Ingram -v- General Manager, Sutherland Shire Council

[2000] NSWADT 69

CITATION:	Ingram -v- General Manager, Sutherland Shire Council [2000] NSWADT 69
DIVISION:	General Division
PARTIES:	APPLICANT Karen Margaret Ingram RESPONDENT General Manager, Sutherland Shire Council
FILE NUMBER:	003009
HEARING DATES:	17/04/2000
SUBMISSIONS CLOSED:	04/17/2000
DATE OF DECISION:	05/31/2000
BEFORE:	Fleming G - Judicial Member
APPLICATION:	access to documents - Freedom of Information Act - access to documents
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	Commissioner for Police -v- District Court of NSW (Perrin's Case) (1993) 31 NSWLR 606 McKenzie -v- Secretary to the Department of Social Security (1986) 65 ALR 645 Latham -v- Director General, Department of Community Services [2000] NSWADT 58 Searle Australia Pty Ltd -v- PIAC (1992) 108 ALR 163 Re Scholes -v- Australian Federal Police (1996) 44 ALD 299 Accident Compensation Commission -v- Groom [1991] 2 VR 322 Re Gold (1994) 37 ALD 168 Gilling v Hawkesbury City Council (No.2) [1999] NSW ADT 94 Department of Health v Jephcott (1985) 62 ALR 421 Mauger v General Manager, Wingecarribee Shire Council [1999] NSWADT 35 Gilling -v- Hawkesbury City Council (No. 2) [1999] NSWADT 94 Department of Health -v- Jephcott (1985) 62 ALR 421 Mauger -v- General Manager, Wingecaarribee Shire Council [1999] NSWADT 35
REPRESENTATION:	APPLICANT A Ilkin, solicitor RESPONDENT J Reilly, solicitor
ORDERS:	Decision under review affirmed.

REASONS FOR DECISION

THE APPLICATION

1 Karen Margaret Ingram (‘the Applicant’) has lodged an application for review of a decision by the General Manager, Sutherland City Council (‘the Respondent’), to refuse a request made pursuant to the Freedom of Information Act 1989, for access to a document held by it.

2 The original application for access was made to the Respondent on 16 August 1999. This identified the documents as follows;

“Letters received from either Mr or Mrs Quandt in regard to drainage, playing of piano, barking dog and pigeon keep or any other correspondence that refers to anything involving 19 Geoffrey Crescent, Loftus.”

3 A decision refusing to grant access to the documents in full was made on 26 August 1999. The Respondent provided certain documents, namely

“. . . respective copies from Council’s Register of Complaints system of complaints notified by telephone in respect to the behaviour of a “blue cattle type dog” registered in your name, alleged unauthorised structures within the property known as 19 Geoffrey Crescent , Loftus and noise nuisance caused by the playing of a piano from the premises:

23 June 1999 - noise nuisance, barking dog;

22 July 1999 - unauthorised structures;

27 July 1999 - erection and use of a pigeon house and stormwater run-off issues from the property known as 19 Geoffrey Crescent, Loftus

19 August 1999 - noise nuisance caused by the playing of a piano.


In issuing the above records I have determined pursuant to Clause 6 of Schedule 1 of the Act that the name and address of the complainant/s not be disclosed, as such disclosure would be an unreasonable disclosure of information concerning the personal affairs of person/s who have notified their concerns in good faith to the Council”.

4 This decision of the Respondent was subject to internal review. The internal review decision of 28 September 1999 provided a list of documents relevant to the request (commonly records of complaints to Council) and provided that access be given to a number of these. However the request was refused to the extent that;

“for privacy reasons [that] any reference to the complainant that may identify the complainant be suppressed. . . . One letter dated 6th June 1999 listed a number of matters dealing with 19 Geoffrey Crescent- access to this letter is denied as the complainant has not authorised release of this letter, and the subject matter would identify the complainants identity.

5 The Applicant now seeks the following orders in this Tribunal:

(i) The Tribunal sets aside the decision of Sutherland Shire Council to refuse the Applicant access to the letter dealing with a number of matters in respect of 19 Geoffrey Crescent, Loftus, from the Complainant dated 6/6/99 to the Council ( and any attachments, if applicable) (called “the Letter”) and;

(ii)The Tribunal substitutes a decision to grant the Applicant access to the Letter with the name and address of the Complainant to be deleted.

