Ekermawi v Great Lakes Council - [2010] NSWADT 35

No judgment structure available for this case.

CITATION: Ekermawi v Great Lakes Council [2010] NSWADT 35

DIVISION: General Division

PARTIES:
APPLICANT
Samir Ekermawi
RESPONDENT
Great Lakes Council

FILE NUMBER: 083339

HEARING DATES: 8 July 2009

SUBMISSIONS CLOSED: 16 November 2009

DATE OF DECISION:
4 February 2010

BEFORE: Montgomery S - Judicial Member

CATCHWORDS: Freedom of Information - exempt document - Documents containing confidential material

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989

CASES CITED: Fisher v Commissioner of Police, NS W Police Service [2002] NSWADT 267
General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84
Gilling v Hawkesbury City Council [1999] NSWADT 43
Head v NSW Commissioner of Police [2010] NSWADT 27
Mauger v General Manager, Wingecarribee Shire Council [1999] NSWADT 35
McGuirk v University Of New South Wales; University Of New South Wales v McGuirk [2009] NSWCA 321
Ritson v Commissioner of Police, NSW Police Force [2010] NSWADT 22
Schultz and Ors v Commissioner of Police, NSW Police Service [2003] NSWADT 86
Starr v Sydney Water Corporation [2010] NSWADT 28
Taylor v Chief Inspector RSPCA [1999] NSWADT 23
The Department of Health v Jephcott (1985) 62 ALR 421

REPRESENTATION:
APPLICANT
In person
RESPONDENT
R Mallik, solicitor

ORDERS: The decision is affirmed.

REASONS FOR DECISION

1 The Applicant lodged an application under the Freedom of Information Act 1989 (“the FOI Act”) with Great Lakes Council (“the Council”) seeking "the name of person and address" of an individual who had complained to the Council about possible unlawful use of land at Nabiac (“the Property”).

2 The Applicant’s FOI request referred to a letter that he enclosed with the application. The letter indicated that the Applicant was seeking the identity of the informant for the purpose of identifying the person who he alleged falsely accused him of conducting terrorist activities. The letter indicated, inter alia, that the Applicant intended (in the event that it was discovered that the informant was the same person who made the complaint about terrorist activities) to commence defamation proceedings against that person.

3 The Council identified a single document (“the document”) as falling within the scope of the request. The document is a diary entry recording a telephone conversation. The document contained the identifying details of a member of the public who had provided information to the Council alleging that development had taken place at the Property.

4 The Council refused the Applicant’s request. The refusal was based on clause 4(1)(b) and 4(1)(e) of the Schedule 1 of the FOI Act.

5 The Applicant lodged an application for internal review of that determination. The application was again refuse on the same grounds as in the initial determination.

6 The Applicant then filed an application with the Tribunal seeking this external review of the determination.

Background

7 In January 2007 the Council received a complaint about possible unlawful use of land at Nabiac. The informant made no reference to the Applicant and the complaint was solely directed to the use of the land without any reference being made to any person. No allegations were made in relation to terrorism activity and the information given was solely in relation to activities taking place on the land.

8 As subsequent search of Council's records revealed that the Property was owned by a company of which the Applicant was the sole director. The Council sent to the company a ‘notice to enter land’ pursuant to the then section 118C of the Local Government Act 1993 (“the LGA”). Council officers entered the Property pursuant to the notice and discovered that a railway carriage had been moved onto the Property and a partly constructed shed had been erected on the Property.

9 A search of Council's records disclosed that no development consent had been given for the use of the Property for such purposes. The Council advised the company that it intended to take action in relation to the unlawful development.

Applicable legislation

10 Section 16 of the FOI Act provides that a person has a legally enforceable right to be given access to an agency's documents in accordance with that Act.

11 Section 25(1) of the FOI Act provides, in part, that an agency may refuse access to a document if it is an exempt document. Section 25(l)(a) of the FOI Act provides that an agency may refuse access to a document if it is an exempt document in accordance with one or more of the grounds of exemptions referred to in Schedule 1.

12 The onus is on the agency to satisfy the Tribunal that its decision was justified: section 61 of the FOI Act.

13 Clause 4(1) of Schedule 1 to the FOI Act relevantly provides:

14 Clause 6(1) of Schedule 1 to the FOI Act (Documents affecting personal affairs) provides that a document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person. Clause 6 relevantly provides:

15 Clause 12 of Schedule 1 to the FOI Act relevantly provides:

16 Clause 13 of Schedule 1 to the FOI Act relevantly provides:

(iii) would, on balance, be contrary to the public interest.

