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Brazel v Sydney Water

Brazel v Sydney Water

Case [2020] NSWCATAD 188 24 July 2020

Jurisdiction

Access to Information

Redaction

Public Interest

Administrative Law

Type to search within this case.

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brazel v Sydney Water

Details

AGLC: Brazel v Sydney Water [2020] NSWCATAD 188
Case: [2020] NSWCATAD 188
Decision Date: 24 July 2020

CaseChat Overview and Summary

The case of Brazel v Sydney Water involved the applicant seeking access to certain documents held by Sydney Water under the Government Information (Public Access) Act 2009 (GIPA Act). The applicant, Mr Brazel, sought information that he believed was pertinent to his professional role. Sydney Water, however, refused to disclose the information, citing potential public interests against disclosure. The dispute eventually reached the Land and Environment Court of New South Wales, which was tasked with reviewing Sydney Water's decision and determining whether the information should be released.

The central legal issue before the court was whether the public interests in favour of disclosure outweighed the public interests against disclosure. Additionally, the court had to consider if the disclosure could reasonably be expected to prejudice the supply to an agency of confidential information, or if it could reveal an individual's personal information in a manner that contravenes an information protection principle. The applicant argued that the public interest in transparency and accountability necessitated the disclosure, while Sydney Water contended that releasing the information could harm operational processes and potentially infringe on privacy rights.

In its decision, the court examined the public interest factors outlined in the GIPA Act. It found that the public interest in favour of disclosure, particularly in terms of promoting transparency and public participation in governmental processes, was significant. The court balanced this against the potential harm to operational processes and privacy considerations, but concluded that the public interest in disclosure was stronger. The court determined that the information could be released in a redacted form to mitigate privacy concerns while still allowing for meaningful public access. Consequently, the decision of Sydney Water to withhold the information was set aside, and the court ordered that the information be released in a form that had been redacted to protect sensitive details.

Orders

Orders of the court

(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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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Citations

Brazel v Sydney Water [2020] NSWCATAD 188

Most Recent Citation

Brazel v Sydney Water (No 2) [2021] NSWCATAD 370

Cases Citing This Decision

Brazel v Sydney Water Corporation [2025] NSWCATAD 15
Citation 1 (Para 1)

…Brazel v Sydney Water [2020] NSWCATAD 188, which was determined by Senior Member Montgomery;…
Brazel v Sydney Water (No 2) [2021] NSWCATAD 370
Citation 2 (Para 4)

…In Brazel v Sydney Water [2020] NSWCATAD 188 Senior Member Montgomery set aside the decision under review and ordered that the information be released in a redacted form. The Tribunal concluded that the documents could be redacted to remove the names, email addresses and other personal information of the third parties…

See all citing cases →

Cases Cited

Medlyn v Commissioner of Police [2020] NSWCATAD 125
Citation 1 (Para 1)

…e 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]. The test for clause 1(d) is whether the agency will be able to obtain such confidential information in the future if the informati…
Anderson v University of Sydney [2018] NSWCATAD 196
Citation 2 (Para 29)

…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].…
Zonnevylle v Department of Education and Communities [2018] NSWCATAD 139
Citation 3 (Para 137)

…In Zonnevylle v Department of Education and Communities [2018] NSWCATAD 139 the Tribunal noted at paragraph [49] that:…
Fire Brigade Employees' Union v Fire and Rescue (NSW) [2014] NSWCATAD 113
Citation 4 (Para 122)

…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].…
Cousins v Ambulance Service (NSW) [2014] NSWCATAD 48
Citation 5 (Para 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…
Cameron v Commissioner of Police (NSW) [2014] NSWCATAD 13
Citation 6 (Para 123)

…ommit their views in writing, and may only feel comfortable participating in deliberations orally: Cameron v Commissioner of Police, NSW Police Force [2014] NSWCATAD 13.…
Jenkinson v Department of Education and Communities [2013] NSWADT 280
Citation 7 (Para 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 r…
AEZ v Commissioner of Police, NSW Police Force [2013] NSWADT 90
Citation 8 (Para 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 emotiona…
Australian Vaccination Network v Department of Finance & Services [2013] NSWADT 60
Citation 9 (Para 31)

…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]).…
AFW v WorkCover Authority of NSW [2013] NSWADT 51
Citation 10 (Para 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…
Woolley v Lismore City Council [2013] NSWADT 10
Citation 11 (Para 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].…
Williams v Department Industry and Investment [2012] NSWADT 192
Citation 12 (Para 100)

…ning 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:…
Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19
Citation 13 (Para 25)

…ht 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.…
Hurst v Wagga Wagga City Council [2011] NSWADT 307
Citation 14 (Para 29)

…vantage' 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].…
Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286
Citation 15 (Para 1)

…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].…
Leech v Sydney Water Corporation [2010] NSWADT 298
Citation 16 (Para 27)

…In Leech v Sydney Water Corporation [2010] NSWADT 298 I stated at paragraph [25]:…
McKinnon v Secretary, Department of Treasury [2006] HCA 45
Citation 17 (Para 26)

…ur 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].…
Director General, Department of Education & Training v Mullett & anor (GD) [2002] NSWADTAP 13
Citation 18 (Para 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):…
Neary v State Rail Authority [1999] NSWADT 107
Citation 19 (Para 1)

…LR 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 substan…
Searle Australia Pty Ltd v Public Interest Advocacy Centre [1992] FCA 317
Citation 20 (Para 1)

…m ‘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…

Legislation Cited

Administrative Decisions Review Act 1997 (NSW)
1 mention (from Para 2)
Administrative Decisions Tribunal Act 1997 (NSW)
1 mention
Civil and Administrative Tribunal Act 2013 (NSW)
1 mention (from Para 11)
Freedom of Information Act 1989 (repealed) (ACT)
1 mention (from Para 107)
Government Information (Public Access) Act 2009 (NSW)
1 mention (from Para 1)
Privacy and Personal Information Protection Act 1998 (NSW)
1 mention (from Para 23)

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.