Flaherty v Upper Hunter Shire Council

[2021] NSWCATAD 178

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Flaherty v Upper Hunter Shire Council [2021] NSWCATAD 178

Hearing dates:

25 March 2021

Date of orders:

22 June 2021

Decision date:

22 June 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Ludlow, Senior Member

Decision:

1   The decision under review is varied with regard    to Documents 51 to 56 in the following terms:

   (1)   Access is provided to Documents 51 to          56 with irrelevant material and             information subject to clauses 3(a), (b)          or (e) redacted.

2   The redactions under Order 1 are to follow    those in the Confidential Annexure to these    reasons.

3   Access to the information is to be provided    within 28 days of the date of publication of    these reasons.

Catchwords:

FREEDOM OF INFORMATION – government information – whether redaction of irrelevant material is a reviewable decision – personal information and health information – defamatory allegations – endanger a person’s health

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Health Records and Information Privacy Act 2002 (NSW)

Privacy and Personal Information Protection Act 1998 (NSW)

Cases Cited:

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

Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19

Electoral Commissioner, State Electoral Office v McCabe GD [2003] NSWADTAP 28

Lock the Gate Alliance v Department of Planning and Environment and Anor [2019] NSWCATAD 6

PSA and POA Amalgamated Union of NSW v Premier’s Department [2002] NSWADT 277

Hurst v Wagga Wagga City Council [2011] NSWADT 307

Miskelly v Secretary, Department of Education [2019] NSWCATAD 48

Miskelly v Roads and Maritime Services [2019] NSWCATAD 133

Pallier v NSW State Emergency Service [2016] NSWCATAD 293

Pemberton v Macquarie University [2014] NSWCATAD 76

Rae v Commissioner of Police [2020] NSWCATAD 189.

Raven v The University of Sydney [2015] NSWCATAD 104

Zonnevylle v NSW Department of Finance and Services [2015] NSWCATAD 175

Texts Cited:

Macquarie Dictionary

Category:

Principal judgment

Parties:

Elizabeth Flaherty (Applicant)
Upper Hunter Shire Council (Respondent)

Also heard: Information Commissioner (see s 104(1), Government Information (Public Access) Act 2009).

Representation:

Solicitors:
John Preston (Agent) (Applicant)
Local Government Legal ( Respondent)
Information and Privacy Commission (Information Commissioner)

File Number(s):

2020/00328392

Publication restriction:

1. The name of the applicant is amended to Elizabeth Flaherty.
2. A suppression order under s s64(1)(c) and (d) applies to copies of documents 51 to 55 and 57 to 61 and the portions of the affidavit of Amber Maloney relating to them; and to the confidential hearing conducted in the absence of the applicant and Information Commissioner.

REASONS FOR DECISION

Background

1. Elizabeth Flaherty is seeking review of a decision by the Upper Hunter Shire Council to refuse her access to information she has requested under the Government Information (Public Access) Act 2009 (GIPA Act).

Confidentiality

2. Section 107 of the GIPA Act provides:

“107 Procedure for dealing with public interest considerations

(1) In determining an application for NCAT administrative review, NCAT 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 NCAT administrative review, NCAT 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 NCAT 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 NCAT administrative review, NCAT 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 NCAT 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.”

3. Section 64 of the Civil and Administrative Tribunal Act 2013 provides:

“64 Tribunal may restrict disclosures concerning proceedings

(1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:

(a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),

(b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal,

(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

(2) The Tribunal cannot make an order under this section that is inconsistent with section 65.

(3) The Tribunal may from time to time vary or revoke an order made under subsection (1).

(4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.”

4. I conducted part of the proceedings in the absence of the applicant pursuant to s 107(2) of the GIPA Act and have made orders prohibiting the publication or disclosure of that evidence. Sections of these reasons which contain information which is subject to these orders or would disclose information which is subject to an overriding public interest against disclosure are marked “Not for publication” and may not be disclosed to the public or the applicants.

Relevant legislation

5. Section 63 of the Administrative Decisions Review Act 1997 provides:

“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.”

