Kermode v Department of Environment & Climate Change

[2009] NSWADT 120

CITATION:	Kermode v Department of Environment & Climate Change [2009] NSWADT 120
DIVISION:	General Division
PARTIES:	APPLICANT Allan Ray Kermode RESPONDENT Department of Environment & Climate Change
FILE NUMBER:	083312
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	18 March 2009
DATE OF DECISION:	26 May 2009
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	Access to documents – information contained in confidence
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Cianfrano v Director General, Premier's Department [2007] NSWADT 216 Department of Health v Jephcott (1985) 62 ALR 421 Mauger v Wingecarribee Shire Council [1999] NSWADT 35 re B and Brisbane North Regional Health Authority (1994) 1QAR 279 Taylor v Chief Inspector, RSPCA [1999] NSWADT 23 University of New South Wales v McGuirk [2006] NSWSC 1362
REPRESENTATION:	APPLICANT K Rands, solicitor RESPONDENT E Bateman, solicitor
ORDERS:	The decision of the Department is affirmed.

Introduction

1 The applicant, Mr Kermode, has made an application to the Tribunal for review of a decision of the respondent, the Department of Environment & Climate Change (‘the Department’), to refuse him access, in part, to a document for which he had sought access under the Freedom of Information Act 1989 (‘the FOI Act’). The document in question is an email, dated 26 August 2008, concerning a complaint received by the Department, via the Environment Line, of alleged unlawful logging of trees on Mr Kermode’s property.

2 In its original determination and its internal review determination, the Department’s decision was that the email contained information obtained in confidence and was therefore exempt under clause 13(b) of Schedule 1 of the FOI Act. Pursuant to section 25(4) of the FOI Act, the Department went on to decide that Mr Kermode should be given access to the document with the exempt information deleted. The deleted information was the pseudonym used by the complainant/caller to the Environment line, the caller’s telephone number and a few words in the body of the record of the complaint, as this was information from which the caller could be identified. It is noted that Mr Kermode strenuously denies the allegations of unlawful logging of trees on his land.

3 In his application to the Tribunal, Mr Kermode said he was seeking review of the Department’s decision because he needed know if the complainant/caller was his brother or any of his brother’s family. Mr Kermode went on to explain some differences between he and his brother and his family and said ‘I am prepared to fix all these problems but I must know’.

Issues

4 The issues for determination in this application are:

(a) whether the deleted material in the email is information falling within the terms of the clause 13(b) exemption in Schedule 1 of the FOI Act, and

(b) if it does, whether the correct and preferred decision is to refuse Mr Kermode access to this information: see s 25(1) of the FOI Act, section 63 of the Administrative Decisions Tribunal Act 1997 and University of New South Wales v McGuirk [2006] NSWSC 1362.

5 It is not disputed that the onus is on the Department to establish that its decision is justified: see section 61 of the FOI Act.

6 In its written submissions the Department also contended that the deleted information in the email was exempt under clause 4(1)(b) (the law enforcement exemption) and clause 6 (personal affairs exemption) of Schedule 1 of the FOI Act. It is unnecessary for me to deal with these additional exemptions as I have found that the deletions are exempt under clause 13(b) of Schedule 1 of the FOI Act. I would however indicate that on the material before the Tribunal, they appear to be equally applicable to the deleted information.

Clause 13(b) exemption

7 In order for the deleted information to fall within the terms of clause 13(b) exemption the Department must establish the following:

(a) the information had been obtained in confidence;

(b) the disclosure of the information could reasonably be expected to prejudice the future supply of such information to the Department, and

(c) the disclosure of the information ‘would, on balance, be contrary to the public interest’

8 In support of its decision the Department filed affidavits sworn by three of its employees; Alf Zawadzki (Manager Corporate Audit Review), Simon Smith (Manager Armidale Region) and Sandra Diane Guy (Senior Information Officer).

9 Mr Kermode also filed an affidavit. His evidence and that of the Department is discussed below in the context of the issues that are for determination in this application.

10 Submissions were also filed by both parties.

Was the information obtained in confidence?

11 It is well accepted that for information to be found to have been obtained in confidence for the purposes of the clause 13(b) exemption it is not necessary to establish that it had been provided under an express pledge of confidentiality - an implied pledge of such confidentiality will be sufficient: see Department of Health v Jephcott (1985) 62 ALR 421 at 425. It is also accepted that an implied pledge of confidentiality may be inferred from the circumstances in which the information was provided. That is, where the circumstances are such that ‘there was a common implicit understanding as to the preserving of confidentiality of the information imparted’: see re B and Brisbane North Regional Health Authority (1994) 1QAR 279.

