Diehm v Greater Taree City Council

[2010] NSWADT 241

CITATION:	Diehm v Greater Taree City Council [2010] NSWADT 241
DIVISION:	General Division
PARTIES:	APPLICANT Steven Richard Diehm RESPONDENT Greater Taree City Council
FILE NUMBER:	093242
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	28 April 2010
DATE OF DECISION:	12 October 2010
BEFORE:	Molony P - Judicial Member
CATCHWORDS:	Freedom of Information Act - - business affairs - confidential material - internal working documents - personal affairs
LEGISLATION CITED:	Freedom of Information Act 1989 Administrative Decisions Tribunal Act 1997 Freedom of Information (Fees and Charges) Order 1989 Local Government Act 1993
CASES CITED:	McGuirk v University of New South Wales [2005] NSWADT 255 Diamond v Gosford City Council [2008] NSWADT 282 Re Williams and the Registrar of the Federal Court of Australia (1985) ALD 219 Dawson v The Commissioner, Health Care Complaints Commission [1999] NSWADT 57 News Corporation Ltd v NCSC (1984) 52 ALR 277 Colakovski v Australia Telecommunications Corporation (1999) 29 FCR Commissioner of Police v PerrinWoods v Chief Executive Officer, State Rail Authority [2002] NSWADT 253 Re Pfizer Pty Ltd and Department of Health, Housing and Community Services (1993) 30 ALD 647 at [79] Vella v Commissioner of Police [2009] NSWADT 68 Thomas v NSW Office of Liquor, Gaming & Racing [2010] NSWADT 143 General Manager, WorkCover Authority of NSW v Law Society of NSW (2006) 65 NSWLR 502
REPRESENTATION:	APPLICANT In person RESPONDENT M Grainger,
ORDERS:	1.Vary the decision under review to determine that 30 days from the publication to these reasons Council provide Mr Diehm with copies of the following documents: 1.Copy credit card statements relating to payments for current and previous serving Councillors, General Managers and Directors in the 2008-2009 financial year. 2.All documentation concerning DA’s 96/2009A and 0040/2008D, subject to redaction of information relating to personal affairs of individual persons. 3.Documents 11 and 12 in the schedule of documents. 4.A copy of document 13 as redacted by the Tribunal. 5.A copy of document 14. 6.A copy of document 17. 7.A copy of document 18 as redacted by the Tribunal. 1. Copies of documents 13 and 17 as redacted by the Tribunal are to be provided to the Council only, on a confidential, basis on publication of these reasons.

REASONS FOR DECISION

Background

1 By letter dated 16 June 2009 Mr Diehm applied to the Greater Taree City Council (Council) for access to information in sixteen separate categories under the Freedom of Information Act 1989. This was posted by registered mail on 17 June 2009 and received by Council on 18 June 2009. A letter acknowledging receipt on 18 June 2009 was sent to Mr Diehm on 24 June 2010.

2 No decision having been received, on 10 July 2009 Mr Diehm requested an internal review of his application on the basis of a deemed refusal.

3 On 13 July 2010 Council wrote to him confirming it had been unable to finalise his request in time and advising that Council intended “to proceed to determination.”

4 No determination was made on the internal review request. It is agreed that as a result there was a deemed refusal of Mr Diehm’s internal review request.

5 On 16 September 2009 Mr Diehm applied to the Tribunal to review that decision.

6 A number of planning meetings were held in this matter at which a number of issues in dispute were resolved, with the result that eighteen documents remained in dispute.

7 With the agreement of the parties I determined, under s 76 of the Administrative Decisions Tribunal Act 1997, that this was a matter in which the outstanding issues requiring determination could be adequately determined, in the absence of the parties, on the papers. As a result, I made directions for the filing of evidence and submissions to be considered in making my determination.

8 Council has filed the following documents:

- Statement of Carol Currie
- Statement of Gerard Jose, General Manager
- Statement of Jenna Hazelwood
- A schedule of documents in dispute and an amended schedule of documents
- Submissions

9 Mr Diehm has filed the following documents:

- Response to the schedule of documents in which Mr Diehm has set out his submissions in summary form.

