Anderson v Tweed Shire Council

[2017] NSWCATAD 61

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Anderson v Tweed Shire Council [2017] NSWCATAD 61
Hearing dates:	On the papers
Date of orders:	28 February 2017
Decision date:	28 February 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	The decision by Tweed Shire Council to disclose the information referred to as document 7 and described as “2 February - Advice provided by Mr G Ritchie” is affirmed.
Catchwords:	ADMINISTRATIVE LAW – access to government information – access application – whether disclosure could reasonably be expected to prejudice third person’s interests
Legislation Cited:	Government Information (Public Access) Act 2009
Cases Cited:	Salmon v Corrective Services NSW [2016] NSWCATAD 257
Category:	Principal judgment
Parties:	Ross Anderson (Applicant) Tweed Shire Council (Respondent)
Representation:	Solicitors: Doyle Edwards Anderson Lawyers (Applicant) P Brack - Agent (Respondent)
File Number(s):	2016/00378377

REASON FOR DECISION

1. The Applicant applied to the Tweed Shire Council (“the Council”) under the Government Information (Public Access) Act 2009 (“the GIPA Act”) seeking access to:

all records pertaining to the submission of DA16/0093.

2. In his access application he also noted:

This is a strata Building and I believe it is in everyone's interest and especially Lot owners (rate payers) that all correspondence should be transparent. The governance of a Strata Scheme implies this."

Background to the Access Application

3. The Applicant is the owner of a residential lot in a mixed use strata scheme. Mr Grant Ritchie and Ms Melanie Ritchie (“the Ritchies”) are the owners of several retail/commercial premises in the scheme. Those lots are leased and businesses are conducted from those lots.

4. In early 2016 an application for development (“development application”) was lodged with the Council in relation to one of the Ritchies’ lots. The proposed development was for a barber shop. The Ritchies consented to the making of the development application.

5. The Applicant asserts that the development application related to both lot property and common property. A lot owner, or tenant, or occupier has no authority to carry out any alterations, additions or otherwise do any work to common property, without authority from the owners corporation. The Applicant also asserts that the owner of the common property, the owners corporation, was never requested to provide consent to the works or to the development application and therefore it did not provide consent.

6. The Council issued development consent in April 2016. The Applicant asserts that the owners corporation had no knowledge of the development application or the proposed works until after the development consent had been granted. The Applicant also asserts that the consent required the owners corporation to undertake works to the common property and that this required a special resolution authorising the carrying out of the works.

The Council’s determination

7. The Council identified 17 documents as falling within the scope of the access application and provided a schedule in which those documents were identified and described. The Council determined to:

a) Grant access to documents 2, 10, 11, 13 and 14 under section 58{1)(a) of the GIPA Act;

b) Refuse access to document 7 under section 58(1)(d) - 4 (e) in the table to section 14 of the GIPA Act;

c) Refuse access to documents 1, 5, 8, 9, 12, 15 and 16 under section 58(1)(c), section 59(1)(b) and section 59(2) of the GIPA Act, as the documents were made available to the applicant on 19 May 2016;

d) Refuse access to documents 3, 4, 6 and 17 under section 58(1)(c ), section 59{1){b) and section 59{2) of the GIPA Act, as council is not required to provide access, as the information is available from the agency free of change - Development Application Tracking- DA16/0093 on the Council website.

8. The Applicant applied to the Information and Privacy Commission for a review of the Council's decision in relation to document 7 only. Document 7 is described in the schedule to the Council’s determination as “2 February - Advice provided by Mr G Ritchie”.

9. In relation to Document 7 the council determination stated:

The information that you asked includes information that is business interest of another person I was therefore required, under section 54 of the GIPA Act, to consult with those people before releasing the information.

There was an objection to the release of information.

…

There is an overriding public interest against release of document 7 under s58(1)(d) - 4(e) in the table to s14 of the GIPA Act

My decision was made in a way that promotes the object of the GIPA Act by restricting access to documents only where there is an overriding public interest against disclosure.

10. No further explanation was provided in regard to the decision to refuse access to Document 7.

11. The Information Commissioner was not satisfied that the Council had demonstrated that there is a relevant public interest consideration against disclosure in relation to document 7. She recommended under section 93 of the GIPA Act that the Council make a new decision, by way of internal review, in relation to document 7.

