Webster v Bayside Council - [2024] NSWCATAD 226 - NSWCATAD 2024 case summary — Zoe

NSWNSWCATAD

Webster v Bayside Council

[2024] NSWCATAD 226

NCAT Administrative and Equal Opportunity|2024-06-11

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2024-06-11

Catchwords

[2009] HCA 16, Sheehy v Commissioner of Police
Rapisarda v Commissioner of Police
McDonald v Commissioner of Police

Source

Original judgment source is linked above.

Catchwords

[2009] HCA 16, Sheehy v Commissioner of PoliceRapisarda v Commissioner of PoliceMcDonald v Commissioner of Police

Judgment (38 paragraphs)

[1]

REASONS FOR DECISION

The Applicant, Mr Daniel Webster, applied to Bayside Council (Council) under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) for information held by Council, and is dissatisfied with the responses received.
The issues in these proceedings include: 1. the Council's implied decision that it did not hold any additional information that was responsive to the request; 2. the Council's decision concerning those redactions for information which it identified as being 'out of scope'; 3. whether the public interest considerations against disclosure in cl 3(a), 3(e) and 3(f) of the Table in s 14(2) of the GIPA Act applies to information redacted or not produced and, on balance, that public interest consideration against disclosure outweighs the public interest in favour of disclosure.
In accordance with s 107 of the GIPA Act and s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act): 1. the proceedings included a confidential hearing in the absence of the public and the Applicant; and 2. the published reasons for decision do not contain those parts of the reasons which would disclose information falling within s 107(1) of the GIPA Act.

[2]

[10]

Public interest considerations and determination

The GIPA Act provides for a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 5 of the GIPA Act.
Sections 13 and 14 of the GIPA Act provide 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. 14 Public interest considerations against disclosure … (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. .. Table … 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, … (e) reveal false or unsubstantiated allegations about a person that are defamatory, (f) expose a person to a risk of harm or of serious harassment or serious intimidation,
Section 15 provides the principles that apply to a determination as to whether there is an overriding public interest against disclosure of government information: 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.

[12]

Decisions made on an access application

Section 58 of the GIPA Act provides: (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. (3) If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired.
Section 74 of the GIPA Act permits the deletion (including by way of redaction) from records provided to an applicant in certain circumstances: 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.

[20]

Evidence of Mr Sut

Mr Sut has worked at the Council since 2010.
His current position at the Council is Manager, Mayoral and Councillor Support. He was previously the Manager of Investigations of Review was Manager of Governance and Risk.
Prior to joining the Council in 2010, he worked at the Department of Local Government (now called the Office of Local Government) which oversaw 170 councils. All his roles involved governance, including access to information and FOI applications and review.
Mr Sut was essentially the team leader of the team which undertook the original search for information and prepared the initial response to Mr Webster's GIPA Application. He said he was not involved in the Original Decision, and did not sign off on it. He said this was to make sure he would be able to conduct an internal review if required.
As noted above, the IPC Report recommended the Council conduct an internal review, and also that further searches be undertaken.
Ms Catherine Bush commenced that Internal Review process, and Mr Sut took it over when she left the Council.
Mr Sut explained that the Council has policies for the placing of relevant records on to one of two electronic systems: 1. "Pathway" - this was the "customer request management system" module of the Council's electronic records. Any external request or complaint received by the Council is assigned a CRM reference number. Subsequent documents or correspondence are then loaded with that same reference number when placed on to the system. It was also possible (and usual practice) for Council staff to make notes directly onto this system by reference to the assigned number. 2. "Content Manager" (or "TRIM") - this was the EDRMS electronic document management system which held emails and other correspondence relating to Council business which were not a CRM matter.
Mr Sut referred to the IPC's recommendations for additional searches to be conducted, and confirmed that had been done by him.
Mr Sut said that he was assisted by, and had oversight of, the Information Access Officer in relation to his search of these Council records. He accepted that further additional documents were located, suggesting the initial search had not been comprehensive. He checked to make sure that the Information Access Officer had asked all relevant Council employees to make sure they had put correspondence (including emails) and documents on to the systems which were then searched, as required by the policy. He acknowledged that there were no formal signed undertakings by the relevant employees that this had been done. He said he had no reason to suspect from his review of the information that this was not done, or that anything was missing.
He confirmed that all of his own documents had been appropriately loaded on to the system including his own emails.
Mr Sut personally conducted the searches across these systems to extract information relevant to the GIPA Application, using relevant search terms which were set by him. These search terms (which were in materials before the Tribunal) included surnames of the Applicant, the Neighbours, their addresses, and the relevant CRM numbers.
He confirmed that no other documents had subsequently come to light since those additional searches were done by him.
He stated that in the usual course, Council rangers and compliance officers have various discussions and not every discussion will be recorded or documented.

