Marrickville Legal Centre v Chief Commissioner of State Revenue

[2012] NSWADT 98

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Marrickville Legal Centre v Chief Commissioner of State Revenue [2012] NSWADT 98
Hearing dates:	On the papers
Decision date:	23 May 2012
Jurisdiction:	General Division
Before:	Judicial Member N Isenberg
Decision:	The decision under review is affirmed
Legislation Cited:	Government Information (Public Access) Act 2009 Land Tax Management Act 1956 Taxation Administration Act 1996
Cases Cited:	WL v Randwick City Council (2007) NSWADTAP 58 Flack v Commissioner of Police [2011] NSWADT 286 Martin v Commissioner of Police, NSW Police [2005] NSWADT 23
Category:	Principal judgment
Parties:	Marrickville Legal Centre (Applicant) Chief Commissioner of State Revenue (Respondent)
Representation:	Marrickville Legal Centre (Applicant) Crown Solicitors Office (Respondent)
File Number(s):	113264

reasons for decision

Background

1. The applicant is a community legal centre that provides free legal information, advice, advocacy and representation to people, including those who live in boarding houses. The applicant considers that boarding house residents are in need of support and advocacy services that it provides, but claims that its ability to make contact with boarding house residents is limited due to its inability to locate boarding houses.

1. The Land Tax Management Act 1956 (Land Tax Act) requires specified persons to furnish land tax returns, which must set out a statement of all land owned by the person and other information as may be required: s. 12 Land Tax Act. A person who is liable for land tax is obliged to furnish a land tax return and may apply for an exemption: s. 10Q. One ground for a claim for exemption from taxation is on the basis that the land is used and occupied primarily for low cost accommodation. The respondent, in administering the Land Tax Act collects information about land for which such an exemption is claimed.

1. On 4 November 2010, the applicant sought access to that information, pursuant to the Government Information (Public Access) Act 2009 (the GIPA Act), including:

copies of documents containing information that:

i. Shows the number of boarding houses in NSW that have been exempted from land tax under section 10Q of the Land Tax Management Act 1956 (NSW) for last financial year (2009/2010); and

ii. Shows the addresses of boarding houses in NSW that have been exempted from land tax under the Land Tax Management Act 1956 (NSW) for last financial year (2009/2010).

1. The respondent provided some information, being the information sought in (i) but refused to disclose the information sought in (ii) on the basis that it was unable to provide the names and addresses of the owners of boarding houses who have qualified for stamp land tax exemptions, as to do so would be to disclose individuals' personal information. It also considered that information obtained by tax officials could not be used for any purpose other than to enable the proper administration of tax laws.

1. The applicant seeks review of that decision.

1. The Applicant subsequently clarified that it sought the addresses of boarding houses and not the names and addresses of boarding house owners.

Law

1. Through the GIPA Act the government has created a legislative scheme under which a person can seek access to information that is held by the government. The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: section 5. The GIPA Act overrides other statutory provisions that prohibit disclosure apart from the 'overriding secrecy laws' that are set out in Schedule 1. Section 13 provides that there is an overriding public interest against disclosure of 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.

1. Section 14 includes a series of Tables which specify the only other considerations that may be taken into account under the GIPA Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

1. Section 105 provides that the burden of establishing that the decision not to provide information is justified lies on the agency.

Issue

1. Do the public interest considerations against disclosure of the information sought outweigh those the considerations in favour of disclosure?

Applicant's submissions

1. The applicant provided an affidavit by Mr Barker, one of its solicitors, which annexed, amongst other thing, a number of reports and studies into the boarding houses.

1. The applicant submitted that there are a number of public interest considerations in favour of disclosure that should be taken into account.

