Ermel v Department of Finance and Services
[2013] NSWADT 183
•15 August 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Ermel v Department of Finance and Services [2013] NSWADT 183 Hearing dates: 7 February 2013 Decision date: 15 August 2013 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: 1. The Respondent's determination is affirmed insofar as it to relates to the Inspection Report.
2. The Respondent's determination is set aside in relation to the remaining documents in issue. In its place the decision is made that the documents are to be released except as referred to in these reasons.
Catchwords: Government Information Public Access - expected expose a persons to risk of harm or of serious harassment or serious intimidation - balance of public interest considerations - personal information - sufficiency of search Legislation Cited: Administrative Decisions Tribunal Act 1997
Government Information (Public Access) Act 2009Cases Cited: AEZ v Commissioner of Police, NSW Police Force [2013] NSWADT 90
Black v Hunter New England Local Health District & Dr Lattimore (No 2) [2012] NSWADT 235
Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409Category: Principal judgment Parties: Sonja Ermel (Applicant)
Department of Finance and Services (Respondent)Representation: S Ermel (Applicant in person)
M Nicoletti, Senior Legal Office for Respondent
File Number(s): 123177
reasons for decision
GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): This is an application for review of determinations by the Respondent under the Government Information (Public Access) Act 2009 ("the GIPA Act"). The Respondent's determinations were in response to the Applicant's access application in which she requested the release of information held by the Respondent. In her original access application the Applicant sought:
"All files from complaints arising from 2005 in relation to strata manager for Strata 50088 - Gary Adamson as strata manager."
Following discussions regarding the scope and cost of the application, the Applicant amended the application to seek the following:
"The investigation file in relation to strata manager for Strata Plan 50088 Gary Adamson as strata manager."
The Respondent identified an investigation file matching the scope of the amended application ("the investigation file"). The investigation file contained 567 documents.
By decision of 4 May 2012, the Respondent determined to provide full access to a number of documents contained within the investigation file. In subsequent decisions the Respondent determined to provide partial access to a number of other documents contained within the investigation file. The Respondent determined to refuse access to documents contained within the investigation file which were described as:
Briefings and associated paperwork (except for letters sent to you): 328 - 330, 332 - 335, 340 -341, 347, 350, 353 - 362, 368 - 385, 409, 422, 424, 426, 429, 437 - 439, 456 - 461, 471.
Investigation reports, memos and communications with Mr Gary Adamson: 473-- 512, 515 - 557, 559 - 561.
Compliance and Enforcement Inspection Report: 562 -567.
The Respondent's Director, Ministerial and Executive Services gave the following reasons for the 4 May 2012 determination:
Statement of Reasons
Under section 9(1) of the GIPA Act, you have a legally enforceable right to be provided with access to the information sought, unless there is an overriding public interest against disclosure of the information. In making such a determination, agencies must apply the public interest test under section 13, which provides that there will only be an overriding public interest against disclosure where public interest considerations in favour of disclosure are, on balance, outweighed by those against disclosure.
Public interest considerations in favour of disclosure
Under section 5 of the GIPA Act, there is a presumption in favour of disclosing government information. Section 12(1) of the GIPA Act states that there is a general public interest in the disclosure of government information. Section 12(2) of the GIPA Act provides a number of examples of public interest considerations in favour of disclosure of information and also provides that there is no limit on other considerations in favour of disclosure of government information that may be taken into account.
The information being sought relates to an investigation in response to complaints made by you against your former strata manager, Mr Gary Adamson of Adamson's The Professionals. Accordingly, I considered whether disclosure may promote transparency and accountability. I also note that the strata manager is no longer managing your strata scheme. I therefore considered whether the documents would assist you to understand how the outcome of the investigation was reached in order to assist you in bringing closure to the matter.
Public interest considerations against disclosure
The public interest considerations listed in the table to section 14 of the GIPA Act are the only considerations that may be taken into account as public interest considerations against disclosure, for the purpose of determining whether there is an overriding public interest against disclosure of government information.
I have determined that the public interest consideration against disclosure that applies to documents 562 -567 is:
Clause 2 of the Table to section 14 of the GIPA Act - Law enforcement and security.
"2 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):
(b) prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law, ..."
I have determined that the public interest consideration against disclosure that applies to documents 328-330, 332-335, 340-341, 347, 350, 353-362, 368-385, 409, 422, 424, 426, 429, 437-439, 456-461, 471, 473-512, 515-557, 559-581 is:
Clause 3 of the Table to section of section 14 of the GIPA Act - Individual rights, judicial processes and natural justice.
"3 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.·
(f) expose a person to a risk of harm or of serious harassment or serious intimidation, ..."
Evidence relied upon
In determining that the above considerations against disclosure apply, I took into account the objections received from the third party consulted in this matter, discussions with Fair Trading staff that have been involved in the investigation process, as well as information contained in the documents sought. I also considered your motives and interest in seeking the Information, as well as your relationship to the parties involved in this matter, in accordance with section 55 of the GIPA Act. Based on this information, I am satisfied that all elements of the above considerations against disclosure have been met.
