Lipscombe v Blue Mountains City Council

[2018] NSWCATAD 182

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Lipscombe v Blue Mountains City Council [2018] NSWCATAD 182

Hearing dates:

24 May 2018

Date of orders:

10 August 2018

Decision date:

10 August 2018

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J McAteer, Senior Member

Decision:

(1)     The decision of the respondent is set aside in respect of page 5 of document MM3

(2)     The decision of the respondent is set aside in respect of page 5 of document MM4.

(3)     The decision is otherwise affirmed.

Catchwords:

ADMINISTRATIVE LAW – Government Information (Public Access) Act -– legal professional privilege – whether privilege waived – sufficiency of evidence to establish weight to apply significantly to factors against disclosure.

Legislation Cited:

Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Evidence Act 1995
Government Information (Public Access) Act 2009
Local Government Act 1993

Cases Cited:

CGU Workers Compensation (NSW) Ltd v Department of Planning and Environment [2018] NSWCATAD 169
Hutchinson v Walcha Shire Council [2015] NSWCATAD 132
Law v Wollondilly Shire Council [2013] NSWADT 203
Mannix v Department of Education and Communities [2014] NSWCATAD 35
New South Wales v Jackson [2007] NSWCA 279

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Mark Lipscombe (Applicant)
Blue Mountains City Council (Respondent)

Representation:

Solicitors:
Self represented (Applicant)
McPhee Kelshaw (Respondent)

File Number(s):

2018/00052404

Publication restriction:

Nil

REASONS FOR decision

1. This is an application for administrative review of a decision of the respondent concerning access to government information under the Government Information (Public Access) Act 2009 (the GIPA Act).

Background

2. The applicant was seeking access to information held by the respondent Local Government entity which is his local council. The information concerned matters related to the respondent’s knowledge, actions and any other involvement in a pollution and contamination issue concerning asbestos. The respondent decided to withhold significant portions of the information relying on various provisions of the GIPA Act.

3. After considering all of the evidence and submissions of the parties, and considering the specific information in dispute, I have decided to release some of the information in dispute. As a result the decision of the respondent will be set aside in part and the remainder of the decision affirmed.

4. In his original application made on or about 22 November 2017 the applicant requested the following information:

Any business papers (including attachments) for Council meeting on 14 November 2017 relating to Mayoral Minute 3 of that meeting.

Any business papers (including attachments) for Council meeting on 14 November 2017 relating to Mayoral Minute 4 of that meeting.

Any written or electronic communications between the Office of Local Government in the previous 60 days concerning allegations of the type referred to in Mayoral Minute 3 and 4 of the Council meeting on 14 November 2017.

5. On 20 December 2017 the respondent decided the application and gave access to some of the information sought.

Jurisdiction

6. There is no dispute that the application for administrative review has been lodged within time, nor is there any dispute that the Tribunal has jurisdiction to review the matter. The decision under review is a reviewable decision in accordance with s 80 of the GIPA Act. The Tribunal's jurisdiction is enlivened by s 100 of the GIPA Act.

The Legislative Provisions

7. The objects of the GIPA Act are as follows:

3 Object of Act

(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:

(a) authorising and encouraging the proactive public release of government information by agencies, and

(b) giving members of the public an enforceable right to access government information, and

(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.

(2) It is the intention of Parliament:

(a) that this Act be interpreted and applied so as to further the object of this Act, and

(b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.

8. The case of Mannix v Department of Education and Communities [2014] NSWCATAD 35 provides a useful outline of the approach under the GIPA Act. At paragraphs 5 -10 the following outline of the provisions is provided:

5. The objects of the GIPA Act as set out in s 3(1) are to advance the system and of responsible and representative democratic government by authorizing and encouraging public release of government information by agencies, giving the public an enforceable right to access to government information and providing that such access is restricted only when there is an overriding public interest against disclosure.

6. The term "government information" is given a wide meaning by s 4, being defined as "information contained in a record held by an agency". "Agency" is also defined in s 4 and includes "(a) a Government Department". It is not disputed that the Department of Education and Communities is such a department and is therefore an agency to which the legislation applies.

