Hawkins v Cessnock City Council

[2008] NSWADT 151

CITATION:	Hawkins v Cessnock City Council [2008] NSWADT 151
DIVISION:	General Division
PARTIES:	APPLICANT Russell John Hawkins RESPONDENT Cessnock City Council
FILE NUMBER:	073288
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	1 May 2008
DATE OF DECISION:	26 May 2008
BEFORE:	Pearson L - Judicial Member
CATCHWORDS:	Access to documents - personal affairs - business affairs
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Freedom of Information Act 1992 (Qld) Privacy and Personal Information Protection Act 1998
CASES CITED:	A v Department of Health [2000] NSWADT 59 Attorney-General's Department v Cockcroft (1986) 64 ALR 97 Cianfrano v Department of Commerce [2005] NSWADT 282 Cianfrano v NSW Department of Commerce [2007] NSWADT 99 Cianfrano v NSW Treasury [2005] NSWADT 7 Commissioner of Police v District Court of NSW 31 NSWLR 606 Department of Education and Training v Mullett [2002] NSWADTAP 13 Fulham v Department of Environment and Conservation [2005] NSWADT 68 Neary v State Rail Authority [1999] NSWADT 107 Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 Re Lower Burdekin Newspaper Co and Lower Burdekin Shire Council (2004) 6 QAR 328 Wittingslow Amusements Group Pty Ltd v Director General, Environment Protection Authority (unreported, Supreme Court of New South Wales, 23 April 1993) Young v Wicks (1986) 13 FCR 85
REPRESENTATION:	APPLICANT In person RESPONDENT D Grant, solicitor
ORDERS:	The decision under review is set aside In its place the decision is made that the documents requested by the applicant are to be released in full within 28 days.

REASONS FOR DECISION

1 On 26 June 2007 the applicant applied under the Freedom of Information Act 1989 (the FOI Act) to Cessnock City Council (the Council) for access to the following documents:

The monthly Council credit card accounts for the Director of Corporate and Regulatory Services for the period 1.7.06 to 25.6.07. I require a copy of the monthly statements as provided by the bank.
2 The Council responded by letter dated 16 July 2007, refusing to give access on the basis that clause 6 of Schedule 1 to the FOI Act applied as the documents “affects the personal affairs of a person”.

3 The applicant requested internal review. On 20 August 2007 the Council General Manager affirmed the decision to refuse access, on the basis that the information related to “Council personnel matters affecting the personal affairs of a member of staff” (clause 6 of Schedule 1), and in addition, on the basis that disclosure of the information would also affect the business, professional, commercial and financial affairs of the Council (clause 7 of Schedule 1).

4 The applicant applied to the Tribunal for review of this decision. At a planning meeting held on 13 November 2007 the parties agreed that the issues could properly be determined on the basis of written submissions. The Council provided a copy of the relevant documents to the Tribunal on a confidential basis, and provided written submissions on 30 November 2007. The applicant provided written submissions in reply on 13 December 2007.

5 A further planning meeting was held on 3 March 2008. The matter was remitted to the respondent for reconsideration of its decision and further directions were made for the provision of further written submissions. The respondent determined on 14 April 2008 that its decision that the documents are exempt was unchanged. The applicant filed a further written submission on 1 May 2008, arguing that access should be given to the documents.

Council’s case

6 The Council relies on the NSW FOI Manual (August 2007) published by the Premier’s Department and the Ombudsman, which states that information relating to a person’s “income, bank balances, financial history or activities” constitutes material, which may be described as information relating to that person’s personal affairs. The Council referred to a Department of Local Government Circular (11 October 2004) which recommends that “cheque warrants” (being payments made by Council which lists the names of persons making payments and amounts paid by Councils for various reasons) should not be included in Council’s business paper as “… the cheque warrant will inevitably contain material that is ‘personal information’ within the meaning of the [Privacy and Personal Information Protection] Act ”, and submitted that the documents sought by the applicant are of a similar nature to a cheque warrant. The Council states that the person occupying the position of Director of Corporate and Regulatory Services during the relevant period has ceased employment with the Council, and the Council has been unable to obtain his views as required by section 31(2) of the FOI Act. The Council submitted that the public interest in disclosure does not outweigh the protection of personal privacy, as the disclosure of the information would only serve to excite or satisfy the curiosity of the applicant (relying on DPP v Smith [1991] 1 VR 51); the information does not directly affect or concern the applicant; and the information is not already in the public arena.