Clause 2(b) of the Table to section 14 of the GIPA Act
I am satisfied that this clause applies to documents 562-567 as the information sought contains Fair Trading's enforcement methodology in relation to one of its investigative functions. In particular, the documents show the methods of identifying non-compliant traders and how any investigation and enforcement action should be undertaken. It could reasonably be expected that non-compliant traders could use such information to avoid detection and enforcement action, assisting them to evade the law or to impede Fair Trading's detection of unlawful acts. Accordingly, I am satisfied that the release of such information would prejudice the detection or investigation of a contravention or possible contravention of the law.
Clause 3(f) of the Table to section 14 of the GIPA Act
I am satisfied that clause 3(f) applies to the refused documents on the basis that the release of the documents will expose not only Fair Trading staff, but also the third party consulted in this matter and others named in the documents, to a risk of harm, serious harassment and serious intimidation. I believe this risk is of a serious nature based on my consideration of the documents, the comments provided by NSW Fair Trading staff who have dealt directly with you throughout the complaint handling process, the serious issues raised during the third party consultation process with regard to your previous behaviour which included the involvement of NSW Police, and the GIPA application process to date. With regard to the latter and for completion, I have enclosed the original copy of a letter from Ms Christina Goodall, Manager - Ministerial and Executive Services, outlining elements of the application process, which was emailed to you on 3 May 2012 (tab C).
In deciding whether to disclose information in response to an access application, section 55 of the GIPA Act allows agencies to consider 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. Furthermore, section 55(3) of the GIPA Act states that these considerations can only be applied to clauses 2 to 5 of the Table to section 14 of the GIPA Act. Accordingly, I am satisfied that the personal factors of the application can be taken into account in determining whether there is an overriding public interest against disclosure.
I note that you have lodged numerous complaints between 2005 and 2012 about your dissatisfaction with the management of Strata Plan 5088, the strata agent, Mr Gary Adamson, who was appointed by the Consumer, Trader and Tenancy Tribunal to manage your scheme, about the way in which Fair Trading has dealt with your complaints and against various Fair Trading staff. Fair Trading has investigated all the matters you have raised, with no breaches of legislation detected and no-one found to have committed any wrongdoing.
Public interest test
I have weighed the public interest considerations in favour of disclosure and those against disclosure of the documents sought, and I have determined that on balance, the public interest considerations against disclosure outweigh those in favour of disclosure.
I had regard to the principle at section 15(c) of the GIPA Act, that 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. However, there is no such information in the refused documents. I also had regard to section 15(d) of the GIPA Act, that the fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. Accordingly, I did not take this into account.
I placed a significant weight on the considerations against disclosure. I believe that the refused documents, if released, may be used as the basis to cause harm, serious harassment and serious intimidation to people involved in your complaint and the handling of your complaint by NSW Fair Trading. In particular, Mr Adamson has been cleared of any breaches of the law, he is no longer managing your strata scheme and the matter has been finalised by Fair Trading for some time. Mr Adamson is entitled to believe that the matter is over and should not be exposed to any further harm, serious intimidation and serious harassment, which I consider may occur if the refused documents were released.
Deletion of information from copy of record to be accessed
Under section 74 of the GIPA Act, an agency can delete information from a copy of a record to which access is to be provided in response to an access application (so as to provide access only to the other information that the record contains), either because the deleted information is not relevant to the information applied for or because (if the deleted information was applied for) the agency has decided to refuse to provide access to that information.
I have carefully assessed whether any part of the refused documents can be released to you. As I am unable to determine what information may or may not trigger the risks outlined above, I am of the view that the refused documents should be refused in full, with the exception of document 432, which has been released in part with this Notice.
The Applicant has applied to the Tribunal for external review of the Respondent's determinations and seeks access to the entirety of the documents on the investigation file. In her application she asserted:
Of the 556 pages of information provided by Fair Trading - 499 pages relate to my own correspondence and the contents of the strata file - all of which I have.
The other 57 pages consist of 35 pages that directly relate to briefings to Ministers or Deputy Commissioner.
The remaining 22 pages are a general ledger of LJ Hooker - consisting of all the strata plans under his management.
There is no information in relation to the request under GIPA.
The Respondent subsequently released further material and the Applicant advised that she is now in receipt of some 561 pages of material supplied by the Respondent.
The remaining material comprises pages 555 ("document 555"), a Property Services Licensing System document numbered 556 ("the PSLS document") and pages 562-567 ("the Inspection Report") of the material identified as falling within the scope of the search. Copies of those pages have been provided to the Tribunal on a confidential basis. I understand that the names of officers of the Respondent have been redacted from other documents provided to the Applicant ("the Redacted documents")
Mr Nicoletti submitted that there are three issues in this matter:
a. whether the searches conducted by the Respondent are reasonable;
b. whether there is a public interest against disclosure of the PSLS document, the Inspection Report, the Redacted documents and document 555; and
c. whether that public interests against disclosure outweighs the public interest consideration in favour of disclosure.
