Clarke v Blacktown City Council
[2013] NSWADT 36
•12 February 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Clarke v Blacktown City Council [2013] NSWADT 36 Hearing dates: 16 & 17 July 2012 Decision date: 12 February 2013 Jurisdiction: General Division Before: S Higgins, Deputy President Decision: 1.The decision of the respondent is varied by granting the applicant access to the following additional information in Report No AD 300030 and Attachment 1 to that Report:
paragraph 4 and 5 of the Report,
the headings, dates and any other information of a formal nature in Part One and Part Two of Attachment 1,
the information on page 4 and 7 of Attachment 1 that has already been disclosed in the Report,
the information on page 5 and 6 of Attachment 1,
the information on page 8 of Attachment 1 that is the overall rating,
the information inserted by Mr Moore in Part One and Part Two of Attachment 1,
the information in the first 3 columns of the schedule in Part Two of Attachment 1.
2. Within 28 days of this decision, the respondent to provide the applicant with a further copy of the Report and Attachment 1 in accordance with the terms of order 1 above.
Catchwords: Government information - public access - performance review of general manager of a local council - confidential information - personal information - secrecy provision Legislation Cited: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989 (NSW repealed)
Freedom of Information Act 1982 (Cth)
Government Information (Public Access) Act 2009
Local Government Act 1993Cases Cited: Attorney-General's Department v Cockcroft (1986) 10 FCR180
Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19
McKinnon v Blacktown City Council [2012] NSWADT 44
McKinnon v Secretary, Department of Treasury [2006] HCA 45
Re Maher and the Attorney General's Department (No 2) (1986) 4 AAR 266Category: Principal judgment Parties: Denys Andreleon Lennox Clarke (Applicant)
Blacktown City Council (Respondent)Representation: P Timmins (Agent for the Applicant)
Sparke Helmore (Respondent)
Office of the Information Commissioner
File Number(s): 113317
REASONS FOR DECISION
Introduction
The applicant, Mr Denys Andreleon Lennox Clarke, seeks review of a decision of the respondent, Blacktown City Council, made under the Government Information (Public Access) Act 2009 (the GIPA Act), in regard to his request for access to government information.
On 9 November 2010, the applicant, a former Councillor of the respondent, made a formal request for access in the following terms:
Linda Tucker, from OIC, has confirmed that the performance of The General Manager of a Council, and the methodology/process by which Councillors monitor and assess it prior presenting a report to the community through Council, is the public interest.
My email to all members of "The Elected Council" on 28 July 2009 and the ADT decision 233 on 30 September 2010(particularly items 23, 24, 25) are relevant.
In the public interest, I require a copy of Report No AD 300030 and attachments (if any).
The applicant had drawn a box round the last sentence of his GIPA request. Attached to the applicant's request was a copy of the email he sent to Councillors on 28 July 2009 and another document which set out the applicant's concerns about a lack of transparency of local government and weaknesses in currents systems, including complaint handling, intended to address corruption.
Report No 300030 is the Performance, Contract Review/Contract Renewal report (the Report) of the General Manager of the respondent Council, Mr Ron Moore that was presented to Council, in confidence, at an ordinary Council meeting on 22 September 2010. The report is relatively brief (2 pages) and has attached to it 3 Attachments, described as follows:
- Attachment 1 - Detailed Assessment against Adopted Criteria
- Attachment 2 - Draft Proposed Part 2 Objectives
- Attachment 3 - Renewal 5 year Contract
On 7 December 2010, the respondent determined to grant the applicant access to the Report (with the exception of paragraphs 4 and 5) and Attachment 2. In regard to paragraphs 4 and 5 of the Report and the information in Attachments 1 and 3 for which access was refused, the respondent determined that there was an overriding public interest against disclosure of this information as the disclosure of the information 'are the personal affairs of Mr Moore': see section 13 and item 3(a) of the table to subsection 14(2) of the GIPA Act. In lieu of Attachment 1, the respondent provided the applicant with a pro-forma form of the General Manager's Performance Agreement, which set out the criteria against which Mr Moore was assessed.
The applicant sought review, by the Office of the Information Commissioner (OIC), of the respondent's decision, which he was entitled to do: see section 89 of the GIPA Act. The OIC completed its review on 7 September 2011. It recommended that the respondent conduct an internal review, which it did. That internal review was completed on 21 October 2011. As a result of the internal review determination, the applicant was granted access, in part, to the information in Attachment 3 of the Report. The respondent found that there was an overriding public interest against disclosure in regard to the remaining information in Attachment 3, the information in paragraphs 4 and 5 of the Report and the information in Attachment 1. In making this finding, the respondent relied on a number of public interest grounds against disclosure as set out in the table to subsection 14(2) of the GIPA Act. These are discussed below.
