Bourke v Roads and Maritime Services

[2012] NSWADT 272

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Bourke v Roads and Maritime Services [2012] NSWADT 272
Hearing dates:	On the papers
Decision date:	19 December 2012
Jurisdiction:	General Division
Before:	N Isenberg, Judicial member
Decision:	The decision under review is affirmed
Catchwords:	access to government information - substance of complaint - reliance upon community sources
Legislation Cited:	Government Information (Public Access) Act 2009 Marine Safety Act 1998
Cases Cited:	Commissioner of Police v Camilleri [2012] NSWADTAP 19Flack v Commissioner of Police [2011] NSWADT 286 Leech v Sydney Water Corporation [2010] NSWADT 298 Hurst v Wagga Wagga City Council [2011] NSWADT 307 Bennett v Vice Chancellor, University of New England (2000) NSWADT 8 Ingram v Sutherland Shire Council [2000] NSWADT 69 Williams v Department of Industry and Investment [2012] NSWADT 192 Marrickville Legal Centre v Chief Commissioner of State Revenue [2012] NSWADT 98 Fahey v NSW Office of Liquor, Gaming & Racing [2012] NSWADT 181 Camilleri v Penrith City Council [2012] NSWADT 196
Category:	Principal judgment
Parties:	Clem Bourke (Applicant) Enid Bourke (Applicant) Roads and Maritime Services (Respondent)
Representation:	C Bourke (Applicant in person) Crown Solicitors Office (Respondent) Information Commissioner
File Number(s):	123015

reasons for decision

Background

1. The respondent conducted an inspection of Mr and Mrs Bourke's ('the applicants') property following receipt of complaints from canoeists and persons involved in recreational fishing. The applicants were issued with a Notice to remove electric fences which they had erected across the Paterson River.

1. On 1 November 2010, the applicants applied under the Government Information (Public Access) Act 2009 ('GIPA Act') to the respondent for access to the following information:

details of the complaints from canoeists noted in paragraph 2 of a letter dated 10 May 2010 sent to me and signed by Charley Dunkley (copy included and paragraph high-lighted). These complaints led to a NSW Maritime Notice to remove Obstruction from Navigable waters that was included with the letter. As I am not aware of any incidents that have led to this action, I wish to know:

1. The person/s making the complaint/s

2. the date/s and time/s of the incident/s

3. the exact location/s of the incidents

4. the exact nature of the incident/s

5. the person/s the incident/s were reported to

1. The respondent refused access to the information. Review by the Office of the Information Commissioner ('OIC') was sought and although some recommendations were made, no further information was provided to the applicants. The applicants seek review of the decision.

1. Subsequently the respondent provided the applicants with redacted versions of the relevant documents. The applicants did not press their application insofar as it related to information that would identify the complainants.

1. For clarity, the only dispute remaining relates to redactions made on two documents that have been provided to the applicants. The redactions in issue, are as follows:

in the email of 18 February 2010 from Kim O'Meara, to Michelle Payne and Brett Boehm (all officers of NSW Maritime), in the second paragraph, the redaction following the words "I advised him to lodge a written complaint"; and

in the email of 17 February 2010 from Melissa Bailey to Michelle Payne, in the second paragraph, the second redaction after the words "since 2004".

Relevant Legislation

1. The objects of the GIPA Act are set out in s. 3, which provides:

3 Object of Act

(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:

a) authorising and encouraging the proactive public release of government information by agencies, and

b) giving members of the public an enforceable right to access government information, and

c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.

(2) 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.

1. It was not disputed that the information the subject of this application is government information that is held by an agency: s 4(1) of the GIPA Act.

1. There is a presumption in favour of the disclosure of government information unless there is an 'overriding public interest against disclosure': s.5 of the GIPA Act.

1. Section 13 of the GIPA Act sets out the test that is to be applied in determining whether there is an overriding public interest against disclosure. That test is in the following terms:

13Public interest test

There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interests considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure

1. The public interest considerations against disclosure are set out in s. 14 of the GIPA Act.

1. Section 15 sets out the principles that are to be applied when determining whether there is an overriding public interest against disclosure. It 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.

