Withyman v Department of Regional NSW

NCAT Administrative and Equal Opportunity|2023-03-07

Newcastle City Council v Newcastle East Residents Action Group Inc [2018] NSWCATAP 254 Raven v The University of Sydney [2015] NSWCATAD 104 Re B and Brisbane North Regional Health Authority [1994] QICmr 1; (1993) 1 QAR 279 Sheehy v Commissioner of Police (NSW) [2018] NSWCATAD 73 Taylor v Destination NSW [2020] NSWCATAD 137 Taylor v Office of Destination NSW [2018] NSWCATAD 195 Transport for NSW v Searle [2018] NSWCATAP 93 Walker v Roads and Maritime Services [2019] NSWCATAD 177 Williams v Department of Industry and Investment (NSW) [2012] NSWADT 192 Woolley v Lismore City Council [2013] NSWADT 10 Category: Principal judgment Parties: Brad Withyman (Applicant) Department of Regional NSW (Respondent) Representation: Solicitors: Applicant (Self-represented) Department of Regional NSW (Respondent) File Number(s): 2022/00250311 Publication restriction: Section 64 of the Civil and Administrative Tribunal Act 2013 applies to the material filed by the respondents on a confidential basis, to those paragraphs of these reasons identified as [Not for publication], to the evidence given in private before the Tribunal and to the record of that part of the proceedings conducted in private pursuant to section 49 of the Civil and Administrative Tribunal Act 2013. That material is not to be released to either the applicant or to the public.

The GIPA Applications

There are three GIPA Act access applications. The first of the applications ("GIPA 22-38") was made on 8 December 2021; the second application ("GIPA 22-43") was made on 23 February 2022; and the third application ("GIPA 23-06") was made on 21 July 2022.
The Applicant has sought review in relation to each of those access applications.

GIPA 22-38

The GIPA 22-38 access application sought the following information: 1. Any and all records (as defined by the State Records Act 1998) that have mentioned or referred to me, by my name that have been sent or received by; a. Bryan Van Der Walt - Manager- Recreation Fisheries Programs b. Peter Turnell - Director- NSW DPI recreation fisheries & RF Trust Exec Officer c. Sarah Fairfull - Director, Aquatic Environment 2. The dates for this information include; a. From the 24/7/2017 b. Until the 30/12/2021 c. Excluding the annual period of 2018 (As per agreed re-scope) 3. Includes names of the persons who have delivered or received records that have been requested above.
In February 2022, the Respondent's Senior Governance & Information Requests Officer undertook searches in relation to the request and identified 32 documents as captured by the searches. The Respondent provided the following summary of the outcome: Decision summary No. Description of record that contains the Information Original Derision Internal Review s.93 decision Within scope
200227 - Internal Email meeting with Out of scope in full s58(1)(d) - Refused Brad Withyman s.126(1)(e) s. 14 Table 1(f) Within scope
200302 - Internal Email CAMMS system new incident created Out of scope in full s58(1)(d) - Refused s.126(1)(e) s. 14 Table 1(f), 3(a), 3(b) Within scope
200304 - Internal Email - unreasonable complainant conduct Out of scope in full s58(1)(d) - Refused s.126(1)(e) s. 14 Table 1(f) Within scope
200306 - Internal Email site visit Out of scope in part s 58(1)(d) - Refused in part s.126(1)(e) s. 14 Table 1(f) Within scope
200306 - Internal Email re draft email to stakeholder Out of scope in full s58(1)(d) - Refused s.126(1)(e) s. 14 Table 1(f) Within scope
200306 - Internal Email re Directive regarding future interactions with stakeholder Out of scope in part s 58(1)(d) - Refused in part s.126(1)(e) s. 14 Table 1(f) Within scope
200306 - Internal Email draft email to stakeholder regarding recent site visit Out of scope in part s 58(1)(d) - Refused in part s.126(1)(e) s. 14 Table 1(f) Within scope
200309 - Email regarding directive for future interactions and communications with a stakeholder Out of scope in part s 58(1)(d) - Refused in part s.126(1)(e) s. 14 Table 1(f) Within scope
200309 Internal Email directive Out of scope in part s 58(1)(d) - Refused in part s.126(1)(e) s. 14 Table 1(f) Within scope
200106 - Internal Email Nambucca Valley Fishing Access Out of scope in part s 58(1)(d) - Refused in part s.126(1)(e) s. 14 Table 1(f) Within scope
210621 - Internal Email - re-emerging issue Nambucca Out of scope in part s 58(1)(d) - Refused in part s14 Table 3(a), 3(b)

GIPA 22-43

The GIPA 22-43 access application sought the following information: 1. Communications through a carriage service (email, sms) that have mentioned me, Brad Withyman, in person by name, that have been sent or received from: a) Bryan Van Der Walt - Manager Recreation Fisheries Programs b) Peter Turnell - Director- NSW DPI recreations fisheries & RF Trust Exec Officer c) Sarah Fairfull - Director, Aquatic Environment 2. The dates for this information include; a) Period of 2018 b) 11/12/2021 - 07/01/2022 3. Including the names of persons who have delivered or received communications that have been requested above. 4. The requested information should be sorted in a date format, earliest to latest 5. The requested Information Is to be provided in a digital format, PDF via email or on a memory stick. 6. Exclude emails sent and received by me using the address …
The reviewer provided the following summary of the outcome: No. Description of record that contains the information GIPA Act Ref. Access
Brad Withyman's email.pdf s58(1)(a) Release s74
Fwd_ Bait Security Study.pdf s58(1)(a) Release
Fwd_ Brad Withyman re oystervideos.pdf- BV email with attachments. s 58(1)(a) Release
Fwd_ Deep Creek Closure(1).pdf s 58(1)(a) Release
Fwd_ Deep Creek Closure.pdf- BV email with attachments. s58(1)(a) Release
Fwd_ Dusky breeding ground.pdf s 58(1)(a) Release s58(1)(a) Partial
Fwd_ FW_ RFT Governance(1).pdf s58(1)(d) Release s14 Table 3(a) & (b)

s58(1)(a) Partial 8. Fwd_ FW_ RFT Governance.pdf s58(1)(d) Release s14 Table 3(a) & (b) 9. Fwd_ Legal Status of the Rec Fish Trust of NSW.pdf - BV email with attachments. s58(1)(a) Release s58(1)(a) Partial 10. Fwd_ MF18_2472.pdf - BV email with attachments. s58(1)(d) Release Sch 1(5) LPP 11. Fwd_ Next Schedules meetings.pdf s 58(1)(a) Release 12. Fwd_ Questionable Conduct by RFNSW Members.pdf - BV email with attachments. s58(1)(a) Release 13. Fwd_ Request for information.pdf s58(1)(a) Release 14. Fwd_ RFT Investment Plan.pdf - BV email with attachments. s58(1)(a) Release s74 Out of scope 15. Fwd_ Shadey black marketeers.pdf s58(1)(a) Release 16. Fwd_ Upcoming events.pdf- BV email with attachments. s 58(1)(a) Release s74 Out of scope 17. Re_ Access via Road Reserve(1).pdf- BV email with attachments. s 58(1)(a) Release 18. Re_ Access via Road Reserve.pdf s58(1)(a) Release 19. Re_ Brad Withyman's email.pdf - BV email with attachments. s58(1)(a) Release s 58(1)(a) Partial 20. Re_ Charter Document.pdf s58(1)(d) Release s14 Table 3(a) & (b) 21. Re_ Conversations with Brad Withiman.pdf s58(1)(a) Release 22. Re_ Deep Creek Closure.pdf s58(1)(a) Release 23. Re_ FW_ Treasury loan for RFH Buy-out scheme.pdf - BV email with attachments. s 58(1)(a) Release 24. Re_ Marine Estate Management Strategy _'s.pdf s58(1)(a) Release

Re_ Nambucca River.pdf s58(1)(a) Release
Re_ Opera house traps.pdf s58(1)(a) Release s74 Out of scope
Re_ Peak Body Tender.pdf s58(1)(a) Release
Re_ RFA Statement.pdf s58(1)(a) Release s58(1)(a) Partial
Re_ RFNSW lnquiry.pdf s58(1)(d) Release s 14 Table 3(a) & (b) s126(1)(e)
Re_ SBT MoU.pdf s 58(1)(a) Release s74 Out of scope
Re_ Treasury loan for RFH Buy-out scheme.pdf s58(1)(a) Release

On 7 March 2023 I made the following order: The Respondent is to undertake further searches in relation to information referred to in the email from Kylie Russell sent on 5 April 2018 at 15:29 and in relation to information referred to in the statement of Stelios Konstantaras dated 6 February 2023.
The Respondent undertook additional searches to determine if it held any further information that falls within the scope of GIPA application 22-38 and GIPA application 22-43 and made the redetermination decision in light of those searches.
In the redetermination decision the Respondent identified following information as having been located:

attachment to email of Kylie Russell sent on 5 April 2018
3 emails to or from Stan Konstantaras to or from Bryan Van Der Walt or Peter Turnell or Sarah Fairfull that mention Brad Withyman.

