Camilleri v Penrith City Council

[2012] NSWADT 196

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Camilleri v Penrith City Council [2012] NSWADT 196
Hearing dates:	27 August 2012
Decision date:	21 September 2012
Jurisdiction:	General Division
Before:	Naida Isenberg, Judicial Member
Decision:	The decision under review is affirmed
Catchwords:	Neighbourhood dispute-complaints to council- access application-reasonable searches - overriding public interest against disclosure - substance of complaints known to applicant
Legislation Cited:	Government Information (Public Access) Act 2009 Privacy and Personal Information Protection Act 1998
Cases Cited:	Chapman v Commissioner of Police, New South Wales Police [2004] NSWADT 35 Curtin v Vice-Chancellor, University of New South Wales (No 2) [2006] NSWADT 56 DQ v Commissioner of Police, New South Wales Police Service [2002] NSWADT 215 Fahey v NSW Office of Liquor, Gaming & Racing [2012] NSW ADT 181 Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201 O'Hara v North Sydney Council [2005] NSWADT 100 Patsalis v Commissioner of Police, New South Wales Police Service [2003] NSWADT 213
Category:	Principal judgment
Parties:	Clement Camilleri (Applicant) Penrith City Council (Respondent) Martin Bartolo (Joined party)
Representation:	C Camilleri (Applicant in person) M Bullivant (Respondent) M Bartolo (Joined party in person)
File Number(s):	123049

reasons for decision

Background

1. The applicant, Mr Camilleri has been in dispute with the owner of a neighbouring property, Mr Bartolo, for some time. During that time they have complained to the respondent (and other agencies) about each other's conduct.

1. By application dated 28 November 2011 the applicant applied to the respondent for access to government information pursuant to the Government Information (Public Access) Act 2009 (GIPA Act) for access to the following documents:

All complaints made by Martin Bartolo of [address], to Penrith City Council in relation to Clement Camilleri of [address] in the last 20 years.

1. A total of 18 documents were identified.

1. Under s 54 of the GIPA Act there is an obligation to consult a person before disclosing their personal information, where it appears that:

• the person may reasonably be expected to have concerns about the disclosure of the information, and
• those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information.

1. The respondent consulted with Mr Bartolo, who expressed the view that he did not want documents released to the applicant.

1. Taking into account Mr Bartolo's views, the respondent declined to provide the information to the applicant, on the basis that there was an overriding public interest against disclosure of the documents. The applicant now seeks review of that decision.

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

Joinder

1. At the invitation of the respondent, Mr Bartolo attended a Planning Meeting conducted by the Tribunal and expressed the view that he wished to be heard in the application for review. The Tribunal decided that Mr Bartolo was a person who could be aggrieved by the decision of the Tribunal on review and therefore had a right to appear and be heard: s 104(2) GIPA Act. The Tribunal informed all parties that it proposed to join Mr Bartolo as a party to the proceedings and they did not oppose this course.

The Documents

1. A schedule of the relevant documents in relation to which the respondent claims there to be an overriding public interest against disclosure was attached to the respondent's submissions, and a copy of the documents was provided to the Tribunal on a confidential basis.

1. The applicant also asserts that the documents listed in the schedule do not reflect the complete list of all the documents held by the respondent which would answer his access application.

Issues for the Tribunal

• Has the respondent undertaken reasonable searches to find the relevant government information that it held when the application was received?
• Is there an overriding public interest against disclosure of the documents that have been located?

CONSIDERATION

Has the Respondent undertaken reasonable searches to find the relevant government information that it held when the application was received?

1. Section 53 of the GIPA Act sets out the obligations of agencies in locating government information in response to a request:

(1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received.

(2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency.

(3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically.

(4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures.

(5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.

1. Evidence was given by Ms K Hiatt, the respondent's Records Management Co-ordinator, who has been employed in that capacity for over 12 years. Prior to her appointment she had worked in the same role for another council for 8 years. Her responsibilities consist of managing the respondent's recordkeeping policies, plans, functions, processes, staff and systems.

