Hoy v Department of Lands

[2010] NSWADT 193

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Hoy v Department of Lands  [2010] NSWADT 193

DIVISION:
GENERAL DIVISION

PARTIES:
APPLICANT
Glenda Hoy

RESPONDENT
Department of Lands

FILE NUMBERS:
093244

HEARING DATES:
On the papers

SUBMISSIONS CLOSED:
12 July 2010

DATE OF DECISION:
30 July 2010

BEFORE:
Higgins S - Deputy President

LEGISLATION CITED:
Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989
Freedom of Information Act 1982 (Cth)
Real Property Act 1900

CASES CITED:
Dawson v Health Care Complaints Commission [1999] NSWADT 57
Keriakes v State Rail Authority [2003] NSWADT 191
Neary v State Rail Authority [1999] NSWADT 107 at [42], CH Real Estate Pty Ltd (t/s Raine & Horne Commercial Penrith) v Penrith City Council [2005] NSWADT 147
Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257
Re Mangan and the Treasury [2005] AATA 898
Re Pfizer Pty Ltd and the Department of Health, Housing and Community Services (1993) 30 ALD 647
Re Sitel Australia Pty Ltd and Employment Advocate (2005) 40 AAR 552 and [2005] AATA 617
Surf Life Saving Australia Ltd v Department of Education and Training [2001] NSWADT 76

TEXTS CITED:

APPLICATION:
Access to documents

MATTER FOR DECISION:

REPRESENTATION:
APPLICANT
In person
RESPONDENT
P Blair, solicitor

PUBLICATION RESTRICTION:
Order under sub-section 75(2) of the Administrative Decisions Tribunal Act 1997

ORDERS:
1.The decision of the respondent in regard to Document No 9, 41, 50 and 55 is set aside and in substitution thereof a decision that access to these Documents is refused on the grounds that the Documents are exempt under clause 6 of Schedule 1 of the FOI Act.
2.By consent, the decision of the respondent in regard to Document No 48 is set aside and in substitution thereof a decision that access to this Document is refused on the grounds that the Document is exempt under clause 10 of Schedule 1 of the FOI Act.

Reasons for Decision:

REASONS FOR DECISION

1. This is an application by Ms Hoy seeking review of a decision made, under the Freedom of Information Act 1989 (the FOI Act), by the Registrar General of the Department of Lands (the respondent). The decision the subject of review is a decision to grant access to a third party (the FOI applicant) copies of documents Ms Hoy had lodged with the respondent in support of a Primary Application under Part 4 of the Real Property Act 1900.

1. Ms Hoy’s standing to bring this application arises from section 32(3) and 53(1) of the FOI Act and section 38 of the Administrative Decisions Tribunal Act 1997.

2. The Primary Application lodged by Ms Hoy concerned a laneway behind specified land. The land in question is old systems land. Mr Blair, solicitor for the respondent, contended that Ms Hoy’s Primary Application was based on at least 12 years adverse possession: see sub section 14(2) of the Real Property Act 1900. Ms Hoy contended that when the land was purchased in the 1950’s that purchase included the laneway. Whether Ms Hoy’s Primary Application is made out or the basis on which it is or is not made out is not a matter for determination by the Tribunal. The role of the Tribunal is to determine whether the decision of the respondent to grant the FOI applicant access to documents that were lodged by Ms Hoy was the correct and preferred decision: see section 63 of the FOI Act.

3. The FOI applicant is the solicitor acting on behalf of the owner of another property that adjoins the laneway.

4. It was the contention of Ms Hoy that: (a) the documents were exempt in that they contained information of a commercial value and that the release of that information to the FOI applicant could reasonably be expected to destroy or diminish the commercial value of the information (see clause 7(1)(b) of Schedule 1 of the FOI Act), and (b) the respondent should refuse to grant the FOI applicant access to the document under paragraph 25(1)(a) of the FOI Act. The respondent contended that the information in the disputed documents did not contain any information of a commercial value and were therefore not exempt documents for which it could refuse access.

