Parkinson v Worimi Local Aboriginal Land Council

[2006] NSWADT 216

CITATION:	Parkinson v Worimi Local Aboriginal Land Council [2006] NSWADT 216
DIVISION:	General Division
PARTIES:	APPLICANT Judith Anne Parkinson RESPONDENT Worimi Local Aboriginal Land Council
FILE NUMBER:	053219 & 053335
HEARING DATES:	28/02/2006
SUBMISSIONS CLOSED:	02/28/2006
DATE OF DECISION:	07/31/2006
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	access to documents - business affairs - access to documents - personal affairs
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Aboriginal Land Rights Act 1983 Freedom of Information Act 1989
CASES CITED:	C H Real Estate Pty Limited (t/a Raine & Horne Commercial, Penrith) v Penrith City Council [2005] NSWADT 147 Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606 Dawson v The Commissioner, Health Care Complaints Commission [1999] NSWADT 57 Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 94 Re Maher and Attorney General’s Department (1985) 7 ALD 731
REPRESENTATION:	APPLICANT In person RESPONDENT M Wright, barrister
ORDERS:	1. The Respondent’s determination is varied; 2. The Respondent is to grant Ms Parkinson access to the documents it has identified as falling within the scope of these applications with the exception that it is to refuse to grant access to the information itemised in paragraph [76] of these reasons

1 These are two applications brought by Ms Parkinson in relation to applications that she made under the Freedom of Information Act 1989 (“the FOI Act”) seeking access to documents held by the Worimi Local Aboriginal Land Council (“the Council”). The Council is a Local Aboriginal Land Council (“LALC”) established under the provisions of the Aboriginal Land Rights Act 1983 (“the ALRA”). The Council is a public authority for the purposes of the FOI Act.

2 The documents sought relate to a parcel of land (“the land”) at Boat Harbour that the Council has owned since 16 March 1998 having made a successful claim pursuant to the provisions of the ALRA. Mr Peter Hillig is the administrator of the Council. Ms Parkinson owns and resides on an adjoining lot.

3 On 11 October 2005, a meeting of the Council was held to consider, amongst other things, the cultural significance and disposal of the land. Ms Parkinson is a vigorous and determined opponent of the Council's decision to sell the land. She wishes to see the land left in its present undeveloped state.

4 Ms Parkinson’s first application sought access to the following documents relating to the land:

List of names and addresses of all attendees at the Meeting of the Worimi Land Council held on or about the 18th October 2004 at which a vote was carried to sell the above land.

List of names and addresses of all Members of the Worimi Land Council who voted to sell the above land at the Worimi Land Council Meeting held on or about the 18th October 2004.

Minutes of the meeting in October 2004 at which it was voted to sell the above land

5 The meeting to which Ms Parkinson was referring was in fact held on 11 October 2004. Ms Parkinson made a second application for access to documents in the following terms:

A list of the bona fide members of the Worimi Land Council as at 11 October 2004.

6 Mr. Hillig determined the applications on behalf of the Council. He determined the first application by refusing access to the first category of documents under Schedule 1 clause 6(1) of the FOI Act, advising that the second category did not exist and providing an edited copy of the third category of documents deleting what he considered to be exempt material pursuant to Schedule 1 clause 7(1)(c)(i) and (ii) of the FOI Act. Mr. Hillig determined the second application by refusing access to the documents pursuant to Schedule 1 clause 6(1) of the FOI Act.

7 Ms Parkinson sought an internal review of Mr. Hillig's decisions. Mr. Hillig also signed the determination of the internal reviews. In Mr. Hillig's Statutory Declaration dated 30th September 2005 he declares that Mr. Mike Smith determined the internal review applications. In the circumstances Mr Wright conceded that the Council should be regarded as having failed to determine the internal review applications and therefore they were deemed to have been refused. Ms Parkinson has sought an external review of the decisions by the Tribunal. Both applications were heard together.

Applicable legislation

8 The Council is a LALC established under the provisions of the ALRA. It has the functions and responsibilities conferred upon it under section 52 of the ALRA. The ALRA is beneficial legislation. Councils provide a significant measure of self-determination to the Aboriginal people of New South Wales by creating a means for the making of decisions concerning their own affairs. Section 248 of the ALRA provides that each LALC is taken to be a public authority for the purposes of the FOI Act.

