Amos v Central Coast Council

[2019] NSWCATAD 226

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Amos v Central Coast Council [2019] NSWCATAD 226
Hearing dates:	3 December 2018
Date of orders:	31 October 2019
Decision date:	31 October 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	D Dinnen, Senior Member
Decision:	(1) The Respondent’s decision of 10 September 2018 is varied in accordance with paragraphs [38] to [57] of this decision, to provide access to the redacted information identified at paragraph 38 of this decision within 28 days;  (2) The decision under review is otherwise affirmed.
Catchwords:	ADMINISTRATIVE LAW – Freedom of information — Access to information – GIPA – confidential information – third party objections - personal information – reasonableness of searches – scope of access application
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009 Health Records and Information Privacy Act 2002 Privacy and Personal Information Protection Act 1998
Cases Cited:	Attorney General’s Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180 Battin v University of New England [2013] NSWADT 73 Camilleri v Commissioner of Police [2012] NSWADT 5 Camilleri v Commissioner of Police (NSW) [2013] NSWADT 80 Camilleri v Penrith City Council [2012] NSWADT 196 Cianfrano v Department of Commerce (No 2) [2006] NSWADT 195 Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 Department of Community Services v Latham [2000] NSWADTAP 21 Director General, Department of Education and Training v Mullett [2002] NSWADTAP 13 Flack v Commissioner of Police, NSW Police Force [2011] NSWADT 286 Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 Hall v Roads and Maritime Services [2012] NSWADT 239 Hula v Commissioner of Police (NSW) [2013] NSWADT 153 Leech v Sydney Water Corporation [2010] NSWADT 198 Luxford v Department of Education and Communities [2016] NSWCATAD 118 Manning v Bathurst Regional Council [2018] NSWCATAD 18 Mansfield v Department of Family and Community Services (NSW) [2014] NSWCATAD 43 Miriani v Commissioner of New South Wales Police [2005] NSWADT 187 Neary v State Rail Authority [1999] NSWADT 107 NSW Office of Liquor, Gaming and Racing v Fahey [2012] NSWADTAP 55 Raven v The University of Sydney [2015] NSWCATAD 104 Roy v Commissioner of Police, NSW Police Force [2012] NSWADT 120 Selby v Commissioner of Police (NSW) [2013] NSWADT 61 Stanley v Roads and Maritime Services (NSW) [2014] NSWCATAD 123
Category:	Principal judgment
Parties:	Jessica Scarlett Amos (Applicant) Central Coast Council (Respondent)
Representation:	Applicant (Self-represented) Central Coast Council (Respondent)
File Number(s):	2018/00207242
Publication restriction:	Pursuant to s 64 (1) of the Civil and Administrative Tribunal Act 2013, the information marked [confidential] in this decision, and that evidence received during the confidential session of the Hearing, is not to be published or broadcast without the leave of the Tribunal.

reasons for decision

Background

1. Jessica Scarlett Amos (‘the Applicant’) is the daughter of Kevin Amos, the owner of a property in Kincumber, which was the Applicant’s family home (‘Amos property’). In 2014 the former Gosford City Council granted consent to a development application (‘DA’) for the property next door to the Amos property (‘adjacent property’).

2. Since then, the Applicant has raised a number of concerns with the former Gosford City Council, and subsequently the Central Coast Council (‘Respondent)’, relating to the DA as a result of building works undertaken on the adjacent property which she alleges were in breach of development consent conditions and caused significant and irreparable damage to the foundations of the Amos property, requiring demolition.

3. The Applicant has made previous access applications under the Government Information (Public Access) Act 2009 (‘GIPA Act’) in connection with the DA, as a result of which she became aware of third-party objections to those access applications from various persons associated with the DA, including the owners of the land subject of the DA at the time, the certifier, and the builder.

4. On 17 April 2018, the Applicant made an access application under Part 4 of the GIPA Act to the Respondent, seeking:

All records held by the Agency that are in any way relevant to or connected with the third-party objections, raised in the course of all access applications made pursuant to the provisions of the GIPA Act by Jessica Amos and or Kevin Amos, that refer or relate to any allegations, either expressly or impliedly, of harassment, intimidation, verbal abuse, threats, physical altercations or harm of any kind.

