Gazecki v Mid Coast Council

[2025] NSWCATAD 275

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Gazecki v Mid Coast Council [2025] NSWCATAD 275

Hearing dates:

28 August 2025

Date of orders:

12 November 2025

Decision date:

12 November 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

R Block, Senior Member

Decision:

(1) Pursuant to s 64 of the CAT Act, the Tribunal orders that no record of the confidential session, nor of the Confidential Bundle, is to be disclosed or released to either the Applicant or to the public.

(2) Noting that some of the material in Item 1 was released to the Applicant prior to the hearing, the decision under review 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 - legal professional privilege

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013 (NSW)

Evidence Act 1995

Government Information (Public Access) Act 2009

Privacy and Personal Information Protection Act 1998 (NSW)

Cases Cited:

AEZ v Commissioner of Police, NSW Police Force [2013] NSWADT 90

Archer Capital 4A Pty Ltd as trustee for the Archer Capital Trust 4A v Sage Group PLS (No 2) [2013]

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

Bailey v Commissioner of Police (NSW) [2023] NSWCATAP 103

Commissioner of Police, New South Wales Police Force v Camilleri [2013] NSWADT 80

Commissioner of Policy, NSW Police Force v Barrett [2015] NSWCATAP 68

Douglas v Commissioner of Police (NSW) [2022] NSWCATAD 152

Fahey v NSW Officer of Liquor, Gaming and Racing [2012] NSWADT 181

Leech v Sydney Water Corporation [2010] NSWADT 298

Luxford v Department of Education and Communities [2016] NSWCATAD 118

Snape v Commissioner of Police No 2 [2022] NSWCATAP 244

Taylor v Destination NSW [2017] NSWCATAD 272

Texts Cited:

None cited

Category:

Principal judgment

Parties:

John Gazecki (Applicant)
Mid Coast Council (Respondent)

Representation:

Applicant (Self-Represented)
Local Government Legal (Respondent)

File Number(s):

2024/00263488

Publication restriction:

Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 the material filed by the Respondent on a confidential basis, the evidence given in private before the Tribunal and the record of that part of the proceedings conducted in private pursuant to s 49 is not to be released to either the Applicant or to the public.

REASONS FOR DECISION

1. Mr John Gazecki (the Applicant) seeks access to information held by Mid Coast Council (the Respondent) in relation to his interactions and dispute with the Respondent regarding the dams on his rural property located in the mid north coast region (the Property).

2. This matter has a lengthy history. On 15 December 2023 and 2 May 2024 the Applicant made requests to the Respondent seeking access to information per the Government Information (Public Access) Act 2009 (GIPA Act). The Applicant also filed a Notice to Produce on 17 January 2025 in relation to proceedings on foot in the Land and Environment Court (LEC) between the parties, such notice being subsequently withdrawn on 24 January 2025.

3. There have been various decisions made by the Respondent in response to the access request. The Applicant sought administrative review of the first decision in which the Respondent refused to deal with the application pursuant to ss 60(1)(b) and (e) of the GIPA Act. Other decisions have been made while the matter has been before the Tribunal, including a new decision following remittal of the matter by the Tribunal to the Respondent for reconsideration. During this process, the Applicant has advised the Respondent that he does not press certain items contained in his access request. As a result of the various decisions made by the Respondent, the Applicant has been provided with access to some information but has been refused access to other information.

4. The most recent decision of the Respondent is the one dated 6 May 2025, and that is the decision, which is the subject of this review, as modified by the Applicant’s decision not to press access to some items.

Jurisdiction

5. The Tribunal has jurisdiction to review an administratively reviewable decision pursuant to s 55 of the Administrative Decisions Review Act 1997 (the ADR Act). The decision to refuse to deal with an access application is a reviewable decision by an agency in accordance with s 80(c) of the GIPA Act. The Tribunal has jurisdiction to determine this application pursuant to s 100 of the GIPA Act.

Issue for determination

6. The issue in these proceedings is whether the Respondent’s decision of 6 May 2025 (the Decision) was correct and preferable and should be affirmed in relation to the remaining 16 items (of the original 39 items) pressed by the Applicant.

7. The information which continued to be sought by the Applicant as at the date of the hearing in relation to this application comprised the following items:

1. Copies of any digital carrier device messages, texts, notes, file-notes, internal memorandum, emails (internal and external) and letters (including any drafts), regarding the Property (known as Item 1);

2. Copy of any video, film or digital footage taken of any interview or discussion, with any person, in relation to the Property, between 1 October 2021 and the date of the schedule (known as Item 6);

3. Copy of any invoice regarding costs Council has incurred in relation to the Property, between 1 October 2021 and the date of the schedule, If privilege is claimed regarding any such invoices, then a total of all invoices can be provided instead (known as Item 8);

4. Copy of any other document (including any drafts) regarding the Property between 1 October 2021 and the date of the schedule (known as Item 9);

