Amos v Department of Finance, Services and Innovation

[2019] NSWCATAD 96

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Amos v Department of Finance, Services & Innovation [2019] NSWCATAD 96

Hearing dates:

29 August 2018; 19 November 20189

Date of orders:

27 May 2019

Decision date:

27 May 2019

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

In matter number 2018/00079778:
1.   The decision under review is set aside in regard to the information redacted from the documents referred to as page 40; 60; 63 – 65; 76 – 78; 81; 82; 314; 327; 343; 332 and 334 to the extent discussed in these reasons
2.   In its place the decision is made that the information is to be released.
In matter number 2018/00185678:
1.   The decision under review is set aside in regard to the information redacted from the documents referred to as Document 7A
2.   In its place the decision is made that the information redacted from Document 7A is to be released.

Catchwords:

ADMINISTRATIVE LAW – Government Information – access application - building certifier’s response to complaint - confidential information - information provided in confidence – prejudice effective exercise by an agency of the agency's functions - personal information

Legislation Cited:

Government Information (Public Access) Act 2009
Administrative Decisions Review Act 1997
Building Professionals Act 2005
Privacy and Personal Information Protection Act 1998

Cases Cited:

Commissioner of Police, New South Wales Police Force v Camilleri [2012] NSWADTAP 19
Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179 (1979) 46 FLR 409
Place v Department of Finance, Services and Innovation [2016] NSWCATAD 278

Category:

Principal judgment

Parties:

Jessica Amos (Applicant)
Department of Finance, Services & Innovation (Respondent)

Representation:

J Amos (Applicant in person)

 

Counsel:
T Epstein (Respondent)

  Solicitors:
Fair Trading Legal Services

File Number(s):

2018/00079778; 2018/00185678

Publication restriction:

Nil

Reasons for Decision

Introduction

1. These two applications seek review of separate determinations by the Department of Finance, Services & Innovation (“the Respondent”) in regard to access applications made by Ms Jessica Amos (“the Applicant”) pursuant to the Government Information (Public Access) Act 2009 (“the GIPA Act”). In each access application the Applicant requested access to government information held by the Building Professionals Board (“the Board”).

2. The two matters were heard together and evidence in one was treated as evidence in the other.

Background

3. The applications concern building works carried out at a property at Kincumber (“the property”). The property is adjacent to a property (“the Amos’ property”) that is owned by the Applicant’s father, Mr Kevin Amos. Mr William Dagger was a private certifying authority (“the PCA”) in relation to the development at the property.

4. The Applicant contends that significant damage was caused to foundations of the Amos’ property and that the damage was caused by the building works undertaken at the property. The Applicant and her father have been advised that the damage is irreparable and that consequently the house will need to be demolished.

5. The Applicant made a complaint to the Board about the conduct of the PCA. The Board found that the PCA’s conduct did not constitute 'professional misconduct" or "unsatisfactory professional conduct' as defined in section 19 of the Building Professionals Act 2005.

The first access application (application number 2018/79778)

6. The Applicant made a GIPA Act access application seeking access to information relating to her complaint. She requested:

All correspondence (including, but not limited to, emails, any reports or certificates containing a professional opinion, guarantee, assurance or certification) between any officer or employee of the Building Professionals Board and William Dagger (Private Certifier) relevant to the building located at 56 Kookaburra Street, Kincumber and the complaint made by Jessica Amos.

For the avoidance of doubt, this includes all material provided by William Dagger to the Building Professionals Board in response to the complaint made by Jessica Amos relevant to the building located at 56 Kookaburra Street, Kincumber.

7. The Respondent identified 401 pages of documents as falling within the scope of the access application. It decided to release some but not all of that information. It relies on a number of public interest considerations against disclosure of the withheld information.

8. The Applicant sought external review of the determination in the Tribunal – application number 2018/00079778. The Respondent subsequently determined to release further information and the Applicant indicated that she did not press for some other information that was within the scope of her request. However, the Applicant continues to press her application in regard to other withheld information.

9. The Respondent released a substantial amount of the information but redacted several pages. The redacted information is identified as parts of pages numbered: 40, 60, 63-65, 76-78, 81-85, 220-222, 233, 312-315, 321-322, 323-324, 327, 330-334, 336-339, 343, 347-349, and 351-354. The Respondent has provided a copy of the unredacted information to the Tribunal on a confidential basis pursuant to section 107 of the GIPA Act.

10. The Applicant has set out the following public interest considerations in favour of disclosure:

1. The records "concern the monitoring of the compliance of the development located at the property.

2. The records contain the Applicant's personal information.

3. There is "significant public interest in enhancing transparency of investigations of complaints" made under Part 3 of Building Professionals Act.

4. Disclosure would enhance the accountability of the Board relevant to the investigations it carries out.

11. The Respondent does not dispute the above factors as constituting public interest considerations in favour of disclosure. However, the Respondent submits that these considerations have been largely satisfied by the released information.

12. The Respondent contends that public interest considerations against disclosure of the redacted information arise and it relies on a number of clauses in the Table to section 14 of the GIPA Act. The Respondent submits that disclosure of the information could reasonably be expected to have one or more of the following effects:

1. prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions [clause 1(d) of the Table to section 14];

2. found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence [clause 1 (g) of the Table to section 14)];

3. reveal an individual's personal information [clause 3(a) of the Table to section 14];

4. prejudice any court proceedings by revealing matter prepared for the purposes of or in relation to current or future proceedings [clause 3(c) of the Table to section 14], and

5. prejudice the fair trial of any person, the impartial adjudication of any case or a person's right to procedural fairness [clause 3(d) of the Table to section 14].