[23]

Limitations on the role of the Tribunal

The Tribunal "stands in the shoes" of the Council in respect of the GIPA Application made to the Council by the Applicant. The scope of the Tribunal's review is therefore limited to the terms of the requests originally made in the GIPA Application. Further, the only relevant information that can be responsive to that request is information held by the Council as at 18 July 2022 (the date of the GIPA Application).
It is convenient to first deal with some of the points raised by the Applicant in his submissions: 1. The third party consultation material was before the Tribunal in the Confidential Materials filed by the Council. 2. The Tribunal is concerned only with the determining what is the correct and preferable decision in responding to the GIPA Application. 3. Accordingly, to the extent that matters are not recorded in writing, electronically or otherwise, even if they should have been, that is not a matter that concerns the Tribunal in these proceedings. That is because there is no relevant "government information" in those circumstances. 4. Nor does the Tribunal concern itself with "why" a decision was made by Council, or other allegations raised in respect of the wider conduct of Council officers or other persons in respect of dealing with property matters over which they may issue notices or otherwise take action. The GIPA Act is not a vehicle for the review of the merits of the decisions themselves, nor a place for remedies to be sought other than as prescribed by the provisions of the GIPA Act. As noted by the IPC Report, the cases of Sheehy v Commissioner of Police; Rapisarda v Commissioner of Police; McDonald v Commissioner of Police; Housego v Commissioner of Police [2018] NSWCATAD 73 at [62] made the following observations in respect of collateral review: …[I]t is not a matter for the Tribunal to be undertaking any factual inquiries about unsupported allegations of fabrication of evidence or malicious complaints. It is for the Tribunal to conduct an administrative review, and to do otherwise may amount to the proceedings being used as a vehicle for the collateral review of the merits or validity of official action: Raven v University of Sydney [2015] NSWCATAD 104 at [44] to [45]; Crewdson v Central Sydney Area Health Service [2002] NSWCA 354 at [24].

[24]

The role of the Tribunal

The role of the Tribunal is to decide whether the decision under administrative review is the correct and preferable decision (s 63(1) ADR Act). As noted above, in determining this question, the Tribunal is to have regard to the material before it (at the time of the hearing), including any relevant factual material and any applicable written or unwritten law. The Tribunal may exercise all functions conferred or imposed by any relevant legislation on the administrator who made the decision (s 63(2) ADR Act).
Section 105 of the GIPA Act places the onus of proof on the respondent to justify its decision.
The correct approach of the Tribunal's "balancing exercise" in considering and weighing the public interest considerations for and against disclosure (in the context of s 13 of the GIPA Act) was explained in Callawadda Pty Ltd v Department of Planning, Industry and Environment [2021] NSWCATAD 248 in the following terms at [19]: The test in section 13 requires the Tribunal as decision-maker to attribute weight to each consideration for and against disclosure, and determine whether the balance of the public interest lies in favour of, or against, disclosure of government information: Hurst v Wagga Wagga City Council [2011] NSWADT 307; Flack v Commissioner of Police, NSW Police [2011] NSWADT 286. The GIPA Act provides no set formula for calculating the weight of considerations for determining whether one set of considerations outweighs the other, and the Tribunal has stated that "any reasonable approach that follows section 15 principles seems to be acceptable ... it is really a matter of placing identified considerations in order of priority or importance": Place v Department of Finance, Services and Innovation [2016] NSWCATAD 278 at paragraph [96]. The balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at paragraph [17].
This is also the approach adopted in Commissioner of Police, New South Wales Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [23]-[30].

