Gilling v General Manager, Hawkesbury City Council

[1999] NSWADT 43

CITATION:	Gilling -v- General Manager, Hawkesbury City Council [1999] NSWADT 43
DIVISION:	General
APPLICANT:	Glenys Gilling
RESPONDENT:	General Manager, Hawkesbury City Council
FILE NUMBER:	993015
HEARING DATES:	04/15/1999
SUBMISSIONS CLOSED:	06/07/1999
DATE OF DECISION:	22 June 1999
BEFORE:	N Hennessy - Deputy President
PRIMARY LEGISLATION:	Freedom of Information Act,1989
APPLICATION:	Review of a decision to refuse access to documents (or part thereof) -
MATTER FOR DECISION:
REPRESENTATION:	Applicant: In person Respondent: J Reilly, solicitor, Abbott Tout
ORDERS:	Hawkesbury City Council’s decision to refuse to disclose the names and addresses of the four objectors in question is affirmed.

1 The applicant, Ms Gilling, purchased a caravan park at Lower Portland about three years ago. Since that time she has made a number of development applications to Hawkesbury City Council (the council) to improve the caravan park. The application (DA 319/98) which triggered the current litigation under the Freedom of Information Act 1989 (FOI Act), related to nine new caravan sites for relocatable homes.

2 Local residents were invited to make submissions in relation to this application and were advised by the council in a letter dated 14 September 1998 that:

“The details of your submission may be included in a council report or forwarded to the applicant where it may help to resolve design problems, if any. Information may also be released under the NSW Freedom of Information Act where a member of the public can apply for access to documents concerning their personal affairs.”

3 Nine people wrote letters objecting to the development. On 29 April 1998 the council received an application from Ms Gilling under the FOI Act requesting access to the list of people with whom the Council consulted in relation to her development application and copies of the letters of objection relating to that application. The respondent consulted with the author of each letter before deciding to grant access to five of the letters in full. The authors of the other four letters objected to the release of their names and addresses for reasons which included fear of harassment and intimidation by the applicant. Two of the letters were released with the names and addresses deleted and two were released after retyping with the names and addresses deleted.

4 Council subsequently refused the development application. This refusal led to further litigation in the Land and Environment Court but council anticipates that a consent order will allow the development to proceed.

5 On 24 November 1998 the applicant lodged a request for internal review of the FOI decision with the council. On 9 December 1998, after further consultation with the authors of the four letters, the administrator, Geoff Banting, decided to affirm the original decision. On 15 January 1999, Ms Gilling lodged an application with the Tribunal for a review of that decision.

Issues and legislation
6 The applicant lodged the development application pursuant to s 78A of the Environmental Planning and Assessment Act 1979. Section 79C(1) sets out the matters that Council is to take into consideration in determining such a development application. Pursuant to s 79C(1)(d) these matters include, where relevant, “any submissions made in accordance with this Act or the regulations.”

7 The application requesting copies of the letters of objection is made under the FOI Act, however amendments to the Local Government Act 1993 (LGA) which commenced on 1 March 1998, also place obligations on councils to provide access to certain documents. The FOI Act and the LGA operate side by side in regulating access to documents. The FOI Act s 4(a) states that:

This Act does not affect the operation of any other Act or law:

(a) that requires information concerning documents held by the Government to be made available to the public.

8 The LGA gives the public greater rights of access to documents held by local councils than those given by the FOI Act. For example, LGA s 12(1) lists the kind of information that is publicly available without any need for an application under the FOI Act. In addition, sub-section 12(6) provides that:

The council must allow inspection of its other documents free of charge unless, in the case of a particular document, it is satisfied that allowing inspection of the document would, on balance, be contrary to the public interest.”

9 “Other documents” in this sub-section means documents other than those for which there is an statutory right to access under s 12 or documents for which there is an existing discretionary right of access. Under LGA s 12A if access to a document is not given, written reasons must be provided and the council must review any such restriction no later than three months after it is imposed.

10 While the obligations on councils to provide access to documents are more onerous under the LGA than under the FOI Act, the only remedy offered for a breach of the LGA is to bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of the LGA (s 674). The FOI Act provides a comprehensive package of inexpensive and accessible remedies including internal review of a decision and merits review by the ADT.

11 Having two separate regulatory regimes for access to council documents is confusing because the tests for providing access to documents differ. When a person asks for a document, there is nothing to indicate which test should be applied in responding to such a request. If a council refuses to provide access to a document, the applicant may not be aware that in many cases they have the choice of pursuing the matter under the FOI Act to the ADT or under the LGA to the Land and Environment Court.