1. She gave evidence that all of the respondent's records prior to March 2005 were on a paper-based record-keeping system. After that time the respondent commenced transition to an electronic records management system. The previous paper-based records system in relation to the subject and property related information closed on 14 March 2006. The paper-based records system in relation to application files closed on 2 March 2009.

1. The paper-based system consists of physical files containing documents in date order and numbers. It contained files relevant to record types, for example: subject, property and application files. These files are identified by colour-coding and by the use of reference numbers assigned to each file. The reference numbers are used to enable staff to search an index to find where the file is located, that is whether a file is in its designated storage area or whether a file is marked out to a council officer. Reference numbers are also used to enable records officers to retrieve files from storage locations. Files are stored in either alpha/numeric and or numeric order.

1. The "CARMS Index" contained within the respondent's electronic records management system is used to search paper-based records. This index contains all the respondent's data in relation to the paper-based recordkeeping system. Once the location of a file is ascertained it is then requested and retrieved from its location by a records officer.

1. Ms Hiatt conducted a search of the CARMS Index on 7 June 2012 in response to the applicant's access application, using the property address of both [address]. A total of seven files were identified.

1. She then carried out a search on each of those files to identify their current locations. Six of the files were stored in their relevant storage locations and were requested from storage locations. One file was marked to an "Old User" and she was assured by the Archives Officer that the file could not be located, neither on-site, nor off-site at the file storage repository.

1. On 9 June 2012 she conducted searches for approximately 3½ hours of the six paper-based files located to determine the documents within those files that fell within the scope of the application.

1. Each folio on each file was searched to ascertain the subject content and date. If the subject content related to the scope of the request and the document date fell within the timeframe of the request then those documents were identified and tagged for copying.

1. Incoming, internal and outgoing Council information including electronic mail and facsimiles are captured-and registered within the electronic records management system. Incoming documents including electronic mail and facsimiles are scanned and registered by records officers and tasked to an officer within the Council to action. Documents created by officers within the Council are registered in the system by whoever authored the document. During the registration process each document is assigned a system generated document number, a document date, a class, a precis and is linked to electronic indexes within the system. All documents received or dispatched from Council have two mandatory links being Subject and Customer Index. This means that any document received or created in Council must be linked to these indexes prior to any staff being able to file the document in the system. Further to these links each document has an additional link (related to the subject content of the document).

1. In relation to the electronic records management system, documents pertaining to the applicant's access application would have been captured and registered in the system, given a precis and linked to the customer, subject, property and/or applications index within the system.

1. On 9 June 2012 she conducted searches of the electronic records management system for approximately 2 hours. A search was undertaken by document details search, subject search, property search, customer search, applications search and a cross index search of all indexes outlined above in conjunction with a notes search. Once results of documents were given on each search, the scanned images to those documents were opened, viewed and read to identify if document dates and subject content are in the scope of the request. On 14 and 21 June 2012 for a total of 3½ hours she conducted further searches of the electronic records management system to determine if there were documents that fell within the scope of the applicant's access application.

1. Searches that were undertaken included the following:

• Index Searches: Customer search on Clement Camilleri; Customer search on Martin Bartolo; Property search on [address]; Property search on [address]; Applications search [address]; Applications search [address]; Notes search [address]; and Notes search [address].
• Cross index search (overall required indexes): Customer - Camilleri; Property and Applications - [address]; and Notes index
• Cross index search (over all required indexes): Customer - Bartolo
• Property and applications - [address]; and Notes index
• Document Details Search (Precis search): Further to these searches she also conducted a search over each of the customer, subject, property and applications index using document details criteria, that is keywords such as 'complaint' and 'address'.

1. When document results were given each document was opened, viewed and read to determine if the documents fall within the scope of the access application. Each document contained in the system was examined by date and nature of subject content and, where relevant to the request, were printed.

