Hughes v Western Local Land Services

[2015] NSWCATAD 38

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Hughes v Western Local Land Services [2015] NSWCATAD 38

Hearing dates:

On the papers

Decision date:

11 March 2015

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J McAteer Senior Member

Decision:

(1) I extend time for filing the application until 5:00pm 16 May 2014.

(2) I order that the Respondent release document ‘E1’ to the Applicants with the names and email addresses of the third parties redacted, and paragraph 7 (beginning with the word ‘The’) redacted in its entirety.

(3) Order 2 is stayed for 28 days from the date of these orders.

(4) The Respondent is to contact the third party within 7 days of the receipt of this decision and provide him with a copy.

(5) The decision of the Respondent / Agency is otherwise affirmed.

Catchwords:

Government Information Public Access Act – Release of personal information – health information of third party – contravene an HPP – Freedom of Information Act Cth

Legislation Cited:

Administrative Decisions Review Act 1997
Evidence Act 1995
Freedom of Information Act 1982 (Cth)
Government Information (Public Access) Act 2009

Cases Cited:

Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409

Category:

Principal judgment

Parties:

Joe Hughes and Melanie Hughes (Applicants)

Western Local Lands Services (formerly known as the Darling Livestock Health and Pest Authority) Respondent

Representation:

Solicitors:
J and M Hughes (Applicants in person)
Legal Services Branch Department of Trade and Investment (Respondent)

File Number(s):

1410260

Reasons for decision

Background

1. Joe and Melanie Hughes (the Applicants) are members of the public who reside on a rural property / station in the Cobar region of Western New South Wales.

2. In On 12 August 2013 the Applicant’s made an application under the Government Information (Public Access) Act 2009 (the GIPA Act) for the following material:

• All documentation from LHPA / RLPB (Head Office, Cec Dorrington and Cobar Branch) with regards to Belarabon Station, Koonaburra Station, Jarrod Hughes or Joe Hughes and Melanie Hughes.

• From December 2012 to 12 August 2013.

• All complaints / reports or logs made to LHPA / RLPB regarding Joe Hughes or Jarrod Hughes and Melanie Hughes with all reference to Belarabon Station, and / or Koonaburra Station, regarding ANY/ALL issues (I understand that under the privacy act names cannot be included. Please note I am not interested in names just the issues logged.) Copies of all e-mail correspondence sent and received by Graeme Thomas between 8 March 2013 and 19 March 2013 inclusive.

• All correspondence from LHPA / RLPB Cobar office employees to LHPA head office.

• All correspondence from LHPA head office to LHPA / RLPB Cobar office employees.

• All correspondence between LHPA / RLPB Employees and LPMA (Western lands – NSW Trade and Investment), Department of Primary Industry Catchment and lands.

• All correspondence between LHPA / RLPB and RSPCA.

• All correspondence between LHPA / RLPA and CASA.

• All correspondence between LHPA / RLPA and RCI Unit.

• All correspondence between LHPA / RLPA and National Parks.

• The full LHPA / RLPB rangers reports for the year 2013 so far.

• Copies of all photos, in colour, taken in relation to Belarabon Station or Koonaburra Station, Joe Hughes and Melanie Hughes.

3. It appears from an examination of the material filed with the Tribunal that no decision was made in respect of the application following 20 working days. Section 57 of the GIPA Act provides that an agency must decide an access application and give the applicant notice of the agency’s decision within 20 working days after the agency receives the application.

4. Section 63 of the GIPA Act provides that if such an application is not decided within 20 working days, it is deemed to be refused by the agency. That decision is reviewable in accordance with section 80 (c) of the GIPA Act, and in this instance the Applicants had that decision reviewed by the Information Commissioner.

5. On 14 April 2014 the Information Commissioner finalised their review and recommended that the Agency (Local Land Services) had deemed to refuse the application and recommended under section 93 of the GIPA Act that the Agency reconsider the Applicant’s access application.

6. It appears that the Respondent Agency did not reconsider the access application in accordance with the recommendations of the Information Commissioner, or did not reconsider it within a further 20 working days in accordance with the initial access provisions in section 57 of the GIPA Act.