12. The Applicant has applied to the Tribunal for external review of the Council’s determination prior to any redetermination.

13. The matter came before me for a case conference in November 2016. Following the conference I remitted the matter for redetermination by the Council. That redetermination was completed in December 2016.

Applicable legislation

14. Section 5 of the GIPA Act establishes a presumption in favour of disclosure of government information. The general public interest considerations in favour of access to government information are set out in section 12. The 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). The public interest balancing test for determining whether there is an overriding public interest against disclosure is set out in section 13.

15. Before deciding whether to release or withhold information, an Agency must apply the public interest test and decide whether or not an overriding public interest against disclosure exists for the information. Section 13 requires decision makers to:

•   identify relevant public interest considerations in favour of disclosure,

•   identify relevant public interest considerations against disclosure,

•   attribute weight to each consideration for and against disclosure, and

•   determine whether the balance of the public interest lies in favour of or against disclosure of the government information.

16. The only public interest considerations against disclosure that can be considered are those in schedule 1 and section 14 of the GIPA Act. Section 14 provides:

14 Public interest considerations against disclosure

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.

(2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

…

17. The Agency must apply the public interest test in accordance with the principles set out in section 15 of the GIPA Act which provides:

15 Principles that apply to public interest determination

A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles:

(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.

18. An agency may be required to consult third parties before making a decision about an access application if the information is of a kind requiring consultation. Section 54 of the GIPA Act provides:

54 Consultation on public interest considerations

(1) An agency must take such steps (if any) as are reasonably practicable to consult with a person before providing access to information relating to the person in response to an access application if it appears that:

(a) the information is of a kind that requires consultation under this section, and

(b) the person may reasonably be expected to have concerns about the disclosure of the information, and

(c) those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information.

(2) Information relating to a person is of a kind that requires consultation under this section if the information:

(a) includes personal information about the person, or

(b) concerns the person’s business, commercial, professional or financial interests, or

(c) concerns research that has been, is being, or is intended to be, carried out by or on behalf of the person, or

...

(4) The purpose of consultation under this section 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.

(5) The agency must take any objection to disclosure of information that the agency receives in the course of consultation into account in the course of determining whether there is an overriding public interest against disclosure of government information.

…

19. Therefore, an agency must take any third party objection into account in making its decision, but the mere fact that there has been an objection is not determinative of an overriding public interest consideration against disclosure. An agency may decide to release information despite receiving an objection from a third party.

20. The decision to release or not to release information remains the Agency's decision. Generally, the onus is on the agency to justify decisions. Section 105 of the GIPA Act provides:

105 Onus on agency to justify decisions

(1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section.

(2) If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review.

...

Public interest considerations

21. The Council identified the following section 12 public interest considerations in favour of disclosure of the information:

• enhancing government accountability - section 12(2)(a);

• disclosure of the information could reasonably be expected to inform the public about the operations of Council - section 12(2)(b)

22. The Council identified a relevant public interest consideration against disclosure of the information under clause 4(e) of the table to section 14:

4 Business interests of agencies and other persons

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:

…

(e) prejudice the conduct, effectiveness or integrity of any research by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).

23. The words, ‘could reasonably be expected’ in section 14 are to be given their ordinary meaning, and require something more than a possibility, risk or chance of the relevant event occurring, assessed objectively: see my discussion of this issue in Salmon v Corrective Services NSW [2016] NSWCATAD 257 at paragraphs 22 – 30 and the cases that I have cited there.

24. This requires a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from irrational, absurd or ridiculous, to expect the effect outlined.

The redetermination

25. As noted, at a case conference on 8 November 2016 I remitted the matter to the Council for a new determination. Mr Ritchie was consulted through the redetermination process and he opposed the release of document 7.

26. On redetermination the Council’s decision was to grant access to document 7.

Mr Ritchie’s right to be heard

27. Section 104 of the GIPA Act provides

104 Right of appearance before NCAT

…

(3) Any person who could be aggrieved by a decision of NCAT on a review under this Division has a right to appear and be heard in any proceedings before NCAT in relation to the review.