7 In relation to the clause 7 exemption, the Council submits that the documents clearly concern the “business, professional, commercial or financial affairs” of Council (relying on Cockcroft v Attorney-General’s department (1985) 12 ALD 462); they disclose the business and commercial affairs of other persons, in so far as the entries disclose the price paid for products purchased from various businesses; and there are no compelling reasons of public interest for disclosure as the bank statement do not reveal criminal conduct, hazardous work practices or products posing a threat to public safety (relying on Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 108 ALR 163).

8 Following the planning meeting on 3 March 2008 the respondent consulted local suppliers identified in the documents, and advised that only one response had been received. At the planning meeting of 3 March 2008 the respondent was asked to consider its position on certain handwritten codes appearing on the documents. In its letter dated 14 April 2008 the respondent advised that it did not wish to claim any exemption for that material.

Applicant’s case

9 In his request for internal review, and his application to the Tribunal, the applicant put his position as that of a concerned ratepayer. The applicant stated that there could be no information of a personal nature on the Council’s corporate credit card, which is only to be used to meet expenses incurred in carrying out Council business, and that the Director of Corporate and Regulatory Services should not be expending Council’s public monies on a corporate credit card in a way to the affect the business, professional, commercial or financial affairs of Council. In his written submission, the applicant submitted that the Council’s submissions had not offered any substantial evidence that the documents had any relevance to the personal or business affairs exemptions. The applicant submitted that the position of Director of Corporate and Regulatory Services should have no personal expenses paid by the Council, and that the Director was not empowered to expend monies on the Council’s corporate credit card for business expenses that would be economically or business sensitive to the detriment of Council’s business. The applicant stated:

My main thrust in asking for these documents, is to empower the principle of open and transparent expenditure of public monies. The expenditure by a Council officer must be seen to be beyond reproach.

For the General Manager of a Council to be the only person to check and assess accountability of council expenditure is completely contrary to the Local Government Act.

I respectfully submit that for the Tribunal to deny public access to expenditure of Public Monies by Council employees will lead to an incestuous position open to systemic corruption immune to public scrutiny.

I ask that the requested documents be made available to me. If there was an element of Business sensitivity, Council should simply have asked for those items to be deleted. And this has not happened.

Relevant legislation

10 Under section 16(1) of the FOI Act, a person has a legally enforceable right to be given access to an agency’s documents. This right is subject to other provisions of the FOI Act, in particular section 25(1)(a), under which an agency can refuse access to a document if it is an exempt document. Section 25(1) is qualified by section 25(4) of the FOI Act, which provides:

(4) An agency shall not refuse access to an exempt document (including a restricted document that is the subject of a Ministerial certificate):
(a) if it is practicable to give access to a copy of the document from which the exempt matter has been deleted, and

(b) if it appears to the agency (whether from the terms of the application or after consultation with the applicant) that the applicant would wish to be given access to such a copy.

11 Section 25(1) confers a discretion, and an agency may decide to provide access to a document notwithstanding that the document is an exempt document. In University of New South Wales v McGuirk , Nicholas J held that section 63 of the ADT Act provides the Tribunal with the discretion to order access to a document which is an exempt document if it decides that to do so is the correct and preferable decision with regard to the material then before it.

12 Under section 61 of the FOI Act, the respondent bears the onus of establishing that its determination of the applicant’s request was justified.