1. Following the searches described above she identified a number of documents that fell within the scope of the access application and these were the documents the subject of this application for review. In total she spent approximately 9 hours searching for documents that might address the access application.

1. Evidence was also given by Mr A Estreich, the respondent's Environmental Health Officer, whose responsibilities consist of undertaking and managing investigations into environmental health related matters. These investigations include responding to complaints. He has carried out a number of investigations in relation to the properties at [applicant] from about April 2010.

1. On 12 June 2012 he carried out a file search on his 'C' drive on his work computer and another officer and also on the Environmental Health Department's shared network drive. He found no additional documents to those identified by Ms Hiatt.

1. In determining what constitutes a sufficient search, the Tribunal has adopted the approach of the Information Commissioner of Queensland in Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464, in a number of cases, eg Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201, DQ v Commissioner of Police, New South Wales Police Service [2002] NSWADT 215; Patsalis v Commissioner of Police, New South Wales Police Service [2003] NSWADT 213; Chapman v Commissioner of Police, New South Wales Police [2004] NSWADT 35 at [14]; O'Hara v North Sydney Council [2005] NSWADT 100 at [11]; and, Curtin v Vice-Chancellor, University of New South Wales (No 2) [2006] NSWADT 56.

1. In Shepherd it was said at [19] that there were two questions for consideration:

(a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency; and if so,

(b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.

1. Simply put, the Tribunal must come to a view whether there may be some further documents relevant to the application and, if so, whether the respondent has tried hard enough to find them.

Are there reasonable grounds to believe that there are additional documents?

1. The applicant submitted that the respondent 'must have' documents falling within the scope of his application. His evidence was that he came to that view because he saw officers of the respondent talking to Mr Bartolo straight after they had come to inspect his property in relation to waste run-off on or about 7 April 2010. In cross-examination Ms Hiatt said she did not find any complaint by Mr Bartolo about waste run off. Mr Estreich said that there was a complaint, but he could not recall by whom. The applicant pointed out that other neighbours were some distance away so were unlikely to be the complainants. Somewhat inconsistently with his contention, Mr Camilleri said he thought Mr Bartolo was using other neighbours to complain on his behalf. Mr Estreich said it was found at the time that high levels of bacteria but the systems were found to be operating satisfactorily and there was insufficient evidence as to the cause.

1. Mr Estreich said that the Council responds to complaints but does not need a complaint in order to undertake ongoing compliance inspections. In answer to questions by Mr Bartolo, he said that the Council can make inspections in the absence of complaints, but in recent years it mostly responds to complaints. The practice is to try to substantiate complaints before contacting the owner. Sometimes it is unnecessary to investigate further. He said that all complaints are investigated unless he is directed not to.

1. Mr Estreich also gave evidence that there are no outstanding complaints by Mr Bartolo about the applicant. The last complaint about Mr Camilleri's property was earlier this year. He was aware that in April 2010 there was a complaint by the applicant about Mr Bartolo, but that was not a matter conducted by his team.

1. Applying the first limb of the Shepherd test, I am not persuaded that, other than any documents that might be contained on the missing paper-based file, that there are no reasonable grounds to believe that some further documents exist. That Mr Estreich was seen talking to Mr Bartolo is inconclusive, in light of the firm evidence of Ms Hiatt and Mr Estreich.

Did the respondent undertake reasonable searches to find the documents?

1. It is only necessary for the Tribunal to find that a reasonable search has been undertaken. Although what constitutes a sufficient search will vary with the circumstances, the key factors in assessing whether a sufficient search had been carried out include, relevantly, the way the agency's recordkeeping system is organised and the ability to retrieve any documents that are the subject of the request, by reference to the identifiers supplied by the applicant or those that can be reasonably inferred by the agency from any other information supplied by the applicant: Miriani v Commissioner of New South Wales Police [2005] NSWADT 187 at [30]. The fact that there may be weaknesses in an agency's searches, or that there may be failures in its recordkeeping processes, do not necessarily lead to the conclusion that the search has not been reasonable, or sufficient, or adequate: Patsalis at [63].

