Donnellan v Ku-ring-gai Council
[2013] NSWADT 115
•27 May 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Donnellan v Ku-ring-gai Council [2013] NSWADT 115 Hearing dates: On the papers Decision date: 27 May 2013 Jurisdiction: General Division Before: S Higgins, Deputy President Decision: 1. Subject to the following additional deletions from the information in the emails, the subject of this application, the decision of the respondent is affirmed:
(a) deletion of the information that is an email address of a person other than an officer or representatives of the respondent;
(b) deletion of the information in the body of the emails at tab 21, 22, 24 and 25 that were sent on 23 August 2011 at 7:47, 8:06, 8:22 and 10:06 am;
(c) deletion of the information in the body of the email at tab 215, sent at 7:43 pm.
2. Pursuant to subs 75(2) of the Administrative Decisions Tribunal Act 1997, for 30 days after the publication of this decision, the material deleted after the words 'Not to be published' in paragraphs 44, 55, 62 and 73 of these reasons for decision are not to be disclosed to applicant, Mr Donnellan, the applicant's legal representative or the public.
Catchwords: Government information - public access - whether information in response to a development application is personal information - where public interest lies on balance Legislation Cited: Administrative Decisions Tribunal 1997
Freedom of information Act 1989 (NSW)(repealed)
Freedom of Information Act 1982 (Cth)
Government Information (Public Access) Act 2009
Government Information (Public Access) Regulation 2009
Local Government Act 1993Cases Cited: McKinnon v Secretary, Department of Treasury [2006] HCA 45, at [61] and Attorney-General's Department v Cockcroft (1986) 10 FCR180
Retain Beacon Hill High School Committee Inc v NSW Treasury [2007] NSWADT 55
Staldone Corporation Pty Ltd v Ku-ring-gai Council [2012] NSWLEC 1035
Staldone Corporation Pty Ltd v Ku-ring-gai Council [2012] NSWLEC 1055Category: Principal judgment Parties: Steve Donnellan (Applicant in 123199)
Graeme Gurney (Applicant in file 123258)
Namoi Dougall (Applicant in file 123259)
Margot Coleman (Applicant in file 123263)
Ku-ring-gai Council (Respondent)Representation: Adam Stack & Co (for S Donnellan)
G Gurney (Applicant in person)
N Dougall (Applicant in person)
M Coleman (Applicant in person)
Norton Rose (Respondent)
File Number(s): 123199, 123258, 123259, 123263 Publication restriction: 75(2) of the Administrative Decisions Tribunal Act 1997 applies for 30 days after the publication of this decision
REASONS FOR DECISION
Introduction
On 18 July 2012, Mr Donnellan (the access applicant) lodged his application seeking review of the decision of Ku-ring-gai Council (the respondent) in regard to his application for access to specified government information. Mr Donnellan made his application under the Government Information (Public Access) Act 2009 (GIPA Act). His access application was in the following terms:
'All emails between 1 July 2011 until 16 April 2012 to and from either Graham Gurney and Namoi Dougall, to and from any Ku-ring-gai councillor or staff member.
All emails between 1 July 2011 until 16 April 2012 to and from either Jonathan Coleman or Margo Coleman (nee Fitzpatrick), to and from any Ku-ring-gai councillor or staff member.
All emails between 1 July 2011 until 16 April 2012 sent by or on behalf of the Friends of Beaconsfield and Dover Way to and from any Ku-ring-gai councillor or staff member. '
The information in the emails concerned a development application, by Mr Donnellan's company, Staldone Corporation Pty Ltd, for the construction of a block of apartments on a large parcel of land within the respondent's area of responsibility. Adjoining this large parcel of land is land owned by Mr and Mrs Coleman. Mr Gurney and his wife, Ms Dougall, own land that adjoins the land owned by the Mr and Mrs Coleman. Objectors to the development application of Mr Donnellan's company included Mr Gurney, Ms Dougall, Mr and Mrs Coleman and the Friends of Beaconsfield. As I understand it, Mr Gurney, Ms Dougall, Mr and Mrs Coleman were also members of the Friends of Beaconsfield.
The respondent rejected the development application of Mr Donnellan's company. However, on appeal, to the Land and Environment Court, that Court approved the development application, subject to some amendments: see Staldone Corporation Pty Ltd v Ku-ring-gai Council [2012] NSWLEC 1035 and Staldone Corporation Pty Ltd v Ku-ring-gai Council [2012] NSWLEC 1055.
