Zonnevylle v Department of Education

Disqualification application

1. The application by the Applicant to remove or disqualify me from determining this matter stated the following: The Applicant, respectively, has no faith in the impartiality of the Tribunal. In reference to Hearing File No. 1510696 October 12, 2016 Tribunal member Ms Dinnes [sic] The Applicant does not believe that Ms Dinnes is impartial and lacks good faith towards the Applicant.
2. The allegation of impartiality and "lack of good faith" was concerned with: 1. During the hearing, the Applicant requested an opinion from me in words to the effect of "Why is Section 112, 116, 117, 118, 120 included / contained in the GIPA Act?" My response was to the effect that the question was inappropriate to ask of me at hearing, and that I could not give legal advice to the Applicant. I could only determine the matters which were before me and were within my jurisdiction to do so. 2. I informed the Applicant that his complaints regarding allegations of breaches of sections 116, 117, 118 and 120 of the GIPA Act were not within my jurisdiction to determine. 3. The Applicant raised a concern at hearing that he believed Senior Member Montgomery's decision (in Zonnevylle v NSW Department of Finance & Services [2016] NSWCATAD 47) incorrectly interpreted the scope of section 112 of the GIPA Act. He alleged that: Whilst discussing this concern, Ms Dinnes is believed to have stated I assume I will be making the same decisions as (Mr Montgomery). I believe that this can be verified by the transcripts of the hearing. The Applicant picked up Ms Dinnes about this and it is believed that she denied stating this. This statement leads the Applicant to believe that Ms Dinnes is not open to visiting the interpretation of the GIPA Act, in particular Sect.112.
3. I consider the allegation of "impartiality and lack of good faith" to be an assertion of bias. The Applicant does not state whether he is asserting actual or apprehended bias. The rule against bias is a principle of procedural fairness preventing decision makers from making decisions if they are actually or ostensibly biased. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that a Tribunal be independent and impartial.
4. The general test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11], affirmed in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [11]. The two step process involved was explained by the High Court in Ebner v Official Trustee in Bankruptcy in the following way at [8]: First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
5. For a decision-maker to disqualify himself or herself for apprehended bias, there must be an objective connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the decision-maker must not bring an impartial mind to bear on the issues that are to be decided: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [67] Gummow ACJ, Hayne, Crennan and Bell JJ.
6. A decision maker has an obligation to hear and determine the matter unless reasonable apprehension of bias can be established: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [19]; Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 at [35]- [36]
7. An application for disqualification should be determined by the decision-maker whose disqualification is sought, and should not involve a contest on the facts: Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 at 436; Wentworth v Graham [2003] NSWCA 240.
8. In the present matter it is incumbent upon the Applicant to "identify the issues which will need to be determined, the conduct which gives rise to the apprehension and the logical connection between the conduct and the issues". In my view he has not done so.
9. In relation to the first two allegations - that I refused to provide the Applicant with my opinion and that I stated certain provisions of the Act were not within the Tribunal's jurisdiction to determine - I cannot ascertain how either would translate by any logical connection to any type of bias in my determination of the issues. Rather, each is a statement regarding the scope of the Tribunal's jurisdiction and my role in determining matters within that jurisdiction. There is no ground for disqualification identified as a result. If I am incorrect in my assessment of the Tribunal's jurisdiction, it is open to the Applicant to appeal any decision I make on that issue as an error of law.
10. In relation to the third allegation - that I stated "I assume I will be making the same decisions as (Mr Montgomery)", the Applicant notes that I "denied stating this". The Applicant alleges that this statement demonstrates that "Ms Dinnes is not open to visiting the interpretation of the GIPA Act, in particular Sect.112". It is difficult to ascertain what is being alleged by the Applicant, whether he is referring to "the same decision" regarding the facts, or the law. The application of section 112 of the GIPA Act has been previously addressed by SM Montgomery in other proceedings brought by the Applicant in this Tribunal, but the facts of these proceedings are different and require fresh consideration of the provision with respect to the allegations made by the Applicant in the substantive proceedings. So much was explained to the Applicant at hearing.
11. While the Tribunal is not bound by the doctrine by precedent, that is, it is not formally bound to follow earlier decisions, the Tribunal should exercise caution in re-opening prior, considered rulings of an earlier Tribunal. As noted in Bevege v Commissioner of Police, NSW Police Force [2014] NSWCATAD 22 at [21]: 21 The threshold question that arises before considering any further these contentions is whether the present Tribunal should revisit the prior considered rulings. Counsel for the Administering Minister acknowledged the importance of different panels of a Division of the Tribunal being seen to deal consistently with the same or like questions. He acknowledged that the view might be taken that it would not be appropriate to revisit the previous, considered rulings. 22 In my view, a later Tribunal should exercise caution in reopening prior, considered rulings of an earlier Tribunal. Ordinarily a later Tribunal should adopt the ruling of the earlier Tribunal; and leave these questions to be finally determined within the Tribunal at the Appeal Panel level… 23 Normally a prior considered Tribunal ruling should only be reopened if a new, significant argument is raised before the later Tribunal. This is not such a case.
12. The application of section 112 of the GIPA Act is a question of statutory construction. As the applicant has not raised any new or significant argument, there is no reason why my intention to follow the construction explained by SM Montgomery in Zonnevylle v NSW Department of Finance & Services [2016] NSWCATAD 47, if I agree with it, should be grounds for disqualification. Rather, it is a question of comity and a matter of consistency in Tribunal decisions as discussed in Rittau v Commissioner of Police, NSW Police Service [2000] NSWADT 186; ALZ v SafeWork NSW (No 2) [2016] NSWCATAD 121; BY v Director General, Attorney-General's Department [2002] NSWADT 79; Ku-ring-gai Council v NSW Department of Premier and Cabinet [2016] NSWCATAD 181.
13. In my view, the issues raised by the Applicant do not provide a ground for disqualification. As a result I refuse the Applicant's application that I disqualify myself.

