Brazel v Sydney Water

[2020] NSWCATAD 188

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Brazel v Sydney Water [2020] NSWCATAD 188

Hearing dates:

27 April 2020

Date of orders:

24 July 2020

Decision date:

24 July 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

(1)   The decision under review is set aside.

(2)   The decision is made that the withheld information is released in a redacted form as referred to in these reasons.

Catchwords:

ADMINISTRATIVE LAW – access to government information – access application – public interests in favour of disclosure – public interests against disclosure – whether overriding public interest against disclosure - whether disclosure could reasonably be expected to prejudice the supply to an agency of confidential information - whether disclosure could reasonably be expected to reveal an individual's personal information or contravene an information protection principle

Legislation Cited:

Administrative Decisions Tribunal Act 1997

Civil and Administrative Tribunal Act 2013

Government Information (Public Access) Act 2009

Privacy and Personal Information Protection Act 1998

Cases Cited:

AFW v WorkCover Authority of NSW [2013] NSWADT 51

Anderson v University of Sydney [2018] NSWCATAD 196

Australian Vaccination Network v Department of Finance and Services [2013] NSWADT 60

Cameron v Commissioner of Police, NSW Police Force [2014] NSWCATAD 13.

Collins v Department of Finance, Service and Innovation (2018) NSWCATAD 60

Commissioner of Police (NSW) v Camilleri [2012] NSWADTAP 19

Cousins v Ambulance Service (NSW) [2014] NSWCATAD 48

Director General, Department of Education & Training v Mullett & anor (GD) [2002] NSWADTAP 13

Fire Brigade Employees' Union v Fire and Rescue NSW [2014] NSWCATAD 113

Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286

Hurst v Wagga Wagga City Council [2011] NSWADT

Leech v Sydney Water Corporation [2010] NSWADT 298

McKinnon v Secretary, Department of Treasury [2006] HCA 45

Medlyn v Commissioner of Police [2020] NSWCATAD 125

Neary v State Rail Authority [[1999] NSWADT 107]

Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163

Transport for NSW v Searle [2018] NSWCATAP 93

Williams v Department Industry and Investment [2012] NSWADT 192

Woolley v Lismore City Council [2013] NSWADT 10

Zonnevylle v Department of Education and Communities [2018] NSWCATAD 139

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Tom Brazel (Applicant)
Sydney Water (Respondent)

Representation:

Counsel:
A Edwards (Respondent)

Solicitors:
Applicant (Self Represented)
Maddocks (Respondent)

File Number(s):

2019/00308972

Publication restriction:

Section 64 of the Civil and Administrative Tribunal Act 2013 applies to the material that was filed in these proceedings on a confidential basis and to those paragraphs of these reasons identified as [Not for publication]. That material is not to be published or released to the Applicant, without further order of the Tribunal.

Reasons for Decision

Introduction

1. This is an application by Mr Brazel (“the Applicant”) seeking review of a decision by Sydney Water (“the Respondent”) in relation to his application for access to information pursuant to the Government Information (Public Access) Act 2009 (“the GIPA Act”). In his access application the Applicant sought:

1. Submissions made in opposition to release of documents sought (GIPA application 9177), including but not limited to Mr Grace, Grace Solicitors, Mr Scott, Mr Matthews, Ms Corey and Ms Benn.

2. Copies of Sydney Water's Code of Conduct, Email Policy, "Bully Policy"

   2. The requested information relates to responses provided to the Respondent by third-parties over the release of documents requested by the Applicant in a previous GIPA Act application - GIPA Application 9177.

   3. Mr Scott is an employee of the Respondent. He was for a period the secretary of a strata committee with which the Applicant had a dispute. Grace Solicitors was a firm engaged by the strata committee in connection with the dispute. The information sought under GIPA Application 9177 comprised communications by Mr Scott conducted on his work email service but relating to the strata dispute involving the Applicant. By virtue of being conducted on his work email service, those emails became subject to the GIPA Act.

   4. This application relates to the Respondent’s determination to withhold information that falls within the scope of the first part of the access application. The Respondent identified six emails that were within the scope and it refused access to the emails on the basis that there was an overriding public interest against disclosure of the information.

   5. The Respondent identified three documents responsive to the second part of the access application and determined to provide access in full to two of those documents. It decided that the third document was already available to the Applicant through publication on the Respondent's website: section 59(1)(e) of the GIPA Act.

   6. The Respondent contends that the information that has been withheld (“the withheld information”) consist of confidential responses to a consultative process in which it engaged in order to exercise its statutory functions and that there is an overriding public interest against disclosure of the Information. It identified public interest considerations against disclosure under clauses 1(d), 1(e), 1(f), 1(g), 3(a), 3(b) and 3(f) of the table to section 14 of the GIPA Act.

   7. The Applicant applied for external review by the Information Commissioner under section 89 of the GIPA Act. The Information Commissioner was of the view that the Respondent's decision was not justified. The Information Commissioner recommended that the Respondent reconsider its decision and make a new decision. The Respondent determined not to make a new decision and the Applicant sought administrative review by the Tribunal.

   8. The Tribunal’s jurisdiction derives from section 100 of the GIPA Act. Section 100(1) provides that a person who is aggrieved by a reviewable decision of an agency may apply to the Tribunal for administrative review of the decision. The administrative review application is brought under the Administrative Decisions Review Act 1997 (“the ADR Act”). Under section 63 of the ADR Act the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it.

   9. The Information Commissioner has a right to appear and be heard in this matter under section 104(1) of the GIPA Act. The Information Commissioner has exercised that right and provided written submissions. The submissions provide a useful summary of the key principles of the GIPA Act and an overview of the caselaw relating to the application of the public interest test.

