Fox v Yass Valley Council

[2024] NSWCATAD 365

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Fox v Yass Valley Council [2024] NSWCATAD 365

Hearing dates:

26 November 2024

Date of orders:

06 December 2024

Decision date:

06 December 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

EA MacIntyre, Senior Member

Decision:

(1) The administratively reviewable decision of the Respondent is set aside.

(2) The decisions of the Respondent to provide the information provided to the Applicant prior to the date of the hearing of this matter are affirmed.

(3) A copy of the site inspection report the subject of these proceedings is to be provided to the Applicant, with no redaction of the membership number contained within it.

(4) The administratively reviewable decision of the Respondent is otherwise affirmed.

Catchwords:

ADMINISTRATIVE LAW - administrative review - government information - access application - enforceable right to access government information - public interest considerations for disclosure - public interest considerations against disclosure - balance -personal information -revealing information

ADMINISTRATIVE LAW - reviewable decision - correct and preferable decision - Civil and Administrative Tribunal

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Cases Cited:

None Cited

Texts Cited:

None Cited

Category:

Principal judgment

Parties:

Paul Fox (Applicant)
Yass Valley Council (Respondent)
Jenny Wales (Joined party)

Representation:

Counsel:
A Hannam (Respondent)

Solicitors:
Self Represented (Applicant)
BAL Lawyers (Respondent)
Tarulli Lane (Joined Party)

File Number(s):

2024/00297191

Publication restriction:

None

REASONS FOR DECISION

1. The applicant in this matter, Mr Paul Fox (“Applicant”) seeks access to certain information from the respondent concerning activity on a property near a property he owns. He applied for information under the Government Information (Public Access) Act 2009 (NSW) (“GIPA Act”). The respondent is Yass Valley Council (“Respondent”). The Applicant seeks review of the decision refusing his access application.

Background

2. The Applicant lives in a town within the Yass Valley Council area.

3. Dogs are kept on a property near where the Applicant lives. The owner of the nearby property is a dog breeder. She is a member of an organisation of dog breeders (“Organisation”).

4. The Applicant made an access application under s 41 of the GIPA Act on 5 February 2024. He sought certain information, including a copy of a site inspection report pertaining to the nearby property where dogs were kept and any documents relating to noise and smell complaints received by the Respondent pertaining to this property since 1980.

5. On 1 March 2024, the Respondent determined the access application by refusal to provide some of the information sought.

6. The Applicant then sought external review of the Respondent’s decision by the Information and Privacy Commissioner (“IPC”). The IPC on 25 June 2024, recommended that the Respondent reconsider its decision.

7. The Applicant commenced these proceedings on 12 August 2024, seeking review by the Civil and Administrative Tribunal (“Tribunal”) of the Respondent’s decision to refuse access to the information he sought.

8. On 19 September 2024, the Respondent reconsidered its decision and made a new decision pursuant to the IPC's recommendation. The new decision made by the Respondent was to grant the Applicant access to information in partly redacted form. This is the decision under review in these proceedings.

9. The documents the Respondent released included a scanned copy of a handwritten site inspection report. The information that had been redacted from that report was redacted on the basis that it was believed to be “personal information.” The redacted information included a phone number, the name of the Organisation and a membership number issued by the Organisation.

10. It appears that the scanned site inspection report did not include parts of the original site inspection report including relevantly margins. The Applicant sought a version of the site inspection report that included the margins. The evidence was that the original handwritten report had not been kept and only the scanned site inspection report was available.

11. Before and during the hearing of the matter, the scope of the dispute between the Applicant and the Respondent had been reduced to the question of whether or not the membership number in question should be released to the Applicant.

12. The Respondent, at the hearing of the matter, changed its previous position. It submitted that the correct and preferable decision was to vary the administratively reviewable decision under review, by providing the Applicant with the membership number he sought, through the provision of an unredacted copy of the site inspection report in issue and otherwise affirm the decision under review.