13 Clause 6 of Schedule 1 states:

6 Documents affecting personal affairs

(1) 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).

(2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made.

14 Clause 7 of Schedule 1 states:
7 Documents affecting business affairs

(1) A document is an exempt document:

(a) if it contains matter the disclosure of which would disclose trade secrets of any agency or any other person, or

(a1) if it contains matter the disclosure of which would disclose the commercial-in-confidence provisions of a government contract (within the meaning of section 15A), or

(b) if it contains matter the disclosure of which:

(i) would disclose information (other than trade secrets or commercial-in-confidence provisions) that has a commercial value to any agency or any other person, and

(ii) could reasonably be expected to destroy or diminish the commercial value of the information, or

(c) if it contains matter the disclosure of which:

(i) would disclose information (other than trade secrets, commercial-in-confidence provisions or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any agency or any other person, and

(ii) could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency.

(2) A document is not an exempt document by virtue of this clause merely because it contains matter concerning the business, professional, commercial or financial affairs of the agency or other person by or on whose behalf an application for access to the document is being made.
Consideration

15 The Council has provided the Tribunal a copy of a document on bank letterhead, headed “[Name of individual]’s Business Card Cardholder Statement”. The holder of the corporate card is identified by name rather than position. The document records a number of transactions, and against each transaction is a box, which contains handwritten numerical codes, under the heading “Applicable internal expense codes”.

Clause 6: Personal affairs

16 The starting point in consideration of whether clause 6 of Schedule 1 applies is to note that the term “personal affairs” is intended to be used in its ordinary meaning, to refer to matters of private concern to a person: Young v Wicks (1986) 13 FCR 85. In Commissioner of Police v District Court of NSW 31 NSWLR 606 (Perrin’s case) Kirby P (as he then was) observed at pages 624-5:

“The result of these authorities and of the plain language of the exemption is that in each case where the exemption is invoked, the decision-maker must consider whether disclosure of a name appearing in documents of the agency to which access is requested amounts to disclosure of information concerning the “personal affairs” of the person named. It is appropriate to go beyond the deleted words and to examine the document as a whole when considering whether the words disclose information concerning the personal affairs of the person named: cf Re Wong and Department of Immigration and Ethnic Affairs (1984) 2 AAR 208 at 210.

There is no simple rule that disclosure of the name of a person will in every case amount to disclosure of information concerning the named person's “personal affairs”. The Commissioner so submitted. However, I would reject that submission. It is true that disclosure of a name will disclose information concerning the person. But the submission pays insufficient attention to the composite phrase “the personal affairs”. The importance of the word “affairs” has been emphasised in the Federal Tribunal: see, example, Re Corkin & Department of Immigration and Ethnic Affairs (1984) 2 AAR 214; Re Wong and Department of Immigration and Ethnic Affairs (at 211). That word is to be interpreted as it is commonly understood in ordinary speech.”

17 Perrin’s case establishes a distinction between information concerning the duties of a public servant (in that case, police officers) and information relating to the public servant’s personal affairs. Kirby P held:
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 or (perhaps) private addresses would be disclosed. Such information would attract the exemption. But the name of an officer or employee doing no more than the apparent duties of that person could not properly be classified as information concerning the “personal affairs” of that person. The affairs disclosed are not that person’s affairs but the affairs of the agency.
18 This reasoning has been applied by the Tribunal: see for example A v Department of Health [2000] NSWADT 59, Department of Education and Training v Mullett [2002] NSWADTAP 13. The identification of the individual in whose name the corporate credit card was issued does not, in my view, disclose information concerning that individual’s personal affairs.

