FNN v Cumberland City Council - [2022] NSWCATAD 196

Civil and Administrative Tribunal

New South Wales

Case Name:	FNN v Cumberland City Council
Medium Neutral Citation:	[2022] NSWCATAD 196
Hearing Date(s):	8 March 2022 & on the papers
Date of Orders:	15 June 2022
Decision Date:	15 June 2022
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Riordan, Senior Member
Decision:	1.The Tribunal notes that the Council does not oppose the release of an unredacted page 1 of document number 1 to the applicant. The Council is to provide the applicant with an unredacted copy of page 1. 2. The Tribunal notes that the Council does not oppose the release of an unredacted copy of document number 25. The Council is to provide the applicant with an unredacted copy of that document. 3. The decision of the Council dated 22 October 2021 is otherwise affirmed.
Catchwords:	ADMINISTRATIVE LAW – administrative review - Government Information – balancing the public interest
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 (NSW) Children’s Guardian Act 2019 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 (NSW)
Cases Cited:	Attorney-General's Department v Cockcroft (1986) 10 FCR 180 at 190; (1986) 64 ALR 163; (1986) 12 ALD 468; [1986] FCA 35 Australian Vaccination Network v Department of Finance & Services [2013] NSWADT 60 at [22] FHG v Cumberland City Council [2021] NSWCATAD 379 Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42] Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60], [70] Leech v Sydney Water Corporation [2010] NSWADT 298 at [25] … v Cumberland Council [2021] NSWCATAD xxx
Texts Cited:	Nil
Category:	Principal judgment
Parties:	FNN (Applicant) Cumberland City Council (Respondent)
Representation:	Solicitors: Applicant (Self-represented) C McFadzean (Cumberland City Council)(Respondent)
File Number(s):	2021/00238082
Publication Restriction:	Not applicable

REASONS FOR DECISION

By an application dated 30 June 2021, the applicant sought a review of a decision of the Respondent (the Council) made on 29 June 2021 under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act), to refuse to deal with the access application.

Background

On 28 May 2021, Ms J Albazouni, the Council’s Access to Information (AOI) Officer, sent an email to the applicant in response to the access application, and stated, relevantly:
…My decision on this date is to give you the opportunity to amend your application as your request will require a substantial diversion of Council’s resources. I can suggest the following:
• Provide a specific date range for the information sought or by reducing the date range for the information sought or
• Exclude information from third parties (as you have already applied through GIPA to third parties and we have previously consulted those agencies).
Ms Albazouni advised the applicant that s 60(6) of the GIPA Act provides that an applicant is not entitled to a refund of the application fee when the agency refuses to deal with the access application on the grounds provided for in section 60(1) of the GIPA Act,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWCATAD 196
Decision Date: 15 June 2022

CaseChat Overview and Summary

The matter of FNN v Cumberland City Council involved a dispute concerning the refusal of the Cumberland City Council to release certain documents to the applicant under the Government Information (Public Access) Act 2009 (NSW). The applicant sought the release of information pertaining to child protection matters and alleged misconduct by the Council. The case was heard by the NSW Civil and Administrative Tribunal (NCAT). The central legal issues before the Tribunal were whether the Council had correctly withheld certain documents under the GIPA Act and whether there were any overriding public interest considerations against disclosing the information.

The Tribunal examined the arguments presented by both parties, focusing on the application of specific sections of the GIPA Act. The Council argued that certain redactions were justified under s 74 of the Act, as the redacted material was not relevant to the information requested. Additionally, the Council contended that the release of the redacted information could prejudice confidential investigations under s 14 of the Act. The applicant, on the other hand, argued that the withheld information was necessary to understand the Council’s conduct in relation to previous GIPA applications and that the Council's actions had detrimental effects on them, citing medical reports as evidence. The Tribunal found that while the applicant's grievances were significant, they did not pertain to the specific scope of the current review. Consequently, the Tribunal rejected the applicant's complaints regarding the conduct of the hearing and the scope of the review.

After careful consideration of the evidence and arguments, the Tribunal concluded that the Council's decision to withhold certain information was justified under the GIPA Act. The Tribunal determined that the redactions were appropriate as the redacted material did not pertain to the information requested, and releasing it could undermine confidential investigations. The Tribunal also found that the applicant's grievances, while noteworthy, did not affect the Tribunal's decision on the current review's scope. Therefore, the Tribunal affirmed the Council's decision dated 22 October 2021, with specific orders to release unredacted copies of certain documents to the applicant.

The final orders of the Tribunal were that the Council provide the applicant with an unredacted copy of page 1 of document number 1 and an unredacted copy of document number 25. The Tribunal otherwise affirmed the Council's decision dated 22 October 2021.

Orders

Orders of the court

1.The Tribunal notes that the Council does not oppose the release of an unredacted page 1 of document number 1 to the applicant. The Council is to provide the applicant with an unredacted copy of page 1.

2. The Tribunal notes that the Council does not oppose the release of an unredacted copy of document number 25. The Council is to provide the applicant with an unredacted copy of that document.