1. I accept that Ms Hiatt, Mr Estreich, and others, diligently undertook the searches outlined in good faith. The access request covers 20 years. It is hardly surprising that one old paper-based file could not be located. I consider that the endeavours undertaken on behalf of the respondent to retrieve all the relevant documents, amounted, in the circumstances, to a reasonable search.

Is there an overriding public interest against disclosure of the documents that have been located?

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

3 Object of Act

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

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

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

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

(2) It is the intention of Parliament:

that this Act be interpreted and applied so as to further the object of this Act, and

that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.

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

1. Section 5 provides that there is a presumption in favour of the disclosure of government information unless there is an 'overriding public interest against disclosure.'

1. Subsection 12(1) provides that there is a 'general public interest in favour of the disclosure of government information.' Subsection 12(2) provides that nothing in the Act limits any other public interest consideration in favour of the disclosure of government information, which may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government Information. The subsection also sets out a number of examples of public interest considerations in favour of disclosure of government information.

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

13 Public interest test

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

1. The public interest considerations against disclosure are set out in s 14, which relevantly provides:

14 Public interest considerations against disclosure

...

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.

Table

Responsible and effective government

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 (whether in a particular case or generally):

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

(g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence,

Law enforcement and security

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 (whether in a particular case or generally):

(a) reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant,

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:

reveal an individual's personal information,

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,

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

15 Principles that apply to public interest determination

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

Agencies must exercise their functions so as to promote the object of this Act.

Agencies must have regard to any relevant guidelines issued by the Information Commissioner.

The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.

The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.

In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.

1. Section 54 of the GIPA Act contains a requirement that an agency is to take steps, which are reasonably practicable, to consult with specified persons before providing access to information. That requirement only applies to information, which is of a kind that requires consultation under s 54(2): see s 54(1). The information requiring consultation includes personal information about a person: see s 54(2)(a).

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

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

Public interest considerations in favour of disclosure

1. Section 12 of the GIPA Act reiterates the general presumption in favour of disclosure of government information, and lists examples of public interest considerations that favour disclosure. The list is not exhaustive. The example considerations include situations where:

• 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.
• 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.
• The information is personal information of the person to whom it is to be disclosed.
• 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.

1. The applicant asserted in the grounds for the application for review that:

"Some complaints by Martin Bartolo are false and harassment. Others are of harassment by both parties"

1. It was not entirely clear to what the second sentence related, but it was clear from Mr Camilleri's evidence that he was alleging Mr Bartolo had made false allegations against him to the respondent.

1. The Tribunal may also to consider, under s. 55 of the GIPA Act, the personal factors of the application, including Mr Camilleri's motive in bringing the application.

1. At the hearing Mr Camilleri said the complaints against him 'keep coming', although this was contrary to the evidence of both Mr Bartolo and Mr Estreich. He said that unless he knew the details - 'the bottom line' - he was unable to discuss the complaints with the Council, in detail. He agreed that when there was a complaint the Council may come to investigate and he only finds out that the Council had been to inspect the premises because his tenant told him. He said the Council finds nothing but the 'same complaints continue'. He said he did not know if there were outstanding complaints but thought there was 'because [his] tenant had told him'. This was consistent with Mr Estreich's evidence to the effect that the Council will make enquiries before notifying the owner if it confirms there is a problem.

1. He agreed that complaints going back for 20 years have been investigated and that the complaints were about different matters. He said the meetings with council officers were very constructive. He believed access to the complaints would mean he would be able to fix all the problems. In cross-examination he was asked why he would now want to 'fix' problems that were up to 20 years old. He said he realised there had been 'too many complaints' because the tenant had told him. He agreed that the last time the Council's officers had come to investigate was in December 2010.

1. He said he had a 'right to know' what the 'problem' is. He said that if the full complaints were provided to him then things between him and Mr Bartolo will be 'solved forever'. He said on numerous occasions in his evidence that he wanted 'peace and quiet'. He wants to 'mind [his] own business'. He said he wanted to discuss the complaints so there would be no repercussions.

