Hall v Roads and Maritime Services

[2012] NSWADT 239

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Hall v Roads and Maritime Services [2012] NSWADT 239
Hearing dates:	On the papers
Decision date:	19 November 2012
Jurisdiction:	General Division
Before:	Judicial Member Naida Isenberg
Decision:	The decision under review is affirmed
Catchwords:	motor vehicle - application for address of owner
Legislation Cited:	Government Information (Public Access) Act 2009 Road Transport (Driver Licensing) Act 1998 Road Transport (Vehicle Registration) Act 1997 Commonwealth Electoral Act 1918
Cases Cited:	Commissioner of Police v Camilleri [2012] NSWADTAP 19 Flack v Commissioner of Police [2011] NSWADT 286 Leech v Sydney Water Corporation [2010] NSWADT 298 Hurst v Wagga Wagga City Council [2011] NSWADT 307 Morgan v Commissioner of Police, NSW Police Force [2012] NSWADT 42
Category:	Principal judgment
Parties:	Colin Hall (Applicant) Roads and Maritime Services (Respondent)
Representation:	C Hall (Applicant in person) Roads and Maritime Services (Respondent)
File Number(s):	123173

REASONS FOR DECISION

Background

1. Mr Colin Hall, the applicant, engaged 'JF' to undertake some work around his pool which Mr Hall regards as defective. He wishes to contact Mr F with a view to making good the work or seeking recompense. Unfortunately he did not retain Mr F's contact details and the only information he has about him is the registration number of the motor vehicle he drove.

1. On 27 July 2011 the applicant made an access application under the Government Information (Public Access) Act 2009(GIPA Act) to the respondent for access to information regarding the most recent address of [JF] who he claimed was the owner of vehicle [number] (the access application).

1. The respondent refused access to the information on the basis that, on balance, the public interest considerations against disclosure of the information outweighed the public interest considerations in favour of disclosure as disclosure of the information would involve the disclosure of an individual's personal information.

1. The decision was reviewed by the Office of the Information Commissioner (OIC), who agreed with the respondent's decision.

1. The applicant seeks review of the decision.

Relevant Legislation

1. The objects of the GIPA Actare set out in s. 3, which provides:

3 Object of Act

(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:

(a) authorising and encouraging the proactive public release of government information by agencies, and

(b) giving members of the public an enforceable right to access government information, and

(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.

(2) It is the intention of Parliament:

(a) that this Act be interpreted and applied so as to further the object of this Act, and

(b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.

1. It was not disputed that the information the subject of this application, is government information and is held by an agency: s 4(1) of the GIPA Act.

1. 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.

1. Section 12 of the GIPA Act reiterates the general presumption in favour of disclosure of government information, and lists examples of public interest considerations that favour disclosure.

1. Section 13 of the GIPA Act sets out the test that is to be applied in determining whether there is an overriding public interest against disclosure. That test is in the following terms:

Public interest test

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

1. The public interest considerations against disclosure are set out in s. 14 of the GIPA Act, which relevantly provides:

14 Public interest considerations against disclosure

(1) ...

(2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

Table

..

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,

1. Section 15 sets out the principles that are to be applied when determining whether there is an overriding public interest against disclosure. It provides:

15 Principles that apply to public interest determination

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

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

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

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

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

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

1. Section 54 of the GIPA Act contains a requirement that an agency is to take steps, which are reasonably practicable, to consult with specified persons before providing access to information such as personal information.

1. On an application for review to the Tribunal, the onus is on the agency to establish that the decision the subject of review is justified: s 105(1) GIPA Act.

CONSIDERATION

1. The respondent submitted that s. 10(2) of the Road Transport (Vehicle Registration) Act 1997 (Vehicle Registration Act) specifically provides that the vehicle registration database does not record ownership. Rather, the register records the "operator", namely, the person who is prima facie responsible for the vehicle's compliance with road transport law. The respondent took the point that the applicant's access application seeks the address details of the 'owner' of the relevant motor vehicle. I do not consider this point to be well taken. The applicant clearly identified the registration number of the motor vehicle and the person he observed driving and otherwise asserting 'ownership' over that vehicle. There could be no mistake as to what the applicant sought and to take the point is pedantic having regard to the spirit of the GIPA Act.