5. Copy of any Notice of Intention to issue Orders, issued by Council pursuant to the Environmental Planning and Assessment Act 1979 (Notice of Intention) between 3 May 2017 and the date of the schedule, regarding any dam or earthworks in relation to any other Myall River properties (known as Item 15);

6. Copy of any Notice of Intention issued between 3 May 2017 and the date of the schedule regarding any dam in relation to the region administered by Council (known as Item 16);

7. Copy of any Orders issued by Council in relation to dams, between 3 May 2017 and the date of the schedule, pursuant to the Environmental and Planning Assessment Act 1979 (Orders) within the region administered by Council (known as Item 18);

8. Copy of any Development Applications relating to dams, lodged with Council, between 3 May 2017 and the date of the schedule, within the region administered by Council (known as Item 21);

9. Copy of any video footage, digital carrier device messages, texts, notes, file-notes, internal memorandum, emails (internal and external), letters and research material (including any drafts, clippings or internet content saved or collected) regarding John Gazecki between 1 October 2021 and the date of the schedule (known as Items 29-30);

10. Copy of any complaint made against a named Senior Compliance Officer, employed by Council (de-identified in this decision as AF) between 3 May 2017 and the date of the schedule (known as Item 31);

11. A copy of AF’s phone records, between 1 October 2021 and the date of the schedule showing the time of call, whether the call was made or received, and duration of each such call pertaining the numbers and persons (de-identified in this decision as ND, JD, SF) (known as Item 34);

12. A copy of AF’s browsing history featuring searches for John Gazecki or Janek Gazecki pertaining to any electronic work device, including but not limited to mobile phone, computer or iPad for the period 1 October 2021 to 15 December 2023 (known as Item 36);

13. The browsing history pertaining to any electronic work device including but not limited to mobile phone, computer or iPad of any Council employee carrying out searches on behalf of or for AF regarding John Gazecki or Janek Gazecki (known as Item 37);

14. A copy of the leave application lodged by AF relating to any months between November 2023 to January 2024 inclusive (known as Item 38); and

15. A copy of any document which records the period of leave taken by AF which includes any months between November 2023 and January 2024 inclusive (known as Item 39).

8. Through the course of the hearing, the parties agreed that the Respondent can provide copies of invoices, redacted except with regard to the quantum of such invoices. Accordingly, Item 8 (detailed in [7](c)) is considered to be settled.

9. Through the course of the hearing, the Applicant accepted that the Respondent’s system does not have the requisite automation or functionality to conduct targeted searches of the nature sought per Items 15, 16, 18 and 21 (detailed at [7] (e)-(h) herein). Accordingly, these items are considered to be settled.

Material before the Tribunal

10. The material before the Tribunal included submissions, affidavits and correspondence by both parties.

11. The Applicant submitted a bundle of documents which included written submissions, grounds for review, photographs and selected correspondence between the parties.

12. The Respondent submitted a bundle of documents which included their written submissions, and a number of sworn or affirmed affidavits, including two statements dated 16 August 2024 and 23 June 2025 affirmed by Ms K Duggan who is one of the Respondent’s Governance Coordinators, and two statements dated 2 September 2024 and 24 June 2025 affirmed by Mr B Newman, who is the Respondent’s other Governance Coordinator.

13. The Information Commissioner provided submissions dated 11 December 2024 but did not appear at the hearing.

14. Both parties made oral submissions at the hearing, and one witness, Ms Duggan, gave evidence and was cross-examined by the Applicant.

15. Pursuant to s 49 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), a confidential session was held in the absence of the Applicant and the public. The confidential session gave the Tribunal an opportunity to examine the material provided in confidence by the Respondent (the Confidential Bundle), in the presence of the Respondent. During that confidential session the Respondent provided the Tribunal with an unredacted copy of the identified documents and each of the documents was considered by reference to the table to s 14 of the GIPA Act.

16. The Applicant submitted his expectation that the Tribunal should utilise the confidential session to assess and determine whether the material included any statements by any third party informant of the Respondent, and if so, whether any such statements were ‘fantastical’ or ‘driven by malice’. The Tribunal notes that the purpose of the confidential session was solely to ascertain whether disclosure was properly refused pursuant to the applicable law.

Legislative Framework

17. Section 105 of the GIPA Act places the onus on the Respondent to satisfy the Tribunal that its Decision was justified. The function of the Tribunal is to hear the matter de novo and to reach a view itself, unrestrained by the view taken by the primary decision-maker.

18. The objects of the GIPA Act as set out in s 3 are to open government to the public. This is done by authorising and encouraging the proactive release of information by agencies and by giving members of the public an enforceable right to access government information. Access to government information is to be restricted only when there is an overriding public interest against disclosure.

19. It was not disputed that the information the subject of this application is government information which is held by an agency as per s 4(1) of the GIPA Act.