The Substantive Application

1. As a result of the access application being amended in the course of the proceedings, five decisions on the application were made by the Respondent and are before the Tribunal for review. They are: 1. Notice of Invalid Non-Personal Access Application and Amendment, dated 26 October 2015 ("Decision 1"); 2. Redetermination of Invalid Access Application, dated 29 March 2016 ("Decision 2"); 3. Notice of Decision: Determination, dated 24 June 2016 ("Decision 3"); 4. Item 2 Notice of Decision: Determination, dated 27 July 2016 ("Decision 4"); 5. Item 2 Notice of Decision - Further Decision, dated 20 September 2016 ("Decision 5").
2. As identified by the Respondent, the effect of these decisions is that: 1. Information falling within the scope of the access application has been released to the applicant, subject to redactions of information that the respondent says is subject to a public interest disclosure; 2. The Respondent does not hold information falling within the categories identified in the access application (as amended).
3. The applicant's case can be broadly summarised to be: 1. The Respondent has not conducted adequate or reasonable searches in response to the access application; 2. There is a public interest in favour of the redacted information being released; 3. Officers of the respondent have been involved in various alleged acts of misconduct or impropriety in connection with this and other access applications.
4. Following extensive correspondence between the parties and case management by the Tribunal, the matters remaining for determination are Decisions 3, 4 and 5.
5. Decision 3 addressed the following 6 items: All UNREDACTED emails and other correspondence sent by NSW state schools or any other Educational institution (including TAFEs, etc) to any of the Applicant's email addresses:isscosyd@bigpond.comiind1791@bigpond.net.aysales@issco.com.ausupport@issco.com.ausales@isscoed.com.ausupport@isscoed.com.ausales@sciencesupplies.com.ausales@sciencelabsupplies.com.aupeterzgipa@yahoo.com.aupzgipa@yahoo.com.auaccessenquiries@yahoo.com.auTo include all attachments to the emails (UNREDACTED) Item 2 is invalid and will be determined at a later date Documents / correspondence detailing when each email address was blockedDocuments / correspondence detailing the source of email address details, who did the search, who provided the email details & who authorized the blocking of email addresses Documents detailing the authorization to block the above emails Procurement (a) Item 5.a. Probity reports relating to DEC PSD's involvement with the LMBR. IT5. (b). Documents relating to / between: Paul Hopkins Joanne Bailey & her deputy CPO The IT Manager (who was involved in the blocking of my emails to and from NSW schools & any other educational institution), his deputy IT managers and any other IT Directorate staff who were instrumental/consulted (as per Bailey's statement) in the blocking of my emails. EPAC a). Documents detailing a list of all serious complaints made to EPAC and details of complaints investigated relating to: procurement staff IT staff DoE staff with an employment grade/ level which would be over $135,000 Any public interest disclosures offences from 2013 - 19/10/2015 b) Documents / correspondence between - EPAC and - DoE procurement staff and/or Ms Bruniges and/or Mr Riordan relating to those complaints in (a). From the period of January 2014 to October 2015
6. Decisions 4 and 5 addressed Item 2. Decision 4 responded to the Item 2 request as: Documents/database/lists from DEC IT of all email addresses/websites blocked on DEC servers which have: .com.au web addresses Bigpond.com or bigpond.net web addresses
7. Decision 5 addressed an administrative oversight by the Respondent in dealing with the clarification of Item 2 via correspondence with the Applicant on 14 June 2016, consequently adding the following: Documents / directives / memos from Bailey to DEC IT specifying which email addresses associated with Peter Zonnevylle / identities to be blocked Documents / directives / memos from DEC IT to Bailey specifying which email addresses associated with Peter Zonnevylle / identities have or will be blocked The above documents to include date & time of blocking. The date range the information is to cover is from January 2014 to October 2015.
8. The Respondent claims to have produced all material to the Applicant in full answer to items 1, 3, 4, 5, 6.
9. Redacted material was provided to the Applicant in answer to Item 2. A confidential bundle was provided to the Tribunal contained the material produced in response to Item 2, unredacted, indicating the basis for the redactions.