9 LALCs are able to deal with their land by sale, exchange or lease. Part 2 of Division 4 of the ALRA regulates dealings in Land Council land. Section 222 of the ALRA provides for the appointment of an administrator to a LALC. Once appointed, the administrator exercises all the functions of the LALC in accordance with the terms of the instrument of appointment.

10 Adult Aboriginal persons are entitled to become members of a LALC if they reside in the LALC area; or have an association with the area; and have been accepted by a meeting of the LALC as members. Section 54 of the ALRA sets out the process to be followed by a person seeking to be accepted as a member of a LALC. Once a person becomes a member, the Secretary of the LALC must record their name and address in a membership roll. There is no obligation on a person to become a member of a LALC and there is no obligation on a member of a LALC to attend and vote at a meeting.

11 The rules prescribed by the regulations as model rules govern the conduct of LALC business and of LALC meetings. Not all members of the LALC must be present at such a meeting nor are they required to vote. Section 40C(1) of the ALRA requires that before LALC land can be sold,

“(a) at a meeting of the Local Aboriginal Land Council of the area in which the land is situated specifically called for the purpose (being a meeting at which a quorum was present) not less than 80 per cent of the members of the Council present and voting have determined that the land is not of cultural significance to Aborigines of the area and should be disposed of”

12 The term “cultural significance" is not defined in the ALRA.

13 Section 5 of the FOI Act provides that the objects of the FOI Act are to extend, as far as possible, the rights of the public to obtain access to information held by the Government. The legally enforceable right to be given access to documents held by the Government, is subject only to such restrictions as are reasonably necessary for the proper administration of the Government. The discretions conferred by the FOI Act shall be exercised, as far as possible, so as to facilitate and encourage the disclosure of information. Section 16 of the FOI Act provides that a person has a legally enforceable right to be given access to an agency's documents in accordance with the FOI Act. Under section 25(1)(a) of the FOI Act, an agency has discretion to refuse access to a document if it is an exempt document. Pursuant to section 61 of the FOI Act the agency has the burden of establishing that its determination was justified.

14 Clause 6 of Schedule 1 of the FOI Act provides as follows:

6 Documents affecting personal affairs

(1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).

(2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made.

15 Clause 7 of Schedule 1 of the FOI Act provides as follows:

7 Documents affecting business affairs

(1) A document is an exempt document:

(a) if it contains matter the disclosure of which would disclose trade secrets of any agency or any other person, or

(b) if it contains matter the disclosure of which:

(i) would disclose information (other than trade secrets) that has a commercial value to any agency or any other person, and

(ii) could reasonably be expected to destroy or diminish the commercial value of the information, or

(c) if it contains matter the disclosure of which:

(i) would disclose information (other than trade secrets or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any agency or any other person, and

(ii) could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency.

(2) A document is not an exempt document by virtue of this clause merely because it contains matter concerning the business, professional, commercial or financial affairs of the agency or other person by or on whose behalf an application for access to the document is being made.

16 Clause 13(b) of Schedule 1 of the FOI Act provides as follows:

13 Documents containing confidential material

A document is an exempt document:

…

(b) if it contains matter the disclosure of which:

(i) would otherwise disclose information obtained in confidence, and

(ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and

(iii) would, on balance, be contrary to the public interest.

17 Subsection 25(1) of the FOI Act allows an agency to refuse access to an exempt document in certain circumstances, including where a document is an "exempt" document as defined in the FOI Act. Subsection 25(4) of the FOI Act provides that an agency shall not refuse access to an exempt document if it is practicable to give access to a copy of the document from which the exempt matter has been deleted and if it appears to the agency that the applicant would wish to be given access to such a copy.

18 Section 31 of the FOI Act provides in part that an agency shall not give access to a document containing information concerning the personal affairs of any person (otherwise than to the person concerned) unless the agency has taken steps as are reasonably practicable to obtain the views of the person concerned as to whether or not the document is an exempt document by virtue of clause 6 of Schedule 1.

The Council’s Case

19 The Council relies on the evidence of its Administrator, Mr Hillig, and that of Mr Stephen Wright, Registrar of the ALRA.

20 The Council is of the view that it is not appropriate for information such as a LALC members' residential address or date of birth to be available to any person other than a member of the LALC. Further, Mr Wright asserts that it is not in the interests of Aboriginal people or the wider public interest that the decision making processes of Aboriginal Land Councils be scrutinised to the extent that personal information about its members is available to third parties with no direct interest in the operation of Aboriginal Land Councils. This is particularly true where the model rules themselves provide that members of a LALC only have limited access to a LALC's records. Non-Aboriginal third parties with no legal right to intervene in the affairs of LALCs should not have access to the personal information or details of LALC members.