12 In her affidavit, Sandra Dianne Guy (‘Ms Guy’), gave extensive evidence about the operation of the Department’s frontline telephone contact point, or Environment Line. This is the point of contact between members of the general public and the Department. Ms Guy explained that the majority of the calls that are made to the Environment Line are requests for publications (including published policies of the Department), advice on a range of the Department’s activities, environmental grants and a range of other policy issues. She explained that each call receive on the Environment Line was logged (i.e. recorded) on the Department’s database by the information officer taking the call. Calls concerning requests for publications etc. were lagged as an ‘Information Call’. Other types of calls which are received on the Environment Line, Ms Guy explained, were reports of alleged incidents of pollution or complaints made by members of the public about alleged offences under legislation administered by the Department (e.g. air, noise, water, chemical and radiation pollution, waste dumping, pesticides, overspray, damage to threatened species or Aboriginal artefacts or sites, and clearing of native vegetation). These calls of alleged pollution and complaints of alleged offences were logged as ‘Incident Reports’. Ms Guy explained that the information officer when entering the details of a call into the database is required to enter the caller’s details and when doing so there are two options available to the officer and the option chosen is dependent on the caller’s preference. One option allows for the caller’s identifying details to remain confidential and to be circulated only within the Department. The other option allows for the caller’s identifying details to also be provided outside of the Department to another relevant agency. These options Ms Guy explained were setup as a default option of ‘caller agrees that their details may be passed to another ARA or EPA licence holder’ or alternatively ‘confidential within the DECC’. Ms Guy said that in her experience a large proportion of callers to the Environment Line sought to have their complaint etc. recorded on the basis of their identity remaining anonymous.

13 In regard to the complaint that is the subject of the email in these proceedings, Ms Guy said she recollected taking the particular call in question. She said that she was ‘certain’ that the complaint had been made ‘on the clear understanding between myself as a representative of DECC and the caller that the caller’s details would remain confidential.’ She confirmed this not only through her own recollections but also because her record had shown that she had selected the callers detail options as being ‘remain confidential within the DECC’ and the fact that the record showed that the caller had provided a pseudonym which she had entered on the complaint record.

14 On the basis of Ms Guy’s evidence I find the Department has established, to the requisite standard that the deleted information in the document the subject of this application was obtained in confidence.

The disclosure of the information could reasonably be expected to prejudice the future supply of such information to the Department

15 It is well accepted that this aspect of the exemption in clause 13(b) of Schedule 1 of the FOI Act is an objective one and the prejudice is to be considered in the context of information of the kind that is the subject of this application and not in the context of the information the subject of the application for review.

16 In her affidavit, Ms Guy said that, in her opinion, a disclosure of the deleted information could have the following effect:

‘...based on my experience receiving Incident Reports calls on Environmental Line, if members of the public providing information to Environment Line about possible breaches of DECC legislation are not able to keep their personal details, including their contact telephone numbers confidential, there would be a

reduction in the number of incident reports received by DECC.’

17 Ms Guy went on to say that if complaints were only received anomalously then they would be of very limited use to the Department as there would be no means to contact complainants to follow up issues that may require some further clarification from the complainant.

18 In his affidavit, affirmed on 18 December 2008, Simon Smith (‘Mr Smith’) explained that he was responsible for managing the operation of the Armidale office of the Department. This included overseeing all investigations relating to native vegetation regulation within the region. He went on to explain that complaints about native vegetation clearing were nearly always made on a confidential basis. Not all such complaints resulted in action being taken, as there were numerous defences and exemptions that applied under the relevant legislation. However, the monitoring of clearing of native vegetation was primarily reliant on complaints from members of the public together with analysis of satellite imagery and area photography. He said that in his experience clearing of native vegetation in the Armidale region was rare and was isolated to rural areas with a relative low population. He went on to say that in his opinion, if complaints regarding native vegetation clearing were not kept confidential the number of complaints would dramatically fall to the point of being non-existent. In a further affidavit, affirmed on 6 February 2009, Mr Smith gave further evidence in regard to the importance of complaints from members of the public in monitoring the clearing of native vegetation in the region. He stressed that public reporting was a ‘critical source of valuable and timely information’ and for this reason the Department encouraged people to freely volunteer information confidentially without fear of reprisals or adverse consequences. He also explained that it was important for complainants to leave their contact details, as clarifying information is inevitably necessary to ascertain further details about the location of the alleged clearing and other important details regarding thereto.

19 The evidence of Mr Smith and Ms Guy demonstrates the reliance the Department places on receiving complaints in perform its functions and obligations. Their evidence also demonstrates that this information would not be so forthcoming if the names or identity of the complainant could readily be obtained or disclosed. Accordingly, I find that the Department has established, to the requisite standard, that disclosure of the deleted information could reasonably be expected to prejudice the future supply of such information to the Department.

Would disclosure of the information, on balance, be contrary to the public interest?

20 The final aspects of clause 13(b) exemption involves the balancing of competing public interests; namely the public interest in members of the public being given a right to access to information in documents held by a government agency and the public interest in the non disclosure of information in documents which are reasonably necessary for the proper administration of the Government (see section 5(2) of the FOI Act).