I agree with that submission.
Applicable legislation
The objects of the GIPA Act are set out in section 3(1) which provides:
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.
The term 'Government information' is given a wide meaning in section 4, being 'information contained in a record held by an agency.' 'Agency' is also defined in section 4.
In exercising functions under the Act section 3(2) instructs that -
It is the intention of Parliament:
(a) that this Act be interpreted and applied so as to further the object of this Act, and
(b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: section 5. Applicants for access to government information have a legally enforceable right to be provided with access to that information, unless there is an overriding public interest against disclosure: section 9.
Section 14(1) of the GIPA Act creates categories of information concerning which it is conclusively presumed that there is an overriding public interest against disclosure. Those categories are set out in Schedule 1.
With respect to other government information, the Act establishes a principle that there is pubic interest in favour of disclosure: section 12(1). Section 12(2) says that public interest considerations in favour of disclosure are not limited. It provides -
Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.
Note. The following are examples of public interest considerations in favour of disclosure of information:
(a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.
(b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.
(c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.
(d) The information is personal information of the person to whom it is to be disclosed.
(e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct
There will only be an overriding public interest against disclosure when the public interest test in section 13 is satisfied. It provides -
There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
The public interest considerations against disclosure are limited to those set out in the Table to section 14. Section 14(2) provides that -
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.
Before deciding an access application which, among other things, seeks access to information that includes personal information about a person, section 54 requires that the agency take such steps as are reasonable practicable to consult with that person before providing access. Any objection to disclosure must be taken into account in the course of determining whether there is an overriding public interest against disclosure of government information: section 54(5).
An access application is to be determined in accordance with section 58 which provides:
(1) An agency decides an access application for government information by:
(a) deciding to provide access to the information, or
(b) deciding that the information is not held by the agency, or
(c) deciding that the information is already available to the applicant (see section 59), or
(d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or
(e) deciding to refuse to deal with the application (see section 60), or
(f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact.
Note. These decisions are reviewable under Part 5.
(2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for.
(3) If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired.
An agency can take the personal circumstances of an applicant into account when determining an access application in accordance with section 55. It provides -
(1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section:
(a) the applicant's identity and relationship with any other person,
(b) the applicant's motives for making the access application,
(c) any other factors particular to the applicant.
(2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information.
(3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14.
(4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for.
(5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to provide proof of his or her identity.
(6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person.
Note. An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73.
Section 80 sets out a series of decision that are reviewable decisions under the Act. It provides -
The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part:
(a) a decision that an application is not a valid access application,
(b) a decision to transfer an access application to another agency, as an agency-initiated transfer,
(c) a decision to refuse to deal with an access application (including such a decision that is deemed to have been made),
(d) a decision to provide access or to refuse to provide access to information in response to an access application,
(e) a decision that government information is not held by the agency,
(f) a decision that information applied for is already available to the applicant,
(g) a decision to refuse to confirm or deny that information is held by the agency,
(h) a decision to defer the provision of access to information in response to an access application,
(i) a decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant),
(j) a decision to impose a processing charge or to require an advance deposit,
(k) a decision to refuse a reduction in a processing charge,
(l) a decision to refuse to deal further with an access application because an applicant has failed to pay an advance deposit within the time required for payment,
(m) a decision to include information in a disclosure log despite an objection by the access applicant (or a decision that the access applicant was not entitled to object).
A person aggrieved may seek a review by the Tribunal: section 100. In any review of a reviewable decision section 105 places the onus of justifying the decision on the agency concerned. It provides -
(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.
The Tribunal's function on review under section 63 of the Administrative Decisions Tribunal Act 1997 is to make the correct and preferable decisions having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drakev Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.
The Information Commissioner has a right to appear and be heard in review proceedings: section 104). In the present case the Information Commissioner did not appear.
Section 107 sets out the procedure to be followed by the Tribunal in dealing with public interest considerations. It provides -
(1) In determining an application for ADT review, the ADT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure.
(2) On an ADT review, the ADT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of the ADT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.
(3) On an ADT review, the ADT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of:
(a) the public and the applicant, and
(b) the applicant's representative if the ADT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.
The Respondent's Case
The Respondent relies on the evidence of a number of its officers. Affidavits were provided by Mr Simon Bechara - Senior Liaison Officer; Mr Steve McGuire - an investigator; Ms Cheryl Attfield - a para-legal officer and Ms Michelle Jeffrey - a Senior Project Officer. Mr Bechara and Mr McGuire attended the hearing, gave evidence and were cross-examined.