6 The Respondent has claimed that the subject letter dated 6 June 1999, is an exempt document pursuant to Clause 4(1)(b), Clause 6 and Clause 13(b) of Schedule 1 of the Freedom of Information Act 1989 (‘the FOI Act’).

THE RELEVANT LAW

7 The Tribunal has jurisdiction to hear this matter pursuant to section 53 of the FOI Act and section 55 of the Administrative Decisions Tribunal Act 1997.

8 The objects of the FOI Act are set out in s 5. Section 5(1)(a) which states as follows:

The objects of this Act are to extend, as far as possible, the rights of the public:
(1) to obtain access to information held by the Government; and

(2) to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect out of date or misleading.

9 An agency may refuse access to a document if it is an "exempt document" (FOI Act s 25(1)(a)). Pursuant to section 6(1) of the FOI Act an "exempt document" includes a document referred to in Schedule 1. The exemptions claimed in this case fall under the following relevant Clauses of Schedule 1.

10 Clause 4(1)(b) of Schedule 1 provides in part as follows;

(1) A document is an exempt document if it contains matter, the disclosure of which could reasonably be expected :

(a) . . .
(b) to enable the existence or identity of any confidential source of information, in relation to the enforcement or administration of the law to be ascertained, or
(c). .

(2) A document is not an exempt document by virtue of subclause (1):

(a) if it merely consists of:

(i) a document revealing that the scope of a law enforcement investigation has exceeded the limits imposed by law, or
(ii) a document containing a general outline of the structure of a programme adopted by an agency for dealing with any contravention or possible contravention of the law, or
(iii) a report on the degree of success achieved in any programme adopted by an agency for dealing with any contravention or possible contravention of the law, or
(iv) a report prepared in the course of a routine law enforcement inspection or investigation by an agency whose functions include that of enforcing the law (other than the criminal law), or
(v) a report on a law enforcement investigation that has already been disclosed to the person or body the subject of the investigation, and

(b) if disclosure of the document would, on balance, be in the public interest.

11 Clause 6 of Schedule 1 provides as follows:

(1)A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).

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

12 Clause 13 (b) of Schedule 1 provides, in part, as follows;

A document is an exempt document:
(a). . .
(b) If it contains matter the disclosure of which:

(i) would otherwise disclose information obtained in confidence, and
(ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and
(iii) would, on balance, be contrary to the public interest.

13 Section 25(4) of the FOI Act provides that:

An agency shall not refuse access to an exempt document (including a restricted document that is the subject of a Ministerial certificate):
(a) if it is practicable to give access to a copy of the document from which the exempt matter has been deleted, and
(b) if it appears to the agency (whether from the terms of the application or after consultation with the applicant) that the applicant would wish to be given access to such a copy.

14 The agency has the burden of proving that their determination is justified. Section 61 of the FOI Act states that:

In any proceedings concerning a determination made under this Act by an agency or Minister, the burden of establishing that the determination is justified lies on the agency or Minister

15 Section 31 of the FOI Act requires an agency to consult with any person whose personal affairs may be disclosed by providing access to any document. That section provides as follows:

(1)This section applies to a document that contains information concerning the personal affairs of any person (whether living or deceased).

(2) An agency shall not give access to a document to which this section applies (otherwise than to the person concerned) unless the agency has taken such steps as are reasonably practicable to obtain the views of the person concerned as to whether or not the document is an exempt document by virtue of clause 6 of Schedule 1.

EVIDENCE

16 The Tribunal had before it the letter of 6 June 1999 (‘the letter’) that is the subject of the dispute, copies of the primary and internal review decisions by the Respondent, copies of documents that were provided to the Applicant pursuant to the FOI request, copies of certain correspondence between the parties and written submissions lodged by the Applicant and the Respondent. A hearing was held on 14 April 2000. Both parties were legally represented. The Applicant gave oral evidence as did Mr Paul Vergotis, Environmental Assessment Administrator, Sutherland Shire Council.

17. Affidavit evidence was tended for the Respondent by Mr Vergotis and Mr Douglas Chapman, Manager of Government and Corporate Support and Complaints Manager, Sutherland Shire Council. The Respondent also put before the Tribunal three Affidavits and a submission which were together described as ‘confidential’. Section 55 of the FOI Act provides, in summary, that the Tribunal may hear evidence and argument in the absence of the parties, the public and legal representatives where this is necessary to prevent disclosure of matter, which is claimed to be exempt. The Tribunal considered the Respondent’s ‘confidential’ submissions and the three ‘confidential’ affidavits in the absence of Ms Ingram but in the presence of her legal representative. The Respondent’s ‘confidential’ submissions had also, in substance though with minor amendment, been served upon the Applicant.