5. Initially, Ms Hoy objected to the FOI applicant being granted access to numerous documents.  However, following several planning meetings, the number of documents that remained in issue were the following 4 documents:

   Document 9Conditions and Terms of Sale of Land dated 12 November 1957

   Document 41          Letter, dated 15 February 1993, from J W Bourke, Town Clerk of the Council of the City of South Sydney to [personal information]

   Document 50          Letter, dated 8 April 1994, from K Nettle, Director of the Land Titles Office to [personal information]

   Document 55          Letter, dated 5 January 2000, from Mr A McDougall of the Rates Section of the South Sydney Council to [personal information]

6. The parties agreed that the application could be determined on the papers: see section 76 of the Administrative Decisions Tribunal Act 1997. However, on examining the material that had been filed and the content of the documents that were in dispute I formed a preliminary view that the documents did not contain information that had a commercial value, but they arguably contained information concerning the personal affairs of a person other than the FOI applicant and the documents were arguably exempt under clause 6 of Schedule 1 of the FOI Act. As this was not an exemption raised in the material lodged by the parties to this application, at my request, the Registrar wrote to the parties informing them of my preliminary views and inviting them to file and serve further written submissions on the question of the documents being exempt under clause 6 and listing the matter for directions. Ms Hoy and the respondent both filed and served additional written submissions on this issue. At the directions hearing, Mr Blair, solicitor for the respondent, confirmed that it was not disputed that the documents in issue contained information concerning the personal affairs of a person other than the FOI applicant. However, it was the respondent’s contention that disclosure of the information would not be an unreasonable disclosure of that information.

1. During the directions hearing there was some discussion about the content of the documents in dispute. This discussion I ordered to be held in confidence pursuant to section 55 of the FOI Act and I made an order under sub-section 75(2) of the Administrative Decisions Tribunal Act 1997 prohibiting the publication and disclosure of this discussion and also prohibiting the publication and disclosure of any material filed and served in this application which would reveal the content of the exempt documents. Excluded from this order were Ms Hoy and the respondent to this application.

2. At the directions hearing Ms Hoy also raised Document No 48, which the respondent had determined not to be exempt. This Document was attached to Document No 49, which was a letter, dated 10 February 1994, between a solicitor and his client. The respondent had determined that Document No 49 was exempt as it was found to contain matter that would be privileged from production in legal proceedings on the ground of legal professional privilege: see clause 10 of Schedule 1 of the FOI Act. Ms Hoy contended that on the basis of the respondent’s determination about Document No 49, Document 48 should also have been determined to be exempt on the same grounds as it was the subject of the letter that was Document No 49. Without further argument, or finding by the Tribunal, Mr Blair, on behalf of the respondent, agreed to the decision to grant access to Document No 48, was to be set aside and in substitution thereof a decision to refuse the FOI applicant access to the Document on the grounds of legal professional privilege.

3. In regard to the remaining 4 documents in dispute, the parties confirmed that the respondent’s decision in regard to these documents should be determined on the papers.  These are the Tribunal’s reasons for decision in regard to the respondent’s decision in regard to these 4 documents.

The relevant legislation

1. The objects of the FOI Act includes ‘to extend, as far as possible, the rights of the public to obtain access to information held by the Government’: see section 5(1)(a). The means by which this object is to be achieved is: (a) by ensuring that information concerning the operations of the Government (including, in particular, information concerning the rules and practices followed by the Government in its dealings with members of the public) is made available to the public, and (b) conferring on 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 the Government. The restrictions are those contained in the FOI Act, including refusing access to documents that contain ‘exempt matter’ falling within one or more clauses in Schedule 1 of the FOI Act.

2. For the purposes of this application, the relevant exemptions are as follows:

   6   Documents affecting personal affairs

3. 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).

4. 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.

