Irvine v Temora Shire Council

[2024] NSWCATAD 202

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Irvine v Temora Shire Council [2024] NSWCATAD 202

Hearing dates:

24 May 2024

Date of orders:

25 July 2024

Decision date:

25 July 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Deane, Senior Member

Decision:

1.    Under section 63 (3)(d) of the Administrative Review Act 1997, the decision under review is set aside and remitted for reconsideration in accordance with the recommendations set out in paragraph [103] to this decision

2. Under section 64(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the sound recording and the transcript of the closed hearing (from 11:10 am to 11:50 am on 24 May 2024) of these proceedings is prohibited

3. Under section 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the evidence in Doc R3 and Doc R8 of these proceedings is prohibited.

4. Under section 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW) disclosure to the Applicant of the evidence in Doc R3 and Doc R8 and the sound recording and the transcript of the closed hearing (from 11:10 am to 11:50 am on 24 May 2024) in these proceedings and paragraphs [48], [49] and [73] of this decision is prohibited.

Catchwords:

ADMINISTRATIVE LAW — Reviewability — Justiciability — Status of decision-maker – where Respondent requested assistance from another Council in conducting internal review without instrument of delegation – purported internal review invalid – original decision deemed to have been made again and becomes the decision under review

ADMINISTRATIVE LAW – Government information – public interest considerations against disclosure – reveal an individual’s personal information – contravene an information protection principle under the Privacy and Personal Information Protection Act 1998

ADMINISTRATIVE LAW – Government information – whether Tribunal should substitute decision where individual not validly notified of decision to release redacted version

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Privacy and Personal Information Protection Act 1998 (NSW)

Cases Cited:

Commissioner of Police (NSW) v Field [2016] NSWCATAP 59

Davis v Secretary, Department of Education [2022] NSWCATAD 55

Dennis v Department of Planning, Industry and Environment [2021] NSWCATAD 377

Nakhl Nasr v State of New South Wales; George Nasr v State of New South Wales [2007] NSWCA 101

Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Premier’s Department [2002] NSWADT 277

Snape v Commissioner of Police No 2 [2022] NSWCATAP 244

Tallawoladah Pty Ltd v Department of Planning, Industry and Environment [2021] NSWCATAD 248

Transport for NSW v Searle [2018] NSWCATAP 93

Texts Cited:

nil

Category:

Principal judgment

Parties:

Anthony Irvine (Applicant)
Temora Shire Council (Respondent)

Representation:

Solicitors:
Applicant (self-represented)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2023/00454688

Publication restriction:

1. Under section 64(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the sound recording and the transcript of the closed hearing (from 11:10 am to 11:50 am on 24 May 2024) of these proceedings is prohibited
2. Under section 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the evidence in Doc R3 and Doc R8 of these proceedings is prohibited.
3. Under section 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW) disclosure to the Applicant of the evidence in Doc R3 and Doc R8 and the sound recording and the transcript of the closed hearing (from 11:10 am to 11:50 am on 24 May 2024) in these proceedings and paragraphs [48], [49] and [73] of this decision is prohibited.

REASONS FOR DECISION

1. This is an application for administrative review of a decision of the Temora Shire Council (the Respondent) concerning an application for access to information made under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act).

2. On 23 August 2023, the Respondent refused access to the information on the basis that there was an overriding public interest against disclosure.

3. For the reasons that follow, I have decided to set aside the decision made by the Respondent on 23 August 2023 and remit the matter for reconsideration.

Background

The access application

4. On 24 July 2023, Councillor Irvine (the Applicant) lodged a formal access application with the Respondent seeking the following information:

Deed of separation entered into between Mr Gary Charles Lovell and Temora Shire Council.

5. This document is referred to as “the Deed” in submissions.

6. In her decision on the access application dated 23 August 2023 the delegate of the Respondent decided, under section 58(1)(d) of the GIPA Act, to refuse access to the requested document. In summary, the delegate found that the public interest considerations against disclosure of the information outweighed those in favour of disclosure and refused access to the information in full under s 58(1)(d) of the GIPA Act.

7. The delegate further noted that the Applicant could

have access to the document necessary for performing his official functions with regard to oversight and accountability of Council through ordinary Council processes in accordance with the Council's Code of Conduct and has in fact been offered such access subject to formalised confidentiality arrangements.