20. Section 60 of the GIPA Act sets out the circumstances in which an agency can refuse to deal with an application for access and provides:

(1)  An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason)—

(a)  dealing with the application would require an unreasonable and substantial diversion of the agency’s resources,

(b)  the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision on the application…

(e) the agency reasonably believes the applicant, or a person acting in concert with the applicant, is – (i) a party to current proceedings before a court; and (ii) able to apply to that court for the information…

(3A) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency’s resources, the agency may, without limitation, take into account the following considerations—

(a)  the estimated volume of information involved in the request,

(b)  the agency’s size and resources,

(c)  the decision period under section 57.

(3B)  Any consideration under subsection (3A) must, on balance, outweigh—

(a)  the general public interest in favour of the disclosure of government information, and

(b)  the demonstrable importance of the information to the applicant, including whether the information—

(i)  is personal information that relates to the applicant, or

(ii)  could assist the applicant in exercising any rights under any Act or law.

(4)  Before refusing to deal with an access application because dealing with it would require an unreasonable and substantial diversion of an agency’s resources, the agency must give the applicant a reasonable opportunity to amend the application. The period within which the application is required to be decided stops running while the applicant is being given an opportunity to amend the application.

21. There is a presumption in favour of the disclosure of government information unless there is an “overriding public interest against disclosure” as per s 5 of the GIPA Act. There are two situations in which there will be an overriding public interest against disclosure. First, under s 14(1) of the GIPA Act, 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. Once the information is established to be of a kind specified in Schedule 1, no further inquiry is made.

22. In this application the Respondent maintains that one category of Schedule 1 information is relevant: information subject to legal professional privilege.

23. In the second situation, there will be an overriding public interest against disclosure if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure as per s 13 of the GIPA Act.

24. Section 12 of the GIPA Act provides that there is a general public interest in favour of disclosure of government information and the section sets out a non-exhaustive list of some examples of such considerations.

25. The public interest considerations against disclosure are set out in a Table in s 14 of the GIPA Act. Several are relevant to this application and are discussed further below.

26. In the second situation, the decision-maker’s task is to first determine whether, in respect of the information sought, there are public interest considerations against disclosure and then to balance those considerations against those public interest considerations in favour of disclosure.

27. In Bailey v Commissioner of Police (NSW) [2023] NSWCATAP 103 (Bailey), it was found that a failure by the Tribunal to make express findings on any of the individual matters put forward by an appellant in support of disclosure, and the failure to attribute them weight, could render the Tribunal’s reasons inadequate.

28. I will deal in turn with each basis upon which the Respondent submits access to the information sought should be refused.

Consideration of section 60(1)(a) matters

29. One of the provisions otherwise relied upon by the Respondent, in making their Decision, was their right to refuse to deal with an access application pursuant to s 60(1)(a) on the basis that certain of the requests would require an unreasonable and substantial diversion of resources.

30. The Tribunal must identify and take into account any matters falling within the scope of s 60(3A) of the GIPA Act and then determine if, on balance, they outweigh the matters falling within s 60(3B) of the GIPA Act. As per Else v Ministry of Health [2021] NSW CATAD 381 at [54] “It is only where matters in s 60(3A) outweigh those in s60(3B) that an agency can refuse to deal with an access application on the basis that it would require an unreasonable and substantial diversion of an agency’s resources.”

31. The Appeal Panel in Commissioner ofPolice v Danis [2017] NSWCATAP 7 noted at [41] that:

“Section 60 is clearly designed to give agencies some flexibility in the administration and processing of access-to-information requests. Each of the grounds has at its core the sensible and efficient deployment of agency resources.”

32. The information sought by the Applicant is personal in nature, and he has not offered any compelling argument that there is any public interest in the disclosure of this particular information accordingly.

33. Section 60(3B)(b) of the Act provides that the information sought must be of demonstrable importance to the Applicant. The Applicant has sought the information in the belief that such information will evidence breaches of procedural fairness in the Respondent’s treatment of him, and/or expose the Respondent’s improper or criminal conduct.

34. The Applicant has not adduced any specific or substantial evidence indicating any misconduct or corruption on the part of officers of the Respondent. As per Ruyters at [54], “it is necessary for an applicant to put forward some material to indicate the importance of the information sought rather than engaging in mere speculation or conjecture”.

35. On the material before the Tribunal I am not satisfied the Applicant has sufficiently demonstrated any basis on which the information would assist him in exercising any particular rights under any Act or law, particularly given the separate LEC proceedings which should appropriately address this aspect.

Consideration of section 60(1)(b) and (e) matters

36. Another of the provisions relied upon by the Respondent, in making their Decision, was their right to refuse to deal with an access application pursuant to s 60(1)(b) of the GIPA Act, on the basis that they had already decided a previous application for substantially the same information made by the Applicant and there were no reasonable grounds for believing that the Respondent would make a different decision.

37. Further, as per s 60 (1)(e), an agency can refuse to deal with an access application if it reasonably believes that an applicant, or a person acting in concert with an applicant, is (i) a party to current proceedings before a court, and (ii) able to apply to that court for information.