The reviewer decided:

to provide access to some of the information;
to refuse access to some of the information;
that some of the information was already available to the Applicant; and
that some of the information was outside the scope of the access application.

The reviewer provided the following summary in regard to the redetermination decision: Item Date Description of record that contains the Information Decision Page Attachment to email of Kylie Russell dated 5 April 2018 Item 1 5 Apr 18 Attachment to email titled "Notes from conversation with Brad" Section 58(1)(a) of the GIPA Act - full release 1-3 Emails to or from Stan Konstantaras to or from Bryan Van Der Walt or Peter Turnell or Sarah Fairfull that mention Brad Withyman Item 2 16 Jul Email from Stan Konstantaras to Jim Harnwell and third party - (Bryan Van Der Walt and Peter Turnell are copied in) titled "Questions being asked" Section 58(1)(d) of the GIPA Act - information for which there is a public interest consideration against disclosure has been redacted in accordance with section 74 of the GIPA Act. The public interest considerations against disclosure related to Item 3(a) and Item 3(b) in the Table to section 14 of the GIPA Act 4 18 N/A 18 Nov Internal email trail titled "Re-Rock Fishing Safety Act 2016 - Randwick LGA Report November 2018 Observations SK" Out of scope - the existence of this email was disclosed in the internal privacy review decision (PI 23-1). N/A 18 As outlined in that decision, the internal email trail does not mention your name. Your name is only mentioned in the email from Stan to you. As this email was to you, you already have a copy of that email and emails to/from you were excluded from scope. N/A 20 Aug Email from Stan Konstantaras to Bryan Van Der Walt titled "FW:RFT Governance" S58(1)(c) of the GIPA Act - this information is already available to you. It was released as Document 7 in GIPA decision 22-43 N/A 18

GIPA 23-06

The GIPA 23-06 access application sought the following information for the period from 1 January 2018 to 19 July 2022: "Material, reports or communications that have been produced, received or shared, including across a carriage service or the organisations internal network, that make reference to me by name. Brad Withyman, Mr Withyman, B. Withyman, by a person/s working for or representing NSW DPI. This includes members of Fisheries working groups, committees or advisory councils representing the Agency. Excludes any material or communications already sent or received between the Agency and Mr Withyman. This request for personal information is under the GIPA Act 2009 and defined in Schedule 4 [4]. Ref; IPC Information Access Guideline 4"
In a decision dated 19 August 2022, the Respondent stated: On 16 August 2022 you were advised that the scope of your application constituted an unreasonable diversion of resources and were provided, pursuant to section 60(4) of the GIPA Act, an opportunity to amend your request to something more manageable. Suggested reductions in scope were also provided at this time including limiting the scope to particular staff members and/or reducing the time frame covered by the application. You were also advised at this time that the "clock had stopped" in respect of the time within which a decision in your application was required to be made. You responded on 17 August 2022 that you did not wish to amend the scope of your application. On 18 August 2022. DRNSW acknowledged this and advised that your application would be processed on this basis. You were also notified on this date that the new due date for a decision in your application was 19 August 2022.
The reviewer concluded: I have considered the following; • It is likely that hundreds of hours would be spent by DRNSW responding to this application. This has been based on a previous application of yours. • The Governance & Information team within DRNSW has very limited resources, only 2 full time staff processing GIPA applications amongst other responsibilities. • You were provided an opportunity to revise the scope of the application on 16 August 2022 to something more manageable (suggested amendments were provided) but you declined to do so. • It is likely that some of the information would be personal information relating to you and I consider the information will be of personal interest to you. You advised in your email of 17 August 2022 that you require the requested information "to support a current action lodged with the state's ombudsman and my right to pursue further action through the courts". It is my understanding that in response to complaints from members of the public, the Ombudsman may make requests for information from government agencies when they consider it necessary. I also note with respect to potential future court actions, that information can be required to be produced by subpoena in litigated matters. DRNSW has previously and will continue to respond to requests for information by the Ombudsman and via subpoena. • There are only 20 working days within which to complete a formal access application under the GIPA Act • Other GIPA applicants would be disadvantaged if large amounts of time and resources are spent on a single application Considering the above I am of the opinion that the considerations related to the unreasonable diversion of DRNSW resources which would be required to process this application outweigh the general public interest in favour of disclosure of government information. I also note in accordance with section 60(4) of the GIPA Act you were provided with reasonable opportunity to amend the scope of your application. Accordingly, pursuant to section 58(1)(e) of the GIPA Act, I have decided to refuse to deal with your application.
The Applicant has sought review of each of these decisions.