6. Section 5 of the GIPA Act provides:

“5 Presumption in favour of disclosure of government information

There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.”

7. Section 9 provides:

“9 Access applications

(1) A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.

(2) An agency is not subject to the direction or control of any Minister in the exercise of the agency’s functions in dealing with a particular access application.

(3) The function of making a reviewable decision in connection with an access application made to an agency may only be exercised by or with the authority (given either generally or in a particular case) of the principal officer of the agency.

8. Sections 12 to 15 provide:

“12 Public interest considerations in favour of disclosure

(1) There is a general public interest in favour of the disclosure of government information.

(2) 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.

(3) The Information Commissioner can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies.

13 Public interest test

There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

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,

(e)

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

(f)

prejudice the effective exercise by an agency of the agency’s functions,

(g)

found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence,

(h)

prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).

…

2 Law enforcement and security

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)

endanger, or prejudice any system or procedure for protecting, the life, health or safety of any person,

…

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,

(c)

prejudice any court proceedings by revealing matter prepared for the purposes of or in relation to current or future proceedings,

(d)

prejudice the fair trial of any person, the impartial adjudication of any case or a person’s right to procedural fairness,

(e)

reveal false or unsubstantiated allegations about a person that are defamatory,

(f)

expose a person to a risk of harm or of serious harassment or serious intimidation,

(g)

in the case of the disclosure of personal information about a child—the disclosure of information that it would not be in the best interests of the child to have disclosed.

…

15 Principles that apply to public interest determination

A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles—

(a) Agencies must exercise their functions so as to promote the object of this Act.

(b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner.

(c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.

(d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.

(e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.”

9. Section 54 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.

(3) 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.

(4) 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.

(5) 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.

(6) 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.

(7) 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.”

10. 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.

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.”

11. Clause 4 of Schedule 4 defines “personal information”:

“4 Personal information

(1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.

(2) Personal information includes such things as an individual’s fingerprints, retina prints, body samples or genetic characteristics.

(3) Personal information does not include any of the following—

(a) information about an individual who has been dead for more than 30 years,

(b) information about an individual (comprising the individual’s name and non-personal contact details, 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,

(c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause.”

12. Sections 18 and 19 of the Privacy and Personal Information Protection Act 1998 provide:

“18 Limits on disclosure of personal information

(1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless—

(a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or

(b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or

(c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.

(2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.

19 Special restrictions on disclosure of personal information

(1) A public sector agency must not disclose personal information relating to an individual’s ethnic or racial origin, political opinions, religious or philosophical beliefs, trade union membership or sexual activities unless the disclosure is necessary to prevent a serious and imminent threat to the life or health of the individual concerned or another person.

…”

13. Section 11 of the Health Records and Information Privacy Act2002 provides:

“11 Limits on disclosure of health information

(1) An organisation that holds health information must not disclose the information for a purpose (a secondary purpose) other than the purpose (the primary purpose) for which it was collected unless—

(a) Consent

the individual to whom the information relates has consented to the disclosure of the information for that secondary purpose, or

(b) Direct relation

the secondary purpose is directly related to the primary purpose and the individual would reasonably expect the organisation to disclose the information for the secondary purpose, or

Note—

For example, if information is collected in order to provide a health service to the individual, the disclosure of the information to provide a further health service to the individual is a secondary purpose directly related to the primary purpose.

(c) Serious threat to health or welfare

the disclosure of the information for the secondary purpose is reasonably believed by the organisation to be necessary to lessen or prevent—

(i) a serious and imminent threat to the life, health or safety of the individual or another person, or

(ii) a serious threat to public health or public safety, or

(c1) Genetic information

the information is genetic information and the disclosure of the information for the secondary purpose—

(i) is to a genetic relative of the individual to whom the genetic information relates, and

(ii) is reasonably believed by the organisation to be necessary to lessen or prevent a serious threat to the life, health or safety (whether or not the threat is imminent) of a genetic relative of the individual to whom the genetic information relates, and

