Miller v NSW Roads and Maritime Services

[2014] NSWCATAD 224

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Miller v NSW Roads and Maritime Services [2014] NSWCATAD 224

Hearing dates:

On the papers

Decision date:

18 December 2014

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

1. The decision to refuse to release the photograph is set aside.

2. In its place the decision is made that the photograph is to be released in a form which removes the possibility of the children's identity being either apparent or reasonably ascertainable.

Catchwords:

Government Information (Public Access) - reveal an individual's personal information - whether there is an overriding public interest against disclosure of the information in the form requested by the applicant

Legislation Cited:

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

Cases Cited:

Black v Hunter New England Local Health District (No 2) [2012] NSWADT 235

Category:

Principal judgment

Parties:

Peter Miller (Applicant)
NSW Roads and Maritime Services (Respondent

Representation:

P Miller (Applicant in person)
Henry Davis York Lawyers (Respondent)

File Number(s):

1410004

reasons for decision

1. The Applicant, Mr Peter Miller, applied to the Roads and Maritime Services ("RMS") under the Government Information (Public Access) Act 2009 ("the GIPA Act"). His access application sought access to the following information:

The entire file MA12/2637 relating to Mr John Edward Garnett with DOB 05/07/1940 and concerning an alleged offence committed on 17/3/12 including any ensuing or related correspondence to that matter.

1. The Applicant's request related to an incident which occurred on 17 March 2012 ("the Incident"). On that date the Applicant, in his capacity as a Boating Safety Officer employed by RMS, issued a member of the public with a Penalty Infringement Notice for a breach of boating safety regulations. The alleged offence was the operation of a vessel without carrying the required safety equipment.

1. The member of the public subsequently lodged a complaint regarding the Applicant's conduct during the Incident. RMS commenced a disciplinary investigation into the Applicant's conduct and the circumstances in which the Infringement Notice was issued. In September 2012, RMS notified the complainant of its decision to withdraw the Infringement Notice.

1. RMS identified a total of 78 pages of information as falling within the scope of the Applicant's request. The decision was taken to grant the Applicant access to the majority of the requested information. However, access was refused in relation to some of the information, on the basis that the release could reasonably be expected to either:

• reveal an individual's personal information; and/or
• prejudice the conduct, effectiveness or integrity of an investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results; and/or
• information which was identified as subject to legal professional privilege.

1. RMS decided that there is an overriding public interest against disclosure of that information. It decided not to waive legal professional privilege in respect of the information that was withheld on that basis.

1. The Applicant requested an internal review of the RMS determination. On review, RMS determined to release several additional documents. However, RMS affirmed its decision to withhold several documents, stating:

I find that there is an overriding public interest against disclosure of the following information for the reasons given above:

- All personal information on pages 4, 33, 40 and 42;

- NSW Government Licensing System printouts dated 18 May 2012 at page 35;

- NSW Government Licensing System printouts dated 11 May 2012 at page 45;

- File note at page 51;

- File note dated 14 September 2012 at page 52;

- Email dated 23 August 2012 at page 73;

- Email dated 20 August 2012 at page 74;

- Email dated 19 August 2012 at page 75; and

- Email - Subject External Complain dated 16 August 2012 at page 76.

1. The Applicant applied to this Tribunal for external review of the RMS determination pursuant to section 100 of the GIPA Act. He noted that of the 78 documents identified as falling within the scope of his access application, thirty pages were withheld in full and the remaining forty eight pages were heavily redacted.

1. At a planning meeting before the Tribunal the Applicant subsequently further narrowed the scope of the request. However, he maintains that the RMS disciplinary investigation file pertaining to the Applicant's alleged conduct in the course of the Incident is within the scope of the access application. He contends that his access application was broadly worded to include the prosecution file as well as any ensuing or related correspondence. He contends that this included the ensuing and related disciplinary investigation file.

1. RMS contends that the disciplinary investigation file is outside the scope of the Applicant's access application. However, RMS is willing to treat the Applicant's request for the disciplinary investigation file as an informal request for documents pursuant to section 8 of the GIPA Act.

1. Copies of the Requested Documents and the Disciplinary Investigation File were provided to the Tribunal.

1. As a result of negotiations between the parties, the Applicant agreed to the redaction of personal information and information which is subject to a claim for legal professional privilege and RMS agreed to release each of the requested documents to the Applicant. RMS also agreed to release the disciplinary investigation file, subject to one exception. RMS did not agree to release a photograph ("the photograph") contained in the disciplinary investigation file, on the basis that it is personal information in accordance with item 3(a) of the table to section 14 of the GIPA Act.

1. The parties have therefore reached agreement in relation to each issue, with the exception of the photograph.

Applicable legislation

1. 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.

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

1. "Personal information" is defined in clause 4 to Schedule 4 of the GIPA Act as follows:

"personal information" means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.

...

1. Section 12 of the GIPA Act provides that there is a general public interest in favour of the disclosure of government information. Section 12 allows for the consideration of any public interest in favour of disclosure. Nothing in the GIPA Act limits any other public interest consideration in favour of the disclosure that may be taken into account when making a decision in respect of an access application.

