Eio v Central Coast Council

[2020] NSWCATAD 230

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EIO v Central Coast Council [2020] NSWCATAD 230

Hearing dates:

On the papers

Date of orders:

15 September 2020

Decision date:

15 September 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Ludlow, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

ADMINISTRATIVE LAW – Freedom of information – consultation with third parties – risk of harm, serious harassment or serious intimidation

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Government Information (Public Access) Act 2009

Cases Cited:

AEZ v Commissioner of Police [2013] NSWADT 90

Attorney-General’s Department v Cockcroft (1986) 10 FCR 180

Australian Vaccination Network v Department of Finance and Services [2013] NSWADT 60

Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286

Leech v Sydney Water Corporation [2010] NSWADT 298

Texts Cited:

None cited

Category:

Principal judgment

Parties:

EIO (Applicant)
Central Coast Council (Respondent)

Representation:

Solicitors:
Stringybark Legal (Applicant)
McCullough Robertson (Respondent)

File Number(s):

2020/00126410

Publication restriction:

1. Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013:
(a) The name of the applicant in these proceedings is not to be disclosed to the access applicant or any other person apart from the respondent.
(b) The publication of the following portions of the applicant’s affidavit made 23 June 2020 is prohibited – paragraphs 18, 46, 49, 54, 61, and 97 and page 128 of the exhibit to the affidavit.
(c) The publication of the following portions of the applicant’s submissions dated 24 June 2020 is prohibited – paragraphs 11 and 15 and the last five words of paragraph 31.
(d) The publication of the paragraphs in these reasons for decision marked “Not for publication” to the access applicant or any person other than EIO and the respondent is prohibited.

REASONS FOR DECISION

Background

1. The applicant EIO objected to the proposed release of information by the respondent in response to an application under the Government Information (Public Access) Act 2009 (the GIPA Act).The respondent determined to provide access to the information in question. The applicant has applied to the Tribunal for review of that decision.

2. The application for review states that the grounds are:

“Table to s 14 of GIPA Act 2009, in particular prejudicing supply to an agency of confidential information (1(d)) and because disclosure could reasonably be expected to expose a person to risk of harm, serious harassment or serious intimidation”.

3. The access applicant was named as Mr Doug Eaton on behalf of Central Coast Group Training (CCGT). He applied for the following information:

“Emails between Councillors and Councillors, Councillors and Staff and Staff and Councillors that refer to Central Coast Group Training Ltd.

Date Range: 15/1/2019 to 30/6/2019.”

4. EIO was consulted by the respondent as the information located might contain their business and personal information. EIO objected to release of any of the information included in the consultation.

5. EIO relies on clause 3(f) of the Table to s 14 of the GIPA Act, that disclosure of the information could reasonably be expected to expose a person to a risk of harm or of serious harassment or serious intimidation.

6. The access applicant was informed of these proceedings by the respondent but has not sought to exercise their right under s 104(3) of the GIPA Act to appear and be heard in these proceedings.

Confidentiality

7. On 26 May 2020 the Tribunal made an order pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (the CAT Act) that the name of the applicant in these proceedings is not to be disclosed to the access applicant or any other person (apart from the respondent).

8. On 25 June 2020 EIO also sought an order restricting the publication of portions of their evidence. I have made an order under s 64(1)(c) of the CAT Act restricting publication of some but not all the portions of the evidence requested, on the basis that it is of a confidential nature.

9. Under s 107(1) of the GIPA Act the Tribunal is not to disclose any information in the reasons for its decision or otherwise, for which there is an overriding public interest against disclosure.

10. In the public version of these written reasons the applicant is referred by an acronym and sections of the reasons which contain information to which s107(1) of the GIPA Act or an order under s 64(1) of the CAT applies are redacted and marked “Not for publication”.

11. The evidence includes allegations against a Councillor who is not a party to these proceedings. That Councillor is referred to as Councillor AX in these reasons.

Relevant legislation

12. Section 63 of the Administrative Decisions Review Act 1997 applies to these proceedings:

“63 Determination of administrative review by Tribunal

1. In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

   (a)   any relevant factual material,

   (b)   any applicable written or unwritten law.

2. For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

3. In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

   (a)   to affirm the administratively reviewable decision, or

   (b)   to vary the administratively reviewable decision, or

   (c)   to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

   (d)   to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.”

   13. EIO was consulted by the respondent before access was granted to the information. Section 54 of the GIPA Act provides:

“54 Consultation on public interest considerations

1. An agency must take such steps (if any) as are reasonably practicable to consult with a person before providing access to information relating to the person in response to an access application if it appears that—

   (a)   the information is of a kind that requires consultation under this section, and

   (b)   the person may reasonably be expected to have concerns about the disclosure of the information, and

   (c)   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.