10 The submissions and evidence addresses documents identified as responsive to Mr Diehm’s initial request and addresses three categories of documents concerning which Council has not identified any specific documents in response to the request. They in summary are:

Expenditure – Authorisation Policy and Procedure, and Evidence of Actual expenditure
Emergency Evacuation Policy and Procedure
Development Applications

11 I propose to consider Mr Diehm’s freedom of information application with respect to those categories, and then address the documents in issue in the order set out in the schedule of documents. In doing so, it is important to bear in mind that Section 61 of the Freedom of Information Act 1989 provides that -

“In any proceedings concerning a determination made under this Act by an agency or Minister, the burden of establishing that the determination is justified lies on the agency or Minister.”

Expenditure

12 Mr Diehm sought for the 2008-2009 financial year –

Copy credit card statements and conference expenditures for current and previous serving Councillors, General Managers and Directors.
Monthly statements and associated paper work breaking down payments for current and previous serving Councillors, General Managers and Directors.

13 Council submits that the only documents it has responsive to this request are credit card statements. It has agreed to provide these to Mr Diehm. The Tribunal does not have jurisdiction to review the adequacy of a search conducted by an agency. These documents should be provided to Mr Diehm, if not already provided.

Emergency Evacuation Policy and Procedure

14 Mr Diehm sought the Emergency Evacuation Policy and Procedures for Council Chambers and the Library. As a result of discussions which occurred during the course of planning meetings Council has since provided Mr Diehm with a redacted copy of its Emergency Manual. The deletions from this are made on the basis of the exemption claimed in clause 4(1)(f) and (g) of Schedule 1 of the Freedom of Information Act 1989. It has also provided evidence in a statement from Ms Hazelwood that there are Emergency Evacuation maps present in the Library and Council chamber. Copies of these maps are annexed to Ms Hazelwood’s statement.

15 Clause 4 relevantly provides –

(1) A document is an exempt document if it contains matter the disclosure of which could reasonably be expected:
…
(f) to prejudice the maintenance or enforcement of any lawful method or procedure for protecting public safety, or
(g) to endanger the security of any building, structure or vehicle, or
…
(2) A document is not an exempt document by virtue of subclause (1):
(a) if it merely consists of:
(i) a document revealing that the scope of a law enforcement investigation has exceeded the limits imposed by law, or
(ii) a document containing a general outline of the structure of a programme adopted by an agency for dealing with any contravention or possible contravention of the law, or
… and
(b) if disclosure of the document would, on balance, be in the public interest.

16 Having read the redacted portions of the Emergency Manual I am satisfied that they are concerned with procedures for protecting Council staff and property and for the protection of the public. Disclosure of the matter in issue could reasonably be expected to compromise those procedures, and endanger Council property. The exceptions in ss (2)(a) do not apply. As a result I agree with Council that the redacted portions of the Emergency manual are exempt.

Development Applications

17 Mr Diehm initially sought all documentation concerning DA’s 96/2009A and 0040/2008D. Council agreed to provide this information subject to redaction of information relating to personal affairs and the payment of a $30 per hour processing fee for an estimated 40 hours.

18 I indicated that in the course of planning meetings that, as the decision under review was a deemed refusal (following a deemed refusal at first instance), it was too late for Council to require payment of an advanced deposit: see McGuirk v University of New South Wales [2005] NSWADT 255 at [11]–[12], and Diamond v Gosford City Council [2008] NSWADT 282 at [5].

19 Mr Diehm says that he has modified his request in his final submissions so that he now seeks –

… documentation relevant to 0040/200D and 0040/2008D, the date such documentation was submitted to GTCC councillors in relevant business papers and details of the relevant council meeting (s) minuted accordingly. I require further documentation concerning the General Manager’s direction to withhold two objection submissions from GTCC councillors as requested within my original FOI application.

20 Council submits that this does not represent a narrowing of Mr Diehm’s request, but rather a broadening of it. The relevant documents have not been provided to the Tribunal as Council has agreed to provide them to Mr Diehm. This makes the task of whether determining Mr Diehm has narrowed or broadened his request impossible to deal with. There is however no dispute that he should be provided with documents within the scope of his original request. Mr Diehm has made no objection to the proposed redaction of information relating to relating to personal affairs.