7. In the absence of any decision on the application being conveyed to the Applicants after 20 working days, the Applicants sought a review by the Tribunal under Part 5 Division 4 of the GIPA Act. That Application was filed on 16 May 2014 which I calculate to be the 21st working day after the Applicants were notified of the Information Commissioner’s review, when taking into account the time specified in section 161 of the Evidence Act 1995 and the meaning of working days over the Easter / Anzac day period that year. On this basis the application to the Tribunal was lodged just outside the required period under section 101 (2) of the GIPA Act. However noting the Applicant’s reasons for the slightly delayed lodgement (that they wished to give the Respondent Agency the full 20 working days to respond), the fact that it is only one day out of time, and that the time for service would have been a lengthier period had service been effected by post, pursuant to section 101 (4) of the GIPA Act, I find that the Applicant has provided a reasonable excuse for the delay and I extend time to file the Application until 5:00pm 16 May 2014.

8. The Tribunal’s function on review under section 63 of the Administrative Decisions Review Act 1997 is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.

9. The matter was listed for a number of Planning Meetings prior to hearing. The matter first came before the Tribunal on 8 July 2014 whereby a number of procedural directions were made. As it was clear that the Respondent had not dealt with the initial access application, the matter was remitted to the Agency pursuant to section 65 of the Administrative Decisions Review Act 1997. The matter was adjourned to another planning meeting.

10. At the next Planning Meeting on 30 September 2014 the Respondent had not provided a copy of its decision. A timetable was set for the material to be served and for a copy of the decision, the documents to be released and any confidential documents, to be filed with the Tribunal by 10 October 2014. The matter was adjourned for a further Planning Meeting on 20 November 2014.

11. The Respondent filed the access decision (dated 12 August 2014), and the confidential and non- confidential material on 7 October 2014. This decision dated 12 August 2014 is the first decision which is subject to review in these proceedings. (See paragraph 14 for second decision).

12. At the Planning Meeting on 20 November 2014 before Principal Member Higgins, an Application (dated 5 November 2014) was made by a third party to be joined to the proceedings. That application was by an individual (Mr R Neate) who was a former employee of the Respondent Agency and had a history of dealings with the Applicants in the course of that employment. References to Mr Neate were contained in the material that was produced in response to the access application. Mr Neate, and a legal representative of the Respondent were present at the Planning Meeting. The Applicant’s appeared by telephone. The application to be joined to the proceedings was refused by Principal Member Higgins.

13. A further timetable was set in respect of submissions by the parties. In particular reference was made to documents attached to an e-mail dated 17 February 2012, which the Respondent submitted was outside scope. In addition Directions were made that should the Applicants seek access to any other documents then a fresh GIPA Application needed to be lodged. Directions were made in respect of the filing and serving of submissions and evidence in respect of all matters in the application (including matters relating to the 17 February 2012 e-mail). The matter was then to be determined on the papers after 20 January 2015.

14. On 11 December 2014 the Tribunal received a copy of a fresh application which was lodged with the Respondent Department on 5 December 2014. That application sought access to:

• Document ‘E1’ as listed in previous GIPA Application 5/3/2013.

• Document ‘attachment to email’ between Kate Allen, Robert Neate and Cec Dorrington 17/2/2012 (approx.).

• Document ‘CASA Investigation Report’ dated 21/6/2012 (includes all statements from Robert Neate to CASA).

Applicable Legislation

15. The objects of the GIPA Act are as follows:

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.

16. The case of Mannix v Department of Education and Communities [2014] NSWCATAD 35 provides a useful outline of the approach under the GIPA Act. At paragraph 5 Senior Member Walker provides the following outline of the provisions:

5. The objects of the GIPA Act as set out in s 3(1) are to advance the system and of responsible and representative democratic government by authorizing and encouraging public release of government information by agencies, giving the public an enforceable right to access to government information and providing that such access is restricted only when there is an overriding public interest against disclosure.

6. The term "government information" is given a wide meaning by s 4, being defined as "information contained in a record held by an agency". "Agency" is also defined in s 4 and includes "(a) a Government Department". It is not disputed that the Department of Education and Communities is such a department and is therefore an agency to which the legislation applies.

7. The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 5. Applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure: s 9. The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the "overriding secrecy laws" set out in schedule 1. In the case of those laws it is conclusively presumed that there is an overriding public interest against disclosure: ss11 and 14.