13. The Respondent also relies on the following personal factors of the application:

1. the Applicant's identity and relationship with any other person,

2. the Applicant's motives for making the access application, and

3. other factors particular to the Applicant.

The second access application (application number 2018/00185678)

14. The Applicant made a GIPA Act access application seeking access to information relating to the handling of her complaint. She requested:

All records held by the Department of Finance, Services and Innovation that are in any way relevant to or connected with the objections raised by Mr Dagger in relation to the access application made by Jessica Amos to the Department of Finance, Services and Innovation on 11 January 2018 that refer or relate to any allegations (either expressly or impliedly) of harassment, intimidation, verbal abuse, threats or harm of any kind.

15. The Applicant provided the following additional information in relation to her access application:

The original access application was made to the Department of Finance, Services and Innovation on 11 January 2018.

The decision in respect of the access application was made on 22 February 2018.

During the third party consultation process, Mr Dagger corresponded with the DFSI and objected to the release of certain information on the basis of clause 3(f) of the Table to section 14 of the Act and made serious allegations of harassment, intimidation, abuse and threats.

This application seeks access to those objections made by Mr Dagger.

16. In response to the access application, the Respondent identified 21 documents as falling within the scope of the request. All but one of those documents has been released.

17. As required by section 54 of the GIPA Act, the Respondent consulted Mr Dagger and he objected to the release of information on the grounds that disclosure of the information would:

1. Reveal personal information;

2. Contravene an Information Protection Principle (“IPP 11”) under the Privacy and Personal Information Protection Act 1998 (“the PPIP Act”);

3. reveal material prepared for the purpose of or in relation to current or future proceedings;

4. Prejudice the fair trial of any person or a person's right to procedural fairness;

5. Reveal allegations about a person that are (or may be) defamatory; and

6. Expose a person to a risk of harm or of serious harassment or serious intimidation.

18. Initially, a decision was made to partially release the information contained in a document referred to as document 7 and to withhold a document referred to as document 7A. During the Tribunal proceeding, document 7 was released in its entirety and partial access was granted to document 7A.

19. The redacted information comprises personal opinions expressed by Mr Dagger in response to consultation regarding a previous access application made by the Applicant.

20. Much of the information appearing in Mr Dagger's letter of 10 February 2018 is either contained in documents already released to the Applicant by Central Coast Council, or information that was said in open hearing in response to cross-examination.

21. The Respondent determined that some information should not be released. Some of Mr Dagger's statements are unsubstantiated and could be considered defamatory. The Respondent also contends that the statements were given in confidence and that releasing this information would breach that confidence. It further contends that releasing this information would affect the Respondent's ability to carry out its functions under the GIPA Act by making third parties less willing to provide open and frank information to GIPA decision makers.

22. In respect of the redacted and withheld information the Respondent relies upon a number of considerations against disclosure set out in the Table to section 14 of the GIPA Act. It contends that disclosure of the information could reasonably be expected to have one or more of the following effects:

1. The release of the information could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions (clause 1(d));

2. The release of the information could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions (clause 1(f));

3. The release of the information could reasonably be expected to result in the disclosure of information provided to an agency in confidence (clause 1(g));

4. The release of the information would reveal personal information (clause 3(a)); and

5. The release of the information could reasonably be expected to breach of IPP 11 under the PPIP Act.

23. The Applicant sought external review of the determination in the Tribunal – application number 2018/00185678. The Applicant seeks the release of document 7A in an unredacted form.

Issue in dispute

24. The issue for determination in regard to each of the applications is whether the correct and preferable decision is that there is an overriding public interest against disclosure of the information that has been withheld.

Relevant Legislation and Principles

25. The GIPA Act has an objects provision at section 3 which includes a reference at section 3(2)(a) that the legislation be applied so as to further those objects. of the GIPA Act are as follows:

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)   It is the intention of Parliament:

(a)   that this Act be interpreted and applied so as to further the object of this Act, and

(b)   that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.

26. 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 of the GIPA Act, unless there is an overriding public interest against disclosure or the Respondent is otherwise entitled to refuse to deal with the access application. The GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: section 5.

27. Reviewable decisions may be reviewed by the Tribunal. In making its decision, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision: section 63(2) of the Administrative Decisions Review Act 1997. The Respondent bears the onus of establishing that the decision was justified: section 105(1) of the GIPA Act.

28. In considering an application for review the Tribunal may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179 (1979) 46 FLR 409.

29. Section 12(1) provides that there is a general public interest in favour of the disclosure of government information. Section 12(2) provides:

(2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.

[Note: The following are examples of public interest considerations in favour of disclosure of information:

(a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.

(b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.

(c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.

(d) The information is personal information of the person to whom it is to be disclosed.

(e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.

30. In addition to the examples identified in section 12(2) of the GIPA Act, the Applicant has set out the following public interest considerations in favour of disclosure:

1. The records concern the monitoring of the compliance of the development at the property;

2. The records contain the Applicant's personal information;

3. There is significant public interest in enhancing transparency of investigations of complaints made under Part 3 of the Building Professionals Act; and

4. Disclosure would enhance the accountability of the Board relevant to the investigations it carries under Part 3 of the Building Professionals Act.

31. The Respondent does not dispute that these factors constituting public interest considerations in favour of disclosure. I agree with that view. However, the Respondent submits that these considerations have been largely satisfied by the released information.

32. 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. In applying the public interest test under section 13 of the GIPA Act it is necessary to identify the public interest in favour of disclosure, identify the public interest against disclosure and determine where the balance lies: see discussion in Commissioner of Police, New South Wales Police Force v Camilleri [2012] NSWADTAP 19.

33. The Table to section 14 of the GIPA Act sets out a number of circumstances in which public interest considerations against disclosure of government information may apply and need to be weighed against the general public interest in favour of disclosure. The only public interest considerations against disclosure that may be taken into account are those listed in the Table.