21 The Freedom of Information (Fees and Charges) Order 1989 [now repealed] applied when Mr Diehm made his application. Clause 5 provides:

“(1) The charges –
(a) for the giving of access to a document (being a charge determined under section 24(b) of the Act; and
(b) for dealing with an application (being a charge determined under section 24(c) of the Act),
are to be calculated on the basis of an hourly rate of $30 per hour.
(2) Such a charge is not to be imposed in respect of –
(a) the first 20 hours during which –
(i) an application under section 17 or 36 of the Act (being an application made by a natural person in respect of which documents relating to his or her personal affairs) is dealt with; or
(ii) access to a document the subject of such an application is given.
(b) any application under section 34 of the Act.
(3) Such a charge is to be calculated on the time spent by the agency’s or Minister’s staff in actually dealing with the application or giving access to the document. Calculated to the nearest quarter hour."

22 As Mr Diehm’s FOI application did not relate to his personal affairs sub-clause (2) does not apply.

23 As the Tribunal is considering a review of a deemed refusal on internal review under s 34 and as clause 5 does not apply to applications under s 34, it would seem that Council has missed the opportunity to levy charges under clause 5.

24 In his original FOI application Mr Diehm relevantly sought:

“Appointment of General Manager:
- Details on the qualification/s held by the General Manager.
- The General Manager's experience relevant to the position of General Manager
- The General Manager's job description.
- Selection panel documentation associated with the appointment of General Manager.”

25 Council has identified documents 1 to 12 as responsive to this request. These documents are variously transcripts of the General Manager’s academic records (documents 1 to 4 and 10), his academic enrolments and HECS liability (documents 5 to 9) and Certificates relating to the qualifications he has obtained (documents 11 and 12). Council argued that these were exempt under the personal affairs exemption in Clause 6 of Schedule 1 of the Freedom of Information Act 1989. This provides:

“(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) A 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.”

26 The term “personal affairs” is not defined in the Act. As was observed by the Queensland Information Commissioner in Re Stewart v Department of Transport (1993) 1 QAR 225 at [18] there has been a consistent disinclination by courts and tribunals “from attempting any comprehensive explanation of what is encompassed by the phrase.” There it was held that held that information about family, marital and other relationships with emotional ties is information about the “personal affairs” of the people concerned.

27 In Re Williams and the Registrar of the Federal Court of Australia (1985) ALD 219 Beaumont J, sitting as a presidential member of the Commonwealth AAT, said, at 221, personal affairs “refer to matters of private concern to an individual.” Thus because a persons “vocational competence in not something that is ordinarily treated as confidential” it is not, “prima facie at least” part of person’s personal affair.”

28 In Dawson v The Commissioner, Health Care Complaints Commission [1999] NSWADT 57 Hennessy DP referred to that passage from Re Williams and said, at [33] –

“I agree with this analysis. Prima facie there is nothing "personal" about someone's name being on a list of professional psychiatrists held by a public agency. It does not matter that these practitioners were not public servants or that they could remove their names at any time. What matters is the nature of the information interpreted in its context. The information in question does not relate to their family or personal relationships, their financial or health status or any other matter personal to them. It relates to their identity and competence as a professional person. For these reasons the information does not concern their personal affairs.

29 In News Corporation Ltd v NCSC (1984) 52 ALR 277 the Full Court of the Federal Court, at 283, found that personal affairs refers to the affairs of a natural person and not a corporation. At 540:

“It is sufficient for present purposes to indicate our view that information relating to the personal affairs of a person, such as information concerning his or her state of health, the nature or condition of any marital or other relationship, domestic responsibilities or financial obligations, may legitimately be regarded as affecting the work performance, capacity or suitability for appointment or promotion of that person. In those circumstances, it is conceivable that an assessment of work performance, capacity or suitability for appointment or promotion might contain such information. If it did, it would be necessary to consider whether disclosure of that information would be unreasonable so as to render the assessment an exempt document by virtue of s.41(1) of the FOI Act .