The applicant, being dissatisfied with the decision of the respondent, sought review, by the tribunal, of the respondent's internal review decision. The applicant's application for review first came before me at a planning meeting on 17 January 2012. At this planning meeting the applicant pressed his request for access to paragraphs 4 and 5 of the Report and Attachment 1 and the deleted material in Attachment 1 and 3. The applicant also contended that the scope of his GIPA request went beyond a request for the Report. Further planning meetings were held on 21 February, 17 April and 5 June 2012. The applicant's application was heard on 16 and 17 July 2012.
Issues
The role of the tribunal is to determine 'what the correct and preferable decision is' having regard to the material then before it, including (a) any relevant factual material, and (b) any applicable written or unwritten law: see subsection 63(1) of the ADT Act. In doing so, the tribunal sits in the shoes of the respondent and considers the matter a fresh: see subsection 63(2) of the ADT Act.
The issue in this application is:
(a) the scope of the applicant's GIPA request and whether the respondent has undertaken reasonable searches to identify all information it holds falling within that scope, and
(b) whether the public interest against disclosure grounds relied on by the respondent apply to the information for which access was refused and if they do apply whether, on balance, they outweigh the public interest consideration in favour of disclosure. The information for which the applicant pressed access at the hearing was paragraph 4 and 5 of the Report and the deletions on the following pages in Attachment 1:
pages 4 to 8 (the summaries)
pages 12 to 38 (the deleted comments of Mr Moore and the review panel in Part One of the form) and
pages 39 to 43 (Part Two - Specific Output Objectives)
For the reasons set out below I have found:
(a) the respondent has undertaken all reasonable searched to identify all the information it holds that falls within the applicant's GIPA request; and
(b) the decision of the respondent is not the correct and preferred decision and should be varied by granting the applicant access to additional information.
Applicable law
The applicable law is that set out in the GIPA Act, the objects of which are set out in section 3 as follows:
3 Object of Act
(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:
(a) authorising and encouraging the proactive public release of government information by agencies, and
(b) giving members of the public an enforceable right to access government information, and
(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
(2) It is the intention of Parliament:
(a) that this Act be interpreted and applied so as to further the object of this Act, and
(b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
The term 'government information' is defined in section 4 of the GIPA Act to mean 'information contained in a record held by an agency'. Government information 'held' by an agency is defined in clause 12 of Schedule 4 of the GIPA Act. It provides as follows:
12 Government information held by agency
(1) A reference in this Act to government information held by an agency is a reference to:
(a) information contained in a record held by the agency, or
(b) information contained in a record held by a private sector entity to which the agency has an immediate right of access, or
(c) information contained in a record in the possession or custody of the State Records Authority (or that the Authority has in the custody or possession of some other person) to which the agency has an immediate right of access, other than a record that is withheld from public access under section 59 of the State Records Act 1998, or
(d) information contained in a record that is in the possession, or under the control, of a person in his or her capacity as an officer or member of staff of the agency (including, in the case of a Minister, the personal staff of the Minister).
(2) Information that would be regarded as government information held by an agency because the agency has access to a record that contains the information is not to be regarded as government information held by the agency if the public generally has access to the record (for example, because the record is available on the Internet).
(3) Information contained in a record that genuinely forms part of the library material held by an agency is not government information held by the agency.
Section 5 of the GIPA Act contains a presumption in favour of the disclosure of government information unless there is an 'overriding public interest against disclosure'. Section 13 of the GIPA Act sets out the test to be applied in determining whether there is an overriding public interest against disclosure. That test is in the following terms:
'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.'
Subsection 12(1) of the GIPA Act provides that there is a general public interest in favour of disclosure of government information. Subsection 12(2) provides that public interest considerations in favour of disclosure are not limited. The section goes on to provide some examples of public interest considerations in favour of disclosure of government information. These include:
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.
The public interest considerations against disclosure are limited. These are set out in section 14 of the GIPA Act. Subsection 14(1) provides that government information described in Schedule 1 of the GIPA Act is to be conclusively presumed to give rise to a public interest consideration against disclosure. The information in issue in this application does not fall into this category of government information.
Subsection 14(2) sets out the only other public interest considerations against disclosure. For the purposes of this application, the relevant public interest considerations against disclosure are as follows:
14 Public interest considerations against disclosure
(1) ...
(2) 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.
(3) ...
Table
1 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):
(a)
...,
(b)
..., ,
(c)
...,
(d)
prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions,
(e)
...
(f)
...,
(g)
found an action against the agency for breach of confidence or otherwise result in the disclosure of information provided to the agency in confidence.
(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).
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)
...
6 Secrecy provisions
(1)
There is a public interest consideration against disclosure of information if disclosure of the information by any person could (disregarding the operation of this Act) reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule (of this or another State or of the Commonwealth) that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions.
(2)
The public interest consideration under this clause extends to consideration of the policy that underlies the prohibition against disclosure.
I have dealt with the above public interest considerations in more detail below.
Section 15 sets out the principles that are to be applied when determining whether there is an overriding public interest against disclosure. That section provides as follows:
15 Principles that apply to public interest determination
A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles:
(a) Agencies must exercise their functions so as to promote the object of this Act.