For the avoidance of doubt, this includes but is not limited to, all internal and external emails and other correspondence between Central Coast Council (and the former Gosford City Council) (Council) staff and third parties, reports or allegations made to Council by third parties, correspondence between Council and third parties relevant to the maintaining of objections made in connection with cl 3(f) of the Table to s 14 of the GIPA Act in the course of NCAT proceedings No.2017/00087703 that were withdrawn by those third parties, records of telephone conversations, internal notes and memos.

5. The Respondent issued a determination on 1 June 2018 (‘First Decision’), identifying 35 records and deciding:

1. To refuse to provide access to one record because it is subject to client legal privilege;

2. To provide access in full to three records pursuant to s.58(1)(a) of the GIPA Act; and

3. To provide partial access to the remaining 31 records pursuant to s.58(1)(a)(d) of the GIPA Act.

6. By application filed 5 July 2018, the Applicant sought a review in this Tribunal of the First Decision pursuant to s58 of the GIPA Act on the basis that:

The respondent failed to apply the public interest test in accordance with the provisions of the Government Information (Public Access) Act 2009.

7. At a case conference on 14 August 2018 the Applicant raised additional issues including sufficiency of searches and the exclusion by the Respondent of certain information comprised in the various documents, considered by the Respondent to be out of scope pursuant to s74 of the GIPA Act. The Tribunal remitted the First Decision to the Respondent for reconsideration.

8. On 10 September 2018, the Respondent made a new decision (‘Second Decision’). On 11 September 2018, at a further case conference before the Tribunal, the Applicant confirmed that she wished to proceed with a review of the Second Decision. On 13 September 2018 the Applicant filed her Final Points of Claim identifying the 30 documents remaining in dispute and the issues for the Tribunal’s determination involving the redactions made pursuant to s80(d) of the GIPA Act, and the sufficiency of searches pursuant to s80(e) of the GIPA Act. For convenience, these are annexed to this decision as Annexure A. During the hearing, the Applicant further narrowed the scope of items remaining in dispute and the basis for any dispute, which is addressed in my consideration below.

Legal Principles

Jurisdiction

The Tribunal’s jurisdiction to conduct this review derives from s100 of the GIPA Act read with s28 of the Civil and Administrative Tribunal Act 2013 and s9 of the Administrative Decisions Review Act 1997 (‘ADR Act’).

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, s63(1). The Respondent bears the onus of satisfying the Tribunal that the decision it has made is the correct and preferable decision: GIPA Act, s105(1).

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, s63(3).

The GIPA Act

9. 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.

10. Section 3(2)(a) of the GIPA Act requires that the Act be interpreted and applied so as to further that object.

Reasonableness of searches

11. 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.

12. 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 (Camilleri) 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.

13. 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] (Stanley). 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].

14. The Respondent then bears the onus of satisfying the Tribunal that the searches conducted by the Respondent were reasonable in the circumstances. 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].

Third party consultations

15. Subject to certain conditions, an agency must consult with a third party before providing access to information: GIPA Act, s 54. The purpose of consultation is to see whether the third party objects to the disclosure of the information and, if so, the reasons for any objection: GIPA Act, s 54(4). Section 54(5) of the GIPA Act provides that the agency is required to take any objection from a third party into account in “determining whether there is an overriding public interest against disclosure of government information”. This implies that consultation for the purpose of identifying objections from third parties has to take place before the agency does the balancing exercise required by s 13 of the GIPA Act. If the agency’s decision involving third party information becomes reviewable by the Tribunal, s 104(3) of the GIPA Act provides the third party with a right to appear and be heard in any proceedings before Tribunal in relation to the review.

Public interest considerations for and against disclosure

16. 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.

17. 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. 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.

18. 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.

19. 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.

20. Section 13 of the GIPA Act 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.

21. 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 [74].

22. Under section 55 of the GIPA Act, the Tribunal is entitled to consider the Applicant's motives for making the application to the extent that it is relevant to whether disclosure could reasonably be expected to have any of the effects referred to in clauses 2 - 5 of the Table to section 14. 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.

