Hurst v Wagga Wagga City Council

[2011] NSWADT 307

Administrative Decisions Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Hurst v Wagga Wagga City Council [2011] NSWADT 307

Hearing dates:

On the papers

Decision date:

22 December 2011

Jurisdiction:

General Division

Before:

P Molony, Judicial Member

Decision:

1. The decision under review is set aside.

2. Instead the Tribunal determines that the respondent will provide the applicant, within 30 days of the publication of these reasons,

with:

(a) a copy of the internal audit report without deletions; and

(b) copies of documents 4 and 5 (with attachments) subject to the deletions specified in paragraphs 79 and 87 of these reasons.

Catchwords:

Government Information Public Access - personal information - operation of agencies - conduct, effectiveness or integrity of any audit, test, investigation - false or unsubstantiated allegations about a person that are defamatory

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Government Information (Public Access) Act 2009
Local Government Act 1993
Local Government (General) Regulation 2005

Cases Cited:

Attorney-General's Department v Cockcroft (1986) 10 FCR 180
Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409
McKinnon v Secretary, Department of Treasury [2006] HCA 45
XZ v Commissioner of Police, NSW Police Force [2009] NSWADTAP 2
Lower Burdekin Newspaper Company Pty Ltd and Lower Burdekin Shire Council [2004] QICmr 2
Re Stewart and Department of Transport, [1993] QICmr 6; (1993) 1 QAR 227
Re Milthorpe and Mt. Alexander Shire Council (1997) 12 VAR 105
Re Asher and Department of State and Regional Development [2002] VCAT 609

Texts Cited:

Robinson, NSW Administrative Law (Thompson Reuters)

Category:

Principal judgment

Parties:

Peter Hurst (Applicant)
Wagga Wagga City Council (Respondent)

Representation:

T Abbot (Applicant)
L Taylor (Respondent)
Information Commissioner

File Number(s):

113057

REasons for decision

Introduction

1. Peter Hurst has made an application to the Tribunal to review a decision made by the Wagga Wagga City Council (the agency) under the Government Information (Public Access) Act 2009 (the GIPA Act) dated 28 January 2011.

1. Mr Hurst originally applied to the agency on 21 December 2010 under the GIPA Act for access to the following information:

"1. Internal audit (in total) mentioned in letter attached.

2. All reports & correspondence related to the Code of Conduct dismissal referred to in the letter attached."

1. The "letter attached" was from the General Manager of the agency to Mr Hurst. It was dated 13 August 2010. It referred to a code of conduct complaint Mr Hurst had made in June of that year to the agency concerning two of its officers. The letter, among other things, advised that Mr Hurst's complaint against the officers was being dismissed, following an internal audit. That audit had placed the General Manager in a position where he could "confidentially dismiss the Code of Conduct complaint lodged by you ..."

1. Ms O'Leary, the agency's Information Access Officer subsequently sought clarification from Mr Hurst of the items he was seeking under the GIPA Act. On 7 January 2011, following a conversation with Mr Hurst, she confirmed with respect to item 2 of his request that -

"...the documents sought are any relating to your Code of Conduct complaint, including internal/external correspondence or reports relating to dismissal of part of the complaint, who preformed the internal audit, the scope, eg what did the audit indicate and conclusions."

1. Following a search for information responsive to the request, and consultations with third parties, Ms O'Leary identified 13 documents held by the agency that fell within the terms of the request. On 28 January 2011 she determined to:

• Release 9 of the documents to Mr Hurst.
• Refuse access to two documents
• Release one document with deletions
• Allow Mr Hurst to view one document, subject to deletions, in electronic format at the agency's premises under supervision and to make handwritten notes.

1. Mr Hurst applied to the Tribunal to review that decision 7 March 2011. His application came before me at a planning meeting on 12 April 2011. At that time it was agreed that the application would be determined on the papers, subject to the Tribunal determining that this was not appropriate. I made directions for the provision of evidence and submissions, which closed on 16 September 2011.

Material before the Tribunal

1. In making this determination the Tribunal has considered the following material:

• Mr Hurst's application for review of a reviewable decision with attachments.
• Statement of Jennifer O'Leary the agency's Information Access Officer with attachments.
• Statement of Narelle McCormack, the agency's Manager, Corporate Governance with attachments.
• Statement of Peter Hurst with attachments.
• Confidential copies of the documents in issue.
• The agency's submission
• Mr Hurst's submissions.
• The Information Commissioner's submissions.

1. Section 104(1) of the GIPA Act provides that the Information Commissioner has a right to appear and be heard in relation to reviews by the Tribunal.

Factual Background

1. Mr Hurst's statement provides some detail of the factual background to this request, principally by reliance on a series of newspapers articles and other attachments to his statement. These document the degree of developer and industry dissatisfaction with the operation and management of the DA process at the agency, commencing with a protest rally, which was reported in the Weekend Advertiser of April 10 and 11, 2010.

1. Mr Hurst's personal dissatisfaction led him to make a Code of Conduct complaint against two senior council officers. The complaint included allegations of serious impropriety by those officers.

1. Following receipt of the complaint, the General Manager arranged for internal audit to be undertaken with respect to matters raised in Mr Hurst's complaint. The officers who were subject to complaints were each given copies of the complaint, and the opportunity to respond in writing. Their responses (documents 4 and 5) are the documents that Mr Hurst has been refused access to. The internal review gave the same reasons for refusing access to both documents. Those reasons were -

"The public interests against disclosure under section 14(2) GIPA Act Note 1 (paragraphs (guardian) and (h) where disclosure could reasonably result in the disclosure of information provided to an agency in confidence, and would reasonably be expected to prejudice the conduct of future investigations or audits outweigh the interests of disclosure. Also considering Section 14(2) GIPA Act Note 3 (paragraphs (a) and (e), records contain personal information and reveal false and unsubstantiated allegations.