(b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner.
(c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.
(d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.
(e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
Where the information for which access is sought contains 'personal information' about a person (other than the access applicant), or concerns the person's business, commercial, professional or financial interests, section 54 of the GIPA Act requires an agency to consult with that person before providing access where (a) the person may reasonably be expected to have concerns about the disclosure of the information, and (b) 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.
Section 55 provides for personal factors to be taken into account in determining where the public interest lies. That section is in the following terms:
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 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.
In this application, by reason of subsection 105(2) of the GIPA Act, the onus is on the respondent, to establish that there is an overriding public interest against disclosure of the information in issue.
Section 107 of the GIPA Act sets out how the Tribunal is to deal with information for which there is, or is claimed to be, an overriding public interest against disclosure. In essence that section provides that the Tribunal is to prevent the disclosure of such information to the public, GIPA applicant and the applicant's legal representative. In accordance with the nondisclosure requirements of this section the Tribunal was provided with a copy of the disputed information in confidence.
Section 72 of the GIPA Act sets out the form in which access is to be given where the agency determines to grant access to the information sought. That section provides:
72 Forms of access
(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.
Section 74 of the GIPA Act makes provision for the deletion of information in providing an applicant access to information in a record, which contains, in part, information for which there is an overriding public interest against disclosure. That section is in the following terms:
74 Deletion of information from copy of record to be accessed
An agency can delete information from a copy of a record to which access is to be provided in response to an access application (so as to provide access only to the other information that the record contains) either because the deleted information is not relevant to the information applied for or because (if the deleted information was applied for) the agency has decided to refuse to provide access to that information.
Section 73 of the GIPA Act deals with conditions on access. It provides as follows:
73 Access to be unconditional
(1) 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.
(2) A condition may be imposed as to how a right of access may be exercised (such as a condition that prevents an applicant making notes from or taking a copy of a record that is made available for inspection) but only to avoid there being an overriding public interest against disclosure of the information.
(3) A condition may be imposed that access to medical or psychiatric information will only be provided to a medical practitioner nominated by the applicant and not to the applicant personally.
Note. Access can also be made conditional on the payment of processing charges (s 64) and on the provision of evidence of identity or other personal factors relevant to the agency's decision to provide access (s 55).
The evidence
The respondent tendered into evidence an affidavit of Mr Moore (the respondent Council General Manager), Ms Lillian Tiddy (the Director of the Workplace Services Division of the Local Government and Shires Associations) and Mr Garry Patrick Byrne (a part-time consultant with the Local Government and Shires Associations). Mr Moore, Ms Tiddy and Mr Byrne also gave oral evidence at the hearing.
In her evidence Ms Tiddy explained that the Local Government and Shires Associations (LGS Associations) are a peak industry body established to support and represent councils within NSW. The LGS Associations also collaborate with the Division of Local Government in the NSW Department of Premier and Cabinet.
Included in the many specialist services the LGS Associations provide to its members is industrial relations. In this regard, it provides member councils with advice on the recruitment and performance management of general managers and other senior staff position. This, as explained by Ms Tiddy, Mr Byrne and Mr Moore, has included the formulation of a standard pro-forma form for the purpose of performance appraisals. That standard pro-forma form is in the form of a schedule that is divided into two parts and makes provision for a summary of the performance of the general manager at the front of the form. Part One of the performance appraisal relates to the managerial objectives of the general manager position and Part Two relates to the strategic objectives in the priority areas in the council management plan.
It was this standard pro-forma form that was used to assess Mr Moore's performance in 2010. As I have explained, the applicant was given a copy of the standard pro-forma form as it applied to Mr Moore at the relevant time.
Mr Moore explained that he is employed under a five year performance based contract: see sections 334 and 338 of the Local Government Act 1993 (the LG Act). He has been the General Manager of the respondent Council since December 2005 and he said his performance is reviewed every six months. Mr Moore explained that the process used in accessing his performance is that the Council establishes a review panel, which is generally made up of the Mayor, three Councillors and an independent person, who is usually a representative of the LGS Associations. The review panel then meets with Mr Moore who, prior to the meeting, inserts into the pro-forma form his comments in the monitoring and review columns against each of the specified criteria within the managerial objectives of his position (Part One of Attachment 1) and the specified output objectives of the respondent's Management Plan (Part Two of Attachment 1). At his meeting with the review panel, the panel members discuss his performance and then complete the pro-forma form by inserting their comments in the monitoring and review columns. They also complete the summaries at the commencement of the form and prepare a report for submission to the Councillors at an ordinary general meeting.
In this case, Mr Byrne was the independent person on the review panel assessing Mr Moore's performance. He explained in cross-examination that he has performed this role a number of times for the respondent and he also performs the same role at a number of other councils. As I understood his evidence, Mr Byrne was responsible for entering the comments (including the summaries) of the review panel in the pro-forma form and the Report submitted to the respondent Councillors.
