Lesslie v Lithgow City Council

[2023] NSWCATAD 306

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Lesslie v Lithgow City Council [2023] NSWCATAD 306

Hearing dates:

13 November 2023

Date of orders:

05 December 2023

Decision date:

05 December 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

ADMINISTRATIVE LAW – administrative review – Government information - whether overriding public interest against disclosure – personal information of a third party

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Health Records and Information Privacy Act 2002 (NSW)

Local Government Act 1993 (NSW)

Privacy and Personal Information Protection Act 1998 (NSW)

State Records Act 1998 (NSW)

Cases Cited:

Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57

Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34

Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286

Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46

Leech v Sydney Water Corporation [2010] NSWADT 298

Meldru v Wollondilly Shire Council [2017] NSWCATAD 292

Neary v State Rail Authority [1999] NSWADT 107

Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111

Taylor v Destination NSW [2017] NSWCATAD 272

YG & GG v Minister for Community Services [2002] NSWCA 247

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Arthur Lesslie (Applicant)
Lithgow City Council (Respondent)

Representation:

Applicant (Self-Represented)
Lithgow City Council (Respondent)

File Number(s):

2023/00229365

Publication restriction:

Pursuant to s 64(1)(c) of the NCAT Act the publication or disclosure of the parts of these Reasons marked “NOT FOR PUBLICATION”, other than to the respondent (Lithgow City Council) is prohibited.

REASONS FOR DECISION

Background

1. These proceedings concern a request that Arthur Lesslie (the applicant) made to Lithgow City Council (the respondent) on 24 May 2023 for the release of information under the Government Information (Public Information) Act 2009 (NSW) (the GIPA Act), in the following terms:

The resignation letter and/or email, from former Councillor Deanna Goodsell to Lithgow City Council’s General Manager or any Officer of Lithgow City Council.

Any letters and/or emails from former Councillor Deanna Goodsell to Lithgow City Council’s General Manager or any Officer of Lithgow City Council between the 11 May 2023 and the 20 May 2023 which asks for advice or which relates to, or discusses or canvasses this resignation.

Any letters and/or emails from Lithgow City Council’s General Manager or any Officer of Lithgow City Council to Deanna Goodsell between the 11 May 2023 and the 20 May 2023.

Any correspondence between Lithgow City Council’s General Manager and Lithgow City Council’s Mayor between the 11 May 2023 and the 20 May 2023 which relates to, or discusses or canvasses this resignation.

2. On 20 June 2023, the respondent decided to provide access to part of the information sought in item the GIPA request (s 58(1)(a) of the GIPA Act), but to refuse to provide access to the information that was subject to an overriding public interest against its disclosure (s 58(1)(d) of the GIPA Act).

3. The respondent stated that under s 13 of the GIPA Act, the Public Interest Test is applied to all applications to identify considerations both in favour of and against disclosure of information to determine whether the balance lies between them. The respondent stated, relevantly:

4.1 Public interest considerations in favour of disclosure

Under section 12(1) of the GIPA Act, there is a general public interest in favour of disclosing government information. Section 12(2) of the GIPA Act sets out some examples of other public interest considerations in favour of disclosure. However, I am not limited to those considerations in deciding your application.

I find the following considerations in favour of disclosure are relevant to your application:

12, 2(a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.

I gave this consideration reasonable weight in my decision as this information may be of interest to the public.

4.2 Public interest considerations against disclosure

When applying the public interest test, the only public interest considerations against disclosure that I can take into account are those set out in the table to section of the GIPA Act.

I have identified the following considerations against disclosure as being relevant to your application:

• 14, 3(a) Reveal an individual’s personal information.

• 14, 3(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.

• 14, 6(1) There is a public interest consideration against disclosure of information if disclosure of the information by any person could (disregarding the operation of this Act) reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule (of this or another State or of the commonwealth) that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions.

I gave strong weight in my decision as Council has an obligation to protect personal information/records.

4. The respondent decided that there was an overriding public interest against disclosure of some of the information sought in the GIPA request, which was summarised in an attached Schedule of Documents.