21 The Council’s evidence is that the meeting on 11 October 2004 was held for the purposes of section 40D(1) of the ALRA. The vote at the meeting was conducted by a show of hands. It says that any issue concerning decisions of the LALC is an internal matter to be resolved between members in accordance with the provisions of the ALRA. Ms Parkinson is not entitled to become a member of the Council. She has no standing under the ALRA to challenge any decision of the Council.

22 In the first application, Ms Parkinson sought the names and addresses of members who participated in the meeting of 11 October 2004. The Council contends that it was correct in its decision to refuse access to those documents.

23 Mr Wright referred for support to the decision in Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606 (“Perrin’s case”), where the New South Wales Court of Appeal considered clause 6 of Schedule 1 of the FOI Act and whether the disclosure of a persons name amounted to disclosure of information concerning the person's personal affairs. In Perrin’s case the Commissioner of Police argued that the exemption under clause 6 of Schedule 1 extended to the names of police officers involved in the preparation of reports.

24 The Court of Appeal held that the question of whether the disclosure of the name of a person amounted to disclosure of information concerning the person's personal affairs was a question of fact to be decided depending on the circumstances of each case. The Court of Appeal concluded that Bell DCJ in the District Court had been correct in finding that the names of police officers involved in the preparation of reports did not, on the facts of that case, come within the “personal affairs” exemption.

25 Mr Wright contends that the second principle from Perrin’s case was that the FOI Act involves a balancing of the right to privacy with the object of the legislation of ensuring the disclosure of public documents. He says that clause 6 should be given a wide meaning to ensure that privacy is protected.

26 Mr Wright argues that in the circumstances of this case, the position is very different to the officers involved in writing reports in Perrin’s case or to the officers in the example given by Bell DCJ. He says that members of the Council are exercising rights conferred upon them under beneficial legislation directed at providing some remedy to the disadvantages they face. An adult Aboriginal person exercising a private right to participate in the affairs of a land council of which he or she is a member is entitled to the right to privacy afforded by clause 6 of Schedule 1. The names and addresses of members, and for that matter, any other personal information about members such as their dates of birth, is information concerning the personal affairs of that person.

27 Mr Wright says that there is no sound policy reason why even the fact that an adult Aboriginal person has chosen to become a member of a LALC should be publicly available. The legislative intention reflected in the Model Rules strongly suggests that it is not. Membership records are not public documents and the Model Rules place restrictions on access to LALC records, even to LALC members.

28 In the second application, Ms Parkinson sought a list of "all the bona fide members of Worimi Land Council as at 11 October 2004". Mr Wright submits that the use of the expression "bona fide" raises the obvious inference that Ms Parkinson sought to inquire as to whether members at that date were genuine members. He says that in dealing with the second application, the Council must make some judgment as to whether adult Aboriginal persons who are members have met the requirements of the ALRA that they reside within or have an association with the area, and have established their entitlement to be a member of the Council.

29 Mr Wright further submits that the information required to be provided by an adult Aboriginal persons to establish a right to membership, including their age (to establish adulthood), the basis of their Aboriginality and their association to the area of the LALC must be information concerning the personal affairs of the person falling within clause 6 of Schedule 1.

30 The Council contends that the subject matter of the meeting of 11 October 2004 is also highly relevant to the question whether the information sought by Ms Parkinson concerns the personal affairs of a person. It says that the very nature of the resolution required to be passed for the purposes of section 40D(1) ALRA must be personal to the individual adult Aboriginal persons who participated in the meeting as members because it involves a vote by each member present who chooses to vote as to whether the land the subject of the meeting is of cultural significance. In the circumstances of this case, the information sought by Ms Parkinson as to who participated in that meeting must concern the personal affairs of each of the members of the Council who attended and/or voted at the meeting of 11 October 2004. The Council also says that the nature of the meeting is a matter highly relevant to the reasonableness of the disclosure of the information sought.

31 Mr Wright argues that in statutory context of the ALRA outlined above it would be unreasonable to disclose the information sought by Ms Parkinson. Adult Aboriginal people exercising the right to become a member of a LALC and the right participate in a LALC meeting should not have the information supporting their basis for membership disclosed to the public.