Mr Simon Bechara's evidence
Mr Bechara provided an affidavit and he also attended the hearing, gave evidence and was cross-examined. His duties include the processing of applications made under the GIPA Act. He liaised with the Applicant and third parties in relation to the Applicant's GIPA request. He prepared a draft determination for consideration and approval by Mr Jenkin, Director Ministerial and Executive Services. Mr Jenkin issued the Notice of Decision to the Applicant granting partial access to documents forming part of the Application and refusing access to other documents.
In his evidence to the Tribunal he expressed concerns in relation to his dealings with the Applicant and indicated that he would refuse to deal with the Applicant in the future.
Mr Steve McGuire's evidence
Mr McGuire provided an affidavit and he also attended the hearing, gave evidence and was cross-examined. He undertook an investigation into the allegations made by the Applicant and produced an investigation report containing the results of his investigation. In his affidavit he stated:
Document 556
6. As part of my investigation I produced a document numbered page 556. This document was produced from NSW Fair Trading Property Services Licensing (PSLS) System. The PSLS is an internal database available only to NSW Fair Trading staff and is generally no longer in use except for the limited purpose of extracting historical data for the purposes of internal investigations and enquiries.
7. The document at page 556 contains, among other matters, the personal information of Mr Adamson, specifically, his date of birth. It also contains provision to record in summary detail whether or not NSW Fair Trading has attempted to liaise with NSW Police in relation to Mr Adamson. The document is not available to the general public.
8. NSW Fair Trading records on its internal databases, among other things, the date of birth of an applicant for a licence, certificate or other authority issued under legislation administered by NSW Fair Trading. The date of birth is recorded for the purpose of confirming an Applicant's identity, eligibility criteria for a licence, certificate or other authority and for operational reasons such as enquiries with NSW Police and other authorities. Information in relation to an applicant's date of birth is not disclosed to the NSW public at large.
9. In my experience as an Investigator, when requesting information from NSW Police in relation to a person, one of the mandatory criteria required to be provided in the request for the information is the date of birth of the person.
10. With the exception of the date of birth information and details of summary liaison with NSW Police, NSW Fair Trading makes available to the public on its website information of a general nature in respect of real estate agents. In relation to Mr Adamson such information is freely available at:
licence check.html
In relation to the investigation report he stated:
Document 562-567
11. As part of my investigation I produced a document numbered pages 562-567. This document was produced by me on 16 February 2010.
12. The document is a confidential internal working document used by NSW Fair Trading to undertake audits of real estate agents in NSW to ensure compliance with the provisions of the Property Stock and Business Agents Act 2002 (NSW) (Act) and Regulation made thereunder.
13. Ensuring that licensed real estate agents are complying with the Act and Regulation is a core function of NSW Fair Trading.
14. The document sets out a number of matters on which a real estate agent is audited against to ensure compliance with the Act and the Regulation. As such the document contains some of the audit methodologies used by NSW Fair Trading in undertaking audits of real estate agents in NSW.
15. In addition the document contains details of the actual audit undertaken in relation to Gary Adamson, in particular the financial details of cash book balances, bank reconciliations and the trust position of Mr Adamson.
16. This document is not available to the NSW public and is not disclosed to real estate agents as its release would have the effect of compromising the integrity of the audit system used by NSW Fair Trading in relation to real estate agents in NSW. In particular its public release would reveal audit methodologies used by NSW Fair Trading in respect of NSW real estate agents and would alert real estate agents about the specific matters that are considered by NSW Fair Trading when conducting inspections of real estate agents.
17. In addition, the release of this particular document containing the details of the inspection results for Mr Adamson would have the effect of disclosing the NSW public specific details of the financial position of Mr Adamson as at 16 February 2010.
Mr McGuire's evidence was that other notes that he may have taken during his investigation were not retained on the investigation file.
In his evidence before the Tribunal Mr McGuire gave evidence of his dealings with the Applicant and particularly referred to one phone call in which he felt uncomfortable. Mr McGuire's supervisor, Mr Don Jones - the Respondent's Assistant Commissioner, Compliance & Enforcement, intervenes because of Mr McGuire's discomfort.
Ms Cheryl Attfield's evidence
Ms Attfield provided evidence of the occasions on which the Applicant had written to either the Respondent or to Government Ministers. She identified approximately 35 separate occasions on which the Applicant had written in relation to Mr Adamson alleging various breaches of the Property Stock and Business Agents Act 2002 ("the PSBA Act").
Ms Attfield also located a number of other letters or emails of complaint which the Applicant had written in relation to Mr Adamson or the manner in which the Respondent or its officers had conducted enquiries into the her complaints. She annexed some of that correspondence to her affidavit.
Ms Michelle Jeffrey's evidence
Ms Jeffrey has responsibility for liaising within the Respondent in response to applications made under the GIPA Act, searching for, collating inspecting and preparing documents that respond to applications made under the GIPA. In her affidavit she set out the steps taken to respond to the Applicant's GIPA request.
She provided the collated information to Mr Jones, with a briefing containing recommendations. She was aware that Mr Jones forwarded the information to Mr Keith Metcalfe who in turn forwarded the information to Mr Bechara.