28. I was satisfied that Mr Ritchie was a person who could be aggrieved by the decision in this matter and took steps to ensure that he was advised of the proceedings before the Tribunal and of the redetermination. Both the Council and the Tribunal advised Mr Ritchie of his right to participate in the proceedings. On 13 December 2016 I directed

"If Grant Ritchie does not apply to be joined to these proceedings prior to 13 January 2017, the Respondent is to release the information that is the subject of the determination dated 15 November 2016”.

29. Mr Ritchie was notified of this direction and he contacted the Tribunal prior to 13 January 2017.

30. He did not appeal against the Council’s decision to release document 7. Nevertheless, Mr Ritchie took the opportunity to make written submissions. He objected to being joined as a party unless his submissions could be accepted. He was not joined as a party to the proceedings. He has not been provided with the material that has been filed in the matter.

31. Neither party has press an objection to Mr Ritchie's submissions being received and taken into account by the Tribunal. I have read his material and have taken his views into account in making my determination.

Mr Ritchie’s submissions

32. He continues to oppose the release of document 7 although the basis of his objection is not clear.

33. Mr Ritchie referred to document 7 as a "confidential legal document". He referred to the Application as a "vexatious action … with the unacceptably large potential to be detrimental to my investments and livelihood'. However, he did not elaborate on how the release of the information could be detrimental to his investments and livelihood other than his assertion that the information “could be used to profit [the Applicant’s] business interests to the detriment of my business interests”.

34. Mr Ritchie asserts that document 7 is a privileged legal document and that it “has nothing to do with the owners corporation or other owners. It is advise (sic) to me from my solicitor. The letter addressed to myself in a personal capacity, is in relation to a DA for a prospective tenant and the applicant has no right to know what was discussed.”

The Applicant's Submissions

35. Mr Edwards has provided written submissions on behalf of the Applicant. He noted that the Applicant understands that document 7 is a letter prepared by Stephen Goddard, Solicitor.

36. The Council confirmed that the Applicant’s understanding of document 7 is correct.

37. Mr Edwards submitted that document 7 is not confidential or otherwise immune from production because Mr Goddard was the solicitor for the owners corporation and he acted for the owners corporation in other proceedings in this Tribunal. The Applicant is a member of the owners corporation and is therefore entitled to see the advice. He further submitted that any confidentiality rests with the owners corporation, and not Mr Ritchie. In any event, if Mr Ritchie had any such right it was waived by reliance on the document as part of the Development Application.

38. Mr Edwards submitted that there is no substance to any of Mr Ritchie's objections, that there is no public interest against disclosure of document 7 and that it is in the public interest for disclosure of the document.

The Council’s Position

39. As noted, the Council determined to disclose document 7. It elected to not respond to Mr Ritchie’s submissions. Also as noted, the Council confirmed that document 7 is a letter prepared by Mr Goddard.

Discussion

40. I have taken Mr Ritchie’s submissions and Mr Edwards’ submissions into consideration.

41. I agree with the identified public interest considerations in favour of release of the information.

42. I note Mr Ritchie’s submission that document 7 is a "confidential legal document" and that the release of the information could be detrimental to his investments and livelihood. It is my understanding that Mr Ritchie’s submission relates to clause 4(d) of the table to section 14 of the GIPA Act i.e. that the disclosure of the information could reasonably be expected to prejudice his legitimate business, commercial, professional or financial interests.

43. However, it is up to Mr Ritchie to provide evidence in support of those contentions and he has not done so.

44. It is not in dispute that document 7 was relied on in regard to the development application. In the circumstances any confidentiality or privilege in the document has been waived. It is not clear how the disclosure could reasonably be expected to prejudice Mr Ritchie’s interests in circumstances where document 7 has already been provided to the Council in support of the development application.

45. In the circumstances I am not satisfied that there is an overriding public interest against release of document 7 under clause 4(d) of the table to section 14 of the GIPA Act or under any other clause of that table.

46. That being the case it is my view that the decision to release document 7 was the correct and preferable decision. It should therefore be affirmed.

Order

The decision by Tweed Shire Council to disclose the information referred to as document 7 and described as “2 February - Advice provided by Mr G Ritchie” is affirmed.

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: 28 February 2017