Issues to be Determined

10. The issue for determination is whether there is an overriding public interest against disclosure. This requires that the Tribunal identifies and balances the public interest considerations in favour of disclosure of the information and the public interest considerations against disclosure of the Information. The Tribunal must then decide what weight is to be given to the considerations and determine where the balance lies.

Applicable law

11. The Respondent has provided a copy of the withheld information to the Tribunal on a confidential basis. That material has not been disclosed to the Applicant or the public. Section 64(d) of the Civil and Administrative Tribunal Act 2013 applies to that material. Section 64(d) provides:

64 Tribunal may restrict disclosures concerning proceedings

1. If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders -

…

(d)   an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

12. Further, section 107 (1) of the GIPA Act provides:

107 Procedure for dealing with public interest considerations

1. In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure.

   13. I determined to deal with the consideration of some issues by way of confidential session. The Applicant and the public were excluded from that aspect of the hearing. I have also made orders under section 64 of the Civil and Administrative Tribunal Act 2013 for the non-publication and non-disclosure of the withheld information. Clearly, the Applicant is prejudiced by the fact that he does not have access to the confidential evidence.

   14. Pursuant to section 63(3) of the ADR Act the Tribunal may decide to:

   1. affirm the reviewable decision,

   2. vary the reviewable decision,

   3. set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or

   4. set aside the reviewable decision and remit the matter for consideration by the administrator in accordance with any directions or recommendations of the Tribunal.

   15. Section 5 of the GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.

   16. Section 9 of the GIPA Act provides that applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure.

   17. Section 12 of the GIPA Act provides that there is a general public interest in favour of the disclosure of government information that is not covered by overriding secrecy laws. The category of public interest considerations in favour of disclosure is not limited. Subsection 12(2) sets out several examples of public interest considerations in favour of disclosure.

   18. Section 13 of the GIPA Act provides that there is an "overriding public interest against disclosure" of government information for the purposes of this Act 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.

   19. Section 14(1) of the GIPA Act provides that 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. Schedule 1is not relevant to these proceedings. The public interest considerations listed in the Table to section 14 of the GIPA Act 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. As noted above, the Respondent identified public interest considerations against disclosure under clauses 1(d), 1(e), 1(f), 1(g), 3(a), 3(b) and 3(f) of the table to section 14.

   20. Section 15 of the GIPA Act sets out the principles that apply when considering whether there is an overriding public interest against disclosure. 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. The Tribunal is guided by those principles.

   21. Under section 55 of the GIPA Act the personal factors of an application can be taken into account. Section 55 provides:

55 Consideration of personal factors of application

1. In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section—

   (a)   the applicant’s identity and relationship with any other person,

   (b)   the applicant’s motives for making the access application,

   (c)   any other factors particular to the applicant.

2. The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information.

3. The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency’s consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2–5 (but not clause 1, 6 or 7) of the Table to section 14.

4. An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for.

5. An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to take reasonable steps to provide proof of his or her identity.

6. An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person.

Note. An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73.

"personal information"

22. The term ‘personal information’ is defined in clause 4 of Schedule 4 of the GIPA Act to include information or an opinion about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion.

23. Section 4(1) of the Privacy and Personal Information Protection Act 1998 (“the PPIP Act”) defines 'personal information' in broadly the same terms as in clause 4 of Schedule 4 of the GIPA Act.

24. Section 18 of the PPIP Act provides:

18 Limits on disclosure of personal information

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

25. The first question the Tribunal asks itself in relation to each public interest considerations against disclosure that the Respondent has identified is ‘could the disclosure of information reasonably be expected to have one or more of the relevant effects?’ If not then the particular item does not apply. If it does apply, then the Tribunal determines the weight it carries and conducts the balancing exercise against the weight of factors in favour of disclosure: Commissioner of Police (NSW) v Camilleri [2012] NSWADTAP 19.

"could reasonably be expected"

26. The words 'could reasonably be expected to' require the Tribunal to determine whether the result that is alleged to occur with disclosure of the information is reasonable, as distinct from irrational, absurd, or ridiculous: McKinnon v Secretary, Department of Treasury [2006] HCA 45 per Hayne J at paragraph [61].

27. In Leech v Sydney Water Corporation [2010] NSWADT 298 I stated at paragraph [25]:

1. 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 [1999] NSWADT 107]. 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.

   28. It is ultimately a question of fact to be established to the relevant standard of proof, on the balance of probabilities: Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at paragraph [42].

'prejudice'

29. Some of the identified public interest considerations require that there be some relevant “prejudice” to the agency. That term is to be given its ordinary meaning, being 'to cause detriment or disadvantage' or 'to impede or derogate from': Anderson v University of Sydney [2018] NSWCATAD 196 at paragraph [80]; Hurst v Wagga Wagga City Council [2011] NSWADT 307 at paragraph [60].

30. It must be established on the basis of evidence that the prejudice could reasonably be expected to arise: Woolley v Lismore City Council [2013] NSWADT 10 at paragraph [77].

31. There needs to be more than a mere possibility, risk or change of prejudice. It must be based on real and substantial grounds. It is not sufficient for the Applicant merely to proffer the view. It must be supported in some way: Anderson v University of Sydney at paragraph [80]; Transport for NSW v Searle [2018] NSWCATAP 93 at paragraph [68]; Australian Vaccination Network v Department of Finance and Services [2013] NSWADT 60 at paragraph [22]).

Material before the Tribunal

32. Both parties have provided detailed submissions. The Applicant relies on his own evidence. He attended the hearing and gave evidence before the Tribunal. The Respondent relies on the evidence of its Corporate Compliance Manager, People & Corporate Services - Ms Sandra Spargo. Ms Spargo attended the hearing and was cross examined. The Respondent has provided copies of the withheld information to the Tribunal on a confidential basis.

