Byrne v Cowra Shire Council
[2013] NSWADT 26
•04 February 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Byrne v Cowra Shire Council [2013] NSWADT 26 Hearing dates: On the papers Decision date: 04 February 2013 Jurisdiction: General Division Before: P H Molony, Judicial Member Decision: The Tribunal varies the decision of the Agency so as to release the report and attachments subject to the deletion of:
(a) paragraph 137 of the report; and
(b) the registration numbers of vehicles belonging to third parties, and the names and addresses of third parties in documents 114D and 115D.
Catchwords: Government Information Public Access - personal information Legislation Cited: Administrative Decisions Tribunal Act 1997
Government Information (Public Access) Act 2009
Privacy and Personal Information Protection Act 1998Cases Cited: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 Category: Principal judgment Parties: John Byrne (Applicant)
Cowra Shire Council (Respondent)Representation: J Byrne (Applicant in person)
Bradley Allen Love (Respondent)
File Number(s): 123053
reasons for decision
Introduction
On 28 October 2010 Mr Byrne's solicitors sought access form Cowra Shire Council (the Agency) under the Government Information (Public Access) Act 2009 (the GIPA Act) to "a copy of the Report from Williams Love Nicol (sic) relating to matters of dispute resolution between our client, Mr John Byrne, Byrne Demolitions and Council" (the report). The dispute concerned Mr Byrne's complaints about the behaviour of certain council officers and contractors.
On 17 December 2010 the Agency refused to give Mr Byrne access to the report. He subsequently sought a review by the Information Commissioner.
On 7 February 2012 the Information Commissioner issued its report in which it recommended that the Agency make a new decision by way of internal review in the light of the guidance contained in the Information Commissioner's report. The Agency was asked to advise Mr Byrne of its intended actions by 17 February 2012.
On 6 March 2012 Mr Byrne filed an application to review the original decision of the Agency in this Tribunal, the Agency having not issued a further decision. At a planning meeting held on 3 April 2012 the Agency advised that it intended to issues a fresh decision.
The Agency subsequently on 19 April 2012 issued a further decision in which it determined to allow Mr Byrne to "inspect the report in full at the Cowra Shire Council officers and to take notes, but not to take copies under a s73(2) of the GIPA Act." The decision maker was the Agency's General Manager. He wrote that he had determined that "there is no overriding public interest against disclosure of the information sought." Because third parties were entitled to seek a review of the decision to allow Mr Byrne to access the report, he determined, subject to any review requests, that the report would not be available to Mr Byrne until 15 June 2012.
This was not acceptable to Mr Byrne who wished to have full and unrestricted access. Additionally, third parties objected to the release of personal information to Mr Byrne.
At a planing meeting held on 26 June 2012 the Tribunal directed the Agency to file and serve a redacted copy of the report, and to identify the basis on which each redaction had been made.
On 2 July 2012 the Respondent filed and served a redacted version of the Report which omitted the following parts:
(a) the amount quoted by Hooter's Bobcat & Tipper Hire for the Redfern Street demolition job in Paragraph 102 of the Report;
(b) Paragraph 137, which is personal information about Michael Ryan, a Council contractor, not relevant to the complaint by Mr Byrne;
(c) The names of staff performing positions below the level of Director in Attachment 2 to the Report;
(d) The contract price in Attachment 13A to the Report;
(e) The number plate details and names and addresses of the third party recipients of traffic infringement notices in Attachments 14D and 15D to the Report; and
(f) The amount quoted by Hooters Bobcat & Tipper Hire for the Redfern Street demolition job in Attachments l4H and 14I to the Report.
The release of the report with attachments in redacted form did not satisfy Mr Byrne. Consequently, the Tribunal, at a planning meeting held on 21 August 2012 with the agreement of the parties, made directions for the filing of submissions by both parties, the time for which closed on 2 October 2012.
The Agency has filed submissions in accordance with those directions, and had provided the Tribunal with an unredacted copy of the report on a confidential basis. Otherwise, the Agency had not relied on any other evidence or material. Mr Byrne has not filed any submissions or other material.
The Agency's submissions revealed that of the redacted items in paragraph 8 above, items (a), (c), (d) and (f) were no longer pressed by the Agency. Copies had been made available to Mr Byrne. That left only items (b) and (e) for determination by the Tribunal.