1. In deciding whether to release information, the Tribunal must decide whether or not an overriding public interest against disclosure applies to the information. As noted above, s. 13 of the GIPA Act requires the Tribunal to undertake the following steps:

· identify the relevant public interest considerations in favour of disclosure

· identify the relevant public interest considerations against disclosure.

· determine the weight of the public interest considerations in favour of and against disclosure and where the balance between those interests lies.

Public interest considerations in favour of disclosure

1. The applicant asserted in the application that if he is unable to get Mr F's address he will be unable to take him to court. His application for review was in very strong terms - which suggested some frustration on his part. The OIC considered that disclosing the information that Mr Hall has requested may contribute to the administration of justice, which is one of the examples in s. 12 GIPA Act. I accept that Mr Hall's pursuit of his rights for alleged defective workmanship is a factor in favour of disclosure. I observe however that other avenues are available to Mr Hall to obtain the information he seeks: see, for example, Uniform Procedure Rules 2005 Regulation 5.2 Discovery to ascertain prospective defendant's identity or whereabouts. As the Tribunal observed in Morgan v Commissioner of Police, NSW Police Force [2012] NSWADT 42:

These proceedings are merit review proceedings and not civil proceedings between disputing parties.

1. The personal factors of the application may be relevant considerations in balancing the public interest test, including in favour of disclosure: s. 55 GIPA Act. Those personal factors include the applicant's identity and relationship with any other person (s55(1)(a)) and the applicant's motives for making the access application (s55(1)(b)). Personal characteristics may only be relied on to refuse disclosure of government information "if (and only to the extent that)" they tend to establish the public interest considerations against disclosure set out in clauses 2-5 of the Table to s. 14 of the GIPA Act.

Public interest considerations against disclosure

1. The public interest considerations against disclosure are limited to those set out in the Table to s 14 of the GIPA Act.

1. In Commissioner of Police v Camilleri [2012] NSWADTAP 19 the Appeal Panel considered (at [26]) s. 14 considerations need to be examined at a broad operational level and that those considerations "are concerned with systemic features of the operation of government".

1. To raise these as relevant considerations in the application of the public interest test the respondent must establish that the disclosure of the information "... could reasonably be expected to have .... the effect" outlined in the Table.

1. The words "could reasonably be expected" are given their ordinary meaning, as opposed to a meaning that is irrational, absurd or ridiculous. The applicable principles for this interpretation were stated in Flack v Commissioner of Police [2011] NSWADT 286 (at [40] - [41]), adopting the approach taken in Leech v Sydney Water Corporation [2010] NSWADT 298:

1. The term 'could reasonably be expected' has been considered in a number of cases. The words have their ordinary meaning: Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163. 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 PIAC.

1. Because the respondent bears the onus of justifying its decision to refuse the applicant access to the information, it has the burden of establishing that the public interest considerations against disclosure it relies on apply. It also bears the burden of establishing that, on balance, they outweigh the public interest considerations in favour of disclosure.

1. The respondent submitted that the following public interest considerations against disclosure in the Table are relevant:

1. Clause 3(a) - The information could reasonably be expected to reveal a person's personal information

1. The term 'personal information' is defined in clause 4 of Schedule 4 of the GIPA Act which provides:

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

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

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

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

(b) information about an individual (comprising the individual's name and non-personal contact details) that reveals nothing more than the fact that the person was engaged in the exercise of public functions,

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

1. The term "reveal" is defined in clause 1 of Schedule 4 of the GIPA Act to mean "to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure). There was no evidence that Mr F's address has already been lawfully publicly disclosed.

1. I accept that cl. 3(a) is a relevant consideration against disclosure because Mr F's address is personal information.

3(b) - the information could reasonably be expected to contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (PPIP Act)

1. The Information Protection Principle (IPP)s are set out in the PPIP Act. The relevant IPP to the application is s .18 of the PPIP Act which provides as follows:

18 Limits on disclosure of personal information

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

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

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

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

1. Personal information can be released under the GIPA Act, even if the PPIP Act is breached. This is made clear by section 5 of the PPIP Act, which provides that nothing in that Act serves to lessen the obligations agencies must exercise under the GIPA Act.