38. It is a matter of fact that the Applicant and/or his wife are party to LEC proceedings, three of which have since been determined and one of which was scheduled for hearing in October 2025.

39. The Respondent has submitted a document detailing the similarities between the material sought by the Applicant in their access application and that sought in their Notice to Produce issued on 17 January 2025 in relation to their LEC proceedings. Whilst this Notice was subsequently withdrawn, the issue and content of the Notice, together with the Applicant’s stated intention to reissue such notice at a future date, do prima facie support a refusal to deal based on s 60(1)(e) of the GIPA Act.

40. However, this matter was not pressed at the hearing, and the Respondent rather addressed each of the remaining items sought by the Applicant in their submissions, detailing why each of those items pressed by the Applicant in this application could not otherwise be provided.

36. The Tribunal has similarly elected to consider each of the items requested, and make a decision on that basis in the interests of clarity, rather than make a determination in respect of whether ss 60(1)(b) and/or (e) of the GIPA Act apply.

Applicant’s case

42. The Applicant submits the correct and preferable decision was for the Respondent to provide the material sought. His grounds for this review include the following:

1. That the information may provide evidence that he and his wife have been unfairly targeted in relation to their dealings with the Respondent;

2. That the information may shed light on the Respondent’s procedures and whether the Respondent has abused their power and is therefore in the public interest pursuant to s 12(2)(e) of the GIPA Act;

3. That he was not provided with sufficient detail except for the descriptor “Legal Matter” to enable him to determine whether the claim of legal professional privilege was valid or not;

4. That records which the Applicant presumes relate to his neighbour contain false and defamatory assertions, and have unfairly tainted the Applicant’s reputation, and it is in the public interest that the identity of false complainants be disclosed, and that any fears of harassment or intimidation are baseless;

5. That the Respondent has failed to carry out reasonable searches, and has often failed to carry out even a cursory search.

43. At the hearing, the Applicant acknowledged that the requests are driven by his belief that the Respondent and AF, in particular, have unfairly and punitively targeted he and his wife in relation to the dams on the Property.

44. The Applicant acknowledged that obtaining the documents served his own interests, however submitted that there is an important public interest disclosure imperative in relation to how the Respondent and its employees conduct themselves.

Respondent’s case

45. The Respondent submitted that they made the correct and preferable decision in the circumstances, and that their Decision should be affirmed by the Tribunal, for the reasons briefly outlined as follows:

1. The requests were substantially the same as those sought by the Applicant in two previous applications and hence the Respondent refused to deal with those requests pursuant to s 60(1)(b) of the GIPA Act, although this matter was not pressed further during the hearing.

2. Many of the documents were subject to clear legal professional privilege.

3. Release of certain material was subject to the public interest exclusion in s 14 Table cl 3(a) and must be refused as it would reveal an individual’s personal information, and may also expose that person to harm, harassment or intimidation as per s 14 Table cl 3(f).

4. Much of the material sought concerns the proceedings already on foot in the LEC, or otherwise contemplated, by the Applicant and/or (in concert with) his wife, and could, and should, be properly sought through an application to the court. This submission was not further pressed at the hearing.

5. Due to the inherent limitations of the record storage system of the Respondent, much of the information sought could not be readily identified without reviewing an inordinate amount of documents.

6. Some of the material sought would further disclose proprietary and confidential internal processes regarding the Respondent’s approach to enforcement action, as per the exclusion in s 14 Table cl (1)(f). Similarly, material provided by informants would prejudice enforcement of the law, pursuant to s 14 Table cl (2)(b).

7. The request was properly considered in accordance with the applicable principles of the GIPA Act, and opportunity to revise the scope of the application was properly afforded to the Applicant.

46. The Respondent submitted that they complied with the full suite of their obligations pursuant to the GIPA Act, and that the refusal to provide the remaining items sought by the Applicant, was based on clear and legitimate exclusions pursuant to the GIPA Act.

47. The Respondent called Ms Duggan, one of the Respondent’s Governance Coordinators to give oral evidence under oath, who spoke to the reasons for refusing the remaining items sought by the Applicant.

48. Ms Duggan gave evidence that she obtained a report from Telstra but there was no functionality to search for text messages relating to the Property. She further submitted that she did not ask individual employees if they had ever texted about the Property of the Applicant.

49. Ms Duggan submitted that electronic records are not held in such a way as to enable general category searches such as ‘unlawful dams’ to be undertaken, and hence the searches sought by the Applicant would trigger hundreds or thousands of results, and therefore have no utility.

50. The Applicant contended that the Respondent’s system should be able to conduct targeted searches of the nature sought, but accepted Ms Duggan’s testimony that it did not have this capability. Accordingly, the Applicant accepted that Items 15, 16, 18 and 21 (detailed at [7] (e)-(h) herein) cannot be provided.