5. The applicant did not request either an internal review by the respondent or an external review by the Information and Privacy Commissioner.

Application for administrative review

6. On 19 July 2023, the Tribunal received the current application for administrative review, which raised the following grounds:

I seek a review of the decision of Lithgow City Council to refuse my 24 May 2023 GIPA application dated (sic).

The request was refused on 20 June 2023. Attachment 1…

I am the applicant so I chose not to seek an internal review (Information & Privacy Commission – fact sheet).

Lithgow City Council’s Notice of Decision also advise me that I had 3 options and did not state that I needed to seek an internal review before applying to the administrative decisions Tribunal (page 5).

I seek a review on two grounds:

1. As a Lithgow City Councillor it is important I know the reasons for a fellow Councillor’s resignation. Are there procedures we need to put in place? Is it a work environment issue that we as Councillors can address?

2. Councillor resignations are instantaneous and irreversible however it is widely believed that there was a two day interval between the resignation being received by the Council and its announcement.

The GIPA request was to determine the facts before taking the matter further.

On 21 June 2023 to seek clarification on the dates and why the announcement was delayed I submitted a further GIPA –

1. The resignation letter and/or email from former Councillor Deanna Goodsell to Lithgow City Council’s General Manager or any other Officer of Lithgow City Council.

All personal, financial or health issues or any other content, to the extent that prevents the correspondence being released, can be redacted.

2. Any letters and/or emails from Lithgow City Council’s General Manager or any Officer of Lithgow City Council to Deanna Goodsell replying to the resignation of former Councillor Deanna Goodsell.

All personal, financial or health issues or any other content, to the extent that prevents the correspondence being released, can be redacted.

This GIPA request was also refused on the same grounds – Attachment 2.

My email of the 22 June 2023 stating that all personal information could be redacted was also refused with no explanation given – Attachment 3.

Procedural matters

7. On 14 August 2023, Senior Member Perrignon conducted a case conference. The applicant was self-represented and Mr Gurney and Ms Shelton appeared for the respondent. There was no appearance by or on behalf of the Information and Privacy Commissioner. The Senior Member ordered:

1. The respondent to file and serve its evidence on the applicant by 11 September 2023;

2. The respondent to provide a copy of the orders, its evidence and the current application to Ms Goodsell by 11 September 2023 and invite her to inform the Registrar in writing by 25 August (sic) 2023 whether she wished (1) to be heard at the hearing on 13 November 2023, and/or (2) to file and serve on the parties evidence and/or written submissions by 25 September 2023, in which case she has leave to do so without being joined as a party;

3. The applicant to file and serve his evidence including statements, documents and submission by 9 October 2023;

4. The respondent to file and serve all evidence in reply, submissions and a summary of legal arguments by 23 October 2023; and

5. The parties to provide to each other a list of witnesses required for cross-examination by 31 October 2023.

8. The matter was listed for hearing on 13 November 2023.

The hearing

9. The matter came before me for hearing on 13 November 2023. The applicant appeared in person and Mr Gurney and Ms Shelton appeared for the respondent. There was no appearance by or on behalf of the Information and Privacy Commissioner and Ms Goodsell.

The reviewable decision

10. The parties agree that the reviewable decision in this matter is dated 20 June 2023.

The Evidence

11. The respondent relied upon the following evidence:

1. Statement by Lithgow City Council signed by its Director Finance & Governance dated 11 September 2023 and annexed documents:

2. GIPA request dated 24 May 2023;

3. Notice of decision dated 20 June 2023; GIPA request dated 21 June 2023;

4. Email from the respondent to the applicant dated 21 June 2023;

5. Notice of decision dated 21 June 2023; and

6. Information Access Guideline 4: Personal Information as a public interest consideration under the GIPA Act – issued by the Information and Privacy Commissioner (IPC) - dated May 2022;

12. The applicant did not require the Director Finance & Governance to attend for the purposes of cross-examination.

13. In this statement, the Director Finance & Governance stated that in relation to the disputed information, the respondent replied upon Information Access Guideline 4, issued by the PIC. This provides that employment, medical and health information comprises personal information for the purposes of the GIPA Act and the disputed information was therefore not released. However, it released 17 emails to the applicant which were not identified as containing personal information of Ms Goodsell.

