Zonnevylle v Department of Education and Communities

The Issues before the Tribunal

1. The Applicant contends that several issues are raised in the application and that these include: 1. the Respondent's refusal to consider a public interest factor; 2. the validity of the Respondent's processing charges; 3. the Respondent's decision to redact specific information; and 4. the Respondent's alleged lack of good faith (or bad faith) in dealing with the GIPA enquiries 5. Evidence to support statements made in the GIPA 13-252 Notice of Decision
2. In my view these issues require the Tribunal to determine whether the Respondent's decisions: 1. to impose a processing fee; and 2. to provide access to various documents in redacted form are the correct and preferable decisions.
3. As noted, the Applicant and Mr Zonnevylle have made allegations with respect to the Respondent's dealing with their GIPA enquiries. Section 112 of the GIPA Act is in the following terms: 112 Report on improper conduct 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.
4. The Applicant has not requested that the Tribunal take action under section 112 of the GIPA Act and accordingly I do not propose to address that issue.

Applicable legislation

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. "Personal information" is defined in clause 4 to Schedule 4 of the GIPA Act as follows: "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. …
4. Section 12 of the GIPA Act provides that there is a general public interest in favour of the disclosure of government information. Section 12 allows for the consideration of any public interest in favour of disclosure. Nothing in the GIPA Act limits any other public interest consideration in favour of the disclosure that may be taken into account when making a decision in respect of an access application.
5. Section 13 of the GIPA Act provides that there is an overriding public interest against disclosure of government information 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.
6. Subsection 14(1) of the GIPA Act provides it is to be conclusively presumed that there is an overriding public interest against disclosure of any government information described in Schedule 1 of the GIPA Act. Clause 5 of Schedule 1 provides: (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege. (2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause. (3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5.
7. The Table to section 14 of the GIPA Act provides a list of possible public interest considerations against disclosure. Clause 3 of the section 14 table relevantly 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: … (f) expose a person to a risk of harm or of serious harassment or serious intimidation, ...
8. Clause 1 to Schedule 4 of the GIPA Act provides that to 'reveal' information: means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).
9. Section 55 of the GIPA Act 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.
10. Section 64 of the GIPA Act provides for the imposition of a processing charge for dealing with access application. That section provides: 64 Processing charge for dealing with access application (1) An agency may impose a charge (a "processing charge") for dealing with an access application at a rate of $30 per hour for each hour of processing time for the application. Note: The decision to impose a processing charge is reviewable under Part 5. (2) The "processing time" for an application is the total amount of time that is necessary to be spent by any officer of the agency in: (a) dealing efficiently with the application (including consideration of the application, searching for records, consultation, decision-making and any other function exercised in connection with deciding the application), or (b) providing access in response to the application (based on the lowest reasonable estimate of the time that will need to be spent in providing that access). (3) The application fee of $30 paid by an applicant counts as a payment towards any processing charge payable by the applicant. (4) Access to government information granted in response to an access application may be made conditional on payment of any processing charge imposed for dealing with the application.
11. Decisions in respect of processing charges are reviewable decisions: subsections 80(j) and (k) of the GIPA Act.
12. Pursuant to section 97(1) of the GIPA Act generally the onus is on the agency to justify its decision. Section 97(1) provides: 97 Onus on agency to justify decisions (1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section. ...
13. However, in relation to a decision to refuse a reduction in a processing charge section 97(3) provides: (3) If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review.
14. There are two aspects to the decision to impose a processing fee which require consideration by the Tribunal: 1. the decision to impose the fee; and 2. the decision to refuse the request for a reduction in the fee.

The processing fee issue

1. The Respondent relies on two statements of evidence: 1. a statement of Ms Pendergast; and 2. a statement of Ms Joanne Bailey, the Respondent's Chief Procurement Officer.

The estimate

1. The Respondent initially notified the Applicant of its decision to impose a processing fee, including an advance deposit and provided her with an estimate of the total fee payable. The Respondent subsequently determined the final amount that was payable, and that amount exceeded the estimate that had been given.
2. The initial estimate was that it would take at least 20 hours to process the application. This was subsequently said to have been an underestimate and that the actual time taken was 46 hours and 30 minutes. The additional time was said to be because of the large volume of information that Mr Peter Zonnevylle had sent to the Respondent.

