NSW Office of Liquor, Gaming and Racing v Fahey

[2012] NSWADTAP 55

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

New South Wales Office of Liquor, Gaming and Racing v Fahey (GD) [2012] NSWADTAP 55

Hearing dates:

3 December 2012

Decision date:

21 December 2012

Before:

Judge K P O'Connor, President
G Furness SC, Judicial Member
Z Antonios, Non-judicial Member

Decision:

1. Appeal allowed.

2. Leave granted to extend to the merits.

3. Decision under appeal set aside.

4. The agency's decision is affirmed.

Catchwords:

GOVERNMENT INFORMATION (PUBLIC ACCESS) - Identity of maker of Complaint to Public Agency - Weighing of Considerations For and Against Disclosure - Not a "False" Complaint - Whether that Consideration is Relevant at all - Reasonable Expectation of Confidentiality - Extension to Merits - Government Information (Public Access) Act 2009, ss 12-15, Table, cl 1(d), cl 2(a)

Legislation Cited:

Charitable Fundraising Act 1991
Freedom of Information Act 1989
Government Information (Public Access) Act 2009

Cases Cited:

Chief Executive Officer, State Rail Authority v Woods [GD] [2003] NSWADTAP 25
Department of Education and Training v GJ (GD) [2009] NSWADTAP 33
Fahey v NSW Office of Liquor, Gaming and Racing [2012] NSWADT 181
Macquarie University v Howell (No. 2) (GD) [2009] NSWADTAP 19
Mauger -v- General Manager, Wingecarribee Shire Council [1999] NSWADT 35
Taylor v Chief Inspector, RSPCA [1999] NSWADT 23

Category:

Principal judgment

Parties:

New South Wales Office of Liquor, Gaming and Racing (Appellant)
David Fahey (Respondent)
Information Commissioner (Statutory Intervener)

Representation:

J McDonnell, Crown Solicitor's Office (Appellant)
In person (Respondent)

File Number(s):

129031

 Decision under appeal 

Jurisdiction:

9108

Citation:

Fahey v NSW Office of Liquor, Gaming and Racing

Date of Decision:

2012-09-03 00:00:00

Before:

General Division

File Number(s):

123039

REASON FOR DECISION

1. This appeal arises in relation to a review application brought under the Government Information (Public Access) Act 2009 (GIPAA). The access applicant, Mr Fahey, sought access to the text of a complaint made to the appellant agency, seeking in particular the identity of the complainant. The agency granted access to the text, but crucially refused to disclose information that might reveal the complainant's identity, and redacted the text to that extent. On review, the Tribunal set aside the agency's decision: Fahey v NSW Office of Liquor, Gaming and Racing [2012] NSWADT 181. The agency now appeals. The Tribunal order has been stayed pending determination of the appeal.

1. The dispute relates only to the release of the identity of the complainant.

1. The Tribunal's decision is seen by the agency as having systemic implications for it and other regulatory agencies which follow the practice of not making the identity of complainants known to those complained against. The decision is seen by the agency as not consistent with the approach adopted by this Tribunal in dealing with similar cases involving like provisions under the previous legislation, the Freedom of Information Act 1989 (FOI Act).

1. The Information Commissioner has exercised her right of audience before the Tribunal, and appeared and made submissions to the Tribunal below and the Appeal Panel. The Commissioner supported the agency's decision to withhold the identity information.

1. In the FOI Act era, the Tribunal consistently upheld agency decisions to withhold the identity of complainants from the persons the subject of complaint. An early decision cited with approval in numerous subsequent cases was: Taylor v Chief Inspector, RSPCA [1999] NSWADT 23. Another was Mauger -v- General Manager, Wingecarribee Shire Council [1999] NSWADT 35. Similar issues arose frequently in relation to the identity of persons interviewed by investigators and the contents of investigation reports: see, for example, Chief Executive Officer, State Rail Authority v Woods [GD] [2003] NSWADTAP 25; Macquarie University v Howell (No. 2) (GD) [2009] NSWADTAP 19; and Department of Education and Training v GJ (GD) [2009] NSWADTAP 33.

1. In those cases the agencies usually relied on one or other of the following grounds for withholding the information: that the information had been provided under a promise or expectation that the identity of the provider of the information would be kept confidential and that violation of that promise or expectation was not in the public interest, or that the revelation of the provider's identity would prejudice the ability of agencies to obtain similar information in future and that was not in the public interest.

Circumstances

1. The circumstances are outlined in the decision under appeal. We deal with them in summary.

1. The agency administers the Charitable Fundraising Act 1991 (CF Act). A resident in a small community lodged a complaint with the agency about the way two related local charitable organisations were run. The complaint raised concerns about various aspects of the role played by the access applicant in relation to the charity's administration. The allegations included a specific complaint over failure to provide a receipt for a contribution of $500 made by a friend of the complainant.