23. Relevant to these proceedings, the public interest considerations against disclosure in the Table to section 14 are that disclosure of information could reasonably be expected to:

1. 1(d) – prejudice the supply of confidential information that facilitates the effective exercise of agency functions;

2. 1(f) - prejudice the effective exercise by an agency of an agency’s functions;

3. 1(g) - result in an action against an Agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence;

4. 3(a) - reveal an individual’s personal information; and

5. 3(b) – give rise to a contravention of an information protection principle under the Privacy and Personal Information Protection Act 1998 (‘PPIP Act’) or a Health Privacy Principle under the Health Records and Information Privacy Act 2002.

24. 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].

25. 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...

26. 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].

Supply of confidential information

27. In Director General, Department of Education and Training v Mullett [2002] NSWADTAP 13, it was held that it is whether the agency’s ability to obtain such evidence will be impaired in future is in issue, it is necessary to determine whether the information is confidential, and whether it facilitates the effective exercise of the agency’s functions. The application of this approach to s 14(1)d was endorsed in Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [27]-[30].

27. In Raven v The University of Sydney [2015] NSWCATAD 104 Senior Member Lucy stated:

“There must be some evidentiary basis from which the Tribunal may infer that disclosure of the information sought could reasonably be expected to prejudice the supply to an agency of confidential information. It is not sufficient for the respondent to make an assertion that this is the case: cf Hynes v General Manager, Hawkesbury City Council [2004] NSWADT 135, at [123].

29. The Appeal Panel in Camilleri observed, at [33], that:

“the question of whether the information supplied is 'confidential information' must be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received”. [52]-[55]

Consideration

30. The documents remaining in dispute were categorised by the Applicant into the following issues for determination:

1. Items 1, 3, 4, 5, 7, 8, 10, 14, 17, 18, 19, 20, 21, 22, 24, 25, 29, 30, 31, 32, 33, 36, 37, 38, and 39 contained redactions which the Applicant sought to have lifted;

2. Items 2, 9, 14, 20, 28 and the objection by Brett Vergou to the access application of 2 January 2018 referred to items which the Applicant claims should have been included in the documents provided by the Respondent pursuant to the access application, but which the Respondent had failed to locate. The Applicant accepted that the Respondent indicated it undertook further searches in relation to these items but sought the Tribunal’s determination as to whether those searches were sufficient;

3. Item 34, which the Respondent claimed fell outside the scope of the access application.

31. The Respondent submitted the following in relation to the specific documents sought by the Applicant:

1. The redactions in Items 1, 3, 4, 5, 7, 8, 10, 14, 17, 18, 19, 20, 21, 22, 24, 25, 29, 30, 31, 32, 33, 36, 37, 38, and 39:

1. contained ‘confidential information’ which was clearly the personal information of the various third parties concerned; and

2. the third parties do not consent to the release of their personal information; and

3. Releasing the redacted information would be a breach of the Council’s obligations under the Privacy and Personal Information Protection Act 1998; and

4. The Council’s ability to effectively comply with the GIPA Act is impeded by the release of confidential information, as “there is a real risk that members of the public will be unlikely to respond, and give full and proper reasons as to why they do not wish for their information to be released. This in turn will lead to decision that are not fully informed, and do not achieve a balanced and reasonable outcome…”.

2. Items 2, 9, 14, 20, 28, and the decision dated 2 January 2018: reasonable searches were conducted, supported by the following:

1. “Consultation with relevant Council officers from the relevant business section (namely Legal) with requests to provide all relevant information within the scope of the application to the Legal and Research Officer. Searches on Council’s Electronic Computer Management (ECM) for each access applications (as per individual subject number) lodged by the Amos. Individual customer searches on each individual/businesses that had lodged responses to access applications”, being a statement made in the First Decision.

2. Emails from council officers annexed to the Respondent’s submissions, detailing searches conducted and their results, including:

1. From Justine Gurr to Melanie Domingo dated 6 September 2018 attaching 8 PDF files;

2. From Michel Duval to Melanie Domingo dated 7 September 2018, attaching 2 files;

3. From Mayor Jane Smith’s office to Melanie Domingo and Nicki Redman dated 10 September 2018 attaching one email from Matt Thitchener dated 6 February 2018.

3. Item 34: a request for an investigation is not an objection or a record related to an objection to the release of information pursuant to the GIPA Act, therefore the email comprising Item 34 did not fall within the scope of the Application.