34. Clause 1 of the Table to section 14 of the GIPA Act provides:

1 Responsible and effective government

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally):

…

(d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions,

…

(f) prejudice the effective exercise by an agency of the agency’s functions,

(g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence,

…

35. Clause 3 of the Table to section 14 of the GIPA Act provides:

3 Individual rights, judicial processes and natural justice

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects:

(a) reveal an individual’s personal information,

(b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002,

(c) prejudice any court proceedings by revealing matter prepared for the purposes of or in relation to current or future proceedings,

(d) prejudice the fair trial of any person, the impartial adjudication of any case or a person’s right to procedural fairness,

(e) reveal false or unsubstantiated allegations about a person that are defamatory,

…

36. In considering whether there is an overriding public interest against disclosure, the Tribunal is to be guided by section 15. Agencies must exercise their functions so as to promote the objects of the GIPA Act and must have regard to any relevant guidelines issued by the Information Commissioner.

37. Section 54(5) of the GIPA Act states that agencies are required to consider all objections to the release of information that third parties raise.

38. Section 55 of the GIPA Act permits a decision maker to take into account the following personal factors of the application in determining whether there is an overriding public interest against disclosure of information in response to an access application:

1. the applicant's identity and relationship with any other person,

2. the applicant's motives for making the access application,

3. any other factors particular to the applicant.

The Witnesses

39. The Respondent relies on the evidence of Mr Sean Fagan, the Board’s Manager, Investigations and Mr Andrew Filocamo, the Respondent’s Advisor, Ministerial Services. Mr Dagger, Ms Kelly Thitchener and Mr Graeme Thitchener also attended the hearing and were cross-examined. The Applicant and her father also gave evidence and were cross-examined.

Mr Sean Fagan

40. Mr Fagan provided an affidavit and he also attended the hearing, gave evidence and was cross-examined. His evidence is in regard to the approach that the Board takes to the investigation of complaints against accredited certifiers to determine if there has been any "unsatisfactory professional conduct" or "professional misconduct". As part of the process the certifier is invited to respond to the complaint. The certifier has the right to make written submissions and the Board must consider them when making its decision. The certifier has no obligation to provide a response and no open proceedings are conducted in relation to the complaint.

41. Mr Fagan stated that the Board needs the cooperation of the certifier in explaining their conduct, decision-making, and where relevant the context and rationale behind it. His view is that it could reasonably be expected that certifiers would not avail themselves of the invitation to make a submission to the Board or their submissions might be far briefer and circumspect if they understood that their submission in response to a complaint would be released.

42. In his view it could reasonably be expected that the Board would be prejudiced in exercising its functions by having to conduct further investigations or alternatively decide a matter in a vacuum without the benefit of the certifier's response. He stated that without having the benefit of the certifier’s input at the initial stage of the process, the Board may carry out investigation unnecessarily and that this would result in an unnecessary burden, waste the Board's resources and extend the time taken for the Board to provide a decision to the complainant and the certifier.

43. He is also of the view that in circumstances where the Board was not satisfied that the certifier's conduct was unprofessional and did not take disciplinary action against the certifier, releasing the certifiers submission could reasonably be expected to harm the professional reputation of the certifier in circumstances where they were not the subject of an adverse finding by the Board.

44. Mr Fagan also noted that Section 83(1) of the Building Professionals Act which provides:

83 DISCLOSURE AND MISUSE OF INFORMATION

(1) A person must not disclose any information obtained in connection with the administration or execution of this Act unless that disclosure is made:

(a) with the consent of the person from whom the information was obtained, or

(b) in connection with the administration or execution of this Act, or

(c) for the purposes of any legal proceedings arising out of this Act or of any report of any such proceedings, or

(d) in accordance with a requirement imposed under the Ombudsman Act 1974 , or

(e) with other lawful excuse.

...

45. Ms Amos referred Mr Fagan to comments attributed to him in the decision of Place v Department of Finance, Services and Innovation [2016] NSWCATAD 278 at paragraph [156]:

Of the considerations against disclosure, cl 1(g) may be considered first. I have found that the information was provided by the certifier on the understanding that it would be confidential, notwithstanding the board’s reservation in its standard letter of the right to pass on any comments to the complainant. Mr Fagan’s evidence was that access to such information was restricted to officers having a need to know. While it could be released when a complaint was settled or withdrawn, it would not normally be disclosed while the investigation was in progress, partly because the certifier might express his reply differently or more guardedly if he or she knew it would be transmitted to the complainant.

46. Ms Amos put to Mr Fagan that the views he has expressed in this matter are inconsistent with the views attributed to him at paragraph [156] of Place. Mr Fagan did not dispute the inconsistency but does not accept that paragraph [156] of Place correctly states the evidence that he gave in that case. He stated that the evidence that he gave in Place is the same evidence that he has given in this matter and that there is no inconsistency in his evidence.

47. The Respondent noted that the Building Professionals Act has specific provisions regarding the confidentiality of information in regard to its investigative and disciplinary process. The relevant provisions include:

1. the mandatory investigation of complaints whether or not the complaints have substance [section 27(1)];

2. investigations are not limited to items of the complaint or the person complained about [section 27(3)];

3. extensive coercive powers of investigation including, but not limited to, the power to compel the provision of information and documents; powers of entry to non-residential premises, including authority to use force; access to the power given by search warrants to enter residential premises, if they are deemed necessary for the determination of the matter [sections 48 - 51];

4. offence provisions for obstructing investigators [section 58(1)];

5. a limitation on self-incrimination available to accredited certifiers [section 59]

6. Board disciplinary hearings are conducted in the absence of the public [section 30(3)(a)];

7. any statement of decision made by the Board, which is provided to the complainant, can exclude confidential information [section 32(3)]

8. general secrecy provision regarding the disclosure and misuse of information obtained in connection with the administration or execution of the Building Professionals Act [section 83(1) Building Professionals Act].