Applicable legislation

The object stated under section 3(1) of the GIPA Act is to open government information to the public by authorising and encouraging proactive public release of government information (section 3(1)(a)); and giving members of the public an enforceable right to access government information (section 3(1)(b)). It is the intention of Parliament that the GIPA Act be interpreted and applied so as to further its object: section 3(2)(a).
The term "government information" is defined in section 4 of the GIPA Act as information contained in a record held by an agency. The term "record" is defined in clause 10 of Schedule 4 as: 10 Meaning of "record" (1) In this Act - record means any document or other source of information compiled, recorded or stored in written form or by electronic process, or in any other manner or by any other means. (2) A reference in this Act to a record includes a reference to a copy of the record. (3) For the purposes of the definition of record in this Act, the knowledge of a person is not a record.
Clause 4 of schedule 4 to the GIPA Act defines personal information 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.
Clause 12 of Schedule 4 of the GIPA Act provides: 12 Government information held by agency (1) A reference in this Act to government information held by an agency is a reference to - (a) information contained in a record held by the agency, or (b) information contained in a record held by a private sector entity to which the agency has an immediate right of access, or (c) information contained in a record in the possession or custody of the State Records Authority (or that the Authority has in the custody or possession of some other person) to which the agency has an immediate right of access, other than a record that is withheld from public access under section 59 of the State Records Act 1998, or (d) information contained in a record that is in the possession, or under the control, of a person in his or her capacity as an officer or member of staff of the agency (including, in the case of a Minister, the personal staff of the Minister). (2) Information that would be regarded as government information held by an agency because the agency has access to a record that contains the information is not to be regarded as government information held by the agency if the public generally has access to the record (for example, because the record is available on the Internet). (3) Information contained in a record that genuinely forms part of the library material held by an agency is not government information held by the agency. (4) Information contained in a record held by the agency that is information that was unsolicited and is not relevant to the agency's business or functions is not government information held by the agency.
Division 3 of the GIPA Act sets out the process for dealing with access applications. Section 51 provides: 51 Initial decision as to validity of application (1) When an agency receives an application for access to government information that it appears is intended to be an access application, the agency is to decide whether the application is a valid access application and is to notify its decision to the applicant by either - (a) acknowledging receipt of the application as a valid access application, or (b) notifying the applicant that the application is not a valid access application. Note - An application is not a valid access application if it is an application for excluded information of the agency or does not comply with the formal requirements for access applications. (2) An agency's decision as to the validity of an application must be made and notified to the applicant as soon as practicable after the agency receives the application and in any event within 5 working days after the application is received. Note - The decision as to the validity of an application is reviewable under Part 5. (3) An acknowledgement of receipt of a valid access application must include the following - (a) the date by which the application is required to be decided (subject to any suspension or extension of the time for deciding an application), (b) a statement that the application will be deemed to have been refused if not decided by the required date, (c) the following statements about the inclusion of information in the agency's disclosure log (unless the agency considers it unlikely that information about the application will be included in the disclosure log) - (i) a statement that information concerning the application is likely to be included in the agency's disclosure log and that the applicant can object to this, (ii) a statement about the right of review under Part 5 of a decision by the agency to include information in its disclosure log despite the applicant's objection, (d) such details of rights of review in connection with access applications as the Information Commissioner may from time to time direct. (4) Acknowledging receipt of an application as a valid access application does not prevent the agency from subsequently deciding that the application is not a valid access application. (5) An agency's decision that an application is not a valid access application is presumed to be correct, subject to any review of the decision under Part 5.
Section 53 of the GIPA Act provides: 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.
An agency can decide an access application in a number of different ways. Section 58 of the GIPA Act provides: 58 How applications are decided (1) An agency decides an access application for government information by - (a) deciding to provide access to the information, or (b) deciding that the information is not held by the agency, or (c) deciding that the information is already available to the applicant …, 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 …, 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. ...
Section 73(1) of the GIPA Act provides: 73 Access to be unconditional (1) An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application.
Relevantly, section 80, in Part 5 of the GIPA Act provides: 80 Which decisions are reviewable decisions The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part - (a) a decision that an application is not a valid access application, (b) a decision to transfer an access application to another agency, as an agency-initiated transfer, (c) a decision to refuse to deal with an access application (including such a decision that is deemed to have been made), (d) a decision to provide access or to refuse to provide access to information in response to an access application, (e) a decision that government information is not held by the agency, (f) a decision that information applied for is already available to the applicant, (g) a decision to refuse to confirm or deny that information is held by the agency, (h) a decision to defer the provision of access to information in response to an access application, (i) a decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant), (j) a decision to impose a processing charge or to require an advance deposit, (k) a decision to refuse a reduction in a processing charge, (l) a decision to refuse to deal further with an access application because an applicant has failed to pay an advance deposit within the time required for payment, (m) a decision to include information in a disclosure log despite an objection by an authorised objector (or a decision that an authorised objector was not entitled to object).
The question of whether all documents have been located becomes a reviewable decision by way of an agency stating it has no further documents in relation to the information sought. An implied decision under section 58(b) that information is not held, is reviewable under section 80(e). This requires consideration of whether searches for information were adequate.
In Walker v Roads and Maritime Services [2019] NSWCATAD 177 Senior Member Blake summarised the principles applicable to considering whether the searches undertaken by an agency are reasonable. He stated at paragraph [87]: The Tribunal has applied the following principles in considering the reasonable of searches undertaken by an agency: 1. what constitutes a sufficient search will vary with the circumstances. Key factors in making an assessment include the clarity of the request, the way the agency's recordkeeping system is organised and the ability to retrieve any documents that are the subject of the request, by reference to the identifiers supplied by the applicant or those that can be inferred reasonably by the agency from any other information supplied by the applicant: Mizzi v Commissioner of Police (NSW) [2013] NSWADT 150 at [30]; 2. that there may be weaknesses in an agency's searches or that there are failures in its recordkeeping processes do not necessarily lead to the conclusion that the search has not been reasonable, or sufficient, or adequate: Camilleri v Commissioner of Police (NSW) [2012] NSWADT 5 at [15]; 3. the fact that extra documents were located subsequently does not mean that reasonable searches were not made initially: MJ v Department of Education and Communities [2014] NSWCATAD 12 at [28].
Section 5 of the GIPA Act provides that there is a presumption in favour of disclosure of government information. Section 9 of the GIPA Act provides that applicants for access to government information have a legally enforceable right to be provided with access to it unless there is an overriding public interest against disclosure.
Section 12 of the GIPA Act provides that there is a general public interest in favour of the disclosure of government information that is not covered by overriding secrecy laws. The category of public interest considerations in favour of disclosure is not limited. Subsection 12(2) sets out several examples of public interest considerations in favour of disclosure.
Section 13 of the GIPA Act provides that 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. The balancing exercise set out in section 13 "is a question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation": Battin v University of New England [2013] NSWADT 73 at paragraph [74].
Access is restricted only when there is an overriding public interest against disclosure: see Taylor v Destination NSW [2020] NSWCATAD 137 at paragraph [6].
Section 14(1) of the GIPA Act provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1 to the GIPA Act. The public interest considerations listed in the Table to section 14 of the GIPA Act 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.
The table to section 14 of the GIPA Act relevantly provides: 1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally) - … (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions … (f) prejudice the effective exercise by an agency of the agency's functions, (g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence 2 Law enforcement and security 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 (whether in a particular case or generally) - … d) endanger, or prejudice any system or procedure for protecting, the life, health or safety of any person ... 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 ...

The burden of proof

Pursuant to section 105 of the GIPA Act, the Respondent bears the onus of satisfying the Tribunal that its decision is justified. The Applicant contends that the Respondent has not satisfied that burden.

The public interest test to be applied.

An agency must first identify the information contained in each document which it contends should be withheld from an applicant because the public interest considerations against disclosure of the information contained in the document outweigh those in favour. Secondly, the agency must justify its decision through submissions and evidence, sufficient to satisfy the Tribunal.
The public interest considerations against disclosure need to be examined at a broad operational level and many of those considerations are concerned with systemic features of the operation of government: Camilleri v Commissioner of Police (NSW) [2012] NSWADT 5 ("Camilleri") from paragraph [26].
In order to satisfy its onus of proof the Respondent must be able to satisfy the Tribunal that the disclosure of the documents 'could reasonably be expected to' have one or more of the identified effects.
The test to be applied is an objective one, approached from the viewpoint of the reasonable decision maker: Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at paragraph [41].

