Meldru v Wollondilly Shire Council

[2017] NSWCATAD 292

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Meldru v Wollondilly Shire Council [2017] NSWCATAD 292
Hearing dates:	22 and 23 June 2017
Date of orders:	29 September 2017
Decision date:	29 September 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	D Dinnen, Senior Member
Decision:	(1) The Respondent’s decision of 15 November 2016, to the extent that it withheld access to the 2016 video footage identified as TRIM 9100, is set aside.  (2) In substitution, in accordance with these reasons, the Tribunal orders the Respondent to provide a copy of the 2016 video footage to the Applicant, edited to de-identify those members of the public whose facial features are visible, within 28 days.
Catchwords:	ADMINISTRATIVE LAW – government information – access application – CCTV footage - balancing exercise – personal factors – public interest considerations - personal information.
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009 Privacy and Personal Information Protection Act 1998
Cases Cited:	Attorney General’s Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180 Battin v University of New England [2013] NSWADT 73 Commissioner of Police, NSW Police Force v Field [2016[ NSWCATAP 59 Flack v Commissioner of Police, NSW Police Force [2011] NSWADT 286 Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 Johnson v Commissioner of Police, NSW Police Force [2017] NSWCATAD 59 Leech v Sydney Water Corporation [2010] NSWADT 198 Roy v Commissioner of Police, NSW Police Force [2012] NSWADT 120 Sawires v Commissioner of Police, NSW Police Force [2010] NSWADT 10
Category:	Principal judgment
Parties:	Kelli Meldru (Applicant) Wollondilly Shire Council (Respondent)
Representation:	Solicitors: In Person (Applicant) Lindsay Taylor Lawyers (Respondent)
File Number(s):	2017/00022598
Publication restriction:	None

REASONS FOR DECISION

1. On 4 July 2016, Ms Kelli Meldru (“the Applicant”) entered the Customer Service foyer of the Wollondilly Shire Council (“the Respondent”) chambers at Picton to obtain access to documents. An incident occurred during which the Applicant claims to have been detained illegally by Council staff, and the local police attended the Respondent’s premises.

2. On 26 October 2016, Wollondilly Shire Council (“the Respondent”) received an access application under the Government Information (Public Access) Act 2009 (“GIPA Act”) from the Applicant, in part seeking:

Video surveillance from 4/7/16 of all Council Foyer from 12.20pm – 12.40pm and 1.20pm – 1.45pm

3. By notice dated 15 November 2016, the Respondent identified TRIM 9100, 88-9, 8717 and 1871-9 as being the information sought by the Applicant, but declined access to TRIM 9100 (“the 2016 video footage”) on the basis that:

…the video footage… captures images of third parties attending Council for their personal business. I am unable to identify the third parties for the purposes of third party consultation. In addition, Council is unable to de-identify the images of the individuals captured on the footage.

The main purpose for collection of video surveillance of Council’s Customer Service foyer is for security.

4. By application received 10 January 2017, the Applicant sought administrative review in this Tribunal of the Respondent’s decision to refuse her access to the 2016 video footage.

5. Part of the hearing, incorporating confidential evidence by the Respondent, was conducted pursuant to 107 of the GIPA Act in the absence of the applicant.

Jurisdiction

6. The Tribunal’s jurisdiction to conduct this review derives from s. 100 of the GIPA Act read with s. 28 of the Civil and Administrative Tribunal Act 2013 (NSW) and s. 9 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act).

7. In determining the application, the Tribunal is to decide what the correct and preferable decision is having regard to the material before it: ADR Act, s. 63(1). The Respondent bears the onus of satisfying the Tribunal that the decision it has made is the correct and preferable decision: GIPA Act, s. 105(1). The Respondent is not limited to defending the matter on the same basis as it made its original decision: Public Service Assn v Premier’s Department [2002] NSWADT 277 at [57] and [59].

8. In determining the application, the Tribunal may affirm the decision, vary the decision, set aside the decision and make another decision in substitution for the decision set aside, or set aside the decision and remit the matter for reconsideration by the Respondent in accordance with any directions or recommendations of the Tribunal: ADR Act, s. 63(3).

The GIPA Act

9. Section 3(1) of the GIPA Act provides:

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.