Mr Andrew Filocamo

48. Mr Filocamo is responsible in reviewing, processing, and deciding GIPA and Privacy applications lodged with the Respondent. In his affidavit, he set out the process for responding to GIPA applications and the manner in which the information relating to the application is handled.

49. He noted that the Respondent consulted Mr Dagger in relation to a previous application that Ms Amos had made. He stated that in his experience, third parties who have been consulted often expect confidentiality in the consultation process and in regard to the information that they provide. Some third parties will not provide information unless he agrees that the information will not be communicated to the applicant.

50. Mr Filocamo made decisions in relation to the access applications that are the subject of these proceedings. He decided to provide partial access to the information that fell within the scope of the requests. He decided to provide full access to some documents, the partial release of document 7 and the full refusal of document 7A. He considered that the public interest considerations against disclosing part of document 7 and all of 7A outweighed the public interest considerations in favour of disclosing it. He refused to deal with other aspects of the access applications on the basis that some of the information had been the subject of an earlier decision and he did not identify any reasonable grounds as to why he would make a different decision on releasing this information.

51. The Respondent submits that it is important to preserve the confidentiality of the response provided by Mr Dagger in order to enable the Respondent to continue to receive information in relation to third party consultations and to consider the application together with any reasons or concerns of third parties in disclosing information.

Mr William Dagger

52. Mr Dagger attended the hearing gave evidence and was cross-examined. He gave evidence in relation to his dealings with the Applicant’s family and with the Central Coast Council (“the council”) in relation to complaints lodged by the Applicant’s family and other neighbours concerning building works carried out at the property. As noted above, Mr Dagger was the PCA in relation to the development at the property and in that capacity he had responsibility for addressing the concerns raised with the council and SafeWork NSW, the workplace health and safety regulator.

53. While he conceded that some action was taken in relation to complaints raised in regard to the building works carried out at the property, he did not agree that the action was justified.

54. It is apparent that Mr Dagger holds strong views in relation to the Applicant’s family and he did not hesitate to express those views when giving his evidence. He stated that acrimonious nature of the complaints raised by the Applicant’s family was extreme. He said that he had spent over 400 hours in addressing issues that they had raised. However, he agreed that he had no personal dealings with the Applicant.

55. Mr Dagger acknowledged that he was aware of GIPA access applications that the Applicant has made to the council and stated that he objected to the release of some of the information that the Applicant had sought in those applications. He stated the he maintained his objection but conceded that he did not take the opportunity to become involved in proceedings before the Tribunal in regard to those access applications. He said that this was because he had already had to allocate a significant amount of time and resources to deal with issues raised by the Applicant’s family and other neighbours and that he did not want to spend more time to the issues.

56. He agreed that he objected to the release of the information that the Applicant has requested in these matters and stated the he maintains his objection.

Ms Kelly Thitchener

57. Ms Thitchener was an owner of the property. She sold the property in about May 2017 and no longer lives there. She explained her dealings with the council and the Applicant’s father and said that she moved because she did not feel comfortable living in the street.

58. Ms Thitchener gave evidence that she was aware of GIPA access applications that the Applicant has made to the council and stated that she objected to the release of some of the information that the Applicant had sought in those applications. One of the bases on which she objected to the release was harassment by the Applicant. However, she agreed that she had only met the Applicant’s father on three occasions. She also agreed that she had never met the Applicant and had never received any emails from her or had any other interactions with her.

59. She agreed that she was aware of the proceedings between the Applicant and the council. She conceded that she did not take the opportunity to become involved in proceedings before the Tribunal in regard to those access applications because she wanted it over.

Mr Graeme Thitchener

60. Mr Thitchener gave evidence that he was aware of GIPA access applications that the Applicant has made to the council and stated that he had objected to the release of some of the information that the Applicant had sought in those applications. One of the bases on which he objected to the release was harassment by the Applicant. However, he agreed that he had only met the Applicant’s father on one occasion and had received one email from him. He also agreed that he had never met the Applicant and had never received any emails from or any other interactions with her.

The Applicant’s Case

61. The Applicant rejects the Respondent's submission that release of the redacted material would prejudice the supply of confidential information that facilitates the effective exercise of the agency's functions.

62. She submits that the Respondent has not adduced any evidence to indicate that Mr Dagger expected the information he provided during consultation was provided confidentially or that Mr Dagger had an expectation of confidentially when participating in the consultation process.

63. The Applicant also submits that the Respondent has not adduced any evidence to support its contention that release of information will prejudice the supply of confidential information to the agency because members of the public may be reluctant to report matters to the Respondent if their privacy Respondent was unable to be protected. The Respondent has not provided any evidence to suggest that a person who was consulted as part of the GIPA process would not respond to a consultation request in the future, if he or she considered a response warranted. The Applicant submits that any prejudice to the supply of such information would be minimal if at all.

64. The Applicant contends that the records contain her own personal information and as such this factor should be accorded significant weight in balancing the public interest considerations under section 13.

65. Furthermore, the Applicant submits there is significant public interest in enhancing transparency relevant to the processing and management of complaints and access applications by the Respondent. She further submits and that disclosure would enhance the accountability of the Respondent relevant to the way it manages consultation with the public and decides these matters.

66. The Respondent has acknowledged that Mr Dagger has made a number of comments about the Applicant. She submits that there is significant public interest in disclosing to the subject of the complaint the identity of a complainant who has made a false complaint. She submits that she should be able to obtain the information to be able to learn what was said about her and to check its accuracy. On this basis, she submits that the redacted information should be released.