Ms Pendergast's evidence

1. Ms Pendergast gave evidence of her involvement in processing another access application which she referred to as GIPA Application 13-205. It is not clear to me how that evidence is relevant to this matter. The Respondent identified the present access application as GIPA Application 13-252.
2. Ms Pendergast provided a schedule of all the time spent processing GIPA Application 13-252 and provided an outline of the steps that were taken in processing it.
3. She said that an employee of the Procurement Solutions Directorate advised her that searches and retrieval of documents had been completed and that it had taken a total of 17 hours. The timesheet recorded this information. However, the evidence of Ms Bailey is that the searches performed by the Procurement Solutions Directorate actually took 17 hours and 45 minutes. Ms Bailey said that her Directorate was required to:

• ensure all documents were in the relevant folders;
• open and peruse 1787 documents in the relevant folders; and
• review and remove duplications - a task made difficult by the fact that many of the documents were in the form of email chains, which caused a high degree of duplication.

1. Ms Pendergast also provided an outline of the other steps that needed to be taken in processing the application, that initially had not been considered. A significant amount of time was spent reviewing and redacting information contained in the documentation that was not to be released. For example, Ms Pendergast spent 8.5 hours redacting material to which legal professional privilege was said to apply and the names of the officers who were not involved in the decision to block or filter emails related to Mr Zonnevylle. She said that there were over 1300 officers' names within the records, that names appeared multiple times on a single page, and that these names needed to be redacted separately. She and another officer then spent numerous hours reviewing and rechecking the redactions.
2. Ms Pendergast stated that the total amount of time it took to process the application was 46 hours and 30minutes. She provided the following breakdown of the time taken:

• the 3 hours and 15 minutes of initial correspondence, plus;
• the 4 hours it took the IT Directorate to perform the searches, plus;
• the 3 hours it took the Legal Services Directorate to perform the searches, plus;
• the 17 hours it took the Procurement Solutions Directorate to perform the searches, plus;
• the 1 hour it took to collate all the records; plus
• the 30 mins of consultation with the Legal Services Directorate about the searches they performed; plus
• the 9 hours and 30 minutes it took to review the documentation and make the necessary redactions; plus
• the 8 hours and 15 minutes it took to review the documentation and finalise the decision).

1. Ms Pendergast explained that the decision to redact certain names was in response to concern that the names might be published on Mr Zonnevylle's website. Some of the Respondent's staff members had specifically requested that their names be redacted from the information before it was released.
2. In light of the evidence from Ms Pendergast and Ms Bailey, the Respondent conceded that the amount payable should be reduced by $7.50 and the amount of payment requested should have been $1,087.50. The Respondent's determination is amended accordingly.
3. The Respondent submits that Ms Pendergast's evidence should be accepted and that there is no evidence to indicate that any unnecessary tasks were performed. The application was complex and involved a large number of documents. For these reasons, the Respondent submits, it cannot be suggested that the application was not "dealt with efficiently" for the purposes of section 64(2)(a).
4. The Respondent submits that the decision to impose a processing charge of $1087.50 is the correct and preferable decision.
5. Mr Zonnevylle provided written submissions in response to the Respondent's evidence. He contends that the Respondent breaching the GIPA Act and/or the spirit of the GIPA Act and that blocking the release of information prevents it from being open and accountable. He says that the Respondent's actions in regard to various GIPA Act applications show that the Respondent acted with:

• a lack of good faith (or possibly acting in bad faith);
• a lack honesty (or possibly acting dishonestly);
• a lack of public interest; and
• a lack of integrity