[25]

Issue 1 - Information that is "out of scope"

Council determined that certain information contained in responsive documents was "out of scope". Redactions were therefore applied under s 74.
A decision to redact a record under s 74 of the GIPA Act because information is "out of scope" is not a decision of an agency prescribed by s 80 of the GIPA Act. Hence the Tribunal has no jurisdiction to review such decisions: see Miskelly v Roads and Maritime Service [2019] NSWCATAD 133 at [106]. This position is supported by the following observations by the Tribunal in Manning v Bathurst Regional Council [2018] NSWCATAD 18 at [29]-[31]: 25. The Tribunal has jurisdiction to review a "reviewable decision" under the GIPA Act, including the decision of an agency to refuse access to information: GIPA Act, ss 80(d), 100; Administrative Decisions Review Act 1997 (NSW), s 9; Civil and Administrative Tribunal Act 2013 (NSW), ss 28, 30. To be a "reviewable decision," the decision must be a decision "of an agency in respect of an access application" (GIPA Act, s 80; my emphasis). The term "reviewable decision" is defined to mean "a decision of an agency that is a reviewable decision under Part 5" (which includes s 80) (GIPA Act, Sch 4). A person is entitled to apply to the Tribunal for review if he or she is "aggrieved by a reviewable decision" (GIPA Act, s 100). 26. There is no doubt that the applicant is aggrieved by the decision to refuse to provide her with access to the redacted material in the valuation report and the solicitor's letter. The question is whether these are "reviewable decisions" in circumstances where she did not seek that information in her access application. 27. The phrase "in respect of," which is used in s 80 of the GIPA Act and many other statutory provisions, "may appropriately be afforded a 'wide meaning'" but the ambit of the words "in respect of" "must yield both to the particular statutory provision in which they find expression and to the context of that provision within the statute being considered" (The Northern Eruv Incorporated v Ku-Ring-Gai Council [2012] NSWLEC 249 at [36]). 28. A possible construction of s 80 is that the decisions to refuse access to the valuation report and the solicitor's letter are "reviewable decisions" because they were made in response to the access application and thus "in respect of" it. However, I consider that the statutory context of s 80 indicates that the phrase "in respect of" has a narrower meaning. 29. The GIPA Act provides for the making and review of decisions about access applications. The relevant provisions, and the right to access information, turn on the scope of an access application. Section 9(1) provides that: "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." The "information" the subject of the "enforceable right" is the information the subject of the application. 30. Section 58(1) of the GIPA Act provides for the ways in which an agency may decide an access application. These include deciding to provide access to the information and deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information. Each of the decisions an agency may make concern the government information the subject of the access application. 31. It follows from these provisions, and the scheme of the GIPA Act more generally, that the words "in respect of" in s 80 confine "reviewable decisions" to those which concern the information to which the applicant has sought access. That is, a "reviewable decision" does not include a decision purportedly made about information falling outside the scope of the access application…
Accordingly, these reasons for decision do not review redactions made by the Council which are said to be "out of scope" of the GIPA Application.