1. The respondent submitted that it collects personal information (including names and addresses) from its customers in exercising its statutory functions under the Road Transport (Driver Licensing) Act 1998 (Driver Licensing Act) and the Vehicle Registration) Act. When obtaining information for driver licensing and vehicle registration transactions, I was informed, the respondent requires customers to sign a declaration in which they acknowledge that their personal information will only be released for certain permitted reasons. In its decision the respondent provided an example of a permitted reason for disclosure of information on the driver licence register to third parties; it referred to Division 1 of Part 12 of the Road Transport (Driver Licensing) Regulation 2008 which permits disclosure in certain circumstances, including, for example, to the Australia Electoral Commission to assist in the exercise of its functions under the Commonwealth Electoral Act 1918.

1. The respondent submitted that there is no express provision which would apply to the disclosure of a third party's personal information which would apply in this matter, which, it appeared, was a submission that, in the absence of an express provision, such as that referred to above, the respondent is obliged to keep information provided to it confidential.

1. I accept that cl. 3(b) is a relevant consideration against disclosure.

1. Clause 6(1) could reasonably be expected to constitute a contravention of secrecy provisions of another Act

1. While cl. 1 of schedule 1 to the GIPA Act provides a list of specific secrecy laws in respect of which there is a conclusive presumption that disclosure of such information would be contrary to the public interest, none of is relevant in this matter. Clause 6 of the Table to s. 14 however provides that secrecy provisions in any other law are a public interest consideration against disclosure.

1. The respondent submitted that in exercising its statutory functions under the Vehicle Registration Act and the Driver Licensing Act to maintain the state's licensing and vehicle registration system it collects personal information (including names and addresses) from its customers. The Acts require the maintenance of a register to securely store such information and each Act prohibits the disclosure of the register's contents unless required by law.

1. The Vehicle Registration Act and the Driver Licensing Act each contain secrecy provisions. Section 10(3) Vehicle Registration Act provides:

The Authority must ensure that the information in the Register that is of a personal nature or that has commercial sensitivity for the person about whom it is kept is not released except as provided by the regulations or under another law.

1. Section 12 of the Driver Licensing Act contains an almost identical provision in respect of driver licensing information.

1. However s. 11 of the GIPA Act however makes clear- consistent with the general presumption in favour of disclosure - that the intention is that the GIPA Act overrides and prevails over secrecy provisions in any other laws.

1. The Vehicle Registration Act does not automatically prevent the respondent disclosing personal information in response to an access application. However the secrecy provisions are a consideration in favour of non-disclosure under cl. 6 of the Table to s. 14 of the GIPA Act.

Balancing the public interest test

1. The Tribunal's task is to determine whether there is an overriding public interest against disclosure of the information in accordance with the Act, paying due regard to the principles in s. 16 of the GIPA Act. This requires the Tribunal to consider whether, on balance, the public interest considerations against disclosure outweigh those in favour of disclosure: see Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [19] and Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [47]. Unless there is an overriding public interest against disclosure the presumption in favour of disclosure applies: s. 5 GIPA Act.

1. The GIPA Act does not provide a set formula for working out the weight of public interest considerations for or against disclosure, or deciding if one set of considerations outweighs the other. Each matter is different. The balancing of competing interests "is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation: Hurst v Wagga Wagga City Council: at [70].

1. Under s. 54(5) of the GIPA Act any objection must be taken into account when balancing the public interest.

1. The respondent wrote to Mr F but he did not respond. I am satisfied that the respondent took "reasonably practicable" steps to consult with Mr F. As no objection was received, Schedule 1 and s. 14 of the GIPA Act list the only considerations that may be taken into account by the respondent as public interest considerations against disclosure.

1. I have taken into account that the administration of justice may be served if Mr Hall has access to the information sought so that he can contact him in order to assert his claim of defective workmanship. Against this I have considered that the information could reasonably be expected to reveal Mr F's personal information; the information could reasonably be expected to contravene an information protection principle under PPIP Act; and that disclosure could reasonably be expected to constitute a contravention of secrecy provisions of the Vehicle Registration Act and the Driver Licensing Act.

1. In weighing up the public interest considerations for and against disclosure outlined above, I find the respondent's submissions are sufficiently persuasive for it to have discharged its onus under s. 105 of the GIPA Act. I find that the public interest considerations against disclosure, on balance, outweigh the public interest considerations in favour of disclosure. Accordingly, there is an overriding public interest against disclosure of Mr Fs personal information to the applicant: s. 13 of the GIPA Act.

Decision

The decision under review is affirmed.

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Decision last updated: 19 November 2012