Tribunal's jurisdiction and powers

1. The Tribunal's jurisdiction to conduct this review derives from s. 100 of the GIPA Act read with s. 28 of the Civil and Administrative Tribunal Act 2013 (NSW) and s. 9 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act).
2. In determining the application, the Tribunal is to decide what the correct and preferable decision is having regard to the material before it: ADR Act, s. 63(1). The Respondent bears the onus of satisfying the Tribunal that the decision it has made is the correct and preferable decision: GIPA Act, s. 105(1). The Respondent is not limited to defending the matter on the same basis as it made its original decision: Public Service Assn v Premier's Department [2002] NSWADT 277 at [57] and [59].
3. In determining the application, the Tribunal may affirm the decision, vary the decision, set aside the decision and make another decision in substitution for the decision set aside, or set aside the decision and remit the matter for reconsideration by the Respondent in accordance with any directions or recommendations of the Tribunal: ADR Act, s. 63(3).

The GIPA Act

1. Section 3(1) of the GIPA Act provides: 3 Object of Act (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
2. Section 3(2)(a) of the GIPA Act requires that the Act be interpreted and applied so as to further that object.
3. Section 5 of the GIPA Act establishes a presumption in favour of disclosure of government information. An access applicant has a legally enforceable right to access the information requested unless there is an overriding public interest against disclosing the information: section 9(1) of the GIPA Act.
4. Section 12 of the GIPA Act sets out the general public interest consideration in favour of access to government information. Section 12(1) of the GIPA Act sets out a general public interest in favour of disclosing government information. Section 12(2) provides that the agency may take into account any other considerations in favour of disclosure which may be relevant.
5. Section 13 of the GIPA Act sets out the public interest balancing test for determining whether there is an overriding public interest against disclosure. The balance is always weighted in favour of disclosure. Before deciding whether to release or withhold information, an agency must apply the public interest test and decide whether or not an overriding public interest against disclosure exists in regard to the information sought. Section 13 requires the decision maker to: 1. identify relevant public interest considerations in favour of disclosure, 2. identify relevant public interest considerations against disclosure, 3. attribute weight to each consideration for and against disclosure, and 4. determine whether the balance of the public interest lies in favour of or against disclosure of the government information.
6. The only public interest considerations against disclosure that can be considered are those identified in section 14 of the GIPA Act. This includes considerations set out in schedule 1 to the GIPA Act.
7. Considerations against disclosure will only be relevant if it is established that the disclosure of the information could reasonably be expected to have the effect outlined in the table to section 14 of the GIPA Act.
8. Relevant to these proceedings is Clause 3 of Table 14, which 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 ,(c) prejudice any court proceedings by revealing matter prepared for the purposes of or in relation to current or future proceedings,(d) prejudice the fair trial of any person, the impartial adjudication of any case or a person's right to procedural fairness,(e) reveal false or unsubstantiated allegations about a person that are defamatory,(f) expose a person to a risk of harm or of serious harassment or serious intimidation,(g) in the case of the disclosure of personal information about a child-the disclosure of information that it would not be in the best interests of the child to have disclosed.
9. The Agency must apply the public interest test in accordance with the principles set out in section 15 of the GIPA Act: a. agencies must exercise their functions so as to promote the object of this Act. b. agencies must have regard to any relevant guidelines issued by the Information Commissioner. c. the fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. d. the fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. e. In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