1. On an application for review to the Tribunal, the onus is on the agency to establish that the decision the subject of review is justified: s 105(1) GIPA Act.

CONSIDERATION

1. In deciding whether to release information, the Tribunal must decide whether or not an overriding public interest against disclosure applies to the information. As noted above, s. 13 of the GIPA Act requires the Tribunal to undertake the following steps:

• identify the relevant public interest considerations in favour of disclosure
• identify the relevant public interest considerations against disclosure.
• determine the weight of the public interest considerations in favour of and against disclosure and where the balance between those interests lies.

Public interest considerations in favour of disclosure

1. Section 12 of the GIPA Act reiterates the general presumption in favour of disclosure of government information, and lists examples of public interest considerations that favour disclosure.

1. By way of background the applicants noted that the fences across the Paterson River were their boundary fences, erected to prevent adjoining landowner's cattle from entering their property. There were barbed wire fences across the river when they purchased the property 25 years ago and these were changed to electric fences nineteen years ago. The fences were said to be clearly labelled.

1. The applicants challenged the redactions on the basis that they have not been supplied with "details of the date/s and time/s of the incidents, the exact location of the incidents and the exact nature of the incident/s which are points 2 to 4 of the original request". They contended that after 22 years (sic), it appears one person has made complaints. They believe they are entitled to know the details of the redacted material in order to understand "these incidents".

1. It is difficult to grasp what are the "incidents" to which the applicants refer. From their submissions, they did not deny that electric fences were erected over the river, and in fact, had been in place for some years prior to the respondent's investigation. Presumably then, the "incidents" relate to the circumstances of the complaints which gave rise to the investigation.

1. The respondent observed that the complainant alerted it to the possibility of there being an obstacle to navigation on the Paterson River and that the decision to issue a Notice to the applicants to remove the electric fence was made following an investigation and inspection of the fences. I accept that in determining whether to issue the Notice, the respondent did not consider whether the fences acted as an obstacle to navigation on a particular occasion or as a result of an incident, but were addressing what, the applicants' concede, had been an ongoing state of affairs for some years.

1. Other possible public interest considerations were identified by the OIC in its report at [19], namely that disclosure of information could reasonably be expected to:

• reveal the reason for a government decision and any background or contextual information that informed the decision;
• advance the fair treatment of individuals and other entities in accordance with the law in their dealings with agencies; and
• contribute to the administration of justice generally, including procedural fairness.

1. I accept that these considerations apply, albeit in the most general sense. The respondent submitted, and after examination of the whole of the material in dispute, I agree, that these considerations have already been met by the release of the redacted material to the applicants. They are nonetheless considered in the balancing process the Tribunal must undertake.

Public interest considerations against disclosure

1. The public interest considerations against disclosure are limited to those set out in the Table to s 14 of the GIPA Act.

1. In Commissioner of Police v Camilleri [2012] NSWADTAP 19 ('the Camilleri appeal') the Appeal Panel considered (at [26]) s. 14 considerations need to be examined at a broad operational level and that those considerations "are concerned with systemic features of the operation of government".

1. To raise these as relevant considerations in the application of the public interest test the respondent must establish that the disclosure of the information "... could reasonably be expected to have the effect" outlined in the Table.

1. The principles for the interpretation of "could reasonably be expected" were discussed in Flack v Commissioner of Police [2011] NSWADT 286 (at [40] - [41]), ('Flack'), adopting the approach taken in Leech v Sydney Water Corporation [2010] NSWADT 298:

25 The term 'could reasonably be expected' has been considered in a number of cases. The words have their ordinary meaning: Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163. The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC.

1. 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.

1. In the decision under review the respondent submitted that there were a number of bases upon which it claimed there were public interest considerations against disclosure. For the purposes of the review, however, and in relation to the limited redacted portions of documents still in issue, the respondent submitted that the following public interest considerations against disclosure, as set out in the Table to s. 14 of the GIPA Act, are relevant:

• the disclosure is one that could be reasonably expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions: 1(d));
• the disclosure is one that could be reasonably expected to result in the disclosure of information provided in confidence to the respondent: 1(g);
• the disclosure is one that could be reasonably expected to reveal or tend to reveal the identity of an informant: 2(a); and
• the disclosure is one that could be reasonably expected to reveal an individual's personal information and/or contravene an information protection principle under the Privacy and Personal Information Protection Act: 3(a) and (b).