The Respondent submits that it has, with the exception of the documents now in dispute, provided full disclosure to the Applicant of all documents responding to the Request. In the circumstances the Respondent submits that its searches have been reasonable.
The Respondent submits that the Inspection Report is a document to which the considerations clause 2(b) of the Table to section 14 applies in that disclosure of the document could reasonably be expected to prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law.
It is submitted that one of the methods of ensuring that real estate agents comply with the requirements of the PSBA Act is to undertake audits to such agents against the statutory criteria and to record the outcomes of those audits.
Mr McGuire gave evidence in relation to the Inspection Report. His evidence is that the Inspection Report is:
a. a confidential internal working document;
b. used for the purpose of monitoring real estate agent's compliance with the PSBA;
c. sets out the matters against which a real estate agent is audited;
d. forms part of the audit methodologies used by the Respondent;
e. contains the actual details of the audit of Mr Adamson conducted by Mr McGuire in 2010;
f. release of the document to the world at large would compromise part of the investigative methodology used by the Respondent.
It is submitted that the information contained in the Inspection Report shows one of the methods by which the Respondent gathers intelligence in relation to real estate agents. This is distinct from, for example, a manual that sets out how officers of the Respondent are to exercise their powers of investigation in accordance with the PSBA Act.
It is further submitted that if the Applicant's purpose in seeking access to the disputed documents is to understand how the Respondent had reached the views it had in its investigation, she has not demonstrated how access to the Inspection Report will assist in her understanding.
The Respondent submits that on balance, there is an overriding a public interest consideration against disclosure the Inspection Report and its release should be refused.
The Respondent submits that the considerations clause 3(a) of the Table to section 14 provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to reveal an individual's personal information.
The Respondent submits that disclosure of the PSLS document could reasonably be expected to reveal an individual's personal information.
Information on the PSLS database is not publicly available. The PSLS is used for the limited purpose of extracting historical data for the purpose of investigations and enquiries in relation to real estate agents. The Respondent records and maintains personal information, such as date of birth, on PSLS to enable further enquires to be made in relation to a person, with such authorities as NSW Police.
The PSLS document has been extracted from PSLS database. It contains the personal information of Mr Adamson, specifically his date of birth. The Respondent submits that disclosure of this document could reasonably be expected to reveal the personal information of Mr Adamson.
It is further submitted that the Applicant has not demonstrated how access to the PSLS document will assist in her understanding how the Respondent had reached the views it had in its investigation.
No evidence has been presented in relation to Document 555. However, on the face of it the document contains personal information of a third party.
Clause 3(f) of the Table to section 14 provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to expose a person to a risk of harm or of serious harassment or serious intimidation.
The Respondent is concerned that providing the Applicant with the names of its officers that have been redacted in the Redacted documents, will provide a mechanism by which the Applicant will seek to make contact with those officers for the purpose of further harassing and intimidating departmental officers.
In circumstances where the Applicant is concerned to understand how the Respondent reached the decisions it did in its investigation, it is not clear how providing names of the Respondent's officer will assist.
In the circumstances the Respondent submits that there is an overriding public interest consideration against disclosure of information of the information that has been redacted in the Redacted documents.
The Respondent submits that:
a. the searches for the information responding to the Applicant's request were reasonable in the circumstances;
b. the personal factors of the Applicant are relevant in this matter. The evidence suggests that the Applicant is motivated by reasons other than wanting to understand how the Respondent had reached the views it had in its investigation;
c. in the circumstances there is an overriding public interest against disclosure of the Inspection Report, the PSLS document and the Redacted documents.
The Applicant's Case
In relation to the scope of her request, the Applicant contends that Mr Bechara wrongly estimated the time involved in dealing with her original GIPA application. She believes that she has been actively prevented from obtaining all the information she sought and she now requests the remainder of the files from 2005. She contends that she was told that the fee for the files requested would be $180.00 based on 9.5 hours work. However this did not take into account the provision for 20 hours of work to be free. She says that the Respondent actively discouraged her from obtaining information from complaints originating in 2005.
The Applicant's relies on her own evidence. She asserts that the Respondent has made unsubstantiated allegations about her and without evidence. She says that the Respondent's interpretation of her motives is grossly inaccurate and has been applied punitively to her without a right of reply.
She referred to Mr Bechara's evidence in relation to his discussions with Mr Adamson. His evidence was that Mr Adamson told him that the Applicant had taken him to the Anti Discrimination Board and that he had spoken to police about her. Mr Bechara conceded that Mr Adamson had not shown him any documents in relation to those assertions. The Applicant says that no such documents exist. She argued that Mr Adamson has no evidence to support any claim of harassment or intimidation and contends that his statements were offered to prejudice the investigation. She submits that Mr Adamson was invited to join in these proceedings and speak about his concerns however he declined to do so.
