Clarkin v Newcastle City Council

[2013] NSWADT 44

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Clarkin v Newcastle City Council [2013] NSWADT 44
Hearing dates:	15 November 2012
Decision date:	25 February 2013
Jurisdiction:	General Division
Before:	Naida Isenberg, Judicial member
Decision:	The decision under review is set aside and the respondent is directed to provide to the applicant a copy of the document to which access has been sought within 30 days of publication of these reasons.
Catchwords:	"disclose" - "reveal" - information, not documents
Legislation Cited:	Freedom of Information Act 1989 Privacy and Personal Information Protection Act 1998 Housing Act 2001
Cases Cited:	Flack v Commissioner of Police [2011] NSWADT 286 Leech v Sydney Water Corporation [2010] NSWADT 298 Hurst v Wagga Wagga City Council [2011] NSWADT 307 Director General, Department of Education & Training v Mullett & Anor (GD) [2002] NSWADTAP 13 Camilleri v Penrith City Council[2012] NSWADT 196 NSW Office of Liquor, Gaming and Racing v Fahey [2012] NSWADTAP 55 Nature Conservation Council of NSW v Department of Trade and Investment, Regional Infrastructure and Services[2012] NSWADT 195 R v Ritson; R v Stacey (2010) NSWDC 160 Foster v Federal Commissioner of Taxation(1951) 82 CLR 606 Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98 Marrickville Legal Centre v Chief Commissioner of State Revenue [2012] NSWADT 98
Category:	Principal judgment
Parties:	Michael Clarkin (Applicant) Newcastle City Council (Respondent)
Representation:	M Clarkin (Applicant in person) Newcastle City Council (Respondent)
File Number(s):	123176

reasons for decision

Background

1. On about 21 April 2010 the respondent received a letter ('the complaint letter'), headed:

"Re: UNAPPROVED WINDOW & PRIVACY ISSUES:

Development to residence at [the applicant's address]"

1. The author of the complaint letter ('the complainant') suggested that some unauthorised building work was being undertaken by or on behalf of Michael Clarkin, the applicant.

1. The applicant claims to have been shown a copy of the complaint letter by one of the respondent's officers, Mr Wright, who attended the applicant's property for a progress inspection and investigate the allegations in the letter.

1. The applicant made an application to the respondent under Government Information (Public Access) Act 2009 ('GIPA Act') for access to:

Letter of complaint regarding my extensions at [address] re Steve Wright's inspection May 2010.

1. The respondent provided a heavily redacted version of the complaint letter to the applicant and refused access to the remainder on the grounds that there was an overriding public interest against disclosure.

1. At the applicant's request a review was conducted by the Office of the Information Commissioner ('OIC') and some recommendations were made to the respondent, and some further information was provided to the applicant on internal review.

1. An unredacted copy of the complaint letter has been provided to the Tribunal on a confidential basis.

Issue before the Tribunal

1. Is there an overriding public interest against disclosure of the information sought by the applicant in terms of s. 13 of the GIPA Act?

Relevant Legislation

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:

(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.

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

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 a Table in s. 14 of the GIPA Act.

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:

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.

1. Section 54 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. 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).

THE EVIDENCE

1. A statement was provided by Stephen Wright, a Development Officer employed by the respondent. Mr Wright also gave evidence in which he adopted his statement.

1. In his statement Mr Wright wrote that the complainant alleged that a window was being installed at the applicant's property that had not been depicted on the drawings of the proposed works in the development application ('DA'). The complaint letter was assigned to him to investigate as he had previously carried out progress inspections pursuant to the DA and had previously investigated a dividing fence issue involving the applicant's property.

1. When he asked the applicant's builder about the window he was told there no window being installed in the claimed location and that it was just the way the timber stud framing was erected [which may have led the complainant to the view that a window was to be erected there]. Nonetheless, on 5 May 2010 Mr Wright attended the applicant's property to carry out an inspection to confirm that no window was in fact being constructed. He told the applicant he was following up a complaint received from a neighbour about the additions and the window being installed on the second level. He did not name the neighbour but the applicant guessed who it was, and Mr Wright did not deny that that was the complainant.

1. Mr Wright said that after he looked at the stud framing on the west wall, he went back into the house and re-joined Mr Clarkin. He had the DA file in his (sic) arms. In cross-examination he agreed the complaint letter was on top of the file.