Mr Moore, Mr Byrne and Ms Tiddy each said that the meeting between Mr More and the review panel was held in confidence and that the information recorded on the pro-forma form for the purpose of the meeting was obtained in confidence. In this regard, Ms Tiddy, referred to the guidelines, published by the Division of Local Government of the Department of Premier and Cabinet, which state that performance management reports of a council staff member, including the general manager, should not be released to the public and should be retained on the appropriate confidential employment file: see the July 2011 'Guidelines for Appointment & Oversight of General Managers' at page 15 and the August 2007 'Local Government General Manager Performance Management Guidelines' at page 8.
Mr Moore, went on to explain that on completion of the review process, the review panel reports, annually to the respondent Council, in a confidential session of an ordinary meeting of the respondent Council. That session being convened under paragraph 10A(2)(a) of the LG Act : i.e. that paragraph gives a council the power to convene a closed meeting where the matters before it are personnel matters concerning particular individuals (other than councillors). Subsection 10A(1) and (2) is set out in full below.
Mr Moore adhered to his position that the information in dispute was his personal information and he maintained his objection to it being released.
The respondent also tendered into evidence a copy of the applicant's GIPA request, the internal review decision and a copy of the Report and its Attachments as provided to the applicant. A full copy of the Report and the Attachments thereto were provided to the Tribunal in confidence pursuant to section 107 of the GIPA Act.
The applicant tendered into evidence 3 Mayoral Minutes of other Local Councils concerning the performance of their respective General Managers. These the applicant noted were documents he found on the website of these Local Councils.
The applicant, the respondent and the OIC also provided written submissions.
Consideration
The scope of the applicant's request for access
It is convenient to first deal with the issue concerning the scope of the applicant's application.
As I have indicated, the applicant has at all times argued that his request has been too narrowly construed and that he in fact sought access to any information relevant to Mr Moore's performance, including the methodology/process used to monitor and assess that performance. During the planning meetings the applicant expressed some concern that the respondent had not included in its response the email he sent to Councillors, on 28 July 2009. It was my understanding that the applicant anticipated that this information would be included as part of Mr Moore's performance review. On what basis he anticipated this to be the case is not clear. In any event, I note the applicant's email referred to the Independent Commission Against Corruption (ICAC) having said that overseeing the performance of the general manager was one of the key duties of an elected council. He also invited the Councillors to examine the material attached to his email, which he said the General Manager (Mr Moore) had considered as being unworthy of their knowledge and consideration. As I have indicated, the material provided by the applicant, to the Councillors, in the attachment to his email, set out the applicant's concerns about how the Council operated, which he alleged failed to address issues of corruption, or possible corruption.
As I understand the evidence and submissions of the respondent, the only material before the review panel when assessing Mr Moore's performance were the relevant pro-forma forms and standard form of contract that he had prepared (i.e. Attachment 1 and Attachment 2, as completed by Mr Moore, and the standard contract of employment for General Managers of a Local Council). Once the review panel had completed its comments on the pro-forma forms and contract of employment, the Report was prepared and submitted to Councillors. Again, as I understand the evidence, no additional documents were before the Councillors. I appreciate the applicant is concerned about the limited amount of documentary material before the review panel and the Councillors. However, as I explained to the applicant this is not a matter falling within the tribunal's jurisdiction. The only question, in regard to the applicant's GIPA request is whether the respondent has or has not responded to the terms of his request.
On the material before the tribunal, I am satisfied that the respondent has established that it has fully responded to the applicant's GIPA request by undertaking all reasonable searches for the information sought. Subsection 53(1) of the GIPA Act provides that the obligation of an agency in response to an access application is limited to the information that is held by the agency held at the time the GIPA request was received. Subsection 53(2) requires an agency to undertake such 'reasonable searches' as may be necessary to find the information applied for and that those searches are to be conducted 'using the most efficient means reasonably available' to the agency.
In the written submissions on behalf of the applicant, Mr Timmins, contended that there were reasonable grounds to believe other information, in particular information concerning the methodology/process by which the respondent monitors and assesses the performance of the General Manager, was held by the respondent and not identified or located. In my view, that information, to the extent it was held by the respondent, was identified by the respondent in its response. That is, the information identified by the respondent was the information it held relevant to the methodology/process by which it monitored and assessed the performance of Mr Moore at the relevant time. The methodology and process being reflected in the pro-forma forms that were used and the report tabled at the respondent Council meeting. Again, I accept that the applicant possibly views these methods/processes as being inadequate. However, this is not a matter for the tribunal.
In regard to the scope of the applicant's GIPA request, I do not accept that it can be construed so widely to include any information held by the respondent that might relate to the General Manager's performance more generally, such as the applicant's email of 28 July 2009. Accordingly, I am satisfied that the respondent has established that it has responded to the terms of the applicant's GIPA request and undertaken all reasonable searches.