Reasonable expectation

An expectation that is irrational, absurd, or ridiculous is not a reasonable expectation: Transport for NSW v Searle [2018] NSWCATAP 93 ("Searle") at paragraph [68].
There must be more than a mere possibility, risk or chance of the effect occurring: Australian Vaccination Network v Department of Finance & Services [2013] NSWADT 60 at paragraph [22].
Whilst a very broad value judgment is required to be made it is not one to be made in a vacuum. It is a judgment to be made having regard to the objects of the legislation, the general presumption in favour of disclosure of government information and the principles set out in section 15 of the GIPA Act: Searle at paragraph [104]
The Appeal Panel in Searle stated at paragraph [68] (a) The "could reasonably be expected" test ... 2. The words "could reasonably be expected" are to be given their ordinary meaning. They require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that disclosure would have the relevant effect: Attorney-General's Department v Cockcroft (1986) 10 FCR 180 at 190.5; Raven v The University of Sydney [2015] NSWCATAD 104 at 48. As was made clear by Hayne J in McKinnon v Secretary, Department of Treasury [2006] HCA 45 at [61] - ... when their Honours said, as they did, that the words required a "judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous," to expect certain consequences, they are not to be understood as having used the latter expression as a paraphrase of the former. Rather, they are to be understood, and have since been understood, as doing no more than drawing an emphatic comparison. To do more would have been, as their Honours correctly said, "to place an unwarranted gloss upon the relatively plain words of the Act." 3. In order to discharge the onus, the appellant needed to show more than a mere possibility, risk or chance of prejudice. It must be based on real and substantial grounds: Australian Vaccination Network v Department of Finance & Services [2013] NSWADT 60 at [22]. 4. It will not be sufficient for the decision-maker to proffer the view. It must be supported in some way: Manly v Ministry of Premier and Cabinet (1995) 14 WAR 550 at 573G; Raven at [53]. 5. "Prejudice" is to be given its ordinary meaning, that is, to cause detriment or disadvantage, or to impede or derogate from: Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60]. 6. The question as to prejudice to future supply was not to be determined by reference to the particulars of the instant situation. It was not necessary to show that it could reasonably be expected to occur on every occasion. It was to be determined at a broader operational level. Hence, the fact that in the instant situation the specific individual(s) supplying the information was unlikely to be inhibited even if there was disclosure was not determinative against the agency: Camilleri at [21], [22] and [26].
There must be 'real and substantial grounds for the opinion that disclosure could reasonably be expected to have one of the identified effects. In addition, that opinion must be based on some probative evidence': Newcastle City Council v Newcastle East Residents Action Group Inc [2018] NSWCATAP 254 at paragraph [46].
When considering the evidence on which it is asserted that disclosure could reasonably be expected to have a particular effect, prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses: Newcastle City Council v Newcastle East Residents Action Group Inc at paragraphs [58] - [59].
Consideration of the content and context of the information in question may satisfy the 'could reasonably be expected' standard, and separate 'factual' evidence as to the likely effect of disclosure of information is not necessarily required: Searle at paragraphs [61] - [65].
The Appeal Panel noted at paragraph [64]: The preparedness of a court or a Tribunal to rely on a natural implication that the flow of future information is likely to be adversely affected without direct evidence from the providers of information is reflected in the decisions in Commonwealth v Northern Land Council (1992) 176 CLR 604 at 615; Attorney - General (NSW) v Stuart (1994) 34 NSWLR 667 at 674-675; Betfair Pty Limited v Racing New South Wales (No 7) [2009] FCA 1140; 181 FCR 66 at [24] - [25]; Woolley v Lismore City Council [2013] NSWADT 10 at [73] - [74].
In Woolley v Lismore City Council Deputy President Higgins stated at paragraphs [73] - [74]: 73. It is the evidence of Mr Young that information obtained in the course of a misconduct investigation (whether internal or external) is treated as confidential. He went on to say 'by maintaining confidentiality the investigation has the best chance of obtaining and securing honest and forthright information from the people concerned.' The Tribunal has long accepted that the circumstance in which information is obtained in the course of an alleged misconduct investigation is obtained in confidence. 74. As I have indicated, Mr Harrison's report is expressly stated to have been provided to the respondent in confidence. I also accept that the information in the annexures, other than annexure C (the Memorandum), were provided to the respondent in confidence as they came into existence in the course of the respondent's enquiries into the alleged misconduct. I am also satisfied, on the basis of the evidence of Mr Young and the circumstances in which the information in Harrison's report and the information in the annexures thereto (other than annexure C), that disclosure of this information could reasonably be expected to prejudice the supply to the respondent of confidential information that facilitates the effective exercise of the respondent's disciplinary functions for alleged misconduct.
However, in the absence of evidence, the Tribunal may, when weighing the public interest test, place less weight on the particular public interest consideration: Anderson v University of Sydney [2018] NSWCATAD 196 at paragraphs [83] - [84] and Taylor v Office of Destination NSW [2018] NSWCATAD 195 at paragraphs [85] - [92].
While the onus is on the Respondent, a review of a reviewable decision under section 80(d) requires the Tribunal as decision-maker to demonstrate how it has applied the public interest test in section 13.
The Tribunal's decision must take into account the public interest considerations advanced to the Tribunal both by the Applicant for disclosure and the Respondent for withholding the information in question, the respective evidence supporting those public interest considerations for and against disclosure and then weigh and balance those various competing public interest considerations: Burnett (on behalf of Burnett) v Secretary, Department of Communities and Justice [2021] NSWCATAD 114 at paragraph [21].
An agency is not limited to defending or justifying its decision on the same grounds as the original decision-maker: Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 at paragraph [10].
Section 63 of the Administrative Decisions Review Act 1997 provides: 63 Determination of administrative review by Tribunal In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

Public Interest Considerations in favour of disclosure

The general public interest favouring the disclosure of government information is recognised by section 12(1) of the GIPA Act. In GIPA 22-38 the Respondent stated: I find the following considerations in favour of disclosure are relevant to your application: • Disclosure of the information could reasonably be expected to promote open discussion of public affairs and enhance the Government's accountability; • The information relates to a matter that concerns you and contains your personal information. As the information concerns your personal affairs, I consider this to be a strong public interest in favour of disclosure and carries substantial weight.
In GIPA application 22-43 the Respondent stated: Under section 12(1) of the GIPA Act, there is a general public interest in favour of disclosing government information. Section 12(2) of the GIPA Act sets out some examples of other public interest considerations in favour of disclosure. However, I am not limited to those considerations in deciding your application. I find the following considerations in favour of disclosure are relevant to your application: • Disclosure of the information could reasonably be expected to promote open discussion of public affairs and enhance the Government's accountability; The information relates to a matter that concerns you and contains your personal information.
In the 13 March 2023 remitted decision the Respondent further stated: I find the following considerations in favour of disclosure are relevant to your application: • the information is the personal information of the person to whom it is disclosed. Personal factors of the application Under section 55 of the GIPA Act, I can also consider any personal factors of your application. I have considered: • you are seeking access to your personal information.
The Applicant identified the following public interest considerations in favour of disclosure:

The information is personal to the Applicant. There is a greater emphasis on the disclosure of personal information of the person who is the applicant;
Disclosure of the information would enhance Government Accountability;
Disclosure of the information would inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public; and
Disclosure of the information could reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper, or unlawful conduct.
Disclosure of the information would foster responsible and representative government that is open, accountable, fair and effective.

The Applicant also raised a number of issues in support of his application which can be taken into account under section 55 of the GIPA Act. Section 55 provides: 55 Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section - (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14. (4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for. (5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to take reasonable steps to provide proof of his or her identity. (6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person. Note - An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73.
It is apparent that the Applicant is concerned about lack of transparency within the agency. He has referred to research into the Recreational Fishing Trust Funds and he has questioned the transparency of trust funded program areas. As I have noted above, the need for transparency is a consideration in favour of release of the withheld information.
The Applicant provided details of personal factors on a confidential basis but he also provided written submissions in which he identified that:

he has been a recreational angler for over 40 years.
In 2017 he began engaging with DPI Fisheries over management issues with his local estuary. The interactions with the Agency caused him to investigate how Fisheries administrated stakeholder stewardship and trust funds.
In 2018 he conducted an Audit and Review of the Advisory Council and Recreational Fishing Trusts and concluded there was maladministration and mismanagement of the Trust Funds and Advisory Council.
He was involved in the development of a policy that would deliver a new Independent Statutory Authority to take charge of the Recreational Fishing Licence Fee Scheme and grants funding.
The policy was announced on 20 February 2019.
He continues to act as an advocate for his local river.
In February 2020, DPI Fisheries agreed to make a site visit so he could show and explain key issues that needed action. He was not satisfied with the approach adopted by the DPI Fisheries officers who attended, and he terminated the meeting. He then lodged a complaint with the Director of Fisheries Habitat. He also lodged a complaint with the NSW Ombudsman relating to the incident.
He has subsequently been the subject of false accusations and DPI Fisheries staff were directed to not engage with him.

The Applicant has provided a significant amount of material and has made detailed submissions in relation to the issues raised by the Respondent. The flaws that he perceives in the Respondent's administrative processes provides a useful context for his access applications, and I have taken this into account as provided for by section 55 of the GIPA Act.