1. Mr Wright said he told the applicant he was satisfied there was no window being installed, but that he had just want to check there was nothing else raised in the complaint letter that he needed to look at while he was there; he said he thought the complaint letter also had a reference to a privacy screen. He agreed in cross-examination that he had to give the applicant some access to the complaint letter and the accompanying photographs in order to explain the complaint. He said the applicant had been confused because there had been a previous issue in relation to a north-facing window as well and this had also been raised in the complaint letter.

1. In his evidence the applicant said that at first Mr Wright just asked a few questions but 'it got confusing' and Mr Wright had to read out from the complaint letter so that he, the applicant, could understand the concerns that had been raised. What Mr Wright had been saying did not make a lot of sense. Mr Wright had read out some of the complaint letter 'word for word'. He said that Mr Wright had no other avenue in order to resolve the complaint because the complaint letter was so confusing. By way of example he said that there was clearly no problem about shading or about a rear window, although these were referred to in the complaint letter. He said Mr Wright went through the complaint letter and talked about shading and other issues such as 'the daughter's privacy'.

1. Mr Wright said Mr Clarkin, while sitting on a desk facing Mr Wright, talked about the history of issues between himself and his next door neighbours ('the neighbours'). He stood up and moved next to Mr Wright when he started to review the complaint letter and continued to talk about the neighbours while Mr Wright scanned the complaint letter to make sure he had looked at all matters it raised. In particular Mr Wright was looking for something about obscured glass windows not being installed which he recalled being in the complaint letter.

1. During his review of the complaint letter Mr Clarkin made a comment that indicated to him he was able to see the complaint letter as he scanned through it. The applicant said words the effect of "Me, vexatious?" and then he continued to tell Mr Wright about the dividing fence issue he had with the neighbours. In cross-examination Mr Wright agreed that the applicant had seen that turn of phrase n the complaint letter.

1. At the back of the letter were some photographs regarding the alleged attic window. Mr Wright said he showed some of the photographs to Mr Clarkin, to make sure he understood where no window was to be installed. He said "Here is a photo of the alleged window. There is to be no window there as discussed with your builder". On the same page was a photograph taken from inside the neighbour's house. Mr Clarkin then said "It's obvious from these photos the letter is from the [neighbours]". Mr Wright did not recall what he said in response but he did not deny this statement.

1. Mr Wright thought Mr Clarkin would not have been able to read the entire letter as he only had it open long enough to skip through it. He agreed it is possible that Mr Clarkin read some parts of each page as he was standing to his side. Mr Wright said that each page of the letter was open for some 10 to 20 seconds while he scanned it for further matters he might need to look into. In cross-examination on behalf of the OIC he said that he revisited parts of the letter so the total time he looked at each page was up to twice as long as he had estimated.

1. When he had finished scanning through the letter there was some further discussion about whether the north and south windows in the existing building were meant to be obscured glass.

1. Mr Clarkin then asked if he could have a copy of the letter, noting that it was a long letter, but Mr Wright had only raised 2 issues, and he wanted to know what else was in it. Mr Wright said he was unable to provide him with a copy but he could obtain a copy through Freedom of Information.

1. Mr Clarkin said he read and retained the information because it was painting him in a bad light. He did not go and 'write it down' but he noted that he has been a teacher with TAFE NSW for over 10 years and that includes training people on how to retain information. He said he does not need a long time perusing a document to retain even at a minimum, the main points.

1. Mr Wright said he did not specifically show the applicant the complaint letter, give him permission to read it, nor allow him to read the complaint letter at his leisure because he thought the content of the letter would anger him. However he did not prevent him from looking over his arm at the file while he was flicking through the letter to ensure he had addressed all relevant issues raised. He does not know what Mr Clarkin was or was not able to read during this time.

1. In its internal review the respondent conceded that the applicant had 'seen' a copy of the complaint letter during the respondent's officer's site visit to the applicant's property but that it was unknown whether the applicant was able to read the entire letter, or any particular part of the letter. It was later conceded that it was possible that the applicant could have read some parts of each page of the letter while looking from where he was standing to the side of Mr Wright.