33. Mr Jeff Scott has exercised the right under section 104(3) of the GIPA Act to appear and be heard in the proceedings.

34. As noted, part of the hearing was conducted as a confidential session. The Respondent provided confidential evidence and submissions and that evidence is not available to the Applicant. I will refer to the confidential witnesses as Witness A and Witness B.

The Respondent’s case

35. The Respondent relies on open and confidential evidence. The Applicant has been given the open evidence and submissions. In addition to the confidential evidence the Respondent has provided copies of the withheld information to the Tribunal on a confidential basis.

36. [Not for publication]

Ms Sandra Spargo

37. Ms Spargo is responsible for ensuring the Respondent's compliance with the GIPA Act, through the implementation and oversight of a GIPA management framework, and oversight of the Respondent's response to access applications, including reviews as required. She provided a statement in which she set out the background to the application, the functions of the Respondent and its usual procedure in relation to processing and determining GIPA Applications. The procedure includes consultation, on a confidential basis, to determine if any third parties have any objections to the disclosure of information and the reasons for such objections. The consultation is carried out on a confidential basis to ensure that the third parties feel comfortable in providing candid responses.

37. Ms Spargo set out a number of steps that the Respondent has taken to ensure that the third parties' responses are kept confidential. These include creation of a dedicated GIPA mailbox to correspond with access applicants and third parties; limited staff access to that GIPA mailbox; storage of third party responses on a secure network drive; use of a standard email template for all third party consultation; and non-disclosure of third party identities to access applicants’ and applicants identities to third parties.

38. In relation to the present matter Ms Spargo stated that the Respondent consulted with three members of the public in relation to the access application and it received six separate responses from those three individuals. She annexed the withheld information to her statement and this material has been admitted into evidence on a confidential basis.

39. In relation to the issue of disclosure of the withheld information, she is of the view that if the Respondent was to release the Information, it could reasonably be expected to undermine stakeholders and third parties trust and confidence in providing candid responses as they may be concerned that their responses and their personal information could be disclosed with no restrictions on use or publication and it would also result in the disclosure of information provided to the Respondent in confidence.

40. Ms Spargo is also of the view that disclosure of the withheld information could reasonably be expected to undermine the integrity and effectiveness of the Respondent’s assessment and decision making process under the GIPA Act because:

1. third parties may be less likely to raise objections to the disclosure of information which will lead to decisions under the GIPA Act that are not fully informed and decisions that do not consistently balance the public interest considerations in favour and against disclosure;

2. alternatively third parties may be willing to simply object to the disclosure of information but not provide candid reasons for doing so. This will prejudice the Respondent’s ability to assess any relevant pubic interest considerations against disclosure and hamper the release of information to access applicants;

3. if a third party simply objects to the disclosure of information without providing candid reasons for doing so but later exercise their right to have the Respondent review its decision to disclose information it may cause significant delay to any decision made by the Respondent under the GIPA Act; and

4. third parties may be less likely to provide candid responses that provide insight into personal factors which may be taken into account when determining if there is an overriding public interest against disclosure. It is often through third person consultations that the Respondent is able to determine the personal factors relevant to an access application.

42. Ms Spargo also provided examples of situations where a third party would not have provided a candid response had they known that their submission could be released with no conditions placed on the use or publication of the information.

43. Ms Spargo attended the hearing and was cross-examined. Under cross-examination Ms Spargo accepted that the circumstances relating to the examples that she provided are not the same as in the Applicant’s situation. However, she stated that the similarity is that there are disputes between neighbours and that information has not been released where the release of the information could exacerbate the situation.

44. [NOT FOR PUBLICATION]

45. [NOT FOR PUBLICATION]

46. [NOT FOR PUBLICATION]

47. [NOT FOR PUBLICATION]

48. [NOT FOR PUBLICATION]

49. [NOT FOR PUBLICATION]

50. [NOT FOR PUBLICATION]

51. [NOT FOR PUBLICATION]

Witness A

52. The document that the Respondent has identified as Document 4 relates to Witness A. I have considered Document 4 and I am satisfied that it contains personal information of Witness A and that Witness A has not consented to the release of that information. In my view, the public interest 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.

53. [NOT FOR PUBLICATION]

54. Witness A understood that the Respondent was seeking a response and consulting on a confidential basis. Witness A understood that the response would be kept confidential and would not be released under the GIPA Act. If Witness A knew that the response could be disclosed a different response or no response would have been provided. In my view, the public interest 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 in relation to Document 4.

Witness B

55. The documents that the Respondent has identified as Documents 1, 2, and 5 relates to Witness B. I have considered Documents 1, 2, and 5 and I am satisfied that they contains personal information of Witness B and that Witness B has not consented to the release of that information. In my view, the public interest 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 in relation to Documents 1, 2, and 5.

56. [NOT FOR PUBLICATION]

57. [NOT FOR PUBLICATION]

58. Witness B understood that the Respondent had been seeking a response and consulting on a confidential basis. Witness B understood that the response would be kept confidential and would not be released under the GIPA Act. If Witness B knew that the response could be disclosed a different response would have been provided.

The Respondent’s submissions

59. The Respondent contends that the factors that were relied on in the decision that is under review are relevant to the matter before the Tribunal. The internal reviewer stated:

The objections raised by third parties were considered and dealt with in a transparent manner as part of the public interest test outlined in each of Sydney Water's decision letters. Each decision made was a reviewable decision under the GIPA Act.

I consider that releasing the actual third-party submissions to you would undermine the integrity and effectiveness of the GIPA process, which provides for the agency to decide on the access application based on the available information, including submissions from third-parties. The process provides the applicant with review rights, which may be exercised under the Act should the applicant feel aggrieved by the agency's decision.