1. He denied he wanted the information so that he could bring proceedings against Mr Bartolo, although his letter to the Tribunal dated 12 July 2012 would suggest otherwise. He said he has no intention to retaliate against Mr Bartolo whatsoever and his 'issue' was 'with the council'. He said, in cross-examination by Mr Bartolo that he did not think council had told him sufficient details in order for him to be able to properly respond. This was somewhat contrary to his evidence that he found meetings with the council, especially Mr Estreich to be 'very constructive'.

Public interest considerations against disclosure

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

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

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

1. The respondent pointed to a number of public interest considerations against disclosure. The respondent submitted that 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: cl. 1(d)
• reveal an individual's personal information: cl. 3(a)
• 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: cl. 3(b)
• expose a person to a risk of harm or of serious harassment or serious intimidation: cl. 3(f)

1. Each is addressed below.

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

1. In Commissioner of Police, NSW v Camilleri the Appeal Panel considered that the question of whether information supplied was "confidential information' should be examined "primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received": at [33].

1. Mr Bartolo gave evidence that he would be discouraged from making further complaints if the written complaints he has already made were provided to Mr Camilleri, although in his submissions said he would complain to the Council if a problem was not fixed. However, in determining whether disclosure would prejudice the supply of information, the test is not whether this complainant would in future refuse to supply that information but whether information of the kind in question facilitates the exercise of the respondent's functions and, whether the disclosure of such information could reasonably be expected to prejudice the supply of such information: Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [52].

1. The evidence of Mr Estreich was to the effect that the council responds to complaints are made by members of the public, and conducts a preliminary investigation before contacting the owner of the property. His evidence was that these days the Council relies on residents making complaints as the Council's main source of identifying problems and the Council has a reduced ad hoc investigative role. There was no evidence of assurances of confidentiality but the respondent's submissions were to the effect that it would be 'incredibly difficult' for it to detect, and therefore remedy, problems if residents ceased to make reports.

Table cl 3(a) - reveal an individual's personal information

1. Personal information is defined in clause 4 of Schedule 4 of the GIPA Act as follows:

4 Personal information

(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.

Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics.

Personal information does not include any of the following:

information about an individual who has been dead for more than 30 years,

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,

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.

1. The respondent submitted that it is its practice when access applicants request copies of documents containing complaints about them to redact the complainant's personal information such as name, address, contact details and other information that may reveal the complainant's identity. This practice ensures the complainant's privacy is protected while giving the access applicant information about the nature of the complaint so they can take steps to resolve the matter. In naming the complainant in the access application a situation was created where the obscuring the complainant's personal information would fail to protect his privacy.

1. Other than that, the respondent made no submission, although it was noted that Mr Camilleri clearly already knew Mr Bartolo's full name and address. It was unclear if he already knows his telephone number, although Mr Bartolo thought that he did on the basis that he had received anonymous harassing phone calls which he suspected were from Mr Camilleri. From examination of the documents the telephone number of the Bartolo household appears to be the only remaining information properly characterised as 'personal information'.

Table cl 3(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

1. Clause 3(b) of the Table relevantly provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (PPIP Act).

1. The relevant information protection principle in this application is contained in section 18 of the PPIP Act, which provides:

18 Limits on disclosure of personal information

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:

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

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

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.

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.

1. The respondent submitted that the information in dispute was collected for the purpose of investigating various complaints and not for the purpose of disclosing it to the applicant pursuant to an application under GIPA. It is reasonable for a complainant to assume, it was submitted, that the information that is collected would not be disclosed to the access applicant.

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

1. Mr Bartolo submitted that he and his family would be put at risk if his personal information was provided to Mr Camilleri. He contended that Mr Camilleri had put herbicides on his plants. (I observe that Mr Camilleri made the same allegation against Mr Bartolo.) Mr Bartolo has alleged that Mr Camilleri has vandalized his home. Mr Bartolo alleges Mr Camilleri has stalked his daughter. The police have been involved on more than one occasion. For his part, Mr Camilleri has made a number of serious allegations against Mr Bartolo.