2. Information relating to a person is of a kind that requires consultation under this section if the information—

   (a)   includes personal information about the person, or

   (b)   concerns the person’s business, commercial, professional or financial interests, or

   (c)   concerns research that has been, is being, or is intended to be, carried out by or on behalf of the person, or

   (d)   concerns the affairs of a government of the Commonwealth or another State (and the person is that government).

Note. The requirement to consult extends to consultation with other agencies and other governments. See the definition of person in Schedule 4.

(2A)   If the agency considers that information about a person consulted under this section is likely to be included in the agency’s disclosure log in relation to the access application, the agency must give a written notice to the person containing the following statements—

(a)   that information concerning the application is likely to be included in the agency’s disclosure log and that the person can object to this,

(b)   that there is a right of review under Part 5 of a decision by the agency to include information in its disclosure log despite the person’s objection.

1. If consultation is required concerning the release of personal information about a deceased person, that consultation is to be done by consultation with a close relative of the deceased.

2. The purpose of consultation under this section is to ascertain whether the person has an objection to disclosure of some or all of the information and the reasons for any such objection.

3. The agency must take any objection to disclosure of information that the agency receives in the course of consultation into account in the course of determining whether there is an overriding public interest against disclosure of government information.

4. If consultation establishes that a person objects to the disclosure of information but the agency decides to provide access to the information in response to the application, access is not to be provided until the agency has first given the objector notice of the agency’s decision to provide access to the information and notice of the objector’s right to have that decision reviewed, and is not to be provided while review rights on the decision are pending.

5. Review rights on a decision are pending while the objector is entitled to apply for a review of the decision under Part 5 (ignoring any period that may be available by way of extension of time to apply for review), or any review duly applied for is pending.”

   14. Section 14(1) and clauses 1(d) and 3(f) of the table to s 14 of the GIPA Act provide:

“14 Public interest considerations against disclosure

1. It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 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. The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section.

4. The Information Commissioner must consult with the Privacy Commissioner before issuing any guideline about a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to this section).

Table

1 Responsible and effective government

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 (whether in a particular case or generally)—

…

(d)   prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions,

…

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) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002,

…

(f)   expose a person to a risk of harm or of serious harassment or serious intimidation…”

15. Section 55 provides:

“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 take reasonable steps 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.”

   16. Section 105(2) provides:

“105 Onus on agency to justify decisions

1. In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section.

2. If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review.

3. If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review.

4. If the review is of a decision to include information in a disclosure log despite an objection by the applicant for review, the burden of establishing whether the objection outweighs the general public interest to have the information included lies with the applicant for review.”

Evidence and submissions of the applicant

17. The evidence of the applicant consisted of an affidavit of EIO 23 June 2020 with exhibit. The following facts in the affidavit are not disputed by the respondent.

18. EIO is a Central Coast Councillor. The access applicant has stood for election but is not a Councillor. EIO has been a member of the Council’s Audit Risk and Improvement Committee.

19. EIO sought information about the Council’s funding of the CCGT. The access applicant is the Chair of CCGT. Councillor AX is an employee of the CCGT. The Council has provided funding and leases premises to the CCGT.

20. EIO alleges they have been subjected to harassing and intimidating conduct which consisted of the following.

1. On 13 September 2017 the access applicant said on local radio that EIO had made criticisms of a Chinese Theme Park that were “racist” and EIO’s talk about a waste of taxpayers’ money was “absolute lies” and “complete lies”.

2. A complaint was made to the Law Society of NSW in 2017 that EIO had claimed on an election flyer to be a “qualified” solicitor despite not having a current practising certificate. The access applicant was interviewed on radio stating EIO had lied about being a qualified solicitor.

3. EIO was the subject of a complaint made under the Council’s Code of Conduct but the complainant is not named.

4. In a Council meeting on 12 February 2018 Councillor AX referred to EIO’s legal standing and election campaign which had been the subject of the complaint to the Law Society.

5. In March 2018 the access applicant was reported in a newspaper as saying that he had issued legal letters suing EIO and other persons for defamation during the election campaign. The letter enclosed a draft Statement of Claim which alleged that the access applicant had been defamed by a post and comments on EIO’s Facebook page. He sought an apology and $10,000 in damages.

6. In December 2018 Councillor AX made a Code of Conduct complaint against EIO alleging bullying, harassment and bias. The bias concerned voting against a grant of $5000 to CCGT. As stated in the report Councillor AX complained about issues being raised about CCGT’s grant application by EIO in a Council meeting and that this constituted bullying and harassment, was an abuse of power, and was “at best inappropriate, and professionally a disgrace”.