In line with privacy protection principles, Sydney Water aims to protect the identity and personal information of both GIPA applicants and third-parties during the GIPA process. This 'arms-length' approach ensures that both applicant and third-parties can confidently provide their views to the agency, and these will be considered objectively and impartially in accordance with the provisions of the GIPA Act.

Further, I believe that third-parties have a reasonable expectation that their submission documents will remain confidential and protected in the process. Releasing the submissions would result in disclosing information that has been provided to Sydney Water on a confidential basis.

I also consider that releasing the submissions of third-parties is contrary to the intent of the third-party consultation process and would undermine the function of agencies in the GIPA process.

60. For the purposes of presenting its case in the Tribunal the Respondent adopted the approach of preparing evidence that responds specifically to the issues raised by the Information Commissioner’s report. In particular the Respondent’s evidence is intended to address the following parts of the Information Commissioner’s report:

Consideration 1(d) - prejudice supply to an agency of confidential information that facilitates the effective exercise of an agency's functions

…

1. For the consideration in clause 1 (d) to apply, it must be shown that the information at issue is confidential in nature. Relevantly, the decision in Commissioner of Police (NSW) v Camilleri [2012] NSWADTAP 19 explained at [33]-[34]

   … the question of whether the information supplied is "confidential information" must be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received.

   … the enquiry, so far as cl 1(d) is concerned, should focus on the point of receipt, and the administrative standards and community understandings which surrounded it.

2. In its notice of decision, the Agency said

   … I believe that third-parties have a reasonable expectation that their submission documents will remain confidential and protected in the process Releasing the submissions would result in disclosing information that has been provided to Sydney Water on a confidential basis

3. I have reviewed the information at issue and the contentions raised by the Agency The relevant information comprises emails sent by the affected third parties to the Agency in response to an email from the Agency, which provided the third parties an opportunity to indicate whether they objected to disclosure of the information that was the subject of the GIPA 9177 application. The Agency's email to the third parties also contained a notice that the email is confidential. Having considered the context in which the information was received, I am satisfied that there was an implied understanding of confidentiality at the time the information was provided by the third parties to the Agency

4. Based on the nature of the information and the context in which it was received, I am satisfied that the information was provided to the Agency in confidence

5. The Agency explained that there is a potential for the release of the information at issue to 'undermine the integrity and effectiveness of the GIPA process' and therefore potentially 'undermine the functions of agencies in the GIPA process'. However, other than a generalised statement that disclosure would cause prejudice, the Agency has not explained how or why disclosure of this information would prejudice the future supply of this information In order for an agency to rely on clause 1 (d) as a factor against disclosure, the agency must explain and demonstrate how or why the prejudice could reasonably be expected to occur as a result of the disclosure of the information.

   61. The Respondent relies on the evidence of Ms Spargo to address the concerns that were expressed by the Information Commissioner in regard to clause 1(d) of the Table to section 14 of the GIPA Act.

   62. In regard to clause 1(e) of the Table to section 14 of the GIPA Act the Respondent must establish that disclosure of the information could be reasonably expected to reveal a deliberation or consultation conducted, or an opinion, or an advice or recommendation given; and prejudice a deliberative process.

   63. The Respondent submitted that clause 1(e) is a relevant consideration in regard to documents 1, 2 and 5. It relies on the confidential evidence given by Witness B. The Respondent also relies on Ms Spargo’s evidence.

   64. The Respondent does not dispute that the deliberative process has concluded. However, in the Respondent's submission, the Tribunal must give consideration to the effect of disclosure of a concluded deliberative process on future deliberative processes. This includes a consideration of whether third-parties may be inhibited in providing frank or honest views if confidential opinions expressed during the process of consulting on GIPA Act access applications are released.

   65. The Respondent submits that where such information is made public, third-parties may in future feel disinclined to contribute freely to such deliberative processes. It relies on Ms Spargo evidence as support for the proposition that such effects are likely in this case. Ms Spargo has also provided examples of GIPA Act consultations in which there has been a pressing need to receive frank responses in circumstances where release would disinhibit those responses. The Respondent submits that the Tribunal can infer from Ms Spargo's examples, the consultations in the present case and the description of process, that release would disinhibit responses in future processes of a similar kind. It argues that this effect would be contrary to the intention of the GIPA Act and its express requirement to consult.

   66. The Respondent submits that the Tribunal can be satisfied that the requirements of clause 1(e) of the Table to section 14 of the GIPA Act are satisfied and that it is appropriate to take this public interest consideration into account.

   67. The Respondent also relies on the evidence of Ms Spargo in relation to clause 1(f) of the Table to section 14 of the GIPA Act. It submits that in order to carry out its functions in relation to the GIPA Act, it needs to ensure that third-parties can freely and frankly participate in the consultation process in connection with access applications. The Respondent needs to be able to consider and reflect internally on how best to respond to applications based on candid responses. Ms Spargo's evidence is that it exercises its consultative functions in a manner tending to enhance the candour of responses. The Respondent’s GIPA officers consult with relevant third parties on a confidential basis, usually via email, to ensure that the third parties feel comfortable in providing candid responses that outline their genuine concerns regarding the disclosure of information.

   68. The Respondent is concerned that some third-parties may be inhibited in their preparation of responses to consultations requests if such responses were routinely released. The effect of this may be that responses will not provide proper material that is needed in order for the Respondent's GIPA Act officers to discharge their functions fairly and effectively.

   69. The Respondent submits that the release of the withheld information could have a prejudicial effect on third-party consultations. This would prejudice the effective exercise by the Respondent of its functions. On this basis, the Tribunal can be satisfied that the requirements of clause 1(f) are satisfied and that it is appropriate to take this public interest consideration into account.