On 13 July 2012, the respondent determined Mr Donnellan's application for access. In determining Mr Donnellan's application, the respondent had identified 242 emails as falling within the access application. In its reasons for decision, as set out in its letter dated this day, the respondent said it had decided, subject to the information that was a mobile telephone number or a work number of one or more of the objectors, that it was in the public interest for the information in the emails to be disclosed. Attached to the respondent's letter was a schedule of the 242 emails relevant to Mr Donnellan's access request. That schedule identified the date each email was sent, whether Mr Gurney, Ms Dougall or Mrs Coleman were a party to the email and the respondent's determination as to whether the information in the email was to be disclosed in full or in part. Where the respondent had determined that information in an email, in part, was not to be disclosed, the respondent also identified the grounds on which it had been determined that there was an overriding public interest against disclosure. That ground being that a disclosure of the information could reasonably be expected to reveal an individual's personal information (i.e. the telephone numbers): see item 3(a) of the table in section 14 of the GIPA Act.
In its reasons for decision, the respondent noted that it had consulted with the objectors in accordance with subs 54(1) of the GIPA Act. The respondent also informed Mr Donnellan of his right of review of its decision and also the rights of the objectors to seek review as they had objected to the release of the information in the emails. It was noted that the objectors had 20 working days within which to seek an internal review and 40 days in which to seek external review: see ss 83, 90 and 101 of the GIPA Act.
In one sense Mr Donnellan's application was pre-emptive in that he was not aggrieved by the decision of the respondent. However, he was concerned about delays in obtaining access to the information in the event the objectors took every avenue of review available to them.
On 12 September 2012, Mr Gurney and Ms Dougall lodged their applications for review of the respondent's decision to grant Mr Donnellan access to the emails they had sent to, or received from the respondent during the time specified in Mr Donnell's access request. On the following day, Mrs Coleman also lodged an application for review of the decision of the respondent. Her application was made on behalf of herself and her husband Mr Coleman. Accordingly, to the extent these reasons for decision refer to Mrs Coleman, they should be read to include Mr Coleman.
There is no dispute that the tribunal has jurisdiction to hear and determine the applications of Mr Gurney, Ms Dougall and Mrs Coleman: see s 38 of the Administrative Decisions Tribunal Act 1997 (ADT Act) and ss 80 and 100 of the GIPA Act.
By consent, the application of Mr Donnellan, Mr Gurney, Ms Dougall and Mrs Coleman were joined to the extent they were to be determined together by the same Tribunal Member. The parties also agreed that that each application was to be determined on the papers pursuant to s 76 of the ADT Act.
On 26 October 2012, Mr Gurney and Ms Dougall and Mrs Coleman, each filed and served an amended version of the respondent's schedule of emails, which identified the email(s) they objected to being disclosed to Mr Donnellan. As I have indicated, their objection extends beyond the information that is their mobile, home or work telephone number, to include the entirety of the email. There are 135 emails in dispute.
Written submissions were filed and served by Mr Gurney and Ms Dougall and Mrs Coleman, on 30 October 2012. The respondent filed and served written submissions, on 18 November 2012, and Mr Donnellan filed and served written submissions, on 28 November 2012. In its submissions, the respondent adhered to its decision and the applicant, Mr Donnellan, did not challenge that decision.
In addition to written submissions, the respondent has provided the tribunal, in confidence, with a copy of the emails in dispute: see s 107 of the GIPA Act. These emails are contained in two folders. In most cases each email is made up of a number of emails on the same subject matter. Each email is located behind a tab, which is numbered in accordance with the number allocated to the email in the respondent's list of documents. In these reasons for decision, I have referred to relevant emails by their tab number.
The respondent has provided Mr Gurney, Ms Dougall and Mrs Coleman with a copy of the emails that were sent or received by them. Mr Donnellan, nor his legal representative, has had access to the information in dispute.
Issues
As I have explained, Mr Donnellan does not dispute the determination of the respondent in regard to the deletions of the mobile, home and work telephone numbers of Mr Gurney, Ms Dougall and Mrs Coleman that are contained in the disputed emails.
What is in dispute is the remaining information in the disputed emails and whether there is a public interest consideration against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure: see ss13 and 14 of the GIPA Act.
In their written submissions, Mr Gurney and Ms Dougall assert that the information in dispute (including their and other objector's email addresses) is information falling within the following public interest considerations against disclosure as set out in subs 14(2) of the GIPA Act:
14 Public interest considerations against disclosure
(1) ....
(2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.
(3) ...
(4) ...
