Colussi v General Manager, Ku-Ring-Gai Council

[2004] NSWADT 224

CITATION:	Colussi v General Manager, Ku-Ring-Gai Council [2004] NSWADT 224
DIVISION:	General Division
PARTIES:	APPLICANT John C Colussi RESPONDENT General Manager, Ku-Ring-Gai Council
FILE NUMBER:	033325
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	06/04/2004
DATE OF DECISION:	10/07/2004
BEFORE:	Higgins S - Judicial Member
APPLICATION:	access to documents - if practicable to give access with exempt material deleted - access to documents - law enforcement & public safety - access to documents - personal affairs - Freedom of Information - access to documents - if practicable to give access with exempt material deleted - Freedom of Information Act - access to documents - law enforcement & public safety - Freedom of Information Act - access to documents - personal affairs
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Colakovski v Australian Telecommunications Corp (1991) 29 FCR 429 at 431-435 Re French (1987) 12 ALD 525 Re Green and Overseas Telecommunications Commission (1992) 28 ALD 655 Re Wong and Department of Immigration and Ethnic Affairs (1984) 12 AAR 208 at 210 Saleam v Director General, Department of Community Services and Ors [2202] NSWADT 41 Young v Wicks (1986) 13 FCR 85 at 89
REPRESENTATION:	APPLICANT In Person RESPONDENT L Finn, solicitor
ORDERS:	1 The decision of the Council in respect of the letter dated 22 August 2003 is affirmed; 2 The decision of the Council in respect of the email dated 13 May 2003 and the letter dated 8 September 2003 is set aside; 3 The email dated 13 May 2003 and the letter dated 8 September 2003 is remitted to the Council for reconsideration in accordance with these reasons for decision of the Tribunal

1 This is an application by Mr Colussi seeking review of a decision of a delegate of the General Manager of Ku-Ring-Gai Council (“ the Council ”) to refuse him access to documents he had requested under the Freedom of Information Act 1989 (“ the FOI Act ”).

2 Mr Colussi had made his FOI request on 9 September 2003. In his request, Mr Colussi stated that an officer of the Council had advised him that Council had received several written and oral complaints about a publicity poster that Mr Colussi had displayed at different places within the Ku-Ring-Gai area. A copy of the poster was attached to Mr Colussi’s request. That poster was an advertisement of Mr Colussi’s Italian language classes, which Mr Colussi stated the complainant had deliberately removed and destroyed. In his opinion, the consequence of this had been a sharp fall in the number of students who were enrolling in his course. He also stated that he understood that the Council had advised the complainant that the locations and lengths of time that the posters were being displayed were not illegal, and accorded with Council By Laws. Notwithstanding this advice, the complainant had continued to remove and destroy his posters, causing him ongoing economic loss.

3 Mr Colussi then requested the following, pursuant to the FOI Act:

“ … (a) I be informed of the name and address of the person who has made the written and oral complaints to the Council, and (b) I be given access to such correspondence”.
4 On 3 October 2003, another delegate of the General Manager determined Mr Colussi’s FOI Application. In that determination, of which Mr Colussi was advised on 7 October 2003, the delegate identified two documents coming within the terms of Mr Colussi’s FOI request. These were a letter dated 13 May 2003 and another letter dated 26 June 2003. Mr Colussi was refused access to these documents by reason of cl.6 of Schedule 1 of the FOI Act (personal affairs exemption).

5 Mr Colussi subsequently sought an internal review of the delegate’s determination. That review was finalised on 10 November 2003 and it was determined to affirm the original decision. Mr Colussi made his application to the Tribunal on 14 November 2003, seeking review of the delegate’s decision in refusing him access to the two documents identified in the original decision.

6 The Tribunal has jurisdiction to hear and determine Mr Colussi’s application pursuant to s.53 of the FOI Act and s.38(1) of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”).

7 The matter came before the Tribunal at planning meetings and directions hearings on 16 December 2003, 27 February 2004 and 28 May 2004. On 28 May 2004, the parties agreed that the matter be determined on the papers.

RELEVANT LEGISLATION

8 The relevant legislation is the FOI Act. Part 3 of that Act makes provision for any person to make an application for access to documents held by a government agency or a Minister (s.17 FOI Act). Where a person makes such an application the agency is required to determine whether access to the document is to be given or refused (s.24 FOI Act). Access can only be refused on specified grounds (s.25 FOI Act).