(iii) is in accordance with guidelines, if any, issued by the Privacy Commissioner for the purposes of this paragraph, or

(d) Management of health services

the disclosure of the information for the secondary purpose is reasonably necessary for the funding, management, planning or evaluation of health services and—

(i) either—

(A) that purpose cannot be served by the disclosure of information that does not identify the individual or from which the individual’s identity cannot reasonably be ascertained and it is impracticable for the organisation to seek the consent of the individual for the disclosure, or

(B) reasonable steps are taken to de-identify the information, and

(ii) if the information could reasonably be expected to identify individuals, the information is not published in a generally available publication, and

(iii) the disclosure of the information is in accordance with guidelines, if any, issued by the Privacy Commissioner for the purposes of this paragraph, or

(e) Training

the disclosure of the information for the secondary purpose is reasonably necessary for the training of employees of the organisation or persons working with the organisation and—

(i) either—

(A) that purpose cannot be served by the disclosure of information that does not identify the individual or from which the individual’s identity cannot reasonably be ascertained and it is impracticable for the organisation to seek the consent of the individual for the disclosure, or

(B) reasonable steps are taken to de-identify the information, and

(ii) if the information could reasonably be expected to identify the individual, the information is not made publicly available, and

(iii) the disclosure of the information is in accordance with guidelines, if any, issued by the Privacy Commissioner for the purposes of this paragraph, or

(f) Research

the disclosure of the information for the secondary purpose is reasonably necessary for research, or the compilation or analysis of statistics, in the public interest and—

(i) either—

(A) that purpose cannot be served by the disclosure of information that does not identify the individual or from which the individual’s identity cannot reasonably be ascertained and it is impracticable for the organisation to seek the consent of the individual for the disclosure, or

(B) reasonable steps are taken to de-identify the information, and

(ii) the information will not be published in a form that identifies particular individuals or from which an individual’s identity can reasonably be ascertained, and

(iii) the disclosure of the information is in accordance with guidelines, if any, issued by the Privacy Commissioner for the purposes of this paragraph, or

(g) Compassionate reasons

the disclosure of the information for the secondary purpose is to provide the information to an immediate family member of the individual for compassionate reasons and—

(i) the disclosure is limited to the extent reasonable for those compassionate reasons, and

(ii) the individual is incapable of giving consent to the disclosure of the information, and

(iii) the disclosure is not contrary to any wish expressed by the individual (and not withdrawn) of which the organisation was aware or could make itself aware by taking reasonable steps, and

(iv) if the immediate family member is under the age of 18 years, the organisation reasonably believes that the family member has sufficient maturity in the circumstances to receive the information, or

(h) Find missing person

the disclosure of the information for the secondary purpose is to a law enforcement agency (or such other person or organisation as may be prescribed by the regulations) for the purposes of ascertaining the whereabouts of an individual who has been reported to a police officer as a missing person, or

(i) Suspected unlawful activity, unsatisfactory professional conduct or breach of discipline

the organisation—

(i) has reasonable grounds to suspect that—

(A) unlawful activity has been or may be engaged in, or

(B) a person has or may have engaged in conduct that may be unsatisfactory professional conduct or professional misconduct under the Health Practitioner Regulation National Law (NSW), or

(C) an employee of the organisation has or may have engaged in conduct that may be grounds for disciplinary action, and

(ii) discloses the health information as a necessary part of its investigation of the matter or in reporting its concerns to relevant persons or authorities, or

(j) Law enforcement

the disclosure of the information for the secondary purpose is reasonably necessary for the exercise of law enforcement functions by law enforcement agencies in circumstances where there are reasonable grounds to believe that an offence may have been, or may be, committed, or

(k) Investigative agencies

the disclosure of the information for the secondary purpose is reasonably necessary for the exercise of complaint handling functions or investigative functions by investigative agencies, or

(l) Prescribed circumstances

the disclosure of the information for the secondary purpose is in the circumstances prescribed by the regulations for the purposes of this paragraph.