   7   Documents affecting business affairs
   (1)  A document is an exempt document:

   (a)  ..., or
   (a1)  ..., 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)  ...

   (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.

5. Section 60 of the FOI Act provides that the onus is on the respondent to establish that its decision is justified.

1. Section 59A of the FOI Act provides that when determining whether the disclosure of a document would be contrary to the public interest it is irrelevant that the disclosure may (a) cause embarrassment to the Government or a loss of confidence in the Government, or (b) cause the FOI applicant to misinterpret or misunderstand the information contained in the document because of an omission from the document or for any other reason.

Consideration

1. Business affairs exemption – it is convenient to first deal with the issue as to whether the documents in dispute contain matter that has a commercial value.

1. It is well accepted that information has commercial value where the information has a value that is capable of being described as commercial in character: see Re Mangan and the Treasury [2005] AATA 898 at [36]. In Re Sitel Australia Pty Ltd and Employment Advocate (2005) 40 AAR 552 and [2005] AATA 617 at [49], the Administrative Appeals Tribunal held that the term, as it appears in the equivalent section of the Commonwealth Freedom of Information Act 1982, had two meanings. The first is where the information is valuable for the purposes of carrying on the commercial activity in which a government agency or another person is engaged in and the second is where a genuine arm’s-length buyer is prepared to pay to obtain the information.

1. Commercial value has been found to attach to information contained in a document which concerns the nature of, techniques used in, and the actual results of tests or research of a commercial activity undertaken by an agency or another person: Neary v State Rail Authority [1999] NSWADT 107 at [42], CH Real Estate Pty Ltd (t/s Raine & Horne Commercial Penrith) v Penrith City Council [2005] NSWADT 147 at [40] and [41], Re Pfizer Pty Ltd and the Department of Health, Housing and Community Services (1993) 30 ALD 647 at 676 and Surf Life Saving Australia Ltd v Department of Education and Training [2001] NSWADT 76.

1. Ms Hoy contended that the documents in dispute had a commercial value as they could be sold.  It is noted that she made this assertion on the advice of the lawyer she had engaged in regard to her duties as executor under a will.  The respondent in his internal review determination found that the documents in dispute could not be sold and hence had no commercial value.

1. In my opinion the determination of the respondent is correct.  The information contained in these documents is not of a commercial character. 

1. Accordingly, for the reasons set out above, I find that the respondent’s decision that the documents in dispute are not exempt documents under clause 7(1)(b) of Schedule 1 of the FOI Act is correct.

1. Personal affairs exemption – as I have already mentioned, it is not disputed that the disputed documents contain information concerning the personal affairs of a person other than the FOI applicant.  The issue is whether the disclosure of the documents would involve an unreasonable disclosure of that information.

1. In determining whether a disclosure would involve an unreasonable disclosure of personal information, the Tribunal has accepted the following comments of the Administrative Appeals Tribunal, in Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 at [51], in regard to the application of the equivalent provision in the Commonwealth Act:

   [51] … [I]t is not every document, the disclosure of which would involve the disclosure of information relating to the personal affairs of a person, that is exempt from disclosure under the Act.  Exemption is only attracted if the disclosure would involve the unreasonable disclosure of information relating to those affairs.  Whether a disclosure is “unreasonable” requires, in my view, a 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.  Plainly enough what [the section] seeks to do is to provide a ground for preventing unreasonable invasion of the privacy of third parties.
   However, consistently with the stated objects of the Act (see s 3), it is also necessary in my view to take into consideration the public interest recognised by the Act in the disclosure of information in documentary form in the possession of an agency and to weigh that interest in the balance against the public interest in protecting the personal privacy of a third party whose personal affairs may be unreasonably disclosed by granting access to the document.   

2. Ms Hoy’s objection to the disclosure of the documents is relevant but not determinative: see Dawson v Health Care Complaints Commission [1999] NSWADT 57. Nor should the Tribunal adopt a ‘leaning’ position in determining where the public interest lies: see Keriakes v State Rail Authority [2003] NSWADT 191.