17 Section 664 of the LGA provides:

664 Disclosure and misuse of information

18 Section 148 of the Environmental Planning and Assessment Act 1979 (“the EPA Act”) provides:

Disclosure and misuse of information
148 Disclosure and misuse of information

19 The Council relies on the evidence of its Director Corporate & Community Services, Mr Steve Embry. Mr Embry provided a written statement and also appeared and was cross-examined at the hearing. His evidence is that he has 29 years experience within Local Government and has worked in three different councils in NSW and Victoria. In his experience all councils have either had a formal policy or procedures that provided for the non-disclosure of the identity of a complainant to the subject of a complaint. He is also aware that this policy practice is a common one across local government within NSW.

20 He said that these policies are based on a number of public interests including: protection of informants from fears of reprisal, exposure to legal action, physical harm or harm to property; the desirability of encouraging the exercise of the public duty to see that the law is enforced; and the desirability of enabling wrongs to be redressed without causing enmity.

21 Mr Embry provided a detailed chronology of the events that preceded the application to the Tribunal. His evidence is that the Council has adopted a position of not releasing, to third parties, the identity or identifying particulars of members of the public who make complaints or provide information to Council. He is concerned about the potential consequences of disclosure of the information that the Applicant is seeking. He stated:

Given that many of these activities relate to neighbourhood matters eg barking dogs, illegal development, noise etc. that may be instituted because of or lead to some form of neighbour dispute, Council endeavours to provide confidentiality to the provider of such information. Council is very conscious of the fact that neighbourhood disputes have the potential to impact on the health and safety of all involved and believes that by maintaining confidentiality that it is not inflaming such disputes. Many of the members of public who contact Council to provide it with such information indicate that they do not want the subject of the complaint to know who provided Council with the information. This information is provided on the specific or implied condition that their anonymity be maintained or protected for fear of abuse, harassment or retribution. However to enable Council to properly deal with the complaint/information, identifying details such as a name, address and phone number are required so that feedback can be provided on what action Council has taken or to obtain additional information so as to substantiate and/or act on the complaint.

There are also instances whereby Council will need the complainant to give statements or provide evidence in relation to the complaint should prosecution or further legal action become necessary. In many instances the complainants are the only potential witnesses in a case and it is important that they not be discouraged from stepping forward to assist Council in this regard.

22 The Council contends that the Applicant is seeking the identity of the complainant on a purely speculative basis, based on his belief that that person may be the same person who made the complaint to the Police about alleged terrorist activities by him.

23 The Council contends that it is probable that the complaint was bona fide and was most likely without my malice. The complaint was made about activities on the land and therefore, at best, related to activities carried on by the owner. However, the owner is a company and therefore the information sought is not personal information relating to the Applicant.

24 The Applicant's sole purpose of seeking the identity of the informant is to seek retribution. The Tribunal cannot have any control over the Applicant's actions in that regard and therefore, disclosure of the identity of the informant to the Applicant is effectively disclosure to the whole world.

25 The Council contends that there is an obligation of confidentiality generally cast upon Councils pursuant to section 664 of the LGA and section 148 of the EPA Act. The Council has a policy to the effect that confidentiality about the identity of informants will be maintained.

26 The Council submits that these provisions are relevant to show that an informant to the Council had a legitimate expectation that his or her identity would be protected by non-disclosure because of these provisions. The disclosure of information contrary to section 148 of the EPA Act could possibly have constituted an offence by the Council.

27 The Council contends that the document is an exempt document on a number of bases. It submits that the exemptions provided for in clauses 4(1)(a), 4(1)(b), 4(1)(e); clause 6(1); clause 12(1); and clause 13(b) of Schedule 1 of the FOI Act are applicable.

Clause 4(1)(b)

28 The clause primarily relied on by the Council is clause 4(1)(b) of Schedule 1. The Council submits that the complaint obviously revealed information of a breach of the EPA Act. The Council relies on the decision of Judicial Member Robinson in Schultz and Ors v Commissioner of Police, NSW Police Service [2003] NSWADT 86 at paragraph [23] and the Tribunal’s President’s decision in Mauger v General Manager, Wingecarribee Shire Council [1999] NSWADT 35 at paragraph [34].