The Government Information (Public Access) Act 2009
The GIPA Act commenced operation on 1 July 2010. The objects of the Act are set out in (s 3(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.
"Government information' is given a wide meaning (s 4) being 'information contained in a record held by an agency.' 'Agency' is also defined in s 4. It includes "(e) a local authority." Local authority is in turn defined is defined in Clause 1 of Schedule 4 to mean, "a council or county council within the meaning of the Local Government Act 1993." The Agency is such a council and is therefore an agency to which the GIPA Act applies.
The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5). Applicants for access to government information have a legally enforceable right to be provided with access to that information, unless there is an overriding public interest against disclosure (s 9). The GIPA Act overrides other statutory provisions that prohibit disclosure apart from the 'overriding secrecy laws' that are set out in Schedule 1. In the case of overriding secrecy laws it is conclusively presumed that there is an overriding public interest against disclosure (s 11 and s 14).
With respect to other government information, the Act establishes a principle that there is pubic interest in favour of disclosure (s 12(1)). Section 12(2) says that public interest considerations in favour of disclosure are not limited. It provides -
Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.
Note. The following are examples of public interest considerations in favour of disclosure of information:
(a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.
(b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.
(c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.
(d) The information is personal information of the person to whom it is to be disclosed.
(e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct
There will only be an overriding public interest against disclosure when the public interest test in s 13 is satisfied. It provides -
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.
The public interest considerations against disclosure are limited to those set out in the Table to s 14. Section 14(2) provides that -
The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.
The Information Commissioner may issue guidelines about public interest considerations against disclosure to assist agencies, but, may not add to the list of considerations (s 14(3)). The Information Commissioner has issued a guideline 4 entitled Personal information as a public interest consideration under GIPA.
The public interest considerations against disclosure relied on by the agency in this case are to be found under the categories of "Individual rights, judicial processes and natural justice" in the Table to s 14. They are -
3 Individual rights, judicial processes and natural justice
There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects:
(a) reveal an individual's personal information,
(b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002,
...
Personal information is defined in clause 4 of Schedule 4 -
(1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.
(2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics.
(3) Personal information does not include any of the following:
(a) information about an individual who has been dead for more than 30 years,
(b) information about an individual (comprising the individual's name and non-personal contact details) that reveals nothing more than the fact that the person was engaged in the exercise of public functions,
(c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause.
Reveal is defined in Clause 1 of Schedule 4 -
reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).
Before deciding an access application which, among other things, seeks access to information that includes personal information about a person, s 54 requires that the agency take such steps as are reasonable practicable to consult with that person before providing access. Any objection to disclosure must be taken into account in the course of determining whether there is an overriding public interest against disclosure of government information: s 54(5).
An access application is to be determined in accordance with s 58 -
(1) An agency decides an access application for government information by:
(a) deciding to provide access to the information, or
(b) deciding that the information is not held by the agency, or
(c) deciding that the information is already available to the applicant (see section 59), or
(d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or
(e) deciding to refuse to deal with the application (see section 60), or
(f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact.
Note. These decisions are reviewable under Part 5.
(2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for.
(3) If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired.
In exercising functions under the Act s 3(2) instructs that -
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.
An agency can take the personal circumstances of an applicant into account when determining an access application in accordance with s 55. It provides -
(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 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.
Section 78 is concerned with the form of access. It provides -
(1) Access to government information in response to an access application may be provided in any of the following ways:
(a) by providing a reasonable opportunity to inspect a record containing the information,
(b) by providing a copy of a record containing the information,
(c) by providing access to a record containing the information, together with such facilities as may be necessary to enable the information to be read, viewed or listened to (as appropriate to the kind of record concerned),
(d) by providing a written transcript of the information in the case of information recorded in an audio record or recorded in shorthand or other encoded format.
(2) The agency must provide access in the way requested by the applicant unless:
(a) to do so would interfere unreasonably with the operations of the agency or would result in the agency incurring unreasonable additional costs, or
(b) to do so would be detrimental to the proper preservation of the record, or
(c) to do so would involve an infringement of copyright, or
(d) there is an overriding public interest against disclosure of the information in the way requested by the applicant.