51. The Tribunal accepts Ms Duggan’s evidence, which was considered and based on her expertise and experience.

Schedule 1 Matters - Items 1 and 9 (detailed in [7](a) and (d) herein)

52. Section 14(1) of the GIPA Act provides that Schedule 1 therein details a conclusive presumption that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.

53. The Respondent has since waived privilege on a number of documents and released those to the Applicant, and has submitted the remainder in confidence, to the Tribunal.

54. The Respondent claims that the bulk of the remainder of those documents provided to the Tribunal in a Confidential Bundle are subject to legal professional privilege. Clause 5 of Schedule 1 to the GIPA Act provides:

1. It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege.

2. If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause.

3. A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5.

55. The Tribunal has considered cl 5 of Schedule 1 in numerous matters. Client legal privilege protects confidential communications between a lawyer and a client made for the dominant purpose of the lawyer providing legal advice or professional legal services to the client or for use in current or anticipated litigation.

56. In order for client legal privilege to attach to information, each element of client legal privilege must be satisfied. The essential elements of client legal privilege are:

1. the existence of a client and lawyer relationship; and

2. the confidential nature of the communication or document; and

3. the communication or document was brought into existence for the dominant purpose of either:

4. enabling the client to obtain, or the lawyer to give legal advice or provide legal services, or

5. for use in existing or anticipated litigation.

57. These considerations are embodied within sections 118 and 119 of the Evidence Act 1995.

58. The Respondent submitted that the majority of the relevant documents were correspondence between the Respondent and the external law practice they instructed, for the dominant purpose of providing legal advice in relation to the Respondent’s legal position regarding their enforcement action and the LEC proceedings between the parties.

59. In Archer Capital 4A Pty Ltd as trustee for the Archer Capital Trust 4A v Sage Group PLS (No 2) [2013] FCA 1098 at [10], Wigney J stated that “A communication or document will be privileged if it was made or brought into existence for the dominant purpose of obtaining or providing legal advice (the advice limb), or to conduct or aid in the conduct of litigation in reasonable prospect (the litigation limb).”

60. At [12] he continues that “The concept of legal advice in the context of the advice limb is fairly broad. It goes beyond formal advice as to the law, and extends to professional advice as to what a party should prudently or sensibly do in a relevant legal context…”.

61. Based on my perusal of the documents over which privilege has been claimed and the evidence provided by the Respondent, I am satisfied that the relevant documents contained in Items 1 and 9 comprise confidential communications between the Respondent and their lawyers for the dominant purpose of seeking or receiving legal advice.

62. I am therefore satisfied that the relevant documents provided in the Confidential Bundle per Items 1 and 9 are subject to legal professional privilege.

Public interest considerations for and against disclosure

63. In relation to the remaining pressed, and unresolved, items, the Respondent has claimed there are public interest considerations against disclosure. In deciding whether access should be granted to these documents, the task of the Tribunal is first, to identify the public interest considerations in favour of disclosure. Secondly, to identify the public interest considerations against disclosure. Thirdly, I must determine the weight of the public interest considerations in favour of disclosure and of those against disclosure in order to determine where the balance between those interests lies.

64. The Respondent submits that (i) access to Item 6 (detailed in [7](b) herein) should be refused on the basis that disclosure of the material will result in the disclosure of material provided in confidence to an agency as per Table 14 cl 1(g); (ii) access to Items 29-30 and 36-37 (detailed at [7](i) (l) and (m) herein) should be refused on the basis that disclosure of the information could reasonably be expected to prejudice the effective exercise of an agency’s functions as per Table 14 cl (1)(f); and (iii) access to Items 31, 34, 38 and 39 (detailed at [7](j),(k), (n) and (o) herein) should be refused on the basis that disclosure of the material could be reasonably expected to disclose an individual’s personal information as per Table 14 cl (3)(a).

65. Section 12 of the GIPA Act sets out the general presumption in favour of disclosure of government information and lists examples of public interest considerations that favour disclosure. There are several considerations in favour of disclosure:

1. Disclosure of the information could reasonably be expected to promote the discussion of public affairs on an issue of public importance and enhance the Government’s accountability;

2. Disclosure of the information could reasonably be expected to contribute to positive and informed debate on issues of public interest;

3. Disclosure of the information could reasonably be expected to ensure the effective oversight of a resource owned by the State and public finds;

4. Disclosure of the information could reasonably be expected to inform the public about the management of natural resources of significance to the economy and the environment; and

5. Disclosure of the information could reasonably be expected to inform the public about the operation of agencies.

66. The considerations against disclosure set out in the table to s 14 of the GIPA Act and the examples of considerations in favour of disclosure in s 12 have the requirement that disclosure of the information could reasonably be expected to have the nominated effect.

67. The words “could reasonably be expected to” are to be given their ordinary meaning (Attorney-General’s Department v Cockcroft (1986) 10 FCR 180). In that case, 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”.

68. In Leech v Sydney Water Corporation [2010] NSWADT 298 the Tribunal referred to a number of cases which had considered the term “could reasonably be expected to” and stated at [25] “The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIA.”

