the respondent provide a further schedule that lists the documents for which it made a claim under cl 3(1)(a), (b) and (f) of the Table to s 14(2) of the GIPA Act in respect of specified information within that document. This list will then form the basis of the Tribunal's jurisdiction on reconsideration.

Orders

1. For the reasons set out above, we make the following orders: 1. Time within which the appellant is to lodge her Notice of Appeal is extended to 12 January 2018. 2. The appeal is allowed in part. 3. The decision of the Tribunal is set aside in regard to affirming the respondent's decision that access to specified information is refused on the grounds of an overriding public interest consideration against disclosure falling within cl 3(1)(a), (b) and (f) of the Table to s 14(2) of the Government Information (Public Access) Act 2009. The respondent's decision in regard to this specified information is remitted for reconsideration by the Tribunal, differently constituted, in accordance with these reasons for decision. 4. By 10 December 2018, the respondent is to file and serve a schedule that lists, for each review application of the appellant, the documents for which access to information was refused, in part or whole, on the grounds set out in order 3 above.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 November 2018