1. Mr Fahey (the respondent) is deeply aggrieved by the complaint and the aspersions that he sees it as making on his character. He referred at hearing to the good work he felt that the two organisations had done in the local community. He referred to the efforts he made in founding the organisations 16 years ago, after he came to the district and took over the local pub. He is of the view that the small community is now divided, and that the best way to heal the division is to have the identity of the complainant made known.

1. The agency undertook an investigation into the complaint, and found it sustained in relation to an omission to provide a receipt and that this gave rise to a breach of the relevant law, but found that there had not been any improper use of the money. It was applied for the purpose for which it was donated.

1. The agency accepted the respondent's explanation that it had been a clerical omission, and acknowledged that the charity's book keeping practices were orderly and efficient. The agency found that some of the other factual matters raised in the complaint were accurate, but they did not give rise, in the circumstances, to any breach of the relevant law. For example, while the respondent occupied more than one of the principal offices of the organisation, there were several other members on the committee, it met regularly and minutes were kept properly.

GIPAA Regime

1. GIPAA replaced the FOI Act as from 1 July 2009.

1. GIPAA arguably builds stronger walls against the public disclosure of certain classes of government information, as compared to the FOI Act, i.e. those classes of information that are the subject of a 'conclusive presumption' that their release is not in the public interest (the classes are set out in Schedule 1).

1. For other classes of government information, GIPAA arguably creates a more flexible and open regime than applied under the FOI Act.

1. Section 13 requires the agency to undertake a balancing of the public interest considerations for and against disclosure. Sections 12 and 14 deal, respectively, with the scope of the public interest considerations in favour of disclosure and the scope of the public interest considerations against disclosure. Section 12 does not expressly limit the matters that can be taken into account as public interest considerations in favour of disclosure. One of the issues raised in this appeal is whether there are any implied limits arising from the scheme of the Act. Section 14 does expressly limit the considerations against disclosure to those listed in the Table attached to s 14. The considerations are numerous, and many of them are in the same terms as the exemption categories of the FOI Act. Section 15 encourages agencies to favour disclosure, and adopts a 'leaning position' in favour of granting access.

1. Initially the agency refused access on the basis of a conclusive presumption, and did not look any further into the merits of the application. The Information Commissioner reviewed the decision, and concluded that the agency, in contrast to the position in relation to some of its other regulatory responsibilities, could not rely on a conclusive presumption in connection with its charity law responsibilities. The Information Commissioner agreed however that the identity information should not be disclosed, applying the balancing test, as there were public interest considerations against disclosure that outweighed the public interest considerations in favour of disclosure.

1. The agency accepts that no conclusive presumption is applicable, and is of the same view as the Information Commissioner.

The Respective Cases

1. The Tribunal noted at para [28] of its reasons that the applicant relied on the following considerations:

28 The applicant asserted in the grounds for the application that disclosure of the information sought - the complainant's identity:

could be reasonably expected to promote open discussion of public affairs and contribute to positive and informed debate on issues of public importance;

could be reasonably expected to inform the public about the operations of the MBEC and the applicants role in it ;

could reasonably be expected to ensure effective oversight of the expenditure of public funds;

is the only way to get the community back together;

is required to avoid a negative impact on the applicant's personal life, health and business and mistrust within the community of Morundah.

1. Section 12 provides:

12 Public interest considerations in favour of disclosure

(1) There is a general public interest in favour of the disclosure of government information.

(2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.

Note. The following are examples of public interest considerations in favour of disclosure of information:

(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) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.

(d) The information is personal information of the person to whom it is to be disclosed.

(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.

(3) The Information Commissioner can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies.

1. The agency relies on the following public interest considerations against disclosure listed in the Table under s 14:

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):

...

(d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions,

2 Law enforcement and security

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) reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant,

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,

1. As noted, s 15 adopts a 'leaning position, in favour of access. Section 145 provides:

15 Principles that apply to public interest determination

A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles:

(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.

1. The provision of relevance to this case is s 15(e).

1. This provision responds to a late development in FOI law. Review tribunals had usually not given any weight to a submission by access applicants that a document of interest that would normally be treated as exempt from disclosure should be given to them because of a consideration personal to them. This approach reflected the idea that the right of access is one that belongs to citizens, and all citizens should be treated alike. Consistent with that approach it was usual not to require applicants to reveal their motive for making an access request, even though frequently applicants would voluntarily reveal their motive. However, the courts on appeal adopted the view that some consideration could be given to special claims, and this Tribunal recognised that development in 2009 in Howell at [38]-[52].

1. Section 15(e) allows the agency to have regard to the difficulty that was often identified by tribunals in cases of the above kind, that is, that once access was granted the applicant could not be made to limit his or her use to the particular purpose.