(2) An organisation is not required to comply with a provision of this clause if—

(a) the organisation is lawfully authorised or required not to comply with the provision concerned, or

(b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998), or

(c) the organisation is an investigative agency disclosing information to another investigative agency.

(3) The Ombudsman’s Office, Health Care Complaints Commission, Anti-Discrimination Board and Community Services Commission are not required to comply with a provision of this clause in relation to their complaint handling functions and their investigative, review and reporting functions.

(4) Nothing in this clause prevents or restricts the disclosure of health information by a public sector agency—

(a) to another public sector agency under the administration of the same Minister if the disclosure is for the purposes of informing that Minister about any matter within that administration, or

(b) to any public sector agency under the administration of the Premier, if the disclosure is for the purposes of informing the Premier about any matter.

(5) If health information is disclosed in accordance with subclause (1), the person, body or organisation to whom it was disclosed must not use or disclose the information for a purpose other than the purpose for which the information was given to it.

(6) The exemptions provided by subclauses (1) (k) and (2) extend to any public sector agency, or public sector official, who is investigating or otherwise handling a complaint or other matter that could be referred or made to an investigative agency, or that has been referred from or made by an investigative agency.”

The respondent’s case

14. Ms Amber Maloney gave evidence for the respondent. Ms Maloney is the Manager Governor and Risk of the respondent. She carries out the functions of the principal officer of the respondent under the GIPA Act.

15. She said that the applicant is the owner and editor of a public website which publishes local information about the Council. She has made GIPA applications previously to the Council and corresponded with various Councillors and Council officers.

16. The application lodged by Ms Flaherty on 7 May 2020 sought “all Council email correspondence and documents which reference me or my business.” She specified that she sought “all email correspondence threads and documents” with one or more of a number of keywords which she provided “which may reference me or my business from Councillors or Council staff” from January 2017 including but not limited to emails or documents between Council staff, Councillors and between Council staff and Councillors.

17. There was some revision of the scope of the request in correspondence between Ms Flaherty and Ms Maloney, as the initial request generated a large number of results. By letter dated 30 June 2020 the revised scope of the request was confirmed to be emails between 1 January 2020 and 7 May 2020 containing the keyword “blogger” (as the applicant is known as “the blogger” within Council) excluding any material sent directly to or from the applicant or the applicant’s website or which does not relate to the applicant or the website.

18. Ms Maloney said when determining what the Council’s functions are for the purpose of s 14 of the GIPA Act, she considered the nature of the work and duties performed by the Council, its functions under the Local Government Act 1993, and what it was required to do in order to deliver services.

19. Documents 38 to 43 had been redacted to remove material that was not within the scope of the request. With referral to the Schedule of documents, she said that items 44 to 47 were originally withheld but the Information Commissioner recommended that they be released. She then reconsidered and released them with the exception of matters which were not within the scope of the request, which were redacted. She determined that documents 55 to 61 were confidential on the basis of the form and content of the information itself. There was no express statement that it was given in confidence.

20. She was asked if Document 62, which related to a performance review, involved the performance review of a Councillor. She said it did not.

21. [NOT FOR PUBLICATION]

Respondent’s submissions

22. The respondent submitted that in documents 38 to 43, the information outside the scope of the request had been redacted. This was not a reviewable decision under s. 80 of the GIPA Act. With relation to the emails the applicant had advised that she did not want information which did not relate to the applicant or her website in an email dated 25 June 2020 confirming the scope. The Tribunal should determine that the scope had been reduced with the consent of the applicant.

23. The respondent submitted that where the Information Commissioner had not recommended any deviation from its decision, significant weight should be attached to this.

24. It also submitted that the fact that the applicant had a website and blog about Council matters should be considered as a personal factor against disclosure under s 55. Similarly the fact that the applicant had already received the outcome of her Code of Conduct complaint in 2020 and had stated she had copies of the information from other unauthorised sources, should be considered as a factor against disclosure.

25. The respondent provided a schedule of documents dated 12 January 2021 which set out the information, the determination in each case and the public interest considerations relied upon. I have relied on this schedule in considering the public interest considerations against disclosure set out in these reasons.