10. Pursuant to section 105 of the GIPA Act the burden of establishing that the decision is justified lies on the Respondent.
11. The Tribunal's task is to make the correct and preferable decision in this matter having regard to all the material before it.
12. The Tribunal is to determine where the balance lies between the public interest considerations for and against disclosure. The balancing exercise "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].
13. The Respondent's obligation to search for information in response to an access application is set out in section 53 of the GIPA Act: 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.
14. Where an applicant asserts that searches for information conducted in response to an application have not been reasonable, Camilleri v Commissioner of Police [2012] NSWADT 5 and other previous decisions of the Tribunal and its predecessor provide that the Tribunal is to approach the question as follows: 1. The tribunal is to first ask whether there are reasonable grounds to believe that the requested information exists and is information of the agency. 2. If the answer to question 1 is "yes", the Tribunal must then ask itself whether the efforts made by the agency to locate the information have been reasonable in the circumstances of the case.
15. The applicant bears the onus of demonstrating that there are reasonable grounds for believing that further information falling within the scope of the access request exists that has not been supplied: Stanley v Roads and Maritime Services (NSW) [2014] NSWCATAD 123 at [57]. This requires the applicant to put some credible material or submission before the Tribunal that documents of the requested kind exist. The requirement will not be satisfied by an assertion of non-compliance based on a general distrust of the agency in question: Camilleri at [13]; Cianfrano v Department of Commerce (No 2) [2006] NSWADT 195; Hula v Commissioner of Police (NSW) [2013] NSWADT 153 at [32].
16. In determining whether reasonable searches have been conducted, relevant considerations include "the clarity of the request, the way the agency's record keeping 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": Miriani v Commissioner of New South Wales Police [2005] NSWADT 187 at [30].
17. The Respondent bears the onus of satisfying the Tribunal that the searches conducted by the Respondent were reasonable in the circumstances.

"Could reasonably be expected…"

1. The words "could reasonably be expected to" have been held to require "something which is more than a mere risk or chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived": Leech v Sydney Water Corporation [2010] NSWADT 198 at [28], adopted in Flack v Commissioner of Police, NSW Police Force [2011] NSWADT 286 at [41]-[42] and cited in Roy v Commissioner of Police, NSW Police Force [2012] NSWADT 120 at [28]. While it must be a "real" risk, the chance of it materialising need not be more probable than not: Neary v State Rail Authority [1999] NSWADT 107 at [35]-[36] and the cases there cited. The phrase "'simply calls for an "objective assessment', on the evidence before the Tribunal, as to whether the claimed effects could be expected to arise, from the standpoint of a reasonable administrator. Ultimately, it is of course a question of fact": Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45].
2. In Attorney General's Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180 at 190, Bowen CJ and Beaumont JJ interpreted the term in the following way: In our opinion, in the present context, the words "could reasonably be expected to prejudice the future supply of information" were intended to receive their ordinary meaning. That is to say, 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 those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like...
3. The word "expected" is not to be given too wide a meaning in light of the objectives of the statute: Cockcroft per Sheppard J at 112. The occurrence of the prejudice does not have to be established on the balance of probabilities but there must be something more than a possibility, risk or chance of the event occurring: Cockcroft per Bowen CJ and Beaumont J at [106].