7. The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 5. Applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure: s 9. The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the "overriding secrecy laws" set out in schedule 1. In the case of those laws it is conclusively presumed that there is an overriding public interest against disclosure: ss11 and 14.

8. With respect to government information not covered by overriding secrecy laws, the Act establishes a principle that there is a public interest in favour of disclosure: s12(1). The category of public interest considerations in favour of disclosure is not limited: s 12(2). That subsection then sets out several examples of public interest considerations in favour of disclosure.

9. There can be an overriding public interest against disclosure only when the public interest test in s 13 is satisfied. It provides that "There is an overriding public interest against disclosure of the government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure".

10. In considering whether there is an overriding public interest against disclosure, the tribunal is to be guided by s 15, which provides, relevantly for present purposes, that agencies must exercise their functions so as to promote the objects of the GIPA Act and must have regard to any relevant guidelines issued by the Information Commissioner.

9. There were four public interest considerations against disclosure at s 14 of the GIPA Act which the respondent relied upon in withholding some of the information from the applicant. These considerations were clauses:

• 1 (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 (a) reveal an individual’s personal information.

• 3 (d) prejudice the fair trial of any person, the impartial adjudication of any case or a person’s right to procedural fairness.

• 3 (e) reveal false or unsubstantiated allegations about a person that are defamatory.

10. In addition for some of the information the respondent relied upon one of the conclusive presumption against disclosure grounds as set out in schedule 1 of the GIPA Act. This ground relates to material for which a claim of legal professional privilege is made. Cl 5 of Sch 1 provides:

5 Legal professional privilege

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege.

(2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause.

(3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5.

11. This claim was made in respect of all of the information in three of the documents, and some of the information in the remaining two documents. Unlike information for which public interest considerations against disclosure are claimed, material for which a conclusive presumption is maintained is not assessed or weighted for consideration of release, but rather assessed as to whether it meets the definition of the conclusive presumption descriptor. It such information is assessed as meeting that description then no further assessment or weighting occurs and the material is withheld at that point.

12. During the hearing I determined to deal with a consideration of some of these issues by way of confidential session. The applicant and the public were excluded from that aspect of the hearing. Section 107 (1) 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.

However in the interest of open decision making I will provide only open reasons for decision rather than produce separate confidential reasons. However these reasons will remain in conformity with s-107 and will refer to matters in general terms as necessary.

13. In addition a confidential bundle was filed and I have considered this material confidentially in preparing these reasons. That material consists of the un-redacted (complete) suite of documents / information.

Summary of background to information request.

14. The contest of the access request concerns allegations of pollution, safety issues and contamination concerning asbestos and the subsequent use, management of and matters arising from dealing with the asbestos. Council resolved to conduct an investigation into these matters in November 2017 and issued a media release to that effect.

15. These matters are referred to briefly in [2] above. A further media release was issued in March 2017 advising that Council had resolved to adopt the recommendations contained within the second interim report of the investigation concerning asbestos management.

The hearing

16. The matter was heard on 24 May 2018. No person gave evidence at the hearing, and no party sought to call a witness. This observation is made to illustrate that the parties did not desire to test any of the evidence at hearing even if they submitted that the Tribunal should attribute weight to the evidence positively or negatively consistent only with their submissions. The respondent’s position being that in respect of the legal professional privilege (LPP) claim, the documents spoke for themselves.

17. The open section of hearing as a result took the form of an inquiry into the material and the legal points raised by the parties. I propose initially to deal with the respondent’s decision as far as possible in open reasons in the manner canvassed in the open hearing.

18. In general submissions the applicant submitted that there were no specific personal factors to consider in deciding his application (in the terms of s-55 of the GIPA Act) as he was merely a ‘concerned ratepayer’, and had no other standing or interest in the matter. The applicant submitted that whilst the respondent had claimed LPP over much of the material they had not adduced any evidence to support this claim and had merely argued advice or litigation privilege or both concepts as giving rise to the LPP claim.

19. In addition the applicant submitted that the material had already been disclosed voluntarily due to the discretionary disclosure of much of the information to the Independent Commission Against Corruption (ICAC), Local Government NSW, Safework NSW and the Minister.