1. It referred to its role, in accordance with its Constitution, in conducting public interest work and noted that approximately 1 in 3 boarding houses in NSW are within the defined geographic area of its work. The motives of the applicant were said to be to do research in the area of marginal renting and boarding houses as well as to provide legal information, advice and advocacy to boarding house residents who may not be aware of the services available to them. Enhancing the applicant's capacity to do this work by providing the addresses of boarding houses was said to be a public interest consideration in favour of disclosure. These personal factors of the applicant should be taken into account as factors in favour of providing access to the boarding house information: s. 55(2) of the GIPA Act.

1. The applicant submitted that the social and economic disadvantage of boarding house residents should be considered a public interest consideration in favour of disclosure of the boarding house information. It contended that many boarding house residents have mental illness, cognitive impairment and serious health conditions that require ongoing support and treatment and that people with mental illness face significant barriers of access to justice and therefore have a high level of unmet legal needs. The applicant contended that the majority of boarding house residents are in receipt of Centrelink benefits and submitted that boarding house residents should be regarded as 'homeless'. It contended that boarding house residents experience physical assault, sexual assault, intimidation, bullying and harassment by staff and other residents. It noted that the NSW Ombudsman has identified that boarding house residents require access to advocacy and support services. It submitted that boarding house residents are not protected by the Residential Tenancies Act 2010 and do not have access to a cheap and effective tribunal for resolution of any disputes between them and the boarding house owner or manager. The disclosure of the information would allow the applicant to provide boarding house residents with information and advocacy services that will increase their access to justice and reduce their marginalisation and vulnerability.

1. It was submitted that another factor to be considered is the lack of regulation of boarding houses should be taken as a public interest consideration in favour of disclosure of the information. It was submitted that there is inconsistency in the ways that local governments regulate boarding houses in NSW and this inconsistency increases the barrier faced by boarding house residents to understand their rights and to access justice. The provision of the information would allow the applicant to have more contact with boarding house residents of previously unknown boarding houses. This would enhance the capacity of the applicant to raise systemic issues experienced by boarding house residents for law and policy reform in relation to this inconsistency of regulation.

1. It was submitted that the lack of information publicly available about boarding houses is a public interest consideration in favour of disclosure of the boarding house information. Unlicensed boarding houses were said to make up 93 - 96% of the number of boarding houses in NSW. The provision of the boarding house information would allow the applicant to conduct research and obtain more information about boarding houses within its defined geographic area.

1. It was submitted that as Local and the State Governments' response to the issues faced by boarding house residents is currently the subject of public discussion and debate, the promotion of open discussion of public affairs is a public interest consideration in favour of disclosure of the boarding house information: s. 12(2)(a) of the GIPA Act. The provision of the boarding house information would allow the applicant to gain more information about boarding houses, which will allow the applicant to engage in this debate in a more informed way.

1. It was submitted that the enhancement of Government accountability is a public interest consideration in favour of disclosure of the boarding house information: s. 12(2)(a) of the GIPA Act. There was said to be a lack of government accountability in relation to boarding houses, particularly the failure of Family & Community Services Ageing Disability & Home Care to adequately regulate licensed boarding houses. The provision of the boarding house information would allow the applicant to gain information about systemic issues in the boarding house sector that could be used to enhance Government accountability.

1. It was submitted that contributing to a positive and informed debate on issues of public importance is a public interest consideration in favour of disclosure of the boarding house information: s. 12(2)(a) of the GIPA Act. The issues faced by boarding house residents are of public importance and the provision of the information would allow the applicant to gain more information about boarding houses, which will allow it to contribute to the debate about these issues in a more informed way.

1. It was submitted that informing the public about these policies and practices is a public interest consideration in favour of disclosure of the boarding house information: s. 12(2)(b) of the GIPA Act. Local and State Governments have a role in regulating the boarding house sector and there are policies and practices for dealing with boarding house owners and boarding house residents. Disclosure of the information could reasonably be expected to allow the applicant to find out more information about boarding houses to inform the public about these policies and practices.