12 Since this application is made under the FOI Act, it is the provisions of that statute which must be applied to determine whether the names and addresses of the four objectors should be disclosed. The objects of the FOI Act are set out in s 5. Section 5(1)(a) states that:

The objects of this Act are to extend, as far as possible, the rights of the public:


(a) to obtain access to information held by the Government; and

(b) to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect out of date or misleading.

13 In Commissioner of Police v District court of New South Wales (Perrin’s case) (1993) 31 NSWLR 606 at 611-614 Kirby P set out the history and policy of the FOI Act. The President quoted portions of the Second Reading Speech which identified several of the Bill’s objectives including: to remedy the “feeling of powerlessness” that voters experience because “many of the decisions which vitally affect their lives are made by, or on advice from, anonymous public officials, and are frequently based on information which is not available to the public”; and to “provide the people with a basis on which government policies and actions can be discussed and debated.” (See New South Wales Parliamentary Debates (Legislative Assembly) 2 June 1988, 1397 at 1399).

14 The FOI Act s 5(2)(b) provides that an object of the legislation is to give:

. . . each member of the public a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of government.”

15 An agency may refuse access to a document if it is an “exempt document” (FOI Act s 25(1)(a)). By s 6(1) an “exempt document” includes a document referred to in Schedule 1. The exemption relied on by council in this case is contained in Sch 1, cl 6(1) which states that:

A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).

16 For the exemption in cl 6 to be made out, two conditions must be satisfied. First, the document must contain material concerning the personal affairs of any person. Secondly, the disclosure of the information must be “unreasonable”.

17 Section 31 requires an agency to consult with any person whose personal affairs may be disclosed by providing access to any document. That section states that:

(1) This section applies to a document that contains information concerning the personal affairs of any person (whether living or deceased).

(2) An agency shall not give access to a document to which this section applies (otherwise than to the person concerned) unless the agency has taken such steps as are reasonably practicable to obtain the views of the person concerned as to whether or not the document is an exempt document by virtue of clause 6 of Schedule 1.

18 The onus of proof is on the agency to justify any decision to withhold documents. As Kirby P said in Commissioner of Police v District Court of New South Wales (Perrin’s case) (1993) 31 NSWLR 606 at 625:

Prima facie, the document in its entirety must be disclosed. To withhold disclosure it is for the agency to make out the application for an exemption. Thus the question properly is not why the information should be disclosed but why it should be exempted.

Evidence
19 When the applicant lodged the FOI application council did not have a written policy providing when access should be granted or denied. But their practice, according to Ms Parker, and employee of the council, was to grant access to letters of objection in full unless there was an objection after consultation. This position is supported by the fact that the applicant had previously lodged at least three applications under the FOI Act requesting copies of letters of objection made to various Development Applications. These applications were all granted in full after consultation with objectors.

20 The applicant denied that she harassed or intimidated any objector. She told the Tribunal that she didn’t telephone anyone regarding her latest development application. In relation to a previous application concerning a liquor licence she said that she wrote to three people (two of whom she knows are also objectors to the current DA) and telephoned several others. The letters she wrote are exhibits “A”, “B” and “C”. Exhibit A, a letter to Mr Van Bergen, accuses him of defaming her by implying that she was dishonest and was engaged in illegal activities. The letter also says “I am always happy to discuss the on going plans for further improvement of my property with neighbours” and “If you still disagree after being properly informed I certainly would not be offended by any objection you would make providing it does not personally defame me.” Exhibit B, a letter to Mrs V Mosely, was in similar terms, alleging slander but inviting her to discuss the plans and inspect the property. The third letter to Mr James Lorraine, Exhibit C, does not threaten legal proceedings but contains phrases such as “You blindly rejected my offer to explain;” “I am at a loss to understand what your problem is;” and “I have not complained about the noise from your property to your council.”

21 Ms Gilling gave evidence that two of the people she wrote to did not respond to her letter and she did not make any attempt to contact them again. The third person accepted her invitation to come to the caravan park and talk about the proposal.

22 The applicant tendered a letter she wrote to council dated 20 October 1998 which lists the names of people she contacted by telephone in relation to the previous Development Application. She was successful in telephoning eight of the seventeen objectors. The letter summarises each person’s response to the call or, in the case of three people, in response to the letter she wrote to them. She then invited council to consider the information when assessing her Development Application.

23 The council tendered three documents: the first was a file note dated 1 October 1998 which records a meeting of four residents with the General Manager and Mayor “regarding alleged harassment by Ms Glenys Gilling following release of their names and addresses on documents where they had made representations to the Council about development matters . . .” The memo records that the General Manager indicated that it was council’s policy to advise the name of persons who made representations about developments.” The residents “expressed their concern about what they saw as harassment and their possible safety as a result of a large majority of residents in the area opposing the development proposed by Ms Gilling . . .”

