Edwards v Department of Family and Community Services, Housing NSW (No 2)

[2012] NSWADT 273

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Edwards v Department of Family and Community Services, Housing NSW (No 2) [2012] NSWADT 273
Hearing dates:	On the papers
Decision date:	19 December 2012
Jurisdiction:	General Division
Before:	Naida Isenberg, Judicial Member
Decision:	The decision under review is varied and the respondent is directed to provide to the applicant a copy of the documents referred to in paragraph 74 of this decision within 30 days of publication of these reasons.
Catchwords:	Access to government information - broad public interest considerations in favour of disclosure - complaints - personal information - threat of harassment
Legislation Cited:	Government Information Public Access Act 2009 Freedom of Information Act 1989 Privacy and Personal Information Protection Act 1998 Housing Act 2001
Cases Cited:	Commissioner of Police v Camilleri [2012] NSWADT286 Flack v Commissioner of Police [2011] NSWADT 286 Leech v Sydney Water Corporation [2010] NSWADT 298 Hurst v Wagga Wagga City Council [2011] NSWADT 307 Director General, Department of Education & Training v Mullett & Anor (GD) [2002] NSWADTAP 13 Camilleri v Penrith City Council [2012] NSWADT 196 Fahey v NSW Office of Liquor, Gaming & Racing [2012] NSWADT 181 Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98 Marrickville Legal Centre v Chief Commissioner of State Revenue [2012] NSWADT 98
Category:	Principal judgment
Parties:	Patricia Edwards (Applicant) Department of Family and Community Services, Housing NSW (Respondent)
Representation:	Legal Aid NSW (Applicant) Housing NSW (Legal Services Branch) (Respondent)
File Number(s):	123025

REASONS FOR DECISION

Background

1. The applicant, Patricia Edwards, has been a tenant of properties managed by the respondent since 1 July 1996. The property at which Ms Edwards lived in 2010 was to be demolished to build a road. Ms Edwards did not want to move. She was invited, it appears, to identify another suitable property and, as a result, arrangements were made for the property at [address] to be purchased by or on behalf of the respondent. Following complaints by residents of the area, Ms Edwards was not transferred to that property.

1. Ms Edwards seeks information under the Government Information (Public Access) Act 2009 (the G1PA Act) about:

Correspondence to the Minister from neighbours of a Housing NSW residence at [address]

Complaints from neighbours of that property

Why she was declined the property at [address]

1. On 20 September 2011 the respondent provided the applicant with its Internal Review decision, the subject of this application for review. On 27 January 2012 the applicant filed a late application for review of a decision in the Tribunal pursuant to s. 80 of the GIPA Act. On 5 April 2012 the Tribunal granted an extension of time for the filing of the application for review to 27 January 2012.

The documents

1. Some documents may have been provided in full to the applicant in response to her application. Other documents were provided to her with redactions and some were not provided at all. Those documents may be conveniently grouped as follows:

Letters of complaint forwarded to Housing NSW (F1-32) which were said to contain information regarding nuisance and annoyance issues that identify other persons, including residential addresses, the release of which was said to expose a person to a risk of harm or of serious harassment or serious intimidation. The letters were said to include confidential information that was provided and obtained in confidence by Housing NSW.

A letter forwarded to Housing NSW (F33-34) which was said to contain information regarding nuisance and annoyance issues that identify another person, the release of which was said to expose a person to a risk of harm or of serious harassment or serious intimidation.

Series of 'letters' (petitions) to Housing NSW (F35-42) which were said to contain:

information regarding nuisance and annoyance issues that identify another person, including their residential addresses, the release of which was said to expose a person to a risk of harm or of serious harassment or serious intimidation

confidential information tht was provided and obtained in confidence by Housing NSW.