1. The respondent also submitted that the person to whom the information relates fears that the disclosure of this information would expose him to a "risk of harm or of serious harassment or serious intimidation": 3(f) of the Table.

Disclosure could reasonably be expected to prejudice the supply to the respondent of confidential information that facilitates the effective exercise of that agency's functions: Table 1(d)

1. The respondent submitted that it has a broad range of regulatory functions with respect to the State's waterways and referred, in particular to its role in ensuring the safety of waterways, including the power to seek removal of obstructions in navigable waters: s.16 Marine Safety Act 1998.

1. The respondent relied on a statement of Brett Boehm, the Senior Boating Safety Officer for the Hunter Inland Region. In his statement Mr Boehm explained that the respondent has limited resources to monitor the waterways within the Hunter Region and that it often relies on notifications from the public to identify hazards affecting waterways.

1. In determining whether disclosure would prejudice the supply of information, the test is not whether this complainant would in future refuse to supply that information but whether information of the kind in question facilitates the exercise of the respondent's functions and, whether the disclosure of such information could reasonably be expected to prejudice the supply of such information: Flack at [52].

1. Mr Boehm wrote that he would be concerned if the respondent were required under the GIPA Act to disclose information about the identity of members of the public who have made complaints. In his opinion, if the respondent were unable to protect the privacy of complainants, the public would lose faith in the respondent and "in the system". They would be reluctant to report issues, particularly if they felt threatened by the person about whom they are complaining, and this would make it difficult for the respondent to carry out its functions.

1. On the basis of Mr Boehm's evidence I accept that there is some reliance by the respondent on reports by the public about obstructions in navigable waters. Further, I accept there is a risk that members of the public may be reluctant to report matters to the respondent about obstructions in navigable waters if the respondent were unable to protect their privacy. I accept this would be likely to undermine the effective exercise of the respondent's functions under the Marine Safety Act in relation to its role in ensuring the safety of waterways. In this regard I consider that the waterways monitored by the respondent are likely to be extensive and I note the claimed limited resources of the respondent.

1. I accept that the release of information in this case could reasonably be expected to prejudice the future supply to the respondent of confidential information that facilitates the effective exercise of its functions.

Disclosure could reasonably be expected to result in the disclosure of information provided in confidence: Table 1(g)

1. It was clear that the complainant contacted the respondent to bring to its attention a potential navigational hazard so that the respondent would undertake further investigation, and arrange for removal of the perceived hazard if appropriate.

1. Mr Boehm wrote that it is his general practice, when speaking with a member of the public who has made a complaint, to advise the complainant that any information initially given to him is in confidence. Often, however, in order to further his investigation and/or take further action, it is necessary for him to take a statement from the complainant. In these circumstances, he explains to the complainant that the statement will likely be disclosed to others for the purpose of the investigation. The complainant is given the option of whether they wish to proceed and make a statement, or not. It is his experience that people often decline to make statements as they do not wish their identity to be known, particularly if the complaint relates to another person.

1. Mr Boehm does not specifically recall whether the complainant asked that his identity be protected when he initially spoke with him. Mr Boehm's evidence though was that he declined to give Mr Bourke details of the complainant when he spoke to him in the course of the investigation, which I accept as indicative of his general practice of not revealing the name of the complainant or that he was asked by the complainant not to reveal his identity, or both.

1. The respondent submitted that, in these circumstances, disclosure of the information contained in the disputed redactions would amount to the disclosure of information provided in confidence to the respondent.

1. In the Camilleri appeal the Appeal Panel considered that the question of whether information supplied was "confidential information' should 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": at [33].

1. I accept that information as to the complainant's identity was likely to have been provided in confidence, and, as such, the complainant was entitled to expect that his information would only be used so far as was necessary for the purpose of investigating his complaint, and would not be provided to Mr Bourke.