[27]

Conclusion on searches undertaken

It is clear from the volume of information located following the IPC Report that the Council's original search was not reasonable for the purposes of s 53 of the GIPA Act.
Nonetheless, I find that, on the evidence before me, the searches (eventually) undertaken by the Council were consistent with its obligations under s 53 of the GIPA Act: 1. I found Mr Sut to be a truthful and credible witness (despite the Applicant's allegations to the contrary). I accept his evidence regarding the systems used by Council and the searches undertaken. 2. Mr Sut adequately explained to the Tribunal the functionalities and limitations of the Council's electronic record keeping systems. 3. I am satisfied that the record keeping system of the respondent was such that the relevant "government information", if available, was located on the electronic systems noted above. 4. Although no written declarations were provided, I find that Mr Sut obtained appropriate assistance from other Council employees to confirm the loading of relevant information on to the Council systems, and that on the balance of probabilities, Council employees had complied with directions given to them. 5. I am satisfied that the search terms applied were reasonable to locate the information. 6. There was no aspect of Mr Sut's cross-examination which caused me to doubt his evidence.
In respect of allegations regarding a conflict of interest by Mr Sut, there was no aspect of his evidence that provided any substance to such allegations regarding a conflict of interest (if that were required to be considered). I was taken to the case of Deputy Secretary, Local Government, Planning and Policy v Byrne [2021] NSWCATOD 53. That case involved different circumstances not here present; in any event, the action requested was under the provisions of the Local Government Act 1993. The function before me is not a review of conduct, but of whether information has been provided as requested.
I have had regard to the Applicant's submissions regarding correspondence or documentation that would be expected, in his view, to have been located, including an email saying a Council officer had passed on information and was withdrawing the action. However, there was nothing specific that Mr Sut (or myself) were taken to that established to my satisfaction that particular responsive documents, including emails, were created or held but not produced. In the circumstances of this case, where the Applicant's assertions of documents not produced relies on assumptions (about emails being replied to, reviews undertaken being documented, and information passed on in a documented way) and other generalised statements by the Council, I consider the searches conducted by the Council and its witness's evidence demonstrates on the balance of probabilities that such information does not exist, and the Council conducted reasonable searches for the purpose of s 53.
Accordingly, to the extent that further information was not located, the correct and preferable decision is that such information is "not held" to the extent it was not recorded in the most recent schedule provided to the Applicant on 6 June 2024.

[30]

Section 12 of the GIPA Act

Having regard to s 12(1) of the GIPA there is a general public interest in favour of the disclosure of government information. This must therefore be taken into account in the balancing exercise.
Further, having regard to s 12(2) of the GIPA Act, I find that there are the following public interest considerations in favour of disclosure: 1. Disclosure of the information could reasonably be expected to promote open discussion of Council's processes, its interaction with the public, and the manner in which it responds to and investigates complaints. This will contribute to positive and informed debate on issues of public importance. I ascribe a significant weight to this factor. 2. Disclosure of the information could reasonably be expected to inform the public about the operations of the Council and their policies and practices for dealing with members of the public. I ascribe a significant weight to this factor. 3. To the extent that the information is personal information of the Applicant (in respect of matters relating to his property, or opinions or information held by others relating to him), and the information would be disclosed to him, that is a matter in favour of disclosure (Note (d) to s 12(2)). I ascribe a significant weight to this factor. 4. Note (e) to s 12(2) refers to a factor in favour of disclosure of the information where disclosure could reasonably be expected to reveal or substantiate that the agency (or a member/officer of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. However, as noted in Commissioner of Police, NSW Police Force v Barrett [2015] NSWCATAP 68, there would need to be cogent and persuasive evidence for this public interest consideration to apply. Having reviewed the materials before me, I find that although some of the processes adopted by Council may have led to delays or resulted in a change of position, the evidence does not establish this matter to my satisfaction. Further, having regard to my discussion below regarding the remission of matters to ICAC, I find that this is not a factor in favour of the disclosure of the information or, alternatively, if it was, it would not be of significant weight.