1. He further alleged that the Respondent is acting unfairly (perhaps abusing its power) and is not providing the information sought at the lowest reasonable cost.
2. Mr Zonnevylle questions the validity of the Respondent's acting to prevent the Applicant from accessing information. He says that release of the information is in the public interest to make the Respondent open, transparent and accountable for its actions. He further alleges that it is in the Respondent's interests to keep the requested information from the public and that the information shows, at best, lack of good faith, and at worst, serious misconduct, abuse of power, breach of duty, maladministration and possibly corruption.
3. Mr Zonnevylle noted that the Respondent has admitted making an error in the processing charges. He submitted that the Respondent showed lack of good faith (or showed bad faith) in not re-checking the processing charges or replying to questions raised by the Applicant.
4. He questions the validity of the Respondent's processing charges on the basis that section 3 of the GIPA Act implies that the Respondent is supposed to be open, accountable, fair and effective, and is obliged to provide access to government information at the lowest reasonable cost. Further, he submits that section 64 provides that the processing charge is for "the total amount of time that is necessary" to process an application. The Applicant questions whether the time taken was necessary and seeks a review of the integrity and fairness of the imposed processing charges.
5. Mr Zonnevylle disputes the necessity for and the motive behind the Respondent's redactions and subsequent processing charges. He alleges that the Respondent was acting with lack of good faith (or acting in bad faith).
6. He submitted that the statement that the statement: "redacting the names of the officers who were not involved in the decision to block or filter emails related to Peter Zonnevylle" is so misleading and broad that it can apply to any employee within the Respondent, whether they are involved with the Applicant's GIPA enquiry or not.
7. He contends that the Respondent blocked unsolicited emails from NSW state schools who have been enquiring after products from the Applicant's company; orders placed by NSW state schools; product support enquiries from NSW state schools and other enquiries. He submitted that there is no reasonable basis for the Respondent to redact any names from such unsolicited emails to the Applicant.
8. The Applicant alleges that the Respondent's actions to block unsolicited emails from NSW state schools to the Applicant is likely to be an abuse of power which is intended to cause an economical detriment to the Applicant. The Respondent is alleged to have acted with full understanding of these implications.
9. The Applicant alleges that most of the redacted names of officers that Ms Pendergast referred to are likely to be details already compiled and used by the Applicant. Hence the Applicant questions the integrity of the Respondent to charge for redacting of information which originally came from Mr Zonnevylle.

Discussion

1. As noted above, the Respondent relies on evidence in regard to the work undertaken in processing the Applicant's access application. The Applicant has not disputed the accuracy of the Respondent's timesheet or Ms Pendergast's breakdown of the time taken. Rather, the Applicant's case is based on the necessity of the work that was undertaken. It is not clear which of the searches that were undertaken she contends were unnecessary.
2. The GIPA Act entitles an Agency to charge up to 50% advance deposit of the amount that the agency estimates to be the total processing charge for dealing with the application. On the evidence before me I am satisfied that the Respondent's initial estimate that the time to complete the access application would be at least 20 hours was justified. In my view the advance deposit request was reasonable.
3. It is clear from Ms Pendergast's evidence that much of the work that was undertaken after the searches and retrieval of documents had been completed related to the redaction of information from the located documents that were found to fall within the scope of the access application.
4. In determining whether or not the final charges that have been determined are excessive it is therefore necessary to determine whether or not the redactions were necessary. As will be apparent from the following discussion in relation to the redactions, I am satisfied that the redactions were necessary.
5. It also follows that it is my view that the final charges that have been determined are reasonable.

The decision to refuse the request for a reduction in the fee

1. Section 66(1) of the GIPA Act provides: "(1) An applicant is entitled to a 50% reduction in a processing charge imposed by an agency if the agency is satisfied that the information applied for is of special benefit to the public generally."
2. The Applicant requested a discount in processing charges on the ground of "special public benefit", alleging that the information sought was of special public benefit as it related to alleged misconduct on the part of employees of the Respondent.
3. The Applicant has alleged that the disclosure of information would reveal misconduct and corruption associated with senior staff of the Respondent, and that a special public benefit would flow from the disclosure of this information. Section 97(3) places the burden of proof on the Applicant in this regard.
4. The Respondent decided that the Applicant had not provided satisfactory evidence to sustain a claim for a 50% reduction of the processing charges on the basis of special public benefit.
5. The Respondent also noted that Mr Zonnevylle had made a complaint to the independent Commission Against Corruption ("ICAC") and that ICAC decided not to pursue his complaint. In contrast, the Applicant contends that the complaints to ICAC are ongoing. Mr Zonnevylle referred to a letter from ICAC that stated: "If you believe you have more relevant information supporting your concerns, please provide this, preferably within 7 days. If that is not possible, contact me to advise of your intention to provide more information and when we would be likely to receive it"
6. I note that the ICAC letter to which Mr Zonnevylle referred was in acknowledgement of the online corruption complaint form that he had submitted. The ICAC letter states the approach that the ICAC would take in dealing with the complaint. It does not appear to have been written after any ICAC assessment of the complaint. The invitation to provide further relevant information does not appear to suggest that an ICAC investigation is ongoing.
7. The Respondent submitted that neither the Applicant nor Mr Zonnevylle provided any evidence to support the allegations of misconduct and corruption. The Respondent further submitted that given the seriousness of these allegations, the Tribunal cannot lightly conclude that corruption or other inappropriate conduct occurred.
8. Further, it is submitted that in order to satisfy the test in section 66(1) of the GIPA Act, something more than a "general" public interest is required; hence the use of the word "special public benefit" in section 66(1). The Respondent contends that the alleged corruption relates to the Applicant and Mr Zonnevylle personally and is best characterised as a private interest rather than as a "special public benefit". Therefore, it is submitted that even if there were some basis for the allegations (which the Respondent denied), the test in section 66(1) would not be satisfied.
9. For these reasons, the Respondent submitted that the Applicant falls well short of discharging the onus in section 97(3).
10. I agree with the Respondent in this regard. I note that the Mr Zonnevylle has provided a considerable amount of material that he contends is related to the allegations of misconduct and corruption. However, in my view this material amounts to no more than assertions. It does not show evidence of misconduct on the part of any of the Respondent's employees.
11. I note that the Respondent has provided me with the unredacted information which is the subject of the application. This material is provided to the Tribunal on a confidential basis and has not been made available to either the Applicant or Mr Zonnevylle. I do not agree with Mr Zonnevylle's contention that the documents show evidence of corrupt or inappropriate conduct on the part of the Respondent's staff.
12. I am satisfied that in accordance with section 97(3) of the GIPA Act, the Applicant has not provided reasonable evidence to support a claim for special public benefit. In my view, the correct and preferable decision is to refuse her request for special public benefit and discount on processing charges.