13. On the day of the hearing, the owner and occupier of the property in which the dogs in question were kept, applied to be joined to the proceedings as a party. The Applicant and the Respondent consented. The Tribunal made orders pursuant to s 44 of the Civil and Administrative Tribunal Act 2013 (NSW) joining the owner occupier as a party.

14. Her evidence was that she had bred dogs for 54 years and had bred “many a champion” and was well known in the dog breeding community of Australia. She did not want the membership number in issue provided to the Applicant.

Applicant’s right to information

15. The GIPA Act gives members of the public an enforceable right to access government information, subject to the provisions of that Act. That right is given for the stated object of maintaining and advancing “a system of responsible and representative democratic Government that is open, accountable, fair and effective” (s 3(1)(b) of the GIPA Act).

16. A person who makes an access application for government information has a “legally enforceable right to be provided with access to the information” (s 9(1) of the GIPA Act). Access applications are to be dealt with in accordance with Part 4 of the GIPA Act.

17. An agency may determine an access application under the GIPA Act in a number of ways, as relevantly set out in s 58(1). It may decide to refuse to provide access to information because there is an overriding public interest against disclosure of the information (s 58(1)(d)).

18. There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5 of the GIPA Act). There is a general public interest in favour of the disclosure of government information (s 12(1) of the GIPA Act). However, the right to access will not be available where “there is an overriding public interest against disclosure of the information” (s 9 of the GIPA Act).

19. There is an overriding public interest against disclosure of government information for the purposes of the GIPA 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 (s 13 of the GIPA Act).

20. The power of the Tribunal to review a decision arises where a person is aggrieved by a “reviewable decision” of an agency. Such a person may apply to the Tribunal for administrative review under the Administrative Decisions Review Act 1997 (NSW) (“Administration Act”) of that decision (s 100 of the GIPA Act).

21. What are “reviewable decisions” of an “agency” is set out in s 80 of the GIPA Act. They include a decision to refuse to provide access to information in response to an access application (s 80(d) of the GIPA Act).

22. There is no dispute that the Respondent is an “agency” within the meaning of the GIPA Act.

23. An agency has, therefore, made a “reviewable decision” within s 80 of the GIPA Act, the agency being the Respondent and the “reviewable decision” being a decision to refuse to provide access to information.

24. The Tribunal under s 63 of the Administration Act is to determine the matter, based on the material before it, including any relevant factual material and any applicable written or unwritten law. It must decide what is the correct and preferable decision. It may decide to affirm, vary or set aside the decision and make a substitute decision, or set aside the decision and remit the matter to the agency in accordance with any directions or recommendations of the Tribunal.

25. The provisions of the GIPA Act referred to above apply where the Applicant has made a valid “access application” seeking “government information”. It is not in dispute that the Applicant made an “access application” under Part 4 of the GIPA Act and that the information requested was “government information” (see definition of these terms in s 4 of the GIPA Act). In these circumstances, that the Applicant had made a valid access application was not disputed.

26. The Respondent has the onus of establishing that the decision it has made is justified (s 105(1) of the GIPA Act).

Consideration

27. The item of information in dispute had been redacted from the Respondent’s site inspection report on the grounds that they had believed that it was “personal information”. That information in dispute was the membership number belonging to the joined party referable to her membership of the Organisation. The Respondent was now willing to provide it. The joined party, however, did not agree with the provision of the information.

28. The Respondent identified the following public interest consideration against disclosure of the information in dispute, set out in s14 of the GIPA Act, that they said was relevant.

“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,

……”

29. What is “personal information” is defined in clause 4 of Schedule 4 of the GIPA Act in the following terms:

“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 nonpersonal 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….”

30. I accept that the membership number belonging to the joined party is “personal information”. On the evidence, it is a unique identifying number appertaining to the joined party and to no other person. As such, any person who had the membership number would be able to identify the holder of the membership number.