18. The Applicant’s evidence may be summarised briefly as follows. Ms Ingram told the Tribunal that she wanted access to the letter so that she could answer any allegations or information in it which had been put to Council and which would appear as part of Council’s records. She said that she had become aware that a letter had been written to Council about her around June 1999 when a Council Officer had spoken to her husband by phone concerning problems with stormwater drainage on her property. Ms Ingram told the Tribunal that she believed the letter was written by her neighbours, Mr and Mrs Quandt, with whom she has had ongoing difficulties. Ms Ingram told the Tribunal that other Council Officers also referred to the letter in discussions with her. She said she had been told that the letter made reference to her standing in the community and was ‘malicious’ in its comments about her.

19. On 9 November 1999 Ms Ingram’s solicitor wrote to Mr Quandt concerning a letter of 6 June 1999. Ms Ingram stated that she understood Mr Quandt was the author of this letter. She sought an apology for the ‘defamatory statements’ and ‘imputations’ about her which she believed were contained in the letter and stated that if this was not forthcoming she would commence legal action for defamation against Mr Quandt in the District Court of NSW. Ms Ingram also told the Tribunal that she had received a letter from Mr Quandt, seven days after lodging her FOI Act application, stating that he would take legal action against her for defamation. Ms Ingram told the Tribunal at the hearing that she now had no intention of taking legal action against the author of the letter of 6 June 1999. This was not, she said, her motivation in seeking to gain access to the letter.

20. Ms Ingram told the Tribunal that she is active in the precinct committee of the Council in her area and is involved in community affairs. She believes her standing in the community is brought into question by the matters raised in the letter of 6 June 1999 and that without seeing the letter in its entirety she cannot adequately respond to its contents. She believes the letter suggests that she might improperly seek to influence the Council. Ms Ingram said that she believes numerous council officers have already read this letter and formed an opinion about her. She wants the opportunity to place a written response with it on the Councils records. Ms Ingram told the Tribunal that she had thought of standing for election to Council in about ten years and that she did not want the letter of 6 June 1999 to come to light at that point with unanswered allegations against her.

21. Ms Ingram told the Tribunal that she rejected an offer by the Council to give her a written statement which set out, in summary form, a number of matters including;

Matters referred to in the letter of 6 June 1999 that were potential breaches of the Environmental Planning and Assesment Act 1979 and the Local Government Act 1993.

A statement that these matters had been investigated and Council was not to take any further action in relation to them

A statement that the letter of 6 June 1999 alleges that Ms Ingram has made unfounded and incorrect statements to Council; has campaigned on one occasion against a neighbourhood subdivision application on the basis of incorrect information; has told other residents incorrect information regarding potential development of land; is a vocal campaigner against neighbourhood issues that she feels impact negatively on her and that Ms Ingram has no regard to Council protocols or guidelines.

An invitation to Ms Ingram to comment on the matters set out.

The offer from the Council was that Ms Ingram’s response would then be placed with the letter of 6 June 1999 on the Council records.

22. Mr Vergotis told the Tribunal that the letter of 6 June raised a number of matters that required investigation by Council. It is his responsibility to ensure that Council follows up complaints. He decided that the matters raised in the letter of 6 June 1999 were not vexatious or frivolous and could involve breaches of the Environmental Planning and Assessment Act 1979, the Local Government Act 1993, the Companion Animals Act 1998 and the Protection of the Environment Operations Act 1997. He told the Tribunal that Council’s investigations into the matters raised were finalised, with the exception of one issue concerning a retaining wall. The investigations to date have not disclosed any breaches of the law. Mr Vergotis stated that reliance on information from the public was vital to Council’s ability to ensure compliance with relevant legislation. He estimated that “80% of all work undertaken by compliance staff would have originated from a complaint by a member of the public” (Affidavit of Vergotis).

23 Mr Vergotis and Mr Chapman gave evidence of Council’s ‘Customer Response Policy’ which was “developed in response to advice from the Department of Local Government and the NSW Ombudsman”. (Affidavit of Chapman). This policy provides that Council Officers “must not, unless authorised by the complainant, disclose the name or source of a complaint. Staff who have been asked the name of the complainant will advise that the policy has been determined to meet the requirements of State Privacy Laws and to protect the interest of the complainant”. The Respondent has submitted that the author of the letter of 6 June has been consulted and has not consented to its disclosure.