14. On 21 June 2023, the applicant lodged a further GIPA request, which sought the following information:

• The resignation letter and/or email from former Councillor Deanna Goodsell to Lithgow City Council’s General Manager or any Officer of Lithgow City Council;

• All personal, financial or health issues or any other content, to the extent that prevents the correspondence being released, can be redacted;

• Any letters and/or emails from Lithgow City Council’s General Manager or any Officer of Lithgow City Council to Deanna Goodsell replying to the resignation of former Councillor Deanna Goodsell;

• All personal financial or health issues or any other content, to the extent that prevents the correspondence being released, can be redacted.

15. As the respondent previously substantially dealt with the content of this GIPA request in the initial GIPA decision, the respondent refused to deal with this request under s 60(1)(b) of the GIPA Act.

16. The Director Finance & Governance concluded:

Cr Lesslie approached the Right to Information Officer following a Council meeting on 26 June 2023 and asked by the GIPA was rejected. She explained that Council did not release personnel information at all, and recommended that he seek a review by the Information and Privacy Commissioner.

Applicant’s evidence

17. The applicant relied upon a Statement that he filed on 11 October 2023.

18. The applicant also sought to rely upon a bundle of documents that he sought to file during the hearing. The respondent did not object and the bundle of documents was marked as MFI-1.

19. In his statement, the applicant said that he sought a review of the respondent’s decision on two grounds, namely:

1. As a Lithgow City Councillor it is important that he knows the reasons for a fellow Councill’s resignation. Are there procedures we need to put in place? Is it a work environment issue that we, as Councillors, can address?

2. Councillor resignations are instantaneous and irreversible. However it is widely believed that there was a two day interval between the resignation being received by the Council and its announcement.

20. The applicant stated that he made the GIPA request “to determine the facts before taking the matter further” and he stated:

A resignation letter is an official document.

It has to be acted upon and it affects more people than just the sender and the receiver.

To resign from Council a resignation must be sent to the General Manager and must include the words “I resign” or “I submit my resignation”.

21. The applicant referred to s 234 of the Local Government Act 1993 (NSW), as follows:

234 When does a vacancy occur in a civic office?

(1) A civic office becomes vacant if the holder—

…

(b) resigns the office by writing addressed to the general manager, or…

22. The applicant stated, relevantly:

Any other information in a resignation letter, is voluntary and should not be used as an excuse to precent to release of the letter/email.

How can the Councillors and the citizens of Lithgow know that the resignation even occurred and if so when it occurred without the resignation letter being released?

Correspondence between Ms Goodsell and either Michael McGrath or Ross Gurney, neither being the General Manager, is irrelevant and I no longer seek this.

23. The applicant stated that he made his second GIPA request “to seek clarification on the dates and why the announcement was delayed”. He stated, relevantly:

This GIPA request was also refused on the same grounds.

How can the same grounds apply when all personal, health or financial issues can be redacted?

Had this very simple second GIPA been approved that would have been the end of my requests.

But as the release of the emails without content, if any, would not address the reasons for a fellow Councillor’s resignation I withdraw my request for a review of the second GIPA,…

Respondent’s opening argument

24. Mr Gurney stated that the applicant did not apply for either an internal review by the respondent or an external review by the IPC before he filed the current application for administrative review with the Tribunal. However, the respondent does not dispute that the Tribunal has power to determine the application.

25. Mr Gurney stated that the current matter purely involves a dispute about the application of the public interest test.

Applicant’s opening argument

26. The applicant stated that he relies upon ss 9(1) and 12 of the GIPA Act. He stated that he believes that Ms Goodsell submitted her resignation letter to the General Manager two days before her resignation was announced, but the respondent did not act upon it. The respondent then resolved to have a by-election, but it was not clear whether there was a valid resignation.

27. The applicant argued that it was in the public interest for the Lithgow community to know when and where Councillor Goodsell resigned and other Councillors should be able to address the reason(s) for it. It goes to the issue of who is representing the community and whether there is a systemic issue that needs to be addressed.