10. Section 3(2)(a) of the GIPA Act requires that the Act be interpreted and applied so as to further that object.

11. Section 5 of the GIPA Act establishes a presumption in favour of disclosure of government information. An access applicant has a legally enforceable right to access the information requested unless there is an overriding public interest against disclosing the information: section 9(1) of the GIPA Act.

12. Section 12 of the GIPA Act sets out the general public interest consideration in favour of access to government information. Section 12(1) of the GIPA Act sets out a general public interest in favour of disclosing government information. Section 12(2) provides that the agency may take into account any other considerations in favour of disclosure which may be relevant.

13. Section 55(2) of the GIPA Act provides that personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information.

14. Section 13 of the GIPA Act sets out the public interest balancing test for determining whether there is an overriding public interest against disclosure. The balance is always weighted in favour of disclosure.

15. Before deciding whether to release or withhold information, an agency must apply the public interest test and decide whether or not an overriding public interest against disclosure exists in regard to the information sought. Section 13 requires the decision maker to:

1. identify relevant public interest considerations in favour of disclosure,

2. identify relevant public interest considerations against disclosure,

3. attribute weight to each consideration for and against disclosure, and

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

16. The only public interest considerations against disclosure that can be considered are those identified in section 14 of the GIPA Act. This includes considerations set out in schedule 1 to the GIPA Act.

17. Considerations against disclosure will only be relevant if it is established that the disclosure of the information could reasonably be expected to have the effect outlined in the table to section 14 of the GIPA Act.

18. Relevant to these proceedings is Clause 3 of the Table at section 14, which provide:

3. Individual rights, judicial processes and natural justice. There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects:

(a) reveal an individual’s personal information

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

19. The Agency must apply the public interest test in accordance with the principles set out in section 15 of the GIPA Act:

a. agencies must exercise their functions so as to promote the object of this Act.

b. agencies must have regard to any relevant guidelines issued by the Information Commissioner.

c. the fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.

d. the fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.

e. In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.

20. Pursuant to section 105 of the GIPA Act the burden of establishing that the decision is justified lies on the Respondent. The balancing exercise "is a question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation": Battin v University of New England [2013] NSWADT 73 at paragraph [74].

“Could reasonably be expected…”

21. The words “could reasonably be expected to” have been held to require “something which is more than a mere risk or chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived”: Leech v Sydney Water Corporation [2010] NSWADT 198 at [28], adopted in Flack v Commissioner of Police, NSW Police Force [2011] NSWADT 286 at [41]-[42] and cited in Roy v Commissioner of Police, NSW Police Force [2012] NSWADT 120 at [28]. While it must be a “real” risk, the chance of it materialising need not be more probable than not: Neary v State Rail Authority [1999] NSWADT 107 at [35]-[36] and the cases there cited. The phrase “‘simply calls for an “objective assessment’, on the evidence before the Tribunal, as to whether the claimed effects could be expected to arise, from the standpoint of a reasonable administrator. Ultimately, it is of course a question of fact”: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45].

22. In Attorney General’s Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180 at 190, Bowen CJ and Beaumont JJ interpreted the term in the following way:

In our opinion, in the present context, the words “could reasonably be expected to prejudice the future supply of information" were intended to receive their ordinary meaning. That is to say, they 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 Commonwealth or any 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...

23. The word "expected" is not to be given too wide a meaning in light of the objectives of the statute: Cockcroft per Sheppard J at 112. The occurrence of the prejudice does not have to be established on the balance of probabilities but there must be something more than a possibility, risk or chance of the event occurring: Cockcroft per Bowen CJ and Beaumont J at [106].

Consideration

24. It is the Respondent’s onus to justify its decision. To that end, the Respondent provided two statements and a statutory declaration from its employees.

25. John Sproule, the Respondent’s Manager of Governance, gave evidence that he was responsible for overseeing processing of requests under GIPA legislation. His evidence was largely concerned with conflict between the Respondent and Ms Meldru regarding her “pattern of unreasonable behaviour”, including multiple requests for information, “unreasonable and persistent contact with councillors”, “unreasonable demands and a lack of cooperation” and various incidents involving Ms Meldru where the police were called to attend the Respondent’s premises, culminating in the Respondent’s decision to restrict the Applicant’s access to the Respondent’s premises and services both prior to, and following, the incident on 4 July 2016. Mr Sproule also gave evidence of his belief that the Applicant was the person responsible for certain Facebook posts criticising the Respondent and its employees.