The deleted information
As I have explained above, in regard to the deleted information, the first issue to be determined is whether the public interest considerations against disclosure, relied on by the respondent, apply to that information. It is then a question of identifying the public interests in favour of disclosure and balancing the public interest considerations against disclosure (if any) to determine whether the latter, on balance, outweighs the former: see sections 12, 13 and 14 of the GIPA Act.
(a) Public interest considerations against disclosure
As identified above, the introductory words to item 1, 3 and 6 of the Table to subsection 14 of the GIPA Act require the decision maker to enquire 'if disclosure of the information could reasonably be expected' to have the effect as prescribed in one or more of the paragraphs in the relevant item. These introductory words have been the subject of considerable judicial consideration with respect to its use in the context of exempt documents under the repealed Freedom of Information Act 1989 (NSW) and also the Freedom of Information Act 1982 of the Commonwealth. The same meaning has been applied to this phrase as it appears in the table to section 14 of the GIPA Act. That is, the words in the phrase are to be given their ordinary meaning and ' require a judgement to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous' to expect to have the prescribed consequences: see McKinnon v Blacktown City Council [2012] NSWADT 44, at [40] - [44], Attorney-General's Department v Cockcroft (1986) 10 FCR180, at 190 and McKinnon v Secretary, Department of Treasury [2006] HCA 45, at [61].
Item 1(d) - prejudice the supply of confidential information - I note that the Report and the Attachments thereto are not identified as being confidential. However, as I have mentioned, the Report and the Attachments were considered by the Councillors during the course of an ordinary meeting of the respondent Council that was closed to the public. On this basis and the evidence of Mr Moore, Mr Byrne and Ms Tiddy that the process is confidential, I am satisfied that information of the kind in issue is treated by the agency as 'confidential information': see Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [33] and [34]. The question is whether the respondent has established that the disclosure of the information could reasonably be expected to 'prejudice' the supply of confidential information of this kind that facilitates the effective exercise of the respondent's functions. The word 'prejudice' in this context has been held to have its ordinary meaning 'to cause detriment or disadvantage': Re Maher and the Attorney General's Department (No 2) (1986) 4 AAR 266.
In her evidence, Ms Tiddy said that it was her experience that it can be challenging to arrive at an agreed performance appraisal of a general manager, be it satisfactory or unsatisfactory. She went on to say that appraisals often include reference to an employee's personal details. She explained that in the case of an unsatisfactory appraisal, there might be mitigating personal factors contributing to this and that addressing and improving such often takes time, requiring ongoing mentoring, training and advice. Ms Tiddy concluded by saying: 'I expect that the likelihood that frank discussion of sensitive matters in performance management scenario will be compromised, if not severely limited, if such matters were to be shared in the public arena.' Ms Tiddy's remarks are of a general nature and not specific to the content of the deleted information, which she has not seen.
In his evidence, Mr Byrne said that the aim of the performance management process was to provide feedback to general managers so that they can be confident that they are managing to the council's satisfaction, or they need to take steps to improve. He said Councillors and general managers 'need to be straight forward' and that due to the sensitivity of the process both parties need to be confident that they will not be misquoted or have the information reacted to in a negative way.
In his evidence, Mr Moore said that he believed general managers would be less willing to participate in the existing review processes if reviews of this nature were not conducted in confidence. I accept that this is the view of Mr Moore. However, his view cannot be determinative of the issue for the purpose of this public interest consideration against disclosure as it is not a question as to whether the disclosure of the information would prejudice the supply of information from Mr Moore or a review panel.
Nor, in my view, does the evidence of Ms Tiddy, or Mr Byrne establish the relevant reasonably to be expected prejudice as the content of the pro-forma form and the entries made to it do not reflect the concerns they have raised. I note that the appointment of a general manager of a council is a statutory appointment and the position carries with it specific statutory functions: see section 335 LG Act, which is in the following terms:
335 Functions of general manager
(1) The general manager is generally responsible for the efficient and effective operation of the council's organisation and for ensuring the implementation, without undue delay, of decisions of the council.
(2) The general manager has the following particular functions:
· to assist the council in connection with the development and implementation of the community strategic plan and the council's resourcing strategy, delivery program and operational plan and the preparation of its annual report and state of the environment report
· the day-to-day management of the council
· to exercise such of the functions of the council as are delegated by the council to the general manager
· to appoint staff in accordance with an organisation structure and resources approved by the council
· to direct and dismiss staff
· to implement the council's equal employment opportunity management plan.
(3) The general manager has such other functions as may be conferred or imposed on the general manager by or under this or any other Act.
As I have mentioned, an appointment to the position is based on a performance-based contract: see section 338 of the LG Act. The applicant has been provided with a copy of Mr Moore's contract. The contract contains a list of key responsibilities and key performance measures, which accord with the job description and the statutory functions of the position. I understand Mr Moore's contract and job description accords with the LGS Associations' model contract and job description. The pro-forma performance form is, I note, essentially based on the contract key responsibilities and key performance measures.