19 The documents contain details of financial transactions. The Council relies on the inclusion in the NSW FOI Manual of information relating to “income, bank balances, financial history or activities” as possibly constituting “personal affairs”. The FOI Manual provides as an example of that proposition the decision in Re Lower Burdekin Newspaper Co and Lower Burdekin Shire Council (2004) 6 QAR 328. That case concerned an application for access to documents, which contained information concerning the salaries, paid to particular council employees. The Queensland Information Commissioner determined that information enabling the calculation of the value of an officer's "all inclusive salary package" was information concerning the personal affairs of the council officers concerned. The information in the documents at issue is quite different, and relates to financial activities of the cardholder in his capacity as a council employee. The financial transactions recorded in the document include purchases in Cessnock and overseas. Each item has a handwritten entry under the heading “Applicable internal expense codes”. That would indicate that the expenditure was made on behalf of the council, and not the cardholder in his personal capacity. The information recorded in the document is not information concerning the personal affairs of the cardholder. None of the suppliers of the items purchased is an individual, and the information identifying the suppliers is not information concerning the personal affairs of any person. The information is not exempt under clause 6.

20 The Department of Local Government Meetings Practice Note (No.16) (November 2005) is in terms directed at providing information and advice for councillors, and comments that information in 'cheque warrants', or records of payments made by council, may contain 'personal information' for the purposes of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIPA). The Department of Local Government Circular 04/51 issued on 11 October 2004 also addresses the inclusion of cheque warrants in council business papers, and advises caution so that the requirements of the PPIP Act are not breached when a business paper is prepared.

Council’s may make other arrangements by which councillors maybe given access to the cheque warrant or other documents containing personal information provided there are legitimate reasons to do so related to the performance of council’s functions.
21 As noted above, the suppliers identified in the document are not individuals, and these Departmental policies are of limited assistance in this matter.

22 If, contrary to my conclusion in paragraph 19 above, the information does concern the personal affairs of the cardholder, there is still the issue of whether disclosure of that information would be “unreasonable”. In Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 the Administrative Appeals Tribunal held that this requires “consideration of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance.” The Tribunal went on to state that the public interest recognised by the FOI Act in the disclosure of information in documentary form held by an agency must be balanced against the public interest in protecting the personal privacy of a third party.

23 In Lower Burdekin the Queensland Information Commissioner had to determine whether disclosure of the information “would, on balance, be in the public interest” (section 44(1) Freedom of Information Act 1992 (Qld)). While acknowledging that that test is not the same as the balancing of competing interests required in clause 6, which can be read as requiring a finding that disclosure is not in the public interest, the comments of the Information Commissioner at paragraphs [26] to [28] concerning the general public interest in seeing how taxpayers’ money is spent are informative. In that case, the Information Commissioner determined that balance of public interest favoured disclosure of the gross cost of the salary and benefits paid to the Council officers. That reasoning is consistent with the objective of the FOI Act to encourage access to documents held by government agencies. I am not satisfied that disclosure of this information would be unreasonable. The exemption in clause 6 does not apply.

Clause 7: Business or financial affairs

24 For clause 7(1)(c) to apply, both sub-paragraphs (i) and (ii) must be satisfied. For sub-paragraph (i) to be met, the document must contain matter the disclosure of which would disclose information “concerning” the business, professional, commercial or financial affairs of an agency or any other person. The term “business affairs” generally relates to the conducting of a business or the carrying on of a commercial operation: Young v Wicks (1986) 79 ALR 448. In Wittingslow Amusements Group Pty Ltd v Director General, Environment Protection Authority (unreported, NSW Supreme Court 23 April 1993), Powell J noted:

… the general purpose sought to be fulfilled by section 32, in conjunction with clause 7 of Schedule 1 of the FOI Act, is to protect (inter alia) persons or companies such as the plaintiffs from the commercial disadvantage which they might suffer if commercially sensitive, or commercially valuable, information which they have provided, directly or indirectly, to an agency were to be disclosed.
25 The information in the documents relates to purchases made on behalf of the council. The Tribunal has previously considered that information concerning expenditures on external professional services, including the amounts paid, relates to the ‘financial affairs’ of an agency: Neary v State Rail Authority [1999] NSWADT 107; Fulham v Department of Environment and Conservation [2005] NSWADT 68; Cianfrano v Department of Commerce [2005] NSWADT 282; Cianfrano v NSW Treasury [2005] NSWADT 7; Cianfrano v Department of Commerce [2007] NSWADT 99. Looking at the mater from the perspective of the suppliers identified in the document, the information would also concern the business affairs of those suppliers. Paragraph 7(1)(c)(i) is met.