The authors have been consulted and objected to the release of personal information and this has been taken into account under s 54.

Under Section 15 the inability to place restrictions on the use of information has been taken into account. Section 73 GIPA Act ."

1. Following receipt of the internal audit report - but not before the matter had already made its way to the Industrial Relations Commission - the General Manager dismissed the code of conduct complaints against both council officers.

1. That internal audit report is the document (document 7) to which Mr Hurst was granted partial access, being allowed to view it under supervision in electronic format, with certain personal information deleted from it. The internal review explained the reasons for that decision thus -

"The report contains some information of a personal nature to which access has been refused.

Access is to be provided in a different format to that requested, taking into account that restrictions may not be placed on the use of information, the deleted information relates to personal information under s14, Section 14(2) Note 3(d). The document contains unsubstantiated allegations that my be defamatory, but will be released in limited form with personal details omitted.

It is relevant to consider that restrictions may not be placed on the use of information."

1. Mr Hurst's code of conduct complaint and the subsequent internal audit did not take place in a vacuum. The Weekend Advertiser of 12 and 13 June, 2010 reported that "a formal complaint has been made against two council officers from the planning department." The article did not identify the source of that information.

1. An article in The Daily Advertiser of 28 July 2010 relevantly read -

"Council's manager of development services Colby Farmer has admitted a formal complaint against himself and director of planning, Bob Karaszkewych, has been made.

Mr Farmer said council's general manager, Phil Pinyon, has spoken to the pair on "numerous occasions" and the complaint is being "investigated as we speak".

He was unable to offer further comment on the nature of the complaint or if any disciplinary action had been taken ..."

1. On 13 August 2010 the agency issued a media release headed " Dismissal of Code of Conduct complaint." It read -

"Wagga Wagga City Council has announced the completion of an internal investigation into allegations of misconduct by members of the Council Planning Department as lodged with the General Manager in late May.

The investigation conducted by the General Manager and augmented by an independent report from Council's Internal Auditor, found there was no basis to the complaint that the actions or activities of individual staff were contrary to Council's Code of Conduct.

There is no requirement for disciplinary action although a number of recommendations for process and system improvement were identified and are to be implemented.

In addition, in a separate ruling by the industrial Relations Commission related to media publication of elements of the complaint, it was recommended that the complainant apologise to the staff named in the complaint.

Furthermore, the Commissioner requested the complainant publicly acknowledge the factual inaccuracies contained in the complaint and that by providing it to media outlets while Council was conducting a confidential investigation resulted in unnecessary negative stories and community comment.

These recommendations, coupled with the Planning Department and all of Council's commitment to ongoing improvement, will help support staff in the provision of quality customer service."

1. The Weekend Advertiser of 14 and 15 June, 2010 reported this, noting among other things, that the IRC quoted Mr Pinyon as saying

"These independent audit findings have now placed me in a position where I can dismiss the code of conduct complaint lodged by the complainant in its entirety and I have now done so."

1. According to Mr Hurst's statement the orders made by the IRC were consent orders and did call on him to apologise.

1. An undated article from The Sydney Morning Herald headed "Judge says to act on defamation allegation" quoted Justice Grayson as recommending that legal advice be obtained with respect to defamation, and that -

"I recommend the general manager prepare a letter to the complainant, Mr Hurst, expressly rejecting the allegations made by the complainant in relation to personal gain, breaches of the code of conduct and alleged attempts to deceive by incorrectly reporting development applications."

1. On 10 February 2011 the Council issued the following media release entitled "Planning Dispute" -

"In 2010 Peter Hurst of Hurst Homes made a number of allegations against senior town planning personnel of Wagga Wagga City Council

These allegations against Mr Bob Karaszkewych and Mr Colby Farmer, included that they were obtaining financial benefit or improper advantage from their Council positions.

Council investigated and dismissed all allegations lodged by the complainant via the Code of Conduct process and notified Mr Hurst of this outcome.

In the course of these allegations being made, Council staff were publicly identified and their professionalism questioned.

The Development and Environmental Professionals Association (depa), the Union representing the Council staff involved, referred the matter to the NSW Industrial Relations Commission (Commission) citing Council had a duty of care to protect its staff.

depa have pressed the Council via the Commission to secure a public apology from Mr Hurst for his actions, and on 13 October 2010, after Council sought such an apology, Council was advised that Mr Hurst was prepared to apologise.

The Commission subsequently made recommendations including the form of an apology that should be requested of Mr Hurst by Council.

Mr Hurst thereafter advised that he would not offer an apology in the form recommended by the Commission, or otherwise.

On 16 December 2010 the Commission issued a consent order to the effect that Council pay for an advertisement to be placed in the Daily Advertiser outlining, amongst other things, the apology sought from Mr Hurst.

Council attempted to secure that apology, to comply with the request from depa, the recommendations and consent orders of the Commission, but was unable to achieve that outcome.

As a result of Council's inability to have the Daily Advertiser publish in accordance with the consent orders of the Commission, depa members imposed bans on Mr Hurst until such time that either Mr Hurst apologises in the form recommended by the Commission for the inaccurate allegations he made in his complaint to Council, or Council publishes a notice or advertisement in the Daily Advertiser in the agreed form ordered by the Commission.

Council has a statutory obligation to process development applications and it will continue to provide that service to all applicants. Arrangements have been put in place to ensure these services are provided.

Council is balancing its requirements to proactively support its employees and protect their interests whilst ensuring it is able to maintain its ability to provide development assessment services. Council emphasises its commitment to maintaining the reputation of its professional employees.

Council continues to work with the Commission, Planning Directorate staff and depa to achieve a satisfactory outcome for all parties involved in this matter."

1. On 15 February 2011 The Sydney Morning Herald , in an article entitled "Planners defy builder claims" reported on the resolution of a dispute at the Council -

"...in which staff placed a ban on development applications from a local builder who had made serious allegations against two senior council planners.

...