External review by the Information Commissioner

8. The Applicant applied for an external review by the Information Commissioner (IC) on 3 October 2023. In a report dated 27 November 2023 (the IC Report) a Regulatory Officer of the IC concluded that the Respondent’s decision was not justified and recommended that the Respondent make a new decision.

9. Overall the IC Report concluded that reliance on clauses 3(a) and 3(b) to the table in s 14 GIPA Act was justified, but noted that the Respondent could redact any information which was considered personal information so that the individual affected could not be identified. The IC Report recommended that the Respondent make a new decision by way of internal review.

Application to the Tribunal for administrative review

10. On 15 December 2023, the Applicant lodged an application for administrative review of the Respondent’s decision with the Tribunal. The Applicant noted that the Respondent had advised they were referring the matter to Randwick City Council (RCC) to undertake internal review on their behalf.

Report by Randwick City Council (the RCC Report)

11. The Respondent did request assistance from the RCC in undertaking an internal review of the Respondent’s decision. The RCC Report, dated 18 December 2023, noted that the RCC’s assistance was sought on the basis that the original decision had been made by a Director of Temora Shire Council and there was no capacity (experience or knowledge of the GIPA Act) within the organisation for an internal review to be undertaken.

12. The RCC Report concluded that the GIPA application should be approved in part and that the information should be released subject to redactions. The aspects of the document to be redacted were:

1. personal information (including name and address)

2. personal financial information (including leave and retirement arrangements) and

3. signature(s) of the parties to the document and the name, address and signature(s) of witnesses.

13. The Deed was subsequently released to the Applicant with redactions to the front page; the details of the second party to the Deed; paragraphs A (partial) and E (partial) to the background; paragraphs 2.1 (partial), 2.2, 2.3, 3.3, 3.4, 3.5, 3.6 (partial), 3.8, 3.9 and 3.10 to the operative provisions and the details of the signatories.

Tribunal proceedings

14. On 11 March 2024 the IC provided written submissions in relation to the competency of the RCC Report. The IC submitted that there did not appear to have been a delegation of authority by the Respondent to permit the internal review to have been undertaken by the RCC, which alone, the IC submitted, was sufficient to render the purported internal review decision invalid. The RCC lacked any power to make the purported internal review decision on behalf of the Respondent, and so accordingly the RCC Report was a nullity.

15. As a result, there was no valid decision by way of internal review and the relevant reviewable decision for the purposes of the Tribunal proceedings was the Respondent’s decision.

16. On 17 April 2024 the IC advised that she had determined no longer to participate in the proceedings.

17. The parties appeared in the Tribunal on 24 April 2024. The Applicant and Respondent provided oral and written submissions. The Respondent also provided submissions at a Confidential hearing.

Which decision is the subject of the application for administrative review?

18. The Respondent accepted at the hearing that the RCC Report did not constitute a valid internal review decision and that the subject of the application for administrative review was properly the Respondent’s decision of 23 August 2023.

19. The Applicant was already of the same view before the RCC Report was prepared, having already applied for administrative review before the matter was purportedly referred to the RCC.

No delegation made by general manager of Respondent for RCC Report to be undertaken as internal review

20. As noted by the IC, s 9(3) of the GIPA Act provides

9   Access applications

…

(3) the function of making a reviewable decision in connection with an access application made to an agency may only be exercised by or with the authority (given either generally or in a particular case) of the principal officer of the agency.

21. The IC attached to her submission an email which had been sent to the Respondent’s solicitor. The IC had requested a copy of any instrument of delegation which authorised RCC to undertake the internal review on the Respondent’s behalf. The Respondent’s solicitor replied:

We are instructed that no such document exists.

22. In those circumstances there is no evidence to demonstrate that the RCC report was made by or with the authority of the Respondent’s principal officer. It follows that the RCC report does not constitute a valid internal review decision and also is not the reviewable decision for the purposes of the Applicant’s application for administrative review.

Which is the decision under review?

23. Section 86 of the GIPA Act sets out the required period for determination of internal review:

(1) An agency must make its decision on an internal review and give the Applicant notice of the agency’s decision within 15 working days (the review period) after the agency receives the application for internal review.