20. The applicant submitted that the Council minutes reflect that the documents for which the LPP claim is made, are not prepared for any legal purposes. The applicant also made submissions about the operation of the claimed public interest considerations against disclosure and the requirement of specific clauses to ‘reveal’ information of a particular type to enliven the provisions. The applicant submitted that the gist or the majority of the material in the withheld (terms of reference of investigation) had been released.

21. The applicant also submitted that the respondent had attributed significant weight to the clause 3 (d) grounds ( prejudice the fair trial of any person, the impartial adjudication of any case or a person’s right to procedural fairness ) but had provided no evidence in support of this ground.

22. In general submissions the respondent summarised the case as falling into three issues:

1. Does the LPP exist,

2. Has the privilege been waived

3. Are the public interest considerations against disclosure present.

23. The respondent directed their written and oral submissions along the lines of those three matters. The respondent conceded that the LPP claim only attached to part of the documents referred to as: Mayoral Minute (‘MM’) 3 and MM 4.

24. The respondent asserted LPP over three of the documents, and submitted that those documents were not final investigation reports, but brought into existence as part of the preliminary process.

25. In respect of the claim for LPP the respondent submitted that the material was prepared for the dominant purpose of providing legal advice and therefore the privilege exists. The respondent also submitted that the documents themselves demonstrated that the purpose for which they had been created was ongoing.

26. The applicant submitted that the privilege had been waived by a media release concerning these documents however the respondent claimed that this media release (issued in November 2017) is a media statement only delivered for political and community relations purposes and could not be relied upon as an articulation of the respondent’s legal position.

Consideration on LPP

27. The three main LPP issues to be adjudicated in these proceedings (as referred to in the respondent’s submission at [22] of these reasons were broadly agreed between the parties. The applicant however maintained that any such privilege had been waived by matters transpiring since the information was first compiled.

28. The most efficient approach is to consider the LPP material and see if on a preliminary basis the information meets the categorisation as set out in cl 5 of Sch 1. The respondent maintained that it had not previously waived any legal privilege and maintained the position refusing any waiver.

29. The principles concerning how LPP is established appear well understood by both parties and have been well established as a legal concept over many years. The respondent referred to the case of Hutchinson v Walcha Shire Council [2015] NSWCATAD 132 as establishing the requisite LPP requirements in the GIPA Act context. At [54] the Tribunal observed:

54. The general provisions relating to the existence of legal professional privilege are as follows. The material must be:

In the context of a client and lawyer relationship,

That there is a confidential nature to the communication or the document(s),

The communication or the documents was brought into existence for the dominant purpose of either: (a) assisting the client in obtaining, or the lawyer to give or provide legal advice or services, (b) for use in either existing of proposed / contemplated proceedings / litigation.

55. These provisions have a current statutory authority within sections 118 and 119 of the Evidence Act 1995 (NSW).

30. An examination of the open portions of MM3 and MM5 show (by the recommendations) the respondent Council instructing their lawyers to engage an independent investigator and commence an investigation into the central asbestos issue.

31. In addition from the open portions of MM3 it is clear that the Minute relates to an Independent Review into asbestos management. Likewise with MM4 it is clear that the Minute relates to an Independent Review into public allegations concerning staff appointments.

32. The question for the Tribunal is whether these documents were brought into existence for the dominant purpose of providing legal advice to a client or the client being provided with professional legal services.

33. Sections 118 and 119 of the Evidence Act 1995 provide:

118 Legal advice

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a) a confidential communication made between the client and a lawyer, or

(b) a confidential communication made between 2 or more lawyers acting for the client, or

(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person,

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

119 Litigation

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or

(b) the contents of a confidential document (whether delivered or not) that was prepared,

for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.

known.

34. The respondent submitted that the preliminary terms of reference were distinct from the final investigation reports and that the media releases (submitted by the applicant as a partial waiver of privilege) were prepared and released for political and community relations purposes. In this regard the respondent argues that they do not disclose the respondent’s legal position nor do they seek to advance any legal position.