Table
3 Individual rights, judicial processes and natural justice
There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects:
(a)
reveal an individual's personal information,
(b)
...
(c)
prejudice any court proceedings by revealing matter prepared for the purposes of or in relation to current or future proceedings,
(d) .
4 Business interests of agencies and other persons
There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects:
(a)
undermine competitive neutrality in connection with any functions of an agency in respect of which it competes with any person or otherwise place an agency at a competitive advantage or disadvantage in any market,
(b) .
As I have explained below, on the basis of the content of their submissions, Mr Gurney and Ms Dougall's reliance on item 4(a) above appears to be misconceived.
Mrs Coleman relies on the same grounds relied on by Mr Gurney and Ms Dougall. However, she also asserts that disclosure of the information 'will have an undesired effect in relation to our financial interests and the financial interests of the members of the Friends of Beaconsfield.' Item 4(d) of the table to subs 14(2) of the GIPA Act deals with financial interests in that it prescribes a public interest consideration against disclosure if: 'disclosure of the information could reasonably be expected to ... prejudice any person's legitimate business, commercial, professional or financial interests.'
The onus is on Mr Gurney, Ms Dougall and Mrs Coleman to establish that disclosure of the information in issue could reasonably be expected to have the effect, as asserted, in accordance with the terms of the items relied on in the table to subs 14(2) of the GIPA Act and that these public interest against disclosure of the information in dispute, on balance, overrides the public interest in favour of disclosure: see subs 105(2) of the GIPA Act.
As the majority of the disputed information is common to the applications of Mr Gurney, Ms Dougall and Mrs Coleman and they each rely on the same grounds, I have dealt with the disputed information in accordance with the specific grounds relied. Where the disputed information is not common to all applicants, I have dealt with this information separately.
The GIPA Act and relevant legal principles
The applicable law is that set out in the GIPA Act, the objects of which are set out in s3 as follows:
3 Object of Act
(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:
(a) authorising and encouraging the proactive public release of government information by agencies, and
(b) giving members of the public an enforceable right to access government information, and
(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
(2) It is the intention of Parliament:
(a) that this Act be interpreted and applied so as to further the object of this Act, and
(b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
The term 'government information' is defined in section 4 of the GIPA Act to mean 'information contained in a record held by an agency'. Government information 'held' by an agency is defined in clause 12 of Schedule 4 of the GIPA Act.
Section 5 of the GIPA Act contains a presumption in favour of the disclosure of that information, unless there is an 'overriding public interest against disclosure'. The test to be applied in determining whether there is an overriding public interest against disclosure is set out in s 13. That test is in the following terms:
13 Public interest test
There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
Section 6 of the GIPA Act provides for the proactive release of government information that is 'open access information'. That section is in the following terms:
6 Mandatory proactive release of certain government information
(1) An agency must make the government information that is its open access information publicly available unless there is an overriding public interest against disclosure of the information.
Note. Part 3 lists the information that is open access information.
(2) Open access information is to be made publicly available free of charge on a website maintained by the agency (unless to do so would impose unreasonable additional costs on the agency) and can be made publicly available in any other way that the agency considers appropriate.
(3) At least one of the ways in which an agency makes open access information publicly available must be free of charge. Access provided in any other way can be charged for.
(4) An agency must facilitate public access to open access information contained in a record by deleting matter from a copy of the record to be made publicly available if inclusion of the matter would otherwise result in there being an overriding public interest against disclosure of the record and it is practicable to delete the matter.
(5) An agency must keep a record of the open access information (if any) that it does not make publicly available on the basis of an overriding public interest against disclosure. The record is to indicate only the general nature of the information concerned.
(6) Nothing in this section or the regulations requires or permits an agency to make open access information available in any way that would constitute an infringement of copyright.
Section 18 of the GIPA Act prescribes what is meant by the term 'open access information'. It is in the following terms:
18 What constitutes open access information
The following government information held by an agency is the agency's open access information that is required to be made publicly available by the agency under section 6 (Mandatory proactive release of certain government information):
(a) the agency's current agency information guide (see Division 2),
(b) information about the agency contained in any document tabled in Parliament by or on behalf of the agency, other than any document tabled by order of either House of Parliament,
(c) the agency's policy documents (see Division 3),
(d) the agency's disclosure log of access applications (see Division 4),
(e) the agency's register of government contracts (see Division 5),
(f) the agency's record (kept under section 6) of the open access information (if any) that it does not make publicly available on the basis of an overriding public interest against disclosure,
(g) such other government information as may be prescribed by the regulations as open access information.