69. The public interest considerations against disclosure require an objective assessment as to whether the claimed effects could be expected to arise.

Consideration and findings in respect of Item 1 sub-items 1.25, 1.48 and 1.53 ([7](a) herein] and Item 6 ([7](b) herein)

70. The Respondent submits that access to the material comprising the Item 1 sub-items reviewed in the Confidential Bundle by the Tribunal, and those in Item 6 should be refused on the basis that disclosure of the information could reasonably be expected to result in the disclosure of information provided in confidence as per Table 14 cl (1)(g) and could reasonably be expected to reveal an individual’s personal information, or expose a person to a risk of harm or of serious harassment or serious intimidation as per Table 14 cl (3)(a) and (f).

71. In Commissioner of Police, New South Wales Police Force v Camilleri [2013] NSWADT 80, the Appeal Panel stated that the question as to whether information is “confidential information” is to “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”. The inquiry “should focus on the point of receipt, and the administrative standards and community understandings which surround it”.

72. In the context of cl 1(d) the Tribunal has previously stated that, in determining the question of whether the information in issue is confidential, a number of principles apply (Luxford v Department of Education and Communities [2016] NSWCATAD 118 (Luxford).

73. Those principles are also applicable to s 14 Table cl 1(g) and are as follows: 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) - (a) reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant, (b) prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law, (c) increase the likelihood of, or prejudice the prevention of, preparedness against, response to, or recovery from, a public emergency (including any natural disaster, major accident, civil disturbance or act of terrorism), (d) endanger, or prejudice any system or procedure for protecting, the life, health or safety of any person.

74. Per Luxford at [70], “(i) the confidential quality of communications is a question of fact”; (ii) To establish its confidential quality, information must have been supplied under an express or implied pledge of confidentiality; (iii) The confidential quality of the information may be inferred from the nature of the relationship between the informer and person informed; and (iv) The confidential quality of the information must be determined in the light of all of the circumstances of the particular case.”

75. The Applicant is seeking a copy of a video interview and correspondence conducted with a third party. This material was provided to the Tribunal as part of the Confidential Bundle for consideration of this access request.

76. The Applicant contends that he knows the third party’s identity and contact details already, and has never harassed or intimidated such person. However, the Applicant further submitted that if the material contained what he considered to be false or defamatory statements, he would pursue his legal rights against that third party.

77. The Applicant submits that it is in the public’s interest to disclose the identity of a person who makes false complaints, and that he is a victim of such. In Fahey v NSW Officer of Liquor, Gaming and Racing [2012] NSWADT 181 at [30] it is noted that “there is a public interest in disclosing the identity of persons who make false complaints. Careful distinction should be made between allegations which, while based on genuinely-held beliefs are found to be erroneous and allegations which are malicious or which are made with disregard to basic facts.”

78. There is nothing in the material provided by the Applicant to support a finding that the third party has made intentionally false complaints or malicious allegations. The Applicant has a significant litigation history and contentious relationship with a neighbour he has therefore presumed is the relevant third party, but this does not constitute evidence in support of overriding the presumption against disclosure. Further, the Applicant acknowledges in his written submissions that the individual is an informant rather than a complainant.

79. The Respondent submits that the third party informant is subject to a real threat of harassment and intimidation should their identity and statements be revealed to the Applicant. In AEZ v Commissioner of Police, NSW Police Force [2013] NSWADT 90 at [85] the Tribunal held that “harm should be confined to a real and substantial detrimental effect on a person, rather than their business interests…A detrimental effect may be to a person’s physical, psychological or emotional wellbeing.” In [89], the Tribunal posits in relation to a definition of harassment, that “the disclosure would expose a person to serious harassment, the assessment of the impact of the conduct on the individual concerned is an objective one…”.

80. Based on the material and submissions provided by the parties, I do not find that there is a genuine risk of harm or serious harassment or intimidation, on the objective application of those concepts.

81. Section 18 of the Privacy and Personal Information Protection Act 1998 (NSW) (PIPA Act) sets out the limits on the disclosure of personal information by a public sector agency. Notably s 18(1)(a) prohibits such disclosure unless 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 the individual concerned would object to the disclosure.

82. The Applicant’s fervent belief that he already knows the identity of the third party does not, in and of itself, prove the truth of that statement.

83. The relevant third party has advised the Respondent that they do not wish for their identity to be revealed to the Applicant, nor the information they have provided. In the absence of any compelling reason submitted by the Applicant, beyond their admission that they may want to sue that individual, the applicable law within the PPIA Act and the GIPA Act compel a finding that the Applicant cannot be provided with that information, where the individual has refused to provide the necessary consent.

84. On the material provided, I further find that the information provided by the third party was made as an informant, and was intended to be made to, and held by, the Respondent in confidence. In his written submissions, the Applicant asserts that he is already quite familiar with the (assumed) third party’s ‘adverse opinions and several more variations of same won’t reveal anything new’. This suggests that the Applicant is not really seeking or expecting new information to be gleaned from this access request, so much as potential evidence for a defamation lawsuit.