The applicant’s case

26. The applicant Ms Flaherty provided an affidavit but was not required for cross examination. She stated she was the Managing Director of Wavelength Group Pty Ltd.

27. She had made a Code of Conduct complaint against a Councillor of the respondent. Her complaint was investigated by an independent investigator. On 16 June 2020 the investigator wrote to her and informed her that the allegations in her complaint had been found to be substantiated.

28. Ms Flaherty tendered copies of emails in which she and the investigator had discussed whether she could provide him with documents evidencing the relationship between herself and Councillors. On 30 April 2020 however the investigator wrote:

“I do not necessarily require access to the material for the completion of my current Code of Conduct investigation … If you have access to those and can properly supply them, that would be of benefit. But if not, it is certainly not of great detriment to the investigation… if you can’t supply them please don’t worry.”

29. Also in these emails the applicant stated that she was considering defamation action as a result of the conduct.

30. In her correspondence with Ms Maloney on 27 May 2020 regarding the request she stated that she already had copies of emails that she was seeking but as she wished to protect the sources who had sent them to her: “the more transparent process is for the Council to proactively provide some of those emails, without my direction to particular emails of interest to avoid identification of sources.” This was evident in that she suggested the keyword “blogger” as a search tool.

31. The applicant also tendered affidavits by:

1. Councillor Sue Abbott in which the Councillor stated that she consented to the release of the emails and that Council’s systems for searching, retrieving and accessing documents was inadequate;

2. Councillor Lee Watts who supported Council’s records being made available as widely as possible.

32. The applicant submitted that there is a presumption of access under s 5 of the GIPA Act. Ms Maloney had decided that certain information was confidential, with no evidentiary basis.

33. She pressed for access to documents 38 to 43 and said she had not given consent to reduce the scope in regard to those documents. She also pressed for the material in documents 44 to 47 which was said to be out of scope or at least for the Tribunal to test that assertion.

34. The scope of the request should be determined on the basis of the original application and a common sense view to the correspondence. If no harm was done by releasing it, it should be released.

35. She submitted that documents 48 to 50 should be released in full.

36. In relation to document 56, the GIPA Act sets a high bar and the question to be asked is whether the disclosure of the information could reasonably be expected to reveal false or unsubstantiated allegations about a person that are defamatory. It is not sufficient to say that they “may be” defamatory.

37. Where the Council refused to disclose information about Councillors’ political views, it must establish why such views should be private, particularly when they are publicly known.

38. Whether the applicant may be contemplating legal proceedings is not a relevant factor to be considered under s 55 of the GIPA Act.

39. Public interest is a very broad and flexible concept and s 232 of the Local Government Act 1993 makes clear that a councillor is part of a governing body and represents the interests of residents, ratepayers and the community.

Information Commissioner’s submissions

40. The Information Commissioner made submissions on the public interest considerations against disclosure relied on by the respondent.

41. Relevantly, she submitted that:

1. Clause 3(e) of s 14 of the GIPA Act requires establishing that the allegations are false or unsubstantiated and that they are defamatory. The decision of Pallier v NSW State Emergency Service [2016] NSWCATAD 293 at [78] is relevant. In Pemberton v Macquarie University [2014] NSWCATAD 76, the Tribunal gave significant weight to the effect that the release of false or unsubstantiated allegations would have in a work or other environment.

1. With respect to clause 2(d) of s 14, a claim of endangerment requires “grave assessment [which] must be closely scrutinised and not easily accepted” (Electoral Commissioner, State Electoral Office v McCabe GD [2003] NSWADTAP 28 at [36].

2. It has been held by the Tribunal that a private interest does not constitute a public interest under the GIPA Act. A private right to commence civil proceedings did not amount to a public interest under s 12 (Rae v Commissioner of Police [2020] NSWCATAD 189.