Public Interest Considerations against disclosure

The Respondent relies on several public interest considerations listed in the table to section 14 of the GIPA Act. As outlined in its findings as set out above, the Respondent relies on the public interest considerations against disclosure in clauses 1(f), 3(a), and 3(b) of the table. In addition, the Respondent asserts that the following considerations apply: 1. Item 1(d): disclosure of the information could reasonably be expected to prejudice the supply of confidential information to the respondent that facilitates the effective exercise of the Respondent's functions; 2. Item 1(g): disclosure of the information could reasonably be expected to found an action against the Respondent for breach of confidence or otherwise result in the disclosure of information provided to the Respondent in confidence; 3. Item 2(d): disclosure of the information could reasonably be expected to endanger, or prejudice any system or procedure for protecting the life, health or safety of any person; and 4. Item 3(f): disclosure of the information could reasonably be expected to expose a person to a risk of harm or of serious harassment or serious intimidation.
The Respondent has provided copies of the relevant documents and relies on written submissions but has not provided evidence in support of its contentions in regard to the public interest considerations against disclosure.
Clause 1 of the table to section 14 of the GIPA Act provides: 1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally) - … (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, … (f) prejudice the effective exercise by an agency of the agency's functions, (g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence, ...
Clause 2 of the table to section 14 of the GIPA Act provides: 2 Law enforcement and security 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 (whether in a particular case or generally) - … (d) endanger, or prejudice any system or procedure for protecting, the life, health or safety of any person, ...
Clause 3 of the table to section 14 of the GIPA Act provides: 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
As noted above, "Personal information" is defined in clause 4 of Schedule 4 to GIPA Act. The expression "personal information" is defined in section 4 of Privacy and Personal Information Protection Act 1998 ("the PPIP Act") in a manner similar but not identical to the manner in which it is defined in the GIPA Act.
Section 18 of the PPIP Act provides: 18 Limits on disclosure of personal information (1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless - (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person. (2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.

The specific public interest considerations against disclosure in GIPA 22-38

Clauses 1(d) and 1(f) - prejudice supply of confidential information; prejudice effective exercise of agency's functions.

It is a public interest consideration against disclosure where disclosure of information could reasonably be expected to prejudice the supply of confidential information necessary for the effective exercise of an agency's functions (clause 1(d)). Relatedly, it is also a public interest consideration against disclosure where disclosure could reasonably be expected to prejudice the effective exercise of an agency's functions (clause 1(f)). It is therefore convenient to address those considerations together.
The relevant elements of clause 1(d) are that: 1. the information was obtained in confidence; 2. the information facilitates the effective exercise of the agency's functions; and 3. disclosure of the information could reasonably be expected to prejudice the supply of such information to the agency in the future.
With respect to the first limb of clause 1(d), the Appeal Panel in Camilleri outlined the general approach to determining whether or not information is confidential information.
The Panel held at paragraph [33]: "In our view, the question of whether the information supplied is 'confidential information' must be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received. The agency's case is that all information received by the triple zero service at the point of receipt is treated as confidential. The agency's case is that members of the community expected the triple zero service to be a confidential service."
The Tribunal has accepted regularly that complaints regarding alleged misconduct are made in confidence. In Williams v Department of Industry and Investment (NSW) [2012] NSWADT 192, the Department's Internal Audit Bureau conducted an investigation into workplace bullying and harassment. At paragraph [82], the Tribunal accepted that information supplied orally to the investigators, and recorded in transcripts, was supplied in confidence.
In MJ v Department of Education and Commerce [2013] NSWADT 213 the Tribunal held at paragraph [73]: "It is well established that a function of an agency is to deal with and action allegations of misconduct by one or more of its officers. The effective exercise of that function is based on complaints being made voluntarily and that the making of the complaint and any action taken in regard thereto remains confidential, to the extent required by law."

Was the withheld information obtained in confidence?

The Respondent has identified information referred to as Documents 2, 3, 5 and 6 in GIPA 22-38 as related to its obligations under the Work Health and Safety Act 2011 ("the WHS Act")
As I have noted, the agency has not provided evidence in regard to the supply of the information other than what can be gleaned from the documents themselves. With a limited exception, it is not apparent from the face of the documents that the withheld information was obtained in confidence.
I have read the confidential material. I note the Respondent's submissions in regard to its obligations under the WHS Act. The Respondent's WHS incident reporting system is the CAMMS portal. The Respondent submitted: The respondent relies on workers reporting incidents so that it can effectively discharge its obligations under the WHS Act. The information provided by workers to the respondent through the WHS incident reporting system is considered to be confidential information as it is information that has been obtained by the respondent to meet its primary duty of care obligations under the WHS Act. The confidential information cannot be disclosed as the worker has not provided consent to disclose the information and disclosure is not required by the law. The GIPA Act does not mandate disclosure of this type of information. It simply provides that there is a presumption in favour of disclosure unless there is an overriding public interest against disclosure. Disclosing confidential information also attracts a penalty under the WHS Act. As such, disclosure of this information could reasonably be expected to found an action for breach of confidence. This goes to Item 1(g) in the table to section 14 of the GIPA Act. If the respondent was to disclose this information it would demonstrate to other workers that the respondent does not treat work, health and safety matters seriously and it is reasonable to expect that workers would be reluctant to report work, health and safety matters to the WHS incident reporting system. This goes to Item 1(d) and Item 2(d) in the table to section 14 of the GIPA Act. Section 19(2) of the WHS Act requires the respondent to ensure, as far as is reasonably practicable, that the health and safety of other persons in not put at risk from work carried out as part of the conduct of the business or undertaking. The respondent considers that releasing names and contact details to the applicant of individual staff members would compromise the health and safety of these individuals as it is considered highly likely that the applicant will try to contact these individuals. Given the nature of the complaints made against the applicant, it is not appropriate for the respondent to expose these individuals to this health and safety risk. This goes to Item 3(f) in the table to section 14 of the GIPA Act.
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
I note that the Applicant disputes the Respondent's assertions regarding confidentiality. Therefore, he submits that clause 1(d) of the Table to section 14 is not an applicable consideration against release of the information. However, I also note that the Applicant does not have access to these documents. He is therefore not in a position to consider the information contained in the documents by reference to the WHS Act.
In the circumstances I accept that employees who engage in the WHS process do so in the expectation that their contributions will be treated as confidential wherever possible. I am satisfied that the withheld information in documents 2, 3, 5 and 6 in GIPA 22-38 is information that was obtained in confidence.

Does the information facilitate the effective exercise of the agency's functions?

The Tribunal has found in a number of cases that disclosure of information given in relation to an investigation could reasonably be expected to prejudice the effective exercise by the agency of its functions. The Tribunal has recognised that agencies will be less likely to receive information of this kind if there were not some assurance of confidentiality: see for example Mansfield v Department of Family and Community Services (NSW) [2014] NSWCATAD 43; Jenkinson v Department of Education and Communities (NSW) [2013] NSWADT 280.
In DDT v Charles Sturt University [2017] NSWCATAD 329, the Tribunal concluded at paragraphs [48] - 49]: "The fact that a report into a complaint may be disclosed to the complainant at the complainant's request is not likely in my view to discourage future complaints from being made. However that does not mean that the clause 1(d) and 1(f) factors are not relevant or of significant weight in this case. It is important to the investigation of academic misconduct that any persons communicating with the investigators can be assured, if appropriate, that their communications will be treated confidentially. The disclosure of the report will disclose confidential communications from persons other than the applicant himself."
In my view, a similar approach is applicable where the relevant issues are raised in relation to WHS. I accept that the Respondent relies on the cooperation of all staff to gain the best understanding of whether WHS issues have arisen. The willingness of staff to openly and honestly report incidents could be adversely affected if their information is disclosed.
In the circumstances of this matter, I accept that the withheld information facilitate the effective exercise of the agency's functions.