The decision to provide access to various documents in redacted form

1. The Respondent decided to provide access to the information sought in a redacted form on two grounds: a) that the redacted information is subject to legal professional privilege; and/or b) that the disclosure of the information could reasonably be expected to expose one or more persons to a risk of harm or serious harassment or serious intimidation.

(a) Legal professional privilege

1. Section 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."
2. Clause 5 of Schedule 1 to the GIPA Act states: 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. "
3. These provisions have been discussed in numerous decisions. I most recently considered that in Singh v Legal Aid Commission (No 2) [2015] NSWCATAD 5. In that matter I stated: 60 The law in relation to claims for client legal privilege is clear. For a summary of the principles see Priest v State of New South Wales [2006] NSWSC 1281 from paragraph [21]. See also the summary by Judicial Member Molony in Battin [v University of New England [2013] NSWADT 73]. I discussed this in my decision in Saggers v Environment Protection Authority [2014] NSWCATAD 37. I will not repeat that discussion here. 61 There has been some debate within the Tribunal as to whether the reference in clause 5 of Schedule 1 to the GIPA Act to "client legal privilege (legal professional privilege)" is intended as a reference to that concept as it appears in Part 3.10 of the Evidence Act 1995 or, alternatively, to legal professional privilege as recognised at common law. The Tribunal decisions support the application of the Evidence Act test in cases such as the present. 62 Nevertheless, it is my view that the application of the principles of common law advice privilege would be unlikely to lead to a different outcome in the present case. 63 The onus of establishing the claim for client legal privilege falls on the party asserting or claiming the privilege and is met by establishing the facts giving rise to the claim. 64 Where issues are raised in regard to the purpose behind the creation of the disputed documents and whether that purpose was improper, or where it is alleged that privilege has been waived, it is for the party raising the issue to present evidence to support the claim.
4. Section 118 of the Evidence Act provides: "Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication made between the client and a lawyer, or (b) a confidential communication made between 2 or more lawyers acting for the client, or (c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person, for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client."
5. The Respondent contends that the withheld documents are self-evidently communications between lawyers for the dominant purpose of providing legal advice. It relies on the evidence of Ms Pendergast that the officers named in those communications are employed in the Respondent's Legal Services Directorate. The Respondent considers that it is plain from the face of those documents that they comprise requests for, or the provision of, legal advice.
6. In relation to the requests Ms Bailey stated: 24. At various times, the Procurement Solutions Directorate has sought legal advice from the Legal Services Directorate of the Department. Advice has been provided by various officers whom I know to be solicitors in that directorate. It was my understanding that these requests and this advice would be kept confidential.
7. The Respondent submits that the circumstance in which the communications were made would permit the inference to be drawn that the communications were confidential. Ms Bailey's evidence confirms that the Procurement Solutions Directorate made the requests and treated the advice received confidentially.
8. In cases where privilege is claimed over documents created by a lawyer employed "in-house", the case law requires that the lawyer have a degree of independence in respect of the advice given: Seven Network Ltd v News Ltd [2005] FCA 142.
9. Ms Pendergast's evidence is that the Respondent's Information Access Unit forms part of the Respondent's Legal Services Directorate. The Legal Services Directorate is responsible for providing in house legal services to the Department. Ms Pendergast stated that in discharging these responsibilities, the Directorate ensures that it provides independent advice.