Re McEneiry and Medical Board of Queensland

“The determination of whether the relevant information was supplied by the informant and received by the respondent on the implicit understanding that the informant’s identity would remain confidential (and hence whether the informant qualifies as a confidential source of information …) requires a careful evaluation of all the relevant circumstances including, inter alia, the nature of the information conveyed, the relationship of the informant to the person informed upon, whether the informant stands in a position analogous to that of an informer …, whether it could reasonably have been understood by the informant and the recipient that the appropriate action could be taken in respect of the information conveyed while still preserving the confidentiality of its source, whether there is any real (as opposed to fanciful) risk that the informant may be subject to harassment or other retributive action or could otherwise suffer detriment if the informant’s identity were to be disclosed, and any indications of a desire on the part of the informant to keep his or her identity confidential … .”

29 The Council argues that the information was obviously confidential and provided under an implied pledge of confidentiality: The Department of Health v Jephcott (1985) 62 ALR 421 and Fisher v Commissioner of Police, NS W Police Service [2002] NSWADT 267 at paragraph [34].

30 The Council says that the nature of the information complained of was non-personal to the Applicant. It was about the activities on land, rather than relating to any person. As far as the Council is aware, there is no relationship between the informant and the Applicant.

31 It submits that the informant stands in a position analogist to that of a police informer. The informant has clearly indicated that he or she wishes their identity to remain confidential. It was reasonable that the informant would have understood that appropriate action could be taken in respect of the information conveyed, while still preserving the confidentiality of the source. Further, there is a real (as opposed to fanciful) risk that the informant will be subject to retributive action or could suffer detriment if their identity was disclosed.

32 The Council points to authority for the principle that clause 4(1)(b) of Schedule 1 applies not only to police informants, but also where individuals supply confidential information to other government agencies involved in law enforcement: see Taylor v Chief Inspector RSPCA [1999] NSWADT 23. Further, it submits that the clause obviously applies to Local Government bodies: see Mauger v General Manager, Wingecarribee Shire Council.

Clause 4(1)(a).

33 The Council also relies on clause 4(l)(a) of Schedule 1. It says that the clause applies, as the Council is both an administrative and a regulatory body. It says that a breach of the EPA Act and other Acts administered by the Council are clearly relevantly laws to which the provisions apply. The offence of carrying out development without consent under the EPA Act has a maximum fine for a company of a $1.1 million. The Council investigates both minor and major complaints for which penalties up to $1.1 million and sentences of imprisonment can be imposed. Any practice of revealing the identity of informants could make it extremely hard for Council to obtain necessary information to prosecute both minor and serious offences and this is not in the public interest.

34 The Council submits that disclosure of the informant’s identity would clearly impede or derogate from any investigation of this particular offence or of any potential future other offences in the municipality. The disclosure of informants' identities would send a clear message to prospective informants that their identity is not protected and they would therefore be less likely to complain to the Council and thus allowing offences and contraventions of the law to remain undetected.

Clause 4(1)(e)

35 The Council also relies on clause 4(l)(e) of Schedule 1. It argues that disclosure of the identity of the informant in this matter will create a precedent, such that all informants to Council would be at risk that their identity could be disclosed. This will act as a deterrent for the "'eyes and ears" of the Council coming forward to advise Council of offences committed or what they know in relation to offences committed or other breaches of the law. It is submitted that this would prejudice the effectiveness of any lawful method of detecting, investigating or dealing with contraventions or possible contraventions of the law, as a source of information that Council relies on to a large extent is likely to dry up.

Clause 6(1)

36 The Council also relies on clause 6(1) of Schedule 1. It is submitted that the name and address of an informant is "the personal affairs" of the informant. The informant has refused to consent to the release of its name and address.

37 The Council says that the clause requires the personal privacy of the informant to be balanced against the public interest of people having access to information held by government: see Gilling v Hawkesbury City Council [1999] NSWADT 43. It argues that there is no public interest in the identity of the informant being revealed. The request is based on speculation by the Applicant and for the specific purpose of retribution. It cannot be in the public interest to allow this private information to be revealed for that purpose. The Council says that the private interest of the informant clearly overrides any public interest considerations in this instance.

Clause 12(1)

38 The Council also relies on clause 12(1) of Schedule 1. It says that the relevant offences are those provided for under the EPA Act. Section 148 of the EPA Act prohibits a person from disclosing any information obtained in connection with the administration or execution of the EPA Act, unless the disclosure is made pursuant to certain exceptions. Section 125 of the EPA Act makes it an offence to do something that is prohibited under the Act. Accordingly it is arguable that the disclosure of information obtained (the identity and address of the informant) would result in an offence. The informant has not given its consent to revealing the information and the Council argues that it appears that none of the exemptions under section 148(1)(a) to (e) apply.