(1999) 29 FCR 429 concerned an unsuccessful application to obtain records relating to telephone calls, which would identify the phone number (and the subscriber’s name) from which nuisance telephone calls had been made. Lockhart J, at 436 said:

“… I prefer the view that the "personal affairs" of a person within the meaning of ss 41(1) and 12(2) of the FOI Act connotes information which concerns or affects the person as an individual whether it is known to other persons or not. For example, a document may contain statements about a person's private life, in the sense of his personal life, which is widely known in various sections of the community. Something may be notorious, but its notoriety does not deprive it of the character of information relating to the person's "personal affairs". Such a document would therefore prima facie answer the description of one which relates to the "personal affairs" of a person within s 41(1). … I agree with the Full Court in Dyrenfurth that it would be inappropriate to attempt to define the meaning of "personal affairs" in some definitive way. It would be unwise to substitute for the word "personal" some other word such as the word "private" because one generally accepted meaning of the word "private" is confidential or not widely known. In my opinion, a person's affairs may be personal to him notwithstanding that they are not secret to him. …

31 Heerey and Jenkinson JJ agreed with Lockhart J. In the course of his decision Heerey J said, at 440:

… The fact that the call was made in itself is a personal affair of the caller. The personal affairs of a person are made up of a myriad of "acts, facts, matters and circumstances". A single act, such as the making of a telephone call, can be a personal affair. …

32 In NSW the ambit of the phrase was considered by the Court of Appeal in Commissioner of Police v Perrin (1993) 31 NSWLR 606 where the issue was whether the name and rank of investigating Police officers constituted their personal affairs. In affirming that they do not Kirby P traversed the authorities and said, at 625:

The ordinary dictionary meaning of “personal affairs” has been held to involve “matters of private concern to an individual”: see Re Williams and Registrar of Federal Court of Australia (1985) 8 ALD 219; 3 AAR 529; Young v Wicks (1986) 13 FCR 85 at 88-89; 79 ALR 448 at 452. However, it has been suggested that this might be too narrow a paraphrase: see Department of Social Security v Dyrenfurth (1988) 80 ALR 533 at 539; cf Director of Public Prosecutions v Smith [1991] 1 VR 63 at 69. In its context, the words “personal affairs” mean the composite collection of activities personal to the individual concerned.

33 The question of whether a document contains “information concerning the personal affairs” of a person is a question of fact that is determined from the circumstances of each individual case: see Woods v Chief Executive Officer, State Rail Authority [2002] NSWADT 253. In Re Pfizer Pty Ltd and Department of Health, Housing and Community Services (1993) 30 ALD 647 at [79], it was said that where a document contains a statement about a person’s private life, which is widely known, “this does not deprive it of the character of information relating to the person’s ‘personal affairs.’”

34 In his statement the General Manager said that there would be “no public benefit” in the release of documents 1 to 12. He said that they were submitted to employment consultants rather than Council in relation to his employment. He objected to the release of his personal information.

35 In submissions Council argued that the documents contain information relating to Mr Diehm’s personal affairs and that their disclosure would be unreasonable.

36 Mr Diehm said that he did not seek the transcripts of Mr Diehm academic record, but was requesting a statement of the General Manager’s degrees and certificates. The reality is that there is no single document disclosed by Council which provides the information Mr Diehm seeks. The Freedom of Information Act 1989 provides a mechanism for access to documents held by agencies and does not require agencies to create documents responsive to requests. It provides for access to documents held by agencies and is not a vehicle for the interrogation of agencies.

37 As Mr Diehm has indicated that he does not seek copies of the General Manager’s academic transcripts I will not deal with them.

38 That leaves the documents relating to his academic enrolments and HECS liability (documents 5 to 9), and Certificates relating to the qualifications he has obtained (documents 11 and 12).

39 The enrolment and HECS liability documents contain details of the dates of the General Manager’s enrolment, the subjects he was enrolled in, how those subjects were paid for and any resultant HECS liability. These are, in my view, private matters concerning the course of the General Manager’s education and how he paid for it. They plainly relate to his personal affairs. I agree with Council that their disclosure would be unreasonable.

40 Documents 11 and 12 are certificates relating to academic qualifications held by the General Manager. They demonstrate the General Manager’s qualifications and go his professional competence. In accordance with the decisions in Re Williams and the Registrar of the Federal Court of Australia (1985) ALD 219 and Dawson v The Commissioner, Health Care Complaints Commission [1999] NSWADT 57 I do not consider that they relate to the General Manager’s personal affairs. They do not relate to his relationships, his family, health or financial circumstances, or any other matter relating to his personal circumstances. They simply demonstrate the qualifications he holds. As such they do not relate to his personal affairs. As they are documents held by Council and not subject to the exemption claimed they should be released to Mr Diehm.