Schedule 1 of the Government Information (Public Access) Regulation 2009 (GIPA Regulation) prescribes additional information by a local authority (including the respondent) which is to be treated as open access information. Clause 3 of that Schedule prescribes the following information about a development application to be open access information:
3 Information about development applications
(1) Information contained in the following records (whenever created) is prescribed as open access information:
(a) development applications (within the meaning of the Environmental Planning and Assessment Act 1979) and any associated documents received in relation to a proposed development including the following:
(i) home warranty insurance documents,
(ii) construction certificates,
(iii) occupation certificates,
(iv) structural certification documents,
(v) town planner reports,
(vi) submissions received on development applications,
(vii) heritage consultant reports,
(viii) tree inspection consultant reports,
(ix) acoustics consultant reports,
(x) land contamination consultant reports,
(b) records of decisions on development applications (including decisions made on appeal),
(c) a record that describes the general nature of the documents that the local authority decides are excluded from the operation of this clause by subclause (2).
(2) This clause does not apply to so much of the information referred to in subclause (1) (a) as consists of:
(a) the plans and specifications for any residential parts of a proposed building, other than plans that merely show its height and its external configuration in relation to the site on which it is proposed to be erected, or
(b) commercial information, if the information would be likely to prejudice the commercial position of the person who supplied it or to reveal a trade secret.
(3) A local authority must keep the record referred to in subclause (1) (c).
Section 12(1) of the GIPA Act provides that there is a general public interest in favour of disclosure of government information. Subs 12(2) provides that public interest considerations in favour of disclosure are not limited. The section goes on to provide some examples of public interest considerations in favour of disclosure of government information. These include:
Note. The following are examples of public interest considerations in favour of disclosure of information:
(a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.
(b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.
(c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.
(d) The information is personal information of the person to whom it is to be disclosed.
(e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.
The public interest considerations against disclosure are limited. These are set out in section 14 of the GIPA Act. Subsection 14(1) provides that government information described in Schedule 1 of the GIPA Act is to be conclusively presumed to give rise to a public interest consideration against disclosure. Mr Gurney, Ms Dougall and Mrs Coleman have not placed any reliance on this section of the GIPA Act.
As I have already explained, subs 14(2) sets out the only other public interest considerations against disclosure. For the purpose of this application, the relevant public interest considerations against disclosure are set out in paragraph 16 and 18 above.
Section 15 sets out the principles that are to be applied when determining whether there is an overriding public interest against disclosure. That section provides as follows:
15 Principles that apply to public interest determination
A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles:
(a) Agencies must exercise their functions so as to promote the object of this Act.
(b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner.
(c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.
(d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.
(e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
Where the information for which access is sought contains 'personal information' about a person (other than the access applicant), or concerns the person's business, commercial, professional or financial interests, section 54 of the GIPA Act requires an agency to consult with that person before providing access where (a) the person may reasonably be expected to have concerns about the disclosure of the information, and (b) those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information. As I have explained, it is as a result of consultation under this section that Mr Gurney, Ms Dougall and Mrs Coleman lodged their respective applications for review.
Section 55 provides for personal factors to be taken into account in determining where the public interest lies. That section is in the following terms:
55 Consideration of personal factors of application
(1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section:
(a) the applicant's identity and relationship with any other person,
(b) the applicant's motives for making the access application,
(c) any other factors particular to the applicant.
(2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information.
(3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14.
(4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for.
(5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to provide proof of his or her identity.
(6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person.
Note. An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73.
Section 107 of the GIPA Act sets out the procedure to be used, by the tribunal, in regard to information for which there is, or claimed to be an overriding public interest consideration against disclosure, when reviewing a reviewable decision made under that Act. In essence that provision requires the tribunal to ensure that it does not disclose such information in the course of the hearing or in its reasons for decision. Accordingly, to the extent these reasons for decision rely on information of this kind, that information has been deleted in the open reasons for decision and have been replaced with the words '[Not for publication]': see also subs 75(2) of the ADT Act. However, that information is disclosed in the reasons for decision, marked confidential, which are to be provided to the respondent and the applicant objectors, Mr Gurney, Ms Dougall and Mrs Coleman. In light of my findings I have made orders to the effect that the restriction on the publication of those parts marked 'not for publication' should only extend for 30 days after the day on which these reasons for decision were published.
Public interest considerations against disclosure
The public interest considerations against disclosure, as listed in the table to section 14 of the GIPA Act, only apply where the 'disclosure' of the information in issue 'could reasonably be expected' to have the nominated effect as prescribed in one or more of the paragraphs in the items in that table.