Reasonableness of searches

1. The Applicant claims that the searches conducted for Items 1, 3, 4, 5, 6 as addressed in Decision 3 were not reasonable.
2. As noted in Decision 3, the Respondent produced a bundle of 175 pages to the Applicant in response to items 1, 3, 4, 5, 6 of the access application: Item 1 - Released in full from pages 15 - 175 Item 3 - Released in full from pages 22 - 33 "Documents / correspondence detailing when each email address was blocked. Documents / correspondence detailing the source of email address details"Information is not held for the following part of Item 3 of your application "Who did the search, who provided the email details & who authorised the blocking of the email addresses" Item 4 - Information not held. There are no documents held detailing who gave authorization to block the above emails for the time period of this request. Item 5 (a) - No records held for the time period of this request Item 5 (b) - No records held for the time period of this request Item 6(a) - Released in full from pages 1 - 6 Item 6(b) - No records held. There was no correspondence between EPAC and Departmental procurement staff and/or Dr Bruniges and/or Mr Riordan relating to the complaints in 6(a) for the time period of the request.
3. The Applicant's evidence demonstrates, and the Respondent conceded, that documents served via email by the Applicant on 19 October 2016 as his "Confidential documents ordered to be released" contained emails and attachments which fell within Item 1 of the access application, but were not produced in answer to that request by the Respondent in the 175 pages produced.
4. The Applicant has thereby discharged his onus in identifying that there are reasonable grounds for believing that further information falling within the scope of his access request existed but was not supplied: see Stanley v Roads and Maritime Services (NSW) [2014] NSWCATAD 123 at [57]. The Respondent now therefore bears the onus of satisfying the Tribunal that the searches it conducted in relation to Item 1 were reasonable in the circumstances.
5. On the basis of the evidence before me, I find that the searches conducted by the Respondent in answer to this request for access were nevertheless reasonable in the circumstances.
6. The Applicant relied on the evidence of Ms Southern and Ms Pendergast. Both were cross examined by the Applicant.
7. In her statement of 19 September 2016, Ms Pendergast indicated that she: 1. Made preliminary enquiries with areas of the Department deemed likely to hold information falling within the scope of the application, following its receipt; 2. Received initial advice as to whether relevant information was held, or could be identified by reference to the contents of the application; 3. Made further enquiries with the same areas in respect of categories contained in the applicant's amended application, following the remittal of the application on 9 February 2016, and received their responses; 4. Following the further remittal of items 1 and 3-6 of the application, as amended, on 24 May 2016, received search officer declarations from the relevant areas of the Department, confirming the relevant searches had been performed; 5. Made enquiries regarding documents falling within Item 2 of the application following remittal, and received appropriate responses, which notes that the searches had taken some 16 hours.
8. The evidence supports the Respondent's submission that the searches overseen by Ms Pendergast involved the likely locations within the Department caught by the access application, on the basis of the identifiers specified by the applicant. The relevant officers conducting the searches turned their minds to whether material of the requested kind was likely to be held in their areas, and where, conducted searches, and confirmed that those searches had been conducted by way of search officer declarations.
9. Ms Southern's evidence provided further detail in relation to the Department's practice and procedure in storing and archiving the material potentially caught by the access application, and its methods of retrieval. Ms Southern explained in cross examination that the Respondent's longer-term archive of emails was comprised of a "snapshot" of the email servers taken at monthly intervals. Emails which were sent or received, and deleted, in between these monthly "snapshots", would not have been archived. The respondent noted in its submissions that this meant that there was a possibility that emails identified by the applicant as demonstrating the Respondent's failure to adequately respond to the access application were, in fact, not present on the archived image of the email system, and I accept that submission.
10. The applicant submitted that the respondent's searches were not reasonable in circumstances where individual schools were not asked to search their email servers in response to the application. The respondent submitted that the obligation to undertake reasonable searches would not extend so far in circumstances where, as at 2015, the Respondent was responsible for administering over 2200 public school, including over 400 secondary schools. The respondent submitted that it would have been unreasonable to have required it to make separate enquiries with some or all of those schools, and to require those schools to separately review the email accounts of their employees. I agree with the Respondent's submissions on this issue. The search in such terms would be too broad, and oppressive, to be considered "reasonable".
11. The Applicant did not suggest any other locations which would have been reasonable for the Respondent to have searched for the information in response to the access application, which were not otherwise searched. I concur. In the circumstances, the evidence demonstrates that the Respondent complied with the obligations imposed on it by section 53 of the GIPA Act to conduct reasonable searches.