3. Section 5 of the Privacy and Personal Information Protection Act 1998 (PPIP Act) is designed to ensure that the PPIP Act does not modify the GIPA Act. Non-compliance with the PPIP Act may be authorised where an agency is complying with an obligation under the GIPA Act. If the public interest considerations in favour of disclosure outweigh those against, then the personal information can be released.

Consideration

42. The words "could reasonably be expected to" used in the table in s 14 of the GIPA Act are to be given their ordinary meaning: see Attorney-General's Department v Cockcroft (1986) 10 FCR 180. In Cockcroft, 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.”

43. In Raven v The University of Sydney [2015] NSWCATAD 104 Senior Member Lucy stated:

“There must be some evidentiary basis from which the Tribunal may infer that disclosure of the information sought could reasonably be expected to prejudice the supply to an agency of confidential information. It is not sufficient for the respondent to make an assertion that this is the case.”

44. The Appeal Panel in Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 observed, at [33], that:

“…the question of whether the information supplied is 'confidential information' must be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received”. [52-55]

45. Pursuant to a direction, the Tribunal was provided with both redacted and unredacted copies of the documents in dispute after the hearing.

Documents 38 to 43

46. Documents 38 to 43 are different versions of one document. The respondent released this information with redactions. The redacted material was said to not to be within the scope of the request. The respondent said that a decision that information is not within the scope of the request, is not a decision which is reviewable by the Tribunal.

47. Section 74 of the GIPA Act allows an agency to:

“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.”

48. See Miskelly v Secretary, Department of Education [2019] NSWCATAD 48. The wording of the section indicates that deleting information which is not relevant when providing access to information does not constitute a decision, and it is not a reviewable decision which may be reviewed by the Tribunal under s 100 of the GIPA Act, as it is not one of the decisions listed in s 80.

49. Hence, the Tribunal has no jurisdiction to review action taken based on a view that certain information is not within the scope of the request or the deletion of irrelevant material under s 74 (Miskelly v Roads and Maritime Services [2019] NSWCATAD 133).

50. The relevant decision in the case of documents 38 to 43 was to provide certain information. There was no public interest consideration relied upon in relation to the redacted material. It was deleted because it was not relevant. Having reviewed the redacted material, however, I am satisfied that it does not fall within the information sought in the request even in its original terms.

Documents 44 to 47

51. These documents were originally withheld but the Information Commissioner had recommended that they be released. The respondent subsequently released those documents except for material which it held to be out of scope.

52. Similar considerations apply to this information as for documents 38 to 47. Having reviewed the redacted material I am satisfied that it does not fall within the information sought in the request even in its original terms.

Documents 48 to 50

53. Similar considerations apply to documents 48-50. Having reviewed the redacted material I am satisfied that it is not relevant with the exception of the remainder of the sentence in the email dated 1.28 pm on 7 May 2020 from Wayne Phelps. The sentence refers to “blogger land” which I infer is a reference to Ms Flaherty and possibly other bloggers, but it is meaningless without the remainder of the sentence. As this was not a reviewable decision, however, the Tribunal does not have the power to set it aside.

Documents 51 to 55

54. According to the schedule these documents were withheld in reliance on clauses 1(g), 2(d), 3(a) and 3(b) of s 14 of the GIPA Act.

1(g) - disclosure could reasonably be expected to found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence

55. The words “found an action for breach of confidence” should be interpreted as referring to a legal action for breach of an obligation of confidence, whether contractual or otherwise (Lock the Gate Alliance v Department of Planning and Environment and Anor [2019] NSWCATAD 6 at [139]). I am not satisfied that disclosing the information could reasonably be expected to result in such an action.

56. As to whether disclosure could otherwise be reasonably be expected to disclose information provided to an agency in confidence, there is no evidence which indicates that the information contained in these documents was provided in confidence either expressly or impliedly. The Council email system was used and the communications are not marked ‘Confidential’.

57. It is not evident that the information was secret, or that it was communicated such as to create an obligation of confidence (PSA and POA Amalgamated Union of NSW v Premier’s Department [2002] NSWADT 277). I conclude that this consideration has not been established by the respondent.