Redacted information

32. In relation to the redacted information in Items 1, 3, 4, 5, 7, 8, 10, 14, 17, 18, 19, 20, 21, 22, 24, 25, 29, 30, 31, 32, 33, 36, 37, 38, and 39, the Applicant submitted that the records sought “contained her own personal information”, which should be afforded significant weight; and that “it is clear from the decisions made by the Respondent… that the third parties have made a number of disparaging, defamatory statements and false allegations about the applicant”. The Applicant submitted that the information should therefore be released to allow the Applicant to “check the accuracy” of the statements. The Applicant clarified in her Points of Claim that she did not seek access to redacted email address or telephone numbers. She also clarified in her submissions that she “does not seek access to the entirety of the third party objections which the applicant agrees should remain confidential, and only seeks access to those that relate to false allegations made about her”. This was submitted to be “especially relevant” because the Applicant is applying for admission as a solicitor in NSW and “considers she is required to disclose the allegations made by the third parties to the LPAB”; and that there was a public interest in disclosing the identity of a complainant who has made a false complaint, including for the purpose of seeking legal remedies for “disparaging comments and defamatory allegations made by Mr Dagger”.

33. The significance of these clarifications by the Applicant is that on the Tribunal’s review of the redactions made by the Respondent, very little of the redacted information related to allegations made against the Applicant and thereby remained in dispute for the Tribunal’s determination. The redacted information in Items 1, 3, 4, 5, 7, 8, 10, 14, 17, 18, 20, 21, 22, 24, 25, 32, 33, 34, 36, 37, 38, 39 contained no reference, express or implied, to the Applicant or any allegations made about her. I therefore consider that the Applicant’s claim for those redactions to be lifted is not pressed by the Applicant.

34. The remaining redactions in Items 19, 29, 30 and 31 did contain reference to the Applicant. The redactions in Items 29, 30 and 31 were for identical information, to the effect that the Tribunal has only two redactions to consider.

35. The specific references to the Applicant which were subject to those two redactions are:

1. Item 19: [confidential]

2. Items 29, 30, 31: [confidential]

36. In determining whether the redactions should be lifted, I find that the public interest considerations in favour of disclosure include the general public interest in favour of disclosing government information at s 12(1), and agree with the Applicant’s submission that this should be afforded ‘significant weight’, as expressed in Selby v Commissioner of Police (NSW) [2013] NSWADT 61 at [89] and Camilleri v Commissioner of Police (NSW) [2013] NSWADT 80 at [48].

37. I accept the Applicant’s submission that the information sought contains “her own personal information”. Schedule 4 to the GIPA Act specifies that:

“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.

38. The relevant redactions contain statements which are clearly, on their face, information or an opinion about the Applicant, and which identify the Applicant. I agree that this consideration should be afforded significant weight.

39. The Applicant submitted that she has a right to access the redacted statements on the basis that they contain “adverse findings” against her, in accordance with the decision in Department of Community Services v Latham [2000] NSWADTAP 21 (‘Latham’), in which the Tribunal found that an individual has a right to know about adverse findings made against him or her to check the accuracy of those findings. However, I agree with the Respondent’s submission that the decision in Latham is distinguished from the circumstances in these proceedings because the information in question does not include any “findings” made in relation to the Applicant by an Agency. Objections made by third parties in response to the consultation process pursuant to s 54 of the GIPA Act are not analogous to “findings” made by an Agency as part of a conduct investigation, which was the subject application in Latham. I therefore reject this submission by the Applicant.

40. The Applicant submitted that she required the redacted information sought because:

[S]he is required to disclose the allegations made by the third parties to the Legal Profession Admission Board (LPAB) in accordance with her obligations to disclose, with honesty and candour, any matter that could influence the LPAB’s decision about whether or not she is of good fame and character, and a fit and proper person.

41. Putting aside whether or not the LPAB would actually require this specific disclosure from the Applicant, I agree with the Respondent’s submission that this is not a public interest consideration in favour of disclosure of the information sought, but rather, a factor that may be taken into account under s 55 of the GIPA Act. On the basis of the Applicant’s expressed concerns, I give this reasonable weight in the context of the Applicant’s personal factors and motivation in seeking access to the information.