The term 'disclose information' is defined in clause 1 of Schedule 4 of the GIPA Act to include 'make information available and release or provide access to information.'
The phrase 'could reasonably be expected to' has been the subject of considerable judicial consideration with respect to its use in the context of exempt documents under the repealed Freedom of Information Act 1989 (NSW)(FOI Act repealed) and also the Freedom of Information Act 1982 of the Commonwealth. The same meaning has been applied to this phrase as it appears in the table to section 14 of the GIPA Act. That is, the words in the phrase are to be given their ordinary meaning and ' require a judgement to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous' to expect to have the prescribed consequences: see McKinnon v Secretary, Department of Treasury [2006] HCA 45, at [61] and Attorney-General's Department v Cockcroft (1986) 10 FCR180, at 190. Accordingly, it is an enquiry of a general and abstract nature.
Item 3(a) - Reveal an individual's personal information?
Personal information is defined in cl 4 of Schedule 4 of the GIPA Act as follows:
4 Personal information
(1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.
(2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics.
(3) Personal information does not include any of the following:
(a) information about an individual who has been dead for more than 30 years,
(b) information about an individual (comprising the individual's name and non-personal contact details) that reveals nothing more than the fact that the person was engaged in the exercise of public functions,
(c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause.
The term 'reveal information' is defined in cl 1 of Schedule 4 to mean 'to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)'.
As I have explained, it is accepted that the mobile, home and work telephone number of Mr Gurney, Ms Dougall or Mrs Coleman, is personal information and that a disclosure of this information could reasonably be expected to reveal that information. The issue is whether the remainder of the information (including the email addresses of Mr Gurney, Ms Dougall and Mrs Coleman) in the disputed emails is also personal information.
It is the contention of Mr Gurney, Ms Dougall and Mrs Coleman that it is personal information. In this regard, they rely on the decision of the tribunal in APD v Commissioner of Police NSW Police Force [2012] NSWADT 45. In that application the information in issue was the name of the cyclist whom the applicant alleged to have assaulted him. The information was contained in records held by the respondent, the NSW Police Force. This included a written statement of the cyclist. The tribunal found that the name of the cyclist was personal information and that a disclosure of that information could reasonably be expected to reveal that information (i.e. the name and identity of the cyclist).
In this application, there is no dispute about the disclosure of the name of Mr Gurney, Ms Dougall and Mrs Coleman (the third party applicants) as their identity is known to the applicant, Mr Donnellan. That is, he is not seeking access to the information that would identify the objectors to the development application. What he is seeking is the substance of the email communication between the third party applicants and the respondent. The question is whether that information is personal information about Mr Gurney, Ms Dougall and Mrs Coleman.
To the extent the emails contain the email addresses of Mr Gurney, Ms Dougall, Mrs and Mr Coleman and other members of the Friends of Beaconsfield, I agree that this is personal information about each of them as individuals. I also agree that a disclosure of these email addresses could reasonably be expected to reveal their personal information.
Having carefully examined the information in the body of the disputed emails, I find, with a few exceptions, that the remaining information is not personal information (i.e. information, or opinion) about Mr Gurney, Ms Dougall or Mrs Coleman as individuals. The fact that the emails have been sent by Mr Gurney, Ms Dougall or Mrs Coleman does not mean that the information in the email is personal information. It would appear that the emails were sent or received by Mr Gurney, Ms Dougall and Mrs Coleman in their capacity as members of the Friends of Beaconsfield. It is also evident from the information in the body of the emails that they relate to issues concerning the respondent's consideration of the development application of Mr Donnellan's company and the relevant zoning of the land that is the subject of that application. While I accept that the information in some of the emails contain expressions of opinion, in my view, they are primarily opinions about the development application and issues related thereto and not about an individual. Furthermore, they were opinions/submissions made to the respondent on behalf of the group that is the Friends of Beaconsfield.
[Not for publication].
For completeness I also find that, with exceptions set out in paragraph 46 below, the information in the emails that were sent or received by Mrs Coleman and her husband alone, is not personal information about them as an individual (i.e. the information in the emails that are at tabs 55, 57, 59, 60, 61, 62, 63, 64, 66, 69, 132, 154, 155, 214, 216, 217 and 218). The information in these emails also relates to issues concerning the respondent's consideration of the development application of Mr Donnellan's company and appear to have been sent and received by Mrs Coleman and her husband in their capacity as members of the Friends of Beaconsfield.