1. Mr Blair, solicitor for the respondent explained that when the respondent received a Primary Application under Part 4 of the Real Property Act 1900, it was standard procedure for the respondent to advise owners of land that surrounded the subject land of the Application having been received. He said this was done so that these owners of surrounding land could take any action they considered appropriate to protect any interest they may assert they have in regard to that land. He also said that, where the owners of surrounding land seek access to documentation lodged by the party making the Primary Application, the standard procedure of the respondent is to suggest that the owner of the surrounding land seek access to that documentation under the FOI Act. He said that to date there had been no objection to the release of such documentation.

1. Ms Hoy said that she had at all times understood that the documents she had lodged in support of her Primary Application were provided in confidence and that they would remain confidential. She was also concerned that the disputed documents, if released to the FOI applicant, would be misunderstood or misconstrued. As I explained to Ms Hoy this was not a basis to refuse access to the documents in question: see section 59A above.

1. It was the respondent’s contention that on balance, the public interest lay with the disclosure of the documents in issue for the following reasons:

(a) the information in the documents was not particularly private or sensitive;
(b) had Ms Hoy lodged her Primary Application for title to the Supreme Court, the documents would need to be attached to an affidavit filed in support of that application and all parties to the litigation would have access to that information; and
(c) ‘there is a public interest in having applications by the Registrar-General [the respondent] for the grant of a possessory title to be open for scrutiny by the public.  This is so the public can be confident that possessory title applications are only granted by the Registrar-General [the respondent] on sufficient evidence, and after consideration of any counter evidence.  Such counter evidence cannot be lodged by a party opposing the application unless the party is able to see the evidence in support of the application.’ 

1. Although, the respondent did not believe that the personal information in the documents in issue were particularly private or sensitive, this was not how Ms Hoy viewed the information.  She clearly considered it to be very private in that it related to the personal affairs of a person other than the FOI applicant. In my opinion, that was not an unjustified position to have adopted in the circumstances in which she understood the information had been provided.

1. While I agree that it is in the public interest that the respondent be placed in a position to make informed decision in regard to Primary Applications, I do not accept that this falls within the objects of the FOI Act. It is a matter for the respondent to determine, through appropriate procedures, made known to an applicant of a Primary Application, how decisions are made in an informed and open way. If, at the time Ms Hoy lodged her Primary Application, the respondent had in place procedures requiring Primary Application material to be made available to persons who satisfied the respondent that they had a legitimate interest in the land the subject of the Application, there would undoubtedly have been no objection to the disclosure of the documents to the FOI applicant. As no such procedures are in place, in my opinion, the public interest, on balance, rests with the disclosure of the personal information contained in these documents as amounting to an unreasonable disclosure of that information.

1. I also find that the fact that the documents in question may be filed in proceedings commenced in the Supreme Court is a basis on which to find that the disclosure of the personal information in the documents is not an unreasonable disclosure of that information. 

1. I appreciate that the documents in dispute all came into existence some time ago.  However, they are clearly of current significance to Ms Hoy’s Primary Application. 

1. Accordingly, in my opinion, for the reasons set out above, the respondent has failed to satisfy me that its decision to release the Documents in question is not the correct and preferred decision. Instead I find that the documents are exempt, in their entirety, under clause 6 of the Schedule 1 of the FOI Act.

1. Determination of Ms Hoy’s Primary Application remains a matter for determination by the respondent. If he is unable to make the determination without receiving evidence or comment from the owners of land that surrounds the land the subject of the Application, this also remains a matter for the respondent and Ms Hoy to resolve outside of the FOI Act.

1. On the basis of my findings, the appropriate order is that the respondents decision in regard to Document No 9, 41, 50 and 55 is set aside and in substitution thereof a decision that access to these Documents is refused on the grounds that the Documents are exempt under clause 6 of Schedule 1 of the FOI Act.