She contends that there is no evidence that she intimidates staff members. She says that it is an unsound accusation and that the writing of letters to the Respondent and various Ministers does not constitute harassment or intimidation because the Respondent is legislated to receive complaints in writing and investigate complaints. She notes that the various letters to Ministers and staff are notably absent of any foul language or words that could be described as threatening or statements to induce fear. She submits that firmly requesting the Respondent to be fair and courteous is not a reason to withhold the names attached to correspondence. She submits that transparency is key to disclosure.
In relation to Mr Bechara, the Applicant says that there were a total of 10 emails over a period of 41 days and that all emails discussed the processing of the GIPA application.
The Applicant also says that Mr Bechara's direct supervisor apologised to her for Mr Bechara's conduct after Mr Bechara's email to the Applicant to "get an education". She says that she would not be given such apology if there were any intimidation or harassment to Mr Bechara. She therefore asks the Tribunal to disregard Mr Bechara's assertion of intimidation or harassment.
In relation to Mr McGuire's evidence the Applicant submits that had there been a threat to his person or a threat of anything that constitutes harassment he would recall it and say so under oath.
She contends that Mr McGuire laboured under a misunderstanding as to how the Applicant's strata property operates. He was unaware of this particular strata's special notation registered with the Land Titles Office. The Applicant also says that the bulk of her letters to the Respondent and Ministers were presenting the whole evidence of this particular strata and as such is not harassment but agitating for recognition of proprietary rights. She submits that Mr McGuire's lack of understanding of a strata being different to his own body of knowledge is no reason to assert that she intimidated him.
She submits that the Tribunal cannot be satisfied of intimidation or harassment by letter writing to the only department who is legislated to deal with strata managers. She further asserted that, by his own admission, Mr McGuire didn't even read the letters he claims constitute harassment.
The Applicant contends that it is in the interest of the public to have full disclosure of all information related to the investigation and to examine why the Respondent's investigation into the management of trust account monies by Mr Adamson differs significantly to the investigation conducted by the NSW Police Fraud Squad.
The Applicant says that the Fraud Squad was able to detect the misappropriation of monies within weeks of their investigation whereas the Respondent took over 18months to investigate and were unable to establish the same or similar facts to the NSW Fraud Squad.
She therefore submits that all information in relation to the Respondent's investigation should be disclosed. That information should include correspondence between the Respondent and Mr Adamson.
The Applicant says that some information is missing from the Respondent's file. She stated that when Mr Adamson ceased to be Strata Manager for the property, she and the owner of the other lot were able to collect the strata records. She stated that the file contained emails and referrals to correspondence with the Respondent that do not appear on the disclosed information received in response to her GIPA application. She says that there are missing parts to emails and missing information on pages.
The Applicant also notes that Mr Jenkins referred to his consideration of replies from Mr Adamson. She submits that that information should be disclosed.
The Applicant disputes the Respondent's contention that the investigation report should not be released because it contains information which if released would reveal methods of identifying non-compliant traders and how investigations and enforcement action are taken. She submits that it should be disclosed for the following reasons:
- the Fraud Squad has conducted an investigation and found breaches in Mr Adamson's operations;
- those breaches related to fraud and misappropriation of monies;
the Respondent's methods were used and determined a different outcome;
- it is in the Public interest and speaks to their right of protection under the NSW Fair Trading Legislation to know about their protection by different agencies;
- disclosure would assist the support of better legislation where gaps in powers are evident;
- there is an inherent right to know of the proper conduct of an investigation;
- the Fraud squad have disclosed their method in obtaining information from Mr Adamson without concerns to persons who could use their methods to avoid detection or enforcement action;
- the law and legislation and policy is open for everyone to use;
- the powers of investigation are given to the Respondent's by legislation - similarly the NSW Police receive their powers of investigation from legislation; and
- enforcement is based on evidence and the assertion that "non compliant traders could use such information to avoid detection" is mute.
The Applicant contends that the Respondent has not acted in the spirit of the GIPA Act to be in favour of disclosure and has caused significant and unnecessary acts and costs to resist transparency.
Discussion
The scope of this application is limited by the scope of the Applicant's amended request. Her request was limited to "The investigation file in relation to strata manager for Strata Plan 50088 Gary Adamson as strata manager." Information that is not held in that particular file is outside the scope of the request and would need to be the subject of a separate access application under the GIPA Act.
As noted above, clause 3(f) of the table to section 14 of the GIPA Act provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to expose a person to a risk of harm or of serious harassment or serious intimidation. Judicial Member Molony recently considered that provision in AEZ v Commissioner of Police, NSW Police Force [2013] NSWADT 90. In particular, the Judicial Member considered the meaning of the expressions 'harm' ' harassment' and 'intimidation' at paragraphs [82] to [94] of his decision. He stated:
Disclosure of the information could reasonably be expected expose a persons to risk of harm or of serious harassment or serious intimidation (s 14 Table 3(f))
82 The question here is whether if the information is disclosed, it could reasonably be expected that the disclosure would "expose a person to a risk of harm or of serious harassment or serious intimidation."