1. It was submitted that ensuring the effective oversight of public funds is a public interest consideration in favour of disclosure of the boarding house information: s. 12(2)(c) of the GIPA Act. The respondent provides tax exemptions for boarding house owners. Local and State Governments provide funds and subsidies to boarding house owners. Boarding house residents are said to give the majority of their Centrelink income to boarding house owners. The applicant receives public funds to deliver free legal services to people within a defined geographic area, including boarding house residents living in 33% of the boarding houses in NSW. Part of the applicant's work is obtaining information and evidence about government funding, government expenditure and tax exemption programs to understand government priorities, efficiency and equity in outcomes regarding these areas of government policy. Providing the applicant with the information would allow the applicant to better understand these issues so it can advocate for law reform and make policy submissions to ensure the effective oversight of the expenditure of public funds and better value for money in relation to boarding houses.

Respondent's submissions

1. The respondent did not appear to take issue with many of the assertions of the applicant. However, the respondent submitted that the public interest considerations against disclosure outweighed those in favour of disclosure. Its submissions were essentially on four bases.

1. Firstly, it submitted that Clause 3(a) of the s. 14 Table applies. That clause provides that there is a public interest consideration against disclosure if disclosure could reasonably be expected to 'reveal an individual's personal information.' Personal information means 'information or an opinion... about an individual... whose identity is apparent or can reasonably be ascertained from the information or opinion': Sch. 4, cl. 4.

1. There were detailed submissions about whether the disclosure of the address of boarding houses would provide personal information because the identity of the owners of those properties could reasonably readily be ascertained by cross referencing the address with information from Land and Property Information. As explained in a statement by Mr O'Connor, a Review Officer of the Office of State Revenue, any person can conduct a conduct a title search through Land and Property Information to identify the owner of a particular property. The street address can be used to identify the title reference for a particular property, and the title reference can be used to conduct a title search, and thereby identify the owner of the property.

1. Another aspect of personal information that would be disclosed, the respondent submitted, was that the information would reveal in respect of each owner of the properties in that a land tax concession had been granted.

1. Secondly, the respondent relied on cl. 3(b) to the s. 14 Table which provides that there is a public interest consideration against disclosure of information held by a government agency if disclosure could reasonably be expected to contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (the PPIP Act).

1. Section 18 of the PPIP Act provides that public sector agencies must not disclose personal information 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)   ...

1. In the PPIP Act, 'personal information' means 'information or an opinion... about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion': s. 4(1).

1. The respondent submitted that the information was collected for the purpose of administering the Land Tax Act and that the applicant's purpose of seeking the information to locate residents of boarding houses in order to offer them legal services is not 'directly related' to the purpose for which the information was collected. Similarly, it was submitted, the information, namely addresses of boarding houses which were granted a tax concession, is not usually disclosed to another person or body and there is no evidence that the individuals to whom the information relates would be aware that it would be.

1. Thirdly, the respondent submitted that cl 6 of Table 14 applies. It noted that s11 of the GIPA Act provides that the Act overrides a provision of any statutory prohibition against the disclosure of information other than a provision of a law listed in Schedule 1 as an overriding secrecy law. While Part 9, Division 3 of the Taxation Administration Act 1996 (the TA Act) contains secrecy provisions, it is not listed in Sch. 1 as an overriding secrecy law.

1. However, because cl. 6 of the s. 14 Table provides that there is a public interest consideration against disclosure of information if disclosure could reasonably be expected to constitute a contravention of a provision of any other Act that prohibits the disclosure of information, the public interest consideration under cl. 6 extends to consideration of the policy that underlies the prohibition against disclosure in the TA Act. The respondent contended that by including cl. 6 in the s. 14 table, Parliament expressly recognised that secrecy provisions other than those listed in Sch. 1 are to be taken into account when determining whether there is an overriding public interest against disclosure.

1. The respondent referred to s. 81 of the TA Act which prohibits the disclosure of any information obtained under or in relation to the administration of a taxation law, except in very limited circumstances, none of which is relevant here. The respondent contended that there is a public interest consideration against disclosure of the addresses as disclosure could reasonably be expected to constitute a contravention of another Act that prohibits the disclosure of information, namely s. 81 of the TA Act.