3. The decision of the Council dated 22 October 2021 is otherwise affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

However, the applicant did not specifically address the disputed documents.Evidence of Ms Zammit In her Statement, Ms Zammit stated that she had read a copy of the applicant’s submissions and evidence and she referred to para 8, which referred to statements within the CPC Action Plan 2017-2018 that “the Chairperson…] will update the policy” and forecast CPC meetings on 8 March 2017, 6 June 2017 and 6 September 2017. Ms Zammit stated that she presented the 2017-2018 Action Plan to a February 2017 meeting of the Council’s then Leadership Group, which comprised mainly “group managers” in its then organisational structure (of which she was one). However, the Leadership Group did not endorse that plan. She annexed an extract of the Minutes of the Leadership Group meeting on 2 February 2017 (Annexure A). She said that she recalled that discussions of the item went to the proposed introduction of an Internal Ombudsman Shared Service and that consideration should be given to having child protection complaints going through them rather than having a CPC. Ms Zammit stated that to the best of her recollection, there were no meetings of the CPC on 8 March 2017, 6 June 2017 and 6 September 2017, or on any other dates in 2017 and there was no Chairperson of the CPC in 2017. However, in her capacity as the Croup Manager for Children’s Services, she was officer with prime direct responsibility for child protection. During the hearing, Ms Zammit was called and sworn, she identified her Statement (Ex 3) and affirmed its contents. In cross-examination, the applicant referred Ms Zammit to para 3 of Ex 3 and asked her if the Leadership Groups referred to in that document are the same. She replied – ‘Yes.’ He then asked why there were redactions of the page, and she replied to the effect that she ‘presumed that the redacted parts related to later items on the Agenda’ and that the items would not have been redacted if they related to the issue of child protection. The applicant asked Ms Zammit if she took any notes during that meeting, and she replied ‘No.’ He then asked her if she was aware of any other record of why the CPP was not endorsed at that meeting, and she replied ‘No.’ He then referred her to point 2 of Annexure A to Ex 3 – “Develop/update internal procedures for the management of complaints” and asked what this meant? She replied to the effect that ‘there is a policy with guidelines and procedures that was attached and that she had to review what was in existence and update procedures and policies because three Councils were amalgamated and the new Council required a single response.’ The applicant referred Ms Zammit to page 4 of the GIPA application and asked if Ms Albazouni sent her a copy of it? She replied ‘I don’t recall,’ but in response to further questioning she said that she recalled being asked for any records that were sought under item 2, and that if she had any of those records she would have provided them. She also said that she did not recall there being any communications with the Principal of the School about the applicant.

Decision

Reasons for decision

Section 59(1)(d) of the GIPA Act provides:59 Decision that information already available to applicant(1) An agency can decide that information is already available to an applicant only if the information is—…(d) available to the applicant as the applicant has already been provided with access to the information and the agency has no reason to believe the information is no longer in the applicant’s possession, or … The Council submits that there is no evidence before the Tribunal that the applicant no longer has this information in their possession. I note that the applicant has not disputed that argument. This factor is compelling and significant.Document number 23 The Council submits redactions to this document are justified under s74 of the GIPA Act, as the redacted material does not go to the information requested. Section 74 of the GIPA Act provides:74 Deletion of information from copy of record to be accessedAn 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. In the alternative, the Council argued that the redacted material should not be released because it would undermine the supply of information to Code of Conduct investigations, given that Council’s processes involve information being provided in confidence. Ms Albazouni stated that if people who provide information in confidence thought that the information could later be accessed, they may be less inclined to provide full and honest information which may in turn undermine the investigation as a whole. She relied upon cll 1(d), 1(e), 1(g) and 1(h) of the s 14 Table: para 5 of Ex 2. Section 14 of the GIPA Act provides, relevantly: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.…Table1 Responsible and effective governmentThere 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,…(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).

Ratio Decidendi

Legal Principle Established

The applicant asserts that Dr McIntyre’s medical reports indicate that the Council’s alleged misconduct against him regarding previous GIPA applications has had a detrimental impact upon them. While the applicant does not identify any specific provision of the GIPA Act that this relates to, it appears that they are seeking to invoke s 55, which provides, relevantly: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.…(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.…(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. While the Council has not disputed Dr McIntyre’s evidence, it argues that it is not relevant to the issues that the Tribunal is required to determine in this matter and that it should therefore be given no weight. I reject that submission. I note that while the GP’s reports primarily address matters that are relevant to a complaint under the PPIP Act, rather than the GIPA Act, they provide a possible explanation for some of the applicant’s complaints and grievances against the Council. However, pursuant to s 55(2) of the GIPA Act, the matters reported by the GP are personal factors that can be taken into account as factors in favour of providing the applicant with access to information. The applicant has made complaints regarding the conduct of the hearing on 8 March 2022. I note that these are akin to an allegation that they were denied procedural fairness in conducting their case and the submissions are of a type that may reasonably be expected to be lodged in support of an appeal on that ground. I note that these complaints seek to challenge the Tribunal’s ruling regarding the scope of the current matter. To the extent that the applicant’s complaints are relevant to the determination of the current review, they are rejected. After ruling on the scope of the current review, the Tribunal asked the applicant to focus on matters that were relevant to the matter before it. However, he did do comply with that request and instead complained to the effect that they had prepared case on the basis that they would ventilate all grievances and allegations against the Council and its officers.