Access to redacted material

1. The applicant seeks access to the redacted material produced in response to Item 2 of his access application, addressed in Decisions 4 and 5 of the Respondent.
2. The material redacted pursuant to section 74 of the GIPA Act is included in 21 pages, 7 pages from Decision 4 and 14 pages from Decision 5. The material can be broadly described as: 1. Details of email addresses and websites blocked by the respondent on its server; 2. The names, email addresses and telephone numbers of an officer involved in data processing; and 3. Material not relevant to the access application.
3. Section 12 of the GIPA Act provides some examples of public interest considerations in favour of disclosure of information. The considerations in favour of disclosure of information are not limited and are weighed in an applicant's favour.
4. The Respondent submitted that the public interest in favour of disclosure of the redacted material included that "the information could reasonably be expected to inform the public about the operations of agencies and, including their policies and practices for dealing with members of the public. Specifically, the information evidences the Department's practices for blocking third party websites". This is a reference to section 12(2)(b) of the GIPA Act.
5. The Applicant submitted that the public interest in favour of disclosure of the redacted material included: 1. That the respondent had prejudiced his business interests 2. That officers of the respondent had intercepted and blocked communications from him to his customers 3. That the respondent had engaged in serious misconduct and corruption 4. That the respondent was wasting public funds
6. The Applicant submitted: The Tribunal must assure the Applicant that the redactions: Are "legal" and justified Are not made to hide a relationship between Bailey & that officer which would compromise the integrity of the functions performed by that or other officers Are not to hide the context of any comments or advice exchanged that is to the detriment of the Applicant Are not to conceal or otherwise any conduct which would be construed as a lack of good faith or misconduct These documents are not legally privileged and the Applicant has a right to know the position of that officer with whom the alleged corrupt Bailey was corresponding with. There is serious concern that this officer may have influence over associated officers. The Applicant has no faith in the credibility of the Respondent.
7. I disagree with the Applicant's characterisation of the Tribunal's role. The Tribunal's role is to determine the correct and preferable decision applying the criteria of the GIPA legislation.
8. On the evidence before me, the relevant public interest factors in favour of disclosure of the subject redacted material include s12(1) and 12(2)(b) of the GIPA Act. I agree with the Respondent's submission that none of the material redacted from that produced in answer to Item 2 of the Applicant's access application does or could substantiate any misconduct on the part of the respondent or its officers, such as would be required by following authority in Commissioner of Police (NSW) v Barrett [2015] NSWCATAP 68 at [136] with reference to section 12(2)(e) of the GIPA Act. I cannot identify any other public interest factors in favour of disclosure applicable to the redacted material.
9. On consideration of the evidence, I agree with the Respondent's submissions regarding Decision 4 that there is a public interest against disclosure of material which tends to show which email addresses and websites have been blocked in accordance with Table items 1(f) and 2(e) of section 14 of the GIPA Act, other than those belonging to or associated with the Applicant. Items 1(f) and 2(e) are, respectively, a public interest against disclosure in relation to material which could reasonably be expected to "prejudice the effective exercise by an agency of the agency's functions" and "endanger the security of, or prejudice any system or procedure for protecting, any place, property or vehicle". This was described as "the prejudice that would be caused to the integrity of its IT systems by the release of the information" which would allow persons to subvert the Respondent's IT filtering system and undermine its integrity, which would in turn interfere with the Respondent's functions. I do not agree with the Respondent's characterisation that some of the redacted material would "permit the identification of the individuals concerned" in accordance with Item 3(a)of the table at Section 14 of the GIPA Act.
10. On consideration of the evidence, I agree with the Respondent's submissions regarding the redaction of material produced pursuant to Decision 5. I agree that those parts of the redacted material marked as "falling outside the scope of the access application" did fall outside the parameters of the access application considered in Decision 5.