   70. The Respondent relies on the evidence of Witness A and Witness B in relation to clause 1(g) of the Table to section 14 of the GIPA Act. To demonstrate that Clause 1 (g) is a relevant consideration, the Respondent must show that the information is confidential; and that disclosure of the information could reasonably be expected to result in the disclosure of the information provided to the Respondent in confidence.

   71. The Respondent submits that the question of confidentiality must be assessed at the time the information was provided to the Respondent. Whether information is given in confidence is to be inferred from all the circumstances. It says that it is apparent on the face of each of the documents that they contain information provided to the Respondent in confidence. Further, the Respondent submits that the evidence of Witness A and Witness B is that they both considered their responses to be confidential.

   72. On this basis, the Respondent submits that the Tribunal can be satisfied that the requirements of clause 1(g) of the Table to section 14 of the GIPA Act are satisfied and that it is appropriate to take this public interest consideration into account.

   73. in regard to clause 1(h) the Information Commissioner’s report stated:

Consideration 1(h) - prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed)

…

1. In its notice of decision, the Agency explained that disclosure of the information at issue would undermine the integrity and effectiveness of the GIPA process, which requires agencies to decide access applications based on the available information, including submissions from third parties. The Agency essentially contends that disclosure would prejudice the conduct, effectiveness or integrity in processing applications under the GIPA Act. However, I am not satisfied that the Agency has demonstrated how the processing of applications under the GIPA Act is an audit, test, investigation or review for the purposes of clause 1(h).

2. Notwithstanding this, the Agency has not explained why the revelation of the information's purpose, conduct or results would prejudice its ability to process applications under the GIPA Act. Further, it appears that the Agency has conceded in its notice of decision that the Applicant 'already know[s] the substance of the third-party objections' Accordingly, it is unclear how or why disclosure of the information at issue would prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of the Agency

3. Accordingly, based on the information before me, I cannot be satisfied that the Agency has justified its reliance on clause 1 (h)

   74. The Respondent relies on the evidence of Ms Spargo to address the concerns that were expressed by the Information Commissioner in regard to clause 1(h).

   75. Clauses 3(a) and (b) concern the disclosure of personal information. The Respondent submits that the withheld information contains names, personal mobile phone numbers and personal email addresses. In respect of documents 1, 2 and 5 it also includes the information described in Witness B’s evidence. This is information "about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion". As such the information is personal information for the purposes of the GIPA Act.

   76. The Respondent submits that the withheld information is also personal information within the definition of that term in section 4 of the PPIP Act. As such, the information is subject to the general prohibition on disclosure contained in section 18 of the PPIP Act.

   77. On this basis, the Respondent submits that the Tribunal can be satisfied that the requirements of clauses 3(a) and (b) of the Table to section 14 of the GIPA Act are satisfied and that it is appropriate to take these public interest considerations into account.

   78. In regard to clause 3(f) the Information Commissioner’s report stated:

Consideration 3(f) - expose a person to a risk of harm or of serious harassment or serious intimidation

…

1. In its notice of decision, the Agency said

   Information you sought in your access application GIPA 9177 is already released to you. Based on the personal factors as mentioned previously, I can only conclude that by gaining access to ‘third party objections' your intention is to escalate your personal issue further. When I dealt with your access application GIPA 9177, third parties raised concern that the release of information may result in harassment or intimidation.

   Based on my knowledge of the dispute, it is evident that the matter has become antagonistic between the parties. Therefore, I give some weight to this consideration against disclosure.

2. Relevantly, the Tribunal in AEZ v Commissioner of Police (NSW) [2013] NSWADT 90 explained at [85]

   … the meaning of harm should be confined to a real and substantial detrimental effect on a person, rather than on their business interest. … A detrimental effect may be to a person's physical, psychological or emotional wellbeing.

3. The Tribunal further explained at [94] that the intimidation or harassment in clause 3(f) must be serious, whereby the disclosure of the information could 'reasonably expose a person to intimidation or harassment that is heavy, weighty or grave, and not trifling or transient'.

4. Relevantly, in the decision of Jenkinson v Department of Education and Communities (NSW) [2013] NSWADT 280, the Tribunal found that potential discomfort and tension arising from disclosure did not amount to objective evidence that disclosure could reasonably be expected to expose a person to the very high level of risk of harm, harassment or intimidation anticipated by clause 3(f).

1. Further, in the decision of Australian Vaccination Network v Department of Finance and Services [2013] NSWADT 60 at [62], the Tribunal found that clause 3(f) did not apply in circumstances where disclosure of the information would not expose persons associated with the applicant to any greater risk than already in existence.

2. I have reviewed the information at issue and the Agency's contentions Other than its reference to the third parties' concerns that release of the information may result in harassment or intimidation, the Agency has not provided any further evidence to establish that a real risk of harm, serious harassment or serious intimidation would result if the information at issue were disclosed.

3. On this basis, and in consideration of the relevant case law, I cannot be satisfied that the Agency has justified its reliance on clause 3(f).

   79. The Respondent relies on the evidence of its confidential witnesses to address the concerns that were expressed by the Information Commissioner in regard to clause 3(f) and in support of its contention that if the information is made public there is a risk of serious harassment to those to whom the information relates. It submits that clause 3(f) is applicable in relation to the information in documents 1, 2 and 5.

   80. The Respondents submits that the Tribunal can be satisfied that clause 3(f) is applicable and that is appropriate to take this public interest consideration into account.

The Applicant’s evidence and submissions

81. The Applicant has provided a statement and written submissions. He attended the hearing and gave evidence. He also provided a large volume of material in support of his application. I have considered that information however much of it is not relevant to the issues to be determined in this matter. It relates to other issues which are not the subject of the access application and are therefore outside the scope of this matter.