70. As per Snape v Commissioner of Police No 2 [2022] NSWCATAP 244 (Snape), the Tribunal must balance the public interest disclosure imperative established per s 13 of the Act, against any applicable s 14 Table matters, and as per Taylor v Destination NSW [2017] NSWCATAD 272 (Taylor) at [17], the balance is always weighted in favour of disclosure.

71. I accept the evidence that the information provided by the third party was provided on a confidential basis as an informant, and that they have expressly withheld their consent to the provision of access to the Applicant regarding their identity and the information they have provided to the Respondent.

72. On balance, therefore, I am satisfied that the public interest disclosure imperative does not outweigh the consideration against disclosure in respect of the information which was provided in confidence.

73. The Respondent’s decision in relation to the identified sub-items of Item 1 and Item 6 is affirmed.

Consideration and findings in respect of Items 1 (text messages) and Item 9 (additional searches) [detailed at paragraphs [7] (a) and (d) herein].

89. The Respondent submitted that the provision of these items would require an unreasonable and substantial diversion of their resources per s 60(1)(a) of the GIPA Act, as their systems did not allow for general automated searches of the nature that the Applicant sought.

90. As per Ms Duggan’s evidence referenced in [48], the Tribunal further accepts that obtaining the information sought regarding text messages of the Respondent’s employees, was essentially not possible due to the lack of required functionality. Accordingly, obtaining such information through manual efforts would clearly be impractical and involve substantial person hours to identify those which might fall within the application.

91. Whilst the material in Item 9 [detailed in [7](d) herein] falls within legal professional privilege, the Respondent submitted that any further searches would similarly require an unreasonable and substantial diversion of the Respondent’s resources. As per Ms Duggan’s evidence referenced in [49], the Tribunal accepts that the Respondent does not have the search functionality to readily identify such material, in support of a refusal to deal per s 60(1)(a) of the GIPA Act.

92. The Respondent’s decision in relation to the Item 1 (text messages) and Item 9 (additional searches) is therefore affirmed.

Consideration and findings in respect of Items 36-37 [detailed at paragraphs [7](l) and (m) herein].

93. Section 14 Table at clauses (1)(f) and (h) provide a public interest consideration against disclosure where it may prejudice the effective exercise by an agency of their functions, or where it may 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).

94. The Respondent submits that access to the material comprising Items 36-37 should be refused on the basis that disclosure of the information could reasonably be expected to result in the disclosure of the internal workings of an agency and how they conduct investigations, and determine which matters to prosecute or not, as per s 14 Table at clauses (1)(f) and (h).

95. The Respondent submits that items such as internal memoranda, research, file notes and other internal documents and deliberations would be overwhelmingly likely to form the basis of the Respondent’s investigation and deliberation of enforcement action.

96. As per Snape, the Tribunal must balance the public interest disclosure imperative established per s 13 of the Act, against any applicable s 14 Table matters.

97. In this matter, it is an established fact that the Respondent was conducting an investigation in contemplation of enforcement action against the Applicant with regard to the dams located on the Property.

98. Whilst the Applicant has a genuine and understandable desire to access the inner workings of the investigation conducted against himself and his wife, I accept that an agency must be afforded some level of confidentiality and opacity in order to contemplate and undertake investigations and enforcement action effectively.

99. Relevant to the access request, is that the veracity and foundation of the Respondent’s enforcement action can and will be properly tested between the parties in the LEC, so I will not make any findings in this regard.

100. In attributing weight to the parties’ competing objectives, and noting that the LEC decision will likely provide additional clarity and closure for the Applicant in this regard, I am satisfied that the public interest disclosure imperative does not outweigh the consideration against disclosure in respect of the material sought by the Applicant, and consider that there remains a predominant public interest consideration against disclosure of Items 36-37, detailed at paragraph [7] (l) and (m) herein.

101. The Respondent’s decision in relation to items 36-37 is affirmed.

Consideration and findings in respect of Items 31, 34, 38 and 39 [detailed at paragraphs [7] (j), (k), (n) and (o) herein].

102. The Respondent submits that they have refused to confirm or deny to the Applicant, the existence of the material comprising Items 31, 34, 38 and 39, as detailed in [7] (j), (k), (n) and (o) herein. This refusal is based on the assertion of an overriding public interest against disclosure of information confirming or denying that fact per s 58(1)(f) of the GIPA Act.

103. The Respondent submits that even the disclosure of the existence of any material sought pursuant to these items should be refused on the grounds that such material is subject variously to exclusions in clauses 1(f), 2(a), 3(a), 3(e) and 3(f).

104. Section 58(1)(f) was considered in Commissioner of Police, NSW Police Force v Barrett [2015] NSWCATAP 68 (Barrett) where a decision to refuse to confirm or deny the existence of material, was made for intelligence reasons. The Appeal Panel in that matter noted at [38] that this provision “introduces a public interest against disclosure that goes beyond those listed in the Table to s 14”.