Whether disclosure of the withheld information would prejudice supply of future information

The second limb of clause 1(d) is not concerned with whether in the future a particular person would refuse to supply the type of information that is in issue. Rather, the question as to prejudice is to be determined at a broader operational level. Clause 1(d) is concerned with the question of whether disclosure of this type of information would impair the general ability of the agency to obtain that type of information in the future: see Director General, Department of Education & Training v Mullett [2002] NSWADTAP 13 at paragraph [58], cited with approval in Camilleri at paragraphs [28] - [29].
The Tribunal has accepted that disclosure of material arising from agencies' investigative processes could prejudice the supply of future information essential for those processes to function. In Sheehy v Commissioner of Police (NSW) [2018] NSWCATAD 73 the Tribunal found that clause 1(d) applied with respect the disclosure of confidential information obtained by officers in the course of an investigation under Part 8A of the Police Act 1990. In Transport for NSW v Searle [2018] NSWCATAP 93, the Appeal Panel disagreed that no prejudice to the supply of information would or could occur because of the duties of honesty of public servants.
However, in Applicants v Commissioner of Police (NSW) [2015] NSWCATAD 22 Senior Member Lucy did not accept that police officers would not give full and frank responses if confidentiality was not assured.
In this matter the Respondent has not provided any evidence in support of the contention that disclosure of the withheld information would prejudice supply of future information. Nevertheless, after consideration of the circumstances in which information of this kind is provided, I accept that a failure to maintain confidentiality may adversely impact the Respondent's ability to achieve a high performing workforce. This can have a corresponding negative effect on the delivery of high quality service.
These considerations must be weighed against the public interest considerations in favour of disclosure. Where there is contention that there has been maladministration or dishonesty by staff of the Respondent, the disclosure of confidential information might be warranted if the disclosure is likely to expose maladministration or dishonesty.
However, in the circumstances of this matter, I do not agree that the issues that the Applicant has raised remove the potential impact of disclosure of the withheld information.
I am satisfied that disclosure of the redacted information could reasonably be expected to prejudice the supply to an agency of confidential information. In my view it is likely that the Respondent's ability to obtain similar information in the future could be impaired.
Clause 1(f) concerns situations where disclosure of information which was not provided in confidence might still prejudice the effective exercise of the agency's functions. Similar considerations apply as those in regard to clause 1(d). In the circumstances of this matter, I am satisfied that disclosure of the redacted information could reasonably be expected to result in this type of prejudice.
I am satisfied that disclosure of the withheld information could reasonably be expected to prejudice the effective exercise by the agency of its functions because the agency's ability to obtain information would be affected. In the absence of maintenance of confidentiality, it is reasonable to expect that staff would be less likely to provide information that is essential to the Respondent in meeting its obligations under the WHS Act.
Clauses 1(g) of the table to section 14 of the GIPA Act concerns the reasonable expectation that disclosure of this information could reasonably be expected to found an action for breach of confidence.
It is ultimately a question of fact as to whether information was obtained in confidence: AFW v WorkCover Authority of NSW [2013] NSWADT 51.
In Re B and Brisbane North Regional Health Authority [1994] QICmr 1; (1993) 1 QAR 279 it was held that the words " found an action for breach of confidence" in the Queensland FOI Act should be taken to refer to a legal action brought in respect of an alleged obligation of confidence in which reliance was placed on one or more of the following causes of action: (i) a cause of action for breach of an obligation of confidence; (ii) a cause of action for breach of a contractual obligation of confidence; (iii) a cause of action for breach of a fiduciary duty of confidence and where account is taken of the recognised defences to an action for breach of confidence.
Re B and Brisbane North Regional Health Authority was considered in Hopson v Commissioner of Police, NSW Police Force [2017] NSWCATAD 379 in which Senior Member McAteer found at paragraph [78] that: I find that the evidence of the confidentiality requirement carries significant weight which would found an action under cl 1 (g). I also find (based on a consideration of all of the evidence and material before me) that the weight of evidence is sufficient to override the general public interest in favour of disclosure. As a result the decision of the respondent (in respect of the Chairperson's identity) will be affirmed.
However, at paragraphs [70] - [71] he stated: 70. There is an apparent tension between cl 1 (g) and s 113 of the GIPA Act. Section 113 provides: 113 Protection in respect of actions for defamation or breach of confidence (1) If government information is disclosed pursuant to a decision under this Act, and the person by whom the decision is made believes in good faith, when making the decision, that this Act permits or requires the decision to be made-- (a) no action for defamation or breach of confidence lies against the Crown, an agency or an officer of an agency by reason of the making of the decision or the disclosure of information, and (b) no action for defamation or breach of confidence in respect of any publication involved in, or resulting from, the disclosure of information lies against the author of a record containing the information or any other person by reason of the author or other person having supplied the record to an agency. (2) Neither the giving of access to information pursuant to a decision under this Act nor the making of such a decision constitutes, for the purposes of the law relating to defamation or breach of confidence, an authorisation or approval of the publication of a record containing the information or its contents by the person to whom the information is disclosed. 71. On the other hand the GIPA Act contemplates (by the fact that cl (1) (g) sits outside of Sch (1), that there will be circumstances whereby irrespective of the fact that the release of information could found an action for breach of confidence etc., that information will be invariably released. If it is released after a proper consideration of the application, the agency is quarantined from any legal repercussion arising by the operation of section 113.

The weight to be given to clauses 1(d), 1(f) and 1(g)

In the circumstances of this matter, the withheld information in documents 2, 3, 5 and 6 in GIPA 22-38 has been provided in circumstances in which there is a reasonable expectation of confidentiality. In my view it is probable that staff are more likely to be honest, full, and frank in the future and would not conceal relevant information if confidentiality is assured. It could reasonably be expected that disclosure of such information would impede frank communication and that, as a result, the agency's function would be adversely affected.
I agree with the Respondent's submission in regard to these considerations in regard to those 4 documents. In my view, clauses 1(d), 1(f) and 1(g) of the Table to section 14 should be given significant weight.
I do not hold the same view in relation to the remaining withheld documents in GIPA 22-38. As I have noted above, no evidence has been provided to explain how these considerations against disclosure are applicable to those documents. I have read each of the remaining GIPA 22-38 documents and I am not satisfied that it is apparent from the face of the documents that they were obtained in confidence. I have no evidence on which I could reach that conclusion. In that regard, clauses 1(d) and 1(g) of the table to section 14 of the GIPA Act are not engaged if the information was not obtained in confidence.
Further, it is not immediately apparent how clause 1(f) is said to be an overriding consideration in regard to that information. In the circumstances it is my view that it should be given minimum weight.
Clauses 3(a) and 3(b) - disclosure would reveal personal information and contravene privacy legislation
The expression "personal information" refers to information about an individual whose identity is apparent or can reasonably be ascertained from the information.
The information to which these provisions are said to apply is that in documents 3 and 32. I have referred to document 3 above. I have accepted that it was obtained in confidence in regard to the respondents WHS obligations. I have read the document and I am also satisfied that it contains personal information of an individual other than the Applicant.
Document 32 is identified as an "Internal Email - re-emerging issue Nambucca".
It is not clear to me how it is said that clauses 3(a) and 3(b) apply to document 32. In the circumstances I am unable to attribute weight to these considerations against disclosure. Accordingly, the presumption in favour of release is to be given significant weight.
I am satisfied that the document 3 withheld information is personal information for the purposes of clauses 3(a) and 3(b) of the Table to section 14 the GIPA Act.
The term "reveal" is defined in clause 1 of Schedule 4 of the GIPA Act as: "to disclose information that has not already been publicly disclosed".
Document 3 contains sensitive personal information, and I am satisfied that the information has not already been publicly disclosed.
The release of information under GIPA is unconditional and effectively it is release to the whole world. Accordingly, I am satisfied that the Respondent has established that a disclosure of the information in document 3 could reasonably be expected to reveal personal information which has not been previously publicly disclosed.

Would disclosure of the withheld information contravene privacy legislation?