[33]

3(a) - personal information

Clause 3(a) of the Table in s 14 provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to reveal an individual's personal information.
Personal information is defined in cl 4 of Sch 4 to the GIPA Act as follows: 4 Personal information (1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion. (2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics. (3) Personal information does not include any of the following - (a) information about an individual who has been dead for more than 30 years, (b) information about an individual (comprising the individual's name and non-personal contact details, including the individual's position title, public functions and the agency in which the individual works) that reveals nothing more than the fact that the person was engaged in the exercise of public functions, (c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause.
"Reveal" is defined in cl of Sch 4 to mean: reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).
Section 15(1)(b) of the GIPA Act states that agencies must have regard to any relevant guidelines issued by the Information Commissioner whether determining whether there is an overriding public interest against disclosure. The Information Commissioner has published Information Access Guideline 4 - Personal Information as a public interest consideration under the BIPA Act October 2023. This Guideline provides examples of what is meant by "personal information" under the GIPA Act.
The most relevant examples of "personal information" are details that can directly identify the persons which are recorded in the relevant documents. This includes the names, home addresses and personal contact details of persons.
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[35]

3(f) - risk of harm, serious harassment or serious intimidation

The next question is whether release of particular information could reasonably be expected to expose people to a "risk of harm or of serious harassment or serious intimidation": cl 3(f) of the Table in s 14 of the GIPA Act.
In OTB v Commissioner of Police, NSW Police Force (2019) NSWCATAD 114, at [77] to [79], SM Blake SC reviewed and summarised several authorities considering cl 3(f): 77 The issue for determination is whether release of the information would expose people to a "risk of harm or of serious harassment or serious intimidation". It is not necessary to decide whether such harm is likely. It is sufficient that there is a risk of it: Zonnevylle v Department of Education and Communities [2018] NSWCATAD 139 at [49]; Miskelly at [94]. 78 "Harm", "serious harassment", and "serious intimidation" are not defined in the GIPA Act. Their meaning received extensive judicial consideration by the Tribunal in AEZ v Commissioner of Police, NSW Police Force [2013] NSWADT 90. Each is to be seen as a separate matter to be considered: AEZ at [89]; Miskelly at [95]. 79 As to "harm", the Tribunal has held that the meaning of harm should be confined to a real and substantial detrimental effect on a person, rather than on their business interests. A detrimental effect may be to a person's physical, psychological or emotional wellbeing: AEZ at [85]; Miskelly at [96]. Mere discomfort or tension is not ordinarily enough: Ermel v Department of Finance and Services [2013] NSWADT 183 at [90]; Miskelly at [105].
As noted above, each of these terms was addressed in some detail in in AEZ v Commissioner of Police, NSW Police Force [2013] NSWADT 90 at [82] -[ 94]: 82 The question here is whether if the information is disclosed, it could reasonably be expected that the disclosure would "expose a person to a risk of harm or of serious harassment or serious intimidation." 83 The GIPA Act does not contain a definition of harm, serious harassment or serious intimidation. It is to be noted that harm is not qualified by the adjective serious. The Macquarie Dictionary online defines harm thus - noun 1. injury; damage; hurt: to do someone bodily harm. 2. moral injury; evil; wrong. -verb (t) 3. to do harm to; injure; damage; hurt. -phrase 4. in harm's way, in danger. 5. out of harm's way, out of danger. [Middle English; Old English hearm] 84 Harm is a concept frequently used by the law. The criminal law prohibits assaults occasioning bodily harm. This has been interpreted in its ordinary meaning to "include any hurt or injury calculated to interfere with the health or comfort of [the injured person]": see R v Donovan [1934] 2KB 498. "Serious harm" is a concept used in criminal defamation, which requires proof of an intent to cause serious harms. Section 40 of the Civil Law (Wrongs) Act 2002 (ACT) on the other hand defines "harm" to be harm of any kind, including personal injury, damage to property and economic loss. Harm is also a concept in child protection: in section 9 of the Child Protection Act 1999 (Qld) it is defined as "as any detrimental effect of a significant nature on the child's physical, psychological or emotional wellbeing." 