2 (d) - disclosure could reasonably be expected to endanger, or prejudice any system or procedure for protecting, the life, health or safety of any person

58. [NOT FOR PUBLICATION]

59. [NOT FOR PUBLICATION]

60. Clause 2(d) requires in this case a finding that disclosure could reasonably be expected to endanger the life, health or safety of the person in question. A claim of this nature must be closely scrutinised and not easily accepted. While I accept that there is evidence relating to a person’s health, the available evidence is sparse and in my view the respondent has not established that disclosure of this information could reasonably be expected to endanger a person’s life, health or safety.

3(a) and (b) - disclosure could reasonably be expected to reveal an individual’s personal information, or 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

61. The documents do contain personal information, including opinions, about several persons.

62. [NOT FOR PUBLICATION]

63. No third party consultation was undertaken with any of the persons identified above about the potential disclosure of this personal information under s 54 of the GIPA Act. No persons were informed of their third party rights under the Act. I note that Councillors Watts and Abbott support disclosure.

64. [NOT FOR PUBLICATION]

65. Health Privacy Principles apply to “health information” which is defined in the Health Records and Information Privacy Act 2002 to mean:

“personal information that is information or an opinion about—

(i) the physical or mental health or a disability (at any time) of an individual, or

(ii) an individual’s express wishes about the future provision of health services to him or her, or

(iii) a health service provided, or to be provided, to an individual, or

(b) other personal information collected to provide, or in providing, a health service, or

(c) other personal information about an individual collected in connection with the donation, or intended donation, of an individual’s body parts, organs or body substances, or

(d) other personal information that is genetic information about an individual arising from a health service provided to the individual in a form that is or could be predictive of the health (at any time) of the individual or of a genetic relative of the individual, or

(e) healthcare identifiers”.

66. Section 11 of that Act applies to disclosure of health information. Section 11 provides that an organisation that holds health information must not disclose the information for a purpose other than the purpose for which it was collected unless one of the specified exemptions apply.

67. [NOT FOR PUBLICATION]

68. In my view s 11 would be breached if the above information were disclosed as none of the exemptions apply to it.

69. The only Information Protection Principle which could apply in my view is s 18 of the Privacy and Personal Information Protection Act 1998 (PPIP Act). None of the exemptions in (a),(b) or (c) apply to the information in question. The result is that disclosing the personal information would breach s 18.

70. In my view cl 3(a) and (b) do apply to some of the information in the documents.

Document 56

71. Third party consultation was undertaken in relation to this information. The third party objected to disclosure. The decision maker relied on cl 3(a),(b) and (e) of s 14 in refusing access to the information. In relation to 3(b) s 19 of the PPIP Act was relied upon, in relation to disclosure of political opinions.

72. Having reviewed the information, I am satisfied that it contains personal information in the form of opinions about individuals whose identity is reasonably ascertainable and thus satisfies 3(a). Disclosure could breach s 18 of the PPIP Act.

73. I am not satisfied that the opinions are political opinions or that s 19 of the PPIP Act could be breached, however. While they may relate to the conduct of Councillors of the Council, there is no reference to politics, political activity or any political affiliation.

74. In relation to cl 3(e) the question is whether disclosure of the information could reasonably be expected to reveal false or unsubstantiated allegations about a person that are defamatory.

75. The nature of the tort of defamation is established under the common law (see s 6 Defamation Act 2005). A defamatory publication is one which tends, in the minds of ordinary reasonable people, to injure a person’s reputation either by

1. disparagement

2. causing others to shun him or her, or

3. subjecting him or her to hatred, ridicule or contempt.

76. (Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [83]. See also Zonnevylle v NSW Department of Finance and Services [2015] NSWCATAD 175 at [55].)

77. The Macquarie Dictionary defines an “allegation” as:

“1. a mere assertion made without proof.”

78. Clause 1 of Sch 4 of the GIPA Act provides that:

“reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)”.