Internal briefing note (F43-48) which was said to contain:

information which, if released, could expose a person to a risk of harm or of serious harassment or serious intimidation (F43)

advice and recommendations relating to Housing NSW's decision-making functions that were exchanged between officers of Housing NSW (F44)

information that identifies another person, which, if disclosed could expose a person to a risk of harm or of serious harassment or serious intimidation (F44)

information that identifies another person, which, if disclosed, was said to expose a person to a risk of harm or of serious harassment or serious intimidation (F45-46 and F47-48)

confidential information that was said to be provided and obtained in confidence by Housing NSW (F45-46 and F47-48)

Internal email transmission (F49-53) which was said to contains advice and recommendations relating to Housing NSW's decision-making functions that were exchanged between officers of Housing NSW. Also contains information that identifies another person, which, if disclosed was said to expose a person to a risk of harm or of serious harassment or serious intimidation. It includes confidential information that was provided and obtained in confidence by Housing NSW (F 49) also contains information that identifies another person and their residential address (F50 and F52) also contains information of which if disclosed would expose a person to a risk of harm or of serious harassment or serious intimidation (F53)

Undated partial internal briefing note (F55-56) was said to:

contain advice and recommendations relating to Housing NSW's decision-making functions that were exchanged between officers of Housing NSW (F55, F56)

identifies another client of Housing NSW (F56).

contains information which, if disclosed, was said to expose a person to a risk of harm or of serious harassment or serious intimidation (F55)

contains information which, if disclosed, was said to expose a person to a risk of harm or of serious harassment or serious intimidation (F56)

1. Unredacted copies of the documents which have been provided to Ms Edwards albeit in redacted form, and copies of documents withheld from her in their entirety have been provided to the Tribunal on a confidential basis. Each document was separately considered.

Issue before the Tribunal

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

Relevant Legislation

1. The objects of the GIPA Act are set out in s 3, which provides:

3 Object of Act

(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:

(a) authorising and encouraging the proactive public release of government information by agencies, and

(b) giving members of the public an enforceable right to access government information, and

(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.

(2) It is the intention of Parliament:

(a) that this Act be interpreted and applied so as to further the object of this Act, and

(b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.

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

1. Section 5 provides that there is a presumption in favour of the disclosure of government information unless there is an 'overriding public interest against disclosure.'

1. Subsection 12(1) provides that there is a 'general public interest in favour of the disclosure of government information.' Subsection 12(2) provides that nothing in the Act limits any other public interest consideration in favour of the disclosure of government information, which may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government Information. The subsection also sets out a number of examples of public interest considerations in favour of disclosure of government information.

1. Section 13 of the GIPA Act sets out the test that is to be applied in determining whether there is an overriding public interest against disclosure. That test is in the following terms:

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 interests considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure

1. The public interest considerations against disclosure are set out in a Table in s. 14 of the GIPA Act.

1. Section 15 sets out the principles that are to be applied when determining whether there is an overriding public interest against disclosure. It provides:

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.

1. Section 54 of the GIPA Act contains a requirement that an agency is to take steps, which are reasonably practicable, to consult with specified persons before providing access to information. That requirement only applies to information, which is of a kind that requires consultation under s 54(2): see s 54(1). The information requiring consultation includes personal information about a person: see s 54(2)(a) of the GIPA Act.

1. On an application for review to the Tribunal, the onus is on the agency to establish that the decision the subject of review is justified: s 105(1).

CONSIDERATION

1. In deciding whether to release information, the Tribunal must apply the public interest test and decide whether or not an overriding public interest against disclosure applies to the information. As noted above, s 13 of the GIPA Act requires the Tribunal to undertake the following steps:

• identify the relevant public interest considerations in favour of disclosure
• identify the relevant public interest considerations against disclosure.
• determine the weight of the public interest considerations in favour of and against disclosure and where the balance between those interests lies.

Public interest considerations in favour of disclosure

1. Section 12 of the GIPA Act reiterates the general presumption in favour of disclosure of government information, and lists examples of public interest considerations that favour disclosure. Those considerations include situations where:

• Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.
• Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.
• Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.
• The information is personal information of the person to whom it is to be disclosed.
• Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.
• Disclosure of the information could reasonably be expected to advance the fair treatment of individuals in accordance with the law in their dealings with agencies.
• Disclosure of the information could reasonably be expected to reveal the reason for a government decision and any background or contextual information that informed the decision.
• Disclosure of the information could reasonably be expected to contribute to the administration of justice generally, including procedural fairness.