The story starts in May last year . The builder Peter Hurst lodged complaints against Wagga's senior planners Bob Karaszkewych and Colby Farmer, including that they had obtained financial benefit or improper advantage from their positions.

..."

The Government Information (Public Access) Act 2009

1. The GIPA Act commenced operation on 1 July 2010. The objects of the Act are set out in (s 3(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.

1. "Government information' is given a wide meaning (s 4) being 'information contained in a record held by an agency.' 'Agency' is also defined in s 4. It includes "(e) a local authority." Local authority is in turn defined is defined in Clause 1 of Schedule 4 to mean, "a council or county council within the meaning of the Local Government Act 1993 ." The Wagga Wagga City Council is such a council and is therefore an agency to which the GIPA Act applies.

1. 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 that information, 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' that are set out in Schedule 1. In the case of overriding secrecy laws it is conclusively presumed that there is an overriding public interest against disclosure (s 11 and s 14).

1. With respect to other government information, the Act establishes a principle that there is pubic interest in favour of disclosure (s 12(1)). Section 12(2) says that public interest considerations in favour of disclosure are not limited. It provides -

"Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.

Note. The following are examples of public interest considerations in favour of disclosure of information :

(a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.

(b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.

(c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.

(d) The information is personal information of the person to whom it is to be disclosed.

(e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct."

1. There will only be an overriding public interest against disclosure when the public interest test in s 13 is satisfied. It provides -

"There is an overriding public interest against disclosure of 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."

1. In considering whether there is an overriding public interest against disclosure s 16 provides that the following principles apply -

"(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. The public interest considerations against disclosure are limited to those set out in the Table to s 14. Section 14(2) provides that -

"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."

The Information Commissioner may issue guidelines about public interest considerations against disclosure, to assist agencies, but may not add to the list of considerations (s 14(3)). The Information Commissioner has not issued any such guidelines.

1. The public interest considerations against disclosure relied on by the agency in this case are to be found under the categories of " Responsible and effective government " and " Individual rights, judicial processes and natural justice" in the Table to s 14. They are -

"1 Responsible and effective government

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 (whether in a particular case or generally):

...

(f) prejudice the effective exercise by an agency of the agency's functions,

...

(h) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).

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,

...

(e) reveal false or unsubstantiated allegations about a person that are defamatory,

..."

1. Personal information is defined in clause 4 of Schedule 4 -

"(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. Reveal' is defined in Clause 1 of Schedule 4 -

" reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)."

1. Before deciding an access application that, among other things, seeks access to information that includes personal information about a person, s 54 requires that the agency take such steps as are reasonably practicable to consult with that person before providing access. Any objection to disclosure must be taken into account in the course of determining whether there is an overriding public interest against disclosure of government information: s 54(5). In this case the staff of the agency who were the subject of Mr Hurst's complaints object to their personal information being disclosed.

1. Section 55 provides that personal factors relating to an applicant can be taken into account in deciding to grant access. In limited circumstances they may also be taken into account in refusing access. That section provides -

"(1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application ) into account as provided by this section:

(a) the applicant's identity and relationship with any other person,

(b) the applicant's motives for making the access application,

(c) any other factors particular to the applicant.

(2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information.

(3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14.

(4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for.

(5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information.

(6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person.

Note. An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73."

1. An access application is to be determined in accordance with s 58 -

"(1) An agency decides an access application for government information by:

(a) deciding to provide access to the information, or

(b) deciding that the information is not held by the agency, or

(c) deciding that the information is already available to the applicant (see section 59), or

(d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or

(e) deciding to refuse to deal with the application (see section 60), or

(f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact.

Note. These decisions are reviewable under Part 5.

(2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for.

(3) If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired"

1. In exercising functions under the Act s 3(2) instructs that -

"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. Section 73 requires that access be unconditional. Section 78 is concerned with the form of access. It provides -

"(1) Access to government information in response to an access application may be provided in any of the following ways:

(a) by providing a reasonable opportunity to inspect a record containing the information,

(b) by providing a copy of a record containing the information,

(c) by providing access to a record containing the information, together with such facilities as may be necessary to enable the information to be read, viewed or listened to (as appropriate to the kind of record concerned),

(d) by providing a written transcript of the information in the case of information recorded in an audio record or recorded in shorthand or other encoded format.

(2) The agency must provide access in the way requested by the applicant unless:

(a) to do so would interfere unreasonably with the operations of the agency or would result in the agency incurring unreasonable additional costs, or

(b) to do so would be detrimental to the proper preservation of the record, or

(c) to do so would involve an infringement of copyright, or

(d) there is an overriding public interest against disclosure of the information in the way requested by the applicant.

Note. Decisions about how to provide access are reviewable under Part 5."

1. Section 80 sets out a series of decisions that are reviewable decisions under the Act. It provides -

"The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part:

(a) a decision that an application is not a valid access application,

(b) a decision to transfer an access application to another agency, as an agency-initiated transfer,

(c) a decision to refuse to deal with an access application (including such a decision that is deemed to have been made),

(d) a decision to provide access or to refuse to provide access to information in response to an access application,

(e) a decision that government information is not held by the agency,

(f) a decision that information applied for is already available to the applicant,

(g) a decision to refuse to confirm or deny that information is held by the agency,

(h) a decision to defer the provision of access to information in response to an access application,

(i) a decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant),

(j) a decision to impose a processing charge or to require an advance deposit,

(k) a decision to refuse a reduction in a processing charge,

(l) a decision to refuse to deal further with an access application because an applicant has failed to pay an advance deposit within the time required for payment,

(m) a decision to include information in a disclosure log despite an objection by the access applicant (or a decision that the access applicant was not entitled to object)."

1. Persons aggrieved by reviewable decisions have a number of options available to press their access applications. First, they may ask the agency to conduct an internal review under s 82 within 20 days of the original decision (s 83). The internal review is to be completed within 15 working days of receipt (s 86), failing which the agency is deemed to have made the original decision again (s 86(5)). A decision made on internal review is itself a reviewable decision, although it is not possible to seek an internal review of an internal review (s 88).

