Nationwide News Pty Ltd v General Manager, Leichhardt Council (No. 2)
[2003] NSWADT 168
•07/15/2003
CITATION: Nationwide News Pty Ltd v General Manager, Leichhardt Council (No. 2) [2003] NSWADT 168 DIVISION: General Division PARTIES: APPLICANT
Nationwide News Pty Ltd
RESPONDENT
General Manager, Leichhardt CouncilFILE NUMBER: 023098 HEARING DATES: On the papers, by consent SUBMISSIONS CLOSED: 05/29/2003 DATE OF DECISION:
07/15/2003BEFORE: Robinson MA - Judicial Member APPLICATION: access to documents - legal professional privilege - access to documents - personal affairs - Freedom of Information Act - access to documents - legal professional privilege - Freedom of Information Act - access to documents - personal affairs MATTER FOR DECISION: Confidentiality and Publication Orders LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989CASES CITED: REPRESENTATION: APPLICANT
A Henskens, barrister
RESPONDENT
C Ronalds, barristerORDERS: 1. The respondent’s application dated 28 April 2003 is refused.; 2. The confidentiality and non-publication orders made by the Tribunal on 16 October 2002 are revoked to the extent only so as to permit this determination and these reasons for determination and the reasons for determination dated 16 April 2003 to be published as they presently appear. ; 3. These reasons for determination and the reasons for determination dated 16 April 2003 are confidential to the applicant’s legal representatives and the respondent Council for 14 days from today and shall not be otherwise published for 14 days from today; ; 4. The parties have liberty to apply within 14 days of today as to any further orders they might seek; and; 5. The exhibits may be made available for collection by the respective parties from the Tribunal forthwith in sealed envelopes.
1 The Tribunal handed down its decision in these proceedings on 16 April 2003. The reviewable decision of the respondent Council was affirmed. Some further orders were made with the effect that the reasons for determination were not fully published for 14 days from that date so as to enable any party liberty to apply for any further confidentiality orders they might seek.
2 On 28 April 2003 the respondent made a written application to the Tribunal that was filed on 29 April 2003. The application was pursuant to section 55(a) of the Freedom of Information Act 1989 (NSW) ("FOI Act") and section 75(2)(b), (b1), (c) & (d) of the Administrative Decisions Tribunal Act 1997 (NSW) ("ADT Act") seeking the following orders:
3 Other orders were sought by the respondent ancillary to the above orders sought. Both parties were happy for the application to be decided by the Tribunal on the papers.
1. All evidence filed or adduced on behalf of the respondent is to remain confidential and it is not to be published or disclosed to any person;
2. All submissions (filed on behalf of both parties), that are based on the evidence disclosed for the purpose of proceedings, are not to be published or disclosed to any person;
3. The record of proceedings is not to be published or disclosed to any person;
4. The reasons for the decision are not to be published or disclosed to any person;
5. Exhibits 1 to 4 (which includes the subject document) be returned to the respondent under sealed cover; and
6. All evidence and submissions (and copies thereof) provided by the respondent to the applicant that is the subject of an undertaking by the applicant's legal representatives is to be returned to the respondent under sealed cover within seven days.
4 On 13 May 2003 the applicant filed written submissions dated 9 May 2003 opposing the application. On about 12 May 2003 the respondent made further written submissions in reply. Also on 12 May 2003 the applicant wrote to the Tribunal asking for clarification of what it can and cannot publish in relation to the Tribunal's decision. On 21 May 2003, the Tribunal received a letter of that date from the respondent enclosing a front-page article published in The Glebe and Inner Western Weekly on 21 May 2003 concerning the Tribunal's decision and some of the above matters. The applicant responded to this letter by way of a further letter to the Tribunal dated 26 May 2003 and it also sent a copy of another article published in the said periodical on 28 May 2003 under cover of a letter dated 29 May 2003. As the letters from the applicant dated 26 and 29 May 2003 respectively do not indicate on their face that they were sent to the respondent as well as to the Tribunal, I do not propose to take them into account in these reasons for determination.
5 Section 55 of the FOI Act provides:
6 I do not think it is appropriate for a respondent to make an application such as this based on section 55(a) of the FOI Act alone. That section provides for the Tribunal to do its duty "in determining a review application". That duty is not dependent on any application by a party and it exists in any event.
“55 Procedure for dealing with exempt matter
In determining a review application, the Tribunal:
(a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose any exempt matter, and
(b) is to, where in the opinion of the Tribunal it is necessary to do so in order to prevent the disclosure of any exempt matter, receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative.”
7 Section 75 of the ADT Act provides:
8 Prior to and during the course of the hearing leading to the Tribunal's decision of 16 April 2003, the Tribunal made a number of confidentiality orders primarily based on the restricted documents ground in section 57 of the FOI Act as referred to in the decision at paragraph 6. For the sake of clarity, those orders remain in effect subject to the limited revocation I proposed in paragraph 47 of my reasons for determination dated 16 April 2003.