32 He says that where the subject matter of the documents sought relate to a decision at a meeting concerning the cultural significance of land, it would be wholly unreasonable for the details of the members who participated in that meeting to be disclosed. A member of a LALC casting an individual vote on that question is entitled to have his or her right to privacy respected.

33 Mr Wright submits that the right to privacy afforded by clause 6 of Schedule 1 to the FOI Act should protect members of the Council from such an intrusion into their personal affairs.

34 Mr Wright submits that it is necessary to examine Ms Parkinson’s motivation when determining whether it is reasonable for her to have access to the documents she seeks. He asserts that Ms Parkinson is motivated by a strong desire to prevent the future development of the land in order to preserve the amenity of her own residence. She is not, and cannot become, a member of the Council. She has no standing to challenge an internal decision of the Council. That decision is not one in which Ms Parkinson has any legitimate interest. The question whether the land may ultimately be developed by someone else if sold is a matter for Ms Parkinson to pursue under the Environmental Planning and Assessment Act 1979 if and when a development application is made to develop the land in the future.

35 Mr Wright says that the copy of the minutes of the meeting of 11 October 2004 that was provided to Ms Parkinson had information concerning the possible sale price of the land deleted. He contends that the deleted information is exempt under clause 7(1)(c)(i) and (ii) of Schedule 1 to the FOI Act because the disclosure of this information would have an unreasonable adverse effect upon the business and commercial affairs of the Council. He says that the public disclosure of the price for which the Council may be willing to dispose of the land would provide any prospective purchaser with an unfair commercial advantage and would place the Council in the position where its ability to negotiate with a prospective purchaser over the sale of the land was severely impaired. He argues that no vendor for the sale of land would consider it reasonable to have the price the vendor was willing to accept disclosed to the market. Further, he contends that one of the functions of a LALC is to implement the wishes of its members. A LALC is entitled to conduct dealings in its land in a manner that ensures that commercially sensitive information such as the desired sale price should not be made public.

36 The Council submits that for these reasons the Tribunal should determine that the documents sought are exempt documents and that the decision to refuse access to the exempt documents should be affirmed.

Ms Parkinson’s Case

37 Ms Parkinson owns a property at Boat Harbour that adjoins the land. She is the secretary of the Boat Harbour Recreation Club and with her husband organises tennis coaching for juniors and manages and maintains the Boat Harbour community tennis courts in a voluntary capacity. She is not a member of the Council nor is she an indigenous person.

38 Ms Parkinson’s evidence is that on 19 October 2004 a member of the Council advised her that a vote had been taken to dispose of the land, that unauthorised persons were voting at Council Meetings and that many traditional owners were distressed by the sale of their lands. She says that she determined to make FOI applications to clarify the situation. She received a copy of the Minutes of the meeting with sections deleted but was denied access to the requested lists.

39 Ms Parkinson sought assistance from the Ombudsman's office, which subsequently advised that Mr Hillig had refused the Ombudsman's request for access to the documents.

40 Ms Parkinson accepts that the vote to sell was by a show of hands, and that there was no list of persons who voted to sell the land. She stated that she has not sought dates of birth of Council members.

41 She disputes the Council’s assertion that she should be denied access to the names of individuals belonging to the Council pursuant to clause 6 of Schedule 1 of the FOI Act. She referred to extracts from various N.S.W. Aboriginal Land Council (“NSWALC”) annual reports. In particular she referred to the inclusion in the 2000 annual report of names and areas of individuals belonging to various LALCs around the State and to comments by the Administrator, Mr Murray Chapman, in the NSWALC 2004 annual report. Mr Chapman expressed the view that the legislative arrangements for land dealings by LALCs are too open to abuse by people both inside and outside the land council system.

42 Ms Parkinson argues that LALCs are Public authorities for the purposes of the FOI Act and as such, should be open to public scrutiny, especially where, in the past, there have been allegations of corruption against the Council. She referred to an extract from the NSWALC 2001 annual report that stated that the Audit Committee has the continuing positive support of the NSWALC in the promotion of accountability and transparency within the land council system.

43 She also provided extracts from the ICAC Report On Investigation Into Aboriginal Land Councils which stated:

Accountability is a central issue in the ICAC's enquiry into Aboriginal land councils, because most corrupt conduct can be linked to a lack of accountability in some way. … external accountability and can sometimes overshadow the importance of internal accountability.