As the position of general manager is statute based and there is a statutory requirement to measure the performance of the person in that position, it is difficult to envisage that a disclosure of the information in issue could reasonably be expected to prejudice the supply of information of the kind in issue. On the contrary, arguably on the principles of open government, there may be an obligation to provide information of the kind in the pro-forma form and that, which is relevant to the functions of the general manager position.
Accordingly, I am not satisfied that the public interest consideration against disclosure as set out in item 1(d) of the table to subsection 14(2) applies to the information in issue.
Item 1(g) - disclosure of information provided to the agency in confidence -The question for determination in this public interest consideration is whether the information in dispute was 'provided' to the respondent in confidence. On the basis of my findings above, I am satisfied that the respondent has established that the disputed information was provided in confidence. While the review panel's report and the attachments thereto are not marked confidential, the evidence is that performance monitoring and the review process is confidential and on this basis I accept that the information was provided in confidence.
Accordingly, I am satisfied that the respondent has established this public interest consideration against disclosure.
Item 1(h) - prejudice the effectiveness of a review conducted by the respondent - It is the contention of the respondent that disclosure of the results of Mr Moore's performance review could reasonably be expected to prejudice the effectiveness of Mr Moore's performance review under his current contract of employment, which does not expire until 2015. In support of its contention the respondent relied on the abovementioned evidence of Ms Tiddy and Mr Byrne.
I have some difficulty in seeing how the above evidence of Ms Tiddy and Mr Byrne is of any relevance to this public interest consideration against disclosure. Ms Tiddy has not seen the results of Mr Moore's performance review and Mr Byrne makes no reference as to how a disclosure of the results of Mr Moore's performance review could reasonably be expected to prejudice the effectiveness of that review and future reviews. Accordingly, I am not satisfied that the respondent has established this public interest consideration against disclosure applies to the information in dispute.
Item 3(a) - personal information - The term 'personal information' is defined in clause 4 of Schedule 4 of the GIPA Act as follows:
(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.
Item 3(a) also refers to a disclosure that would 'reveal' a person's personal information. The word 'reveal' is defined in clause 1 of Schedule 4 to mean:
reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)
In my view, having regard to the content of the deleted information entered by Mr Moore, it is not personal information. It is no more than Mr Moore reporting on what he and the organisation had achieved during the review period. That information, as I have indicated above, is about what he had achieved in the course of performing his statutory functions.
However, I accept that the review panel's assessment of Mr Moore's performance in fulfilling those functions is personal information and that a disclosure of that information could reasonably be expected to reveal that information.
Accordingly, I am satisfied that the respondent has established that the deleted information, which is the review panel's assessment of Mr Moore's performance of his statutory functions, is information falling within item 3(a) of the table to subsection 14(2) of the GIPA Act.
Item 6 - secrecy provisions - The respondent relies on section 10A and 664 of the LG Act as the basis on which this public interest consideration against disclosure is established. Section 10A of the LG Act relevantly provides as follows:
10A Which parts of a meeting can be closed to the public?
(1) A council, or a committee of the council of which all the members are councillors, may close to the public so much of its meeting as comprises:
(a) the discussion of any of the matters listed in subclause (2), or
(b) the receipt or discussion of any of the information so listed.
(2) The matters and information are the following:
(a) personnel matters concerning particular individuals (other than councillors),
(b) the personal hardship of any resident or ratepayer,
(c) information that would, if disclosed, confer a commercial advantage on a person with whom the council is conducting (or proposes to conduct) business,
(d) commercial information of a confidential nature that would, if disclosed:
(i) ...
(3) ...
As I have indicated, the respondent Council exercised its power, under section 10A of the LG Act, and closed its meeting to the public when discussing the Report of the review panel in regard to Mr Moore's performance review. The basis on which it was closed was stated to be 'personal matters'.
Section 664 of the LG Act relevantly provides:
664 Disclosure and misuse of information
(1) A person must not disclose any information obtained in connection with the administration or execution of this Act unless that disclosure is made:
(a) with the consent of the person from whom the information was obtained, or
(b) in connection with the administration or execution of this Act, or
(c) for the purposes of any legal proceedings arising out of this Act or of any report of any such proceedings, or
(d) in accordance with a requirement imposed under the Ombudsman Act 1974 or the Government Information (Public Access) Act 2009, or
(e) with other lawful excuse.
(1A) In particular, if part of a meeting of a council or a committee of a council is closed to the public in accordance with section 10A (1), a person must not, without the authority of the council or the committee, disclose (otherwise than to the council or a councillor of the council) information with respect to the discussion at, or the business of, the meeting.
(1B) Subsection (1A) does not apply to:
(a) the report of a committee of a council after it has been presented to the council, or
(b) disclosure made in any of the circumstances referred to in subsection (1) (a)-(e), or
(c) disclosure made in circumstances prescribed by the regulations, or
(d) any agenda, resolution or recommendation of a meeting that a person is entitled to inspect in accordance with section 12.