35. The applicant conceded that the existence of a lawyer client relationship was not in dispute. The applicant did dispute that the documents were brought into being for the dominant purpose of obtaining legal advice or use in litigation. The applicant’s argument rested on an understanding that the respondent had commissioner the investigation reports for a number of purposes and the background documents (those in dispute) were utilised for a number of purposes, none greater than the other. In the alternate the applicant submitted that the documents were brought into being for a dominant purpose but that purpose was not one for which a claim of LPP could be made. The applicant submitted that the documents related to a position to maintain public confidence and / or the confidence of the Minister.

34. In addition on the waiver grounds the applicant submitted that they had disclosed the substance of the advice / documents to various entities voluntarily. These entities were the CEO of Local Government NSW, providing terms of reference to the ICAC Commissioner.

35. The respondent however relied on s 429 of the Local Government Act 1993 (the LG Act) as requiring Council to provide the information in the two November letters (documents also in dispute) to the CEO of the Department of Local Government or the Minister. The section provides:

429 Provision of documents or information about council

(1) The Minister or Departmental Chief Executive may at any time, by order, direct a council, a councillor or the general manager of a council to provide such documents or information concerning the council, its operations or its activities as the Minister or Departmental Chief Executive specifies in the order.

(2) A copy of the order must be served on the council or person required to provide the documents or information.

Note. Failure to comply with a direction is an offence under section 661.

38. A copy of the Ministerial Order concerning performance improvement (issued under s- 438A of the LG Act) was tendered by the respondent at hearing (as Exhibit ‘R-1’)

39. Further submissions were made that the respondent had waived privilege by the release of items of information through the various Mayoral Minutes and that if privilege did attach then it was now waived by voluntarily and knowingly disclosing the substance of the documents on each occasion.

40. The respondent argued that the March press release arose from the release of the second interim investigation report and this report did not arise from the documents in question, but from a Council resolution of 12 December 2017. The respondent’s position on the interplay between the stated dominant purpose and the applicant’s view (that it was to maintain public confidence and the confidence of the Minister) was addressed by the following submission:

To the extent that the Documents had as part of their purpose the maintenance of Ministerial confidence, the manner in which the Respondent intended to achieve that aim was by demonstrating to the Minister that the Respondent had set in place a process to collect information, obtain legal advice upon that information and then to act upon that advice.

41. The respondent also submitted that the disclosure / waiver grounds argued by the applicant were not applicable, on the current facts. The respondent submitted that the case of New South Wales v Jackson [2007] NSWCA 279 only provides authority for the proposition that an internal policy document requiring confidentiality does not create an obligation to disclose documents. The respondent submitted that an employers policy documents represent directions on employees but not directions in any way binding on any external party.

42. The confidentiality was not ‘self imposed’ by the respondent but was an agreement between the respondent and LG NSW. In respect of the report prepared as a result of MM$, the respondent resolved to provide the report (in accordance with the Minister’s Performance Improvement Order) and in doing sop confirmed to the Minister that council does not waive it’s LPP claim in the report and that the report remains a confidential document.

43. The respondent submitted that both MM3 and MM4 were tabled and discussed in confidential session of Council with their lawyer present and advice was given. Even though aspects of this have been disclosed through Council Meeting Minutes (pages 30-32 as form part of Exhibit A-3) the respondent argues that such disclosure does not waive the privilege.

44. The respondent relied on the case of Law v Wollondilly Shire Council [2013] NSWADT 203. The respondent submitted that the matters canvassed in Law establish how privilege might be maintained notwithstanding the fact that aspects of the material had been disclosed for various broader purposes. At paragraphs 61 to 64 the Administrative Decisions Tribunal (ADT) set out the general principles on the approach.

61 In this case the Council claims that the Taylor report is privileged from production under both s 118 and 119 of the Evidence Act 1995. This is denied by Mr and Mrs Law.

62. Alternately, Mr and Mrs Law argue that, if the Taylor report is privileged, that privilege has been waived by the disclosures about the findings and contents of the Taylor report that have been made to them. This is denied by the Council, which also argues that any disclosures made were made in the course of negotiations to settle a dispute between it and with Mr and Mrs Law, that were the subject of without prejudice privilege.