The exceptions, to the above findings is the following information contained in emails located behind the following tabs:
(a) tab 3 - the first and second sentence in the body of the email sent, on 3 July 2011, by Mrs Coleman,
(b) tabs 21, 22, 24 and 25 - the information in the body of the emails sent on, 23 August 2011, at 7:47, 8:06, 8:22 and 10:36 am, and
(c) tab 215 - the information in the body of the email sent, on 28 March 2012, by Mr Coleman, at 7:34 pm.
That is, I am satisfied that Mrs Coleman has established that the information, identified in paragraph 46 above, is personal information about her and/or her husband and if disclosed could reasonably be expected to reveal that information. Accordingly, I am satisfied that Mrs Coleman has established that there is a public interest consideration against disclosure in regard to this information.
On the other hand, I am not persuaded that the information, other than the email addresses, telephone numbers (mobile, private and work numbers) of Mr Gurney, Ms Dougall and Mrs Coleman and her husband is personal information. However, in the event I am incorrect, and it is found that the information is personal information and a disclosure of it could reasonably be expected to reveal that information, I have also considered whether this public interest consideration against disclosure, on balance, overrides the public interest consideration in favour of disclosure (see paragraphs 70-72 below).
Item 3(c) - Prejudice court proceedings?
As noted by Mr Gurney, Ms Dougall and Mrs Coleman, the word 'prejudice' is not a term of legal art and means 'to impeded or derogate from'.
It is the contention of Mr Gurney, Ms Dougall and Mrs Coleman that the information in the disputed emails would prejudice future court proceedings by revealing 'matters prepared for the purpose of or in relation' to such proceedings. It is contended that the information in the disputed emails 'sets out the substance of claims' which Mr Gurney, Ms Dougall and Mrs Coleman and other members of their resident group 'are considering pursuing by legal proceedings.' It is contended that the applicant and the companies he controls will 'inevitably' be a party to those proceedings. Furthermore, it is asserted that a disclosure of the information now will impede or derogate from those proceedings as the applicant will have advance notice of the issues Mr Gurney, Ms Dougall and Mrs Coleman and others will raise.
It is submitted that in the event proceedings were to commence, the applicant may not be able to gain access to the disputed information in the course of those proceedings as discovery may not be available and some of the information 'may well be subject to a claim for legal professional privilege on the basis of common interest privilege.'
I find it difficult to accept any of these contentions and submissions. As I have pointed out above, what must be established by Mr Gurney, Ms Dougall and Mrs Coleman is that the information in issue, if disclosed, could reasonably be expected to prejudice court proceedings by revealing matter prepared for the purposes of, or in relation to, current, or future proceedings (my emphasis).
In regard to the issue of privilege, Mr Gurney, Ms Dougall and Mrs Coleman have not specified the information they assert to fall within this category. Nor have they made a claim that subs 14(1) and cl 5 of the GIPA Act (i.e. conclusively presumed that there is a public interest consideration against disclosure) applies. Accordingly, I find that they have failed to establish their submission in regard to privilege.
In regard to the issue of discovery, in my view, this is an irrelevant consideration for the purpose of this public interest consideration against disclosure.
I note that the decisions of the Land and Environment Court were published on 11 January 2012 (i.e. [2012] NSWLEC 1035 (supra)) and 13 March 2012 (i.e. [2012] NSWLEC 1055 (supra)). Many of the disputed emails came into existence at the time the respondent was involved in those proceedings. Mr Gurney, Ms Dougall and Mrs Coleman were not a party to those proceedings. However, they supported the decision of the respondent that was the subject of those proceedings. In this regard, I note that some of the information in the disputed emails appears to have been tendered as evidence in those proceedings [Not for publication]. Similarly, issues raised in the disputed emails, sent or received prior to the decisions of the Land and Environment Court, appear to be issues also raised in the course of those proceedings. As those proceedings have now concluded, it is difficult to see how the public interest consideration against disclosure in item 3(c) of the table to subs 14(2) of the GIPA Act could apply to the information that came into existence prior to March 2012.
This leaves the information in the disputed emails sent or received after March 2012.
While I accept that there may be further development applications to which Mr Gurney, Ms Dougall, Mrs Coleman and other members of the Friends of Beaconsfield may make an objection, I am not persuaded, on the information provided, that their objections will necessarily include the information the subject of these applications, or that they will give rise to court proceedings. I am also not persuaded that the information in the disputed emails sent or received from March 2012 were prepared for the purpose of, or in relation to future court proceedings.