…

(5) If a decision on the internal review is not made within the review period, the agency is deemed to have made that decision by making the original decision again, and the Applicant for review is entitled to a refund of any fee paid to the agency for the review.

24. As no valid internal review decision was made within the review period (or at all), s 86(5) deems the original decision to have been made again. Accordingly, the Respondent’s decision of 23 August 2023 is the decision under review.

Jurisdiction

25. An application for administrative review of “an administratively reviewable decision” may only be made by an interested person (s 55 ADR Act). An administratively reviewable decision is “a decision of an administrator over which the Tribunal has administrative review jurisdiction” (s 7 ADR Act). The Tribunal has administrative review jurisdiction over a decision of an administrator “if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision” (s 9 ADR Act). An “administrator” is the person or body that makes the decision under enabling legislation (s 8 ADR Act).

26. The Respondent’s decision to refuse to provide access to information in response to an access application is a reviewable decision (s 80(d) GIPA Act). Section 100(1) of the GIPA Act gives a person aggrieved by a reviewable decision a right to apply to NCAT for an administrative review of that decision under the Administrative Decisions Review Act 1997 (NSW) (ADR Act).

27. Accordingly, the Tribunal has jurisdiction to hear and determine this application.

Legislative framework

28. In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide (s 63(3) ADR Act):

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

29. Section 58(1) of the GIPA Act sets out how access applications for government information are decided, including by deciding to provide access to the information (s 58(1)(a)), deciding that the information is already available to the applicant (s 58(1)(c)) or deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information (s 58(1)(d)).

Presumption in favour of the disclosure of government information

30. There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5(1) GIPA Act). A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information (s 9(1) GIPA Act).

31. There is a general public interest in favour of the disclosure of government information (s 12(1) GIPA Act). Nothing in the GIPA 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 (s 12(2) GIPA Act).

Public interest test

32. There is an overriding public interest against disclosure of government information for the purposes of the GIPA 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 (s 13 GIPA Act).

33. There is conclusively presumed to be an overriding public interest against the disclosure of the types of government information set out in Schedule 1 to the GIPA Act (s 14(1) GIPA Act). The information in these proceedings does not fall into those categories.

34. The only other considerations that may be taken into account under the GIPA Act as public interest considerations against disclosure (for the purpose of determining whether there is an overriding public interest against disclosure) are those considerations listed in the table to s 14.

35. Of those considerations, the following are in issue:

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)—

…

(g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence,

(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,

(b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002,

36. Section 15 sets out the principles that apply to public interest determinations:

15 Principles that apply to public interest determination

A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles—

(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.

37. In Transport for NSW v Searle [2018] NSWCATAP 93 at [104](1)] the Appeal Panel made the following observation in relation to the requirements under s 15:

We note that whilst a very broad value judgment is required to be made [in relation to the balancing exercise] it is not one to be made in a vacuum. It is a judgment to be made having regard to the objects of the legislation, the general presumption in favour of disclosure of government information and the principles set out in s 15 of the GIPA Act.

38. In determining whether there is an overriding public interest against disclosure, an agency is entitled to take the ‘personal factors of the application’ into account (s 55(1) GIPA Act). However, those factors may only be taken into account as factors against providing access if 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 s 14 (s 55(2) GIPA Act).

39. In Snape v Commissioner of Police No 2 [2022] NSWCATAP 244 at [33] and [56] the Appeal Panel held:

Section 55 of the GIPA Act makes provision with respect to when personal factors of an applicant may be taken into account in conducting the balancing test under s 13. Under the section, they may be taken into account as factors favouring or against disclosure, depending on the circumstances. The personal factors concerned are the applicant’s identity and relationship with any other person, their motives for making the application, and any other factors peculiar to the applicant. Personal factors under s 55 are different from public interest considerations in favour of disclosure which are provided for in s 12…Personal factors under s 55 of the GIPA Act may coincide with or highlight a public interest in favour of disclosure, but do not of themselves constitute a public interest” (citation omitted).

Consultation process on providing access to personal information

40. The consultation process is set out in s 54 of the GIPA Act. This requires the agency to take such steps (if any) as are reasonably practicable to consult with a person before providing access to information relating to the person in response to an access application (which, in this case, includes personal information about the person; s 54(2)) if it appears that:

(a) the information is of a kind that requires consultation under this section, and

(b) the person may reasonably be expected to have concerns about the disclosure of the information, and

(c) those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information.