67. She submitted that the Respondent has acknowledged that the allegations made by Mr Dagger cannot be substantiated, are disparaging of the Applicant and may injure her reputation. She seeks access to the information so that she may seek a legal remedy relevant to the allegations made by Mr Dagger. She considers that this weighs heavily in favour of disclosure and should be accorded significant weight because there is significant public interest in the administration of justice.

68. The Applicant denies that there is any relationship between her and Mr Dagger and submits that there is no evidence indicating hostility or animus on her part towards Mr Dagger or any other individual.

69. The Applicant notes the evidence of the various witnesses that they had not had any interactions or correspondence (either in person, by email or by telephone) with the Applicant or her family. In the light of those concessions she submits that the Respondent's submission that the release of the redacted material may reasonably be expected to inflame this conflict is fanciful. In contrast, she submitted that the release of the redacted material is in the public interest because it will allow her to seek a legal remedy for defamation.

Consideration

Application number 2018/00185678 - Document 7A

70. The Respondent determined to grant partial access to document 7A. Most of the document has been released. The redacted information comprises personal opinions expressed by Mr Dagger in response to consultation regarding a previous access application made by the Applicant.

71. The Respondent relies upon the following public interest considerations against disclosure in the Table to section 14 of the GIPA Act in respect of the redacted and withheld information:

1. The release of the information could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions (clause 1(d));

2. The release of the information could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions (clause 1(f));

3. The release of the information could reasonably be expected to result in the disclosure of information provided to an agency in confidence (clause 1(g));

4. The release of the information would reveal personal information (clause 3(a)); and

5. The release of the information could reasonably be expected to breach of the IPP 11 under the PPIP Act (clause 3(c)).

Clauses 1(d), 1(f) &1 (g)

72. The Respondent contends that:

1. disclosure of the information could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions [clause 1(d)];

2. disclosure of the information could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions [clause 1(f)]; and

3. disclosure of the information could reasonably be expected to found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence [clause 1(g)].

73. As noted above, the Respondent relies on the evidence of Mr Filocamo in regard to these considerations.

74. The Respondent submits that it is important to preserve the confidentiality of the response provided by Mr Dagger. This is important to enable it to continue to receive third party consultation information and to identify any reasons or concerns of third parties in regard to the disclosure of information. The Respondent relies on third party input and submits that if the supply of that information was prejudiced, it would have an adverse effect on the third party consultations under section 54 of the GIPA Act.

75. I am satisfied that the redacted information was provided to the Respondent as part of the process that it adopted in response to the Applicant's request. The Respondent had an obligation to consult in regard to the request and I accept that it is necessary for the Respondent to obtain all relevant information to allow it to undertake its functions.

76. I accept Mr Filocamo evidence in regard to consultation with third parties. I accept that many third parties who are consulted in regard to a request might regard the information that they provide as confidential. I also accept that it is possible that some individuals might be reluctant to provide information to the Respondent if they became aware that the information that they provided might be released to an applicant. This in turn might affect the Respondent’s ability to undertake its functions effectively. These factors should be given reasonable weight.

77. However, I am not satisfied that the document 7A redacted information was relevant to the process that the Respondent had to undertake.

78. I also accept that Mr Dagger has asserted that the information he gave to the Respondent was given in confidence. However, in the circumstances of this matter, I am satisfied that the redacted information is of a similar nature to information that Mr Dagger gave in his evidence before the Tribunal. That being the case I am not satisfied that clause 1(g) should be given more than minimal weight.

Clause 3(a) - Personal Information

79. The Respondent contends that disclosure of the information could reasonably be expected to reveal an individual's personal information. I agree with that contention. The Respondent has correctly identified that the redacted information contains personal views of Mr Dagger. The Respondent has also conceded that the withheld information contains personal information of the Applicant in that Mr Dagger expressed views about her.

80. The Respondent contends that there is an acrimonious relationship between the Applicant and Mr Dagger and that the history of the dispute is one that involves considerable antipathy on both sides. It submitted that the release of the redacted material may reasonably be expected to inflame this conflict. The Applicant disputes this contention.

81. Clearly there is great animosity on Mr Dagger’s part. However, the Applicant has denied that there is any relationship between her and Mr Dagger. Mr Dagger conceded that he had not had any interactions or correspondence with the Applicant other than through these proceedings.

79. It is clear that the Applicant has had Mr Dagger’s contact details for a number of years and that she has not used that information to contact him. I agree with the Applicant that it is unlikely that the release of the redacted document 7A information would result in direct contact between the Applicant and Mr Dagger. This consideration should be given little weight.

80. Similarly, the Respondent’s contention that disclosure of the redacted information in document 7A in which Mr Dagger expressed views about the Applicant would be a breach of the IPP 11 under the PPIP Act should be given little weight. The vast majority of the information that has been redacted was either repeated by Mr Dagger in emails that have been disclosed or in his evidence before the Tribunal.

81. However, I agree that the Applicant has indicated that she seeks to obtain the information so that she can use it as a basis for legal proceedings against Mr Dagger. That is a factor that can be taken into account pursuant to section 55 of the GIPA Act. Clearly, any defamation proceedings that the Applicant commenced would impact on Mr Dagger. However, I agree with the Applicant that there is significant public interest in the administration of justice. I do not consider that this consideration should be given more than minimal weight.

Finding in regard to document 7A

85. I note the general presumption in favour of release of government information. I am also satisfied that the disclosure of the opinions that Mr Dagger expressed about the Applicant would allow the Applicant to form her own view in regard to that issue and this is a consideration in favour of release. In my view this should be given significant weight.