1. Secondly, an access applicant who is aggrieved by a reviewable decision may seek review of the decision by the Information Commissioner under s 89. Where the person aggrieved is not the access applicant he or she must first seek an internal review (s 89(2)). A review by the Information Commissioner must be sought within 8 weeks of notice of decision being given to the access applicant. The Information Commissioner may then make a recommendation to the agency (s 92), including a recommendation that the agency reconsider the matter and make a new decision (s 93(1)), and a recommendation that there is not an overriding public interest against disclosure (s 94). Reconsideration following a recommendation is by way of internal review, where there has been no previous internal review, or by means of new decision where there had been a previous internal review (s 93).

1. Thirdly, a person aggrieved may seek a review by the Tribunal (s 100). When this provision is read with s 38 of the Administrative Decisions Tribunal Act 1997, they confer jurisdiction on the Tribunal to review reviewable decisions under the GIPA Act. Such applications are to be made within 8 weeks of the decision (s 101(1)) or within 4 weeks of the completion of a review by the Information Commissioner (s 101(2)). The Tribunal has power to extend the time for the making of a review application under s 101(3) when it is of the opinion that the person making the application, "has provided a reasonable excuse for the delay in making the application."

1. Once a decision is subject to review before the Tribunal it cannot be the subject of a review by the Information Commissioner (s 98).

1. In any review of a reviewable decision s 105 places the burden of justifying the decision on the agency concerned. It provides -

"(1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section.

(2) If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review.

( 3) If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review."

1. The Tribunal's function on review under s 63 of the Administrative Decisions Tribunal Act 1997 is to make the correct and preferable decisions having regard to the material before it 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 179; (1979) 46 FLR 409.

1. Section 107 sets out the procedure to be followed by the Tribunal in dealing with public interest considerations. It relevantly provides -

"(1) In determining an application for ADT review, the ADT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure.

(2) On an ADT review, the ADT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of the ADT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.

..."

Document 4 and 5

1. Documents 4 and 5 are written responses by Council's senior planning officers to Mr Hurst's complaint. The Council's decision and submissions with respect to each of them are identical. It is therefore convenient to consider them together.

1. I have read the confidential copes of the both documents carefully. Each is a response to Mr Hurst's complaint against the officer concerned. Each states and then responds to the allegations made by Mr Hurst. In quoting those allegations they provide more detail of the allegations than has been publicly revealed, (as evidence by the newspaper articles and media releases relied on by Mr Hurst).

1. The Tribunal's task is to determine whether there is an overriding public interest against disclosure of the information in those documents in accordance with the Act, paying due regard to the principles in s 16. This requires that the public interest consideration both in favour and against disclosure be identified, so that the question of whether, on balance, the public interest considerations against disclosure outweigh those in favour of disclosure can be determined. Unless there is an overriding public interest against disclosure the presumption in favour of disclosure applies (s 5).

1. Public interests considerations in favour of disclosure are set out in section 12. The section makes it clear that those considerations are not limited.

1. In my view the following public interest considerations in favour of disclosure apply when considering documents 4 and 5 -

• The general public interest in favour of disclosure of government information.
• Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. It is clear that the efficient, effective and fair handling and management of development application by the Council is a matter of public concern and importance to the citizens and ratepayers of Wagga Wagga. The letters in issue respond to serious allegations concerning the management of that process, and to allegations of misconduct by senior managers responsible for that process. It is reasonable to conclude that disclosure of their responses will inform public debate, enhance Council's accountability and promote discussion of a matter of public concern.
• Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. The documents contain the responses of senior planning officers concerning complaints made by a member of the public about the process they were charged with the management of, and about alleged mismanagement and misconduct on their part. It is reasonable to conclude that release of the information would inform the public about the operation and management of the development application process, a central tasks in the agency's operations and one of some public concern.

Public interest considerations against disclosure

1. The public interest considerations against disclosure are limited to those set out in the Table to s 14. Because the agency bears the onus of justifying its decision to refuse Mr Hurst access to documents 4 and 5, 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. In submissions the agency identified four public interests considerations against disclosure upon which it relied. They are that disclosure of the information could reasonably be expected to have one or more of the following effects:

• prejudice the effective exercise by an agency of the agency's functions (1(f)).
• prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed). (1(h))
• reveal an individual's personal information. (3(a))
• reveal false or unsubstantiated allegations about a person that are defamatory (3(e))

1. It is necessary to consider each of those public interests considerations against disclosure separately.

1. In doing so I note that the Information Commissioner identified in its submissions a further two public interests considerations against disclosure that were not relied on by the agency. Given that the agency bears the burden of demonstrating the existence of public interests considerations against disclosure, and that, on balance, they outweigh the public interests in favour of disclosure, I do not intend to consider those additional matters.

1. While the Information Commissioner has a right to appear and be heard in a Tribunal review, it is for the applicant and the agency to determine how they will argue their respective cases. Given the structure of the GIPA Act, and the provisions of s 105(2) which provides the Information Commissioner with a right to appear and be heard in Tribunal reviews, but which does not provide that the Information Commissioner is a party to the review, I think that the Information Commissioner's role in not one which should descend to the merits. Rather, the Information Commissioner's role is to assist the Tribunal with respect to the applicable law, relevant polices and guidelines, and on issues of interpretation of the Act. I do not read s 104, in the context of the Act as a whole, as envisaging the Information Commissioner's role as being one that descends to merits arguments and contentions.