42. The Applicant submitted that there was a significant public interest in favour of disclosure of the identity of a complainant of a “false complaint”. The Respondent submitted that little weight should be afforded to this public interest consideration as it had not withheld the names of the individuals. I do not consider the third party responses to a GIPA Act application to be analogous to the “complaints” referred to in the authorities relied on by the Applicant, being NSW Office of Liquor, Gaming and Racing v Fahey [2012] NSWADTAP 55, Camilleri v Penrith City Council [2012] NSWADT 196, Mansfield v Department of Family and Community Services (NSW) [2014] NSWCATAD 43 at [65] and Luxford v Department of Education and Communities [2016] NSWCATAD 118 at [94] – [95]. I therefore give this consideration minimal weight.

43. Finally, the Applicant submitted that there is a public interest consideration in favour of disclosure for the purpose of the administration of justice, on the basis that she intended to seek legal remedies for disparaging and defamatory allegations contained in the information sought. The Respondent submitted that the authority relied on by the Applicant to support her submission, Hall v Roads and Maritime Services [2012] NSWADT 239, supported the Tribunal affording this consideration little weight, on the basis that the Applicant could “seek an order for discovery under the Uniform Civil Procedure Rules 2005 for the confidential information should any legal remedy be sought”. I disagree that disclosure of the relevant information is relevant to the administration of justice on the basis of the limited evidence provided to the Tribunal by the Applicant of her intentions to commence legal proceedings as submitted. I find, instead, that this is a relevant consideration for the purposes of s 55(2) of the GIPA Act, in that it provides the Tribunal with the Applicant’s motive for making the access application. I afford this consideration reasonable weight in the context of the Applicant’s personal factors and motivation in seeking access to the information.

44. Because the Respondent bears the onus of justifying its decision to refuse the applicant access to the information, it has the burden of establishing that the public interest considerations against disclosure it relies on apply. It also bears the burden of establishing that, on balance, they outweigh the public interest considerations in favour of disclosure which I have accepted above.

45. I reject the Respondent’s submission that either of the statements referred to above at [38] contain “confidential information” within the meaning of the GIPA Act. The information was obtained by the Respondent in response to its obligations under s 54 of the GIPA Act to consult with third parties. The purpose of consultation under s 54, as expressed at s 54(4), is to ascertain whether the person has an objection to disclosure of some or all of the information and the reasons for any such objection. There is no express or implied confidentiality attaching to the responses to that consultation process. To the contrary, the provision of review rights to the third party objector at s 54(6) and the right to appear and be heard in any proceedings before Tribunal in relation to the review at s 104(3) of the GIPA Act would indicate that the responses provided by third parties to consultations by an agency pursuant to s 54 would not be inherently confidential.

46. As referred to at [32] above, the Appeal Panel in Camilleri expressed that whether or not information was “confidential information” was to be determined “by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received”. The Respondent’s submission is that:

What can be gleaned very easily from the confidential information, and the reference in the First Decision to the objections to the release of the confidential information (see page 6 in the Council’s bundle of documents) is that the third parties do not, and have not ever consented to the release of their personal information.

47. I accept the Respondent’s submission that the third parties do not wish to have their personal information released. However on the basis of the evidence before the Tribunal I consider this submission to be made generally about all the third parties’ personal information, and not specifically in relation to the statements expressed at [38] above.

48. Whilst the statements expressed at [38] above, as discussed above at [40], are personal information about the Applicant, they are also the personal information of the third party objectors insofar as they are expressions of their opinions. On the evidence and submissions before me I do not accept that those statements are, in fact, confidential information just because they contain personal information. I find that they are not “confidential information” as submitted by the Respondent. To the extent that the disclosure of the relevant statements comprises a public interest consideration against disclosure pursuant to cl 3(a) of the Table to s 14 of the GIPA Act as “personal information”, I give that consideration minimal weight.

49. Even if I had found that the statements expressed at [38] comprised “confidential information”, I reject the Respondent’s submission that disclosure would impede the Respondent’s ability to effectively comply with its GIPA Act obligations. The obligation to consult with third parties in relation to GIPA Act access applications pursuant to s 54 requires the Respondent to:

1. Inform the third party of the access application and what information pertaining to the third party is being sought;

2. ascertain whether the third party person has an objection to disclosure of some or all of the information and the reasons for any such objection (s 54(4));

3. take any third party objection into account in determining whether there is an overriding public interest against disclosure of the information (s 54(5));

4. before the information is released, give the third party notice of any decision to provide access to the information over the third party objection, and provide the third party with notice of their rights to have the decision reviewed (s 54(6)).