Note. Decisions about how to provide access are reviewable under Part 5.
Section 80 sets out a series of decision that are reviewable decisions under the Act. It provides -
The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part:
(a) a decision that an application is not a valid access application,
(b) a decision to transfer an access application to another agency, as an agency-initiated transfer,
(c) a decision to refuse to deal with an access application (including such a decision that is deemed to have been made),
(d) a decision to provide access or to refuse to provide access to information in response to an access application,
(e) a decision that government information is not held by the agency,
(f) a decision that information applied for is already available to the applicant,
(g) a decision to refuse to confirm or deny that information is held by the agency,
(h) a decision to defer the provision of access to information in response to an access application,
(i) a decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant),
(j) a decision to impose a processing charge or to require an advance deposit,
(k) a decision to refuse a reduction in a processing charge,
(l) a decision to refuse to deal further with an access application because an applicant has failed to pay an advance deposit within the time required for payment,
(m) a decision to include information in a disclosure log despite an objection by the access applicant (or a decision that the access applicant was not entitled to object).
Persons aggrieved by reviewable decisions have a number of options available to press their access applications. First, they may ask the agency to conduct an internal review under s 82 within 20 days of the original decision (s 83). The internal review is to be completed within 15 working days of receipt (s 86), failing which the agency is deemed to have made the original decision again (s 86(5)). A decision made on internal review is itself a reviewable decision, although it is not possible to seek an internal review of an internal review (s 88).
Secondly, an access applicant who is aggrieved by a reviewable decision may seek review of the decision by the Information Commissioner under s 89. Where the person aggrieved is not the access applicant he or she must first seek an internal review (s 89(2)). A review by the Information Commissioner must be sought within 8 weeks of notice of decision being given to the access applicant. The Information Commissioner may then make a recommendation to the agency (s 92) including a recommendation that the agency reconsider the matter and make a new decision (s 93(1)), and a recommendation that there is not an overriding public interest against disclosure (s 94). Reconsideration following a recommendation is by way of internal review, where there has been no previous internal review, or by means of new decision where there had been a previous internal review (s 93).
Thirdly a person aggrieved may seek a review by the Tribunal (s 100). When read with s 38 of the Administrative Decisions Tribunal Act 1997 this provision confers jurisdiction on the Tribunal to review reviewable decisions under the GIPA Act. Such applications are to be made within 8 weeks of the decision (s 101(1)) or within 4 weeks of the completion of a review by the Information Commissioner (s 101(2)). The Tribunal has power to extend the time for the making of a review application under s 101(3) when it is of the opinion that the person making the application, "has provided a reasonable excuse for the delay in making the application."
Once a decision is subject to review before the Tribunal it cannot be the subject of a review by the Information Commissioner (s 98).
In any review of a reviewable decision s 105 places the onus of justifying the decision on the agency concerned. It provides -
(1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section.
(2) If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review.
(3) If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review.
The Tribunal's function on review under s 63 of the Administrative Decisions Tribunal Act 1997 is to make the correct and preferable decisions having regard to the material before it before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drakev Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.
The Information Commissioner and any person who could be aggrieved by a decision on review have a right to appear and be heard in review proceedings (s 104). In this case the Information Commissioner has not sought to exercise that right.
If the decision being reviewed by the Tribunal is one deemed to have been made, because the access application or internal review was not decided in time, the Tribunal may allow the agency further time in which to make the decision, which order may be subject to conditions (s108). The subsequent decision may then, at the request of the applicant, be the subject to the Tribunal's review (s108(3)).
Section 107 sets out the procedure to be followed by the Tribunal in dealing with public interest considerations. It provides -
(1) In determining an application for ADT review, the ADT 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.
(2) On an ADT review, the ADT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of the ADT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.
(3) On an ADT review, the ADT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of:
(a) the public and the applicant, and
(b) the applicant's representative if the ADT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.
The information in paragraph 137 of the report.
Paragraph 137 is to be found in a section of the report considering a complaint by Mr Byrne about Mr Ryan's conduct on a specific day. The paragraph is not concerned with the events of that day but contains historical information not related to those events. That historical information concerns Mr Ryan and is a mixture of fact and opinion abut him. It satisfies the definition of personal information in clause 4 of Schedule 4 of the GIPA Act.