10. To demonstrate that the Legal Services Directorate possesses the necessary independence, the Respondent relies on a letter date 1 March 2012 from its Director General, Michele Bruniges, to Mr Riordan. That letter, which is an annexure to Ms Pendergast's statement, stated: I write in relation to the role and independence of legal officers employed by the Department of Education and Communities. I note that all of the Department's legal officers are required to hold current practicing certificates as a requirement of their employment. I confirm the expectation referred to in Michael Coutts-Trotter's letter to you dated 16 June 2008 and Andrew Cappie-Wood's letter dated 22 December 2004 that all legal officers will provide frank and fearless advice. I appreciate the importance of impartial, independent legal advice in ensuring the Department complies with its legal responsibilities in the course of decision making and in the course of litigation. This should occur irrespective of the subject matter of the advice and no less in relation to sensitive, controversial or politically charged issues.
11. Clause 5(2) of Schedule 1 requires that the Respondent consider whether to waive the asserted legal privilege before it refuses to provide access to the information. The Respondent has decided not to waive privilege in this case. That decision is not reviewable.
12. The Applicant disputes the Respondent's claim for legal professional privilege. Mr Zonnevylle referred to the matter of Telstra Corporation Limited v Minister for Communications, Information Technology and the Arts (No.2) [2007] FCA 1445 in which Justice Graham of the Federal Court refused Telstra's claim for legal professional privilege on the basis that its in-house lawyer lacked the requisite measure of independence by virtue of the nature of the lawyer's employment relationship with Telstra.
13. Telstra had led no evidence to establish the independence of the in-house lawyers in question and their ability to provide impartial legal advice, given the roles that they were to perform. Justice Graham found that this lack of evidence meant that no sufficient claim had been made out.
14. Mr Zonnevylle disputes that the Respondent's Legal Services Directorate could provide "independent" legal advice to the Respondent's Information Access Unit or the Respondent or that such advice can be considered as "independent".
15. Mr Zonnevylle also disputes that the letter from the Respondent's Director General stating that the Legal Services Directorate possesses the necessary independence can be credible.
16. Mr Zonnevylle asserted that the Applicant has complained to the Respondent's Director General many times alleging corruption, maladministration and misconduct in the Respondent's procurement corruption processes and that she had done nothing concerning those complaints. Mr Zonnevylle asserted that therefore Ms Bruniges cannot be regarded as impartial.

Discussion

1. The Respondent has provided a copy of the documents that have been withheld on the basis of clause 5 of Schedule 1 to the GIPA Act to the Tribunal on a confidential basis. These documents have not been made available to either the Applicant or Mr Zonnevylle.
2. I accept Ms Pendergast's evidence that the officers named in those documents are employed in the Respondent's Legal Services Directorate.
3. I also accept Ms Bailey's evidence that the Procurement Solutions Directorate made the requests and treated the advice received confidentially. I do not agree with Mr Zonnevylle's contention that the Respondent's Legal Services Directorate could not provide independent legal advice to the Respondent's Procurement Solutions Directorate.
4. It is apparent from the face of the documents that they are of the kind that would normally attract legal privilege. They are clearly communications to and from lawyers which contain requests for or the provision of legal advice. I am satisfied that the documents were created for the dominant purpose of providing legal advice.
5. There is no evidence to suggest that the documents were prepared for any improper purpose. An improper purpose is not to be inferred lightly. Mere allegation is not enough. If the purpose of a decision has to be ascertained by inference, a presumption of regularity operates: Industrial Equity Ltd v Deputy Commissioner of Taxation [1990] HCA 46; (1990) 170 CLR 649 per Gaudron J at 671-2. On their face, it is clear that the documents have not been created for an improper purpose. In my view, the withheld documents attract legal professional privilege.
6. There is no evidence to suggest that the privilege that attaches to the communications has been waived. In my view, It follows that the relevant documents are subject to legal professional privilege, within the meaning of clause 5 of Schedule 1 to the GIPA Act. There is therefore a conclusive presumption that there is an overriding public interest against disclosure of the information. Accordingly, the correct and preferable decision is that the Respondent's decision to not provide access to those documents ought to be upheld.