50. The respondent submitted that:

The balancing exercise cannot be conducted effectively without an agency having the ability to request, receive and process sensitive information (including objections to the release of information) from members of the public. That ability, and in turn the effective operation of the GIPA Act, is impeded if the confidential information is released. There is a real risk that members of the public will be unlikely to respond, and give full and proper reasons as to why they do not wish for their information to be released. This in turn will lead to decisions that are not fully informed, and do not achieve a balanced and reasonable outcome in relation to applications under the GIPA Act.

51. There is no basis upon which the Tribunal could find that disclosing the basis for an objection interfered with the Respondent’s obligations to consult with third parties. The balancing exercise undertaken to determine whether information is disclosed pursuant to s 13 occurs after consultation pursuant to s 54. If there are no responses to the Respondent’s reasonable attempts at consultation with third parties, the Respondent has still complied with its GIPA Act obligations to consult.

52. Third party objections to the release of information are one factor which may be considered by an Agency in supporting the public interest considerations against disclosure, when conducting the balancing exercise required by s 13 of the GIPA Act. Having no or few responses to an Agency’s attempts at consultation does not result in a decision which is “not fully informed”, or a failure to “achieve a balanced and reasonable outcome”. I therefore reject the Respondent’s submission that disclosure would impede the Respondent’s ability to effectively comply with its GIPA Act obligations.

53. As to the Respondent’s submissions that the statements in question would contravene its obligations under the PPIP Act, the Respondent has not identified what obligations have or could be contravened, or how those contraventions have or could arise in the circumstances. Similarly, the respondent has not identified or provided any evidence as to how disclosure of the redacted statements referred to at [39] above could reasonably be expected to result in an action for breach of confidence. I therefore reject those submissions.

54. Applying the balancing exercise required by s 13 of the GIPA Act, the public interest considerations in favour of disclosure far outweigh those against disclosure. The redacted information identified at 38 above should therefore be released to the Applicant.

Sufficiency of searches

55. At hearing the Applicant clarified that Items 14 and 20 were not pressed in respect of her claim that the Respondent had failed to demonstrate sufficiency of searches. The Applicant submitted that Items 2, 9, 28, and the decision dated 2 January 2018 demonstrated that there were documents in existence falling within the scope of her access application, which had not been produced by the Respondent, demonstrating that their searches for material were not sufficient.

56. Those items remaining in dispute are as follows:

1. Item 2: An email dated 1 June 2017 to Kelly Thitchener, to which the Applicant contends no response has been produced;

2. Item 9: An email dated 1 June 2017 to Luke Thitchener, to which the Applicant contends no response has been produced;

3. Item 28: An email dated 1 June 2017 to William Dagger, to which the Applicant contends no response has been produced;

4. A copy of a decision dated 2 January 2018, made by the Council, in relation to a previous GIPA Act application made by the Applicant – to which the Applicant contends that a comment made in that decision, being “I have reports of …. threats made to contract workers and the builder”, indicates that an objection from the builder for the DA, Brett Vergou, in relation to that previous GIPA application, has not been produced.

57. In accordance with the principles expressed in Camilleri above at [15] to [17] above, in determining whether the Respondent has conducted reasonable searches, the Tribunal is to first ask whether there are reasonable grounds to believe that the requested information exists and is information of the agency. On my review, I do not consider that there are reasonable grounds to believe that there were responses to any of the emails identified as Items 2, 9, or 28, or that there was any additional producible information supporting the Respondent’s statement in its First Decision that “I have reports of… threats made to… the builder”. Emails are not always responded to by reply email, and it would not be reasonable for me to assume that a response was received by the Respondent, or that such a response fell within the scope of the access application. The statement in question in the First Decision does not provide any information, such as a date, form or content of threats reported, to allow me any reasonable basis upon which I could find that there was identifiable information in support of the statement which fell within the Applicant’s access application, which had not been produced.