…

(4) The purpose of consultation under this section is to ascertain whether the person has an objection to disclosure of some or all of the information and the reasons for any such objection.

(5) The agency must take any objection to disclosure of information that the agency receives in the course of consultation into account in the course of determining whether there is an overriding public interest against disclosure of government information.

(6) If consultation establishes that a person objects to the disclosure of information but the agency decides to provide access to the information in response to the application, access is not to be provided until the agency has first given the objector notice of the agency’s decision to provide access to the information and notice of the objector’s right to have that decision reviewed, and is not to be provided while review rights on the decision are pending.

(7) Review rights on a decision are pending while the objector is entitled to apply for a review of the decision under Part 5 (ignoring any period that may be available by way of extension of time to apply for review), or any review duly applied for is pending.

The Respondent’s submissions and evidence

41. In any NCAT review of a decision made by an agency under the GIPA Act, the burden of establishing that the decision is justified lies on the agency (except in certain circumstances which are not relevant here) (s105(1)). Accordingly, on review by the Tribunal, the GIPA Act requires the agency to demonstrate that the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure.

Respondent’s submissions in open session

42. In its written submissions the Respondent contended that its decision not to release the Deed should be affirmed. However, subsequently and in oral submissions, the Respondent acknowledged that the redacted deed had already been released in accordance with the RCC Report and so the Respondent “only presses for the continued redaction of the redacted portions of the document to which the Applicant does not already have access”.

43. The Respondent acknowledged that because the RCC Report was invalid as an internal review decision, the consultation processes undertaken by the RCC would also have no statutory effect. However the Respondent had conducted its own consultation at the time that the decision of 23 August 2023 was being determined and relied on that consultation in submitting that the Tribunal’s decision should reflect the redactions which had already been made and released under the RCC Report.

44. The Respondent outlined the purpose of the Deed. The Respondent submitted that the news clippings and articles provided by the Applicant confirmed that the former general manager had retired on 30 June 2023. The contract was terminated, following which, under the Deed, the general manager was to transition to an Award Staff Contract. The Deed governed the arrangements made between the Respondent and the former general manager as to what the Award Staff Contract would contain. The arrangements were personal between the Respondent and the former general manager. The parties to the deed envisaged that the Deed would be confidential and this was reflected in the Deed.

45. Regarding the public interest considerations against disclosure set out in the Table to s 14 of the GIPA Act, the Respondent submitted that the Tribunal should give significant weight to the considerations against disclosure in clauses (1)(f), (1)(g), (3)(a) and (3)(b) in its determination of the matter. The Respondent also contended that the Tribunal should take into account personal factors of the application under s 55 GIPA Act.

46. The Respondent provided an affidavit from the delegate dated 21 March 2024 which set out her opinions as to the applicability and pertinent factors in respect of each of the public interest factors weighing against disclosure of the Deed, along similar lines as the Respondent’s submissions.

47. The Respondent acknowledged there was a general public interest in enhancing government accountability and oversight of government decision making but further submitted that the disclosure of the redacted details would not provide any significant opportunity for greater public scrutiny or answer the questions raised by the Applicant regarding the Deed.

Submissions in closed session

48. [NOT FOR PUBLICATION]

49. [NOT FOR PUBLICATION]

The Applicant’s submissions and evidence

50. The Applicant sought full access to the Deed. He contended that all of the information about the former general manager was known; the information he sought was contained in the substantive details of the Deed.

51. In his written submissions, the Applicant set out five questions he considered to be of interest to the public and submitted that the public interest in favour of release outweighed all reasons against release. The Applicant provided articles regarding the retirement of the former general manager.

52. The Applicant submitted that all of the news articles that he had provided indicated that the former general manager had retired and left the employment of Council. However, if the Award Staff Contract had commenced, this was not correct. Residents and ratepayers of Temora had a false impression of the circumstances and the Applicant wished to correct the record.

53. The Applicant provided a letter from the Office of Local Government dated 3 August 2023 which relevantly stated that the former general manager

is no longer employed by Temora Shire Council and therefore no action will be taken against [him].