Disclosure could be reasonably expected to reveal or tend to reveal the identity of an informant: Table (2)(a)

1. The respondent referred me to the recent decision of Williams v Department of Industry and Investment [2012] NSWADT 192, where the Tribunal considered the meaning of the term "informant". While it was not necessary to determine this point, Montgomery JM considered that "informant" is intended to protect the identity of people who are informers in order to ensure that they continue to provide evidence to police: at [92]. The respondent submitted, and I agree, that it is too narrow a construction to limit the term to those who have reported information to the police. A number of government agencies perform law enforcement functions, particularly with respect to regulatory offences: see Ingram v Sutherland Shire Council [2000] NSWADT 69 at [27].

1. As in the Camilleri appeal, the respondent's case was that it routinely affords confidentiality to reports received from complainants and if the information warrants investigation, the investigation is itself conducted confidentially until such time as a decision in relation to any further action is taken.

I accept that for the present purpose the complainant was an "informant".

Having said that I also accept the material received confidentially at the initial stage of the law enforcement process may lose that confidentiality as the investigation develops, such as when a matter is brought to prosecution and an informant is obliged to give evidence as part of the prosecution case. However that is not the situation here.

Disclosure could reasonably be expected to reveal an individual's personal information and/or contravene an information protection principle: cl 3(a) and 3(b)

1. Clause 4 of Schedule 4 of the GIPA Act adopts a definition of "personal information" in the same terms as s. 4(1) of the PPIP Act. "Personal information" is defined as:

information or an opinion...about an individual...whose identity is apparent or can reasonably be ascertained from the information or opinion.

1. The respondent submitted that the information that is contained within the disputed redactions is personal information, as it is information about an individual whose identity may reasonably be ascertained by the applicants, based on that information.

1. The respondent submitted that there is a real possibility that disclosure of information in the disputed redactions could allow the identity of the complainant to be ascertained by the applicants. Even if the identity of the person is not immediately apparent, this is a case where the applicants could use that information to ascertain his identity by taking "moderate steps", such as a further GIPA Act application to another agency: see Marrickville Legal Centre v Chief Commissioner of State Revenue [2012] NSWADT 98 at [44].

1. I accept that if the information currently redacted were to be provided to the applicants, there are real and substantial grounds for believing this would lead to the disclosure of personal information.

1. The respondent further submitted that provision of the information in question could reasonably be expected to contravene an information protection principle, namely, s. 18 of the PPIP Act. Section 18 relevantly provides as follows:

(1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless:

a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or

b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or

c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.

1. The respondent submitted that, with respect to s. 18(1)(a), the purpose for which the information was collected by the respondent was to record and investigate a complaint received from a member of the public. Provision of this information to the applicants under the GIPA Act is not a disclosure directly related to this purpose and, furthermore, it is known that the individual concerned objects to the disclosure;

1. With respect to s. 18(1)(b), the respondent submitted that the complainant was not aware that information of this kind would be disclosed to the applicants and, indeed, expressly requests that it not be disclosed. The respondent also submitted that there is no serious or imminent threat for the purpose of s. 18(1)(c).

1. Accordingly, the respondent submitted, if information in the disputed redactions was released to the applicants it could also be reasonably expected to lead to a breach of an information protection principle (PPIP Act, s. 18) by the respondent.

1. The OIC observed that pursuant to section 41 of the PPIP Act, the NSW Privacy Commissioner made a Public Interest Direction ('the Direction') on 23 December 2011 on processing of personal information by agencies in relation to their investigative functions. In accordance with cl 4 of the Direction, an agency need not comply, relevantly, with s. 18 of the PPIP Act if non-compliance is reasonably necessary for the proper exercise of any of the agency's investigative functions or its conduct of any lawful investigations.

1. In relation to the respondent's submission that the purpose for which the information was collected was to record and investigate a complaint received from a member of the public, the OIC submitted that the disclosure would not be "unlawful", as the disclosure would not breach s. 18 of the PPIP Act as the Direction allows an agency to not comply with this section of the PPIP Act if reasonably necessary for the proper exercise of its investigative functions or the conduct of any lawful investigation.