1. I am reinforced in this conclusion by the provisions of Division 3 of Part 5, which are operate so that the Information Commissioner is not a party to a Tribunal review of a decision that has been the subject of review by the Information Commissioner. The Act provides that when conducting a review the Information Commissioner makes recommendations, which can then be considered by the agency on reconsideration under s 93. The decision then made is that of the agency, not that of the Information Commissioner. If there is then a Tribunal review, it is the applicant and the agency that are parties to that review: not the Information Commissioner. The fact that the Information Commissioner is not a party to such proceedings, reinforces the point that the legislature did not intend the Information Commissioner's role in Tribunal review to be one in which that office would argue the merits.

Could reasonably be expected

1. Mention must be made of the requirement, common to all the public interest considerations against disclosure in the Table to s 14, that disclosure "could reasonably be expected to" have the nominated effect. The words "could reasonably be expected to" have been the subject of considerable judicial consideration with respect to their use in the Freedom of Information Act 1989 and the Freedom of Information Act 1982 (Cth). They are to be given their ordinary meaning: Attorney-General's Department v Coc k croft (1986) 10 FCR 180. In that case, Bowen CJ and Beaumont J explained, at 190, that the words -

"... 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 agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like."

1. Hayne J pointed out in McKinnon v Secretary, Department of Treasury [2006] HCA 45 that , at [61] -

"... when their Honours said, as they did, that the words required 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 certain consequences, they are not to be understood as having used the latter expression as a paraphrase of the former. Rather, they are to be understood, and have since been understood, as doing no more than drawing an emphatic comparison. To do more would have been, as their Honours correctly said, "to place an unwarranted gloss upon the relatively plain words of the Act". And the same approach should be taken to the expression "reasonable grounds" when it is used in s 58(5) of the Act."

See also XZ v Commissioner of Police, NSW Police Force [2009] NSWADTAP 2.

1. It is necessary for Council to demonstrate, with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect.

To prejudice the effective exercise by an agency of the agency's functions

1. This is found at point 1(f) of the Table to s 14.

1. Mr Hurst submits that the requirement that release "prejudice" the agency's functions requires more than that release will "hinder or make more difficult" the agency's functions. Aside from this, Mr Hurst does not make submissions as to what prejudice means in the context. The Information Commissioner submitted -

The word "prejudice" has been found in cases decided under FOl legislation to have its ordinary meaning: "to cause detriment or disadvantage" [Re: Maher and the Attorney General's Department (No 2) (1986) 4 AAR 266] or to "impede or derogate from" [Sobh v Victoria Police (1994) 1 VR 41].

I accept that this adequately summarises the decision on the meaning of prejudice under the FIO Acts. It is equally applicable in the context of the GIPA Act.

1. In her statement Ms McCormack said that she has worked with three General Managers at the agency in Code of Conduct investigations. She has acquired a detailed knowledge of the Council's policies, procedures and practices relating to such investigations. She said that:

• Staff members who are the subject of complaints are given access to the information in the complaint to ensure procedural fairness.
• Nothing in the Code of Conduct authorises a complainant to have access to staff responses.
• Complainants are not given access to staff responses.
• The Council's practice in restricting Code of Conduct information is consistent with s10A of the LGA.
• It is the practice of Council that statements made in response to Code of Conduct complaints are confidential.

1. Ms McCormack said that in her experience -

" ... the effectiveness of Code of conduct investigations into Council staff matters relies on information that it provided to, or produced by, the Council only being made available to Council officers involved in the investigation process.

...protection of information in this way promotes and environment of trust and confidence in which the complainant, staff and witnesses can provide candid information to the general manager, and the general manager can determine a complaint, without fear of the potential embarrassment or reputational or other harm that may result from the release of the information in other circumstances to other people."

1. These expressions of opinion by Ms McCormack are based on her experience in an environment where, as a matter of practice, staff responses to Code of Conduct investigations have been kept confidential. She does not depose to having any experience of code of conduct investigations where confidentiality was not maintained.

1. Given her experience, it is difficult to understand on what basis she can reasonably claim that the effectiveness of code of conduct investigations "relies" on that confidentiality. Her evidence does not disclose any other basis for the formation of her opinion, aside from the fact the confidentiality has been maintained in all the investigations she has been involved in. In those circumstances it is difficult to give her opinion as to the consequences of disclosure any weight, as they are assertions based on her experience, gained in investigations where confidentiality was maintained as a matter of practice.

1. Her evidence does not identify any basis for a comparison between investigations where confidentiality has been maintained, and those where it has not. It does not disclose a rational or underlying factual basis for the conclusion that, if information provided by staff were disclosed, it could reasonably be expected that staff would be unlikely to co-operate with investigative processes. This strikes me as taking a very dim view of the integrity of council staff, and of their willingness to ensure that the processes they manage are conducted efficiently, effectively and honestly. I conclude that Ms McCormack opinion is based on limited experience and involves considerable speculation. I do not accept that it is reasonably or rationally held.

1. I do accept that it is the practice of Council to keep staff disclosures to Code of Conduct investigations confidential. Ms McCormack, however, does not identify or explain how disclosure under the GIPA Act of information, which has been treated confidentially, could reasonably expected to prejudice the effective operation of the Council.

1. It is submitted on Council's behalf that disclosure would impair the effectiveness of future Code of Conduct investigations, "because it will discourage the future candid and voluntary provisions of information." When one analyses Ms McCormack's evidence it is apparent that her opinion on this issue is an assertion based on her experience, which, on her own evidence, does not include code of conduct investigations where confidentiality has not been maintained. Her evidence discloses no basis for the assertion that staff will be less than fully forthcoming if information they provide to code of conduct inquiries is disclosed. Employees of the agency, under the Code of Conduct, have obligations to be ethical, honest and accountable, to "carry out lawful directions" (see 9.4) and to report suspected breaches of the Code of Conduct (see 11.6).

1. Additionally, as the Information Commissioner pointed out in submissions there is no express confidentiality provision in the Code of Conduct.