41 In his original FOI application Mr Diehm relevantly sought:

‘Manager of Finance
- Qualifications
- Professional Memberships’

42 In response Council has identified a Curriculum Vitae (CV) of the Finance manager only. This not only shows her qualifications and professional memberships but includes substantial details about her professional and other skills, work background and experience that one would generally expect to see in a comprehensive CV. It also contains the personal details one would expect to see in such a document, as well as details of referees.

43 In her statement the Finance Manager objected to the release of her CV. She said that she had provided the information to Council in confidence and “never had any expectation that my personal information would be devolved in any form.” She said that her qualifications were earned prior to her taking the role and are “not relevant to the proceedings.”

44 In submissions Council argued that the CV disclosed qualification obtained by the Finance Manager prior to her appointment for the purpose of advancing her “personal career opportunities.” Paradoxically, Council then submitted that the CV “is not evidence that” the Finance Manager holds the qualifications, merely a representation by her that she does.

45 In response Mr Diehm submitted that what he desired were details of the professional qualifications and memberships of the Finance Manager.

46 They are matters which, for the reasons already outlined with respect to the General Manager’s qualifications, I do not accept relate to the Finance manager’s personal affairs. They are her professional qualifications and affiliations and speak to her professional competence, including competence for the role she is now in.

47 Because Mr Diehm is not pressing for any other details of the CV I do not propose to consider it further. In saying that I accept that it does contain substantial amounts of information relating to the Finance Manager's personal affairs. In accordance with s 25(4) of the Freedom of Information Act 1989 I propose to redact the CV and order release of a redacted copy to Mr Diehm disclosing information responsive to his request.

Documents 14 and 15

48 Mr Diehm initially sought access in relation to code of conduct concerns he had raised with respect to the General Manager and two Councillors.

49 Council has identified two documents as responsive to this request. The first (document 14) is report into an investigation conducted by the Manager of Organisational Development and Governance (MODG) into an allegation that the General Manager had withheld certain public submissions form Councillors in respect to a specific development application. The complaint was made on the basis that on hand written notes on public submissions that said, “copes not given to councillors as per instruction from General Manager.”

50 The second (document 15) is a file note of discussions regarding an allegation that two Counsellors had intimidated others in the course of debate concerning a development application.

51 In her statement Council’s MODG said that both the investigation report and the file note contain information which was provided in confidence, in the expectation that it would remain confidential. She says that it could be reasonably expected that the release of the documents could prejudice the future supply of such information.

52 In submissions Council relies on the exemption contain in Clause 13 of Schedule 1 of the Freedom of Information Act 1989. it provides –

A document is an exempt document:
(a) if it contains matter the disclosure of which would found an action for breach of confidence, or
(b) if it contains matter the disclosure of which:
(i) would otherwise disclose information obtained in confidence, and
(ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and
(iii) would, on balance, be contrary to the public interest.

53 Relying on the decision in Vella v Commissioner of Police [2009] NSWADT 68 Council submitted that the confidential nature of the communication should be implied from the circumstances. As I understand Council’s submission, it is relying on clause 13(b). I accept that one may infer that information was disclosed in confidence from a consideration of the nature of the information, the persons(s) who disclosed it and the circumstances in which the disclosure occurred: Vella supra; and Thomas v NSW Office of Liquor, Gaming & Racing [2010] NSWADT 143 at [83].

54 In the case of the investigation report this was instigated following a complaint by Mr Diehm. While the MODG asserts in her statement that the information was disclosed in confidence, she does not given any evidence as to the circumstances which give rise to that claim of confidentiality. A reading of the investigation report does not of itself suggest that the information disclosed to the MODG, and recorded in her report, is confidential: rather it records responses given by Council officers to inquiries made by a manager concerning the performance of their duties. This is not, without more, a circumstances in which I consider confidentiality can be inferred.

55 Even if the circumstances did warrant a requirement of confidentiality being inferred, I am not persuaded that disclosure could reasonably be expected to prejudice the future supply of such information to Council. Once again while the MODG asserts this is the case, there is no evidence going to the issue apart from that assertion. When one considers the circumstances of the disclosure revealed by the document itself, it is very difficult to marry the reality with the assertion. I consider it could not be reasonably expected that Council officers would refuse to disclose information regarding their day to day work to a superior, if such information were disclosed. As Council officers they have obligations to account to and answer for their work to their managers and to Council itself. I do not accept that disclosure of the investigation report could reasonably be expected to prejudice the future supply of such information to Council.