28. The applicant stated that he has written to the Local Government Association about whether there should be a count-back election or whether the vacancy created by Councillor Goodsell’s resignation should be filled at all.

29. The applicant maintained that the respondent did not adequately deal with his GIPA request and he stated that there is an error in the Schedule of Documents that it attached to the reviewable decision because paras 3 and 4 of his request have been duplication.

Confidential hearing

30. I confirm that the respondent handed up a folder containing unredacted copies of the disputed information for consideration by the Tribunal on a confidential basis.

31. In order to properly consider and determine whether these documents were “confidential” and/or whether the asserted public interest considerations against disclosure applied, the Tribunal determined that it was necessary to conduct a confidential hearing in the absence of the applicant, pursuant to s 107 of the GIPA Act and s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).

32. [NOT FOR PUBLICATION]

33. [NOT FOR PUBLICATION]

34. [NOT FOR PUBLICATION]

35. [NOT FOR PUBLICATION]

36. [NOT FOR PUBLICATION]

37. [NOT FOR PUBLICATION]

38. [NOT FOR PUBLICATION]

39. [NOT FOR PUBLICATION]

40. [NOT FOR PUBLICATION]

41. [NOT FOR PUBLICATION]

42. The confidential hearing then concluded.

Resumption of the open hearing

43. When the open hearing resumed, the Tribunal observed that the confidential documents do not disclose any issues of a systemic nature that require address by Councillors of the respondent, as this was one of the two reasons relied upon the applicant as public interest considerations in favour of disclosure.

Respondent’s written submissions

44. The respondent filed written submissions on 23 October 2023, in which it identified identified the relevant public interest considerations against disclosure as being those set out in cll 3(a), 3(b) and 6(1) of the table to s 14(2) of the GIPA Act. It stated that as a result of receiving the applicant’s GIPA request, it was required to:

1. Undertake reasonable searches for information within the scope of the request: s 53 of the GIPA Act;

2. Consult with persons whose interests might be affected by the release of the information: ss 54 and 54A of the GIPA Act; and

3. Decide whether to release the information or to refuse to provide access to the information because there is an overriding public interest against disclosure of the information: s 58 of the GIPA Act.

4. Given the nature of the information sought in the GIPA request, the respondent consulted with Ms Goodsell about whether she consented to its disclosure. On 25 September 2023, she provided a submission to the Tribunal in which she objected to the disclosure of the information as it was “personal information related to my personal (sic) records”.

45. The respondent conceded that there is no conclusive presumption that there is an overriding public interest against disclosure of the disputed information.

46. In relation to cl 3(a) of the table to s 14(2) of the GIPA Act, the respondent argued that the disputed information is personal information of Ms Goodsell.

47. In relation to cl 3(b) of the table to s 14(2) of the GIPA Act, the respondent argued that s 18 of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIPA) applies. This provides:

18 Limits on disclosure of personal information

(1) 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.

(2) If personal information is disclosed in accordance with subsection (1) 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.

48. In relation to s 18(1)(a) of the PPIPA, the respondent argued that the purpose for which the information was collected was the fact of to resignation by Ms Goodsell. The information was not collected in relation to any reasons that she may have had for her resignation. Those reasons were her personal information, which she has chosen not to disclose.

49. In relation to s 18(1)(c) of the PPIPA, the respondent argued that there is no necessity to disclose the personal information of Ms Goodsell, being the reasons for her resignation. It also stated, relevantly:

16. In addition to the reasons for the resignation of Councillor Goodsell, there is other information in the emails between her and Michael McGrath and Craig Butler of 18 May 2023 that are clearly of a highly personal nature and are not directly related to the purpose for which the information was collected.

50. The respondent referred to the applicant’s statement and noted that in para 2, he asserted that his GIPA request was refused. However, the GIPA request was not refused. Rather, it was determined by releasing some of the information requested and withholding some of the information that was requested. It also stated, relevantly:

18. On the second page of the Lesslie statement assertions are made that are without evidentiary or statutory foundation, namely:

• Councillor resignations are instantaneous and irreversible.