79. There is no evidence before the Tribunal to indicate whether the allegations are false or unsubstantiated. From the context and the nature of the comments I infer that they are unsubstantiated because they are an expression of personal opinion rather than an allegation of fact. They are defamatory, however, in that if disclosed they could injure the reputation of the persons they are made against or subject them to contempt.

80. It is apparent from the applicant’s submissions that the applicant knows the document’s contents and author. She submits that it contains political opinions of the author which are already in the public domain, but there is no evidence to support this. In the absence of any such evidence I conclude that cl 3(e) as well as 3(a) applies to the information.

Document 62

81. The applicant stated that if document 62 did not relate to the performance review of a councillor, she accepted that it was subject to a public interest consideration against disclosure and would not press for it if the Tribunal found that it related to a Council employee.

82. Having reviewed the document, I am satisfied that it relates to an employee and not a Councillor. That being the case it is not necessary to consider it any further.

Balancing exercise

83. Under s 12 where I have identified public interest considerations against disclosure of any of the information, I must weigh these against the public interest considerations in favour of disclosure and if the former outweighs the latter, there is an overriding public interest against disclosure of the information. This applies only to documents 51-55 and 56.

Public interest considerations in favour of disclosure

84. The identified public interest considerations in favour of disclosure are:

1. The general public interest in favour of the disclosure of government information.

2. Disclosure of the information could reasonably be expected to promote open discussion of public affairs

3. 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.

4. In some cases, the information is personal information of the person to whom it is to be disclosed.

5. I note that Councillors Watts and Abbott support the disclosure of the information.

85. I note in this regard also that s 15 provides:

“(c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.

(d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.”

86. Under s 55, I may consider the personal factors of the application.

1. The applicant stated she was seeking copies of documents, some of which if not all, she already possessed, in order to protect her sources of information. The respondent appeared to accept that she already possessed this information and submits that is a consideration against disclosure.

2. The applicant’s original motives were to obtain information to provide to an investigator, however that investigation is now complete. The applicant has contemplated defamation proceedings.

Documents 51-55

87. I found that only 3(a) and (b) of s 14 applied to this information as public interest considerations against disclosure of this information. I give weight to the fact that some of the information is health information and some of the personal information is sensitive. The information concerns personal information in the form of information or opinions about a number of individuals.

88. [NOT FOR PUBLICATION]

89. It is not evident to me that disclosure of the personal information or health information of persons other than the applicant could reasonably be expected to promote open discussion of public affairs, or inform the public about the Council’s operations or policies and practices.

90. Some of the personal information is personal information of the applicant, which favours disclosure. If she already has that information, that consideration may be less significant, but there remains a general presumption in favour of disclosure. I have determined that the general presumption makes it more in the public interest that it be disclosed to the applicant, whether she has it or not from another source.

91. I do not consider that the possibility of litigation is a relevant factor.

92. I have concluded that the information which is personal information of the applicant should be disclosed and information which is not relevant to the request or is personal or health information of other persons other than Councillors Abbott and Watts should be withheld in accordance with the Confidential Annexure to these reasons.

Document 56

93. I am satisfied that disclosure of the information could reasonably be expected to disclose personal information in the form of opinions about individuals, as well as allegations which are defamatory and therefore that cll 3(a) and 3(e) apply.

94. It is relevant to consider the impact that disclosure of the information may have on individuals. There is a strong public interest in a person having access to their own personal information, however.

95. [NOT FOR PUBLICATION]

96. I have concluded that the information which is personal information of the applicant should be disclosed and information which is not relevant to the request or comes within 3(a) or 3(e) should be withheld in accordance with the Confidential Annexure to these reasons.

97. Orders

98. The decision under review is varied with regard to Documents 51 to 56 in the    following terms:

1. Access is provided to Documents 51 to 56 with irrelevant material and information subject to clauses 3(a), (b) or (e) redacted.

99. The redactions under Order 1 are to follow those in the Confidential Annexure to these reasons.

100. Access to the information is to be provided within 28 days of the date of publication of these reasons.

**********

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

Registrar

CONFIDENTIAL ANNEXURE

NOT FOR PUBLICATION

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: 23 June 2021