54. The Applicant submitted that the former general manager had retired after 28 years with great fanfare but there had been no information about him continuing to be engaged by Council.

55. The former general manager’s employment was public and his pay was reported publicly. Award Staff Contracts were arranged by the corporate side of Council. The general manager was the CEO and there were also Directors who were employed by the general manager. This deed appeared to sit between those arrangements and demanded action of a person not yet in the position of general manager.

56. When the Applicant joined the Council he requested the former general manager's contract from the mayor. The standard contract had been provided confidentially on the proviso that the Applicant return it after viewing. The Applicant had asked the mayor for the Deed under the same terms. They had legal advice that there was a high degree of confidentiality involved, so Council wanted the Applicant to sign a confidentiality agreement so that he could view it in the company of the mayor. The Applicant did not wish to sign a confidentiality agreement which would prevent him from discussing the document with any other councillors unlike the previous release, and additional to the confidentiality expected of councillors in their role.

Issues for determination

57. In light of the foregoing summary of the background, submissions and evidence, the issues for the Tribunal to determine in this matter are:

1. Has the Respondent established that the decision under review is justified?

2. what is the correct and preferable decision in all the circumstances?

Has the Respondent established that the decision is justified?

58. In relation to the public interest considerations against disclosure set out in the Table to s 14 of the GIPA Act, the Respondent submitted that the Tribunal should give significant weight to the considerations against disclosure in clauses (1)(f), (1)(g), (3)(a) and (3)(b) its determination of the matter.

59. I have taken into account the submissions of both parties and made a determination on each of the considerations below.

Disclosure of the information could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions (clause 1(f)):

60. The Respondent contended:

1. In addition to its service and regulatory functions, local councils have administrative functions which include the employment of staff and without which Council could not carry out its service and regulatory functions;

2. Section 8A of the Local Government Act (LG Act) sets out the guiding principles for councils in exercising their functions, and includes that councils “should be responsible employers and provide a consultative and supportive working environment for staff”;

3. in the course of a person's employment with the Council they would necessarily need to provide the Council with personal information which would then form part of the employees personal employment record;

4. under s 18 of the PPIP Act, a ‘public sector agency’ which includes a local council must not disclose personal information except in very limited circumstances none of which applied in this matter;

5. The Deed contained details of the employment relationship between the Council and one of its employees and from which the identity of the employee was apparent;

6. therefore in addition to general community expectations that an employer will not disclose personal information relating to its employees, the Council had a direct obligation not to do so under the PPIP Act;

7. if the data were released it could reasonably be expected to prejudice the effective exercise by the Council of its functions by:

1. Discouraging persons from seeking employment with the Council, or prompting existing employees to seek employment elsewhere;

2. discouraging the Council’s employees from providing personal information to the Council during the course of their employment.

3. In doing so, the Council would be prejudiced in its ability to both employ and retain staff.

61. The Applicant contended that this was an isolated matter. It did not involve other Council personnel. It did not constitute a precedent for any other Council personnel information to be released.

62. I do not consider that the release of the redacted information in the Deed could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions. As noted by the Respondent, the Deed is not an employment contract and so would not create a precedent for the release of employment details. Further, the Respondent has not provided any basis on which to find that the release of this particular information would discourage potential employees from taking up a role with the Respondent. Public officials should be aware of the GIPA Act and that in certain circumstances, some information can be released. This is counterbalanced by the protections of the PPIP Act which is considered below under clause 3(b) and to which subparagraph 68(4) above of the Respondent’s submissions is more appropriately directed.

63. I do not consider this to be a strong consideration against disclosure of the information that the Applicant has sought.

Disclosure of the information could 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 (clause 1(g)):

64. The Respondent contended:

1. the Deed contained a clause requiring it to be confidential except as required by law;

2. the release of the Deed would be in breach of the express obligation of confidentiality and therefore found an action against the agency for breach of confidence;

3. The presence of a confidentiality clause in the deed meant there must be a reasonable expectation that release would found an action of breach of confidence.