9 Section 25(1)(a) of the FOI Act provides that an agency may refuse access to the document where the document is an “exempt document”. The term “exempt document” is defined in s.6 of the FOI Act to mean the following:

“ exempt document means:

(a) a document referred to in any one or more of the provisions of Schedule 1.”

10 In this case, the exemptions relied on are those contained in Clauses 4 and 6 of Schedule 1. These exemptions, so far as they are relevant, provide as follows:
“ 4. Documents affecting law enforcement and public safety
(1) A document is an exempt document if it contains matter the disclosure of which could reasonably be expected:
(a) …

(b) to enable the existence or identity of any confidential source of information, in relation to the enforcement or administration of the law, to be ascertained, or …

(2) A document is not an exempt document by virtue of subclause (1):
(a) …

(b) if disclosure of the document would , on balance, be in the public interest; …

6. Documents affecting personal affairs
(1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).

(2) document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made”.

11 Where a document contains information concerning the personal affairs of a third party to the FOI request, s.31 of the FOI Act provides that an agency is not to give access to the document unless it has taken such steps as are reasonably practicable to obtain the views of the relevant third party (i.e. the person whose personal affairs are contained in the document for which access has been requested).

12 Subsection 25(4) of the FOI Act provides that an agency shall not refuse access to an exempt document where it is practicably to give access to a copy of the document from which the exempt matter is deleted and the FOI applicant wishes to be given such a copy.

13 Section 55 of the FOI Act provides that the Tribunal, when determining a review application is to ensure that it does not, in its reasons for its decision or otherwise, disclose any exempt matter.

14 Section 61 of the FOI Act provides that in proceedings for external review, the burden of establishing that the determination of the agency is justified lies on the agency or the Minister.

EVIDENCE

15 The Council provided the Tribunal, on a confidential basis, copies of the relevant documents. There are in fact three documents, which come within Mr Colussi’s original request for access to documents. They are as follows:

(a) an email dated 13 May 2003 entitled “Profit Making Enterprises Littering the Community”;

(b) a handwritten letter dated 22 August 2003; and

(c) a reply from Council, dated 8 September 2003.

16 The Council also provided the Tribunal, on a confidential basis, with a letter from the complainant, dated 2 October 2003, in which the complainant states that his/her complaints were provided to the Council in confidence.

17 Both parties also provided the Tribunal with written submissions, which included statements as to whether or not the documents should or should not be disclosed.

18 The Council, in its submissions, stated that a large part of the information upon which the Council relies in order that it may carry out its statutory duties and responsibilities under the Local Government Act, the Environment Planning and Assessment Act, and related Acts, comes from members of the local community. As it does not have sufficient resources to be in all places at all times, the Council relies upon this information, particularly in respect of reports of illegal lopping of trees and other environmental matters which are of concern to the Council and the general public.

19 In his submissions, Mr Colussi stated that he had found that the most effective way of advertising his business was by displaying his posters in shops and areas of public concourse for a period of about four to six weeks prior to the commencement of his classes. On each occasion, before he puts the posters up, he has always obtained the consent of the relevant manager at the Council.

20 He states that in 2003, his wife and he received three anonymous telephone calls complaining about his poster advertising. The caller stated that the posters were illegal and that he was removing them, and that he had Council’s permission to do so. The caller was a male and refused to listen to any explanation that Mr Colussi’s wife or he sought to give.

21 In September 2003, Mr Colussi received a call from the Senior Ranger of the Council, advising him that Council had received several letters and phone calls of complaint about Mr Colussi’s posters, and that the complainant was becoming a “serial pest”. The Senior Ranger did not provide the name of the complainant, but advised Mr Colussi to apply under the FOI Act for these details. After access to the information was refused, Mr Colussi also contacted the police. In January and February 2004, Mr Colussi’s posters were removed again. The Tribunal was also informed that Mr Colussi has commenced litigation against a person, seeking damages in respect of the removal of his posters.

SUBMISSIONS

22 The Council, in its written submissions, argued that the documents concerned: “a persons personal affairs as they identify the individual concerned. The documents also contain the address of the individual.”

23 It was contended that the disclosure of the documents would in the circumstance constitute an unreasonable disclosure and would not be in the public interest. The basis of this contention was the fact that the documents concerned a complaint made to Council, in confidence, and that the complaint was of a type relied on by Council to perform its statutory functions. In addition to this, the Council relied on the fact that the complainant had indicated his/her wishes that the document not be released, and Mr Colussi’s intention to use the documents for the purpose of bringing legal action against the complainant.