(2) ...
(3) ...
Maximum penalty: 50 penalty units.
In his written submissions on behalf of the applicant, Mr Timmins appears to concede that section 664 of the LG Act is a provision falling within item 6(1) of the table to subsection 14(2) of the GIPA Act. However, he went on to contend that little weight should be given to this public interest consideration against disclosure. The respondent, on the other hand, submitted that considerable weight should be given to this public interest consideration against disclosure on the basis of Parliament having expressly prohibited the disclosure of information of this kind.
In my opinion, section 664 of the LG Act is no more than an expression by Parliament that disclosure of information obtained in the administration of the LG Act is to be done in an orderly and appropriate manner having regard to the purpose for which it was obtained or created. This in my view is reflected in the breadth of the circumstances in which information can be disclosed as set out in paragraphs 664(1)(a) to (e) (including under the GIPA Act) and subsection 664(1B). Accordingly, in my view little weight can be given to this public interest consideration against disclosure.
(b) Public interest considerations in favour of disclosure
The respondent identified the following public interest considerations in favour of disclosure:
- the statutory presumption in favour of the disclosure of information held by government agencies;
- that disclosure could reasonably be expected to promote open discussion of public affairs or contribute to positive and informed debate on issues of public importance; and
- that disclosure could reasonably be expected to ensure effective oversight of the expenditure of public funds.
In addition to these, the applicant submitted that the following public interest considerations in favour of disclosure were also relevant:
- to advance a system of responsible representative democratic government that is open, accountable, fair and effective;
- enhance accountability by revealing the respondent's approach to the exercise of one of its most important statutory functions, the oversight of the General Manager's performance;
- allow or assist inquiry regarding the conduct of councillors, administration of the council, and the performance of the General Manager; and
- reveal the reason or reasons for the respondent's decision to enter into a new five year contract with Mr Moore prior to undertaking the review process, and any background or contextual information that informed that decision.
In Lower Burdekin Newspaper Company Pty Ltd and Lower Burdekin Shire Council [2004] QICmr 2 (24 February 2004) at [27] and [28] the Queensland Information Commissioner made the following observations in regard to the public interest in having access to sufficient information to scrutinise how public funds are spent, in particular information in regard to the remuneration of senior officers who are responsible for devising and implementing the strategic and operational plans of a local council:
27. Information about the gross salary paid to an employee of a government agency has a dual character. It is both information about the income of an identifiable individual (and hence information concerning that individual's personal affairs) and information about the cost of having the duties of the relevant position performed for the benefit of the public. Governments fund their operations by imposts on the public of one kind or another. In a representative democracy, elected representatives are accountable to the electors for decisions made in respect of raising and spending public funds. The public has a strong, legitimate and abiding interest in having access to sufficient information to enable scrutiny of whether funds raised by government are expended efficiently and effectively in furtherance of the wider public interest. This extends to scrutiny of whether the public is obtaining value for money from performance of the duties of particular positions for which a government has decided to allocate funding. This public interest is even stronger in the case of senior officers who have responsibility for devising and/or implementing strategic and operational plans, and delivering key performance outcomes.
28. I consider that there is a strong public interest consideration favouring disclosure to any interested member of the public, of information as to the total cost in salary and related expenses of any job for which a government decides to allocate funding, and that it is even stronger in the case of senior management positions of the kind under consideration in the present case. ...
In my view, there is a similar public interest in having sufficient information to scrutinise the statutory functions being performed by a general manager of a local government, as that position is one of considerable power and influence in the manner in which a local government operates and exercises its functions (for example, its service, regulatory, administrative and revenue functions). That is, information about the statutory functions being performed by the general manager and what methods and processes are used by the elected Council Members to monitor and assess those functions will enhance local government accountability.
(c) Where does the balance lie?
As I have indicated, the test in section 13 of the GIPA Act requires the tribunal (and the respondent before it) to determine whether, on balance, the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure.
For the purpose of this application it is convenient to determine where that balance lies in regard to the four categories of information as set out in paragraph 9 above.
The Report paragraph 4 and 5 - The information in these paragraphs, if disclosed would reveal the review panel's assessment of Mr Moore's performance (i.e. personal information about Mr Moore). It is also information that was provided by the review panel, in confidence. Considerable weight is usually given to the public interest considerations against disclosure of information of this kind. However, in this case, less weight should be given as the personal information about Mr Moore is very brief, summary and very general in nature and now more than two years old.
On the other hand, for the reasons I have given, considerable weight should be given to the public interest considerations in favour of disclosure. Especially the public interest in enhanced accountability of local government and how it operates and functions.
Accordingly, having regard to the public interest considerations in favour of disclosure of the information in paragraph 4 and 5 and those against disclosure, I find, on balance, the public interest considerations against disclosure do not outweigh those in favour of disclosure.