26. Mr Sproule’s evidence with respect to the 2016 video footage was limited. In his statement he stated:

I am aware that the security camera footage of the incident on 4 July 2016 contains visual images of persons other than Ms Meldru.

I am informed that Council does not have the resources to edit the footage to obscure the images of third parties.

27. During the hearing I had the opportunity to ask him additional questions relating to the matters before the Tribunal, specifically in relation to the Respondent’s capacity to edit or pixelate the 2016 video footage to obscure images. Mr Sproule stated that he had spoken to the IT officer, David Thompson, and believed that the Respondent:

1. Could not pixelate the 2016 video footage because they didn’t have appropriate software;

2. Could possibly cut and splice the 2016 video footage so as to remove the images of individuals, but this would create some difficulty and would require the acquisition of software;

3. Could outsource the task of editing the 2016 video footage, but had no indication of the costs involved.

28. In cross examination, Mr Sproule informed the Tribunal that Mr Chiodo, the Respondent’s IT Manager, was no longer employed by the Respondent and his position was vacant.

29. It was clear to me from Mr Sproule’s evidence that the Respondent had not made any external inquiries for the purpose of ascertaining whether and to what extent the 2016 video footage could be edited so as to overcome any concerns it had regarding public interest considerations against disclosure, for the purpose of releasing it in part to the Applicant. His evidence also demonstrated that the Respondent had made limited internal inquiries for that purpose, and was more concerned with providing an evidential basis for its complaints about the Applicants past conduct and contacts with the Respondent’s employees.

30. Paul Mangion provided a statement as the Respondent’s Customer Service Team Leader. His evidence included his contact with the Applicant and provision of video footage of an earlier incident which occurred at the Respondent’s chambers on 3 July 2015. He stated:

The footage that I released did not include images of any other members of the public. It recorded only images of Ms Meldru and possibly a council officer or two.

31. At hearing, the video footage from 3 July 2015 was played. Mr Mangion identified four council officers and three members of the public in the footage shown, with two of the public individuals being obviously identifiable. Mr Mangion stated that he wouldn’t have released the video footage if he had known a public member was identifiable, despite evidence to the contrary.

32. Mr Mangion also gave evidence about the Respondent’s security camera system. He stated that the old CCTV system was movement activated, whereas the new CCTV system recorded continuously, although he was unsure whether it recorded continuously outside the Respondent’s business hours as well as during business hours. He stated that the cameras recorded footage which was then overwritten after 7 days. He also stated that a “slice” of video footage could be extracted, and that “we extracted a slice and reviewed it for privacy issues”.

33. In cross examination, Mr Mangion stated that he had instructed another employee of the Respondent to edit the 2015 video footage so as to remove the timestamps. Mr Mangion sought to explain the conflict by referring to the change in CCTV recording systems, but was unable to recall exactly when the system had changed. He agreed that the CCTV system had potentially changed after the 4 July 2016 incident. In re-examination he clarified that he had instructed someone to remove sections of the 2015 video footage in which members of the public were easily identified, and that there were “several people who could extract footage”. This evidence conflicted with Mr Sproule’s evidence about the Respondent’s video footage editing capabilities.

34. Marcello Chiodo, formerly the Respondent’s IT manager, gave a statutory declaration that he had provided Narellan Police with a copy of the 2016 video footage on two occasions.

35. The Respondent’s submissions relied heavily on the Applicant’s conduct as a relevant consideration pursuant to s55 of the GIPA Act. I agree that the evidence of her past contacts and communications with the Respondent’s employees amounts to a “personal factor” of the access application, however this cannot influence a decision to not grant access to information unless the personal 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”. The public interest considerations against disclosure relied upon by the Respondent are those in clauses 3(a) and 3(b) to the Table to s14 of the GIPA Act, concerned with revealing an individual’s personal information or contravening an information protection principle. There is no basis on the evidence before me for a conclusion that the Applicant’s conflicts with the Respondent would increase the likelihood or otherwise affect the expectation that disclosure of the 2016 video footage would reveal an individual’s personal information or breach an information protection principle.