26 Sub-paragraph (ii) requires consideration of the effect of disclosure on those business and financial affairs. The question of what constitutes an “unreasonable adverse impact” was considered by O’Connor DCJ in Neary v State Rail Authority [1999] NSWADT 107, at [35]:

An objective view must be brought to bear on an agency’s claim that release will have an adverse impact on its financial affairs. The Tribunal should approach issue from the viewpoint of a reasonable administrator. The administrator should have reasonable grounds for his or her perception. There must be more than a mere risk. While the key word used in the relevant provision - ‘expect’ - carries a firmer connotation than words such as ‘anticipates’, it is not necessary that the level of risk be such that it be assessed as more probable than not. Nor is it necessary for the administrator to apply a balance of probabilities calculus similar to that used to set the burden of proof in litigation. All relevant factors, including public interest considerations, should be taken into account. The extent and nature of the effect will be relevant, and often decisive. It is necessary to assess what is reasonable in the circumstances.
27 The respondent argues that disclosure of information concerning the transactions could reasonably be expected to have an adverse effect on the business, professional, commercial or financial affairs of the council given that the information is “not common knowledge or in the public domain”. As Neary notes, there must be more than a risk of some adverse impact, and the extent and nature of the effect is relevant. On their face, the transactions recorded in the document appear to be for one-off purchases, rather than forming part of an on-going commercial relationship. There is no indication from the transactions as to how the council might suffer some competitive or other financial disadvantage if the information is disclosed. I am not satisfied that disclosure of this information would have an unreasonable adverse impact on the council's business or financial affairs. The respondent has not argued that disclosure of the internal expense codes to which the expenditures recorded in the statements has been attributed would have an adverse impact on its financial affairs.

28 The information recorded also relates to the business or financial affairs of the suppliers. Section 32 of the FOI Act requires an agency, before it gives access to a document that contains information concerning the business or financial affairs of a person, to take "such steps as are reasonably practicable" to obtain the views of those persons. Those views are relevant to, but not determinative of, the issue of whether disclosure would have an unreasonable adverse effect. At the request of the Tribunal, the respondent consulted local suppliers. The only response received raised no objections to access. It is difficult to see how disclosure of the information about the transactions could place the suppliers at a commercial disadvantage or otherwise harm their financial situation. I am not satisfied that disclosure of this information would have an unreasonable adverse impact on the financial or business affairs of the suppliers.

29 As an alternative, sub-paragraph (ii) can be met if disclosure could reasonably be expected to prejudice the future supply of information to the Government or an agency. The issue of prejudice to the future supply of information was considered in relation to the Commonwealth legislation equivalent to clause 7(1)(c)(ii) in Attorney-General’s Department v Cockcroft (1986) 64 ALR 97 at 106, where Bowen CJ and Beaumont J held:

In our opinion, in the present context, the words "could reasonably be expected to prejudice the future supply of information" were intended to receive their ordinary meaning. That is to say, they 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 Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act.
30 The transactions are on their face routine purchases of goods from commercial suppliers. Their recording is relevant for management of the respondent's finances, and proper attribution of expenditure within the context of the overall budget. There is no indication that disclosure would have any impact on future supply of information.

31 Neither clause 6 nor clause 7 applies to the documents in question. There was no other basis on which the respondent argued that the documents are exempt, nor any other basis on which access might properly be refused under section 25 of the FOI Act. Accordingly, the applicant is entitled to have access to the documents.

Orders

The decision under review is set aside

In its place the decision is made that the documents requested by the applicant are to be released in full within 28 days.