1. With respect to the submissions concerning s 10A of the Local Government Act 1993, the issue, as I understand it, is that under s 10A(2) (b) enables a council to close its meeting to the public where the discussion concerns "personnel matters concerning particular individuals (other than councillors)." The section also enables closed meeting to be held where other matters such as confidential information, and information said to be subject to legal professional privilege are discussed. The agency argued that its practice in restricting access to complaint documents was consistent with that provision.

1. While I accept that this is the case, the provisions of s 10A of the Local Government Act 1993 do not create a further or additional public interests considerations against disclosure under the GIPA Act. The permissible public interests considerations against disclosure are set out in s 14 and cannot be added to. In every case the decision maker's obligations are to identity the applicable public interest considerations in favour of disclosure and those against, and to then balance them in arriving at a conclusion.

1. As a consequence the agency has not established that release of documents 4 and 5 could reasonably be expected to prejudice the effective exercise by the agency of it's functions,

To prejudice the effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results

1. In order to rely on the public interests considerations against disclosure in 1(h) of the Table to s 14 the agency bears the burden of establishing that it could be reasonably expected that revealing the purpose, conduct or results of the internal audit will prejudice the conduct, effectiveness or integrity of that audit.

1. In this case the audit is completed. Details of its geneses and outcome, albeit without all the details to be found in documents 4 and 5, are in the public domain: some released by council. Insofar as the documents contain information that is already in the public domain, release under the GIPA Act would not reveal that information for the purposes of 1(h). This is so because the definition of reveal in Schedule 4 of the GIPA Act provides that -

reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).

1. More importantly, the agency's evidence and submission do not address or explain how release of documents 4 and 5 could be reasonably be expected to prejudice the effectiveness or integrity of this audit.

1. While, as already noted, the agency claims that release would impair the effectiveness of future investigation or audits, that is not the issue here. Point 1(h) of the Table is clear in its wording: it is the effectiveness and integrity of the audit or investigation in issue, not some other or future audit, which is to be prejudiced by a release revealing its purpose, conduct or results. The fact that release could be reasonably be expected to reveal an audits purpose, conduct or results is not sufficient. The provision requires that the release could be reasonably be expected prejudice the effectiveness or integrity of the audit concerned.

1. In the absence of any evidence as to how release of documents 4 and 5 could reasonably be expected prejudice the effectiveness or integrity of the audit by revealing matters concerning its purpose, conduct or results (which have not already been revealed), I am not satisfied that this public interests consideration against disclosure is applicable.

Disclosure of the information could reasonably be expected to reveal an individual's personal information

1. Personal information is defined in clause 4 of Schedule 4 of the GIPA Act -

"(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 agency submits that documents 4 and 5 contain "the opinion of Mr Karaszkewych concerning complaints made about him." The same might be said about Mr Farmer's letter.

1. Each letter is a detailed response from a senior officer of the agency relating to a complaint about their conduct. The information and opinions expressed by the authors are entirely focussed on their work, with one exception (the second sentence of the first paragraph of document 4 contains information with respect to the author's personal life). The author's names are identified, but their names have already been publicly revealed in the context of the audit.

1. In her affidavit Ms O'Leary gives evidence demonstrating that Mr Karaszkewych and Mr Farmer object to the release of their personal information.

1. Having read both documents I am not satisfied that document 5 contains any personal information relating to either individual. As a consequence the public interest against disclosure in point 3(a) of the Table to s 14 of the GIPA Act does not arise.

1. Document 4 includes one sentence that contains personal information in relation to its author. Otherwise, it does not contain any personal information relating to either individual. If released, it could reasonably be expected that that personal information would be revealed.

Disclosure could reasonably be expected to reveal false or unsubstantiated allegations about a person that are defamatory

1. This is a provision new to GIPA. In helpful submissions on the issue the Information Commissioner said -

"4.9 This is a new consideration. There is no equivalent to it in the old FOl Act (NSW), the Commonwealth, WA or Qld Acts (those most similar to the GIPA Act). However, section 113 of the GIPA Act, which provides protection from actions in defamation, is in almost identical terms to section 64 of the FOl Act. . The decision of the Court of Appeal in Ainsworth v Burden (2003) 56 NSWLR 620 ("Ainsworth") construed section 64 of the FOl Act and remains authoritative. In Ainsworth, the Court found that "[t]he statutory language must be construed in the context of the general principles of the law of defamation" (at 622 per Handley JA).

50. To demonstrate that this consideration is a relevant consideration in the application of the public interest test, the respondent must show that the information to which the applicant seeks access contains false and unsubstantiated allegations against a person, and that those allegations are defamatory.

51. The respondent states that it has investigated and found that the allegations made by the applicant were unsubstantiated. On this basis, it dismissed the allegations (Statement of O'Leary, 16/05/2011, Annexures R & S). ...

52. In order to satisfy the second element of this consideration, the respondent must consider and reach a conclusion about whether the allegations are defamatory according to the general principles of defamation law. A general statement of the elements of defamation from Halsbury's Laws of Australia (chapter written by David Rote) states (with notes removed):

A publication is defamatory of a person if it tends, in the minds of ordinary reasonable people, to injure his or her reputation either by:

(1) disparaging him or her;

(2) causing others to shun or avoid him or her; or

(3) subjecting him or her to hatred, ridicule or contempt.

The cause of action in defamation is complete upon the publication of a defamatory imputation and damage may be inferred without proof of actual loss or injury to the plaintiff.

53. The respondent has not considered whether the allegations are defamatory.

1. The construction pressed by the Information Commissioner is broadly consistent with that suggested by the editors of Robinson, NSW Administrative Law (Thompson Reuters) at 50.7270. I accept it.

1. Both documents 4 and 5 repeat the complaints made by Mr Hurst, which led to the audit being conducted. The complaints included a number of allegations that can be classified as of misconduct and mismanagement against the two staff members. They contain more detail than has been made public.

1. Not all the allegations made by Mr Hurst were the subject of the internal audit, although those concerning manipulation of DA numbers and improper financial benefit were. The audit found that these allegations were unsubstantiated. I accept that is the case.