1. This problem is of relevance to this case. The access applicant is not saying, for example, that he wants to know who has spoken ill of him simply for his own peace of mind. He has made it clear that he wishes to publicise the name to the local community in what he sees as an exercise in clearing the air, and ending division.

The Appeal Grounds

1. The agency's appeal grounds are numerous and sweep across many of the major administrative law categories. The grounds are headed as follows, and each has a number of sub-categories: the Tribunal applied the wrong tests and/or asked the wrong questions (Ground 1, divided into headings (a) to (d) and some with several sub-points). In the alternative to ground 1, or in addition to ground 1, the Tribunal took into account irrelevant considerations (Ground 1A); the Tribunal failed to apply s 13 of GIPAA by failing to undertake the balancing exercise required by that section (Ground 2); the Tribunal did not fulfil its duty to give reasons (Ground 3); no evidence (Ground 4); irrationality and Wednesbury unreasonableness (Grounds 4A and 5); procedural unfairness (Ground 6); failure to exercise jurisdiction (Ground 7). The notice of appeal then goes on to give reasons why the Appeal Panel should grant leave to extend to the merits, and dispose of the matter.

1. We do not need to deal with all of these grounds.

Disclosure of the identity of people who make false complaints

1. In weighing the balance between the considerations favouring disclosure and those against disclosure, the Tribunal's most critical conclusion appears at [73] of the reasons:

I have found there to be a public interest consideration in disclosing the identity of a complainant who makes false complaints and in the circumstances of this matter, and the divisive effect of the complaint, I have given significant weight to this consideration.

1. At [31] the Tribunal had said:

[The agency] made no comment in its findings that the complaint was actually malicious although it was apparent that the allegations, which were very serious and alleged gross impropriety, were, on the whole, patently false.

1. At [32] the Tribunal had said:

There is, in my view, a general public interest in disclosing the identity of the complainant who make false complaints.

1. In our view, the Tribunal wrongly characterised the present complaint as false. The position merely was that it was found not substantiated except for one (not unimportant) matter - the donation for which no receipt was issued. The mere fact that the complaint is not substantiated in whole or in most respects does not make it a 'false' complaint. The description 'false', when used in the complaint handling context, should be reserved, at the least, for a complaint that lacks any foundation. It certainly was not a 'patently false' complaint.

1. Further in this case the complainant raised a number of factual matters that proved to be correct. But the agency did not accept that those matters gave rise to any transgression of charities law, for example, while there had been an incident of bankruptcy that had long been discharged, and while the applicant held more than one office on the board of the charities there was a multi-member committee that held regular minuted meetings.

1. The Tribunal did not consider the importance of the countervailing public interest in affording individuals the liberty to draw to the attention of law enforcement agencies factual matters that they think may involve possible non-compliance with the law. This was a case of that kind, and, as often transpires, the matters raised did not reveal any actual breach of the law.

1. The agency's submissions referred to FOI authority in the Federal Court to the effect that no distinction should be drawn in dealing with the issue of revelation of identity by reference as between false or malicious complaints on the one hand and bona fide or genuine complaints on the other. The President, in an early Tribunal FOI case (Mauger), left that question open, influenced by comments on the issue by the writer of the leading text of that time on the NSW FOI Act, Cossins. The President noted at [39] that the NSW Ombudsman's Guidelines of that time listed 'various circumstances that are regarded as justifying disclosure of identity information. One is where "the complaint is clearly malicious or not made in good faith".' The President went on to refer to Taylor's case, and the discussion there of the extent to which the regulatory agency was dependent on complaints; and then turned to the question of how an agency, or the Tribunal standing in its shoes, might go about making a finding that a complaint is false or both false and malicious.

1. It is not necessary to pursue that discussion in this appeal, as the pre-condition on which it depends - that the complaint was 'false' or 'malicious' - is not established.

The Reasonable Expectation of Confidentiality

1. At [76] the Tribunal said:

Confidentiality is to be inferred from all of the circumstances. I find that in the present matter a complainant would not have a reasonable expectation that the respondent's intervention that leads to an investigation, would never be disclosed. Further, as discussed above, the objectives of the CF Act, it would seem to me, impose a greater obligation on the respondent than its expressed concerns about observance of complainant's wishes for anonymity. That the respondent does not rely solely on complaints in order to exercise its investigative functions is also given significant weight in the circumstances.

1. The Tribunal reduces to too simple an equation the relationship between a reasonable complainant's expectation as to confidentiality and the extent to which that expectation may be able to be realised in practice.

1. The Tribunal in the past noted in a number of cases arising under the FOI Act that, in its view, ordinarily government agencies responsible for enforcement of laws will seek to accord a high level of confidentiality to a complaint in its initial stages of examination. It may become necessary to identify the complainant if it becomes necessary to put the allegations directly to the subject of the complaint. It may, on the other hand, be information that is treated as intelligence information and is used to gather other information that may end up being put to the subject. Similarly, at the point more formal action is contemplated it may be necessary to indicate to the complainant that their evidence is seen as necessary for an effective prosecution. These features of the investigative process and the use of complaint information are well known.