Attachment 1 - summaries pages 4 to 8 - To the extent the information on these pages is information contained in the pro-forma form (e.g. headings), dates, and information that has already been disclosed (see page 4, the first sentence), the public interest considerations against disclosure of this information is limited to that contained in item 1(g) of the table to subsection 14(2) of the GIPA Act (i.e. information provided in confidence). The remaining deleted information is personal information about Mr Moore in that it is a record of the review panel's ratings (assessments) of Mr Moore's performance, which was provided in confidence. Although the information was provided more than two years ago, in my view, considerable weight still needs to be given to the public interest consideration against disclosure of the information, on page 4, 7 and 8, that is a record of the review panel's assessment of Mr Moore's performance in respect of specific performance functions. While that information is a summary it remains sufficiently detailed about the review panel's assessment of particular areas of performance.
However, the review panel's summary on page 5 and 6 and its overall ratings on page 8 do not fall within this category. The information is no more than a brief statement about Mr Moore's overall performance and for the reasons set out above, I find that the public interest consideration against the disclosure of this information should not be given considerable weight. And on balance, I find that this public interest consideration against disclosure does not outweigh the public interest consideration in favour of disclosure of the information that is review panel's summary on page 5 and 6 and its overall ratings on page 8.
Part One of Attachment 1 - pages 12 to 38 - The deleted information is that contained in the last two columns of the schedule that is Part One of Attachment 1. In this regard I note that the headings in these columns have also been deleted. There does not appear to be any basis for this and they should be disclosed. The remaining deleted on these pages are the comments inserted by Mr Moore and the review panel's assessment. I have found that the comments made by Mr Moore are not personal information, but they were provided in confidence. In my view, as Mr Moore is the holder of a statutory position and his insertions are relevant to his statutory functions and those of the Council, the weight normally given to this public interest consideration against disclosure is not very high. And on balance, I find that it does not outweigh the public interest consideration in favour of disclosure.
This leaves the information that is the review panel's assessment. I have found that this information is personal information about Mr Moore that was provided in confidence. Again, for the reasons set out above, in my view considerable weight should be given to this public interest consideration against disclosure. While the public interest considerations in favour of disclosure are also strong, on balance, I find that the public interest consideration against disclosure is an overriding one.
Part Two of Attachment 1 - pages 39 to 43 - The applicant has not been provided with any of the information on these pages. As I have explained Part Two of the pro-former form deals with the strategic objectives of the general manager position in regard to the Council's priority areas. The information is also in the form of a schedule. In its Report to the Council, the review panel explained that 'Part 2' of Attachment 1, was to be reviewed 'in conjunction with the Local Government Association' and '[T]herefore the Draft Part 2 items at Attachment 2 will be subject to the outcomes of this review.' As I have explained, the applicant was provided with a copy of Attachment 2 when the respondent made its initial determination.
Having regard to what has been disclosed in Attachment 2, it is difficult to understand why there has been no disclosure of the formal matters (including headings) and the information in the first three columns in Part Two of Attachment 1. It is not personal information about Mr Moore and while I accept the information was provided in confidence, little weight can be given to that public interest against disclosure in light of what has been disclosed.
The information in the remaining columns is information inserted by Mr Moore and the review panel's assessment (if any) of Mr Moore. For the same reasons set out in paragraphs 79 and 80 above, (i.e. the comments inserted by Mr Moore and the review panel's appraisal), I find that, on balance, (a) the public interest consideration against disclosure of the information inserted by Mr Moore does not outweigh the public interest consideration in favour of disclosure and (b) the public interest consideration against disclosure of the information that is the review panel's appraisal does outweigh the public interest consideration in favour of disclosure.
Conclusions and Orders
For the reasons set out above, in summary I have found:
(a) that the respondent has undertaken reasonable searches to identify all information it held, as at the date it received the applicant's GIPA, falling within the scope of that request.
(b) that the decision of the respondent in regard to the deleted information in paragraph 4 and 5 in Report No AD 300030 is not the correct and preferred decision, and
(c) that the decision of the respondent, in part, in regard to the deleted information in Attachment 1 to Report No AD 300030 is not the correct and preferred decision.
On the basis of my findings the appropriate orders are:
1. The decision of the respondent is varied by granting the applicant access to the following additional information in Report No AD 300030 and Attachment 1 to that Report:
paragraph 4 and 5 of the Report
the headings, dates and any other information of a formal nature in Part One and Part Two of Attachment 1
the information on page 4 and 7 of Attachment 1 that has already been disclosed in the Report
the information on page 5 and 6 of Attachment 1
the information on page 8 of Attachment 1 that is the overall rating
the information inserted by Mr Moore in Part One and Part Two of Attachment 1
the information in the first 3 columns of the schedule in Part Two of Attachment 1
2. Within 28 days of this decision, the respondent to provide the applicant with a further copy of the Report and Attachment 1 in accordance with the terms of order 1 above.
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Decision last updated: 12 February 2013
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