11. The remainder of the redacted material produced pursuant to Decision 5 was withheld on the basis of item 3(f) of the Table at Section 14 of the GIPA Act, which provides a public interest against disclosure in relation to material which could reasonably be expected to "expose a person to a risk of harm or of serious harassment or serious intimidation". On review of the confidential evidence, I confirm the Respondent's submission that this category of information "consisted of name, email addresses, position and phone number of an officer of the Department which appeared in internal correspondence".
12. The Respondent submitted that I should rely on the findings in Zonnevylle v Department of Education and Communities [2015] NSWCATAD 10, specifically the findings at paragraphs 125 to 128, to the effect that disclosure of the information could reasonably be expected to expose a person to a risk of harm, or of serious harassment or serious intimidation: [125] I accept Ms Bailey's evidence of an exceedingly high number of emails sent by the Applicant or Mr Zonnevylle to a number of officers within the Respondent. It is readily apparent from the face of the documents that are before me that staff of the Respondent were concerned about both the number and the tone of those emails. It is also apparent that staff were concerned that if their names were released to either the Applicant or Mr Zonnevylle then they would be the subject or recipients of high numbers of emails in the future. [126] I agree with the Respondent that Mr Zonnevylle's conduct falls within the definition of serious harassment or serious intimidation. I accept that some staff members genuinely fear that their names may be published on websites operated by Mr Zonnevylle and that they fear that they will be harassed by receiving unsolicited correspondence from either the Applicant or Mr Zonnevylle. [127] I am satisfied that if the information is released to the Applicant it is likely that it will be obtained by Mr Zonnevylle. I am also satisfied that disclosure could reasonably be expected to expose a person to a risk of serious harassment or serious intimidation. [128] The simple way of ensuring that the staff are not subjected to serious harassment or serious intimidation in the future is to redact their names from the information that is released. In my view, the Respondent's decision to redact the names of officers was warranted.
13. With reference to the authority in Ku-ring-gai Council v NSW Department of Premier and Cabinet [2016] NSWCATAD 181 at [21], I rely on these previous findings of the Tribunal regarding the Applicant and his conduct in relation to personal email addresses of the Respondent's staff. I consider that the Respondent's reliance on item 3(f) of the Table at section 14 of the GIPA Act to redact those parts of the material produced under Decision 5 is warranted in these circumstances.
14. The Applicant submits that the findings and interpretation of SM Montgomery in Zonnevylle v Department of Education and Communities [2015] NSWCATAD 10 are erroneous and he intends to appeal them. He claims both an inability to obtain resources, including a "publicly funded specialist legal service such as the CSO", and his inexperience of the GIPA Act as a basis for his intention to appeal, and that the Tribunal should thereby "inform itself in any manner it sees fit" to comply with its "obligation for the Tribunal to make an informed and correct decision of high quality" and, essentially, to disregard the findings in that matter and to "summons copies of the emails specified by the Documents". I am not persuaded by these submissions and decline to do so.
15. Ascribing weight to the relevant public interest factors, I find that in relation to both Decision 4 and Decision 5, the public interest factors against disclosure are more significant than the public interest factors in favour of disclosure. The public interest in favour of disclosure was barely articulated by the Applicant, except in reference to unsubstantiated harm to his business or commercial interests, or the unspecified interests of unspecified others, or as a basis for making allegations of misconduct and malfeasance. There was little evidence provided for any detriment to his personal or commercial interests other than his dissatisfaction with decisions made by the Respondent through its officers, his communications with them, or his dissatisfaction with the Tribunal. The Respondent provided the Tribunal with assistance in identifying which of the public interest factors in favour of disclosure were relevant, but I ascribe these little weight in the absence of any identifiable specific impact on the public interest. In contrast, the material redacted was clearly identifiable as falling within the relevant provisions of the table at section 14 of the GIPA Act, as discussed above.
16. The respondent has the burden of establishing that its decision is justified: GIPA Act, s 105(1). It has done so. On the evidence before me, I find that the public interest in releasing the redacted parts of the material produced in answer to Decision 4 and Decision 5 is outweighed by the public interest factors against its disclosure.
17. Accordingly, the correct and preferable decision is to affirm Decisions 3, 4 and 5 of the Respondent, being its determinations of 24 June 2016, 27 July 2016, and 20 September 2016.