FINDINGS

24 The Tribunal must interpret the provisions of the FOI Act in a manner which is consistent with its objectives, as set out above (Commissioner for Police v District Court of NSW (Perrin’s Case) (1993) 31 NSWLR 606). It is for the Respondent to show why the document should be treated as exempt, and therefore not provided to the Applicant.

25. The Tribunal has first considered the Respondents claim to the exemption contained in Clause 4(1)(b) of the FOI Act. The Tribunal finds that none of the qualifications found in clause 4(2) apply to the letter of 6 June 1999. It is therefore for the Tribunal to determine whether disclosure of the letter of 6 June could reasonably be expected “to enable the existence or identity of any confidential source of information, in relation to the enforcement or administration of the law, to be ascertained."

26. Consideration of this provision requires the determination of three issues (McKenzie v Secretary to the Department of Social Security (1986) 65 ALR 645;Latham v Director General, Department of Community Services [2000] NSWADT 58). The Tribunal must first determine whether the letter of 6 June 1999 contains a ‘confidential source of information’. Secondly, is it reasonable to expect that disclosure of the letter would reveal this confidential source and thirdly does the letter of 6 June 1999 relate ‘to the enforcement or administration of the law’. If these questions are answered positively the Tribunal must consider whether the whole document falls within the exemption or whether, pursuant to section 25(4) of the FOI Act, it is practicable for the Respondent to provide access to the letter with the exempt matter deleted.

27. As to what might ‘reasonably be expected’ the Tribunal gives these words their ordinary meaning. (Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163). They apply to the ‘effect’ of disclosure of the documents, which, in this case, may be summarily described as their impact on the ability of Council to investigate alleged breaches of legislation under which it has compliance responsibilities. The clear purpose of Clause 4(1)(b) is to maintain a public willingness to provide government agencies who have a law enforcement function with relevant information, without, at the same time creating in those informants a fear of unwanted disclosure of their identity or of reprisals for supplying information.

28. The Tribunal accepts that the author of the letter of 6 June 1999 wants his/her identity to remain confidential. The Tribunal, in considering the entirety of the circumstances surrounding this letter also accepts that at the time of writing the author believed the letter was to be treated ‘in confidence’ by the Council. It is common ground that the letter raises a number of allegations of impropriety against Ms Ingram. This fact has been disclosed and the Respondent, in an effort to settle this matter, has given details of what those allegations are.

29. The Council has had a publicly reported ‘customer response policy’ since 1998 which advises that information provided to Council will not be revealed without the consent of the author. The Tribunal accepts that the author was entitled to rely upon that undertaking when writing the letter of 6 June 1999. The Tribunal also accepts that Council relies on information from confidential sources in order to monitor compliance with relevant environment and planning laws under which it has obligations.

30. Ms Ingram submitted to the Tribunal that she knows the identity of the author of the letter of 6 June 1999. However the Tribunal is not satisfied that this claim can be made out. This is not a situation where another authority has already released the information, or related information, which might disclose the author’s identity (Re Scholes v Australian Federal Police (1996) 44 ALD 299). Nor is there evidence that she has been specifically given this information by other Council officers. Her evidence is that she was told of the existence of the letter, and given intimations of its contents. She was not told of its author. While the Tribunal accepts that Ms Ingram has a firm belief as to the author of the letter of 6 June the Tribunal also accepts that this information has in fact remained confidential.

31. Having taken these factors into account the Tribunal finds that the letter of 6 June 1999 contained details of a ‘confidential source of information’, namely the identity of the complainant to Council about Ms Ingram. The Tribunal is also satisfied that it could reasonably be expected that disclosure of the letter would reveal the identity of this source of information.

32. The Tribunal turns to the question of whether the letter of 6 June 1999 contains information relating to ‘the enforcement or administration of the law’. This means that ‘the document should have a connection with the criminal law or with the processes of upholding or enforcing civil law’ (Accident Compensation Commission v Croom [1991] 2 VR 322; Re Gold(1994) 37 ALD 168). The Respondent claims that the contents of the document relate specifically to its responsibilities under the Environmental Planning and Assessment Act 1979, the Local Government Act 1993 and the Protection of the Environment Operations Act 1997.