8. With respect to government information not covered by overriding secrecy laws, the Act establishes a principle that there is a public interest in favour of disclosure: s12(1). The category of public interest considerations in favour of disclosure is not limited: s 12(2). That subsection then sets out several examples of public interest considerations in favour of disclosure.

9. There can be an overriding public interest against disclosure only when the public interest test in s 13 is satisfied. It provides that "There is an overriding public interest against disclosure of the government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure".

10. In considering whether there is an overriding public interest against disclosure, the tribunal is to be guided by s 15, which provides, relevantly for present purposes, that agencies must exercise their functions so as to promote the objects of the GIPA Act and must have regard to any relevant guidelines issued by the Information Commissioner.

17. Section 14 of the GIPA Act provides the circumstances whereby public interest considerations against disclosure of government information may be applied. Relevant to this application, the Agency relied on the provisions outlined below (being public interest considerations) against disclosure of a small quantity of the information. Relevantly section 14 provides:

14 Public interest considerations against disclosure

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.

(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.

(3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section.

(4) The Information Commissioner must consult with the Privacy Commissioner before issuing any guideline about a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to this section).

The Decision

18. The Respondent in its decision of 25 August 2014 determined to release all material within scope, other than the following material:

Correspondence to or from you, or any Human Resource matters raised as a result of the Confidential IAB Report, have not been included. (emphasis added)

19. It appears that the material (in bold – above) is not the material which is subject of review in these proceedings. However I note that there is the other issue concerning material which the Respondent claims is outside of the scope of the application. (See paragraph 13 above).

20. The second Application determined not to release two sources of material. (See paragraphs 23 and 24 below)

The Respondents Evidence

21. An affidavit of Robert Colin Gregory sworn 9 January 2015 was filed in the proceedings. As the matter was agreed to be heard on the papers, the evidence in the affidavit is uncontested. The affidavit provides evidence of the searches conducted by the Respondent in processing the GIPA request. Those searches involved physically looking for hard copy documents, searching databases for records and questioning staff about knowledge of certain types of records and their possible whereabouts.

22. The affidavit also outlined the decision and steps taken to consider release of the documents referred to in the second GIPA Application (as set out at paragraph 14 above).

23. In respect of the information titled ‘E1’ the affidavit deposed the considerations against disclosure pertaining to Responsible and effective government (section 14 Table Clause 1), and Individual rights, judicial processes and natural justice. (section 14 Table Clause 3).

24. In respect of the two items of information relating to the Civil Aviation Safety Authority (CASA), the affidavit deposed the consideration against disclosure pertaining to Exempt documents under interstate Freedom of Information legislation (section 14 Table Clause 7).

The Applicant’s Evidence.

25. The Applicant’s material included their application to the Tribunal, a copy of their second GIPA Application of December 2014, and copies of documents already provided under the GIPA Act or applications under the Freedom of Information Act 1982 (Cth). The Applicant’s did not provide any sworn statements in evidence but provided numerous written submissions and correspondence in support of their application.

The Respondent’s Submissions

26. The Respondent’s submissions essentially were contained within the Affidavit of Robert Colin Gregory. Mr Gregory was the officer who undertook the reviews and as such was in a position to give evidence as to the consideration of the application and weighting process applied to the material under the GIPA Act. A significant amount of the Respondents submissions and material addressed the position concerning previous release of documents, the scope of the requests, and providing copies (further or otherwise) of documents sought by the Applicants, which were released on an information basis.

27. The two main prongs of the Respondent’s submissions were that the excluded documents (E1 and CASA – as per paragraphs 23 and 24 above), should be withheld, because once appropriate weight was applied to the relevant considerations under the Table to section 14 of the GIPA Act, the public interest consideration against disclosure outweighed the public interest considerations in favour of disclosure. One of the submissions in relation to ‘E1’ was that the document contained minimal personal information of the Applicants and therefore the personal information of the third party was a greater consideration.

28. Additionally the Respondent submitted that the release of the information could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of the agency’s functions and prejudice the effective exercise by the agency of the agency’s functions. In this regard the submission implied that an investigation, compliance or enforcement officer employed by an agency, need to have full and frank conversations and communications with mangers and associated staff about their role and discharging their duties.