1. The list is not exhaustive. In addition, the applicant asserted in the application that:

• Disclosure of the information could reasonably be expected to reassure Aboriginal and Torres Strait Islander persons that they will be treated fairly by Housing NSW
• Disclosure of the information could reasonably be expected to Inform the public of the commitment of the NSW Government to combat racism in the community
• Disclosure of the information could reasonably be expected to inform the public that persons who engage in racial vilification or defamation will not be protected by NSW Government agencies
• Disclosure of the information could reasonably be expected to reveal the appropriate representations of Local Members of Parliament
• Disclosure of the information could reasonably be expected to ensure public confidence in the manner in which NSW government agencies respond to representations by Local Members of Parliament and Local Councils
• Disclosure of the information could reassure the public and tenant rights groups of the compliance by Housing NSW in their policies in relation to investigating and resolving tenant disputes involving Housing NSW tenants.
• Disclosure of the information could enhance the process of reconciliation between Aboriginal and Torres Strait Islander persons and non Aboriginal and Torres Strait Islander persons in the community
• Disclosure of the information could restore public confidence in the working of Government and demonstrate a commitment to an anti-corruption commitment

1. Other than from the general factual background, it was difficult to see whether all these claimed considerations are pertinent. I accept that it is difficult for an applicant, who necessarily does not know the precise nature of the information he or she seeks, to articulate what might be the public interest considerations in favour of disclosure. Having said that, I do not accept that all of the matters nominated by the applicant as public interest considerations in favour of disclosure are valid. For example, that "Disclosure of the information could enhance the process of reconciliation between Aboriginal and Torres Strait Islander persons and non Aboriginal and Torres Strait Islander persons in the community" seems somewhat idealistic, given that the information sought is limited to the applicant, complaints about her, and a proposed tenancy. Nonetheless, I have taken into account the substance of the applicant's concerns in the context of the broad objects of the GIPA Act.

1. Although not articulated by the applicant, I do consider however that there is a clear public interest consideration in favour of disclosure in beneficiaries of public housing, against whom complaints are made that result in the loss of that housing, being entitled to know the substance of the complaints that have led to, or played a part in, that outcome.

Public interest considerations against disclosure

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

1. In Commissioner of Police v Camilleri [2012] NSWADTAP 19 ('the Camilleri appeal') the Appeal Panel considered (at [26]) that s. 14 considerations need to be examined at a broad operational level and that those considerations "are concerned with systemic features of the operation of government".

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

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

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

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

1. The respondent submitted that the following public interest considerations against disclosure are relevant:

1(d) - prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions

1(e) reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency,

1(f) prejudice the effective exercise by an agency of the agency's functions.

1(g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence.

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

3(f) - could expose a person to a risk of harm or of serious harassment or serious intimidation

1. Each is addressed below, although discussion of some considerations may be conveniently grouped.

Clause 1(d) Prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions

Clause 1(f) Prejudice the effective exercise by an agency of the agency's functions

Clause 1 (g) Found an action against an agency for breach of confidence or privacy or otherwise result in the disclosure of information provided to an agency in confidence.

1. The respondent relied upon the grounds in cl. 1(d) and 1(g) in respect of folios 1-32 and 34; 33 and 35-42; 45-46;47-48;49, and cl.1(f) in respect of folios 45-46;47-48;49 and 56.

1. In the Camilleri Appeal the Appeal Panel considered that the question of whether information supplied was "confidential information' should be examined "primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received": at [33].

1. The respondent noted that it receives notifications and information from a number of sources in relation to alleged breaches of tenancy agreements and conducts investigations into alleged breaches in order to substantiate such allegations. It is required, it said, to maintain the confidentiality of such information and the privacy of any person who has provided such information. It was submitted that such information should not be disclosed as there has been no permission or consent to such disclosure.

1. The applicant submitted that I should reject this submission as it does not apply to the circumstances of her matter because at no time was the applicant a 'tenant' at [the address] and the circumstances of this matter cannot be compared or related to the respondent's practices in relation to alleged breaches of tenancy agreements. I consider that whether or not Ms Edwards was 'a tenant' of [address] is immaterial. As far as I can see, it was proposed that she would become a tenant of that address, and there was no dispute that she had been a tenant of the respondent, at other premises, for many years.

1. The applicant also submitted that the respondent's contention that the disclosure could reasonably be expected to prejudice the future supply of such information is ill-founded. It was asserted, somewhat emotively in my view, that it was unlikely that the next time the Aboriginal Housing Office purchases a property in a street where it does not already own any properties, that residents will be disinclined to protest, object or make representations.

1. The respondent submitted that if it is to consider the concerns of residents of neighbouring properties it must be able to obtain information in confidence, and free from any fear of antagonism or retribution on the part of those the subject of their comments and that disclosure of information provided by such people would most likely make others reluctant to make their concerns known to the respondent. I accept that the respondent places some reliance upon complaints about the conduct of a person in respect of premises as a tenant or potential tenant of the respondent.