33. Mr Vergotis gave evidence of the Council’s investigations into matters raised by the letter of 6 June. He did not, however, identify the relevant sections of the legislation or Council’s specific statutory responsibilities. The Tribunal accepts that the Council has an obligation to investigate alleged breaches of relevant legislation. However the Tribunal is of the view that this claim should not be made by the Respondent ‘in globo’. The specific legislative responsibilities of Council should be identified. The alleged breaches may then be described in general terms to preserve the confidentiality of the complainant. This has in fact been done in this case, where the alleged breaches contained in the letter of 6 June 1999 have been disclosed to the Applicant. The Tribunal finds on the evidence before it, and after a consideration of the relevant legislation and the contents of the letter of 6 June, that a number of specific matters requiring Council’s investigation and possible further enforcement action, are raised by the letter.

34. As the Tribunal noted in Gilling v Hawkesbury City Council (No.2) [1999] NSW ADT 94, it is reasonable to expect that fewer ratepayers will be willing to complain to Council if they could expect those complaints to be made public. However the circumstances of this case differ from those in the matter of Gilling as does the exemption which is claimed. As the Tribunal noted in Gilling “Information provided to the Council in the form of complaints is different to that provided in the context of a law enforcement agency or in the context of the Council’s other regulatory roles.” The Tribunal accepts that complaints to Council may take a number of forms. In order to make out the exemption in Clause 4(1)(b) it is necessary for Council to prove the specific relationship between the ‘existence or identity of the confidential source of information’ and the law to which whose ‘enforcement or administration’ it relates. The fact that that the matters raised in the complaint have been investigated and not resulted in enforcement action does not, in the Tribunal’s view, alter the status of the complaint.

35. It is significant that Clause 4(1)(b) does not contain a ‘public interest’ requirement (Department of Health v Jephcott (1985) 62 ALR 421). As the President of the Tribunal noted in the matter of Mauger v General Manager, Wingecarribee Shire Council [1999] NSWADT 35;

The importance accorded by the Parliament to protecting from disclosure matter related to law enforcement and public safety is reflected in the attenuated treatment given to public interest considerations in the operation of the exemption . . . the Act only expressly provides for the public interest to be considered where the law enforcement document falls into the sub-categories listed in cl.4(2)(a). Then the agency must be positively satisfied that "disclosure ... would, on balance, be in the public interest": cl.4(2)(b). That approach contrasts with the role public interest considerations play in the relation to several of the exemptions contained in Parts 2 (documents requiring consultation) and 3 (other documents) of Schedule 1. In many of these instances, the agency must be positively satisfied that "disclosure ... would, on balance, be contrary to the public interest" (see e.g. cl.5(b), cl.9). See generally [Cossins A, Annotated Freedom of Information Act New South Wales (1997)] Cossins, 43-44.

36. The Tribunal is satisfied that none of the provisions of Clause 4(2) are applicable to the document in this case and therefore the ‘public interest’ requirement of that part is not applicable. While the Tribunal adopts an interpretation of the exemption that is consistent with the objectives of the FOI Act, this approach does not import an additional ‘public interest’ test into a consideration of Clause 4(1)(b).

37. The Tribunal is satisfied that the elements in Clause 4(1)(b) have been made out. The Tribunal finds that disclosure of the letter of 6 June 1999 would reasonably be expected to enable the identity of its author to be ascertained. The Tribunal finds that the letter was provided in confidence in the belief that the author’s identity would remain confidential. The Tribunal finds that the information contained in the letter raises a number of matters, which the Respondent has an obligation to investigate under relevant local government and planning laws. In this sense the letter is in relation to the administration and, potentially, the enforcement of those laws.

38. The Tribunal has considered whether release of the letter in part would be consistent with the objectives of the Act and with the Tribunal’s finding in relation to Clause 4(1)(b). The Tribunal is of the view that the contents of the letter are such that to disclose the letter in part would be to effectively disclose the identity of the author.

39. The Tribunal therefore finds that the letter of 6 June is an exempt document pursuant to Clause 4(1)(b) of Schedule 1 of the FOI Act. The Respondent’s decision not to disclose it is affirmed.

40. Having found that the letter of 6 June 1999 is exempt pursuant to Clause 4(1)(b) it is not necessary for the Tribunal to determine the claims under Clause 6 and Clause 13(b).

DECISION

41 The Tribunal affirms the decision under review.