21 Mr Kermode’s evidence and the submissions (filed by his legal representative) primarily relate to this aspect of the clause 13(b) exemption. In his evidence Mr Kermode asserts that the complaint, as recorded in the email, was false and vexatious and made by the complainant with an attempt to cause mischief and was part of a personal vendetta. He also asserted that he needed to know the name of the complainant and the other deleted material so that he could properly defend himself from the allegations that were being made against him.

22 In his written submissions Mr Kermode said the relevant public interest was:

(a) the right of every person, alleged to have contravened a legislative provision, to know the full particulars of the allegation (i.e. all adverse allegations) that have been made against him/her as well as full particulars of the complainant, and

(b) not to waste resources of government agencies when it can be determined early on, whether or not a complainant is simply causing mischief or is making a vexatious complaint. That is the public interest is not served by protecting informants who merely seek to cause trouble.

23 In support of his latter contention Mr Kermode cited the decision of the President in Mauger v Wingecarribee Shire Council [1999] NSWADT 35. It is noted that in that decision the applicable exemption was clause 4 of Schedule 1 of the FOI Act. At [35] to [47] the President discussed at length the approach taken in by other courts and tribunals about the disclosure of the identity of an informant where it is alleged that the informant has acted maliciously or given deliberately false information. At [40] to [42] the President referred to the decision of the Tribunal in Taylor v Chief Inspector, RSPCA [1999] NSWADT 23. In that application the agency had found the complaint in question to have been unfounded and made maliciously. Notwithstanding this the Tribunal nevertheless affirmed the decision of the agency to refuse the FOI applicant access to the name of the complainant. In my opinion the approach was the correct approach so far as it relates to disclosure of such information under the FOI Act.

24 As pointed out by the President in Mauger at [46] legal sanctions are available to government agencies where the agency finds that a complainant has made a deliberately false and/or malicious complaint against another person. The FOI Act is not the vehicle for such sanctions and they can be sought without the knowledge of an FOI applicant.

25 At [47] the President said ‘a Tribunal should ordinarily accept the judgment of the law enforcement agency as to the question of whether a complaint was made knowing it to be false, or maliciously, unless there is significant independent evidence to challenge its judgment.’ Mr Kermode, not knowing the name of the complainant is of course in a difficult position in that regard and consequently the Tribunal needs to examine carefully the material before it, including that which has been provided in confidence.

26 In his affidavit of 18 December 2008, Mr Smith said that the allegation as set out in the email was being investigated and in his opinion, the complaint not frivolous or vexatious.

27 The Department submitted that there were strong public interests considerations against disclosure of the deleted information. These include the public interest in protecting the flow of information to government agencies and maintaining confidentiality. It also submitted that Mr Kermode’s interest in obtaining access to the information was more correctly characterised as a private interest and therefore not relevant.

28 I agree with the Department’s contentions. While I appreciate Mr Kermode’s concerns about being able to fully respond to the allegations that have been made against him, the appropriate forum for addressing those concerns are in the context of the investigation and any decisions or findings of the Department in regard to these. They are not matters, which would alter the balance of the public interest in the non disclosure of the deleted information on the basis of the evidence of Mr Smith and Ms Dunn.

29 Accordingly, I find that the Department has established, to the requisite standard, that disclosure of the deleted information would, on balance, be contrary to the public interest.

Conclusion

30 For the reasons set out above I find that the deleted information in the email the subject of this application is exempt under clause 13(b) of the FOI Act.

Is the decision of the Department nevertheless the correct and preferred decision?

31 As mentioned above, having found that the deleted information in the email the subject of this application falls within clause 13(b) of Schedule 1 of the FOI Act the next issue for determination is whether the correct and preferred decision is nevertheless a decision to refuse Mr Kermode with access to the deleted information: see section 25(1) of the FOI Act, section 63 of the Administrative Decisions Tribunal Act 1997 and University of New South Wales v McGuirk [2006] NSWSC 1362.

32 The general principles relevant to consideration of whether to exercise the residual discretion were outlined by O’Connor DCJ in Cianfrano v Director General, Premier's Department [2007] NSWADT 216 at [24]. His Honour went on to say that the Tribunal ‘should only exercise the power to decline to refuse disclosing exempt matter where there are strong grounds justifying the overriding of the exemption’ and that ‘question of whether there are strong grounds’ should be considered in accordance with the objectives of the FOI Act as set out in section 5.

33 In my view in this application there are grounds, let alone strong grounds, justifying ‘the overriding of the exemption’. The complaint was made to the Department in the usual way such complaints are made and it was recorded accordingly, with the express desire of the complainant to keep his/her identity confidential.

Orders

34 For the reasons set out above, the appropriate order in this application is that the decision of the Department be affirmed.