82. The Applicant noted that he has been placed in a position of disadvantage because the Respondent is relying on confidential material that he has not been able to test. He contends he has not been provided the opportunity to respond to the accusations levelled against him and that this is unfair and oppressive. He submitted that there has been no proof of misconduct by him, only untested allegations. He contends that those responsible for submitting the withheld information have a history of deceiving and/or misleading the Tribunal, Fair Trading and the Respondent and he cautions against accepting their evidence. Much of the material that he provided is in support of that submission.

83. He identified a number of public interest factors in favour of disclosure. He submits that disclosure of the information could reasonably be expected to:

1. promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance;

2. inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public;

3. protect persons, their reputations, their legitimate interests and property, rather than to conceal crime or limit a persons' legal rights; and

4. reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.

84. He submitted that there is no overriding public interest against disclosure of the withheld information and therefore it should be released.

85. He contends that the submissions were not private or confidential as claimed. Rather, he says that the withheld documents were created by agents and owners of Strata Plan 961. As such the documents are Strata correspondence which all owners have the right to access the information.

86. The Applicant submits that the withheld information was solicited by the Respondent and that the documents contain personal information relating to him. He says that the Respondent is subject to the PPIP Act and that pursuant to sections 14, 15 and 16 of the PPIP Act it must provide access to private information held on an individual, make corrections where there are errors and also check it's accuracy before use.

87. He says that the information is commonly known and is not confidential. He submits that any confidentiality relating to the Respondent’s procedures has been forfeited by engaging in correspondence with third parties. He says that any confidential aspect of the process has been lost because it has been revealed to others.

88. He argues that a third party has no right to confidentiality under the GIPA Act. Any confidentiality granted must be granted subject to the information being confidential business information, personal information and/or research. These documents do not fit the criteria

89. The Applicant contends that lies have been told to the Tribunal and to the Respondent and he submits that transparency is necessary to ensure accountability. He argues that the Respondent has not been given accurate information because those supplying the information think it is confidential. He says that it is necessary to release the information to expose criminal and corrupt conduct.

90. The Applicant refutes the suggestion of any risk of harassment. He points to the fact that he has a clear police record; he is a teacher with a working with children clearance and he has never been arrested or charged.

91. The Applicant referred to correspondence between himself and Mr Scott in which Mr Scott alleged that the Applicant had made false allegations about Mr Scott. Mr Scott had asked the Applicant to stop harassing him but the Applicant asserted that Mr Scott had refused to substantiate his allegations. The Applicant says that all he has done is ask for documents that Mr Scott still has and which he has not released. He concedes that there have been robust discussions but denies that any threats have been made. He submits that there is no evidence of threats or serious harassment and that clause 3(f) of the table to section 14 is not applicable as there is no greater risk from the release of the information than already exists.

92. The Applicant submits that the Respondent’s confidential witnesses would either be part of the strata executive of Strata Plan 961 or persons linked to the executive. He gave a detailed background to his dealings with the strata executive. He also referred to Tribunal matters involving Strata Plan 961 and asserted that the strata executive had mislead the Tribunal and misrepresented action taken by the strata executive. He raised issues relating to the credibility of the Respondent’s confidential witnesses if they are part of the strata executive.

93. In regard to the balancing exercise that must be undertaken to weigh considerations in favour and against release of the information, the Applicant submits that the Respondent has failed to take account of several relevant considerations. He says that the Respondent has not considered the positive aspects of release, namely greater confidence in the GIPA process, accurate information and higher quality decisions. He says that the Respondent has demonstrated serious and sustained lapses of judgement and procedural errors. He says that its operations and procedures have failed and that it is difficult to prejudice a system which is already failing. He submits that transparency and accountability will provide impetus to work on their failings.

94. He notes that personal factors of the application may be taken into account as considerations in favour of disclosure. He says that he has an enforceable right to access strata correspondence and that the persons providing the submissions were under obligation to provide those documents. The Applicant submits that the personal factors of the application provide support for the proposition that there are strong public interest considerations for disclosure in this matter.

95. In summary he submits that the Respondent has failed to demonstrate that a release of the documents could have the impact that it implies.

Discussion

96. As noted, there is a general presumption in favour of release of Government information. In my view, disclosure of the withheld information could also reasonably be expected to:

1. promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance; and

2. inform the public about the operations of the agency and, in particular, its policies and practices for dealing with members of the public.

97. Also as noted, the Respondent relies on a number of the public interest considerations against disclosure set out in the table to section 14 of the GIPA Act. It has identified public interest considerations against disclosure under clauses 1(d), 1(e), 1(f), 1(g), 3(a), 3(b) and 3(f) of the table to section 14 of the GIPA Act as relevant. It submits that the release of the Information could be reasonably expected to:

1. prejudice the supply to Sydney Water of confidential information that facilitates the effective exercise of its functions (clause 1(d));

2. reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of Sydney Water (clause 1(e));

3. prejudice the effective exercise of Sydney Water's functions (clause 1(f));

4. result in the disclosure of information provided to Sydney Water in confidence (clause 1(g));

5. reveal an individual's personal information (clause 3(a));

6. contravene an information protection principle under the PPIP Act (clause 3(b)); and

7. expose a person to a risk of serious harassment (clause 3(f)).

98. Each of those considerations must be weighed against the considerations in favour of release.

Clause 1(d)

99. Clause 1(d) of the table to section 14 of the GIPA Act provides that there is a public interest consideration against disclosure if 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. I accept that the effective performance of an agency’s functions depends to a significant extent on the cooperation of others to allow it to obtain access to the best information on which to make findings and take action. Confidential communications can assist this process.

100. In determining the question of whether the information in issue is confidential a number of principles apply: see Williams v Department Industry and Investment [2012] NSWADT 192:

1. The confidential quality of communications is a question of fact;

2. To establish its confidential quality, information must have been supplied under an express or implied pledge of confidentiality;

3. The confidential quality of the information may be inferred from the nature of the relationship between the informer and person informed;

4. The confidential quality of the information must be determined in the light of all of the circumstances of the particular case.