• To resign from Council a resignation must be sent to the General Manager and must include the words “I resign” or “I submit my resignation”.

51. The respondent concluded that the application of the public interest test in the current matter is ultimately a matter for the Tribunal “in accordance with the law, including the administrative law requirement to act reasonably”. It stated:

20. …Having regard to the public interest considerations against disclosure outlined above, the only reasonable outcome of the public interest test is that the considerations against disclosure outweigh those in favour of disclosure and accordingly, the emails of 11 May 2023 ought not to be released and, if it is the decision of the Tribunal that subsequent information be released, that the emails after 11 May 2023 and up to 20 May 2023 ought to be redacted to exclude any information apart from the fact of Councillor Goodsell’s resignation, then released in a redacted form”.

52. Curiously, the respondent did not refer to any caselaw in support of its arguments.

Applicant’s submissions

53. The applicant relied upon his statement, which is set out previously in this decision.

Decision Reserved

54. The Tribunal reserved its decision.

Consideration

Legal Principles

Administrative Decisions Review Act 1998 (NSW) (the ADR Act)

55. The legal principles under consideration are not in dispute. The current application is brought before the Tribunal under s 63 of the ADR Act, which provides that the Tribunal may review certain decisions of a respondent agency, described as a "reviewable decision".

56. On an application made under s 63 of the ADR Act, the Tribunal undertakes an administrative review of a reviewable decision and determines the correct and preferable decision, having regard to any relevant factual material before it. This states:

63. Determination of administrative review by Tribunal

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(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.

57. The time at which the Tribunal is to determine the correct and preferable decision the time that it makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].

GIPA Act

58. In respect of access applications, s 9(1) of the GIPA Act relevantly provides:

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.

59. I am satisfied that the decision dated 20 June 2023 is a reviewable decision for the purposes of s 80 of the GIPA Act and that this is the subject of the current administrative review under s 100 of the GIPA Act.

60. In an administrative review under s 100 of the GIPA Act, several provisions of the GIPA Act are of particular relevance and these are summarised below.

61. Section 5 of the GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.

62. Section 12 of the GIPA Act provides that there "is a general public interest in favour of the disclosure of government information" and the NSW Information Commissioner "can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies".

63. Section 13 sets out a "public interest test" which requires a determination of whether "on balance" there are public interest considerations against disclosure which outweigh the public interest considerations against disclosure.

64. In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 (Flack) and Hurst, the Tribunal confirmed that the "public interest test" under s 13 requires agencies to start with the presumption in favour of disclosure of information and:

1. identify the public interest in favour of disclosure (s 12);

2. identify the public interest against disclosure with reference to the items listed in the table in s 14 of the GIPA Act (s 14 Table); and

3. determine whether the balance of the public interest lies in favour of, or against, the disclosure of government information.

65. Unless there is a conclusive presumption that there is an overriding public interest against disclosure, the Tribunal must attribute the appropriate weight to each relevant consideration for or against disclosure but the balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17]. If the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure, there is an “overriding public interest against disclosure”: s13.

66. Section 14 relevantly provides:

14. Public interest considerations against disclosure

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

(2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

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

67. It is only necessary that the considerations in the s 14 Table "could reasonably be expected" to have the effect identified. The onus is on the agency "to demonstrate with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect": McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 46 per Hayne J at [61]. This calls for an objective test to be made from the point of a view of a "reasonable" administrator: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. This is also to be determined as a question of fact based on real and substantial grounds and not just a "mere risk or chance": Flack (at [41]) and Leech v Sydney Water Corporation [2010] NSWADT 298 at [25] (Leech).

68. Section 53 of the GIPA Act provides for the type and scope of searches for information that come within an access application, as follows:

53. Searches for information held by agency

(1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received.

(2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency’s searches must be conducted using the most efficient means reasonably available to the agency.

(3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically.

(4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency’s established record management procedures.

(5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency’s resources.