85 In the context of s 14 of the GIPA Act I am inclined to the view the meaning of harm should be confined to a real and substantial detrimental effect on a person, rather than on their business interests. This is so given the juxtaposition of the word "harm" with the concepts of serious harm and intimidation, and the fact that economic and business interests are the subject of public interest consideration against disclosure in part 4 of the section 14 Table. A detrimental effect may be to a person's physical, psychological or emotional wellbeing. 86 Serious harassment is a separate and distinct concept. The Macquarie Dictionary online defines harass - verb (t) 1. to trouble by repeated attacks, incursions, etc., as in war or hostilities; harry; raid. 2. to disturb persistently; torment. [French harasser, from Old French harer set a dog on] 87 The concept of harassment is one familiar to anti-discrimination law, with sexual harassment being prohibited and subject to remedies. A consideration of those laws reveals that a common element in most jurisdictions is that the person harassed would be offended, humiliated or intimidated by the conduct in the circumstances: see Sex Discrimination Act 1984 (Cth), s 28A(1); Anti-Discrimination Act 1977 (NSW), s 22A; and Equal Opportunity Act 1984 (SA), s 87(9). 88 In Henderson v McKenzie [2009] ACTSC 39 Higgins CJ was considering a charge of stalking with intent to harass contrary to s 35(1)(c) of the Crimes Act 1900 (ACT). His Honour said, at [6-8] - 6. Harassment is not defined in the Crimes Act, nor, indeed, in the Criminal Code 2002 (ACT) (Criminal Code). However, it does seem in context to bear its usual meaning, ie "to trouble by repeated attacks; harry; (1) to worry or unnerve (an enemy) by continuous small attacks; (2) to disturb, worry, torment, distress with annoying labour, care or misfortune" (World Book Dictionary); "Vex by repeated attacks; trouble, worry" (Concise Oxford Dictionary). 89 All of the definitions of harassment require a consideration of how the conduct complained of is experienced by the person alleged to be harassed, and are concerned with whether that person was offended, worried, tormented, distressed or harassed by the conduct. In the context of the GIPA Act where the decision maker has to be satisfied that, if the information is disclosed, it could reasonably be expected that the disclosure would expose a person to serious harassment, the assessment of the impact of the conduct on the individual concerned is an objective one, although particular circumstances and vulnerabilities relating to that individual may be taken into account when making that assessment. 90 The GIPA Act makes specific mention of serious intimidation as another element of the public interest consideration against disclosure in point 3(f) of the Table to s 14, despite the fact that the two concepts of intimidation and harassment are clearly related. 91 Intimidation is defined by The Macquarie Dictionary online as - verb (t) (intimidated, intimidating) 1. to make timid, or inspire with fear; overawe; cow. 2. to force into or deter from some action by inducing fear: to intimidate a voter. [Medieval Latin intimidātus, past participle, made afraid. See TIMID] 92 Intimidation is defined in s 7 of the Crimes, Domestic and Personal Violence Act 2007 (NSW) thus - (1) For the purposes of this Act, intimidation of a person means: (a) conduct amounting to harassment or molestation of the person, or (b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or (c) any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property. 93 In PE V MU [2010] NSWDC 2 William DCJ referred to that definition and said - 15...intimidatory conduct... is conduct amounting to harassment or molestation or contact by one person with another such as would cause the other person to fear for their safety. 16 Harassment is not defined in the Act but in its legal sense refers to ongoing behaviours that are found to be threatening or disturbing. ... 94 Importantly the intimidation or harassment referred to in point 4(f) is required to be serious intimidation or serious harassment, requiring that the decision maker be satisfied that release of the information could reasonably expose a person to intimidation or harassment that is heavy, weighty or grave, and not trifling or transient.
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Webster v Bayside Council

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (38 paragraphs)

Parties

Legislation Cited (10)

Cases Cited (20)