1. In a written statement the applicant noted some matters which he said he had observed in the complaint letter:

• The identity of the complainant
• The complainant referred to the design of their laundry
• The complainant claimed not to have been told of the applicant's proposed extensions.
• Issues in relation to the quality of life of the complainant's daughter
• Allegations of 'aberrant' behaviour
• Discussion about other neighbours having no option but to install frosted glass
• The issue in relation to the other neighbours would be recorded on the respondent's file
• One window should be the same as that for the other neighbours
• The complaint letter contained 6 photographs of the rear of his premises

CONSIDERATION

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 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 GIPA Act reiterates the general presumption in favour of disclosure of government information, and lists examples of public interest considerations that favour disclosure. Those 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.
• Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.
• 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.
• Disclosure of the information could reasonably be expected to advance the fair treatment of individuals in accordance with the law in their dealings with agencies
• Disclosure of the information could reasonably be expected to reveal the reason for a government decision and any background or contextual information that informed the decision
• Disclosure of the information could reasonably be expected to contribute to the administration of justice generally, including procedural fairness

1. The list is not exhaustive. In addition, the applicant asserted in the application that he took umbrage at aspects of the complaint letter. He noted that the complaint letter alluded to him as being an 'unsavory character'. He also complains, to the effect, that his privacy has been breached because the complaint letter included photographs that had been taken over the rear fence and into his property. The applicant also took issue with a number of matters raised by the complaint letter: 'lies'. He wrote in his statement that if he cannot have access to these documents there is little hope for anyone that ever gets denigrated with untruths by another party ever having things put right.

Public interest considerations against disclosure

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

1. To raise these as relevant considerations in the application of the public interest test the respondent must establish that the disclosure of the information "... could reasonably be expected to have .... the effect" outlined in the Table.

1. The principles for the interpretation of "could reasonably be expected" were discussed in Flack v Commissioner of Police [2011] NSWADT 286 (at [40] - [41]), ('Flack'), adopting the approach taken in Leech v Sydney Water Corporation [2010] NSWADT 298:

The term 'could reasonably be expected' has been considered in a number of cases. The words have their ordinary meaning: Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163. The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC.

1. Because the respondent bears the onus of justifying its decision to refuse the applicant access to the information, it has the burden of establishing that the public interest considerations against disclosure it relies on apply. It also bears the burden of establishing that, on balance, they outweigh the public interest considerations in favour of disclosure.

1. The respondent submitted that the following public interest considerations against disclosure are relevant: Clause 3(a) - reveal an individual's personal information and Clause 3(b) - contravene an information protection principle under the PPIP Act

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

1. The term "reveal" is defined in clause 1 of Schedule 4 GIPA Act to mean "to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure). If the information in a record has been disclosed, it cannot then be "revealed" by giving access under the GIPA Act: Nature Conservation Council of NSW v Department of Trade and Investment, Regional Infrastructure and Services [2012] NSWADT 195 at [174]. This is consistent with the approach in R v Ritson; R v Stacey (2010) NSWDC 160 at [51] - [58], in which the Court adopted the meaning of "disclosure", albeit for the purposes of the Privacy and Personal Information Protection Act 1998 ('the PPIP Act'), the definition in Foster v Federal Commissioner of Taxation(1951) 82 CLR 606 at [614] -[615] per Latham CJ:

...it is not possible, according to the ordinary use of language, to 'disclose' to a person a fact of which he is, to the knowledge of the person making a statement as to the fact, already aware

1. Once information is known by an applicant, it cannot then be revealed or disclosed, unless it was originally revealed by unlawful means. The respondent had, in its written submissions, contended that, if there had been disclosure of some or all of the information in the complaint letter then it had been done unlawfully. That contention was not pressed at the hearing.

1. The respondent submitted that the term "disclose" connotes some positive act. I consider this to be an over-simplification of the test. What amounts to disclosure is a question of fact to be determined in each matter and it is not appropriate to prescribe a formula by which it could confidently be said that in all such circumstances information was 'disclosed'.

1. The respondent submitted there was insufficient evidence for the Tribunal to be satisfied that the respondent, through Mr Wright, had disclosed the information contained in the complaint letter. Alternatively, it submitted that, at most I could only be satisfied that a photograph was shown to the respondent. For the reasons that follow, I reject those submissions.

1. Mr Wright did not name the neighbour who had made the complaint but when the applicant guessed who it was, he did not deny that that was the complainant. He also did not deny that accompanying photographs appeared to have been taken from the neighbour's property.

1. There was no contention by the applicant that he was given or shown the letter to read from start to finish but Mr Wright said that he had to give the applicant some access to the complaint letter and the accompanying photographs in order to explain the complaint. I accept that the applicant stood next to Mr Wright while Mr Wright was reviewing the complaint letter, and, effectively, read over his shoulder while Mr Wright sought to ensure all matters raised in the complaint were addressed in the discussions. Even on Mr Wright's evidence, it was possible that Mr Clarkin read some parts of each page, which, on his evidence, could have been open for a total of up to 20 to 40 seconds. Mr Clarkin's evidence, which was unchallenged, was that, as a teacher, he does not need a long time perusing a document to retain even at a minimum, the main points.