An investigation led to an initial finding by the Conduct Reviewer that EIO had breached the Code but on 28 May 2019 the Office of Local Government determined that this finding was not open to the Conduct Reviewer.

7. In a Council meeting on 24 June 2019 Councillor AX allegedly made a gesture to EIO, referred to by EIO as “the bird”, half a dozen times. No video or images of this alleged conduct was available to the Tribunal. At a meeting on 28 October 2019 he referred to “Extinction Rebellion individuals” and when EIO raised a point of order, said “I thought that would get [EIO].”

8. Councillor AX gave an interview to a news media organisation in which he referred to “Greens” wanting to plant trees at the end of the runway of a proposed extension to the Warnervale Airport. EIO had moved in Council to have an area of protected wetlands near the airport (which had been illegally cleared by a former Council) replanted. EIO is not referred to by name in the interview but says the statement is false as no trees were to be planted at the end of the runway.

9. Articles and letters were published in the media including:

1. An article in the Central Coast Community News quoting the CEO of the Central Coast Aero Club which referred to EIO using an “underhanded tactic to close the airport”.

2. A letter of the week in the Central Coast Express Advocate stating “the council is planning to destroy Warnervale Aerodrome and plant trees on it instead.”

3. A group apparently called “Your Central Coast Airport” posted on Facebook that their website had been hacked and attributed this to “the anti airport lobby” which included EIO.

10. Following the debate over the airport, EIO received emails and comments from the public some of which were offensive. One email referred to EIO as “loopy” and “insane” and another called EIO an “inbred cunt” and “a parasitic moron racist and a bigot” and a “fucking cocksucker.” EIO reported the matter to the police and the person who sent the second email was charged with an offence. He was convicted and sentenced to a 12 months community service order.

11. In September 2019 EIO was approached by an unknown man at a flower show asking questions about CCGT. In March 2020 EIO attended another event and the same man got up and followed EIO outside. He asked EIO more questions about CCGT which made EIO feel very uncomfortable.

12. EIO has questions about Council’s funding of CCGT which have not been answered by Council. In addition there was an apparent change to CCGT’s constitution in October 2019 which removed Council’s power to appoint a director to CCGT’s board without notice to the Council. Subsequently Mr Eaton wrote to the Council’s Director of Governance on 1 November 2019 referring to the queries about the change to the constitution as “a personal vendetta of a Councillor and their associates” which is said to refer to EIO.

21. [NOT FOR PUBLICATION]

22. EIO would not object to the information being released if all references to EIO’s identity either directly or indirectly were removed. EIO is concerned that release of the information will be misquoted by the access applicant or others who gain access to it.

21. EOI’s legal representative submitted that the conduct described above was:

“a campaign of harassment, the object of which is to remove EIO from Council and to prevent their voice being heard on the key issues i.e. the Warnervale Airport and the governance issues surrounding the CCGT.”

24. He further submitted that the evidence showed that those associated with CCGT would raise issues aggressively to humiliate EIO. There are likely to be further debates within Council concerning CCGT’s rental accommodation leased from Council at a peppercorn rent.

25. EIO did not provide any evidence or submissions on whether clause 1(d) applied to the information.

Evidence and submissions of the respondent

26. The evidence for the respondent consisted of the information in question, the original decision, the internal review decision and the review report by the Information Commissioner. The Information Commissioner determined that the agency’s decision was justified and made no recommendations.

27. The respondent did not dispute or deny that the conduct alleged by EIO which is outlined above had occurred. In its submissions it states:

“ Although it was clear that there were ongoing issues between the Applicant and the Original Access Applicant, clause 3(f)… was not considered to be a relevant public interest consideration by the Council… The concerns held by the Applicant appear to stem from past interactions with the Original Access Applicant. The fear of potential future conflict must be distinguished from reasonable expectation that the Applicant will be exposed to a risk of harm or of serious harassment or serious intimidation (being a risk not already in existence).”

28. The respondent also did not deny that the past conduct had created a risk of harm. It also submitted that future debate could occur between EIO, Councillor AX and the access applicant regarding a put and call option on premises leased by CCGT. It denied, however, that it was reasonable to expect that disclosure of the information would cause the applicant to be exposed to a further risk of harm in the future beyond that which already exists.

29. As noted above, no evidence or submissions were received from the access applicant.

30. The respondent submitted that the information was affected by s 55(2) of the GIPA Act in favour of disclosure due to the connection between the information and the access applicant.