Aside from the presumption in favour of disclosure found in s 5 of the GIPA Act and the general public interest it reflects, I am unable to identify any specific public interest considerations in favour of disclosure that attaches to the information in paragraph 137 of the report. While most of the public interest considerations in favour of disclosure in section 12 of the Act apply to the report generally, in this case my attention is directed to the information contained in paragraph 137 of the report. As I have already indicated it is background personal information relating to Mr Ryan, with no direct relevance to the substance of the report.
On the other hand I accept that if paragraph 137 were released it could reasonably be expected to reveal personal information of Mr Ryan. As a consequence the public interest consideration against disclosure in 3(a) of the Table to section 14 is made out.
That personal information is also personal information within the meaning of the Privacy and Personal Information Protection Act 1998 (the PPIP Act): see the definition of personal information in the PPIP Act, which is almost identical to that in the GIPA Act, but has significantly more exceptions. The Agency as a local government authority is a public sector agency to which the PPIP Act applies: see the definitions in s 3.
Section 8 to 19 of the PPIP Act contain information principles with which public sector agencies are required to comply with when they collect, store, grant access to, amend, use or disclose personal information. Section 18 is concerned with disclosure. Relevantly it provides -
(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.
(2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.
I think it reasonable to expect that the release of Mr Ryan's personal information in paragraph 137 could result in the contravention of the disclosure principle in s 18 of the PPIP Act, especially as it is clear that Mr Ryan objects to the release of that information. Such a disclosure would not be related to the purpose for which the personal information was collected and is not consented to by Mr Ryan. As a consequence the public interest consideration against disclosure in 3(a) of the Table to section 14 is made out.
Having identified the any public interest considerations in favour of disclosure and any against, the decision maker's task is then to weight them in order to arrive at a conclusion on balance.
In the present case I have found no public interest considerations in favour of disclosure apart from the general public interest in favour of disclosure. Against it I need to weigh the public interest considerations against disclosure in 3(a) and (b). These both relate to the protection of Mr Ryan's personal information which is a matter meriting some weight. In my view the balance is in favour of maintaining the privacy of Mr Byrne personal information.
It follows that I agree with the decision to not disclose the contents of paragraph 137 of the report.
Attachments 14D and 15D
Attachment 14D contain a series of copy penalty notices issued on 24 November 2008 by Mr Ryan to various person relating to parking in and around school zones. The registration numbers of vehicles belonging to third parties, and the names and addresses of their owners have been deleted.
Attachment 15D consists of copies of those documents together with copy letters from the Agency to the owners of a number of the vehicles. The registration numbers of vehicles belonging to third parties, and the names and addresses of their owners have been deleted.
The names and addresses of those third parties is their personal information. The same is true of the registration numbers of their vehicles in the context of attachments 14D and 15D. This is so because in that context the registration numbers identify vehicles belonging to named individuals, and therefore provide personal information about those individuals. Whether or not a registration number alone, in some other context, is personal information of the owner because it provides a means of ascertaining whom the owner is, is a question it is not necessary for me to decide.
Mr Byrne has not advanced any public interest considerations in favour of disclosure of these details. Aside from the general public interest in favour of disclosure, I am unable to identify any specific public interest consideration in favour of disclosure of this information. Mr Byrne has had released to him copies of all the infringement notices and related correspondence, less the names and addresses of the owners and the vehicle registration numbers. In the circumstances I am unable to ascertain how, aside from that maintenance of the statutory presumption, release would advance the public interest (or indeed Mr Byrne's interest)
In those circumstances I am of the opinion that the public interest in not revealing the personal information of third parties outweighs the public interest in releasing this information.
It follows that I agree with the decision to not disclose the registration numbers of vehicles belonging to third parties, and the names and addresses of their owners in documents 114Dand 115D.
The Tribunal finds that the correct and preferable decision is to vary decision of the Agency so as to release the report and attachments subject to the deletion of:
(a) paragraph 137 of the report; and
(b) the registration numbers of vehicles belonging to third parties, and the names and addresses of their owners in documents 114D and 115D.
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Decision last updated: 04 February 2013
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