1. In addition, s. 83 of the TA Act provides that information may be disclosed unless that information will or is likely to directly or indirectly identify a particular taxpayer, or disclose matters concerning the personal affairs of a particular taxpayer. The respondent, relying on Mr O'Connor's statement, submitted that disclosure of the information sought by the applicant is likely to identify a particular taxpayer 'indirectly', on the basis that the address of the property could be used to identify the owner of the property. Further, the disclosure would also disclose matters concerning the personal affairs of a particular taxpayer, as disclosure of the address in the circumstances of this application would amount to disclosure of the fact that a particular taxpayer has sought and obtained an exemption from land tax.

1. The respondent noted that cl. 6 provides that the public interest consideration extends to consideration of the policy that underlies the prohibition against disclosure. In that regard it noted that while the TA Act does not include express objects, it does state that the purpose of the Act is to make general provision with respect to the administration and enforcement other taxation laws, which provide for the imposition of tax, exemptions and refunds: s. 7(1) and (2). It also states that the Act includes general provisions with respect to the secrecy obligations of tax officers: s. 7(3)(g). The effect of the TA Act secrecy provisions, it was submitted, is that information about the affairs of individual taxpayers cannot be disclosed other than in certain specified circumstances and that heavy penalties apply. The respondent submitted that the policy underlying the general prohibition is that taxpayers should be confident that the information they provide to the respondent in order for their taxes to be administered will not be disclosed (other than in accordance with the circumstances specified in Div. 3 which does not apply here).

1. Fourthly, the respondent submitted, there is a public interest consideration against disclosure of information because disclosure could reasonably be expected to result in the disclosure of information provided to the agency in confidence: cl. 1(g) to the s. 14 Table.

1. The respondent contended that the information was obtained in confidence and that that can be inferred from the circumstances in which the information was obtained, and that there is no need to establish any express stipulation of confidentiality. The respondent referred to Martin v Commissioner of Police, NSW Police [2005] NSWADT 23 at [44] as authority for the proposition that evidence of a mutual understanding that information of that particular kind would be treated as confidential is sufficient. Here, the addresses of premises which benefited from the boarding house land tax exemption tax were said to be provided to the respondent as part of the routine administration of taxation laws, this information is to be kept confidential: s. 81 of the TA Act.

Information Commissioner's submissions

1. The Information Commissioner made extensive submissions. For reasons which are unclear, the Information Commissioner made further submissions, which elicited a further response from the parties. This has occasioned some delay in the matter coming for consideration.

1. I have taken the Information Commissioner's views into account in formulating my decision.

Consideration

1. I accept the applicant's submission that research suggests that boarding house residents may be socially and economically disadvantaged and that the role of the applicant includes conducting public interest work on behalf of boarding house residents. What was not clear though is why the applicant considered it needs the information it seeks from the respondent in order to do so. The applicant already clearly has access to extensive research materials in relation to boarding houses, many of which appeared to have been conducted only within the last two years. The affidavit by one of the applicant's solicitor attached voluminous material, including:

• NSW Ombudsman Special Report to Parliament 'More than board and lodging: the need for boarding house reform', dated August 2011
• Marrickville Council Draft Report 'Boarding houses and homelessness in Marrickville', undated
• Tenants' Union of New South Wales policy paper 'Reforming Marginal Renting', dated March 2011
• People With Disability Report 'Accommodating Violence: The experience of domestic violence and people with disability living in licensed boarding houses', dated September 2010 (extract only).
• People with Disability Briefing Paper 'Grand Western Lodge Case', dated July 2011
• Redfern Legal Centre legal resource 'The Boarders & Lodgers Legal Information Kit, dated June 2011
• Law and Justice Foundation Report 'No home, no justice? The legal needs of homeless people in NSW, dated July 2005 (extract only).
• Law and Justice Foundation Report 'On the edge of justice: the legal needs of people with a mental illness in NSW dated May 2006 (extract only).
• Shelter NSW Discussion Paper 'Not cheap, reasonable - the development of not-for-profit boarding houses', dated November 2000