31. It submitted that the following were relevant public interest considerations in favour of disclosure:

1. Disclosure of the information could reasonably be expected to promote open and informed discussion of public affairs and enhance Government accountability.

2. Disclosure of the information could reasonably be expected to contribute to positive and informed debate on matters of public interest.

3. Disclosure of the information could reasonably be expected to inform the public about the operations and functions of Council.

4. Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.

5. Disclosure of the information could reasonably be expected to promote transparency of Local Government.

32. The Council submitted that EIO had not established the public interest consideration against disclosure in clause 3(f). The fear of potential future conflict is distinguishable from a reasonable expectation that the applicant would be exposed to a risk of harm or serious harassment or serious intimidation that is not already in existence.

33. There were other public interest considerations against disclosure which were considered but rejected by the Council in its internal review but these have not been raised by EIO in evidence or submissions.

Consideration

34. The issue in the proceedings is whether there is an overriding public interest against disclosure of the information in question. The burden of establishing this lies on EIO who claims a public interest against disclosure exists on the basis that the disclosure of the information could reasonably be expected to expose EIO to a risk of harm or of serious harassment or serious intimidation (clause 3(f) of s 14). While EIO’s application referred to the grounds in the table to s 14 generally, only clauses 1(d) and 3(f) were mentioned specifically and no evidence or submissions were provided concerning clause 1(d).

35. [NOT FOR PUBLICATION]

36. The information in question pertains to a period in early 2019.

37. The words “could reasonably be expected to” are to be given their ordinary meaning (Attorney-General’s Department v Cockcroft (1986) 10 FCR 180). In that case, Bowen CJ and Beaumont J explained, at 190, that the words:

“... require a judgment 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 that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like.”

38. In Leech v Sydney Water Corporation [2010] NSWADT 298 the Tribunal referred to a number of cases which had considered the term “could reasonably be expected to” and stated at [25]:

“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.”

39. The public interest considerations against disclosure require an objective assessment as to whether the claimed effects could be expected to arise. This is ultimately a question of fact to be established to the relevant standard of proof, on the balance of probabilities (Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42].

40. In AEZ v Commissioner of Police [2013] NSWADT 90, Molony JM noted that the GIPA Act does not contain a definition of harm, serious harassment or serious intimidation. He referred to the Macquarie Dictionary definition of “harm” and continued (at [85-94]):

“In the context of s 14 of the GIPA Act I am inclined to the view the meaning of harm should be confined to a real and substantial detrimental effect on a person, rather than on their business interests. This is so given the juxtaposition of the word "harm" with the concepts of serious harm and intimidation, and the fact that economic and business interests are the subject of public interest consideration against disclosure in part 4 of the section 14 Table. A detrimental effect may be to a person's physical, psychological or emotional wellbeing.

Serious harassment is a separate and distinct concept. The Macquarie Dictionary online defines harass -

verb (t) 1. to trouble by repeated attacks, incursions, etc., as in war or hostilities; harry; raid.

2. to disturb persistently; torment.

[French harasser, from Old French harer set a dog on]

The concept of harassment is one familiar to anti-discrimination law, with sexual harassment being prohibited and subject to remedies. A consideration of those laws reveals that a common element in most jurisdictions is that the person harassed would be offended, humiliated or intimidated by the conduct in the circumstances: see Sex Discrimination Act 1984 (Cth), s 28A(1); Anti-Discrimination Act 1977 (NSW), s 22A; and Equal Opportunity Act 1984 (SA), s 87(9).

… In the context of the GIPA Act where the decision maker has to be satisfied that, if the information is disclosed, it could reasonably be expected that the disclosure would expose a person to serious harassment, the assessment of the impact of the conduct on the individual concerned is an objective one, although particular circumstances and vulnerabilities relating to that individual may be taken into account when making that assessment.

The GIPA Act makes specific mention of serious intimidation as another element of the public interest consideration against disclosure in point 3(f) of the Table to s 14, despite the fact that the two concepts of intimidation and harassment are clearly related.

Intimidation is defined by The Macquarie Dictionary online as -

verb (t) (intimidated, intimidating) 1. to make timid, or inspire with fear; overawe; cow.

2. to force into or deter from some action by inducing fear: to intimidate a voter.

[Medieval Latin intimidātus, past participle, made afraid. See TIMID]

Intimidation is defined in s 7 of the Crimes, Domestic and Personal Violence Act 2007 (NSW) thus -

(1) For the purposes of this Act, intimidation of a person means:

(a) conduct amounting to harassment or molestation of the person, or

(b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or

(c) any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property.