Accordingly, for the reasons set out above, I find that Mr Gurney, Ms Dougall or Mrs Coleman have failed to establish that the public interest consideration against disclosure in item 3(c) of the table to subs 14(2) of the GIPA Act does not apply to the information in dispute.
Item 4(a) - Undermine competitive neutrality in connection with any functions of an agency
Mr Gurney, Ms Dougall and Mrs Coleman contend that 'disclosure of the information will be likely to endanger, or prejudice a system or procedure for protecting, the environment'. In their written submissions, Mr Gurney, Ms Dougall and Mrs Coleman refer to a number of legislative instruments which form part of a 'system for protecting the environment' and go on to assert that the information in the disputed emails contain their view and arguments on various issues referable to the environment. They also assert that the 'applicant's interest is to circumvent that system' and a release of the information would assist him (and I assume his company) to achieve this. In support of this assertion Mr Gurney, Ms Dougall and Mrs Coleman refer to an alleged incident of the applicant having been provided with a copy of an ecologist report, prepared on behalf of the objectors (i.e. Gurney, Ms Dougall, Mrs Coleman and the other members of their group) to the development application by the applicant's company, under s 12 of the Local Government Act 1993. They assert that shortly after the release of the expert report, the applicant's contractors were seen 'mowing the undercanopy species and uprooting the blackbutt saplings' as referred to in that report. The applicant, I note strongly disputes the assertions that have been made and sets out in some detail as to what had occurred.
While I accept that paragraph 55(1)(a) of the GIPA Act provides that the applicant's motives, in making the access application, can be taken into account. It is clear from the wording of that paragraph, these motives are relevant to the issue of determining where the public interest lies, on balance. That is, it must first and foremost be established that one or more of the public interest consideration against disclosure in subs 14(2) applies to the information in issue. Once established, the issue of motive becomes relevant, but that motive must also be established on reliable evidence and not by mere assertion. In this application, as I have said, the onus is on Mr Gurney, Ms Dougall and Mrs Coleman to establish these matters.
As I have explained, item 4(a) of the table to subs 14(2) of the GIPA Act deals with information which if disclosed could reasonably be expected to undermine the competitive neutrality or competitive advantage or disadvantage of a government agency: see Retain Beacon Hill High School Committee Inc. v NSW Treasury [2007] NSWADT 55 at [38]. I do not see how issues concerning the protection of the environment falls with the terms of this item. On the other hand, item 5(a) of the table to subs 14(2) of the GIPA Act does prescribe a public interest consideration against disclosure where the disclosure of information could reasonably be expected to endanger, or prejudice any system or procedure for protecting the environment.
The submissions and the respective schedules of disputed emails of Mr Gurney and Ms Dougall and Mrs Coleman do not specify which emails they assert to contain information of the kind falling within item 5(a). On the basis of the content of the disputed emails I assume the information to which Mr Gurney, Ms Dougall and Mrs Coleman refer is that contained in the emails at tabs [Not to be published]. In my opinion the information in these emails is in the nature of an objection to actions, or lack of action by the respondent in regard to an issue of environmental concern to Mr Gurney, Ms Dougall and Mrs Coleman and does not involve a 'system or procedure' for protecting the environment.
Accordingly, for the reasons set out above, I find that Mr Gurney, Ms Dougall or Mrs Coleman have failed to establish that the public interest consideration against disclosure in item 4(a) and 5(a) of the table to subs 14(2) of the GIPA Act does not apply to the information in dispute.
Item 4(d) - prejudice a person's legitimate financial interests
As I have explained above, Mrs Coleman, in her submissions, contended that a disclosure of the information in dispute could reasonably be expected to prejudice her and her husband's legitimate financial interests. Again, other than by mere assertion, Mrs Coleman and her husband have not provided any evidence as to what those financial interests are and how the disclosure of the information in issue would prejudice those interests. The mere fact that Mr and Mrs Coleman own the property adjoining the property the subject of the development application is not sufficient to establish this public interest consideration against disclosure.
Accordingly, I find that Mrs Coleman and her husband have failed to establish this public interest consideration against disclosure.
Public interest considerations in favour of disclosure
Leaving aside the general public interest in favour of disclosure of government information as set out in subs 12(1) of the GIPA Act in my view the following public interest considerations in favour of disclosure also apply:
(a) disclosure of the information could reasonably be expected to enhance Government accountability (i.e. that of the respondent) and contribute to positive and informed debate on development applications and other issues of public importance in relation to such applications, and
(b) disclosure of the information could reasonably be expected to inform the public about the operations of the respondent and their practices for dealing with members of the public in regard to such applications.
