O'Toole v Wyong Shire Council

[2009] NSWADT 250

CITATION:

O’Toole v Wyong Shire Council [2009] NSWADT 250

DIVISION:

General Division

PARTIES:

APPLICANT
Carolyn O’Toole

FIRST RESPONDENT
Wyong Shire Council

SECOND RESPONDENT
Barry Waters

FILE NUMBER:

073205

HEARING DATES:

22 October 2008, 2 June 2008 and 7 July 2009

SUBMISSIONS CLOSED:

7 July 2009

 
DATE OF DECISION: 

29 September 2009

BEFORE:

Wilson R - Judicial Member

CATCHWORDS:

Freedom of Information - personal affairs exemption - unreasonable disclosure - general discretion to grant access to exempt documents.

LEGISLATION CITED:

Freedom of Information Act (NSW) 1989

CASES CITED:

Saleam v Director General’s Department of Community Services [2002] NSW ADT 41

TEXTS CITED:

1.The decision under review is set aside to the extent that it determined that the documents identified in these reasons were exempt in whole or in part and refused access to those same documents, or part thereof
2. Access, without redaction, is granted to the applicant of those same documents.

REPRESENTATION:

APPLICANT
In person

RESPONDENT
J Reilly, solicitor

ORDERS:

1.The decision under review is set aside to the extent that it determined that the documents identified in these reasons were exempt in whole or in part and refused access to those same documents, or part thereof
2. Access, without redaction, is granted to the applicant of those same documents.

REASONS FOR DECISION

1 The applicant has commenced these proceedings in the Tribunal pursuant to the Freedom of Information Act 1989 seeking access to certain documents which the first respondent had declined to release, either in whole or in part. The relevant documents are 6 in number; one document is a statement by the second respondent, which the first respondent declined to release in part, and the other 5 documents consist of email communications which the first respondent declined to release simpliciter.

2 The matter was first heard at Wyong Local Court and then, by reason of the limited scope of the remaining matters, was later heard by telephone communication. This was done with the consent of the parties. To proceed in this fashion was apposite as it appeared to the Tribunal that it was unlikely that the credit of any witness would come into question.

3 The background facts are in short compass. On the evening of 02.09.06 an “incident” occurred at a shopping mall between the second respondent and the applicant’s husband. It was of no great moment in the scheme of things, but obviously was of some importance to the parties involved. The two men knew each other and on the evening in question they simply exchanged words. The applicant’s husband had been formerly employed by the first respondent, and the second respondent was still in the first respondent’s employ at the time. There are different versions of what was said that evening, but this is of no relevance to these proceedings.

4 Following the incident the second respondent prepared a statement recording his version of the events that occurred and communicated by email with officers of the first respondent, including providing the first respondent with a copy of the statement he had prepared. The second respondent’s purpose in doing this was to obtain assistance from the first respondent in relation to certain legal proceedings that he, the second respondent, was considering. This process gave rise to the documents under review, that is, the second respondent’s statement and the 5 emails. A full copy of each of these 6 documents is in evidence (exhibit R6).

5 In relation to each of them, or part thereof, the first respondent relies upon the personal affairs exemption, a position mirrored by the second respondent who participated in the proceedings. A redacted copy of the second respondent’s statement, being the copy that was provided to the applicant, is exhibit R4.

6 The information contained in the documents in question cannot be characterised as having any direct nexus with the second respondent’s employment. Rather, the information directly concerns the legal proceedings which the second respondent was contemplating, although there is some reference to employment matters. The information also, in part, concerns the second respondent’s family members. Therefore, the documents may be properly said to contain information about the second respondent and his family or, more correctly, information about his personal affairs.

7 The critical question though is whether disclosure of this information would be unreasonable. The Act requires that a finding be made that disclosure of the information would be unreasonable, before the personal affairs exemption applies. The fact that information concerns someone’s personal affairs does not suffice per se to invoke the exemption: disclosure of that information must be unreasonable. As has been said many times, this depends upon the circumstances of each case (Saleam v Director General’s Department of Community Services [2002] NSW ADT 41). The nature of the information is of course an important consideration, as well as the consequences that may predictably follow from disclosure and the attitude that the second respondent has taken with regard to release of such information.

8 The applicant has explained that her interest in obtaining access to the subject documents is so that she may be informed whether anything untoward about her husband and herself has been placed on Council’s records arising out of the incident. There is a public interest in citizens knowing what is recorded about them by government agencies; as such information may very well affect their interactions with the agency in the future. Of course, there are limitations on this public interest arising from matters of security, as well as from other matters where other public interests are engaged. However, such considerations are not in play here.

9 The 5 emails do contain information that reveals matters, such as subjective views and attitudes, personal to the second respondent, although to varying degrees. However, the information contained in them is quite innocuous and there is really no basis for regarding disclosure to the applicant as being unreasonable. The information is not of a deeply personal nature and there are no adverse consequences that are foreseeable from disclosure. Consequently, to grant access to the emails to the applicant is not unreasonable.

10 The statement prepared by the second respondent contains two sections over which exemption is claimed: the first 9 paragraphs being one, and the last 5 paragraphs being the other. The personal information contained in the first section is also quite innocuous, and there is no basis for holding that disclosure would be unreasonable. The second section relates a further incident and contains a revelation of the second respondent’s subjective assessment of the situation. Again, this information is quite innocuous and it would not be unreasonable to disclose it. This information does not contain any matter which could lead to a finding that disclosure would be unreasonable, particularly given the information contained in those parts of the statement that have been released to the applicant.

11 The Tribunal has a general discretion to grant access to documents even though an exemption applies. In these proceedings the Tribunal would exercise this discretion in favour of the applicant, in any event. Her interest in knowing what was said about her husband by the second respondent outweighs any interest that the second respondent has in keeping the matters pertaining to his personal affairs secret, given the nature of the information which appears in the documents. Consequently, as an alternative basis for decision the Tribunal grants access to the documents to the applicant in the exercise of its discretion.