(b) Risk of serious harassment

1. Clause 3(f) of the table to section 14 of the GIPA Act provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to expose a person to a risk of harm or of serious harassment or serious intimidation.
2. Judicial Member Molony considered clause 3(f) in his decision in AEZ v Commissioner of Police [2013] NSWADT 90 at paragraphs [83] - [94]. He stated: 83 The GIPA Act does not contain a definition of harm, serious harassment or serious intimidation. It is to be noted that harm is not qualified by the adjective serious. The Macquarie Dictionary online defines harm thus - noun 1. injury; damage; hurt: to do someone bodily harm. 2. moral injury; evil; wrong. -verb (t) 3. to do harm to; injure; damage; hurt. -phrase 4. in harm's way, in danger. 5. out of harm's way, out of danger. [Middle English; Old English hearm] 84 Harm is a concept frequently used by the law. The criminal law prohibits assaults occasioning bodily harm. This has been interpreted in its ordinary meaning to "include any hurt or injury calculated to interfere with the health or comfort of [the injured person]": see R v Donovan [1934] 2KB 498. "Serious harm" is a concept used in criminal defamation, which requires proof of an intent to cause serious harms. Section 40 of the Civil Law (Wrongs) Act 2002 (ACT) on the other hand defines "harm" to be harm of any kind, including personal injury, damage to property and economic loss. Harm is also a concept in child protection: in section 9 of the Child Protection Act 1999 (Qld) it is defined as "as any detrimental effect of a significant nature on the child's physical, psychological or emotional wellbeing." 85 In the context of s 14 of the GIPA Act I am inclined to the view the meaning of harm should be confined to a real and substantial detrimental effect on a person, rather than on their business interests. This is so given the juxtaposition of the word "harm" with the concepts of serious harm and intimidation, and the fact that economic and business interests are the subject of public interest consideration against disclosure in part 4 of the section 14 Table. A detrimental effect may be to a person's physical, psychological or emotional wellbeing. 86 Serious harassment is a separate and distinct concept. The Macquarie Dictionary online defines harass - verb (t) 1. to trouble by repeated attacks, incursions, etc., as in war or hostilities; harry; raid. 2. to disturb persistently; torment. [French harasser, from Old French harer set a dog on] 87 The concept of harassment is one familiar to anti-discrimination law, with sexual harassment being prohibited and subject to remedies. A consideration of those laws reveals that a common element in most jurisdictions is that the person harassed would be offended, humiliated or intimidated by the conduct in the circumstances: see Sex Discrimination Act 1984 (Cth), s 28A(1); Anti-Discrimination Act 1977 (NSW), s 22A; and Equal Opportunity Act 1984 (SA), s 87(9). 88 In Henderson v McKenzie [2009] ACTSC 39 Higgins CJ was considering a charge of stalking with intent to harass contrary to s 35(1)(c) of the Crimes Act 1900 (ACT). His Honour said, at [6-8] - 6. Harassment is not defined in the Crimes Act, nor, indeed, in the Criminal Code 2002 (ACT) (Criminal Code). However, it does seem in context to bear its usual meaning, ie "to trouble by repeated attacks; harry; (1) to worry or unnerve (an enemy) by continuous small attacks; (2) to disturb, worry, torment, distress with annoying labour, care or misfortune" (World Book Dictionary); "Vex by repeated attacks; trouble, worry" (Concise Oxford Dictionary). 89 All of the definitions of harassment require a consideration of how the conduct complained of is experienced by the person alleged to be harassed, and are concerned with whether that person was offended, worried, tormented, distressed or harassed by the conduct. In the context of the GIPA Act where the decision maker has to be satisfied that, if the information is disclosed, it could reasonably be expected that the disclosure would expose a person to serious harassment, the assessment of the impact of the conduct on the individual concerned is an objective one, although particular circumstances and vulnerabilities relating to that individual may be taken into account when making that assessment. 90 The GIPA Act makes specific mention of serious intimidation as another element of the public interest consideration against disclosure in point 3(f) of the Table to s 14, despite the fact that the two concepts of intimidation and harassment are clearly related. 91 Intimidation is defined by The Macquarie Dictionary online as - verb (t) (intimidated, intimidating) 1. to make timid, or inspire with fear; overawe; cow. 2. to force into or deter from some action by inducing fear: to intimidate a voter. [Medieval Latin intimidātus, past participle, made afraid. See TIMID] 92 Intimidation is defined in s 7 of the Crimes, Domestic and Personal Violence Act 2007 (NSW) thus - (1) For the purposes of this Act, intimidation of a person means: (a) conduct amounting to harassment or molestation of the person, or (b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or (c) any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property. 93 In PE V MU [2010] NSWDC 2 William DCJ referred to that definition and said - 15. Intimidatory conduct … is conduct amounting to harassment or molestation or contact by one person with another such as would cause the other person to fear for their safety. 16 Harassment is not defined in the Act but in its legal sense refers to ongoing behaviours that are found to be threatening or disturbing. …
3. At paragraph [94] of AEZ v Commissioner of Police, the Judicial Member noted that the exemption requires that the intimidation or harassment is to be serious intimidation or serious harassment. He stated that the decision maker must be satisfied that release of the information could reasonably expose a person to intimidation or harassment that is heavy, weighty or grave, and not trifling or transient.
4. I agree with this view.
5. As noted above, section 55 of the GIPA Act provides that 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 personal factors of the application into account. These factors include the Applicant's identity and relationship with any other person, the Applicant's motives for making the access application, and any other factors particular to the Applicant.
6. The relevant personal information in this matter is that there is a clear business and personal relationship between the Applicant and Mr Zonnevylle. Another relevant factor is the prior dealings between the Applicant and Mr Zonnevylle and the Respondent.
7. The Respondent relies on 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. Ms Bailey's evidence referred to over 2,700 emails between October 2010 and 27 May 2011 and nearly 11,000 emails in a 3 week period in April and May 2013. Ms Bailey's also gave evidence of over 82,000 emails sent from accounts associated with Mr Zonnevylle that have been blocked since August 2013.
8. Neither the Applicant nor Mr Zonnevylle has provided any evidence to dispute Ms Bailey's evidence on this issue.