1. The applicant also noted that the majority of the information appears to have been provided to respondent voluntarily and appears to have been unsolicited and the information was not requested or collected by the respondent.

1. In determining whether disclosure would prejudice the supply of information, the test is whether information of the kind in question facilitates the exercise of the respondent's functions and, whether the disclosure of such information could reasonably be expected to prejudice the supply of such information: Flack at [52].

1. My attention was invited to the Privacy and Personal Information Protection Act 1998 and the Housing Privacy Code of Practice and it was noted that the respondent, in the usual course of carrying out such of its functions under s. 18 of the Housing Act 2001 is obliged to comply with the non-disclosure of confidential and private information requirements of those provisions. It was submitted that to disclose the source and content of such information received by the respondent could reasonably be expected to prejudice the future supply of such information and is therefore not in the public interest to disclose. I agree that the provisions to which I was referred impose some confidentiality obligations on the respondent, although there was no evidence of assurances of confidentiality.

Clause 1(e): Reveals a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency

1. The respondent relied upon this consideration in respect to folios 44; 45-46; 47-48; 49; 50; 53; 55 and 56. The respondent submitted that the disclosure of information would be contrary to the public interest as it would militate against the community's interest in the frank and candid exchange of views between government officers.

1. The applicant asserted that rather than being against the community's interest, the release of the information would support "good government". The applicant submitted that the community does not have an interest in protecting government officers who do not properly investigate matters and who make decisions without properly checking information and allowing natural justice to those persons who may be adversely affected by a decision.

1. The applicant submitted that the Tribunal should not accept that the respondent's officers engaged in the "frank and candid exchange of views" as such a term, it was submitted, implies that there is fairness in the process as different views are considered. The applicant submitted that the respondent's conduct in failing to inform the applicant of the "actual decision" - presumably that she was not to be moved into those premises - had not acted in a frank and candid manner. The applicant submitted the Respondent's deliberative process was not conducted in a fair manner and procedural fairness was not afforded to the applicant. The applicant submitted that the public interest would be best served by the respondent's officers' actions being disclosed to the public to ensure that such conduct will be improved in the future and the process can be improved.

1. I do not accept, as the applicant appears to assert, that it is the role of the Tribunal to explore the conduct of the respondent in relation to whether it did or did not make an offer to the applicant, and whether the applicant should have been afforded procedural fairness in the respondent's decision-making process about the tenancy. The Tribunal's role in the present matter is only to weigh the public interest considerations in deciding whether or not to provide access to the information sought by the applicant.

1. Having said that, on the face of the documents, some information would reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given in respect of the applicant and [address]. However there was no evidence before me that providing the information to the applicant would prejudice a deliberative process of the respondent.

1. It was submitted that the revealing of what may be inflammatory information considered by agency officials in the course of their deliberations may expose them to approaches by the people who are the subject of that information which might have informed their opinions. This could reasonably make officials reluctant to take such information into account, and therefore prejudice the agency's deliberative processes and thus the effective exercise of its functions: cl 1(e) and 1(f). This submission, it seemed to me, was somewhat confusing. While I accept that a respondent may need to be somewhat circumspect in its submissions in order to avoid disclosing the very information it seeks to withhold, the Tribunal is unable to come to a clear view if a submission is unsupported by evidence.

Clause 3(a) - reveal a person's personal information

1. This reason was advanced by the respondent in its schedule in respect of documents at folios 1 - 32 and 34; 33, 35-42; 44; 45-46; 49; 50; 52 and 56.

1. There was no evidence that the respondent had consulted any of the complainants: see s 54(2)(a). However in view of the allegations made it is reasonable, in my view, to speculate that it is unlikely that the authors of the letters of complaint (see below) would have consented to the release of their personal information.

1. The term "reveal" is defined in clause 1 of Schedule 4 of the GIPA Act to mean "to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).

1. The words, "could reasonably be expected to" in Items 1 and 3 of the Table require an objective consideration of whether disclosure of information sought could have the stated effect.

1. Personal information is defined in clause 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.

1. The applicant submitted that any personal information concerning the neighbour on whose behalf police sought an AVO ('the neighbour') should be disclosed as it has already been publicly disclosed by her in the Local Court proceedings against the applicant. Very little information was available about the details of the AVO. It is reasonable to assume that at least some of the conduct referred to in this complainant's correspondence with the respondent formed the basis of the AVO application.