63. As a result Council contends that Mr and Mrs Law cannot adduce or rely on evidence of without prejudice communications to argue that the privilege has been waived. To that end Council objected to any evidence being led with respect to those discussions.

64. The resolution of these matters requires the applications and consideration of a number of the privileges provided for in Part 3.10 of the Evidence Act 1995, namely client legal privilege and negotiation (without prejudice) privilege.

45. At paragraphs 79 to 82 of Law the ADT addressed the issues on point with the current factual circumstances whereby material might have multiple purposes some of which had been concluded.

79. Further, Mr and Mrs Law argued that the purpose of report was not the provision of legal advice. This was so because the threat of litigation with them had been withdrawn at the time Dr Taylor was appointed. They submitted that his purpose was to investigate and report on what had happened in the in the course of the tender, how complaints and issues arising from the tender had been handled, and to make recommendations about the future management of such issues. This they submitted was essentially and administrative or process review, and as such the dominant purpose underlying the Taylor report was not the provision of legal advice or in connection or in connection with apprehended litigation: Priest v State of New South Wales [2006] NSWSC 128, per Johnson J at [53]. The fact that a lawyer had provided the report was not determinative of the dominant purpose for the creation of the report. The fact that Mr Sproule wrongly believed that appointing a lawyer would automatically ensure confidentiality, they submitted, was the key reason why a lawyer was appointed.

80. Mr and Mrs Law pointed to the fact that the letter of instructions from Council to Lindsay Taylor Lawyers appointing Dr Taylor to investigate and report had not been tendered in evidence by Council. They submitted that I should draw an inference that the letter would not have assisted Council's case: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298; [1959] ALR 367.

81. In considering these arguments I have had the advantage of reading and considering a confidential copy of the draft Taylor report. As is often the case in these matters, the document in issue was of considerable assistance in determining its dominant purpose. The report contains a detailed overview of evidence with respect to the tender, the work of the tender evaluation panel, the consideration of its report, and post tender events. That evidence is then analysed and conclusions of fact are drawn. The law applicable to a series of those findings is discussed and analysed. Conclusions are drawn and advice is given concerning whether the evidence demonstrates compliance with those requirements. Those issues are much wider and of a broader scope than those relating to Mr and Mrs Law and their threatened litigation alone. The report does include some analysis of whether there has been adherence to Council policies, but this is a relatively minor focus.

82. The content of the report is consistent with what Ms Dench said she was seeking when she decided to appoint Dr Taylor. Her concern, as I understood it, was that there were a number of potential issues arising from the tender process and subsequent events with possible legal ramification for Council that needed to be investigated and understood, with appropriate action being taken, if necessary.

46. I accept the respondent’s submission that the current facts relating to the information are significantly on point with the situation as described in the matter of Law. Before finalising the LPP issue I will follow the approach of the ADT as set out at [81] in Law.

Examination of withheld material for which LPP claimed

47. Mayoral Minutes MM3 and MM4 contain the confidential information for which LPP is claimed.

48. In respect of MM3, on page 5 of the minute are two redacted portions which LPP is claimed. The first portion is openly disclosed as information concerning ‘The process to be undertaken by Council’. Following this heading the first of four paragraphs is redacted, with the remaining three paragraphs un-redacted.

49. It is difficult to ascertain how a claim of LPP can be maintained on the material on page 5. All of the material is presently (and at the time of the decision) in the public domain and well known to both the applicant and presumably other persons following the issue at Council and in the community. In my view it is not material (or information) for which a LPP claim could be maintained but rather information conveying the procedural approach to be taken by Council in addressing the substantive dispute / allegations.

50. Pages 6-9 inclusive of MM3 are redacted in their entirety, as those terms of reference constitute in the respondent’s view material subject to LPP. Having examined that material in my view it clearly meets the general criteria for LPP in that it is apparent from the face of the records that the documents have been prepared for the purpose of obtaining legal advice. In addition it is also clear from the terms of the document that the information could potentially be used in litigation arising from the legal advice given.