39 The Council concedes that the Court of Appeal decision in General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 seems to suggest that section 148 may not apply because of the "lawful excuse" exemption. However it argues that there is some ambiguity and grey areas in relation to this exemption and that in view of the intrinsic sensitivity of the particular information this exemption may apply.

Clause 13(b)

40 The Council also relies on clause 13(b) of Schedule 1 of the Act. It submits that it is clear that the information was obtained in confidence and that revealing the identity and address of an informant would prejudice the future supply of information to the Council and would therefore "blind the eyes and ears of the Council". It further says that the drying up of such a source of information to the Council would on balance be contrary to the public interest.

The override discretion

41 Mr Mallik also provided written submissions in regard to the question of whether the Tribunal has the power to order the release of the document if it is found to be exempt in light of the Court of Appeal decision in the matter of McGuirk v University Of New South Wales; University Of New South Wales v McGuirk [2009] NSWCA 321.

42 The Council contends that on a proper interpretation of section 148 of the EPA Act there is a specific prohibition on information being disclosed and there is no exception from that prohibition to prevent disclosure under the FOI Act (unlike Section 664 of the LGA Act).

43 Accordingly it is submitted that there is no power in the Tribunal or any person to release the information sought by the Applicant pursuant to the provisions of the FOI Act. In any event, it is the Council's submission that the application should be refused.

The Applicant’s case

44 The Council relies on his own evidence. He appeared and was cross-examined at the hearing. The Applicant does not dispute the Council’s evidence regarding the background to the application. He says that his FOI request followed from an approach to him in November 2007 by the Police Terrorism Squad.

45 He says that the structure that was the subject of the complaint has been on the Property for over 7 years. He asserts that the allegations made in relation to the Property could not have been made unless the complainant had trespassed and invaded the Property. The property is about 1.5 km from the boundary of the property and about 250 metres within a jungle, thus the structure could not be seen from the street at all. Therefore the complainant must have travelled through the jungle into where the structure would have been installed.

46 He therefore questions the complainant’s motives in lodging the complaint with the Council. He contends that the complaint was actuated by malice and that the complainant had an improper motive for lodging the complaint.

47 He relies on a letter that he sent to his neighbours in 2004. He contends that as a result of that letter, the neighbours would have known that he was the owner of the Property. He says that this would preclude any argument that the complainant did not know him.

48 He says that the allegations are an abuse of process whereby the complainant ‘has contempt for public process and has in mind racism leading to conspiracy to injure’. He says that the intent was, ‘without just cause or reason, to commit a wrongful act that will result in harm to another’.

49 He asserts that at common law no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, or to unlawful attacks on his honour and reputation. He referred to the matter of Gross v Purvis [2003] QDC 151 which dealt with the issue of a claim in tort for breach of privacy.

50 The Applicant contends that the exemptions on which the Council relies are not applicable because of the complainant’s improper motive. He believes that the allegations are based on ‘victimisation and racial discrimination’. Therefore the public interest question is relevant to every aspect of the interpretation of the exemption provisions. Accordingly, he argues that if the Tribunal concludes that an exemption is applicable, it remains open to the Tribunal to consider whether to exercise the residual discretion in favour of the Applicant: University of New South Wales v McGuirk [2006] NSWSC 1362 at [81] ff.

Consideration
51 The Council has asserted that the document sought is exempt pursuant to a number of clauses in Schedule 1 to the FOI Act. For the reasons argued by the Respondent, It is my view that the document is exempt pursuant to clause 13(b) of Schedule 1 to the FOI Act.

52 I have considered this provision recently in the matter of Starr v Sydney Water Corporation [2010] NSWADT 28. See also Ritson v Commissioner of Police, NSW Police Force [2010] NSWADT 22 and Head v NSW Commissioner of Police [2010] NSWADT 27.

53 In Starr v Sydney Water Corporation I accepted Sydney Water’s submission in regard to the clause 13(b) exemption. Those submissions were summarised at paragraphs [82] to [85]:

82 In order for a document to be an exempt document under clause 13(b) of the Act, Sydney Water must satisfy the Tribunal that the documents contain information the disclosure of which:
- would disclose information obtained in confidence; and
- could reasonably be expected to prejudice the future supply of such information to Sydney Water; and
- would, on balance, be contrary to the public interest.

83 In order for an agency to satisfy the Tribunal that information was obtained in confidence, it is not necessary to show that there was an express obligation or understanding that the information was given in confidence. It is sufficient for this to be implied from the circumstances in which the information was obtained or given: Vella v Commissioner of Police, NSW Police Force [2009] NSWADT 68 at [13].