105. Refusals pursuant to s 58(1)(f) of the GIPA Act are notably rare, because a refusal to confirm or deny the existence of material negates the commitment to transparency which underpins the legislation. Consequently, the reasonable approach is to nevertheless apply the principles of ss 13 and 14 of the GIPA Act and ensure that material, which is refused to be provided to an applicant, falls properly, after weighing, within one of the exclusions detailed therein.

106. If this reasoning is not correct, I have considered whether there is an overriding public interest against disclosure of the information pursuant to the clauses of the s 14 Table identified by the Respondent in their submissions and during the hearing. This is supported by the approach taken in Douglas v Commissioner of Police (NSW) [2022] NSWCATAD 152.

107. Given the personal nature of the information sought by the Applicant in these items, I have focussed on clause 3(a) of the table in s 14 of the GIPA Act in my consideration of whether this information can and should be disclosed to the Applicant.

108. The Applicant is seeking to access a range of material relating to AF’s internal records, including any complaints which may have been made against AF, any internal investigations conducted against AF, AF’s leave applications and his absences from work.

109. The Respondent submits that such items regarding AF, an employee of the Respondent, if in existence, would reveal personal information about AF, and that AF has expressly and vehemently refused permission to reveal any of this information sought by the Applicant.

110. Section 54 of the GIPA Act provides for a requirement to consult a person before disclosing their personal information, where it appears that the person may reasonably be expected to have concerns about the disclosure of the information, and 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.

111. In the present matter, the Respondent has undertaken that consultation and AF has refused to provide the necessary consent to release such material to the Applicant, and the Applicant has not otherwise identified any exception pursuant to s 25 of the PIPA Act pursuant to which the material could be disclosed.

112. The Applicant has submitted his view that AF has engaged in improper conduct in relation to the investigation and enforcement action taken by the Respondent against the Applicant regarding the dams located on the Property.

113. In Barrett at [136] it was held that “It is a very serious matter for a Tribunal to accept as relevant to its determination as a public interest favouring disclosure that ‘disclosure…could be 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.’ “

114. In order to make a determination that the public interest favours disclosure in this regard per Snape, the Tribunal must have a reasonable basis in the material provided by the Applicant or in the material seen in confidence.

115. It is clear from the Applicant’s oral and written submissions that he is of the genuine belief that he and his wife have been unfairly targeted by AF and the Respondent generally, as well as by his neighbour(s). However, the Applicant has not adduced sufficient material which would reasonably support a finding that the Respondent (or an employee thereof) has engaged in improper or unlawful conduct.

116. As noted above, the Applicant’s allegations will likely be tested in the LEC proceedings, along with the propriety, or otherwise, of the investigation conducted, and the enforcement orders made, against the Applicant and/or his wife. However, with the material before the Tribunal, I do not have any evidentiary basis on which to make a finding that the material sought by the Applicant can be expected to reveal improper conduct, such as to tip the balance towards disclosure in this regard.

117. As per Bailey, I cannot attribute sufficient weight to such allegations as posited by the Applicant, so as to provide the Applicant with access to AF’s personal and confidential internal employment-related records.

118. In attributing weight to the parties’ competing objectives, and noting that the LEC decision will likely provide additional clarity for the Applicant in this regard, I am satisfied that the public interest disclosure imperative does not outweigh the consideration against disclosure in respect of the material sought by the Applicant, and consider that there remains a predominant public interest consideration against disclosure of Items 31, 34, 38 and 39, detailed at paragraphs [7] (j), (k) (n) and (o) herein.

119. With regard to the Respondent’s submission that disclosure was rightfully denied regarding these items on the basis of the exclusion in clause (1)(f) of the table in s 14 of the GIPA Act, I am satisfied that my findings per [98] and [100] herein, apply to this material.

120. With regard to the Respondent’s submission that disclosure was rightfully denied regarding these items on the basis of the exclusion in clause (2)(a) of the table in s 14 of the GIPA Act, I am satisfied that my findings per [86] herein, apply to this material.

121. With regard to the Respondent’s submission that disclosure was rightfully denied regarding these items on the basis of the exclusion in clause (3)(e) of the table in s 14 of the GIPA Act, I am satisfied that my findings per [78] herein, apply to this material.

122. With regard to the Respondent’s submission that disclosure was rightfully denied regarding these items on the basis of the exclusion in clause (3)(f) of the table in s 14 of the GIPA Act, I refer to my findings per [80] herein, apply to this material.

123. The Respondent’s decision in relation to items 31, 34, 38 and 39 is affirmed.

Orders

124. Pursuant to s 64 of the CAT Act, the Tribunal orders that no record of the confidential session, nor of the Confidential Bundle, is to be disclosed or released to either the Applicant or to the public.

125. Noting that some of the material in Item 1 was released to the Applicant prior to the hearing, the decision under review 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: 12 November 2025