31. The public interest consideration against disclosure in item 3(a) of the Table in s 14 of the GIPA Act has application if disclosure of the unredacted site inspection report could reasonably be expected to “reveal” the relevant personal information. What is meant by “revealing” information is set out in Schedule 4 of the GIPA Act to mean “to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)”. The initial question is whether disclosure of the membership number in issue to the Applicant in the unredacted site inspection report will have this effect.

32. The Respondent’s evidence was that the joined party's membership of the Organisation was information that was already in the public domain and is readily searchable online. There was, however, no evidence before the Tribunal of the membership number itself having been publicly disclosed as a matter of fact. In these circumstances, I find that disclosure would “reveal” the personal information in issue, namely the joined party’s membership number.

33. The Respondent's submission was that, nevertheless, the public interest considerations against disclosure of the membership number did not outweigh those in favour of disclosure. The Respondent relied in the regulations of the Organisation in support of its submission. These regulations were in evidence. They provide for members to include their membership number in any advertisement placed in any form of media, or on any sign, that advertised a dog or puppy for sale. Additionally, the Organisation’s website allowed members of the public to confirm whether a person was a member by entering their membership number and other personal information into a portal on the Organisation’s website. The purpose of this access was to allow members of the public to confirm that a breeder who claimed to be a member of the Organisation was in fact a member of the Organisation.

34. In the Respondent’s submission, the membership number was, in these circumstances, intended to be publicly disclosed. Therefore, the Respondent’s submission was that the public interest consideration against disclosure due to the information being personal information, was not a strong consideration.

35. The joined party, however, objected to disclosure of the membership number to the Applicant. She submitted that the membership number is not generic information and was a unique identifier. Further, it was a gateway to sensitive information concerning the joined party. The joined party also raised concerns as to the risk of identity theft and fraud. She raised concerns as to violations of privacy protection principles.

36. The joined party further submitted that there had been no sales of dogs and there were no sales of dogs currently in progress. The joined party submitted that the Applicant had no legitimate use for the Respondent’s membership number. The joined party gave evidence of a history of disputation with the Applicant.

37. The Applicant, for his part, indicated that he wished to have access to the joined party’s membership number on account of what he believed to be unreliability of information otherwise provided on the Organisation’s website. He indicated that his interest in obtaining the number was to authenticate the details of dogs on the property near to his property.

38. In my opinion, the public interest considerations for disclosure of the membership number in question outweigh those against disclosure. I place some weight on the consideration against the disclosure of personal information. However, I place greater weight on the public interest considerations in favour of disclosure. They include the interest of members of the public in accessing from Local Government information concerning activities in their neighbourhoods that affect them or may affect them.

39. The scheme of the GIPA Act requires a presumption in favour of disclosure. I find nothing in the evidence or submissions to displace this presumption.

40. The joined party expressed concerns about the risk of identity theft and fraud should the membership number in question be disclosed. There was no evidence given of instances of identity theft or fraud of the kinds described by the joined party, arising out of the use by the public of membership numbers. However, in circumstances where the membership number is intended to be used by members of the public by the organisation that issues it, I am unable to place significant weight on these matters of concern raised by the joined party.

41. For the reasons set out above, I attach significant weight to the public interest considerations in favour of disclosure of information and less weight to the considerations against disclosure. Consequently, I am in agreement with the submissions made by the Respondent that the correct and preferable decision is to make disclosure of the membership number by production to the Applicant of a version of the site inspection report that shows the membership number in issue.

Conclusions

42. The conclusion of the Tribunal is that the public interest considerations in favour of disclosure of the membership number outweigh those against. The telephone number that has been redacted, however, should remain redacted in the site inspection report. As the joined party’s membership of the Organisation can be ascertained from the public domain, the name of the Organisation should not be redacted.

Orders

1. The administratively reviewable decision of the Respondent is set aside.

2. The decisions of the Respondent to provide the information provided to the Applicant prior to the date of the hearing of this matter are affirmed.

3. A copy of the site inspection report the subject of these proceedings is to be provided to the Applicant, with no redaction of the membership number contained within it.

4. The administratively reviewable decision of the Respondent is otherwise affirmed.

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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: 06 December 2024