1. Notwithstanding the applicant's very principled stated objectives, it was clear to me that underlying the application for access to information is the applicant's interest in identifying potential clients. One could only imagine the public outrage if the applicant were a large law firm seeking access to the same information in order to expand its client base. The respondent submitted, and I agree, that the applicant using tax records to identify potential clients would do nothing to advance, as the applicant claims, 'a system of responsible and representative government'. Neither would it enhance government accountability, inform the public about the operations of agencies, ensure the effective oversight of public funds or reveal that an agency has engaged in misconduct. It would not shed light on the workings of Government or how powers which affect members of the public are exercised. Having regard to the voluminous material provided by the applicant I do not accept the applicant's submission that there is a lack of information publicly available about boarding houses. For the same reason I do not accept that further public debate would be constrained if the applicant does not have access to the information about the addresses of boarding houses.

1. I also do not accept the applicant's submission that there is a lack of regulation of boarding houses. The applicant's submission referred to inconsistency between local government's in their regulation of boarding houses. This does not mean that there is a 'lack of regulation'. Many aspects of local government regulation vary from body to body and there is a lack of uniformity. The applicant's evidence is that its Constitution is to provide legal services to residents and groups located in Marrickville and other NSW local government areas as decided by the board from time to time. There was no evidence that the board had approved wider consideration of boarding house issues, and the applicant referred to its '2010 strategic review to identify unmet legal need in its defined geographic area'. The information would provide the addresses of all boarding houses, the owners of which have, in accordance with their obligations, lodged land tax returns. One further fallacy in the applicant's argument, albeit of less significance, is that there is an assumption that all owners in fact comply with their obligations and in fact lodge returns. There may even be owners of boarding houses who do not claim the associated tax benefit. The information sought, while likely to be comprehensive, will not necessarily be complete.

1. There are, in my view, compelling reasons against disclosure.

1. Firstly, I do not accept that the information sought is publicly available: Flack v Commissioner of Police [2011] NSWADT 286, other than that a physical inspection of the area may yield information about locations of boarding houses.

1. I find though that the provision of the addresses would have the capacity to yield the identity of the owners of the premises, because, on the evidence of Mr O'Connor, by using the address to identify the title particulars only 'moderate steps' need be taken to identify the registered proprietors of those properties: WL v Randwick City Council (2007) NSWADTAP 58. Together, information about the owners' taxation affairs would be disclosed to the applicant. That information is 'personal information': cl. 3(a).

1. I find that the information provided in submitting a land tax return is information provided in confidence, attracting cl.1(g) of the s14 Table. The respondent submitted, and I agree, that when a person provides information regarding his or her affairs to the respondent, that person is entitled to expect that the information will be used only for the purposes for which it was provided, and not otherwise. In particular, a person is entitled to expect that information provided in accordance with a taxation law will not be disclosed to a third party. I observe that the information was required to be provided to the respondent: the Land Tax Act requires specified persons to furnish land tax returns, and a person who is liable for land tax is obliged to furnish a land tax return and may apply for an exemption under s. 10Q. I accept that the circumstances in which the addresses were provided to the respondent are sufficient to imply an obligation of confidentiality. Accordingly, disclosure of the addresses could reasonably be expected to result in the disclosure of information provided to the respondent in confidence.

1. As the information was collected for the purpose of administering the Land Tax Act the applicant's purpose for seeking the information to locate residents of boarding houses is not one 'directly related' to the purpose for which the information was collected. Further, information as to addresses of boarding houses in respect of which a tax concession was granted is not information which is usually disclosed: cl 3(b).

1. Taken together, I find the respondent's submissions sufficiently persuasive for it to have discharged its onus under s105.

Conclusion

1. I have come to the strong view that the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure.

Decision

1. The decision under review is affirmed.

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Decision last updated: 23 May 2012