83 The GIPA Act does not contain a definition of harm, serious harassment or serious intimidation. It is to be noted that harm is not qualified by the adjective serious. The Macquarie Dictionary online defines harm thus -
noun 1. injury; damage; hurt: to do someone bodily harm.
2. moral injury; evil; wrong.
-verb (t) 3. to do harm to; injure; damage; hurt.
-phrase 4. in harm's way, in danger.
5. out of harm's way, out of danger.
[Middle English; Old English hearm]
84 Harm is a concept frequently used by the law. The criminal law prohibits assaults occasioning bodily harm. This has been interpreted in its ordinary meaning to" include any hurt or injury calculated to interfere with the health or comfort of [the injured person]": see R v Donovan [1934] 2KB 498. "Serious harm" is a concept used in criminal defamation, which requires proof of an intent to cause serious harms. Section 40 of the Civil Law (Wrongs) Act 2002 (ACT) on the other hand defines "harm" to be harm of any kind, including personal injury, damage to property and economic loss. Harm is also a concept in child protection: in section 9 of the Child Protection Act 1999 (Qld) it is defined as "as any detrimental effect of a significant nature on the child's physical, psychological or emotional wellbeing."
85 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.
86 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]
87 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).
88 In Henderson v McKenzie [2009] ACTSC 39 Higgins CJ was considering a charge of stalking with intent to harass contrary to s 35(1)(c) of the Crimes Act 1900 (ACT). His Honour said, at [6-8] -
6. Harassment is not defined in the Crimes Act, nor, indeed, in the Criminal Code 2002 (ACT) (Criminal Code). However, it does seem in context to bear its usual meaning, ie "to trouble by repeated attacks; harry; (1) to worry or unnerve (an enemy) by continuous small attacks; (2) to disturb, worry, torment, distress with annoying labour, care or misfortune" (World Book Dictionary); "Vex by repeated attacks; trouble, worry" (Concise Oxford Dictionary).
89 All of the definitions of harassment require a consideration of how the conduct complained of is experienced by the person alleged to be harassed, and are concerned with whether that person was offended, worried, tormented, distressed or harassed by the conduct. 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.
90 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.
91 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]
92 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.
93 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. ...
94 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.
I agree with Judicial Member Molony's summary in relation to the expressions 'harm', ' harassment' and 'intimidation' and I adopt them for the purposes of this matter.
In Black v Hunter New England Local Health District & Dr Lattimore (No 2) [2012] NSWADT 235 Deputy President Higgins found that the applicant's correspondence with the agency might be viewed as being excessively assertive, unnecessarily emotive, lacking objectivity and sometimes threatening in tone and she accepted that there was evidence of the applicant having behaved in a persistent and an unacceptable way, she was not satisfied that it this amounted to 'serious' harassment or 'serious' intimidation . Nor was she satisfied that the disclosure of the requested report could reasonably be expected to expose a person to a risk of 'serious' harassment or 'serious' intimidation.
In the present matter the Applicant indicated that she has no intention of contacting officers of the Respondent in relation to the matters covered by the investigation.
An Affidavit of Ms Cheryl Attfield, a para-legal officer with the Respondent, indicates that the Applicant has, at various times, complained to officers of the Respondent about the conduct of the Respondent generally and in addition about the conduct of specific officers who have been involved in her matters. Ms Attfield indicated that, between September 2005 and April 2012, the Applicant had written to various Government Ministers with responsibility for the Respondent on approximately 35 occasions in relation to Mr Adamson and alleging various breaches of the PSBA Act.
In addition, she identified a number of other letters/emails of complaint from the Applicant that were related to Mr Adamson or the manner in which the Respondent or its officers had conducted enquiries into Mr Adamson.
Mr Nicoletti, Solicitor for Respondent, referred to the contents of some of that correspondence in support of his submission that the Applicant had acted towards staff of the Respondent in a manner that was intimidating, insulting or offensive.
In a letter of 11 October 2005 the Applicant wrote to Mr Humphreys, the Minister of Fair Trading. In her letter she referred to "the jesters of the Commissioner". In a letter of 15th June 2006 the Applicant wrote to the Premier, Mr lemma, in regard to the manner in which the Minister for Fair Trading, Ms Beamer and officers of the Respondent had dealt with her strata management issue.
On 3 February 2010 the Applicant lodged a complaint about the manner in which various named officers of the Respondent had failed to address her complaints and asserted that their attitude brings the department into disrepute.
On 4 February 2012 the Applicant wrote to Mr Stowe with complaints about the manner in which Mr Don Jones and Steve McGuire had dealt with her strata management issue. She referred to the Respondent's handling of her issue as "gross incompetence of the highest order" and annexed a number of emails between herself and officers of the Respondent in support of her complaint.