24 The second and third documents tendered by council were letters from two of the four current objectors who did not want their name and address disclosed. The first letter, dated 29 November 1999 (Exhibit F) offered the following reasons for non-disclosure, “As soon as the applicant received copies of the objections, she proceeded to telephone and threaten and harass more than half the objectors, another three received threatening letters . . .” The objector concluded the letter by saying “I will not be intimidated by this person or have the privacy of my home invaded, but I will continue to object to applications that I feel are not right for this area.” The second letter dated 1 December 1998 (Exhibit G) stated that, “Following the lodgement of my objection, to the application for live entertainment and alcohol from being served on the premises, I had disturbing phone calls at my place of employment and my grandmother (an 84 year old woman) had an intimidating telephone call from the applicant because she also sent a letter of objection.”

25 The nature of the objections in the four disputed documents were as follows:

“will make for a more noisier environment;” “location is of view to many people;” “caravans are not aesthetically appealing to any area;” “encroach on the open position now held by the Heritage house;” “be highly visible from the river and opposite side of the river;” “an expansion of an already overdeveloped site;” detremental (sic) effect on the Hawkesbury river;” “we do not need the extra polution;” and “loss of our privacy.”

26 The applicant gave evidence that if she had access to the names and addresses of the objectors she would not contact them because she anticipated that her development application would be approved by the Land and Environment Court so she would have no need to talk to them.

Discussion of evidence and findings of fact
27 While the council did not have a written policy about disclosure of the names and addresses of objectors at the time of Ms Gilling’s FOI application, they routinely disclosed such information after consultation with the person involved. 28 I accept Ms Gilling’s evidence that she did not contact any of the objectors in relation to her most recent Development Application. However she did attempt to contact each of the 17 people who objected to a previous application. She wrote letters to three people and was successful in contacting another six by phone.

29 Two of the letters Ms Gilling wrote to objectors threatened legal proceedings in relation to statements allegedly made by them. The letters also offered to discuss the objections in detail. Ms Gilling has the right to threaten legal proceedings if she believes she has been defamed, however it is likely that both the objectors, Mr Van Bergen and Ms Mosely, felt intimidated by these letters. The letter to Mr Lorraine, while not containing threats of legal action, is not written in a friendly tone. I accept that it is likely that Mr Lorraine felt intimidated by Ms Gilling’s correspondence.

30 In relation to the telephone calls, I accept that some people who received those calls, including one of the current objectors, felt intimidated by them. The author of the first letter objecting to the disclosure of the name and address (Exhibit F) had not been contacted by the applicant. The objections were based on what other people had said about their experiences. For this reason I do not accept that person’s assertion that “she proceeded to telephone and threaten and harass more than half the objectors.” I do accept that the author or Exhibit F is apprehensive about the prospect of being contacted by Ms Gilling. The second letter (Exhibit G) was apparently written by a person whom Ms Gilling had contacted by phone in relation to the previous development application. That person said that they had received an “intimidating phone call.” I accept that this person did feel intimidated on that occasion.

31 I accept that Ms Gilling contacted the objectors to the previous development application in order to obtain further information to put to council before they determined the application. This is evidenced by her letter to council identifying each objection and putting submissions intended to counter those objections. Her purpose was not to intimidate or harass the objectors, although some of the people she contacted have understandably felt intimidated.

32 I also accept that Ms Gilling has no intention of contacting the four objectors if their names and addresses are revealed to her because she anticipates that the Land and Environment Court will make consent orders for the approval of the development application.

Application of law and decision
33 The purpose of the personal affairs exemption is to allow the public interest in personal privacy to be balanced against the public interest in people having open access to information held by government. Privacy is an important right enshrined in various international human rights instruments including the International Covenant on Civil and Political Rights, art 17. Access to information held by government, reflected in the principles of openness, accountability and responsibility of government, is also a fundamental principle which the FOI Act seeks to enshrine.

34 There has been debate about whether these two competing principles should be given equal weight in considering the application of the personal affairs exemption or whether the principles of openness, accountability and responsibility should be favoured. Kirby P in Perrin’s Case (1993) 31 NSWLR 606 at 627 took the view that “the Act, understood against its background and interpreted in conformity with the intention of parliament expressed in s 5, must be approached by decision-makers with a general attitude favourable to the provision of the access claimed.” I have adopted the same approach in this case.