9. Ms Bailey also expressed her concern for the welfare of her staff and stated that she ultimately raised the matter with Police.
10. The Respondent referred to a number of allegations that Mr Zonnevylle made against members of the Respondent's staff. These included allegations of corruption, maladministration and misconduct. On some occasion these allegations have been in personally abusive and derogatory terms.
11. The Respondent contends that this conduct self-evidently falls within the definition of "harassment". The Respondent further contends that, given the very high number of emails and their contents, this harassment should be characterised as "serious" (or "heavy, weighty or grave").
12. Ms Bailey's evidence also demonstrates that the Applicant and Mr Zonnevylle have been able to circumvent the measures taken by the Respondent to prevent them from continuing to send emails to its staff.
13. The Respondent's determination was to redact the names of a number of less senior members its staff. It contends that if the names of the officers are made known to the Applicant and Mr Zonnevylle, it is reasonable to expect that the officers named would be subjected to a large number of emails or faxes in the same tenor as those identified. It would not be a difficult matter to work out their email addresses.
14. The Respondent further contends that the redacted names of the officials have no bearing on the information that the Applicant has sought. The Respondent submits that it may be inferred that the motivation of the Applicant and Mr Zonnevylle in seeking access to these names is to identify other persons to whom correspondence may be sent.
15. The Respondent submits that there is, therefore, a strong public interest consideration against release of these names.
16. The Respondent concedes that there are public interest considerations in favour of disclosure. It accepts that there is a presumed public interest consideration in favour of release of government information. It also accepts that there may be specific public interest considerations in "clearing the air" given the numerous allegations of corruption and other impropriety and/or ensuring transparency.
17. However, given that the only information that has been withheld is the names of certain, relatively junior staff members, the Respondent submits that the force of these considerations in favour of release is greatly diminished. It says that all information which would serve to ensure greater transparency and accountability (including the names of senior officers involved in the decision making process) is either already known to the Applicant or Mr Zonnevylle or is contained in the documentation which it is proposed will be released.
18. For these reasons, the Respondent submits that the public interest considerations against release outweigh those in favour of release.
19. Much of the Applicant's submissions relate to the allegations of corruption or maladministration. Much of the material is difficult to understand but it does not appear to be relevant to the issues that need to be determined. the Applicant's position appears to be as Mr Zonnevylle stated in his submissions: [T]he Applicant is principally after: - The names of the Senior DEC staff who specifically authorized the blocking of the Applicant's emails - Copies of all the UNSOLICITED emails sent from NSW state schools to the Applicant which cannot possibly be subject to privacy or redaction by the Respondent. By virtue of being UNSOLICITED, the email senders have tacitly agreed to provide their details The Respondent is alleged to have been less than honest by being very evasive about the source and/or nature of the emails / contact details.
20. It appears that the Applicant's concern in regard to the redaction of the names of some of the Respondent's staff members arises from the blocking of email correspondence to and from her and Mr Zonnevylle and their business. They apparently seek to be able to make officers accountable and wish to be able to identify staff members who have played some role in the decision to block the email correspondence.
21. This much is suggested by comments that Mr Zonnevylle made in a letter dated 5 February 2014 faxed to Mr Riordan. Mr Zonnevylle stated: Should the names of staff members involved in any aspect of the process of decision to block our email communications with NSW schools be refused we request their ID Nos and their role in the decision making be advised. This should not breach privacy concerns and prevent us from identifying the respective parties (the ID Nos are required for reference concerning our complaints)
22. The Applicant disputes the necessity to redact the names of the Respondent's staff members. She contends that there is no basis on which names of staff members who have contacted the Applicant should be redacted where that officer has sent unsolicited correspondence to the Applicant.
23. In my view this submission would be correct because communications received by the Applicant from those individuals would have already disclosed their names. However, it is readily apparent from the unredacted copies of the documents that have been lodged with the Tribunal that this argument is not applicable in this matter. The correspondences from which the names have been redacted are not unsolicited emails to the Applicant.
24. The Applicant does not directly dispute the Respondent's evidence regarding the number of emails that she and Mr Zonnevylle had sent. However, Mr Zonnevylle submitted: The Applicant alleges that many of these emails are unlikely to have existed and Bailey is alleged to be less than honest by attempting to bulk up the number of emails "received" by DEC
25. The Applicant also questions the Respondent's reaction to the emails. Mr Zonnevylle submitted: The Applicant suggested a very reasonable option if the Respondent was serious about harassment concerns. The Applicant alleges that Riordan's refusal to respond to the February 5, 2014 fax is a clear example of lack of good faith on the Respondent's part. The Applicant alleges that Riordan's refusal to respond to the February 5, 2014 fax is a clear example of DEC's refusal to be open, transparent, accountable and fair. Furthermore the Applicant questions how serious DEC considered the complaints. - It is reasonable to assume that DEC would have sent numerous demands for the Applicant to cease the complaints and allegations. - It is reasonable to assume that the Respondent sought legal advice concerning the alleged harassment. - It is reasonable to assume that DEC has written records of all the complaints of harassment by all those staff sufficiently worried about the allegations. The Applicant invites the Respondent to show the Tribunal all the demands, legal advice and complaints to show that DEC had sufficient and serious concerns about the alleged harassment. DEC is invited to show how "serious", how "heavy, weighty or grave, and not trifling or transient" DEC considered the alleged harassment. Also DEC is invited to advise the total number of staff specifically harassed.
26. Mr Zonnevylle further submitted: The Applicant has an enforceable right to access Government information The Applicant seeks to ensure that DEC (as a part of the Government) is open, accountable, fair and effective.