86. I am not satisfied that the disclosure of information that was not relevant to the issues to be dealt with by the Respondent would have any significant impact on the Respondent’s ability to receive relevant information in regard to future requests. It might in fact deter persons from making unnecessary, unsubstantiated defamatory comments. If that were the case, it would reduce the burden on the Respondent by limiting the amount of irrelevant material that it needs to consider in exercising its functions.

87. In weighing these considerations I have taken into account the extent of the information to which the Applicant has already been given access, the evidence given in these proceedings and the content of the withheld information. On balance, it is my view that the considerations in favour of release of the redacted information in document 7A outweigh those considerations against release. In the circumstances, document 7A should be released in full.

Application number 2018/00079778 – various redactions.

88. Mr Dagger provided his response to the Board along with submissions and supporting documents. The Respondent has correctly identified within that material a number of documents which contain information that is predominantly the personal views of Mr Dagger and third parties. The information also includes names, home addresses, emails and phone numbers that are not available to the public or to the Applicant. The Respondent determined to redact some of that information.

89. I accept the evidence that Mr Fagan gave in regard to the approach that the Board takes to the investigation of complaints. I accept that the Board is subject to obligations regarding confidentiality. I also accept that a certifier has no obligation to provide a response to a complaint and that the Board’s ability to undertake its functions would be affected if it could not get the cooperation of certifiers who are the subject of complaints.

90. The Respondent submits that disclosure of the information could reasonably be expected to have one or more of the following effects:

1. prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions;

2. found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence;

3. reveal an individual's personal information;

4. breach of the IPP 11 under the PPIP Act;

5. prejudice any court proceedings by revealing matter prepared for the purposes of or in relation to current or future proceedings; and

6. prejudice the fair trial of any person, the impartial adjudication of any case or a person's right to procedural fairness.

91. As noted, the Respondent has released a substantial amount of the information that falls within the scope of the access application but it determined to redact several pages.

Clauses 1(d) &1 (g)

92. The Respondent submits that it is important to preserve the confidentiality of the response provided by Mr Dagger. This is important to enable it to continue to receive information and to identify any information that might assist in undertaking its functions.

93. It relies on the evidence of Mr Fagan in regard to these considerations.

94. Mr Fagan explained the approach taken by the Board in relation to handling complaints as well as the confidential treatment of the information relating to the complaints.

95. The Respondent also notes that Mr Dagger voluntarily responded to the complaint lodged by the Applicant when he was under no compulsion to do so.

96. I am satisfied that the redacted information was provided to the Respondent as part of the process that it adopted in response to the Applicant's complaint against Mr Dagger. I accept that it is necessary for the Respondent to obtain all relevant information to allow it to undertake that process. If the redacted information is relevant to the complaint handling process, it is possible that the disclosure of the information could affect the Board’s ability to receive the material it needs to have in order to undertake that process effectively.

97. I agree that there is a risk that certifiers might not avail themselves of the opportunity to make a submission to the Board. Some people might limit their responses and not be prepared to provide the totality of the relevant information that they hold. Nevertheless, it is my view that a certifier whose livelihood is at stake is likely to take the opportunity to state their position.

98. In the circumstances of this matter I consider that these factors should be given reasonable weight.

99. Much of the redacted information concerns the business affairs of parties involved in the building works carried out at the property. Where that information was provided to the Board on a confidential basis I consider that the public interest consideration against disclosure in clause 1(g) should be given significant weight.

Clauses 3(a) and 3(b) - reveal personal information

100. The Respondent contends that disclosure of the information could reasonably be expected to reveal an individual's personal information and that the disclosure would breach of the IPP 11 under the PPIP Act.

101. As noted above, the Respondent has provided a copy of the unredacted documents with the redacted portions highlighted. I have read that information and I am satisfied that it contains the personal information of various individuals. Some, but not all of the information is also the Applicant’s personal information.

102. As I have noted above, it is clear that there is great animosity on Mr Dagger’s part. It is also clear that the Applicant has had Mr Dagger’s contact details and contact details of other third parties for a number of years and that she has not used that information to contact them. I agree with the Applicant that it is unlikely that the release of the redacted information would alter that situation.

103. However, it is my view that much of the redacted information contains personal information that is of a different nature to that in document 7A and should be treated differently. I note that there no limitations may be imposed on the use or disclosure of the material once it is released. This consideration should be given reasonable weight.

104. Similarly, I agree with the Respondent’s contention that disclosure of some the redacted information could be a breach of the IPP 11 under the PPIP Act and this consideration should be given reasonable weight.

Clauses 3(c) and 3(d) - prejudice court proceedings; fair trial of any person or procedural fairness

105. I accept that the Applicant is seeking disclosure of the information because it might be relevant if she decides to seek a legal remedy for defamation. However, I am not satisfied that future court proceedings are more than a possibility.

106. As there is no indication of any current or planned future court proceedings in relation to this matter, I have not given any weight to the considerations under clause 3(c) and (d) against disclosure.

Clause 3(e) - false or unsubstantiated allegations

107. I agree that disclosure of some of the redacted information could reasonably be expected to reveal false or unsubstantiated allegations about a person that are defamatory. However, in regard to information that reflects views that have been openly expressed by the witnesses, it is my view that this consideration should be given little weight.

The redacted information

108. For the purposes of this discussion I will refer to the redacted information by reference to the identified page numbers.

Page 40.

109. This document is described as an email from William Dagger to Tanya Twigg with attached documents. The email is dated 30 October 2015.

110. The redacted information contains comments of a similar kind to those contained in document 7A. This information reflects views that Mr Dagger expressed openly in his evidence before the Tribunal.