24 The Council also submitted that the documents were exempt under cl.4(1)(b) of Schedule 1 of the FOI Act for the same reasons. The Council’s final submission was that a disclosure, in particular a disclosure of the identity of the complainant, was against the public interest to the extent that it would breach the provisions of the Privacy & Personal Information Protection Act 1998 (“the PPIP Act”), in particular ss.17 and 18.

25 In his submission Mr Colussi contends that the withholding of the documents is not an infringement of the right to privacy and states that: “… on the contrary, the withholding of the information militates against the protection of the public interest and affords non-existent rights of anonymity to a person who is a self-confessed breaker of the law and whose actions have undermined the rights of another to earn a legitimate living.” Mr Colussi then gives two examples to demonstrate his point. The essence of his submissions is that the FOI Act and the PPIP Act are not intended to protect the anonymity of complainants who engage in unlawful activities.

REASONS AND DECISION

26 The role of the Tribunal is to determine whether the decision of the delegate of the General Manager is the correct and preferred decision having regard to the relevant facts and the applicable law: see s.63, ADT Act.

27 As mentioned above, the relevant legislation is that which is contained in the FOI Act. While the Council has sought to also rely on the provisions of the PPIP Act, in my opinion, this Act is of no relevance to the determination of this application. As indicated in the Council’s submissions, s. 5 of the PPIP Act expressly provides that nothing in that Act affects the operation of the FOI Act. While the principles underlying the privacy of personal information under the PPIP Act may overlap those underlying the exemption in respect of the “personal affairs” exemption contained in cl.6 of Schedule 1 of the FOI Act, when determining whether a particular document, for which access has been requested under the FOI Act, should or should not be released the agency is bound by the provisions of the FOI Act alone. As mentioned above, that Act gives every person a right to access to documents held by an agency unless it can establish one of the grounds for refusing access as set out in s.25 of the FOI Act. One such ground is cl.6(1) of Schedule 1 of the FOI Act. In order to refuse access under this ground the agency must satisfy itself that the disclosure of the document “would involve the unreasonable disclosure” of information that concerns the personal affairs of a person other than the FOI applicant.

28 It is well established that the concept “unreasonable disclosure” is a balance between two public interests, namely the public interest, which underlies the FOI Act of persons having a right to access of documents held by an agency and the public interest that personal affairs are not disclosed. This concept is discussed more fully below. While the PPIP Act, which came into operation after the FOI Act, makes provision for the protection of “personal information” collected, held, used and disclosed by an agency, it is clear that Parliament intended, through the enactment of s.5 of that Act, that the provisions of the FOI Act were to prevail notwithstanding the protections provided for “personal information” under the PPIP Act. That is, the mere fact that a document contains “personal information” about a person, other than the FOI applicant, will not, on its own, be sufficient grounds to refuse access to the document. The agency must continue to make a determination under cl.6 of the FOI Act by deciding where the balance lies between the abovementioned competing public interests in the particular circumstances of each FOI application.

29 In my opinion, Mr Colussi has also misunderstood the principles underlying the FOI Act. As mentioned above, in his FOI request Mr Colussi sought “information” as well as documents. The “information” he sought was the name of the person who had been complaining about his posters and who, in his opinion, was removing his posters. The FOI Act, however, does not entitle a member of the public to request information at large, unless that information is already contained in a document held by the agency at the time the FOI request is made. Mr Colussi also appears to have assumed that the documents held by the Council contained both aspects of the “information” he had requested. Although assumptions of this nature are not unusual, as explained to Mr Colussi, during a planning meeting, the procedure for dealing with his application to the Tribunal was for the Tribunal to examine the material for which the Council had claimed an exemption, without the contents of this material being disclosed to him, and the Tribunal being satisfied from the contents of the exempt material and any other relevant material put before the Tribunal that the material is in fact exempt on the grounds claimed by the Council. As mentioned above, the onus rests on the Council to satisfy the Tribunal that the exemption relied on it to refuse access to the document rested with the Council: see s.61 FOI Act. Consequently, the procedure is not a procedure where an applicant is able to have his/her assumptions answered.

30 As explained in paragraph 16 above, there are three documents for which the Council has refused access. In my opinion, a systematic approach should be adopted in determining whether the documents are or are not exempt. Accordingly, the relevant issues are as follows:

a) do the documents contain information that concerns the personal affairs of the complainant? If they do, would the disclosure of this information involve an unreasonable disclosure of this information? (see cl.6(1) of Schedule 1 of the FOI Act);

b) do the documents contain the existence or identity of a confidential source of information in relation to the enforcement or administration of the law? If they do, could it reasonably be expected that the disclosure of this information would enable the existence or identity of a confidential source of information to be ascertained? If it does, would disclosure, on balance, be in the public interest (see cl.4(1)(b) and (2)(b) of Schedule 1 of the FOI Act); and

c) is it practicable to give Mr Colussi access to a copy of the documents with the exempt material (if any) deleted? (see s.25(4) of the FOI Act).