51. Whilst it is possible that there were a number of purposes or uses for which the information could be put based on all of the available evidence it is clear that the dominant purpose of the information in the terms of reference to MM3 to concerning legal instructions between the respondent and their legal advisers.

52. In respect of MM4, on page 5 of the minute are three redacted portions for which LPP is claimed. The first portion is again openly disclosed as information concerning ‘The process to be undertaken by Council’. Following this heading the first of five paragraphs is redacted, the third paragraph redacted and the remaining three paragraphs un-redacted.

53. Again, it is difficult to ascertain how a claim of LPP can be maintained on the material on page 5. All of the material is presently (and at the time of the decision) in the public domain and well known to both the applicant and presumably other persons following the issue at Council and in the community. In my view it is not material (or information) for which a LPP claim could be maintained but rather information conveying the procedural approach to be taken by Council in addressing the substantive dispute / allegations.

54. Pages 6-7 inclusive of MM4 are redacted in their entirety, as those terms of reference constitute in the respondent’s view material subject to LPP. Having examined that material in my view it clearly meets the general criteria for LPP in that it is apparent from the face of the records that the documents have been prepared for the purpose of obtaining legal advice. In addition it is also clear from the terms of the document that the information could potentially be used in litigation arising from the legal advice given.

55. Whilst it is possible that there were a number of purposes or uses for which the information could be put based on all of the available evidence and having particular regard to the content of the information it is clear that the dominant purpose of the information in the terms of reference to MM4 to concerning legal instructions between the respondent and their legal advisers.

56. In my view the information on page 5 of MM3 and MM4 should be released as it is not material for which LPP can be maintained. If any privilege exists then it is clear form the minutes at 30-32 in Exhibit ‘A-3’ then such privilege has been waived by the respondent. The situation with the two sets of Terms of reference is however a different proposition as I have indicated above at [49] and [52].

57. Likewise concerning the letters to the Office of Local Government (OLG), those letters contained attachments to which the claim of LPP has been established. The covering letters are marked confidential and privileged.

58. The respondent has submitted that those letters were prepared with legal advice in order to open communication with the OLG in anticipation of the OLG or the Minister (on the advice of the OLG) taking action against the respondent under the LG Act. At the time of written submissions and hearing the Minister was engaged in legal proceedings with the respondent Council over issues relevant to the information in the decision and subject of these proceedings.

59. I find that the LPP claims in respect of the letters and email re: the OLG are subject to LPP.

Consideration of Public Interest against disclosure grounds

60. As an alternative or back up argument the respondent relied on the public interest considerations against disclosure grounds (outweighing the general public interest in favour of disclosure), as an alternative means of withholding the information from release. The grounds relied upon are set out at paragraph [9] above.

61. The Tribunal recently revisited the procedure for dealing with public interest considerations against disclosure, when assessing information.

62. In the decision of this Tribunal in CGU Workers Compensation (NSW) Ltd v Department of Planning and Environment [2018] NSWCATAD 169 the statutory approach taken to Part 1 Div 2 of the GIPA Act was examined.

38. The parties are in general agreement in regard to the issues for determination. In respect of information that has been withheld these are:

(1)   What are the public interest considerations in favour of disclosure?

(2)   What are the public interest considerations against disclosure?

(3)   Is there an overriding public interest against disclosure?

(4)   Should the Tribunal affirm, vary or set aside the Department’s decision?

63. At [53] – [58] of CGU the Tribunal sets out how the provisions in s-12-15 of the GIPA Act apply to the factors / considerations and ultimately the information.

53. Each of clauses 1(f), 3(a), 3(b) and 4(d) of the table to section 14 has been considered in matters before this Tribunal. In relation to each of the asserted section 14 table factors the Department must establish that the disclosure of the information “could reasonably be expected to” have the effect outlined in the table.

54. The words “could reasonably be expected to” have been the subject of considerable judicial consideration with respect to their use in the Freedom of Information Act 1989 (NSW) and the Freedom of Information Act 1982 (Cth). They are to be given their ordinary meaning: Attorney-General's Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180. In that case, Bowen CJ and Beaumont J explained, at 190, that the words –

“... require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like.”