101. The Tribunal in Collins v Department of Finance, Service and Innovation (2018) NSWCATAD 60 at paragraph [61] cited the three steps the Tribunal should consider in determining the application of clause 1(d). The first being that the information was obtained in confidence, the second the disclosure of information could reasonably be expected to prejudice the supply of information to the agency in the future and, third, that the information facilitates the effective exercise of the agency’s function.

102. In regard to determining whether information was obtained in confidence the Appeal Panel in Commissioner of Police & New South Wales Police Force v Camilleri said that the issue is to be examined, primarily at least, by reference to the agency’s evidence as to the conditions under which it conducts a service within which the information was received. The inquiry ‘should focus on the point of receipt, and the administrative standards and community understandings which surrounded it’.

103. I have reviewed each of the withheld documents. I have also considered the evidence that I have been given on a confidential basis. On the basis of the material that is before me I am satisfied that the withheld information was obtained in confidence.

104. The second limb of clause 1(d) relates to prejudice. As noted above, the Tribunal in Hurst v Wagga Wagga City Council found that ‘Prejudice under the GIPA Act has been held to have its ordinary meaning, that is, ‘to cause detriment or disadvantage’ or ‘to impede or to derogate from’. I agree with that position.

105. Clause 1(d) is concerned with the future supply of confidential information. In determining whether disclosure would prejudice the supply of information, the test is not whether a particular person would, in future, refuse to supply identified information but whether information of the kind in question facilitates the exercise of the Respondent’s functions, and, where the disclosure of such information could reasonably be expected to prejudice the supply of such information: see Flack v Commissioner of Police, New South Wales Police at paragraph [52]. Prejudice is to be determined at a broader operational level and whether disclosure of the type of information would impair the general ability of the agency to obtain that type of information in the future: Commissioner of Police & New South Wales Police Force v Camilleri.

106. The Respondent is not necessarily required to provide direct evidence from the providers of relevant information in order to satisfy the Tribunal that clause 1(d) is engaged; see Transport for New South Wales v Searle at paragraphs [61] - [65]. The following was said about matters the Tribunal may have regard to in examining the application of clause 1(d): ‘The considered and understandable confidentiality to the process, the rationale for such confidentiality and the natural implication for future supply if such confidentiality was to be undermined’.

107. In Director General, Department of Education & Training v Mullett & anor (GD) [2002] NSWADTAP 13, at paragraph [58], the Appeal Panel of the former Administrative Decision Tribunal made the following remarks in regard to the exemption in clause 13(b)(ii) of the former Freedom of Information Act 1989 (NSW) (repealed):

1. ... [requires] the Tribunal to engage in a relatively abstract analysis. It must ask whether material of the kind sought to be protected on the present occasion would, if released, prejudice the supply of similar material to government in the future, as a matter of reasonable expectation. That requires the Tribunal to characterise the nature of the material sought to be protected on the present occasion; to identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; the extent to which guarantees of confidentiality may be necessary. We agree with the dicta of Young CJ in Ryder v Booth [1985] VR 870 ...:

   `The question then is, would disclosure of the information sought impair (i.e. damage) the ability of the [agency] to obtain similar information in future. ... It may be noted that it is the ability of the [agency] that must be impaired. The paragraph is not concerned with the question whether the particular doctor whose report is disclosed will give similar information in future but with whether the agency will be able to obtain such information. ...'

   108. These remarks equally apply to the public interest consideration against disclosure set out in clause 1(d) of the Table to section 14 of the GIPA Act: Medlyn v Commissioner of Police [2020] NSWCATAD 125 at paragraph [89].

   109. The test for clause 1(d) is whether the agency will be able to obtain such confidential information in the future if the information in question is disclosed. This is to be determined at a broad operational level.

   110. In the circumstances of this matter I am satisfied that a third party responding to a request for information in the future may be reluctant to be as forthcoming as they might otherwise be if they know that their response might be released to the public. This is a prejudice to the supply of information to the agency in the future.

   111. The third limb in considering the application of clause 1(d) involves an evaluation of the effect of disclosure on the agency’s functions.

   112. As noted above, the Respondent has provided evidence in regard to the agency’s usual approach to third party consultation. The likelihood of a third party responding to a request for information will depend on the circumstances of the matter. For example, where an individual has been the subject of allegations it is more likely that they will want to express an opinion than if they are not personally affected by the circumstances. However, the extent to which the third party responds may be affected by their belief in regard to the likelihood that their response will be publicly released.

   113. I accept that third party consultation is an essential part of the GIPA process. If third-parties were inhibited in providing frank or honest views and disinclined to contribute freely to such deliberative processes it would impact on the agency’s ability to perform its GIPA Act functions effectively. In my view, this consideration against release of the withheld information should be given reasonable weight.

   114. However, if it is possible to remove the name and identifying details of a third party who is responding to a request for information, the overriding public interest against the release of the remainder of the document may not arise. In my view, this is possible in regard to much of the withheld information.

Document 1

115. [NOT FOR PUBLICATION]

Document 2

116. [NOT FOR PUBLICATION]

Document 3

117. [NOT FOR PUBLICATION]

Document 4

118. [NOT FOR PUBLICATION]

Document 5

119. [NOT FOR PUBLICATION]

Document 6

120. [NOT FOR PUBLICATION]

Clause 1(e)

121. Clause 1(e) of the table to section 14 of the GIPA Act provides that there is a public interest consideration against disclosure if disclosure of the information could reasonably be expected to reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency.

122. A relevant connection must be established between the deliberation as contained in the withheld information and the Respondent’s ‘deliberative processes’: see Fire Brigade Employees' Union v Fire and Rescue NSW [2014] NSWCATAD 113 at paragraph [57] – [58].