Property development and decisions made by Local Councils and Government in relation thereto are of considerable interest to local residents and the community at large. Developments of this kind are made in a regulated environment and as I have explained above, development applications and all associated documents are prescribed to be open access information under the GIPA Act, unless there is an overriding public interest consideration against disclosure: see paragraphs 24 to 26 above. I have dealt with this issue in more detail below.
Where does the balance lie?
In regard to the information that is the email address of Mr Gurney, Ms Dougall, Mrs and Mr Coleman and any other person, other than an officer of the respondent, for which I have found there is a public interest consideration against disclosure, I find, on balance, that this public interest consideration overrides the public interest consideration in favour of disclosure. Had it been in dispute, I would have made the same finding in regard to the information that is the telephone numbers (mobile, office and home) of Mr Gurney, Ms Dougall, Mrs and Mr Coleman and any other person, other than an officer of the respondent. As I have explained, this information is personal information of a private nature and, in my view, a disclosure of that information would not enhance accountability of the respondent, contribute to positive and informed debate about the practices of the respondent in regard to dealing with, or determining development applications.
I make a similar finding in regard to the information set out in paragraph 46 above.
In regard to the remainder of the disputed information, while I have not accepted the arguments of Mr Gurney, Ms Dougall and Mrs Coleman that this information is personal information, I have considered where the public interest lies, on balance, in the event I am incorrect in my findings in regard to that information.
In my view, this information differs considerably to the information that is a personal email address, or telephone number, of an individual member of the public. As I have explained, the information concerns or relates to the development application of Mr Donnellan's company. Having regard to the content of that information, the legislative obligation on an agency to publish of information of this kind and the fact that the person seeking access to the information in issue is the director of the company whose development application is the subject of this information, in my view, the public interest consideration against disclosure is not very strong. On the other hand, a disclosure of information received, by a Local Council or the Government, from a member(s) of the public about a development application (i.e. its merits or otherwise) would enhancing an open, accountable fair and effective representative democratic Government decision making.
As I have explained above, cl 3 of the GIPA Regulation prescribes information about development applications and 'any associated documents received in relation' to an application of this kind to be 'open access information'. Subs 6(1) of the GIPA Act provides that an agency (including the respondent) is required to make this information publicly available unless there is an overriding public interest consideration against disclosure. That is, there is an obligation on an agency to make information of this kind publicly available, regardless of whether an application for access has been made under the GIPA Act. Implicit from these provisions is that the public interest in the disclosure of information of this kind is very strong.
While it has not been argued that cl 3 applies to the information in dispute, there is no suggestion that the development application of Mr Donnellan's company did not fall within the terms of that provision. On the contrary, the content of the information in dispute indicates that Mr Gurney, Ms Dougall, Mrs Coleman and the other members of the Friends of Beaconsfield group had ready access to that information. Furthermore, as I have explained the information in the disputed emails is essentially a response to the development application. On this basis, without more, it is difficult to see how the disputed information, even if found to be personal information, that the relevant public interest consideration against disclosure would, on balance, outweigh the strong public interest consideration in favour of disclosure. [Not to be published]
Conclusions and orders
For the reasons set out above, I find that the decision of the respondent is the correct and preferred decision, subject to some additional deletions as set out in paragraph 46 above.
Accordingly, the appropriate order is to affirm the decision of the respondent subject to the abovementioned additional deletions. In light of my findings it is also appropriate to make an order that those portions of this decision, marked '[Not to be published]', be given effect to for 30 days, after the publication of these reasons for decision.
Orders:
1. Subject to the following additional deletions from the information in the emails, the subject of this application, the decision of the respondent is affirmed:
(a) deletion of the information that is an email address of a person other than an officer or representatives of the respondent;
(b) deletion of the information in the body of the emails at tab 21, 22, 24 and 25 that were sent on 23 August 2011 at 7:47, 8:06, 8:22 and 10:06 am;
(c) deletion of the information in the body of the email at tab 215, sent at 7:43 pm.
2. Pursuant to subs 75(2) of the Administrative Decisions Tribunal Act 1997, for 30 days after the publication of this decision, the material deleted after the words 'Not to be published' in paragraphs 44, 55, 62 and 73 of these reasons for decision are not to be disclosed to applicant, Mr Donnellan, the applicant's legal representative or the public.
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Decision last updated: 27 May 2013
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