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

“... when their Honours said, as they did, that the words required a "judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous," to expect certain consequences, they are not to be understood as having used the latter expression as a paraphrase of the former. Rather, they are to be understood, and have since been understood, as doing no more than drawing an emphatic comparison. To do more would have been, as their Honours correctly said, "to place an unwarranted gloss upon the relatively plain words of the Act". And the same approach should be taken to the expression "reasonable grounds".”

56. Clauses 1(f) and 4(d) of the table to section 14 contain the term "prejudice". That term is to be given its ordinary meaning, that is, "to cause detriment or disadvantage" or "to impede or derogate from": see Hurst v Wagga Wagga City Council [2011] NSWADT 307 at paragraph [60].

57. The Department needs to show more than a mere possibility, risk or chance of prejudice. It must be based on real and substantial grounds. It will not be sufficient for the decision-maker to proffer the view. It must be supported in some way: Transport for NSW v Searle [2018] NSWCATAP 93 at paragraph [68].

58. The Appeal Panel in Transport for NSW v Searle adopted the views expressed in Commissioner of Police NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 that the question as to prejudice to future supply is not to be determined by reference to the particulars of the immediate situation. It is not necessary to show that it could reasonably be expected to occur on every occasion. It is to be determined at a broader operational level. Hence, the fact that in the present situation the specific individuals supplying the information were unlikely to be inhibited even if there was disclosure was not determinative against the agency.

64. In their initial decision the respondent addressed the personal information factor (cl 3(a)) and found that as nearly all of that information was already in the public realm, then little weight should attach to that factor. I agree with that assessment.

65. A further ground concerned the cl 3 (e) factor: reveal false or unsubstantiated allegations about a person that are defamatory. In their decision the respondent attributed some weight to this factor and determined:

Some of the untested allegations under investigation (or versions of those allegations) have already been made public, including in mainstream media. These publications may have been false or defamatory. It is unclear whether disclosure of the information about the terms of reference for the investigations would reveal more allegations. However, disclosure may repeat or reinforce the previous publication of allegations that were false, defamatory or untested. There is some weight to this consideration against disclosure.

66. The respondent went on to balance the public interest considerations in favour of disclosure as set out in s 12 (2). I note that the five examples listed at s12 (2) are not exhaustive but merely examples. It is clear that some of the examples are enlivened by the public context of the allegations and the discourse between the Minister and Council as played out in the public domain over the background environmental issue.

67. The main factor relied upon was the cl 1 (h) ground 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). The respondent in their decision referred to:

the terms of reference for two investigations that were initiated by the elected Councillors (as governing body) and therefore contain information about how the investigations are being conducted. To disclose this information at this stage could prejudice the conduct, effectiveness and integrity of each investigation. There appears to be significant weight to this consideration against disclosure.

68. Similarly the respondent placed significant weight upon the cl 3 (d) factor, prejudice the fair trial of any person, the impartial adjudication of any case or a person’s right to procedural fairness. The respondent in their decision referred to:

Disclosing information about the terms of reference for investigators that are ongoing may prejudice the right to procedural fairness of any person who may be the subject of the untested allegations that are under investigation. There appears to be significant weight to this consideration against disclosure.

69. However after making the decision under review, the respondent added a further public interest consideration against disclosure ground in written submissions of 17 April 2018 when the matter was ready for hearing before the Tribunal. That ground was cl 1 (e) which refers to a factor concerning:

reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given in such a way as to prejudice a deliberative process of government or an agency.

70. The respondents submissions on this point were very closely aligned with the LPP grounds in that many references were made to the fact that the document was dealt with in ‘closed session’ of Council and concerned the giving of instructions and framing of legal advice between Council and their solicitor.

71. A reference was also made to the legislative basis under the Local Government Act 1993 and that Parliament had intended such deliberations to remain confidential. The legislation relevantly provides:

10A Which parts of a meeting can be closed to the public?