56 I would add that were that not the case I would nonetheless find that, on balance, the public interest requires the disclosure of the investigation report. This is so as it is an investigation into a serious allegation made against a senior council officer, based on notes contained in Council documents. If true, the allegation raised serious questions of interference with Council’s deliberative processes and in its role in properly determining development applications. I think there is a strong public interest in seeing that the investigation was conducted thoroughly and with integrity, so that the public can be satisfied as to both the process followed in and the results of the investigation. The fact that the complaint was against the General Manager, and that the investigator was investigating the conduct of her superior, highlights the need for transparency and public accountability. I note that in submissions Council did not specify what public interests it says argue against disclosure, apart from those associated with the maintenance of confidentiality. It is also to be observed that s 59A of the Freedom of Information Act 1989 provides that embarrassment or loss of confidence in Government is irrelevant to the question as to whether or not disclosure of a document would be contrary to the public interest.

57 Turning to the File note (document 15), this relates to information disclosed in the course of inquiries following Mr Diehm’s complaint that two Councillors had intimidated other councillors in the course of a debate about a development application. Once again there is very little information about the precise circumstances giving rise to that complaint, although I infer it took place in the course of an open public debate.

58 The file note relates to conversations with a number of people with respect to the complaint. I consider the subject of this complaint very different to that to which the investigation report relates. Here the complaint relates to the words used by elected officials in the course of a public debate regarding decisions Council is empowered to make. The investigation report, on the other hand, was into interference in that deliberative process.

59 With the file note, I consider that the subject matter alone points to likelihood that disclosures relating to it are likely to be confidential. Having read the file note itself I am reinforced in that conclusion. I infer that the file note contains information disclosed on a confidential basis. I am also satisfied that, if the file note were disclosed, it could reasonably be expected to prejudice the future supply of such information to Council.

60 As a consequence I agree that document 15 is exempt under clause 13(b).

61 Mr Diehm originally sought information in respect of Waste Management Charges and Issue from 1 July 2009, specifically a –

‘Detailed breakdown of the cost of the above new service, including the proposed Carbon Emissions Trading Scheme as communicated publicly by the General Manager.’

62 Council has identified three documents as responsive to this request –

- A confidential community Development Report to the Greater Taree City Council – Evaluation of tenders for waste management services (the Waste report) – Document 16
- Memo – Councillor Workshop item carbon pollution reduction scheme (the Memo) – document 17
- Budget draft working paper – waste management summary (the draft) – Document18

63 In her statement the MODG said that the Waste report was discussed in a closed meeting of Council under s 10A of the Local Government Act 1993. That section relevantly provides –

(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) …
(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) prejudice the commercial position of the person who supplied it, or
(ii) confer a commercial advantage on a competitor of the council, or
(iii) reveal a trade secret,
(e) …
(3) A council, or a committee of the council of which all the members are councillors, may also close to the public so much of its meeting as comprises a motion to close another part of the meeting to the public.
(4) A council, or a committee of a council, may allow members of the public to make representations to or at a meeting, before any part of the meeting is closed to the public, as to whether that part of the meeting should be closed.

64 Council submits that any application for access to the Waste report should have been made under the provisions of the Local Government Act 1993, rather than under the Freedom of Information Act 1989. Alternately, it submitted that the Waste report is exempt under the business affairs exemption (clause 7 of the Schedule 1 of the Freedom of Information Act 1989).

65 The first submission raises for consideration s 25(1)(b) of the Freedom of Information Act 1989 which provides:

‘1) An agency may refuse access to a document:
…
(b) if it is a document that is available for inspection at that or some other agency (whether as part of a public register or otherwise) in accordance with Part 2, or in accordance with a legislative instrument other than this Act, whether or not inspection of the document is subject to a fee or charge,

66 At the time Mr Diehm made his FOI application Part 2 (Access to Information) of Chapter 4 of the Local Government Act 1993 was in operation. This has since been repealed, consequent on the enactment of the Government Information (Public Access) Act 2009. Section 12 of the Local Government Act 1993 relevantly provided:

(1) Everyone is entitled to inspect the current version of the following documents free of charge:
• …
• agendas and business papers for council and committee meetings (but not including business papers for matters considered when part of a meeting is closed to the public)
• …
(1A) Despite subsection (1) and the other provisions of this Act, a person does not have the right to inspect so much of a development application as consists of:
…
(6) The council must allow inspection of its other documents free of charge unless, in the case of a particular document, it is satisfied that allowing inspection of the document would, on balance, be contrary to the public interest.
(7) However, subsection (6) does not apply to the part (if any) of a document that deals with any of the following:
…,
(c) trade secrets,
(d) a matter the disclosure of which would:
(i) constitute an offence against an Act, or
(ii) found an action for breach of confidence,
(e) that part of a draft or adopted plan of management that is the subject of a resolution of confidentiality under section 36DA.
(8) For the purpose of determining whether allowing inspection of a document would be contrary to the public interest, it is irrelevant that the inspection of the document may:
(a) cause embarrassment to the council or to councillors or to employees of the council, or
(b) cause a loss of confidence in the council, or
(c) cause a person to misinterpret or misunderstand the information contained in the document because of an omission from the document or for any other reason.
Note. Subsection (8) is in similar terms to section 59A (Public interest) of the Freedom of Information Act 1989 .
Note. A council could also make copies of the documents available at other places, for example, at libraries.
A council may have other information available for inspection free of charge: for example, the rate record, the valuation list and the register of dog registrations.

67 As the Waste report is a business papers that was considered in a closed meeting of Council inspection of it is not allowed as matter of right under 12(1) of the Local Government Act 1993. It is therefore not available for inspection under that provision in accordance with s 25(1)(b) of the Freedom of Information Act 1989.

68 The Waste report, however, is an “other document” of Council’s to which s 12(6) of the Local Government Act 1993 applies. As such it is available for inspection unless Council determined that allowing inspection would be contrary to the public interest.

69 Is such a document “available for inspection” within the meaning of s 25(1)(b)?

70 The Macquarie Dictionary Online defines “available” –

adjective 1. suitable or ready for use; at hand; of use or service: available resources.

71 In my opinion the requirement of s 25(1)(b) that a document be available for inspection in accordance with a legislative instrument other the Freedom of Information Act 1989 carries with it the requirement that the document be freely available, without restriction, and not subject discretionary refusal. Such an interpretation is consistent with the objects and intention underlying the Freedom of Information Act 1989 which confers a right of public access to information held by government, subject only to such restriction as are reasonable necessary for the proper administration of Government (see s 5). Section 5(3) instructs that it is the intention of Parliament “that this Act shall be interpreted and applied so as to further the objects of this Act.” I think the interpretation I have suggested of the words “available for inspection” in s 25(1)(b) consistent with that legislative attention. As result I do not accept that the Waste report is available for inspection by Mr Diehm under the Local Government Act 1993.

72 That being the case, it is necessary to consider whether the Waste report is exempt under the business affairs exemption.

73 Clause 7 of Schedule 1 creates this exemption. It relevantly provides:

(1) A document is an exempt document:
…
(b) if it contains matter the disclosure of which:
(i) would disclose information (other than trade secrets or commercial-in-confidence provisions) that has a commercial value to any agency or any other person, and
(ii) could reasonably be expected to destroy or diminish the commercial value of the information, or
(c) if it contains matter the disclosure of which:
(i) would disclose information (other than trade secrets, commercial-in-confidence provisions or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any agency or any other person, and
(ii) could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency.
(2) A document is not an exempt document by virtue of this clause merely because it contains matter concerning the business, professional, commercial or financial affairs of the agency or other person by or on whose behalf an application for access to the document is being made.

74 The Waste report discusses and evaluates competitive tenders made for the provision of waste management services for Midcoast Waste Management Services. It reveals that tenders received and evaluates them. It was provided to Council to assist in evaluating the tender.

75 Mr Diehm said that he was not seeking information on successful tenders nor pricing schedules from either successful tenders or unsuccessful tenders for a Regional Waste Management Contract. This is precisely what the Waste report discusses. I accept that, as such, it contains matters which, if disclosed, would disclose information relating to the business, commercial and financial affairs of Council and others, and could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to Council. This is so as the tender process was expressed to be confidential. To now release a comparative analysis of the tenders, given the closeness in time of the tender process, could have adverse commercial consequences on those involved and prejudice future participation in confidential tenders to Council.