31 I will deal with each of these matters separately.

a) Personal affairs

32 It is generally accepted that the term “personal affairs” in cl.6(1) of Schedule 1 of the FOI Act means “matters of private concern to the individual”: Young v Wicks (1986) 13 FCR 85 at 89 and Colakovski v Australian Telecommunications Corp (1991) 29 FCR 429 at 431-435. In Colakovski, the Federal Court held that the name of a particular nuisance telephone caller was information relating to the personal affairs of the caller. As was pointed out by Lockhart J in that case, the name and telephone number of a person, when viewed in the abstract, could not answer the description of information relating to personal affairs (at page 437). However, for the purpose of the FOI Act, a decision maker’s task is to examine the document as whole and it is the context in which a person’s name appears that will determine whether or not such information relates to the personal affairs of the person: see also Re Wong and Department of Immigration and Ethnic Affairs (1984) 12 AAR 208 at 210.

33 The same principles apply to a person’s address: Re French (1987) 12 ALD 525.

34 In this application, having regard to the context of the document for which access has been refused, I find that the complainant’s name and address (including email address) all relate to his personal affairs. I also find that the content generally of the documents relate to the private concerns of the complainant in that in that they are matters which are of private concern to him.

35 As mentioned above, having identified that the document contains information about the “personal affairs” of a third person the next question to be determined is whether the disclosure of this information would be “unreasonable”. In Saleam v Director General, Department of Community Services and Ors [2202] NSWADT 41, at [38] the President adopted the following approach in making such a determination:

“As to the general approach to be adopted in deciding whether an exemption should be applied on the basis that disclosure would involve the unreasonable disclosure of information concerning the personal affairs of a person, I agree with the views expressed by the Commonwealth Administrative Appeals Tribunal (AAT). In Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257, the AAT said:

'(51) ... [I]t is not every document, the disclosure of which would involve the disclosure of information relating to the personal affairs of a person, that is exempt from disclosure under the Act. Exemption is only attracted if the disclosure would involve the unreasonable disclosure of information relating to those affairs. Whether a disclosure is "unreasonable" requires, in my view, a consideration of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance. Plainly enough what s 41 [the Commonwealth FOI Act exemption equivalent to cl 6] seeks to do is to provide a ground for preventing unreasonable invasion of the privacy of third parties.

However, consistently with the stated object of the Act (see s 3), it is also necessary in my view to take into consideration the public interest recognized by the Act in the disclosure of information in documentary form in the possession of an agency and to weigh that interest in the balance against the public interest in protecting the personal privacy of a third party whose personal affairs may be unreasonably disclosed by granting access to the document: page N259”.

36 At [42] the President went on to state the following:
“In Colakovski’s case [ Colakovski v Australian Telecommunications Corporation (1991) 13 AAR 261] at 270 Lockhart J said:
What is "unreasonable" disclosure of information for purposes of s 41 (1) must have as its core, public interest considerations. The exemptions necessary for the protection of "personal affairs" (s 41) and "business or professional affairs" (s 43) are themselves, in my opinion, public interest considerations. That is to say, it is not in the public interest that the personal or business or professional affairs of persons are necessarily to be disclosed on applications for access to documents. The exemption from disclosure of such information is not to protect private rights, rather it is in furtherance of the public interest that information of this kind is excepted from the general right of public access, provided the other conditions mentioned in ss.41 and 43 are satisfied”.
37 In regard to the interests of the access applicant (i.e. the person who made the FOI request) being given access to the information, the President agreed with the approach adopted by the AAT in Re Green and Overseas Telecommunications Commission (1992) 28 ALD 655 and stated at [46 and 48] as follows:
“46 I agree with the approach adopted by the AAT in Re Green . The question of whether disclosure would result in the unreasonable disclosure of information concerning a person's personal affairs must be approached in a relatively abstract way. The nature and content of the information is the primary consideration. The wishes of the person to whom the information relates are relevant, though, not in my view, conclusive. The purpose of the third party can rarely, if ever, be given consideration. Ordinarily the motives or purpose of the access applicant have no relevance to the judgment required of an agency or the Tribunal (on review) in considering whether cl 6 should be invoked. The difficulty of according relevance to the third party's purpose is cogently explained in Re Green and well illustrated by the present case.