1. In our view, the expectation of confidentiality that might be seen as held by a reasonable complainant in the particular circumstances of the case will often be conditional, in the sense that a reasonable complainant would recognise that there may come a point when confidentiality has to be overridden in the public interest.

1. In our view, these considerations remain applicable in weighing the public interest considerations against access on which the agency relied in this case.

1. We also agree with the agency's submissions that it is of no relevance that the agency 'does not rely solely on complaints in order to exercise its investigative functions'. There is nothing unusual about an agency having a range of systems for the exercise of investigative functions. Typically they divide into 'reactive' and 'proactive' systems (for example, tip-offs and complaints ('reactive') and visible audit and inspection programs and less visible intelligence-gathering ('proactive')). That phenomenon does not put at naught in the way suggested in para [76] the importance of a guarantee or expectation of confidentiality for those that provide tip-offs or lodge complaints.

Extension to Merits

1. We grant leave to extend the appeal to the merits. We canvassed merits issues at the appeal hearing, so as to avoid having to resume again.

The public considerations that do not favour disclosure

1. We think it is clear that the first two considerations in the Table relied upon by the agency are applicable to this case.

1. Table, clause 1(d): Clearly the disclosure of the identity of complainants could reasonably be expected to have as an effect prejudice to the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions. In our view, that prejudice could be particularly acute in cases of the present type. Many charities are small scale and localised in the way reflected in the facts of this case. In a small community the social pressures that militate against questioning the conduct of a charity are, we think, heightened as compared to the hesitation that a complainant in a large metropolis may have over raising a complaint in relation to a major charity of a relatively impersonal kind.

1. Inevitably complaints will be hurtful to those affected by them especially where they allege misconduct of a personal nature. People who run regulated organisations must expect that there may be complaints, and their duty is to respond to them appropriately, whether directly to the complainant or to the regulatory agency where the complaint has been lodged in that way.

1. We are satisfied that in this case the agency has as one of its methods of ensuring that charities law is complied with the receipt, consideration and investigation of complaints, and that it will afford confidentiality to the identity of the complainant where that can be done.

1. Table, clause 2(a): There was considerable debate before the Tribunal below and at hearing over the question of whether this was a case to which applied the public interest in not disclosing information that could reasonably be expected to 'reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant'. For reasons given in Appeal Panel and Tribunal decisions made under the FOI Act in relation to a like provision, we do not think that the term 'informant' is restricted to 'police informers' or people who might be seen as themselves involved in the conduct of interest and are ready to 'inform' on their comrades. In our view, the word 'informant' bears a wider connotation of the kind submitted by the agency, that is, a person who gives information.

1. The interests listed in the Table are ones intended, as we see it, to be applied across the wide range of government functions. The 'Law enforcement and security' (the heading to clause 2) functions of government extend well beyond the prevention and detection of the crimes that engage the attention of police forces. The word 'informant' should not be so read as only to apply to persons who give information in that particular context.

1. In our view, revelation of the identity of a complainant in circumstances of the present kind could reasonably be expected to prejudice the future supply of information from that informant or other informants.

1. Table, clause 3(a) and (b): We will not deal in detail in these reasons with the third consideration invoked by the agency. Obviously disclosure of the identity of a complainant in circumstances where it has been received confidentially would 'reveal an individual's personal information' (cl 3(a)). We will not deal in these reasons with the question raised in the submissions as to what inquiry is needed before a conclusion can be reached that cl 3(b) might arise, i.e. that a disclosure 'could reasonably be expected to' ... 'contravene an information protection principle ... or a Health Privacy Principle'. That discussion can wait for another case.

The public interest considerations in favour of disclosure

1. In our view, there are no public interests in favour of disclosure of relevance to this case.

1. We do not rule out the possibility that there may be circumstances of deep community controversy, where a stilling of the controversy may be assisted by a disclosure that ordinarily would be seen as going to a systemic interest of government given protection by the s 14 Table considerations in issue in this case.

1. But in our view these circumstances fall well short of any situation of that kind.

1. An individual raised concerns with the appropriate branch of government in relation to the way the two charities were managed. The complaint it is said caused anger to those affected by it, and gave rise to division in the community. This is a common consequence of the lodgment of complaints. In our view, little turns on that.

1. In any case, we agree with the submissions of the agency that these matters - impact on the community, creation of social division and the like - if they have any relevance, were not proven in any satisfactory way.

Order

1. Appeal allowed.

2. Leave granted to extend to the merits.

3. Decision under appeal set aside.

4. The agency's decision is affirmed.

Decision last updated: 21 December 2012