36. In contrast, I find that the Applicant has personal factors, including her conflict with the Respondent and her allegations as to what occurred on 4 July 2016 (including unlawful detention) which are a relevant consideration in favour of disclosure of the 2016 video footage pursuant to s55(2) of the GIPA Act. That the 2016 video footage has been provided to the Narellan Police on two occasions supports this conclusion, as it supports the Applicant’s submission that she wishes to obtain the 2016 video footage for the purpose of demonstrating what actually occurred during the 4 July 2016 incident, as a result of which the police were called by the Respondent to escort the Applicant from the respondent’s premises.

37. The Respondent submitted that having an individual’s image on the 2016 video footage consisted of “personal information” as the image/s caused an individual to be reasonably identifiable, and relied on Sawires v Commissioner of Police, NSW Police Force [2010] NSWADT 10 at [34] and Commissioner of Police, NSW Police Force v Field [2016] NSWCATAP 59 at [61]-[74]. In Field, the Appeal Panel held that:

We do not think it follows in this case that because the event occurred in a public place the information depicting or describing the event has been publicly disclosed…

38. The definition of “personal information” in the GIPA Act at Schedule 4, Clause 4 is broad. I agree that the images of other persons in the 2016 video footage are information affecting the personal affairs of those persons. I agree with the Respondent’s submission that its previous disclosures of such images in the 2015 video footage, if erroneous, are not a basis for the Tribunal similarly erring in these proceedings.

39. The Respondent submitted that release of the images of identifiable individuals in the 2016 video footage would also contravene an information protection principle, relying on s18 of the Privacy and Personal Information Protection Act 1998. This was submitted on the basis that the personal information had been collected for “security reasons”, which would allow disclosure to the Police, but not to a member of the public without some restriction on its use. I accept this is a relevant consideration.

38. Applying the balancing exercise required by s13 of the GIPA Act, I find that the relevant public interest considerations in favour of disclosure are the following:

1. The general public interest pursuant to s12(1);

2. That the 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 pursuant to s12(2)(b). Specifically, the information concerns the customer service foyer of the Respondent’s chambers and would clearly thereby disclose the Respondent’s interactions with the public. This includes the considerations identified by the Respondent in its decision in favour of disclosure;

3. That the information is personal information of the person to whom it is to be disclosed pursuant to s12(2)(d). The 2016 video footage contains the image of the Applicant and therefore contains her personal information.

41. I afford these public interest considerations in favour of disclosure significant weight. In circumstances where the Applicant has submitted that her motivation for obtaining the 2016 video footage includes a belief that she was unlawfully detained by the Respondent or otherwise treated inappropriately, which I consider to be relevant personal factors within the meaning of s55(2) of the Act, the significance of the consideration at s12(2)(b) is amplified.

42. I also give significant weight to the public interest considerations against disclosure, as identified by the Respondent. Although the Respondent’s decision stated that “I am unable to identify the third parties for the purposes of third party consultation”, so the individuals whose images were present in the 2016 video footage were not identifiable to the Respondent, this does not mean that individuals were not generally identifiable. Viewing the 2016 video footage confirmed that at least two members of the public could reasonably be expected to be identified by their facial features.

43. On balance I believe the public interest considerations against the disclosure of the 2016 video footage outweighs those in favour. However, I reject the Respondent’s evidence and submissions that it is unable to edit a copy of the 2016 video footage so as to obscure the identities of those members of the public whose personal information would otherwise be identified by its release. My conclusion from the Respondent’s evidence on this issue was that reasonable attempts were not made to ascertain whether and to what extent this was possible, either internally or externally. Nor were sufficient inquiries made by the Respondent as to the estimated cost in money or time for doing so, internally or externally.

44. The correct and preferable decision is to provide the Applicant with a copy of the 2016 video footage, edited to de-identify those members of the public whose facial features are visible.

ORDERS

1. The Respondent’s decision of 15 November 2016, to the extent that it withheld access to the 2016 video footage identified as TRIM 9100, is set aside.

2. In substitution, in accordance with these reasons, the Tribunal orders the Respondent to provide a copy of the 2016 video footage to the Applicant, edited to de-identify those members of the public whose facial features are visible, within 28 days.

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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: 29 September 2017