1. There is material before me which points to the information about the neighbour being publicly disclosed in open court, in the usual course of events. There is no evidence to the contrary. That being the case I am satisfied that the public interest against disclosure, on the ground that release of the information could be reasonably be expected to reveal personal information of the complainants, does not apply with respect to the neighbour. That personal information has already been publicly disclosed, and hence revealed: see Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98.

1. In relation to folio 34 and 33, the applicant speculated, erroneously, that the document appears to relate to a government or council official or Member of Parliament and that, as such, the identity of the writer of this letter should not be withheld under this consideration. The personal information in this letter is to be considered as with the other complainants.

1. In relation to other complainants the applicant did not object to the names and address of individual's being redacted, provided that only the names and addresses were redacted.

1. Somewhat contrary to that concession, in relation to the documents at folios 35 to 42 (the petitions) the applicant submitted to the effect that they are all addressed to the Local State Member of Parliament, with identical wording, and that, by their nature, petitions require the signature and address of the petitioner, and as such, a person who signs a petition does not have any expectation that their details will not be disclosed. I do not agree that that is necessarily the case. In the absence of evidence to the contrary, a person lending their name to a petition could only reasonably be said to have done so as a means of certifying their bona fides to the person to whom the petition is addressed. It is also reasonable to assume, that in signing a petition the person is prepared to have that document shown to others who may be like-minded. It does not necessarily follow that they expect that their names and addresses will be disclosed to the person about whom they complain. In seeking intervention there is, however, a general expectation that the addressee will at least consider their views, and hopefully, from their point of view, take some action or at least investigate the complaint. That process does not necessarily entail disclosure of the complainants' details to the person the subject of the complaint.

1. Other aspects of the complaints refer to the conduct of the applicant vis-à-vis the neighbour - either having observed that conduct themselves, or complaining, basically on behalf of the neighbour. Some had complaints of their own.

1. The applicant assumed that all of the allegations or complaints against the applicant were made by residents of [the street] and the neighbouring street, and the applicant submitted that it would be unjust for the content to be heavily edited merely upon the basis that there was a reference to [the street] in a document just because the person who provided the information lived in [the street].

1. In my view this submission is a misunderstanding of the test in relation to 'personal information'. Information may be of such a kind that, notwithstanding anonymisation of the author and his or her address, sufficient information may nonetheless be contained in the document such that the person is reasonably identifiable. In that way, the information could reasonably be expected to reveal a person's personal information: see Marrickville Legal Centre v Chief Commissioner of State Revenue [2012] NSWADT 98.

Clause 3(f) Could expose a person to a risk of harm or of serious harassment or serious intimidation

1. The respondent relied upon this consideration on 9 instances in respect of folios 1-32 and 34; 33 and 35-42; 43; 44; 45-46; 47-48; 49; 53; 55 and 56.

1. The respondent submitted that by disclosing a person's residential address or name would lead to their identification and would therefore place the persons at risk or harm and should not be disclosed. The applicant submitted that there are no grounds to support this assertion.

1. The applicant submitted that it was unclear as to the class of persons likely to be affected and submitted that there was no evidence that it related to the respondent's staff. The applicant further submitted that there was no evidence of any violence towards any other persons connected with this matter. The AVO complaint was strongly denied by the applicant and was said to have subsequently been withdrawn and consequently dismissed (although no independent information was available to me about the circumstances of the dismissal). In those circumstances, the applicant submitted, it is unrealistic for the respondent to claim that there is a real risk of harm, serious harassment or serious intimidation to the complainant.

1. The applicant also submitted that given the comments of the CEO of Housing NSW in Folio 43 as to the "expectation of protest by Ms Edwards" that the respondent's conduct after the decision and allegations made against Ms Edwards should be treated cautiously as it is prima facie self-serving to the respondent's position by 'demonising' Ms Edwards. I have disregarded the CEO's remark in the course of considering whether the disclosure of information could expose a person to a risk of harm or of serious harassment or serious intimidation.