65. In Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Premier’s Department [2002] NSWADT 277, the former NSW Administrative Decisions Tribunal identified at [53] five matters to be established for a hypothetical equitable action for breach of confidence:

“1) First, the information must be capable of being specifically identifiable as information which is secret rather than generally available

2) Second, the subject matter of the obligation of confidence must not be trivial or useless or generally known;

3) Third the information must have been communicated in circumstances such as to fix the recipient with an equitable obligation not to use the information in an unauthorised way;

4) Fourth, it must be established that the disclosure of the information would constitute an unauthorised disclosure;

5) It must be established that the giver of the information would suffer a detriment, not necessarily pecuniary, such as loss of privacy or embarrassment.”

66. While the decision of Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Premier’s Department concerned an application under the Freedom of Information Act 1989 (repealed), it has been followed in a number of decisions under the GIPA Act: see Dennis v Department of Planning, Industry and Environment [2021] NSWCATAD 377 at [83]; Tallawoladah Pty Ltd v Department of Planning, Industry and Environment [2021] NSWCATAD 248 at [61] and Davis v Secretary, Department of Education [2022] NSWCATAD 55 at [70].

67. As discussed in the open session of the hearing, the Deed is no longer confidential, even in its redacted form. The confidentiality clause was subject to an exception “as required by law” and the Respondent acknowledged that, if the GIPA Act required its release, it could be released (and has been).

68. The disclosure of the information has not constituted an unauthorised disclosure. As such I am not satisfied that disclosure of the information could 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.

Disclosure of the information could reasonably be expected to reveal an individual’s personal information (clause 3(a)):

69. Personal information is defined in Schedule 4, clause 4 to the GIPA Act:

4 Personal information

(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, including the individual’s position title, public functions and the agency in which the individual works) 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.

70. The Respondent contended that the Deed contains information about an individual whose identity is apparent from the information. The Deed had not already been publicly disclosed and so the release of the Deed would necessarily reveal an individual's personal information. The identity of the individual was revealed both in the Applicant’s request itself, and is also readily inferred from the information itself to such an extent, meaning that the redacted details in the document could not be provided in any meaningfully redacted form.

71. The Appeal Panel in Commissioner of Police (NSW) v Field [2016] NSWCATAP 59 at [67]-[69] noted that “personal information” in the GIPA Act had a wide definition:

67. Looking at the statutory provisions, it can be seen that “personal information” has a wide definition: GIPA Act, Sch 4, cl 4. It is not defined by reference to matters that have occurred in private. It is concerned with information “about an individual”.

68.   When it comes to the question whether such personal information has been revealed, the statutory provisions are concerned with revealing information, not with a revealing [sic] the event to which the information relates (cl 3(a) in the Table in s 14 and the definition of “reveal information” in cl 1 of Schedule 4 of the GIPA Act). The incident itself is quite distinct from the information that is obtained about it.

69.   The fact that some information about the event has been publicly disclosed does not mean that other information has been. Correctly, the Tribunal below, as we interpret its reasons, did not conclude that the information in the footage had been publicly disclosed because of the tender in open court of the police fact sheet describing the incident…or because of the press reports about the incident.

72. In relation to this consideration it is necessary to consider some issues which arose in the closed session.

73. [NOT FOR PUBLICATION]

74. The Respondent has established that there are certain pieces of information contained in Deed which would meet the definition of personal information, even taking into consideration the proviso in subclause 4(3)(b) in relation to a person engaged in the exercise of public functions.

75. The Respondent has established that disclosure of the information (at least in part) could reasonably be expected to reveal an individual’s personal information and this consideration is to be given weight in balancing the public interest in favour of and against disclosure as required by s 13.

Disclosure of the information could reasonably be expected to contravene an information protection principle under the PPIP Act (clause 3(b)):

76. Section 18(1) of the PPIP Act (Information Protection Principle (IPP) 11) imposes limits on the disclosure of personal information. A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless—

(a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or

(b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or

(c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.

77. If personal information is disclosed in accordance with IPP 11 to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.

78. The PPIP Act definition of personal information (s 4) largely incorporates the same wording as the GIPA definition, with more exclusions as to what constitutes personal information (none of which is relevant in this case).

79. The Respondent contended that the Deed contained personal information as defined under the PPIP Act. Under s 18 PPIP Act, a public sector agency that holds personal information must not disclose that information except in specific circumstances set out at ss 18(1)(a) – (c) of the PPIP Act. Those circumstances do not exist in respect of the Deed. Therefore the release of the Deed would directly contravene the information protection principle against disclosure of personal information at s 18 of the PPIP Act.