111. In weighing the considerations in favour of release and against release I have taken into account the extent of the information to which the Applicant has already been given access, the evidence given in these proceedings and the content of the withheld information. On balance, it is my view that the considerations in favour of release of the redacted information on page 40 outweigh those considerations against release. In the circumstances, page 40 should be released in full.

Page 60.

112. This document is described as a Letter - Short Response to Complaint. The letter is from William Dagger to the Director of the Board and is dated 2 December 2015.

113. The redacted information contains comments of a similar kind to those contained in document 7A. This information reflects views that Mr Dagger expressed openly in his evidence before the Tribunal.

114. For the same reasons referred to above, it is my view that the considerations in favour of release of the redacted information on page 60 outweigh those considerations against release. In the circumstances, page 60 should be released in full.

Pages 63 - 65.

115. This document is described as a response by William Dagger to a complaint alleging “Failure to ensure that the project was surveyed prior to construction resulting in clearing and destruction of Local Council owned nature reserve” and “Failure to respond to residents”.

116. The redacted information contains comments of a similar kind to those contained in document 7A. This information reflects views that Mr Dagger expressed openly in his evidence before the Tribunal.

117. For the same reasons referred to above, it is my view that the considerations in favour of release of the redacted information on pages 63 – 65 outweigh those considerations against release. In the circumstances, pages 63 – 65 should be released in full.

Pages 76 - 78.

118. This document is described as a response by William Dagger to a complaint identified as “Certifier's Summary of Complaint 2” and “Complaint 3”.

119. The redacted information contains comments of a similar kind to those contained in document 7A. This information reflects views that Mr Dagger expressed openly in his evidence before the Tribunal.

120. For the same reasons referred to above, it is my view that the considerations in favour of release of the redacted information on pages 76 – 78 outweigh those considerations against release. In the circumstances, pages 76 – 78 should be released in full.

Page 81.

121. This document is described as a response by William Dagger to a complaint identified as “Subsequent Multiple Complaints”.

122. The redacted information contains comments of a similar kind to those contained in document 7A. This information reflects views that Mr Dagger expressed openly in his evidence before the Tribunal.

123. For the same reasons referred to above, it is my view that the considerations in favour of release of the redacted information on page 81 outweigh those considerations against release. In the circumstances, page 81 should be released in full.

Pages 82 - 85.

124. This document is described as an email dated 15 December 2015 from William Dagger to Frank Rupolo with attached emails exchanged between Brett Vergou and Kelly Johnston - Fwd Interaction with neighbour emails and Graeme Thitchener.

125. The redacted information at page 82 contains comments of a similar kind to those contained in document 7A. This information reflects views that Mr Dagger expressed openly in his evidence before the Tribunal.

126. For the same reasons referred to above, it is my view that the considerations in favour of release of the redacted information on page 82 outweigh those considerations against release. In the circumstances, page 82 should be released in full.

127. The redacted information at pages 83 - 85 is of a different nature. This comprises information that is of a far greater personal nature to the authors and in my view the considerations against disclosure in clauses 3(a) and 3(b) of the table to section 14 of the GIPA Act should be given significant weight.

128. It is my view that the considerations against release of the redacted information on pages 83 - 85 outweigh those considerations in favour of release. In the circumstances, the decision to refuse to release the redacted information on pages 83 - 85 was the correct and preferable decision and should be affirmed.

Pages 220 - 222.

129. This document is described as “Summary of Emails and Responses between affected parties”. These pages provide a table which contains details of sender, recipients date and time of the emails as well as a brief description of the content of the email. Some descriptions have been redacted.

130. The redacted information at page 220 relates to three email descriptions. In my view the information in two of those descriptions has already been disclosed in these proceedings and therefore it should be released. The information redacted from the penultimate item on page 220, the information redacted from page 221 and the information redacted from page 222 is in a different category. I am satisfied that this is information of a confidential nature and that the release of that information could reasonably be expected to result in the disclosure of information provided to the Respondent in confidence. In my view this consideration should be given significant weight. This consideration against release of the redacted information outweighs those considerations in favour of release. In the circumstances, the decision to refuse to release the information redacted from the penultimate item on page 220, page 221 and page 222 was the correct and preferable decision and should be affirmed.

Page 233.

131. This document is described as a “Tax Invoice Floor Level Survey” dated 5 November 2015. The redacted information comprises figures related to professional fees charged to the builder.

132. I am satisfied that this is information of a confidential nature. I am satisfied that the release of that information could reasonably be expected to result in the disclosure of business information showing a cost structure that was provided to the Respondent in confidence. In my view this consideration should be given significant weight. This consideration against release of the redacted information outweighs those considerations in favour of release. In the circumstances, the decision to refuse to release the information redacted from page 233 was the correct and preferable decision and should be affirmed.

Pages 312 - 313.

133. This document is described as an email dated 6 August 2015 from Brett Vergou to William Dagger relating to any possible actions regarding 56 Kookaburra Street.

134. I am satisfied that this is information of a confidential nature. I am satisfied that the release of that information could reasonably be expected to result in the disclosure of information provided to the Respondent in confidence. In my view this consideration should be given significant weight. This consideration against release of the redacted information outweighs those considerations in favour of release. In the circumstances, the decision to refuse to release the information redacted from pages 312 – 313 was the correct and preferable decision and should be affirmed.

Page 314.

135. This document is also an email dated 6 August 2015 from Brett Vergou to William Dagger. The redacted information is business phone number which I understand is already available to the Applicant. In the circumstances it is my view that the redacted information should be released.

Pages 321 - 322.

136. This document is described as an email dated 9 October 2015 from William Dagger to Brett Vergou regarding foundational damage and Mr Amos.