1. Nonetheless, some of the documents already disclosed to Ms Edwards record that she and others associated with the premises engaged in abusive and threatening behaviour towards the respondent's officers (e.g. folios 50, 52 of the partially redacted documents), although it is understood that Ms Edwards denies such behaviour. It appears that aspects of the applicant's conduct observed by some of the complainants, gave rise, at least in part, to some of the letters of complaint (F1 - 34). The undisclosed material contains several allegations of serious intimidatory behaviour and some serious harassment. Whether or not the behaviour has occurred need not and cannot be determined on the evidence currently before me. However, the test for the purposes of cl. 3(f) is whether the information "could reasonably be expected to" expose a person to a risk of harm, serious harassment or serious intimidation.

1. I do not accept the respondent's submission that this test is other than on the balance of probabilities, but against the background of the seriousness of what is alleged to have previously transpired, I accept that disclosure of "could reasonably be expected to" expose a person to a risk of harm, serious harassment or serious intimidation. I observe that there need only be a reasonable expectation of the risk of harm, serious harassment or serious intimidation.

Balancing the considerations for and against disclosure

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

1. The GIPA Act does not provide a set formula for working out the weight of public interest considerations for or against disclosure, or deciding if one set of considerations outweighs the other. Each matter is different. The balancing of competing interests "is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation: Hurst at [70].

1. I have taken into account the applicant's identity and the relationship with the respondent and her apparent motives for the application, namely to identify the reason(s) she was not offered the housing at [address]: s.55(1)(b) and (c) of GIPA Act. I have also found there to be a clear public interest consideration in favour of disclosure in beneficiaries of public housing, against whom complaints are made that result in the loss of that housing, being entitled to know the substance of the complaints that have led to, or played a part in, that outcome. These matters have been given significant weight.

1. I have also taken into account the substance of the applicant's broader concerns but, for the reasons discussed above, have attached less weight to those matters.

1. I have found that the respondent places some reliance upon complaints about the conduct of a person in respect of premises as a tenant or potential tenant of the respondent. If that information were not provided by members of the public the respondent's effective exercise of its functions may be prejudiced: Director General, Department of Education & Training v Mullett & Anor (GD) [2002] NSWADTAP 13. In the absence of evidence as to the extend the respondent relies upon complaints as the source of its information, this consideration is given limited weight.

1. The consequences of the complaints appear at least to have contributed to the applicant's loss of tenancy of what seem to have been, from her viewpoint, desirable premises.

1. I have also found that the respondent has statutory obligations of confidentiality and this must be afforded some weight.

1. More problematic is the balance between a person - the applicant - being entitled to know the complaints brought against them, and the circumstances in which those complaints were made. I have given careful consideration to the distinction between allegations which, while based on genuinely-held beliefs are found to be erroneous and allegations which are malicious or which are made with disregard to basic facts. There was no evidence that the complaints generally were completely without foundation or were malicious: see Camilleri v Penrith City Council [2012] NSWADT 196 at [72] and Fahey v NSW Office of Liquor, Gaming & Racing [2012] NSWADT 181.

1. From the documents, the complainants have actively sought the intervention of the respondent, and others such as the local police and Member of Parliament. I find that in the circumstances of the present matter, the complainants may not have had a reasonable expectation that the substance of their complaints would never be disclosed to the applicant. I find that the applicant's entitlement to know the substance of the complaints made against her should be given significant weight.

1. However, I consider that disclosure of that information to the extent that it would reveal an individual's personal information is to be given greater weight, especially as I have found that disclosure of some of the information could expose a person to a risk of harm or of serious harassment or serious intimidation.

1. I find there to be an overriding public interest in favour of providing the applicant with information that she might know the substance of the complaints against her, while not identifying the personal information of the complainants.

Conclusion

1. In weighing up the public interest considerations for and against disclosure outlined above, I find the respondent's submissions are not sufficiently persuasive for it to have discharged its onus under s. 105 of the GIPA Act in respect of every claimed redaction and I find that the public interest considerations against disclosure, on balance, outweigh the public interest considerations in favour of disclosure in relation to only some, but not all of the claimed redactions.

1. I have attached to the Tribunal file a redacted version of the documents in accordance with the above findings. For completeness, a full set of the respondent's documents (folios 1-57), redacted in accordance with the Tribunal's findings, is provided to the respondent.

Orders

1. The decision under review is varied and the respondent is directed to provide to the applicant a copy of the documents referred to in paragraph 74 of this decision within 30 days of publication of these reasons.

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Decision last updated: 19 December 2012