80. The essence of disclosure of information is making known to a person information that the person to whom the disclosure is made did not previously know: Nakhl Nasr v State of New South Wales; George Nasr v State of New South Wales [2007] NSWCA 101 at [127] per Campbell JA (Beazley and Hodgson JJA agreeing).

77. There are certain pieces of information contained in Deed which would meet the definition of personal information in the GIPA Act and those pieces of information would also satisfy the definition of personal information in the PPIP Act. Disclosure of that information could reasonably be expected to contravene IPP 11 under the PPIP Act and this is also a consideration that weighs against disclosure of the pieces of information which contain personal information.

Personal factors under s 55

82. The Respondent submitted that the Tribunal should also take the personal factors of the application into account (s 55 GIPA Act).

83. The Applicant is a counsellor of the Council. On that basis, under the Temora Shire Council Model Code of Conduct he is entitled to access such Council information that is necessary for the performance and effective discharge of his official functions. The Applicant was offered the opportunity to inspect the Deed in his capacity as a councillor of the Council, subject to an agreement that he not further disclose any of the contents of the Deed. The Applicant declined to inspect the Deed on that basis.

84. The Respondent submitted that the Applicant's refusal to inspect the document subject to an agreement to keep the contents of the Deed confidential suggested that the Applicant was seeking to obtain the Deed for the purposes of circulating or publishing the Deed or the information contained within it.

85. The Respondent submitted that the widespread publication of the Deed, or the information contained within it, would significantly increase the extent to which its release would prejudice the effective exercise by an agency of the agencies functions, as it would be likely to significantly increase the number of people both within the Council, and the broader community, who were aware of the release of the personal information.

86. However, the personal factors under s 55 can only be taken into account as factors against providing access to the extent that those factors are relevant to the agency's consideration of whether 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 (s 55(4) GIPA Act. Accordingly they are not relevant to any consideration as to whether disclosure of the information could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions (clause (1)(f)).

What is the correct and preferable decision in all the circumstances?

Should the Tribunal affirm the decision?

87. The Respondent acknowledged that the Respondent’s decision could not be supported once the redacted version of the Deed was released. As noted above, the Respondent has not justified two of the four considerations on which the Respondent relied. Further, a redacted version of the Deed has now been released and the decision to refuse to provide access to all of the information in the Deed because there is an overriding public interest against disclosure of the information cannot be sustained.

88. In their written submissions in reply, the Respondent contended

The decision under review should be affirmed to the extent not hitherto disclosed to the Applicant.

89. However the Respondent's decision was to refuse to provide access under s 58(1)(d). A decision to provide access to information, even in a redacted form, would be a decision under s 58(1)(a) and would not be a decision to affirm the Respondent’s decision.

90. There is insufficient basis on which to affirm the decision.

Should the Tribunal vary the decision?

91. The Respondent’s decision was to refuse to provide access to the information because there is an overriding public interest against disclosure of the information under s 58(1)(d) of the GIPA Act. If the Tribunal were to make a decision to provide access to the information (with redactions) that decision would be under s 58(1)(a). As such it would be a different decision. In light of the determination that the Respondent’s decision should not be affirmed, it is not open to the Tribunal to vary the Respondent’s decision.

Should the Tribunal set the decision aside and make a new decision?

92. The Respondent sought for the Tribunal to continue the redactions of the redacted portions of the document to which the Applicant did not already have access. This appears to be a request that the Tribunal should set the decision aside and make a new decision to provide access to the information with redactions.

93. However I am of the view that this is not the correct or preferrable decision in this matter because of the requirement that an individual must be consulted if the agency has decided to provide access to their personal information (s 54(1)) and the individual’s rights to object to and seek review of that decision (s 54(6)). The Respondent submitted that this had been done at both the initial stage of making the Respondent’s decision and for the RCC Report. However, on the first occasion, access was refused. On the second occasion, as there was no delegation for the RCC to conduct a valid internal review, the processes undertaken by the RCC in preparing the RCC were also not authorised to be conducted for the purposes of the GIPA Act. Any consultation undertaken in that process cannot be relied upon.