1. I observe that there was no dispute that the applicant was able to read from the text the word 'vexatious', which is not given any prominence in the document that might make it stand out to a reader. Nor does that word appear at the top of the page, which might suggest a reader had the opportunity to read through the page at least to that point.

1. The applicant listed a number of matters he had observed in the complaint letter. The complaint letter indeed referred to those matters. While it is possible he learned of these issues in the course of his discussions with Mr Wright, such a conclusion is not supported, having regard to the strong evidence that he had the opportunity to read most, if not all of the letter, albeit on a piecemeal basis. He also identified that the complaint letter contained multiple photographs of the rear of his premises and that some at least had been taken from his neighbour's property. Such an observation could only have been made by seeing those photographs.

1. Further, it is helpful to recall that the definitions of 'government information', 'personal information', and 'reveal' in the GIPA Act operate on information alone, not, as was the case under the Freedom of Information Act 1989, with respect to documents. Further, the issue for consideration is not whether the document has been publicly disclosed, but whether the information contained therein has been publicly disclosed. The effect of s 105(1) is to place the burden of establishing that release under the GIPA Act could reasonably be expected to reveal an individual's personal information, is on the agency. Where there is material indicating that the information has already been publicly disclosed, that burden requires the agency to establish that it was not: Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98 at [40].

1. I find that the information contained in the complaint letter, the subject of the applicant's GIPA request, has already been disclosed, and hence revealed. Accordingly, release under the GIPA Act could not reasonably be expected to reveal the complainant's personal information. As a result, the public interest against disclosure in cl 3(a) of the Table cannot be relied on as a ground for refusing disclosure.

Clause 3(b) - contravene an information protection principle under the PPIP Act

1. The Respondent submitted that any disclosure was reasonably necessary for the respondent to carry out its investigative functions. There was no dispute that Mr Wright was engaged in an investigation as to whether some unauthorised work was being taken on the applicant's premises.

1. That being the case, it was submitted it was not necessary for the respondent to comply with s.18 of PIPP Act. Providing the information to Mr Clarkin in response to his access application would not reveal personal information as that information has already been lawfully disclosed. Consequently, the public interest against disclosure in cl 3(b) of the Table cannot be relied on as a ground for refusing disclosure.

Conclusion

1. The Tribunal's task is to determine whether there is an overriding public interest against disclosure of the information in it in accordance with the Act, paying due regard to the principles in s 15. This requires the Tribunal to consider whether, on balance, the public interest considerations against disclosure outweigh those in favour of disclosure can be determined: see Flack at [19] and Hurst v Wagga Wagga City Council [2011] NSWADT 307 ('Hurst') at [47]. Unless there is an overriding public interest against disclosure the presumption in favour of disclosure applies: s. 5 GIPA Act.

1. The respondent consulted the complainant: see s 54(2)(a). The complainant objected to the release of the complaint letter to the applicant. Lengthy submissions were provided to the Tribunal and I have taken these into account. From the document, the complainant actively sought the intervention of the respondent and is likely to have had a reasonable expectation that the substance of the complaint would be disclosed to the applicant. I have also taken into account the public interest in affording individuals the liberty to draw to the attention of agencies factual matters that they think may involve possible non-compliance: see NSW Office of Liquor, Gaming and Racing v Fahey [2012] NSWADTAP 55. As often transpires, and from Mr Wright's evidence and the respondent's submissions the matters raised did not appear to reveal any actual breach of the DA approval.

1. The respondent, from its action in investigating the complaint may place some reliance upon complaints about the conduct of persons in respect of compliance with its regulatory functions: Director General, Department of Education & Training v Mullett & Anor (GD) [2002] NSWADTAP 13. In the absence of evidence as to the extent the respondent may rely upon complaints as the source of its information, this consideration is given limited weight.

1. I find the respondent's submissions are not sufficiently persuasive for it to have discharged its onus under s. 105 of the GIPA Act and I find that the public interest considerations in favour of disclosure, outweigh the public interest considerations against disclosure.

Decision

1. The decision under review is set aside.

Orders

The respondent is directed to provide to the applicant a copy of the document to which access has been sought within 30 days of publication of these reasons.

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Decision last updated: 25 February 2013