1. I accept that some of the allegations made by Mr Hurst, which were repeated in documents 4 and 5, were disparaging of the two staff members, either individually or together. These are:

• The words in bold on page 2 of document 4.
• The bold paragraph beginning with the number 6 on page 5 of document 4.
• The bold paragraph beginning with the number 8 on page 5 of document 4.
• The bold paragraph beginning with the number 10 on page 6 of document 4.
• The bold paragraph beginning with the number 11 on page 6 of document 4. The sentence following also reveals the substance of the allegation.
• The bold paragraph beginning with the number 12 on page 7 of document 4.
• The bold paragraph beginning with the number 13 on page 7 of document 4. The sentence following also reveals the substance of the allegation.
• The bold paragraph under Item 6 on page 3 of document 5.
• The bold paragraph under Item 8 on page 4 of document 5.
• The bold paragraph under Item 10 on page 6 of document 5. The two sentences in the following response also reveal the substance of the allegation.
• The bold paragraph under Item 11 on page 6 of document 5.
• The bold paragraph under item 12 on page 6 of document 5.
• The bold paragraph under item 13 on page 7 of document 5. The sentence following also reveals the substance of the allegation.

1. I am satisfied that documents 4 and 5 contain information the disclosure of which could reasonably be expected to reveal false or unsubstantiated allegations about a person that are defamatory.

Balancing the public interests

1. I have found the following public interests considerations against disclosure:

• Disclosure of parts of documents 4 and 5 could be reasonably expected to reveal false or unsubstantiated allegations about a person that are defamatory.
• Disclosure of document 4 could be reasonably be expected to reveal personal information.

1. In my view, given the nature of the information in issue, the first of these factors carries significant weight.

1. The agency submits that the fact that Mr Hurst may readily disclose and make public the contents of documents 4 and 5, is a factor, personal to Mr Hurst, which can be taken into account under s 55 in determining whether there is an overriding public interests against disclosure.

1. I do not accept this submission. This is so as the information in issue (aside from the personal information in document 4) either quotes or paraphrases the details of the complaint made by Mr Hurst and within his knowledge. While general details of the nature of the allegations are in the public domain, there is no evidence before me that Mr Hurst was responsible for the dissemination of that information. Indeed, what evidence there is suggests that one of the persons affected and the agency released relevant information.

1. The personal information in document 4 is relatively innocuous. The public interest against its disclosure merits little weight.

1. The public interests considerations against disclosure are to be weighed against the public interests in favour of disclosure of documents 4 and 5 outlined above. Each of them carries its own weight in favour of disclosure which in real and not insignificant. Ultimately, the balancing of these competing interests is a question fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation.

1. In my judgment the public interests considerations against disclosure outweigh those in favour of disclosure in this case with respect to the information in issue. There is therefore an overriding public interest against disclosure of the information I have identified.

1. I do note however that s 74 relevantly provides -

"An agency can delete information from a copy of a record to which access is to be provided in response to an access application (so as to provide access only to the other information that the record contains) either because the deleted information is not relevant to the information applied for or because (if the deleted information was applied for) the agency has decided to refuse to provide access to that information."

1. In my view the information giving rise to the overriding public interests against disclosure in documents 4 and 5 could be readily deleted from those documents, without rendering them nonsensical. The release of the balance of the documents would clearly be in the public interest and in accordance with the principles underlying the GIPA Act.

The Audit Report

1. The internal audit report is a ten-page document. The agency submits that it contains remuneration information relating to the two employees of the agency that is personal information within the meaning of the GIPA Act. The deletions are of information relating to remuneration. It discloses, in gross terms the remuneration received by the two staff members as well as that received by other Directors of the agency. It also discloses, again in gross terms, the commencing dates of those officers in their positions, their commencing salaries, and their salaries following subsequent increases in gross and percentage increase terms.

1. The agency determined to release the audit report subject to deletions. These were made on the basis that there were overriding public interests considerations against disclosure, because the deleted information, if released, could be reasonably be expected to -

• found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence (point 1(g) of the Table to s 14)
• prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed) (point 1(h) of the Table to s 14).

1. In submission, however, the agency did not rely on those matters instead relying on the public interests considerations against disclosure of personal information. As a result I will consider that public interest consideration against disclosure only

1. Further, the agency determined that Mr Hurst should have access to the audit report in a different format: namely to view the document (subject to deletions) in electronic format at the agency's premises.

Disclosure of the information could reasonably be expected to reveal an individual's personal information,

1. Under the GIPA Act, the first issue is whether or not the remuneration information is personal information within the meaning of clause 4 of Schedule 4. Because it is information about the salary paid to individuals whose identity is apparent, or can be reasonably ascertained, it is personal information of each of the staff members concerned. As the information does more than reveal that they were in engaged in the exercise of public functions, the exception in clause 4(3)(b) does not apply.

1. That being the case there is a public interest consideration against disclosure of the information deleted by the agency from the audit report, on the ground that it could reasonably be expected to reveal an individual's personal information.

1. Both staff members whose conduct and performance was being audited object to the release of their personal information. There is no evidence as to whether or not the other directors of the agency whose remuneration is discussed object.

1. It should also be noted that the agency in submissions relied on clause 217(1)(c) of the Local Government (General) Regulation 2005 as authority for the proposition that public policy, as there reflected, does not require that remuneration paid to individual senior staff members be disclosed. Rather, it requires the publication in the annual report of combined remuneration information relating to senior staff.

1. Section 14(2) of the GIPA Act limits the public interests considerations against disclosure to those listed in the Table to that section and provides that they "are the only other considerations that may be taken into account under this Act." The provisions of clause 217(1)(c) of the Local Government (General) Regulation 2005 therefore cannot create an additional public interests consideration against disclosure.