137. I am satisfied that this is information of a confidential nature. I am satisfied that the release of that information could reasonably be expected to result in the disclosure of information provided to the Respondent in confidence. In my view this consideration should be given significant weight. This consideration against release of the redacted information outweighs those considerations in favour of release. In the circumstances, the decision to refuse to release the information redacted from pages 321 - 322 was the correct and preferable decision and should be affirmed.

Pages 323 - 324.

138. This document is described as an email trail dated 9 October 2015 between Graeme Thitchener and William Dagger regarding foundational damage and Mr Amos.

139. I am satisfied that this is information of a confidential nature. I am satisfied that the release of that information could reasonably be expected to result in the disclosure of information provided to the Respondent in confidence. In my view this consideration should be given significant weight. This consideration against release of the redacted information outweighs those considerations in favour of release. In the circumstances, the decision to refuse to release the information redacted from pages 323-324 was the correct and preferable decision and should be affirmed.

Pages 327

140. This document is described as an email dated 9 October 2015 from William Dagger to Graeme Thitchener regarding Mr Amos response to PCA.

141. The redacted information contains comments of a similar kind to those contained in document 7A and reflects views that Mr Dagger expressed openly in his evidence before the Tribunal.

142. In weighing the considerations in favour of release and against release I have taken into account the extent of the information to which the Applicant has already been given access, the evidence given before the Tribunal and the content of the withheld information. On balance, it is my view that the considerations in favour of release of the redacted information on page 327 outweigh those considerations against release. In the circumstances, page 327 should be released in full.

143. The information redacted from page 327 has been duplicated on pages 332 and 334. That redacted information should also be released in full.

Pages 330 - 334.

144. This document is described as emails dated 9 & 10 October 2015 exchanged among Brett Vergou, Graeme Thitchener and William Dagger regarding Mr Amos' complaint on foundational damage.

145. As noted, some of this information is a duplicate of that redacted from page 327. With the exception of that information I am satisfied that the information redacted from pages 330 - 334 is of a confidential nature. I am satisfied that the release of that information could reasonably be expected to result in the disclosure of information provided to the Respondent in confidence. In my view this consideration should be given significant weight. This consideration against release of the redacted information outweighs those considerations in favour of release. In the circumstances, the decision to refuse to release the information redacted from pages 330 - 334 was the correct and preferable decision and should be affirmed.

Pages 336 - 338.

146. This document is described as duplicates of emails dated 9 & 10 October 2015 exchanged among Brett Vergou, Graeme Thitchener and William Dagger regarding Mr Amos' complaint on foundational damage.

147. For the same reasons as referred to above in relation to pages 330 - 334, I am satisfied that the decision to refuse to release the information redacted from pages 336 - 338 was the correct and preferable decision and should be affirmed.

Pages 339

148. This document is described as emails dated 11 October 2015 from Brett Vergou, to Graeme Thitchener and William Dagger regarding alleged cracking.

149. I am satisfied that this is information of a confidential nature. I am satisfied that the release of that information could reasonably be expected to result in the disclosure of information provided to the Respondent in confidence. In my view this consideration should be given significant weight. This consideration against release of the redacted information outweighs those considerations in favour of release. In the circumstances, the decision to refuse to release the information redacted from page 339 was the correct and preferable decision and should be affirmed.

Pages 343

150. This document is described as an email dated 16 October 2015 from Graeme Thitchener to Matt Thitchener.

151. I am satisfied that the email contains the personal information of Mr Graeme Thitchener in that it contains views that he expressed. However, the redacted information contains comments of a similar kind to those that Mr Thitchener expressed openly in his evidence before the Tribunal.

152. In weighing the considerations in favour of release and against release I have taken into account the extent of the information to which the Applicant has already been given access, the evidence given in the proceedings and the content of the withheld information. On balance, it is my view that the considerations in favour of release of the redacted information on page 343 outweigh those considerations against release. In the circumstances, page 343 should be released in full.

Pages 347 - 349.

153. This document is described as emails dated 12 December 2015 exchanged among Kelly Johnston, William Dagger, Brett Vergou, Graeme Thitchener and Matt Thitchener.

154. This document duplicates information that has been redacted from pages 83 -85 that I have referred to above.

155. For the same reasons as referred to above in relation to pages 83 -85, I am satisfied that the decision to refuse to release the information redacted from pages 347 – 349 was the correct and preferable decision and should be affirmed.

Pages 351 - 354.

156. This document is described as emails dated 12 & 16 December 2015 among Kelly Johnston, William Dagger, Brett Vergou from Surething Constructions regarding the interaction with neighbours.

157. This document duplicates information that has been redacted from pages 83 -85 that I have referred to above.

158. For the same reasons as referred to above in relation to pages 83 - 85, I am satisfied that the decision to refuse to release the information redacted from pages 351 - 354 was the correct and preferable decision and should be affirmed.

Conclusion

159. As I have noted, I have largely affirmed the Respondent’s determination in Application number 2018/00079778. However, I am not satisfied that the Respondent was correct in determining that some of the redacted information should not be disclosed.

160. In matter number 2018/00185678 it is my view that the redacted information in document 7A should be released.

161. With these exceptions, the decisions under review should be affirmed.

Orders

In matter number 2018/00079778:

1.   The decision under review is set aside in regard to the information redacted from the documents referred to as page 40; 60; 63 – 65; 76 – 78; 81; 82; 314; 327; 343; 332 and 334 to the extent discussed in these reasons.

2.   In its place the decision is made that the information is to be released.

In matter number 2018/00185678:

1.   The decision under review is set aside in regard to the information redacted from the documents referred to as Document 7A

2.   In its place the decision is made that the information redacted from Document 7A is to be released.

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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

Amendments

27 May 2019 - typo corrected at paragraph [27]

Decision last updated: 27 May 2019