48 The FOI Act sets a standard which is to apply as between citizens and government. Decisions to grant access under FOI should, to use an American expression, ordinarily be facially neutral. The theory, at least, is that once access is given under FOI to one citizen, any other citizen who makes the same request should have the same rights: see further Humane Society v National Parks and Wildlife Service [2000] NSWADT 133 at [26-31]. But some authorities do recognise that a point may be reached where the applicant may be able to demonstrate a personal need for the information that is of such strength as to amount to a public interest consideration in its own right: see Re Burns and ANU (No 2) (1985) 7 ALD 425 at 438-9; and generally Cossins, Annotated Freedom of Information Act New South Wales (1997), 313”.

38 In this case, Mr Colussi identified need for the information is so that he can bring a claim in damages, if there is such a claim, against the complainant for destroying his posters.

39 Although I find each of the documents generally contain information of matters that are of private concern to the complainant, in my view, the information, other than the complainant’s name, address and other contact details, as well as the first sentence in the email of 13 May 2003, is information that is not exclusively matters of private concern to the complainant. They concern allegations the complainant has made about Mr Colussi’s posters and poster of this nature. For this reason, I am of the view that a disclosure would not involve an unreasonable disclosure of this information (i.e. everything other than the name, address, contact details and the first sentence in the email of 13 May 2003). The fact that the information is a reflection of what the complainant is concerned about is outweighed by the public interest of disclosure of the particular allegations as they concern Mr Colussi and the Council’s response thereto.

b) Identity of a confidential source of information

40 As mentioned above, each of the documents for which access has been refused contains the name, address and other details that would enable the complainant to be identified if the documents were disclosed. However, the documents also contain information, which on their own would not identify the complainant, if disclosed.

41 On the basis of the letter provided to the Tribunal by the complainant, on a confidential basis, I am satisfied that the complainant provided the information in the email of 13 May 2003 and the letter of 22 August 2003 on a confidential basis. I also find that the information was provided in relation to enforcement or administration of the law. Accordingly, I find that a disclosure of the documents could reasonably be expected to enable the identity of the complainant as a confidential source of information, in the relevant sense, to be ascertained.

42 The next question is whether the disclosure of the document would, on balance, be in the public interest. In my opinion, the answer is no. While Mr Colussi may have strong private interests in having the information disclosed to him, this is outweighed by the public interest of ensuring that laws for which local councils are responsible are enforced through members of the community feeling free to lodge complaints to their local council without fear of having their identity disclosed without their consent.

c) Practicability of giving access to the documents with the exempt matter deleted

43 In this application, the Council has not given any consideration as to whether it is practicable to give Mr Colussi access to a copy of the documents in question from which the exempt information has been deleted (see s.25(4) of the FOI Act). In my opinion, this is an application where it would be practicable to give Mr Colussi access to a copy of two of the documents from which the exempt information is deleted. These documents and the relevant deletions are as follows:

(a) email of 13 May 2003 – with deletion of the address of the sender, the first sentence and the last sentence in the penultimate paragraph (paragraph 5), the name of the sender at the end of the email message and all the information that follows this name (i.e. remainder of the email);

(b) letter of 8 September 2003 – deletion of the name and address of the recipient.

44 In respect of the remaining document, the letter dated 22 August 2003, in my opinion this letter, which is a handwritten letter, is not practicable to disclose with the same deletions as the handwriting may be sufficient to disclose the complainant’s identity.

45 Accordingly, for the reasons stated above, in my opinion:

a) the Council’s decision in respect of the handwritten letter dated 22 August 2003 is affirmed:

b) the Council’s decision in respect of the email dated 13 May 2003 and the letter dated 8 September 2003 is not the correct and preferred decision in that it is practicable to provide Mr Colussi with a copy of those documents with the exempt material deleted. However, in my opinion the matter should be remitted to Council to determine in accordance with this decision, those parts of the documents, which are to be deleted.

46 For the reasons stated above, the Tribunal orders:
(a) The decision of the Council in respect of the letter dated 22 August 2003 is affirmed.

(b) The decision of the Council in respect of the email dated 13 May 2003 and the letter dated 8 September 2003 is set aside.

47 (c) The email dated 13 May 2003 and the letter dated 8 September 2003 is remitted to the Council for reconsideration in accordance with the abovementioned reasons for decision of the Tribunal.