“ 75 Proceedings on hearing to be conducted in public
(1) If proceedings before the Tribunal are to be determined by holding a hearing, the hearing is to be open to the public.
(2) However, if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:
(2A) The Tribunal cannot make an order under subsection (2) (b) in respect of any proceedings to which section 126 applies.”
(a) an order that the hearing be conducted wholly or partly in private,
(b) an order prohibiting or restricting:
(i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Tribunal or a witness summoned by, or appearing before, the Tribunal), or
(ii) the doing of any other thing that identifies, or may lead to the identification of, any such person,
(b1) an order prohibiting or restricting the publication or broadcast of any report of proceedings before the Tribunal,
(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,
(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.
(2B) The Tribunal may from time to time vary or revoke an order made under subsection (2).
(3) Mediation sessions and neutral evaluation sessions under Part 4 are to be conducted in private.
9 The primary basis for the respondent's application appears to be that on a careful reading of the reasons for determination some information is said to be revealed "concerning the personal affairs of several persons that has not been made public by the Council". It is further said that the reasons also confirms information that the applicant may have known but could not itself confirm other than for the hearing.
10 The respondent then set out a list of the publicly available information as confirmed by the respondent and stated:
11 The respondent argued that the structure of the subject report is revealed by the Tribunal's reasons and that there is vague reference to other possible litigation in the reasons. The nub of why the respondent is opposed to even the limited release of this information (if that is what it is) is that the applicant would likely publish further articles relating to the Council and/or its employees or former employees.
“Given the limited information actually on the public record, Council considers that paragraph 7 (1st sentence), 11-18, 23, 26-30, 33-35, 38, 39, 43 and 45 all contain information that other than for the proceedings would not have been known to the applicant or confirmed by Council.”
12 In my reasons for determination, I gave careful consideration to the scope of what was already in the public arena, not only at the instigation of the Council, (which was my primary consideration) but also at the instigation of the applicant by way of its newspaper. I also gave some consideration to the fact that, for a time, the written submissions of the respondent filed 27 September 2002, were not the subject of any confidentiality order up until the commencement of the hearing on 16 October 2002. I do not accept, as the respondent appears to suggest in this application, that anything in my reasons for determination offends section 55 of the FOI Act or in any way releases information from the disputed report.
13 The applicant contends in response that the orders now sought by the respondent in paragraphs 1, 2, 3, 5 and 6 of the orders sought are unnecessary as they are already covered by the existing order of the Tribunal and undertakings given by the applicant’s legal representatives. It is said the only possible relevant order is paragraph 4 which concerns the reasons for determination. I agree.
14 The applicant further contends that there is no exempt material alleged by the respondent to have been disclosed by the Tribunal in its reasons for determination and there is no “relevant mischief” said to arise from the publication of the reasons identified by the respondent. In the premises, it is said that there is no justification for the Tribunal making the order sought. I agree.
15 The primary reason why the respondent does not wish the reasons to be published in full in their present form is because of the media attention likely to be given to it. While I accept that such further media attention might again be given to the individual players mentioned in my reasons for determination (and in earlier media reports), the primary focus of the attention would be the respondent Council itself. I am mindful of section 59A of the FOI Act which provides:
16 While that section is not relevant to these proceedings, as I am not proposing the release of the contents of the subject report, its presence in the FOI Act fortifies me in my view that further attention in the media at the instigation of the applicant might only seek to embarrass the Council and that is not a matter upon which I would regard as a relevant consideration in this current application. Further, I consider that any additional speculation about the report cannot be based on the contents of the report as the said contents have not been released by order of the Tribunal.
“59A Public interest
For the purpose of determining under this Act whether the disclosure of a document would be contrary to the public interest it is irrelevant that the disclosure may:
(a) cause embarrassment to the Government or a loss of confidence in the Government, or
(b) cause the applicant to misinterpret or misunderstand the information contained in the document because of an omission from the document or for any other reason.”
17 In the alternative to a non-publication order of the whole of the Tribunal's reasons for determination, the respondent suggested I edit the said the reasons and take out the allegedly offending words (which were not identified by the respondent with any precision). I decline to do so as it would render the reasons for my determination meaningless.
18 The respondent further asks that if I am not minded to make the orders sought numbered 1 to 4, I make appropriate orders so as to preserve the ability of the respondent to seek a further stay on any appeal.
19 Accordingly, the Tribunal makes the following further determination:
1. The respondent’s application dated 28 April 2003 is refused.
2. The confidentiality and non-publication orders made by the Tribunal on 16 October 2002 are revoked to the extent only so as to permit this determination and these reasons for determination and the reasons for determination dated 16 April 2003 to be published as they presently appear.
3. These reasons for determination and the reasons for determination dated 16 April 2003 are confidential to the applicant’s legal representatives and the respondent Council for 14 days from today and shall not be otherwise published for 14 days from today;
4. The parties have liberty to apply within 14 days of today as to any further orders they might seek; and
5. The exhibits may be made available for collection by the respective parties from the Tribunal forthwith in sealed envelopes.
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