I am satisfied that the personal information in document 3 is not the kind of information usually disclosed. As the personal information was collected to enable the Respondent to carry out its obligations under the WHS Act, disclosure would not be directly related to the purpose for which it was collected.
Further, it is unlikely that the author would have been told that the personal information would be disclosed to the Applicant, nor has consent been given for the information to be disclosed. Further, disclosure is not necessary to prevent a serious and imminent threat to any person's health and safety.
Section 18 of the PPIP Act is set out above. In my view, none of the exceptions in subsections 18(1)(a) to (c) are engaged and therefore section 18(1) applies. It follows that the release of the personal information contained within the withheld documents could reasonably be expected to contravene an information principle under the PPIP Act.
In my view, there is public interest against disclosure of the withheld information in document 3 on the basis that the disclosure of the information would reveal personal information and contravene privacy legislation. I am satisfied that subclauses 3(a) and 3(b) apply as considerations against disclosure and should be afforded significant weight. I am not satisfied that this outcome could be avoided by redacting the personal information.
On balance, I am not satisfied that the public interest considerations in favour of disclosure of this information outweigh those considerations against disclosure.
In the present matter, the Respondent contends that the public interest considerations against disclosure in clauses 2(d) and 3(f) of the schedule to section 14 are applicable to a number of other documents in GIPA 22-38. The Respondent submitted that these documents contain contact details for individuals and a distribution email address for all workers in Fisheries. It is considered that disclosure of this information has the potential to expose workers to a health and safety risk.
The Respondent submitted: Section 19(2) of the WHS Act requires the respondent to ensure, as far as is reasonably practicable, that the health and safety of other persons in not put at risk from work carried out as part of the conduct of the business or undertaking. The respondent considers that releasing names and contact details to the applicant of individual staff members would compromise the health and safety of these individuals as it is considered highly likely that the applicant will try to contact these individuals. Given the nature of the complaints made against the applicant, it is not appropriate for the respondent to expose these individuals to this health and safety risk. This goes to Item 3(f) in the table to section 14 of the GIPA Act.
Clause 2(d) provides that there is a public interest consideration against disclosure of information if disclosure could reasonably be expected to endanger, or prejudice any system or procedure for protecting the life, health or safety of any person. The claim of endangerment requires grave assessment which must be closely scrutinised and not easily accepted. In Electoral Commissioner, State Electoral Office v McCabe (2003) NSWCATAP 28 the Appeal Panel stated at paragraph [36]: 36 We simply note that it is a very serious matter for an agency to invoke an exemption based on 'endangerment'. In our view, agency opinions making such a grave assessment must be closely scrutinised and not easily accepted. The Tribunal is, we consider, obliged to bring some scepticism to the task of assessing what are necessarily self-serving statements by agencies as to the availability of grounds for exemption which involve matters of judgment. The question is always whether the material, statements of opinion and submissions put forward by the agency justifies reliance on the exemption (see s 61, burden of proof). Often the access applicant will be no position, or a weak position, to produce any evidence in reply to the agency's opinion. The Tribunal must not simply adopt the agency's opinion; as seemed in essence to be the point asserted by this ground of appeal. In FOI matters especially, the only 'evidence' on a matter of judgment of the present kind may be that provided by the agency. It does not follow that approaches that are found in traditional adversarial litigation (i.e. in the absence of any evidence to the contrary, the trier of fact should ordinarily make findings in terms of the uncontested relevant evidence) should be adopted in the merits review context.
In this matter I have only the agency's opinion. There is no evidence to support its contentions. In the circumstances, I am not satisfied that the clause 2(d) consideration against disclosure is made out.
Clause 3(f) of the table to section 14 provides as a consideration against disclosure, exposure of a person to a risk of harm or serious harassment or serious intimidation. The Respondent has not provided evidence of the "serious consequences" that could reasonably be expected from disclosure of the information. A mere assertion is not sufficient to engage the consideration against disclosure.
In the circumstances I am not satisfied that this consideration against disclosure is made out.

Conclusion in regard to GIPA 22-38

On the evidence before me I am satisfied that there are overriding public interest considerations against disclosure of the information in documents 2, 3, 5 and 6 in GIPA 22-38. The correct and preferable decision is that this information should not be disclosed.
In relation to the other withheld information in GIPA 22-38, I am not satisfied that there are overriding public interest considerations against disclosure of the information. I am satisfied that the public interest considerations in favour of disclosure of this information outweigh those considerations against disclosure. Therefore, that information is to be released.

The specific public interest considerations against disclosure in GIPA 22-43

As was the case in regard to GIPA 22-38, the Respondent has provided submissions in regard to the withheld information. However, there is no evidence provided in relation to the asserted public interest considerations against disclosure of the withheld information.
As noted in the table set out above, the Respondent contends that clauses 3(a) and 3(b) of the Table to section 14 of the GIPA Act apply to information in documents identified as numbered 7, 8, 20, and 29. It is asserted that there is a conclusive presumption of an overriding public interest against disclosure of the withheld information in document 10. This information is said to be subject to legal professional privilege.
Subsection 14(1) of the GIPA Act provides: (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.
Clause 5 of schedule 1 to the GIPA Act provides: 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.
In its decision the Respondent stated in regard to document 10: Document 10 is an email containing information which I consider to be subject to legal professional privilege. The information includes advice provided by General Counsel of Treasury regarding interpretation of legislation. I am therefore satisfied that the information is subject to legal professional privilege as described in Clause 5 of Schedule 1 of the GIPA Act. Clause 5(2) of Schedule 1 to the GIPA Act provides that any agency in whose favour legal professional privilege exists must consider whether it would be appropriate for the agency to waive that privilege before the agency refuses access to information under clause 5 of Schedule 1 to the GIPA Act. DRNSW has decided not to waive privilege. As there is a conclusive presumption of an overriding public interest against disclosure of the information that is legally privileged, such information will not be released to you and will be redacted from document 10.
As I have noted, there is no evidence before me that establishes that document 10 is in fact subject to legal professional privilege, as has been asserted. The conclusive presumption in relation to legal professional privilege has been discussed in numerous decisions. In Lock the Gate Alliance v Department of Planning and Environment [2019] NSWCATAD 6 ("Lock the Gate Alliance") the Tribunal held at paragraphs [98] - [100]: 98. The Tribunal has considered cl 5 of Schedule 1 in numerous matters. Client legal privilege protects confidential communications between a lawyer and a client made for the dominant purpose of the lawyer providing legal advice or professional legal services to the client or for use in current or anticipated litigation. 99. In order for client legal privilege to attach to information, each element of client legal privilege must be satisfied. The essential elements of client legal privilege are: 1. the existence of a client and lawyer relationship; and 2. the confidential nature of the communication or document; and 3. the communication or document was brought into existence for the dominant purpose of either: 1. enabling the client to obtain, or the lawyer to give legal advice or provide legal services, or 2. for use in existing or anticipated litigation. 100. These considerations are embodied within sections 118 and 119 of the Evidence Act 1995.
As noted in Lock the Gate Alliance, each element of client legal privilege must be satisfied.
In the present matter, I have no evidence of a client and lawyer relationship. Even if it is assumed that the information was in fact provided by the General Counsel of Treasury, I am unable to determine what relationship exists between the Respondent and the General Counsel of Treasury.
There is no evidence to establish the authorship of document 10. On its face it is not apparent that document 10 has been provided by the General Counsel of Treasury. It appears to be at least third hand. Therefore, I am unable to conclude that it is a confidential communication.
Further, I have no evidence in regard to the dominant purpose for which the document was brought into existence.
In the circumstances I am not satisfied that Clause 5 of schedule 1 to the GIPA Act applies to document 10.
As I have noted above, the onus of proof rests with the Respondent. The Respondent has not provided any other basis for its claim that document 10 should be withheld. In the circumstance, the presumption in favour of disclosure must prevail. The correct and preferable decision is that document 10 is to be released.
In relation to documents 7, 8, 20, and 29, the Respondent contends that considerations against disclosure in clauses 3(a) and 3(b) of the Table to section 14 of the GIPA Act apply to information.
The redacted information in documents 7 and 8 is the private email address of an individual other than the Applicant. The redacted information in document 20 is the name of an individual other than the Applicant. The redacted information in document 29 is the name and contact details of an agency employee.
Clause 4 of schedule 4 to the GIPA Act provides that personal information does not include: 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
It follows that the redacted information in document 29 is not personal information for the purposes of the GIPA Act. Therefore, the considerations against disclosure in clauses 3(a) and 3(b) of the Table to section 14 of the GIPA Act do not apply to that information.
The redacted information in documents 7, 8, and 20 is personal information of individuals other than the Applicant. In my view, significant weigh should be given to these public interest considerations against disclosure of that personal information.
In the circumstances I am not satisfied that greater weight should be given to the public interest considerations in favour of disclosure of that information. The correct and preferable decision is not to release the information that has been redacted from documents 7, 8, and 20. Therefore that aspect of the GIPA 22-43 decision should be affirmed.