94. Further, the Respondent did not appear to consider s 58(3)(c). An agency can decide an access application for government information by:

(c) deciding that the information is already available to the Applicant…

95. Under s 59, an agency can decide that information is already available to an Applicant only in certain circumstances, which include if the information is:

(b) available to the Applicant from, or for inspection at, the agency free of charge in accordance with this act or the agency's policies and practices.

96. The delegate attested in her affidavit as to the opportunities afforded to the Applicant to view the material:

22. The Applicant is a councillor of the Council, and therefore he is entitled under the Temora Shire Council Model Code of Conduct to access such Council information that is necessary for the performance and effective discharge of his official functions.

23. On 22 June 2023, I am aware that the Applicant was offered the opportunity to inspect the deed of separation in his capacity as a counsellor, subject to a written agreement that he not then further disclose any of the contents of the document. I am aware that the Applicant declined to inspect the deed of separation subject to that written agreement.

97. The Respondent provided a copy of Part 8 to the Temora Shire Council Model Code of Conduct in relation to access to Information and Council resources which relevantly sets out:

Councillor and administrator access to information

8.1 The general manager is responsible for ensuring that councillors and administrators can access information necessary for the performance of their official functions. …

8.2 The general manager must provide councillors and administrators with the information necessary to effectively discharge their official functions.

8.3 Members of staff of Council must provide full and timely information to councillors and administrators sufficient to enable them to exercise their official functions and in accordance with Council procedures.

98. Section 58(3)(c) did not appear to have been addressed in any of the decisions or submissions, although the fact that the Applicant had been offered access to the document on a confidential basis formed part of the Respondent's decision under the personal factors of the application. The Respondent submitted that the document’s release in a redacted form could not now be reversed and seemed to suggest that a decision now under s 58(3)(c) would be futile.

99. The Applicant submitted that he did not consent to the confidentiality requirements that the access offered by Council would require.

100. As the question of whether s 58(3)(c) might apply was raised for the first time in the proceedings at the Tribunal hearing, I do not consider that it would be procedurally fair to the parties to set the decision aside and make a new decision under that provision, even if that course were open.

101. If the matter were remitted to the agency for reconsideration by the administrator, this factor or the circumstances of any access under the Model Code of Conduct could be given further consideration.

Should the Tribunal set the decision aside and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal?

102. In light of the foregoing considerations, I consider that the correct and preferable decision is to set the decision aside and remit the matter for reconsideration by the administrator in accordance with the recommendations of the Tribunal set out below.

Recommendations

103. On remittal, in addition to the issues raised in this decision, the delegate should particularly address the following matters;

1. Whether the questions raised by the Applicant in his submissions constitute considerations in favour of disclosure;

2. Whether the information in the Deed is affected by Schedule 4(3)(b), which stipulates that personal information does not include information about an individual (comprising the individuals name and non-personal contact details including the individuals position title, public functions and the agency in which the individual works) that reveals nothing more than the fact that the person was engaged in the exercise of public functions;

3. Whether the public interest in disclosure of government information can be facilitated by granting access to the information in the Deed in full or with minimal redactions;

4. Although orders have been made restricting the publication of Doc 3 and Doc 8 which were provided confidentially for the purposes of the NCAT proceedings, those orders are not intended to impact and do not extend to any new access decision made on remittal of the proceedings. For clarity, the publication restrictions made in this decision are only for the purposes of the present NCAT proceedings and are not relevant considerations in making the new access decision on remittal.

Orders

104. The Tribunal makes the following orders:

1. Under section 63 (3)(d) of the Administrative Review Act 1997, the decision under review is set aside and remitted for reconsideration in accordance with the recommendations set out in paragraph [103] to this decision

2. Under section 64(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the sound recording and the transcript of the closed hearing (from 11:10 am to 11:50 am on 24 May 2024) of these proceedings is prohibited.

3. Under section 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the evidence in Doc R3 and Doc R8 of these proceedings is prohibited.

4. Under section 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW) disclosure to the Applicant of the evidence in Doc R3 and Doc R8, the sound recording and the transcript of the closed hearing (from 11:10 am to 11:50 am on 24 May 2024) in these proceedings and paragraphs [48], [49] and [73] of this decision is prohibited.

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

Registrar

Decision last updated: 25 July 2024