Consideration

1. I have been provided with an unredacted copy of each of the documents from which names have been redacted and I have considered those documents along with the evidence and arguments presents by the parties.
2. 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.
3. 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.
4. 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.
5. 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.
6. In any event, as Mr Zonnevylle has indicated that the Applicant is seeking the names of senior officers who made various decisions about blocking or filtering email addresses, and those names have been released, the redacted names of relatively junior staff members who were not involved in the decisions concerning the blocking or filtering of the email addresses would not be within the scope of the request. Those officers would not be persons in authority who "were either consulted with the blocking / filtering" of the correspondence or who "authorized the blocking /filtering" of the correspondence.
7. It follows in my view that the correct and preferable decision is to provide access to the documents in redacted form.
8. It also follows that if the redactions are warranted, then the time taken to carry out that redaction was reasonable and therefore the final charges that the Respondent has determined were also reasonable.
9. I am aware that this decision has implications for the progress of the applications in Matter No. 1410329 and Matter No. 1410330. The matters should be listed for a further planning meeting to address the way in which those matters are to proceed.

Order 1. The Respondents determination in matter No. 1410331is affirmed. 2. Matter No. 1410329 and matter No. 1410330 are listed for a further planning meeting on Thursday 5 March 2015 at 9.30am I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 22 January 2015