1. Section 13 of the GIPA Act provides that there is an overriding public interest against disclosure of government information 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. The Table to section 14 of the GIPA Act provides a list of possible public interest considerations against disclosure. Clause 1 of the section 14 table relevantly provides:

1 Responsible and effective government

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 (whether in a particular case or generally):

(a) ...

(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).

1. Clause 3 of the section 14 table relevantly provides:

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,

(c) ..

1. clause 1 to Schedule 4 of the GIPA Act provides that to 'reveal' information:

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

1. Subsection 14(1) of the GIPA Act provides it is to be conclusively presumed that there is an overriding public interest against disclosure of any government information described in Schedule 1 of the GIPA Act. Clause 5 of Schedule 1 provides:

(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.

1. Section 55 of the GIPA Act provides:

55 Consideration of personal factors of application

(1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the

"personal factors of the application" ) into account as provided by this section:

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

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

(c) any other factors particular to the applicant.

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

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

The issue

1. As noted above, the issues in dispute have narrow to a single photograph. RMS contends that the photograph constitutes personal information in accordance with item 3(a) of the table to section 14 of the GIPA Act. It submits that the public interests against release of personal information outweigh those in favour of release.

1. In RMS's submission, the question to be determined is whether or not disclosure of the photograph could reasonably be expected to "reveal" personal information about any individual i.e. disclose information that has not already been publicly disclosed. RMS submits that the word "publicly" ought to be given its ordinary meaning and that the Tribunal has previously found that the concept of revealing personal information requires "open" disclosure of the information: Black v Hunter New England Local Health District (No 2) [2012] NSWADT 235 at paragraph [57].

1. RMS submits that the information contained within the photograph has not been openly or publicly disclosed. The information is only available to a limited number of RMS employees. RMS submits that the photograph clearly constitutes personal information relating to children. A release of the photograph under the GIPA Act is akin to a release to the world at large.

1. In addition, RMS submits that the personal information in the photograph concerns children, whose best interests must be considered. It relies on clause 3(g) of the table to section 14 of the GIPA Act, which provides:

(g) in the case of the disclosure of personal information about a child-the disclosure of information that it would not be in the best interests of the child to have disclosed.

1. The father of the children depicted in the photograph strongly objects to the release of the photograph. In correspondence to RMS he wrote:

I object to Mr Peter Miller having access to photographs of my children in any form, which has always been the case.

1. RMS submits that in accordance with section 55(b), it is able to consider the Applicant's motives behind the request to access the photograph. It submits that there can be no legitimate motive behind the Applicant's request for the photograph. The Applicant has already viewed the photograph, as he is responsible for creating it. As he has viewed the photograph in the course of his employment, and a disciplinary investigation has already been conducted and finalised in relation to the incident, the Respondent submitted that cannot accept that the Applicant would have a legitimate alternate motive behind his attempt to access the photograph.

1. RMS submits that it is not in the best interests of these children for their identities to be disclosed in any context.

1. In contrast to RMS's position, the Applicant has proposed that the photograph be provided to him with pixelated faces to completely obscure the identities of any persons' image. He submits that this measure effectively removes any personal information aspect to his request for the photograph.

1. The Applicant submits that no personal information is being sought. As such, there is no requirement for RMS to have consulted with any person with regard to the release of the pixelated photograph.

1. Further, the Applicant says that there is no sinister motive behind his attempt to access the photograph. He says that the photograph is supportive evidence of the alleged offence that resulted in the Penalty Infringement Notice. He submits that he has a very legitimate motive in requesting the photograph because it is critical to his defence against the complaint against him. He says that the content of the photograph is undeniable evidence of the unsuitability of the lifejackets for the young children wearing them and that it is supportive evidence of the legitimate and lawful reason that he took the photograph. The Applicant says that its content reinforces his legal justification for having taken it for evidentiary purposes and further, it supports his innocence against the allegations against him.

Consideration

1. As has been noted, the single issue remaining in this matter concerns the photograph. RMS contends that the photograph is personal information for the purposes of the GIPA Act. I have viewed the photograph and I agree with that contention.

1. I also agree with the contention that the photograph concerns children, whose best interests must be considered.

1. However, I note that the Applicant has always maintained that he is not seeking personal information. He has proposed that the photograph should be released with pixelated faces to completely obscure the identities of any persons' image.

1. As noted above, the definition of "personal information" refers to information about an individual whose identity is apparent or can reasonably be ascertained from the information. In my opinion, the pixilation of the faces in the photograph would have the effect of removing the possibility of the children's identity being either apparent or reasonably ascertainable.

1. I agree with the Applicant that this measure would remove any personal information contained within the photograph.

1. If that were done, it is my opinion that there would be no overriding public interest against disclosure of the photograph.

1. In my view, the correct and preferable decision is to set aside the RMS decision to refuse to release the photograph. In its place the decision should be made that the photograph should be released with the faces pixilated or otherwise redacted.

1. I note that RMS has sought costs in this matter. In my view, this is not a matter in which an order for costs is warranted. It seems to me that the Applicant's suggestion was a reasonable one and should have been accepted by RMS at the earliest opportunity.

Order

(1)   The decision to refuse to release the photograph is set aside.

(2)   In its place the decision is made that the photograph is to be released in a form which removes the possibility of the children's identity being either apparent or reasonably ascertainable.

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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: 18 December 2014