The Applications pursuant to sections 112, 116, 117, 118 and 120 of the GIPA Act.

1. Much of the Applicant's extensive written submissions were concerned with his request for the Tribunal to refer the Respondent's conduct to the Minister pursuant to s112 of the GIPA Act, and for the Tribunal to find that the Respondent had committed offences pursuant to sections 116, 117, 118 and 120 of the GIPA Act.
2. Section 112 provides: If NCAT is of the opinion as a result of an NCAT administrative review that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act, NCAT may bring the matter to the attention of the Minister who appears to NCAT to have responsibility for the agency.
3. The Tribunal's powers in relation to section 112 have been considered in a number of recent cases, including Zonnevylle v NSW Department of Finance & Services [2016] NSWCATAD 47, Turner v Commissioner of Police, NSW Police Force [2016] NSWCATAD 303, Saggers v Environment Protection Authority [2013] NSWADT 204, Shoebridge v The Office of the Minister for Police and Emergency Services [2014] NSWCATAD 189. Those cases provide authority for the following guidance in applying section 112: 1. The Tribunal's opinion must be formed "as a result of an NCAT administrative review": the materials supporting this opinion must have arisen in the course of the Tribunal reviewing a reviewable decision. 2. Any referral under section 112 must be made in relation to an "officer of an agency", not against the agency generally; 3. The conduct complained about must be a failure "to exercise in good faith a function conferred on the officer by or under the GIPA Act". 4. The test in relation to "good faith" is predominantly subjective; however there are some objective components as well: 1. What is required for something to be done or omitted in good faith may vary from one case to the next. 2. Objective components may include: 1. consideration as to whether there had been a real attempt to answer the request for information at least by recourse to the available materials. 2. serious and careful consideration must be given to the application; there must be more than a cursory review. 1. The mere fact that the Tribunal accepts that an aspect of the agency's decision is wrong is insufficient to bring the matter within the scope of section 112.
4. In Turner, SM Montgomery explained: [102] An agency must exercise its functions so as to promote the object of the GIPA Act. It must have regard to any relevant guidelines issued by the Information Commissioner and must not take irrelevant considerations into account. [102] It must undertake such reasonable searches, using any resources reasonably available, as may be necessary to find any of the information applied for that was held by the agency when the application was received [104] The obligation to perform their task in good faith will require honest action and fidelity to whatever norm, or rule or obligation the statute prescribes. They have an obligation to make a genuine attempt to discharge the relevant functions, having regard to the circumstances in which they are exercised, such as having limited resources, and established procedures. The exercise of a power in good faith requires an honest and conscientious approach. [105] However, before the Tribunal could form the opinion that an officer of an agency has failed to exercise a function in good faith it would be necessary to form the view that the officer's conduct demonstrates something more than honest ineptitude.
5. The Applicant made allegations about defamation, false and misleading statements, misconduct, corruption, and malfeasance by Ms Bailey, Ms Southern, Mr Stathis, and Ms Pendergast. These allegations were wide ranging and not confined to their conduct or consideration of the access application subject to these proceedings.
6. I find no evidence in these proceedings that any or either of these individuals has failed to exercise a function conferred on them under the GIPA Act in good faith. I am not convinced by the Applicant's submissions regarding the evidence of Ms Southern or Ms Pendergast that either conducted themselves in any manner other than honestly or conscientiously.
7. I find that in dealing with this access application, and in making its decisions, the Respondent has engaged and complied with its obligations under the GIPA Act and has exercised its functions properly and appropriately. It made continuous attempts to understand and clarify the scope of the Applicant's access application. It answered those applications by conducting reasonable searches and providing the relevant material located to the Applicant. It minimized the material which was withheld from the Applicant on the basis of the public interest against disclosure. It acknowledged when an administrative error had been made restricting the decision terms agreed with the Applicant and took steps to rectify this by issuing the Fifth Decision.
8. Further, it was subjected to continuous allegations and accusations by the Applicant without sufficient evidence or basis, and yet continued to conduct its dealings with the Applicant appropriately and in accordance with the requirements of the Act.
9. In the circumstances of this matter I am not satisfied that an officer of the Respondent has failed to exercise in good faith a function conferred on the officer by or under the GIPA Act. I therefore decline to make the requested referral under section 112 of the GIPA Act.
10. In relation to the Applicant's complaints and allegations regarding the Respondent's breaches of sections 116, 117, 118, and 120 of the GIPA Act, section 128 of the GIPA Act states: 128 Nature of proceedings for offences (1) Proceedings for an offence under this Act or the regulations may be dealt with summarily before the Local Court. (2) Proceedings for an offence under this Act or the regulations may only be taken by or with the authority of the Director of Public Prosecutions or the Attorney General.
11. I agree with the Respondent's submissions. The Local Court is the appropriate forum for dealing with any charge that an offence against any of these sections has been committed. The Tribunal has no jurisdiction to deal with these provisions, despite the Applicant's submissions to the contrary.

Orders 1. The Tribunal affirms the Respondent's determinations of 24 June 2016, 27 July 2016, and 20 September 2016. 2. The application for a referral pursuant to section 112 of the Government Information (Public Access) Act 2009 is refused. 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: 31 March 2017