The Respondent submits that the Applicant:
a. has since 2005 been involved in a combative and acrimonious relationship with Mr Adamson in relation to her strata tenement;
b. formed a view that since 2005 Mr Adamson has on a number of occasions defrauded her and has breached the PSBA Act;
c. considers that Mr Adamson has been assisted by the Respondent in breaching the Act;
d. failed to accept the outcomes of the Respondent's investigation into Mr Adamson;
e. holds both Mr Adamson and the Respondent responsible for financial losses suffered by her since 2005;
f. continues to press the Respondent to take disciplinary action against Mr Adamson;
g. has contemplated commencing legal proceedings against the Respondent on the basis of an alleged breach of duty of care;
h. has a history of complaining to the Respondent about Mr Adamson and various of its officers;
i. has a history of complaining to various ministers about the Respondent and its officers;
j. in correspondence with the Respondent repeatedly used language that is offensive, derisory, and inappropriate, with the view to forcing officers of the Respondent to accommodate the Applicant; and
k. is motivated to pursue the application for reasons other than those disclosed to this Tribunal at the planning conference on 7 August 2012 (as set out in paragraph 28 above).
There has clearly been a long history of antagonism between the Applicant and officers of the Respondent. It appears that this has grown out of the Applicant's dissatisfaction with the outcome of the Respondent's investigation of a complaint that she made about Mr Adamson. It appears the Respondent's dealings with the Applicant in relation to her complaint have extended from 2005 to at least 2012.
It seems that the Respondent's investigation failed to support findings of a Police Fraud Squad investigation in relation to a cheque deposited into the account of Mr Adamson. In August 2012 the NSW attended at the office of Mr Adamson's account in 2005. The cheque apparently belonged to the Applicant.
It appears that there was some misunderstanding on the part of the Respondent's officers in regard to the existence of common property at the Applicant's strata residence. This seems to have added to the tension between them parties.
The Applicant appears to have become frustrated with the time taken by the Respondent's investigation and her disagreement with the outcome. She has vented her frustration through written and verbal complaints to senior management within the Respondent and to various Government Ministers. The content of her complaints is highly critical of officers of the Respondent. Her language and her criticism have offended several of those officers.
From what I have been able to glean from the material that has been filed it appears that there may have been some merit to her initial complaints. However, the Applicant's correspondence with the Respondent "might be viewed as being excessively assertive, unnecessarily emotive, lacking objectivity and sometimes threatening in tone". Understandably, several of the Respondent's officers do not wish to have further dealings with her.
For this reason, the Respondent has asserted that some withheld information should not be released to the Applicant on the basis that the release of the information will expose staff, and third parties, to a risk of harm, serious harassment and serious intimidation: clause 3(f) of the Table to section 14 of the GIPA Act.
While I accept that some officers of the Respondent do not feel comfortable dealing with the Applicant, I do not agree that clause 3(f) of the Table to section 14 of the GIPA Act applies in this situation. There is no suggestion that staff might be exposed to harm that is a real and substantial detrimental effect. The suggestion is that staff might suffer intimidation or harassment. As noted above, it is my view that to fall within the scope of clause 3(f) the intimidation or harassment must be serious i.e. heavy, weighty or grave, and not trifling or transient.
I do not consider that the Applicant's correspondence with the Respondent can be categorised in that manner.
I have weighed the factors in favour of disclosure referred to above against those factors against disclosure contended by the Respondent. I note in particular that the Applicant has indicated that she does not intend to contact any of the Respondent's officers.
On balance, I am not satisfied that there is an overriding public interest against disclosure of the redacted documents that would prevent the release of the names of officers. In my view, that information should be released.
I agree that the PSLS document contains the personal information of Mr Adamson. On balance I do not agree that the personal information should be released. However I do not accept that there is an overriding public interest against disclosure of the remainder of the PSLS document. I do not accept that the mere fact that the document might not assist the Applicant in her understanding how the Respondent had reached the views it had in its investigation provides an overriding basis for withholding the document. In my view, with the exception of the personal information of Mr Adamson, the PSLS document should be released.
Similarly, with the exception of the personal information of the third party, I do not accept that there is an overriding public interest against disclosure of the remainder of the information within Document 555. In my view, with the exception of the personal information of the third party, Document 555 should be released.
However, I accept the Respondent's argument in relation to the Inspection Report. I have weighed the factors in favour of disclosure referred to above against those factors against disclosure contended by the Respondent and in the circumstances I accept that there is an overriding public interest against disclosure of the Inspection Report.
I also accept the Respondent's evidence in relation to the sufficiency of the search undertaken. I am satisfied that the searches for the information responding to the Applicant's request were reasonable in the circumstances.
Order
1. The Respondent's determination is affirmed insofar as it to relates to the Inspection Report.
2. The Respondent's determination is set aside in relation to the remaining documents in issue. In its place the decision is made that the documents are to be released except as referred to in these reasons.
**********
Decision last updated: 15 August 2013
10
3
2