The re-determination decision

Following the 7 March 2023 hearing, additional searches were undertaken to determine if the Respondent holds any further information that falls within the scope of GIPA application 22-38 and GIPA application 22-43.
As has been noted above, additional information was located. The redetermination decision identified some of the information that was located as out of scope of the access applications and some other information was identified as already available to the Applicant. Some information has been redacted on the basis that it is personal information of an individual other than the Applicant and therefore the public interest considerations in clauses 3(a) and 3(b) of the Table to section 14 of the GIPA Act apply. In that regard, the decision stated: I have identified the following public interest considerations against disclosure: item 3(a) in the table to section 14 of the GIPA Act: the email identified in Item 2 of paragraph 10.1, contains the names of individuals that are members of the public. The names of these individuals are the personal information of those individuals. As such, the disclosure of that information could reasonably be expected to reveal and individual's personal information. item 3(b) in the table to section 14 of the GIPA Act: the email identified in Item 2 of paragraph 10, contains the personal information of individuals that are members of the public. The Department does not have the consent of these people to use and disclose their personal information to you. To use and reveal information without consent is a contravention of the information protection principles (IPPs) related to use (IPP 10) and disclosure (IPP 11). As such, the disclosure of this information could reasonably be expected to contravene an information protection principle.
In the circumstances, I am satisfied that the names of these identified individuals are the personal information of those individuals. I am satisfied that both clauses 3(a) and 3(b) of the Table to section 14 of the GIPA Act apply and should be given significant weight.
On balance, I am not satisfied that the public interest considerations in favour of disclosure of this information outweigh those considerations against disclosure. Therefore, that aspect of the decisions should be affirmed.

Reasonableness of the searches

As noted above, on 7 March 2023 I found that the searches that had been conducted were inadequate. I ordered the Respondent to undertake further searches to ensure that all information that falls within the scope of the Applicant's access applications had been located.
The redetermination decision identified the searches that were undertaken. The Applicant has submitted that the searches were still inadequate. He argued that it is inconceivable that no further information is held.
As noted above, the principles applicable to considering whether the searches undertaken by an agency are reasonable were considered by Senior Member Blake in Walker v Roads and Maritime Services. As he noted, that there may be weaknesses in an agency's searches or that there are failures in its recordkeeping processes do not necessarily lead to the conclusion that the search has not been reasonable, or sufficient, or adequate.
To some extent, the Applicant's contentions appear to be directed at the both the alleged weakness in the agency's searches and its recordkeeping processes.
Having considered the evidence of Ms Morrison and Mr Malkki, and the limited resources available to the agency in regard to its processing of GIPA applications, I am satisfied that the searches undertaken were adequate in the circumstances.

GIPA 23-06

As has been noted above, the Respondent determined to refuse to deal with the GIPA 23-06 access application as to do so would be an unreasonable diversion of the agency's resources.
The Respondent relies on the reasons for the decision provided in the GIPA 23-06 decision. The reasons stated: This application has requested information created by all persons working for or representing NSW DPI (including Fisheries working groups, committees and advisory councils) i.e. all departmental staff. As a guide there are currently 450 staff in DPI Fisheries alone, if each individual was required to spend a conservative 15 minutes searching their emails, internal drives, desktops and CM9 (the formal Departmental information management system) for documents potentially captured by this application this would equate to over 110 hours of searching. This does not include collation, assessment any relevant consultation and having to spend the time to make a formal decision with regards to the potentially large volume of documents. I also note, there are approximately 1800 staff in NSW DPI who, may be required to undertake searches for information related to this application in its current form. Using the above guide this would take an estimated 467.5 hours for searching alone.
As noted, the agency has not provided evidence of these assertions, however, there is evidence of the agency's resources that are available to process GIPA access applications. A total of five staff members are available for these tasks.
The Respondent also noted that a request by the Applicant under the PPIP Act resulted in 600 emails being returned from a search. It is noted that that search was only in respect of DPI Fisheries Officers, not all officers within DPI.
Section 60 of the GIPA Act provides: 60 Decision to refuse to deal with application (1) An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason)-- (a) dealing with the application would require an unreasonable and substantial diversion of the agency's resources, ... (3A) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency may, without limitation, take into account the following considerations-- (a) the estimated volume of information involved in the request, (b) the agency's size and resources, (c) the decision period under section 57. (3B) Any consideration under subsection (3A) must, on balance, outweigh-- (a) the general public interest in favour of the disclosure of government information, and (b) the demonstrable importance of the information to the applicant, including whether the information-- (i) is personal information that relates to the applicant, or (ii) could assist the applicant in exercising any rights under any Act or law. (4) Before refusing to deal with an access application because dealing with it would require an unreasonable and substantial diversion of an agency's resources, the agency must give the applicant a reasonable opportunity to amend the application. The period within which the application is required to be decided stops running while the applicant is being given an opportunity to amend the application. ...
As noted above, the Respondent's reasons for decision state: Taking into account section 60(3a) and 3(b) of the GIPA Act as set out above, I have considered the following: • It is likely that hundreds of hours would be spent by DRNSW responding to this application. This has been based on a previous application of yours. • The Governance & Information team within DRNSW has very limited resources, only 2 full time staff processing GIPA applications amongst other responsibilities. • You were provided an opportunity to revise the scope of the application on 16 August 2022 to something more manageable (suggested amendments were provided) but you declined to do so. • It is likely that some of the information would be personal information relating to you and I consider the information will be of personal interest to you. You advised in your email of 17 August 2022 that you require the requested information "to support; a current action lodged with the state's ombudsman and my right to pursue further action through the courts". It Is my understanding that in response to complaints from members of the public, the Ombudsman may make requests for information from government agencies when they consider it necessary. I also note with respect to potential future court actions, that information can be required to be produced by subpoena in litigated matters. DRNSW has previously and will continue to respond to requests for information by the Ombudsman and via subpoena. • There are only 20 working days within which to complete a formal access application under the GIPA Act • Other GIPA applicants would be disadvantaged if large amounts of time and resources are spent on a single application
The Respondent's reasons for decision also state: 3.4 DPI Fisheries have used one of your previous applications (GIPA 22-43) as an additional reference point in evaluating the likely work involved in this application. GIPA 22-43 took over 30 hours to process. I note this application is broader in scope than GIPA 22-43 in the following ways: • More officers required to search: GIPA 22-43 requested information created by three specific DPI Fisheries officers, this application has requested information created by all persons working for or representing NSW DPI (including Fisheries working groups, committees and advisory councils). The estimated impact on search times is outlined above. • Larger time frame: GIPA 22-43 was for a time period of one year and one month, this application is for a period of approximately four years and six months. This would significantly increase the number of documents captured increasing the amount of time required to process this application. • Wider range of document types in more locations: GIPA 22-43 requested emails and SMS messages, this application has requested "material, reports or communications received or shared across a carriage service or the organisations internal network". This too would significantly increase the number of documents captured increasing the amount of time required to process this application.
The Applicant has not provided any substantial contradiction to this information.
In the circumstances, I am satisfied that the resources that would be needed to process the GIPA 23-06 access application far exceed the resources that are available to the agency for the purpose.
The correct and preferable decision is to refuse to deal with the GIPA 23-06 access application as to do so would be an unreasonable diversion of the agency's resources. Therefore, the Respondent's GIPA 23-06 decision is affirmed.

Orders

The Respondent's decision in GIPA 23-06 is affirmed.
The Respondent's redetermination decision is affirmed.
The Respondent's decision in GIPA 22-38 is affirmed insofar as it concerns documents 2, 3, 5, 6, 7, 8, and 20.
The Respondent's decision in GIPA 22-43 is affirmed insofar as it concerns documents 7, 8, and 20.
The Respondent's decisions in GIPA 22-38 and GIPA 22-43 are otherwise set aside.

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: 21 December 2023

At a glance

Court

Decision date

Source

Judgment (29 paragraphs)

Parties

Cases Cited (22)