123. Agencies are required to consider GIPA access applications and to consult third parties where relevant. Third parties may feel inhibited in providing frank and honest views regarding such issues, or may decline to participate in the process altogether. Individuals may also feel reluctant to commit their views in writing, and may only feel comfortable participating in deliberations orally: Cameron v Commissioner of Police, NSW Police Force [2014] NSWCATAD 13.

124. Third parties should be able freely to do in written form what they could otherwise do orally, in circumstances where any oral communication would remain confidential. I accept that if written communications were to be released for public scrutiny, some third parties may feel reluctant to make a written record in the future. This would be to the detriment of the deliberative process processes.

125. In my view these are considerations that should be given reasonable weight. However, if the redactions that I have referred to above are made, it is my view that the Clause 1(e) issues will have been addressed.

Clause 1(f)

126. Clause 1(f) of the table to section 14 of the GIPA Act provides that there is a public interest consideration against disclosure if disclosure of the information could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions.

127. Clause 1(f) relates solely to the reasonably expectation of prejudice to the effective exercise of the agency’s functions concerning the information sought to be disclosed. The clause requires an agency to establish that the release would prejudice the effective exercise of its functions. This provision has been considered in a number of Tribunal decisions. As with Clause 1(d) above, this provision has often been considered in relation to an agency’s assertion as to the importance of obtaining confidential information in order to effectively exercise its functions. Clause 1(f) does not require that the information in issue had been provided in confidence. Nevertheless, the agency asserts that the disclosure of the information could reasonably be expected to prejudice the effective exercise of its functions.

126. In Cousins v Ambulance Service (NSW) [2014] NSWCATAD 48 the Tribunal was not satisfied that recorded communications between the Service's employees were confidential for the purposes of Clause 1(d) but it accepted that Clause 1(f) applied as disclosure of these communications in the form sought by the applicant could reasonably be expected to prejudice the exercise of the Service's functions.

127. In the present matter I am satisfied that disclosure of the withheld information could reasonably be expected to prejudice the effective exercise by the Respondent of its functions for the reasons discussed in relation to Clause 1(d). In my view these are considerations that should be given reasonable weight. However, if the redactions that I have referred to above are made, it is my view that the Clause 1(f) issues will have been addressed.

Clause 1(g)

130. Clause 1(g) of the table to section 14 of the GIPA Act provides that there is a public interest consideration against disclosure if 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

131. It is ultimately a question of fact as to whether information was obtained in confidence: AFW v WorkCover Authority of NSW [2013] NSWADT 51. As noted above. I am satisfied that the withheld information was obtained in confidence. However, the possibility of an action for breach of confidence would be restricted by section 113 of the GIPA Act. In my view this consideration should be given reasonable weight.

132. In my view, if the redactions that I have referred to above are made, the Clause 1(g) issues will have been addressed.

Clause 3(a)

133. Clause 3(a) of the table to section 14 of the GIPA Act provides that there is a public interest consideration against disclosure if disclosure of the information could reasonably be expected to reveal an individual’s personal information

134. Issues under clause 3(a) tend to be determined on the particular facts of the case. As I have noted above, I am satisfied that the withheld information contains personal information. However, in my view, if the redactions that I have referred to above are made, the Clause 3(a) issues will have been addressed because all personal information will have been removed.

Clause 3(b)

135. Clause 3(b) of the table to section 14 of the GIPA Act provides that there is a public interest consideration against disclosure if disclosure of the information could reasonably be expected to contravene an information protection principle under the PPIP Act or a Health Privacy Principle under the HRIP Act. In my view, if the redactions that I have referred to above are made, the Clause 3(b) issues will have been addressed because all personal information will have been removed.

Clause 3(f)

136. Clause 3(f) of the table to section 14 of the GIPA Act provides that there is a public interest consideration against disclosure if disclosure of the information could reasonably be expected to expose a person to a risk of harm or of serious harassment or serious intimidation.

137. In Zonnevylle v Department of Education and Communities [2018] NSWCATAD 139 the Tribunal noted at paragraph [49] that:

The issue for determination is whether release of the redacted names of departmental officers would expose them to a ‘risk of harm or of serious harassment or serious intimidation’. It is not necessary to decide whether such harm is likely. It is sufficient that there is a risk of it. In circumstances where, as here, accusatory correspondence continues to be sent on a regular basis, which is well capable of causing upset to the officers who receive it in the course of their duties, I am satisfied that there is such a risk.

138. It is necessary to decide whether the release of the withheld information would have the effect of exposing a person to a risk of harm or of serious harassment or serious intimidation. In my view this is unlikely because there is no greater risk from the release of the withheld information than already exists. If it is accepted that an individual has already been the subject of harassment or intimidation, the release of this information would be unlikely to alter that situation. This is particularly the case if the redactions that I have referred to above are made.

139. I do not consider that Clause 3(f) of the table to section 14 of the GIPA Act is applicable in the circumstances of this matter.

Conclusion

140. I am satisfied that it is possible to redact parts of each of the withheld documents in a way that would remove the identity of the authors. This would involve redacting the names of the authors and email address where they appear in the document. In some of the documents other personal information can also be removed. If this is done, I am satisfied that the weight to be given to each of the considerations against disclosure is either significantly reduced or removed.

141. On balance, those considerations in favour of disclosure of the remaining information outweigh the public interest considerations against its release.

142. In my view the correct and preferable decision is to release the withheld documents in the redacted form as set out in these reasons.

Orders

1. The decision under review is set aside.

2. The decision is made that the withheld information is released in a redacted form as referred to in these reasons.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

03 August 2020 - Paragraph 54 and 58 amendment re non publication orders.

Decision last updated: 03 August 2020