29. Further submissions focused on exposing a person to a risk of harm or serious harassment or serious intimidation. The Respondent submitted that for the application of strong governance, Agencies and their staff must be able to conduct internal disciplinary inquiries without fear of disclosure. Disclosure of the document would lead to the sensitive personal information about a third party being made public.

30. The final submission centred on a belief by the reviewer, based on conversations with staff with knowledge of the substantive matter, that there was concern and reluctance to be forthcoming with information for fear of being identified and potential retribution that may result. However I note that no evidence was provided to substantiate any of these claims.

The Applicant’s Submissions.

31. The Applicant’s submissions addressed the matters raised by the Respondent. In respect of the personal information submission in respect of ‘E1” the Applicant submitted that the Respondent’s submissions were contradictory. At paragraph 38 of the Affidavit the reference is that the information is principally about Mr Neate and there was very little information about Mr Hughes. However the Applicant submitted that at paragraph 40 the Respondent said that the information is personal information of the person to whom it is to be disclosed.’ (Mr Hughes).

32. Other submissions, with respect took a subjective approach to the withheld material, and made assertions as to its veracity (or otherwise). Elsewhere in the submissions the Applicant’s submit that the purpose of accessing the material is so that they can identify the assertions and have them tested.

31. I have taken all of the submissions and evidence of the parties into account even though I may not specifically refer to all of it in these reasons.

Consideration

34. In the case of Commissioner of Police v Camilleri [2012] NSWADTAP 19, the Appeal Panel stated, at [23], that:

23. As the case developed at the appeal hearing, it became clear that the three questions of law had as their common theme a submission that the Tribunal had misunderstood the relationship between sections 12, 13 and 14 when analysing an agency case for non-disclosure. Each of the matters raised in the questions of law challenge particular steps in the reasoning that are illustrative of the broader criticism.

24. Putting to one side the cases where a conclusive presumption is relied upon, the Act envisages a two-step approach to the question of whether information has been properly refused.

25. The new Act has a more structured approach to the decision-making task than was seen under the previous legislation. The agency case for refusal must rely on one or more of the section 14 Table considerations. The Tribunal's task is then to weigh that case against the factors favouring disclosure (s 13), mindful of the injunctions that appear in both ss 12 and 15. It is important, in our view, that the Tribunal proceed in the structured way reflected by these provisions. The Table considerations are concerned with systemic features of the operation of government.

26. We agree with the agency's submission that the section 14 questions needed to be examined at a broader operational level than occurred in this case. The record in issue was generated in one of the standard services of the police force. It would not be usual, as we see it, to introduce at this stage of the process considerations connected with the particulars of the instant situation. The agency acknowledged that at the next stage of the enquiry, the section 13 stage, it would be proper to have regard to specific aspects of the instant case.

27. The approach to be adopted is similar to that commended by the Appeal Panel under the previous legislation, there in connection with cl 13(b)(ii). Clause 13(b)(ii) provided that 'a document is an exempt document if it contains matter the disclosure of which could reasonably be expected to prejudice the future supply of such information to the Government or to an agency'. Clause (b)(iii) went on to provide 'and would, on balance, be contrary to the public interest'.

28. In Director General, Department of Education & Training v Mullett & anor (GD) [2002] NSWADTAP 13 (Mullett), the Appeal Panel said:

58 In our view cl 13(b)(ii) requires the Tribunal to engage in a relatively abstract analysis. It must ask whether material of the kind sought to be protected on the present occasion would, if released, prejudice the supply of similar material to government in the future, as a matter of reasonable expectation. That requires the Tribunal to characterise the nature of the material sought to be protected on the present occasion; to identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; the extent to which guarantees of confidentiality may be necessary. We agree with the dicta of Young CJ in Ryder v Booth[1985] VR 870 as to how a similar question arising under the Victorian FOI Act's in-confidence exemption (whether disclosure would be reasonably likely to impair the ability of an agency to obtain information communicated in confidence) should be approached. His Honour said at 872:

`The question then is, would disclosure of the information sought impair (i.e. damage) the ability of the [agency] to obtain similar information in future. ... It may be noted that it is the ability of the [agency] that must be impaired. The paragraph is not concerned with the question whether the particular doctor whose report is disclosed will give similar information in future but with whether the agency will be able to obtain such information. ...'