1. The respondent submitted, and I agree, that disclosure to the applicants under the GIPA Act would not be disclosure "reasonably necessary" for the purpose of the respondent's investigative functions or in the conduct of a lawful investigation. It was noted that the respondent's investigation of the complaint concluded over two years ago with the issue to the applicants of the "Notice to Remove" on 10 May 2010. Release under the GIPA Act would not, therefore, fall within the terms of the Direction.

Risk of harm or of serious harassment or serious intimidation: Table (3)(f)

1. The respondent relied on the Statement of Mr Boehm and the Confidential Statement of Ms Mattes as demonstrating that the complainant holds concerns that the disclosure of information will place the complainant at risk of harm. The respondent accepted that the evidence goes no further than to establish that this subjective belief is held by the complainant. There need only be a reasonable expectation of the risk of harm, serious harassment or serious intimidation, but as far as I could see from the evidence there was no objective basis for this concern.

1. Nevertheless, this is a relevant factor that I may take into account when balancing whether or not there is an overriding public interest against disclosure.

Balancing the public interest test

1. The Tribunal's task is to determine whether there is an overriding public interest against disclosure of the information in accordance with the Act, paying due regard to the principles in s. 16 of the GIPA Act. This requires the Tribunal to consider whether, on balance, the public interest considerations against disclosure outweigh those in favour of disclosure: see Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [19] and Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [47]. Unless there is an overriding public interest against disclosure the presumption in favour of disclosure applies: s. 5 GIPA Act.

1. The GIPA Act does not provide a set formula for working out the weight of public interest considerations for or against disclosure, or deciding if one set of considerations outweighs the other. Each matter is different. The balancing of competing interests "is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation: Hurst v Wagga Wagga City Council: at [70].

1. Section 54 of the GIPA Act contains a requirement that an agency is to take steps, which are reasonably practicable, to consult with specified persons before providing access to information such as personal information. Under s. 54(5) of the GIPA Act any objection must be taken into account when balancing the public interest.

1. From the confidential statement of Ms Mattes, the solicitor acting on behalf of the respondent, I am satisfied that the complainant has been consulted and there is objection to the provision of any information that may lead to disclosure of the complainant's identity and I have taken that into account.

1. There is no evidence that the complaint was without foundation or malicious: see Camilleri v Penrith City Council [2012] NSWADT 196 at [72] and Fahey v NSW Office of Liquor, Gaming & Racing [2012] NSWADT 181. Careful distinction should be made between allegations which, while based on genuinely-held beliefs are found to be erroneous and allegations which are malicious or which are made with disregard to basic facts.

1. The applicants' motive in making the application for documents (a further factor that may be considered under s. 55(1)(b) of the GIPA Act. In Mr Bourke's initial application letter he stated he wished to ascertain details of the incidents leading to the issue of the Notice to remove the electric fences. The applicants have been provided with information as to the date and time of the complaint, the manner in which the respondent determined the location of the fences that were the subject of the complaint, the nature of the incident that led the person to complain, and the person to whom the report was made. I accept that the applicants' stated concern has already been met by the disclosure of the redacted documents, and that the release of the disputed redacted material would be unlikely to further the applicants' interests in this respect.

1. In addition, I have taken into account the broad public interest considerations identified by the OIC.

1. I have found that the disclosure could be reasonably expected to prejudice the supply of confidential information to the respondent that facilitates the effective exercise of its functions; that the disclosure is one that could be reasonably expected to result in the disclosure of information provided in confidence to the respondent; that the disclosure is one that could be reasonably expected to reveal the identity of an informant; and the disclosure is one that could be reasonably expected to reveal an individual's personal information and/or contravene an information protection principle under the Privacy and Personal Information Protection Act. I have attached significant weight to these matters

1. I attached less weight to the allegation of a risk of harm or of serious harassment or serious intimidation.

1. In weighing up the public interest considerations for and against disclosure outlined above, I find the respondent's submissions are sufficiently persuasive for it to have discharged its onus under s. 105 of the GIPA Act. I find that the public interest considerations against disclosure, on balance, outweigh the public interest considerations in favour of disclosure. Accordingly, there is an overriding public interest against disclosure to the applicants of the information redacted in the 2 documents: s. 13 of the GIPA Act.

DECISION

1. The decision under review is affirmed.

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Decision last updated: 19 December 2012