In PE V MU [ 2010] NSWDC 2 William DCJ referred to that definition and said -

15...intimidatory conduct... is conduct amounting to harassment or molestation or contact by one person with another such as would cause the other person to fear for their safety.

16 Harassment is not defined in the Act but in its legal sense refers to ongoing behaviours that are found to be threatening or disturbing. ...

Importantly the intimidation or harassment referred to in point 4(f) is required to be serious intimidation or serious harassment, requiring that the decision maker be satisfied that release of the information could reasonably expose a person to intimidation or harassment that is heavy, weighty or grave, and not trifling or transient.”

41. In Australian Vaccination Network v Department of Finance and Services [2013] NSWADT 60 it was held that clause 3(f) did not apply where disclosure could not reasonably be expected to expose persons to a greater risk than already existed. In that case there was ongoing acrimony between two organisations.

42. Section 55 of the GIPA Act is also relevant. This section provides that 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 to 5 of the table to s 14.

43. Personal factors include the applicant’s identity and relationship with any other person, the applicant’s motives for making the access application, and any other factors particular to the applicant.

44. 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.

45. In this case the personal factors include Mr Eaton’s role as chairperson of the CCGT and his view expressed on behalf of CCGT that EIO has conducted a personal vendetta against CCGT.

46. EIO’s contention is that if the information were disclosed, it could reasonably be expected that this would lead to further behaviour similar to that outlined above on the part of the access applicant, Mr Eaton, Councillor AX and/or other persons. EIO also claims that such behaviour would be serious harassment or serious intimidation or would create a risk of harm.

47. Of the conduct alleged by EIO, in my view none could be construed as serious intimidation and only incidents 7 and 10 could be construed as harassment. In relation to incident 7, which involved Councillor AX using a gesture which EIO described as “the bird” in a Councill meeting, I assume that this means the gesture of raising the middle finger which is commonly known by that name. There is nothing to contradict EIO’s evidence that this occurred, therefore I have treated the evidence as not disputed. In the absence of any detailed evidence about the incident, however, I am not satisfied that the conduct constitutes serious harassment.

48. The harassing emails, one of which resulted in a conviction, are serious, however there is no evidence of a connection between the offender and the access applicant. Moreover this conduct appeared to relate to the debate about the Warnervale airport and not the CCGT. Therefore I do not consider this conduct is relevant to determining whether the claimed public interest consideration exists in relation to information about the CCGT.

49. That being the case, in my view there is insufficient evidence to show that the disclosure of the information could reasonably be expected to expose EIO to a risk of serious harassment or serious intimidation.

50. As to a risk of harm, the cases cited indicate that a real and substantial detrimental effect on a person’s physical, psychological or emotional wellbeing may constitute harm.

51. The question is whether, if the information were released, it could reasonably be expected that these parties or other third parties would use the information or react to it in a way which could expose EIO to further or greater risk of a real and substantial detrimental effect on their wellbeing. On the evidence available, I am satisfied that if the information was released, it is not fanciful or speculative that its contents would lead to further acrimony against EIO from persons who support the CCGT. There is evidence that Mr Eaton has used strong and emotive language to criticise what appears to be fairly routine inquiries into Council’s accountability for funding of an external organisation. EIO has had Code of Conduct complaints made about their inquiries into CCGT.

52. [NOT FOR PUBLICATION]

53. In brief EIO’s concern is that the information will provide Mr Eaton, CCGT or Councillor AX with further reason to criticise and attack them inside and outside Council. The possibility that this will occur does not automatically equate to a reasonable expectation that EIO would be exposed to a risk of real and substantial detriment to their wellbeing. Some level of debate in local government issues is to be expected. The available evidence does not establish cause and effect in my view, nor that the detriment to EIO’s wellbeing would be “real and substantial”.

54. On the available evidence, I am not satisfied that disclosure could reasonably be expected to expose EIO to a risk of harm within the meaning of clause 3(f).

55. No other public interest considerations against disclosure were the subject of submissions. In the absence of any evidence regarding the confidentiality or otherwise of information provided to the Council by EIO, I am unable to determine that clause 1(d) could apply to the information.

56. EIO submitted that they would not oppose the disclosure of the information if their name was removed from the information. No public interest consideration has been established, however, which would justify such non-disclosure. Clause 4(3)(b) of Schedule 4 to the GIPA Act provides that information about an individual (comprising the individual’s name and non-personal contact details, including the individual’s position title, public functions and the agency in which the individual works) that reveals nothing more than the fact that the person was engaged in the exercise of public functions, is not personal information. The name of a person is not personal information and the emails were sent using Council email systems as part of EIO’s public functions.

Orders

1. The decision under review is affirmed.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 15 September 2020