(1) A council, or a committee of the council of which all the members are councillors, may close to the public so much of its meeting as comprises:

(a) the discussion of any of the matters listed in subclause (2), or

(b) the receipt or discussion of any of the information so listed.

(2) The matters and information are the following:

(a) personnel matters concerning particular individuals (other than councillors),

(b) the personal hardship of any resident or ratepayer,

(c) information that would, if disclosed, confer a commercial advantage on a person with whom the council is conducting (or proposes to conduct) business,

(d) commercial information of a confidential nature that would, if disclosed:

(i) prejudice the commercial position of the person who supplied it, or

(ii) confer a commercial advantage on a competitor of the council, or

(iii) reveal a trade secret,

(e) information that would, if disclosed, prejudice the maintenance of law,

(f) matters affecting the security of the council, councillors, council staff or council property,

(g) advice concerning litigation, or advice that would otherwise be privileged from production in legal proceedings on the ground of legal professional privilege,

(h) information concerning the nature and location of a place or an item of Aboriginal significance on community land,

(i) alleged contraventions of any code of conduct requirements applicable under section 440.

(3) A council, or a committee of the council of which all the members are councillors, may also close to the public so much of its meeting as comprises a motion to close another part of the meeting to the public.

72. I observe that the provisions under s10A of the LGA broadly replicate the s14 and cl 1 (5) grounds relied upon by the respondent in opposing release of the information. Those grounds must be considered as providing a context of the basis that the legislature gave LGA’s the ability to conduct confidential hearings and deliberations. Sections 10 and 11 of the GIPA Act address the relationship of the GIPA Act with other secrecy and disclosure Acts and instruments. I find that these provisions do not effect the manner in which the GIPA Act operates for information outside of Schedule 1 or 2.

73. A final ground was applied by the respondent as a public interest against disclosure factor. That ground reflated to cl 3 (f):

expose a person to a risk of harm or of serious harassment or serious intimidation.

74. The respondent submitted that they had received information that threats of harm had been made against some employees believed to be responsible for a perceived exposure of others to asbestos.

75. Overall I consider that the cl 1 (e) and cl 1 (h) grounds carry minimal weight. I make this finding on the basis that the process that brought those investigations into being has concluded and the deliberations are complete. In respect of any continuing grounds the respondent has not established by evidence how such deliberative processes are likely to be prejudiced. I note that since the decision the respondent has resolved to release into the public realm the outcome of the internal inquiry into the issue. I make these finding conscious of the fact that further actions and processes may take place concerning these environmental concerns and the involvement of the Minister. However in respect of MM3 and MM4 the matter is concluded.

76. In respect of the ‘process’ grounds (cl 1 (e) and (h) ) I also note that the developments of the inquiry process, investigation and management of the environmental issues both a Council and State Government level has progressed significantly in the public domain. Broadly it is clear to me that the public interest considerations in favour of disclosure significantly outweigh those other factors.

77. In respect of the personal factors I note that no evidence was adduced in respect of the perceived threats to individuals who may (or may not) have had responsibility in creating or exacerbating the asbestos / environmental concerns. The position that threats had already been made indicates (in the absence of evidence or any submission to the contrary) that the critical information is already know, and release would not further ‘disclose’ any relevant information.

78. However rather than analyse this issue further, as I have found the LPP argument broadly applies to the terms of reference, nothing ultimately turns on my findings on the public interest considerations, other than for completeness to address all claimed grounds.

79. In conclusion I would apply greater weight to the cl 3 (d) and 3 (e) factors than I would to the factors claimed under clause 1. In any event I find that those factors do not attract sufficient weight so as to override the general public interest in favour of disclosure (s-12) and specifically s 12 (2) (a), (b) and (e).

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

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

(c)….

(d)….

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

80. As none of the public interest factors are sufficiently enlivened, the decision will be set aside in part and otherwise affirmed on the basis of the conclusive presumption against disclosure grounds concerning the LPP claim,.

Conclusion

81. I therefore make the following orders:

1. The decision of the respondent is set aside in respect of page 5 of document MM3

2. The decision of the respondent is set aside in respect of page 5 of document MM4.

3. The decision is otherwise 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: 10 August 2018