76 I agree that the Waste report is an exempt document.

77 With respect to the Memo and the Draft, Council relies on the internal working documents exemption (clause 9 of Schedule 1). It submits that they were drafted to support Council’s decision making in respect to its budget. They contain advice and discuss options. I think this a fair description of their contents. Council claims exemption under the internal working documents exemption (clause 9 of Schedule 1). This provides:

(1) A document is an exempt document if it contains matter the disclosure of which:
(a) would disclose:
(i) any opinion, advice or recommendation that has been obtained, prepared or recorded, or

(ii) any consultation or deliberation that has taken place,
in the course of, or for the purpose of, the decision-making functions of the Government, a Minister or an agency, and
(b) would, on balance, be contrary to the public interest.
(2) A document is not an exempt document by virtue of this clause if it merely consists of:
(a) matter that appears in an agency’s policy document, or
(b) factual or statistical material.

78 Having read the documents I accept that that the documents contain opinion, advice and recommendations generated in the course of, or for the purpose of, the decision-making functions of Council.

79 Mr Diehm sought information in relation the costs relating to the proposed Carbon Emissions Trading Scheme included in the domestic waste charge. The Memo and the Draft also, on their face, provide advice in relation to the consideration of those charges, but do not, on the material before me, provide specific information in terms of what proportion or component of domestic waste charge relates to the proposed scheme. It does, however, provide advice on the costs which would have to be taken into account which fall within the scope of Mr Diehm request. With respect to the draft this applies to only part of it. Other parts are not within the scope of Mr Diehm’s request.

80 The issue is therefore whether, on balance, the release of that information would be contrary to the public interest.

81 In General Manager, WorkCover Authority of NSW v Law Society of NSW (2006) 65 NSWLR 502; [2006] NSWCA 84 McColl JA (with whom Handley JA and Hodgson JA agreed) said (at [146]) in relation to clause. 9:

‘The expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view": O'Sullivan v Farrer (at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ). Determining where the public interest lies is a question of fact and degree: Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27; (1987) 61 ALJR 393 at 395."

82 In doing so, however, McColl AJ noted at [151] that:

‘… the Act gives a legally enforceable right to be given access to documents held by the Government, that right is subject to such restrictions as are reasonably necessary for the proper administration of the Government: s 5(2)(a) and (b). Determining whether documents should be disclosed involves balancing those two matters.’

83 Council says that the Memo and the Draft represent only some of the sources of advice and recommendations which Council considered in forming its budget. It agues that they should not be released out of context.

84 In submissions and evidence neither Mr Diehm nor Council have expressly addressed the public interest in release or non release of these documents. They relate to Council’s budget for the past financial year. I accept that they do not reflect all the matters Council took into account in determining the 2009-10 budget. They are, however, the only documents which Council says relate to the impact of the proposed Carbon Emissions Trading Scheme on the domestic waste charge.

85 Given the public interest in access to documents and in the accountable and transparent operations of government, I am unable to see how the release of these documents, relating as they do to advice received as to one small component of a past budget, is contrary to the public interest. That the advice contained in the documents was only one aspect of the advice Council obtained in framing its budget is obvious from the documents themselves. Council has not explained why this results in their release being contrary to the public interest. The argument that there is a public interest in how proposed carbon pricing structures will impact on the cost of Council services is one I can readily see. The contrary argument, especially in the context of what is now a past budget, eludes me.

86 As a consequence I am not satisfied that disclosure of the information contained in the Memo and in relevant portions of the draft is contrary to the public interest.

87 The Memo should be disclosed to Mr Diehm.

88 I have redacted the draft so that it only contains material responsive to Mr Diehm request. The redacted draft should be disclosed to Mr Diehm.

89 For the reasons set out above the Tribunal considers that the correct and preferable decision in this matter is to vary the decision under review to determine that 30 days from the publication to these reasons Council provide Mr Diehm with copies of the following documents:

1. Copy credit card statements relating to payments for current and previous serving Councillors, General Managers and Directors in the 2008-2009 financial year.
2. All documentation concerning DA’s 96/2009A and 0040/2008D, subject to redaction of information relating to personal affairs of individual persons.
3. Documents 11 and 12 in the schedule of documents.
4. A copy of document 13 as redacted by the Tribunal.
5. A copy of document 14.
6. A copy of document 17.
7. A copy of document 18 as redacted by the Tribunal.

90 Copies of documents 13 and 17 as redacted by the Tribunal are to be provided to the Council only on a confidential basis on publication of these reasons.