35 The first question for the Tribunal is whether the names and addresses of the four objectors constitute their “personal affairs.” By consulting with each objector Council took the view that the name and address, but not the content of the objection, was information concerning their personal affairs.

36 The term “personal affairs” appears in both Commonwealth and Victorian FOI legislation and consequently it has been interpreted in many cases in those jurisdictions. The cases make it clear that “personal affairs” cannot be precisely or exhaustively defined. In several cases it has been given its ordinary dictionary meaning, that is, “matters of private concern to an individual.” (See Re Williams and Registrar of Federal Court of Australia (1985) 8 ALD 219 per Beaumont J at 221-222; Young v Wicks (1986) 13 FCR 85 per Beaumont J at 89.) The only New South Wales case on the exemption is Perrin’s Case, (1993) 31 NSWLR 606 a decision of the Court of Appeal. In that case Kirby P noted at 625 that it has been suggested that the ordinary dictionary meaning might be too narrow. The President held that, “In its context, the words ‘personal affairs’ mean the composite collection of activities personal to the individual concerned.” I have adopted this definition in considering the meaning of the phrase in this case.

37 The information does not have to be confidential or secret; it may be widely known. (Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 at 436 per Lockhart J) In this case, even if the person’s name and address is widely known, that does not mean that it is not part of their personal affairs.

38 Both Mahoney JA and Clarke JA in Perrin’s case (1993) 31 NSWLR 606 expressed the view that a person’s name, in isolation, is not generally part of their personal affairs. (See Mahoney JA at 638; Clarke JA at 644). Kirby P also rejected the argument that naming an officer would, in every case, disclose information concerning their personal affairs. (See Kirby P at 625; see also Lockhart J in Colakovski’s Case who said that as an abstract concept, the name and telephone number of a person would not be information relating to their personal affairs.) Consequently, it is a question of fact in every case as to whether the name and address of a person amounts to their personal affairs (Perrin’s case per Clarke JA pat p 644; Re French (1987) 12 ALD 525).

39 In Perrin’s Case (1993) 31 NSWLR 606 the New South Wales Court of Appeal upheld a decision by the District Court that the names of police officers did not constitute their “personal affairs.” The police officers had been involved in the preparation of a report for the Queensland Criminal Justice Commission which contained material about a particular company. Perrin, the solicitor acting for the company, requested the report under the FOI Act. The report was provided with the names of the police officers deleted.

40 After deciding that the information must be “personal to the individual concerned” as interpreted in its context, Kirby P in Perrin’s Case (1993) 31 NSWLR 606 at 625 went on to say that:

Applying that test, it cannot properly be said that the disclosure of the names of police officers and employees involved in the preparation of reports within the New South Wales police can be classified as disclosing information concerning their personal affairs. The preparation of the reports apparently occurred in the course of the performance of their police duties. What would then be disclosed is no more than the identity of officers and employees of an agency performing such duties. As such, there would appear to be nothing personal to the officers concerned. Nor should there be. It is quite different if personnel records, private relationships, health reports of (perhaps) private addresses would be disclosed. Such information would attract the exemption.”

41 Kirby P continued at 625 by referring to the referring to the Second Reading Speech which “made it abundantly clear that one object of the Act was to breach the wall of the anonymity of public servants.”

42 In order to determine whether the names and addresses constitute personal affairs in this case, the context in which they appear must be examined. The names and addresses were provided by local residents as part of a letter of objection to council in relation to a development application. The authors wrote the letters in their capacity as private individuals concerned about a proposed development in their area. Unlike the situation in Perrin’s case, this information was not provided in the course of the performance of any public duty or responsibility.

43 In Perrin’s Case Kirby P stated that perhaps the police officer’s private address could be considered as part of their personal affairs (at 625). Similarly in Commonwealth of Australia and Road Traffic Authority (1989) 19 FOI Rev 7 the disclosure of the addresses of motor vehicle owners held by the public vehicle registration body was found to relate to the owners’ “personal affairs.” Even if a person’s name in isolation is not necessarily part of their personal affairs, their name, linked with their address, enables them to be contacted by people who have access to that information. This contact may be unwelcome and an constitute an invasion of their privacy.

44 For these reasons I find that in the context of this case the name and address of each of the four objectors is material concerning their personal affairs.

45 The second question is whether disclosure of the information is “unreasonable”. To determine this the council must consult with the person concerned, identify the public interest considerations for and against disclosure and establish that disclosure would be contrary to the public interest. (Colokovski v Australian Telecommunications Corp (1991) 29 FCR 429)

46 Factors which are relevant to the question of unreasonableness are: the views of the third parties; the nature and extent of any prejudice to third parties if their names and addresses are disclosed; and whether disclosure would serve the public interest purposes of the legislation. There has been some debate about whether the applicant’s interest in the information is also a relevant factor.