Balancing the public interest considerations

1. The weighing of the public interest considerations in favour of disclosure against those against disclosure, the balancing of competing interests "is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation: Hurst v Wagga Wagga City Council (2011) NSWADT 307 at (70).

1. Mr Camilleri submitted, in effect, that disclosure of the full complaints could reasonably be expected to assist in the resolution of problems in relation to his property and to bring peace between him and Mr Bartolo.

1. The submission in relation to 'fixing' outstanding problems in relation to the property can be given little, if any weight because the evidence was that there are no outstanding complaints by Mr Bartolo in relation to Mr Camilleri's property. From the evidence of Mr Estreich I find that all complaints by Mr Bartolo against the applicant have been investigated, and brought to his attention as necessary. To that extent the 'information', as distinct from 'documents' has already been brought to his attention: see definition of 'government information' in s. 4 GIPA Act. In any event, I consider the public interest considerations of bringing information about complaints to attention have already been satisfied by the disclosure of the substance of the complaints and the outcome of the respondent's consequent investigations. Disclosure of further details of the complaint would not, in my view, further those considerations.

1. I have previously found there to be a public interest consideration in disclosing the identity of a complainant who makes false complaints: Fahey v NSW Office of Liquor, Gaming & Racing [2012] NSW ADT 181 Mr Estreich's evidence was that in respect of at least one complaint, that on investigation the subject of the complaint - sewage overflow - was found to be justified although the cause of the overflow was inconclusive. There was no evidence that the complaints generally were without foundation or were malicious. In the circumstances of this matter, and especially the long and acrimonious history between the parties, and the likely divisive effect of complaint, I have given significant weight to this consideration.

1. In Director General, Department of Education & Training v Mullett & Anor (GD) [2002] NSWADTAP 13 the Appeal Panel held (in respect to the exemption in clause 13(b)(ii) of Schedule 1 of the FOI Act) held that:

In our view, clause 13(b)(ii) 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 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 reasonably be obtained, by confidential communication; the extent to which guarantees of confidentiality may be necessary...

1. I find that in the circumstances of the present matter, complainants to the Council may not have a reasonable expectation that their complaint would never be disclosed to the person about whose conduct in relation to their property they have complained. In seeking Council's intervention it would, in my view, almost invariably lead to disclosure of the complainant's identity (and possibly other personal information). In coming to this view I observe that in circumstances where a complaint is made about issues affecting the complainant's property allegedly caused by an adjacent property in a semi-rural setting, the complainant could not reasonably expect to remain anonymous.

1. I have also taken into account the applicant's identity and the relationship with Mr Bartolo,and his motives for the application, discussed above: s.55(l)(b) and (c) of GIPA Act. These matters have been given significant weight. It is clear from the evidence of both Mr Camilleri and Mr Bartolo that their relationship has broken down. The respondent submitted that it attempts to make decisions that will not exacerbate disputes, unless there are proper reasons for doing so. The respondent, it appears to me, is the 'meat in the sandwich' in this and the ongoing dispute generally. It acknowledged that it has a role in facilitating the resolution of matters involving disputes between property owners, in addition to its regulatory functions.

1. I find no purpose would be served in now providing Mr Camilleri with the documents which gave rise to those investigations. To do so would, in my view, only serve to exacerbate the already poor relations between him and Mr Bartolo.

CONCLUSION

1. Taken together, I find the respondent's submissions sufficiently persuasive for it to have discharged its onus under s. 105 of the GIPA Act and find that the public interest considerations against disclosure, on balance, outweigh the public interest considerations in favour of disclosure. Accordingly, there is an overriding public interest against disclosure of the information: s 13 of the GIPA Act.

DECISION

1. The decision under review is affirmed.

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Decision last updated: 21 September 2012