69. Section 55 of the GIPA Act refers to “personal factors” that may be brought into consideration with respect to an agency’s determination of whether there is an overriding public interest against disclosure of information. This provides:

55. Consideration of personal factors of application

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

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

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

(c) any other factors particular to the applicant.

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

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

70. Section 73 of the GIPA Act requires that access is unconditional in the sense that no terms or conditions may be imposed as to the use or the manner in which information is to be disclosed in response to an access application. This has often been described as being disclosure made “to the world”.

71. Section 105 of the GIPA Act places the onus on the agency to establish that its decision is justified. The agency is not limited to defending or justifying its decision on the same grounds as the original decision-maker: Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 at [10] (Fisher); Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 at [7] (Meldru).

72. Section 107 of the GIPA Act provides:

107 Procedure for dealing with public interest considerations

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

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

(3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of—

(a) the public and the applicant, and

(b) the applicant’s representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.

73. Clause 6(1) of the Table to s 14(2) of the GIPA Act provides:

6 Secrecy provisions

(1) There is a public interest consideration against disclosure of information if disclosure of the information by any person could (disregarding the operation of this Act) reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule (of this or another State or of the Commonwealth) that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions.

PPIPA

74. Section 18 of the PPIPA provides:

18 Limits on disclosure of personal information

(1) 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.

(2) If personal information is disclosed in accordance with subsection (1) 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.

Applying the public interest test

Public interest considerations in favour of disclosure

75. The respondent identified the following public interest consideration in favour of disclosure of the disputed information:

Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance government accountability or contribute to positive and informed debate on issues of public importance: s 12(2)(a).

76. The respondent gave this consideration reasonable weight.

77. However, I note that the applicant relies upon the following public interest considerations in favour of disclosure:

1. As a Councillor of the respondent, it is important to know the reasons for a fellow Councillor’s resignation, to decide whether there are procedures that need to be put in place and/or whether it is a work environment issue “that we, as councillors, can address”; and

2. Councillor resignations are instantaneous and irreversible, and it is “widely believed” that there was a two-day interval between the resignation being received by the Council and its announcement.

78. I note that the applicant asserts that Councillor resignations are “instantaneous and irreversible”, but this is disputed by the respondent. There is no evidence before me that supports the applicant’s argument and, in any event, I do not consider that the Tribunal has power to make a finding on this question.

79. I note that the respondent decided that a fellow Councillor’s need to know the reasons for a Councillor’s resignation falls within the scope of s 12(2)(a) of the GIPA Act and that it decided to afford that consideration reasonable weight.

80. Based upon my perusal of the disputed information, which essentially comprises Ms Goodsell’s resignation, I am satisfied that there is no indication of an existence of any factors that require any procedures to be put in place by Councillors of the respondent and/or that there is any work environment issue that require their address.

81. I confirm that I advised the applicant of my view in relation to this issue when the open hearing resumed following completion of the confidential hearing.

82. In my view, the consideration under s 12(2)(a) of the GIPA Act should be afforded reasonable weight.

Public interest considerations against of disclosure

83. The respondent relied upon cll 3(a), 3(b) and 6(1) of the table to s 14(2) of the GIPA Act.

84. While the reviewable decision identified these considerations, it did not provide any reasons for their application and/or explain how they apply. In my view, this is a deficiency in the decision and I note that this has not been addressed in the respondent’s submissions. It is therefore necessary to consider each of the proffered considerations in some detail.

85. Clause 3(a) of the table to s 14(2) of the GIPA Act provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to reveal an individual’s personal information.

86. “Personal information” is defined in cl 4 of Sch 4 to the GIPA Act as follows:

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.

87. 'Reveal' is defined in cl of Sch 4 to mean:

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

88. There is no dispute that the disputed information is not the applicant’s personal information.

88. The public interest considerations against disclosure contained in the table to s 14(2) are dependent on whether the disclosure of the disputed information ‘could reasonably be expected to’ have the effect as prescribed in the relevant clause in that Table.