Public interests considerations in favour of disclosure

1. Queensland Information Commissioner Sorenson said in Lower Burdekin Newspaper Company Pty Ltd and Lower Burdekin Shire Council [2004] QICmr 2 (24 February 2004) at [27-28]

"Information about the gross salary paid to an employee of a government agency has a dual character. It is both information about the income of an identifiable individual (and hence information concerning that individual's personal affairs) and information about the cost of having the duties of the relevant position performed for the benefit of the public. The public has a strong, legitimate and abiding interest in having access to sufficient information to enable scrutiny of whether funds raised by government are expended efficiently and effectively in furtherance of the wider public interest. This extends to scrutiny of whether the public is obtaining value for money from performance of the duties of particular positions for which a government has decided to allocate funding. This public interest is even stronger in the case of senior officers who have responsibility for devising and/or implementing strategic and operational plans, and delivering key performance outcomes.

28. I consider that there is a strong public interest consideration favouring disclosure to any interested member of the public, of information as to the total cost in salary and related expenses of any job for which a government decides to allocate funding, and that it is even stronger in the case of senior management positions of the kind under consideration in the present case. The same public interest considerations would apply in favour of informing the public of the total costs of having services performed for the public by private sector service-providers (see Re Wanless Wastecorp Pty Ltd and Caboolture Shire Council (2003)

6 QAR 242 at p.283, paragraphs 145-148), or the total costs of a government agency retaining a private sector consultant to provide expert services not able to be performed by its own pool of employed staff."

1. That decision followed Re Stewart and Department of Transport , [1993] QICmr 6; (1993) 1 QAR 227; Re Milthorpe and Mt. Alexander Shire Council (1997) 12 VAR 105, and in Re Asher and Department of State and Regional Development [2002] VCAT 609, in all of which the public interest in the remuneration paid to public officers (especially those a t a senior level) as a cost to government was recognised, despite the fact that the same information related to an individual's personal affairs.

1. While the GIPA Act is concerned with personal information, rather than information related to an individual's personal affairs, the public interests considerations in favour of disclosure articulated in those decision is equally applicable here.

1. Also in favour of disclosure is the general public interest consideration in favour of disclosure in s 12(1) of the GIPA Act.

Balancing the public interests

1. In submissions the agency referred to the remuneration package as "inherently sensitive information." While this can be argued with respect to the individual components of an individual's remuneration: (how their salary is packaged, what fringe benefits they receive, their superannuation entitlements, and what (if any) salary sacrificing they engage in) I do not accept that the argument has the same force with respect to an individuals gross remuneration. While still personal information, the gross figures do not have the same sensitivity as that revealed by the individual components.

1. Nonetheless, the fact that audit report contains information in relation to the gross salaries of senior officers of the agency, and their increase over time, does give rise to a public interest against that personal information being revealed. While this consideration merits some weight, it is not, in my view, significant.

1. In favour of disclosure, on the other hand, are the various public interests discussed above concerned with the public being able to evaluate the public cost of the provision of local government services, so as the evaluate whether the community is obtaining value for money. Given the level of public interest demonstrated by the evidence in the agency's management and processing of DA application, and the fact that the two senior officers who object to the disclosure of the information are senior managers responsible for overseeing those processes, there is a real and demonstrated public interest in disclosure of the remuneration information.

1. The agency argues that there is a likelihood that, if the audit report is released to Mr Hurst, he will then disseminate it. The thrust of the submission is that this should be taken into account in determining whether or not there is an overriding public interest against disclosure. I do not accept that, if true (a matter concerning which there is scant evidence) this would be a legitimate factor to take into account under s 55.

1. In my view the outcome of the audit report is a matter of general public concern, as demonstrated by the press attention it received. Dissemination of the audit report is not a factor "particular" to the applicant. The applicant made a complaint to the agency that was subsequently investigated and found to be unsubstantiated. His motivation, in wishing to find out and understand why his complaint was dismissed, is not one that I consider should be given any weight in determining if the release of the personal information in the audit report is against the public interest. Indeed, the public interest in complainants to agencies of government being informed of how complaints are investigated and decided, is a factor pointing to a public interest in favour of disclosure. This is so as it will enhance the accountability of agencies for their decisions, and the transparency of their processes.

1. In my view, the public interests considerations in favour of disclosure outweigh those against disclosure.

Form of Access

1. On internal review the agency determined to provide Mr Hurst with access to the audit report in a different format: i.e. by making it available for inspection in digital form, with deletions, at the agency's premises. The reasons given for that decision were -

"Access is to be provide in a different format to that requested, taking into account that restrictions may not be placed on the use of the information, the deleted information contains unsubstantiated allegations that my be defamatory, but will be released in limited form with personal details deleted."

1. Mr Hurst had sought a copy of the audit report. Section 72(2) provides that access is to be provided in the form requested unless one the exceptions in that sub-section is satisfied. The internal review did not consider or determine whether any of those exceptions applied. The agency's submissions do not address the issue.

1. In those circumstances I am satisfied that should be given access to the report, without deletions, in the form he requested.

Conclusion

1. I summary it is my view that the correct and preferable decision in this case is to:

Give Mr Hurst access to a copy of the internal audit report without deletions; and

Give Mr Hurst access to copies of documents 4 and 5 subject to the deletions discussed at paragraph 79 and 87 of these reasons.

1. I will make orders setting aside the decision under review and instead determined to give Mr Hurst access to those documents (subject to deletions) within 30 days of the publication of this decision.

**********

Amendments

20 January 2012 - Paragraph 87 typographical error, page 6 should be page 7, page 12 should be page 7, page 7 should be page 6Text missing - "the bold paragraph under item 12 on page 6 of document 5.the bold paragraph under item 13 on page 7 of document 5. The sentence following also reveals the substance of the allegation."Paragraph 120 typographical error, page 4 should be page 5.

Amended paragraphs: 87, 120

Decision last updated: 20 January 2012