84 For clause 13(b) to apply it must also be established that the future supply of such information could reasonably be expected to be prejudiced. Reasonableness must be decided taking into account any relevant evidence that is before the decision-maker and any relevant arguments that have been advanced: McKinnon v Secretary, Department of Treasury [2006] HCA 45 per Hayne J at paragraph [63]. The word 'prejudice' should be given its common, dictionary meaning - that is 'to cause detriment or disadvantage': Re Maher and the Attorney General's Department (No 2) (1986) 4 AAR 266.

Keriakes v State Rail Authority of NSW

Keriakes

54 In this matter I accept the evidence given by Mr Embry in regard to the receipt of the information recorded in the document. I am satisfied that the document in issue deals with information that was obtained in confidence. An informant to the Council has a legitimate expectation that his or her identity will be protected. I am satisfied that the informant gave the information in confidence. The informant has not given its consent to the release of the information. I have no reason to believe that the information was given for any improper purpose. I therefore do not accept the Applicant’s arguments in this regard.

55 For the reasons identified by Mr Embry, it is my view that it is important that councils maintain confidentiality over the identity of complainants. I am satisfied that should the withheld information be disclosed, the future supply of such information may be prejudiced. The Council relies on the members of its community to assist it in carrying out its regulatory functions. In my view, disclosure of this information has the potential to impact on the provision of information because members of its community may wish to avoid neighbourhood disputes or even slight disharmony or may even be fearful of retaliation of harassment or other retributive action.

56 I am also satisfied that disclosure of the withheld material would be contrary to the public interest. There is public interest in ensuring that councils continue to receive the co-operation of the public. I have weighed the interests in disclosure against those of maintain confidentiality over the identity of complainant and it is my view that disclosure would, on balance, be contrary to the public interest.

57 In light of these findings, it is unnecessary that I consider the other exemptions that the Council has asserted. However, I note that I also agree that the withheld material would be exempt pursuant to clause 6 of Schedule 1 to the FOI Act. In the circumstances of this matter I am satisfied that the name and address of the informant is “information concerning the personal affairs " of the informant and that the disclosure of that information would be unreasonable. There is no public interest in the identity of the informant being revealed.

58 Further, in my view, for the reasons argued by the Council, the document is probably also exempt pursuant to clause 4(1)(b) of Schedule 1.

59 As it is my view that on balance, it would be contrary to the public interest to release the documents, it is unnecessary that I consider arguments regarding whether or not the Court of Appeal decision in the matter of McGuirk v University Of New South Wales; University Of New South Wales v McGuirk affects the Tribunal’s power to order release of a document found exempt. In any event, that there are no strong grounds to support the release of the document that has been found to be exempt. In my view, the correct and preferable decision is that the document should not be released.

The decision is affirmed.

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Citations

Ekermawi v Great Lakes Council [2010] NSWADT 35

Cases Citing This Decision

0

Cases Cited

16

Statutory Material Cited

2

Schultz v Commissioner of Police, NSW Police Service [2003] NSWADT 86

Mauger -v- General Manager, Wingecarribee Shire Council [1999] NSWADT 35

Fisher v NSW Police [2002] NSWADT 267

CITATION:	Ekermawi v Great Lakes Council [2010] NSWADT 35
DIVISION:	General Division
PARTIES:	APPLICANT Samir Ekermawi RESPONDENT Great Lakes Council
FILE NUMBER:	083339
HEARING DATES:	8 July 2009
SUBMISSIONS CLOSED:	16 November 2009
DATE OF DECISION:	4 February 2010
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Freedom of Information - exempt document - Documents containing confidential material
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Fisher v Commissioner of Police, NS W Police Service [2002] NSWADT 267 General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 Gilling v Hawkesbury City Council [1999] NSWADT 43 Head v NSW Commissioner of Police [2010] NSWADT 27 Mauger v General Manager, Wingecarribee Shire Council [1999] NSWADT 35 McGuirk v University Of New South Wales; University Of New South Wales v McGuirk [2009] NSWCA 321 Ritson v Commissioner of Police, NSW Police Force [2010] NSWADT 22 Schultz and Ors v Commissioner of Police, NSW Police Service [2003] NSWADT 86 Starr v Sydney Water Corporation [2010] NSWADT 28 Taylor v Chief Inspector RSPCA [1999] NSWADT 23 The Department of Health v Jephcott (1985) 62 ALR 421
REPRESENTATION:	APPLICANT In person RESPONDENT R Mallik, solicitor
ORDERS:	The decision is affirmed.