89. Whether disclosure of the disputed information ‘could reasonably be expected’ to have the relevant effect is an objective one; that is to be approached from the view point of a reasonable decision maker and based on real and substantial grounds and not something that is purely speculative, fanciful, imaginary or contrived: Neary v State Rail Authority [1999] NSWADT 107, at [35]; Searle Australia Pty Ltd v PIAC [1992] FCA 241, at [43]; Leech at [25].

90. In Camilleri at [26], the Appeal Panel held that examination of whether there is a public interest consideration against disclosure needs to be done at a broader operational level of the relevant agency, rather that introducing particulars of the ‘instant situation’ that is before the Tribunal, which should nevertheless be taken into account in the next stage of the enquiry in determining where the balance lays between the competing public interest considerations.   

91. In this matter, the disputed information essentially comprises Ms Goodsell’s resignation to the respondent’s General Manager and some miscellaneous correspondence/emails that indicate that the resignation was received and actioned by the General Manager. The information are of a kind that would routinely be considered as personnel or employment records.

92. I am therefore satisfied that the disputed information contains personal information of Ms Goodsell.

93. There is no evidence before me that supports a finding that the disputed information is already in the public domain and I am therefore satisfied that disclosure of the disputed information could reasonably be expected to reveal Ms Goodsell’s personal information.

94. Ms Goodsell advised the Respondent and the Tribunal that she does not consent to the release of the disputed information as it is her personal information.

95. Clause 3(b) of the table to s 14(2) provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to contravene an information protection principle under the PPIPA.

96. Section 20 of the PPIPA provides that the information protection principles prescribed in ss 8 to 19 of that Act apply to government agencies and s 21(1) of that Act provides that a public sector agency must not do anything, or engage in a practice, that contravenes an information protection principle.

97. The information protection principles in ss 8 to 19 of the PPIPA make provision for how a public sector agency is to collect, store, use and disclose personal information. Personal information is defined in s 4 of the PPIPA and is in similar terms to that contained cl 4 of Sch 4 of the GIPA Act.

98. Section 18 of the PPIPA sets out the circumstances in which there can be a disclosure of personal information. In summary the circumstances are:

1. where the disclosure is directly related to the purpose for which the information was collected;

2. the individual is reasonably likely to have been aware, or is made aware in accordance with s 10 of the PPIPA, that information of this kind is usually disclosed; or

3. the agency believes, on reasonable grounds, that the disclosure is necessary to prevent or lessen a serious and imminent threat to life or health.

100. In my view, none of the circumstances in ss 18(1), 18(2) or 18(3) apply in this matter and I am satisfied that the respondent has established this public interest consideration against disclosure.

101. The respondent relied upon on cl 6(1) of the table to s 14(2), but neither the reviewable decision nor its submissions address how this clause applies and/or what other Act or statutory rule that prohibits the disclosure of information would be contravened if the disputed information were disclosed under the GIPA Act.

102. It follows that I am not satisfied that cl 6(1) of the table to s 14(2) of the GIPA Act has been established as a public interest consideration against disclosure.

103. I am satisfied that the body of Ms Goodsell’s email dated 18 May 2023 satisfies the definition of personal information, but the “From”, “Sent”, “To” and “Subject” lines of that email do not comprise her personal information.

104. In my view, it is appropriate to afford significant weight to cll 3(a) and 3(b) of the Table to s 14(2) of the GIPA Act.

Balancing the public interest

105. For the reasons set out previously in this decision, I am satisfied that there is an overriding public interest against disclosure of most of the disputed information in this matter.

Conclusion

106. I am satisfied that the correct and preferable decision is to vary the reviewable decision pursuant to s 63(3)(b) of the ADR Act, to order that the applicant be granted access to the following information:

1. Email from Trinity Newton dated 18 May 2023 regarding the filing of the resignation in the secure database;

2. Email from Craig Butler to Trinity Newton dated 18 May 2023 instructing placement of the resignation into the ECM database; and

3. In relation to the resignation email from Ms Goodsell to Craig Butler dated 18 May 2023, the “From”, “Sent”, “To” and “subject” lines only.

107. Otherwise, the reviewable decision is affirmed.

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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: 05 December 2023