47 The views of the third parties are clear. The Tribunal had evidence that two of the objectors did not want their name aor address disclosed. Although there was no direct evidence in relation to the views of the other two of objectors, I accept council’s evidence that these people were consulted and that they objected to their name and address being disclosed.

48 The nature of the prejudice all four objectors claim they would suffer is that they would be harassed or intimidated by Ms Gilling. Ms Gilling would probably have contacted them had she been given the information when she requested it. This contact may have been unwelcome. However, I have accepted that Ms Gilling does not intend to contact the current objectors if their identity is disclosed. In these circumstances there is no evidence that the objectors will suffer any prejudice or disadvantage if their names and addresses are disclosed.

49 Having access to the names and addresses of objectors furthers important objectives of the FOI Act including the openness and accountability of council decision making. One objective of the FOI Act, reflected in the Second Reading Speech, is to give people access to information on which government decisions are made and which vitally affect their lives.

50 The process of gathering submissions is intended to assist council to make an informed decision about whether to approve the development application. The names and addresses of the objectors and the details of the objections raised are relevant when council assesses development applications. Council needs to be satisfied that the objection is made in good faith by a concerned individual. If the name is not included there is a risk that a single individual may have lodged more than one objection or that the objection is fabricated. The address of an objector is also relevant for the same reasons. In addition, the address of an objector is relevant when considering the merits of the objection because, for example, if the person is complaining about noise levels or obstruction to their view, it will be important to know where the person lives in relation to the proposed development.

51 In this case, council has made a decision about Ms Gilling’s development application which “vitally affects her life” without giving her access to some of the information on which that decision was based. Unless there are convincing privacy or other reasons for withholding certain information, all the factors taken into account by the council in making its decision must be known so that the decision is transparent and council can be accountable for it.

52 The importance of applicants having access to the names and addresses of objectors is highlighted by the Ombudsman’s FOI Policies and Guidelines (second edition) which recommend that objections to building applications and development applications be released by councils on request, without resort to the FOI Act. The Ombudsman goes on to say that:

. . . the names, addresses and details of the objections raised by objectors must be included in reports to decision-makers if those objections are to be properly assessed by councils, or committees or council staff under delegated authority.

Councils should take all available opportunities to inform residents that confidentiality will generally not be available . . . (at 49-50)

53 While an applicant does not have to demonstrate a need for or an interest in the documents being sought (Re Mann and Australian Taxation Office (1985) 7 ALD 698 at 700) the applicant’s motivation in seeking the information has, in some cases, been held to be relevant to the question of reasonableness. For example, if disclosure would merely satisfy the applicant’s curiosity then disclosure may be considered to be unreasonable. (Colakovski (1991) 29 FCR 429 at 441). On the other hand, in Re Green (1992) 28 ALD 655 at 661- 662 a person’s reasons for seeking access were not taken into account for the purposes of determining the reasonableness of the disclosure.

54 In Perrin’s Case (1993) 31 NSWLR 606 Mahoney JA did not determine whether the purpose for which the documents are sought is relevant in deciding the reasonableness of the disclosure. But his honour considered that where the information is sought merely to harass the parties in question, a court would have to “exercise care” in deciding whether access should be granted. His Honour noted that “a party who sought and used information merely for that purpose would perhaps invite action, as for nuisance: or (if pursued through the courts) for abuse of process.” (at 639)

55 The applicant’s original purpose for requesting disclosure of the names and addresses was so that she could either contact them to discuss their objections and/or put arguments to council which addressed those objections. These are both legitimate reasons for seeking the information which would have furthered the public policy purposes of the legislation.

56 If the question of access to names and addresses arose at a time when the development application had not been resolved, I would have had no hesitation in deciding that although the documents contain information concerning personal affairs, disclosure would have been reasonable. The factors favouring disclosure, particularly the achievement of the public interest purposes of the legislation, would have outweighed the factors against disclosure including the views of the objectors and any prejudice or perceived prejudice they may have suffered.

57 But the development application has been resolved. For this reason the public interest purposes of the legislation will not be served by disclosing the names and addresses of the objectors. In addition, so far as it is relevant, the applicant’s interest in the information is merely to satisfy her curiosity. Given that the names and addresses do constitute “personal affairs” and the views of the third parties is against disclosure, disclosure at this stage would be unreasonable.

58 I make the following order:

Hawkesbury City Council’s decision to refuse to disclose the names and addresses of the four objectors in question is affirmed.