57. Even if I was to determine that reasonable grounds existed, the Respondent has discharged its onus in demonstrating to the Tribunal that the efforts made by the agency to locate the information have been reasonable in the circumstances of the case. The Applicant submitted that the Respondent’s assertions that “reasonable searches were conducted” in its First Decision was insufficient where “the respondent has failed to adduce any evidence that allow the effectiveness of those searches to be tested”. However, the Respondent has produced such evidence to the Tribunal and the Applicant had the opportunity to test that evidence at the hearing. The Respondent attached a number of emails to its submissions as evidence of the searches conducted, identified above at [34(2)(b)], and provided a witness at hearing, Michel Duval, to answer questions about the searches conducted. Mr Duval’s evidence was clear about how he conducted searches, where he conducted searches, and what specifically he searched for, or didn’t search for. In the circumstances of this case, where the Applicant’s assertions of documents not produced rely on assumptions about emails being replied to and generalised statements by the Respondent, I consider the searches conducted by the Respondent and their witness’s evidence demonstrates that their efforts to locate the information have been reasonable.

Outside scope

59. Item 34 refers to an email dated 28 February 2018 from William Dagger to the Council, which the Respondent determined did not fall within the scope of the application. The Applicant sought to characterise this determination as a refusal to grant access pursuant to s 80(d) of the GIPA Act. I agree with the Respondent’s submission that there was no such refusal pursuant to s 80(d), because a determination that information does not fall within the scope of an access application is not a “refusal” to grant access to that information.

60. The Tribunal dealt with a similar issue in Manning v Bathurst Regional Council [2018] NSWCATAD 18 at [25] to [31]:

25. The Tribunal has jurisdiction to review a “reviewable decision” under the GIPA Act, including the decision of an agency to refuse access to information: GIPA Act, ss 80(d), 100; Administrative Decisions Review Act 1997 (NSW), s 9; Civil and Administrative Tribunal Act 2013 (NSW), ss 28, 30. To be a “reviewable decision,” the decision must be a decision “of an agency in respect of an access application” (GIPA Act, s 80; my emphasis). The term “reviewable decision” is defined to mean “a decision of an agency that is a reviewable decision under Part 5” (which includes s 80) (GIPA Act, Sch 4). A person is entitled to apply to the Tribunal for review if he or she is “aggrieved by a reviewable decision” (GIPA Act, s 100).

26. There is no doubt that the applicant is aggrieved by the decision to refuse to provide her with access to the redacted material in the valuation report and the solicitor’s letter. The question is whether these are “reviewable decisions” in circumstances where she did not seek that information in her access application.

27. The phrase “in respect of,” which is used in s 80 of the GIPA Act and many other statutory provisions, “may appropriately be afforded a ‘wide meaning’” but the ambit of the words “in respect of” “must yield both to the particular statutory provision in which they find expression and to the context of that provision within the statute being considered” (The Northern Eruv Incorporated v Ku-Ring-Gai Council [2012] NSWLEC 249 at [36]).

28. A possible construction of s 80 is that the decisions to refuse access to the valuation report and the solicitor’s letter are “reviewable decisions” because they were made in response to the access application and thus “in respect of” it. However, I consider that the statutory context of s 80 indicates that the phrase “in respect of” has a narrower meaning.

29. The GIPA Act provides for the making and review of decisions about access applications. The relevant provisions, and the right to access information, turn on the scope of an access application. Section 9(1) provides that: “A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.” The “information” the subject of the “enforceable right” is the information the subject of the application.

30. Section 58(1) of the GIPA Act provides for the ways in which an agency may decide an access application. These include deciding to provide access to the information and deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information. Each of the decisions an agency may make concern the government information the subject of the access application.

31. It follows from these provisions, and the scheme of the GIPA Act more generally, that the words “in respect of” in s 80 confine “reviewable decisions” to those which concern the information to which the applicant has sought access. That is, a “reviewable decision” does not include a decision purportedly made about information falling outside the scope of the access application. The Council’s decisions to refuse access to the solicitor’s letter and the valuation report were not authorised by s 58(1) of the GIPA Act, because they were not decisions about the information to which the applicant had applied for access.