29. This approach was endorsed in many subsequent Tribunal and Appeal Panel decisions. The same approach is required, as we see it, in relation to many of the s 14 Table considerations. They squarely focus on considerations relating to the conduct of the business of government. Under the first five clauses of the section 14 Table there are a total of 35 possible 'effects' listed (clause 1, nine; clause 2, nine; clause 3, seven; clause 4, five; clause 5, five). Each of the five clauses is introduced by the words:

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:.

30. The Tribunal is called on to examine whether the effect is established and then to ask whether the disclosure 'could reasonably be expected' to have the specified effect.

35. It is clear that the Applicants are engaged in an information gathering exercise in respect of their grievances with the Respondent. It is also clear that the information in the document ‘E1’ is, in my view, not characterised as information that the release of which would prejudice the future supply of confidential information, that facilitates the effective exercise of an agency’s functions. The material is opinionated, and narrative in nature. The material is also administrative in nature in that it does not discuss or disclose confidential matters that go to the Respondent Agency’s functions. The information is provided in the course of the discharge of the officer’s and agency’s functions.

36. In my view there is a strong public interest in favour of disclosure in respect of much of the information contained in ‘E1’. The information relates to the third party’s views about one of the Applicants, and as such, is significantly both Mr Hughes and Mr Neates personal information. The document contains information and opinion about the Applicants and as such there is a strong public interest consideration in favour of disclosure in accordance with section 12 (2) (d) of the GIPA Act. Having said that, I believe that there needs to be some redaction of the information, in that it conveys information which could be described as sensitive information of the third party and could contravene a Health Privacy Principle (HPP) and as such in my view significant weight should be applied to the provisions of Clause 3 (b) of the Table to section 14.

37. I propose that the information in the document ‘E1’ be released in the following form:

• The references to the names / e-mail addresses of third parties (other than Mr Hughes) be redacted.

• Paragraph 7 beginning with the word ‘The’ is to be redacted in its entirety.

38. In respect of the CASA material, I agree with the Respondent’s submissions. In particular I have regard to the evidence before me that the material is held by the Respondent Agency, only in relation to the Commonwealth body (CASA) engaging in a consultation process under the Commonwealth Freedom of Information legislative regime.

39. Clause 7 to the Table to section14 of the GIPA Act provides the following:

7 Exempt documents under interstate Freedom of Information legislation

(1) There is a public interest consideration against disclosure of information communicated to the Government of New South Wales by the Government of the Commonwealth or of another State if notice has been received from that Government that the information is exempt matter within the meaning of a corresponding law of the Commonwealth or that other State.

(2) The public interest consideration under this clause extends to consideration of the policy that underlies the exemption.

(3) In this clause, a reference to a corresponding law is a reference to:

(a) the Freedom of Information Act 1982 of the Commonwealth, or

(b) a law of any other State that is prescribed by the regulations as a corresponding law for the purposes of this clause.

40. In my view, when having regard to Clause 7, and the evidence before me, that when CASA was consulted about the further request for release of the material, advice was received that the information had been withheld under the Freedom of Information Act 1982 (Cth), significant weight should attach to this provision.

41. When applying weight to the provisions of clause 7 of the Table to section 14 of the GIPA Act, I find that the public interest consideration against disclosure significantly outweighs the overriding public interest consideration in favour of disclosure.

Conclusion

42. It follows that the document ‘E1’ is to be released in the redacted form outlined at paragraph 37 above. The order will be stayed for 28 days so that the Respondent can contact the third party and advise him of the decision.

43. Orders:

1. I extend time for filing the application until 5:00pm 16 May 2014.

2. I order that the Respondent release document ‘E1’ to the Applicants with the names and email addresses of the third parties redacted, and paragraph 7 (beginning with the word ‘The’) redacted in its entirety.

3. Order 2 is stayed for 28 days from the date of these orders.

4. The Respondent is to contact the third party within 7 days of the receipt of this decision and provide him with a copy.

5. The decision of the Respondent / Agency is otherwise affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 11 March 2015