61. I agree with and adopt that reasoning in these proceedings. The Applicant has sought access to information regarding the third party objections to her and her father’s access applications made pursuant to the GIPA Act. I agree with the Respondent’s submissions that a request for an investigation, the subject of Item 34, is not “relevant to or connected with the third-party objections, raised in the course of all access applications made pursuant to the provisions of the GIPA Act by Jessica Amos and or Kevin Amos”, as sought in the access application. In my view, a request by a third party for the Respondent to conduct an investigation does not fall within the scope of the access application, and is not a decision about the information to which the Applicant had applied for access.

Orders

1. The Respondent’s decision of 10 September 2018 is varied in accordance with paragraphs [38] to [57] of this decision, to provide access to the redacted information identified at paragraph 38 of this decision within 28 days;

2. The decision under review is otherwise affirmed.

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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

Annexure A

Applicant’s Final Points of Claim dated 13 September 2018

Item:   

Basis of challenge:

Item 1, with the exception of the redacted email address and telephone number which the applicant does not press.   

S 80(d) - redactions.

Item 2 - the applicant contends the response from Kelly Thitchener to Martin Ball's email of 1 June 2017 regarding the objection has not been located. The applicant accepts the respondent has indicated it undertook further searches and seeks to test the effectiveness of those searches.

S 80(e) - sufficiency of search.

Item 3, with the exception of the redacted email address which the applicant does not press.   

S 80(d)-redactions.

Item 4, with the exception of the redacted email address which the applicant does not press.   

S 80(d) - redactions.

Item 5.   

S 80(d) - redactions.

Item 7, with the exception of the redacted email address which the applicant does not press.

S 80(d) - redactions

Item 8, with the exception of the redacted email address and telephone number which the applicant does not press.

S 80(d) – redactions

Item 9 - the applicant contends the response from Luke Thitchener to Martin Ball's email of 1 June 2017 regarding his objection has not been located. The applicant accepts the Respondent has indicated it undertook further searches and seeks to test the effectiveness of those searches.

S 80(e) - sufficiency of search

Item 10, with the exception of the redacted email address which the applicant does not press.

S 80(d) redactions

Item 14, with the exception of the redacted email address which the applicant does not press.

The applicant considers the subsequent items identified in the applicant's amended points of claim dated 23 August 2018 have not been located. The applicant accepts the Respondent has indicated it undertook further searches and seeks to test the effectiveness of those searches

S 80(d) redactions,

and

s 80(e) sufficiency of search

Item 17, with the exception of the redacted email address which the applicant does not press.

S 80(d)-redactions

Item 18, with the exception of the redacted email address which the applicant does not press.

S 80(d)-redactions

Item 19, with the exception of the redacted email addresses which the applicant does not press.   

S 80(d)-redactions

Item 20, with the exception of the redacted email address which the applicant does not press.

Additionally, the applicant notes the correspondence and any reply from Jacob Manners has not been located. The applicant accepts the respondent has indicated it undertook further searches and seeks to test the effectiveness of those searches

S 80(d)-redactions,

and

s 80(e) – sufficiency of search

Item 21, with the exception of the redacted email address which the applicant does not press.

S 80(d) - redactions

Item 22, with the exception of the redacted email address and telephone number which the applicant does not press.   

S 80(d) -redactions

Item 24   

S 80(d) - redactions

Item 25   

S 80(d) -redactions

Item 28 - the applicant contends the response from William Dagger to Martin Ball's email of 1 June 2017 has not been located.

Additionally, the applicant accepts the Respondent has indicated it undertook further searches and seeks to test the effectiveness of those searches   

S 80(e) sufficiency of search

Item 29

S 80(d) -redactions

Item 30   

S 80(d) - redactions

Item 31   

S 80(d)-redactions

Item 32   

S 80(d)-redactions

Item 33

S 80(d)-redactions

Item 34 - In relation to the email dated 28 February 2018 from William Dagger to the Council that is referred to in Item 34, the Respondent indicated in its decision dated 10 September 2018 that this record falls outside the scope of the application. The applicant submits this record does fall within the scope of the access application.

S 80(d) - decision to refuse to provide access

Item 36, with the exception of the redacted email address and possible telephone number which the applicant does not press

S 80(d) - redactions

Item 37   

S 80(d) - redactions

Item 38

S 80(d) - redactions

Item 39   

S 80(d) - redactions

Formal access application dated 2 January 2018 - the applicant considers the objection of Brett Vergou has not been located

S 80(e) - sufficiency of search

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

Decision last updated: 31 October 2019