Aboriginal land councils are unique statutory organisations. They are formed under legislation, and are subject to external accountability in the same way as other public sector organisations. However, their representative nature also gives them a political character, which means that internal accountability is especially important if they are to function properly. …

Misuse of LALC resources by a small minority of the membership was a common theme running through the enquiry. It was apparent that this was often caused or contributed to by poor accountability. In some cases corrupt conduct was tolerated by some of the members; in others the members simply gave up and opted out of the system. …

[I]t was suggested that the wishes of legitimate members were over-ridden in some cases when membership provisions or other means were used to 'stack' meetings to ensure a certain outcome of decision-making. Provisions for membership by association have been identified as particularly troublesome in this respect. A significant number of the complaints related to the election of office-bearers and proceedings of annual meetings.

Confusion about membership status and the keeping of electoral rolls also clouds issues about entitlement to vote on important matters. At present, rolls are kept independently by each LALC. The accuracy of rolls affects whether or not electoral outcomes are a reflection of the voice of the community. …

Improving the accountability of elected officials, and the transparency of decision-making, help to minimise opportunities for corrupt conduct. …

The ICAC believes that increased levels of accountability within the Aboriginal land council system are needed to ensure that opportunities for corrupt conduct are minimised.

44 The ICAC recommended that decision-making by LALC should be open, transparent and accountable:

Recommendation 5: Publicise records of LALC meetings

Decision-making by local Aboriginal land councils should be open, transparent and accountable. This can be achieved by encouraging the documentation of all decision-making (including information about meeting attendance), and making this appropriately available and accessible to members, including those who are unable to read. Where necessary, documentation could be lodged with the NSW Aboriginal Land Council (possibly at branch offices) to enable some independent means of members' access to the information. Exceptions should be made where matters are confidential for commercial, privacy, cultural or other similar reasons.

45 With respect to the issue of accountability the ICAC report stated:

Accountability becomes an issue when some people within an organisation exercise powers and undertake responsibilities on behalf of the owners or members of the organisation. Where an organisation is established on a statutory basis, accountability is usually required by law as well as by public policy considerations. …

Statutory organisations, and those which are publicly funded, usually owe a duty of external accountability to government and, ultimately, the community. Sometimes more attention is focused on this aspect of accountability. … Aboriginal land councils in New South Wales carry out functions defined by the Parliament of New South Wales in the Aboriginal Land Rights Act 1983, with money provided under that Act, and are therefore accountable for the way in which they carry out those functions. …

It is often suggested that it is not possible for Aboriginal organisations to be both accountable and self-determining. However, the ICAC believes this to be incorrect. Many organisations owe external duties of accountability and account for their performance properly without compromising their independence or capacity to determine their own futures and directions.

46 Ms Parkinson referred to the Minutes of the meeting of 11 October 2004 which clearly shows the names of all those persons who apologised for non attendance as well as those movers and seconders of Motions. Ms Parkinson asserts that there was no attempt by the Council to keep those names secret.

47 Ms Parkinson relies on the Statutory Declarations of Worimi Dates, Debbie Dates and Susan Dates which she says sets out the points of view of some members of the Council and their allegations of corruption within the Council. They stated that they have been intimidated and insulted by a minority group which is in control of the Council and which is maintaining control of the Council through the administrator. They object to the sale of the land and maintain that it does hold strong cultural significance.

48 Ms Parkinson relies on the views expressed by the Judicial Member Fleming in Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 94 as support for her argument that the release of the documents she seeks would not involve the unreasonable disclosure of information concerning the personal affairs of any person. In Gilling the Judicial Member stated at paragraph 27:

27 The nature of the information to be disclosed is the name and address of the complainant. While this is 'personal information' (as discussed later) it is not information which is highly sensitive to the complainant. It is not, for example, information that concerns their private financial, medical or domestic affairs. The nature of the information in this case is such that it is common for that type of information, to be available to the public. Names and addresses are found in the telephone book. The Tribunal is of the view that the nature of the information in this case is not of a kind which would favour non-disclosure in the public interest.

49 Ms Parkinson argues that the public interest is very much involved in this Application. She says there is nothing to suggest that disclosure of the requested information could prejudice future supply of information, and contends that many of the people who have deserted Council meetings would return if greater transparency and openness were achieved. She says that Councils are not secret societies and members of the public can attend their meetings. People who attend Council meetings do not attend in confidence or secrecy.

50 She argues that the objects of the FOI Act are to extend, as far as possible the rights of the public. She says that in this regard there has been intense, enduring community involvement in the issue of the future of the land, as well as anxiety and distress within the Council. She asserts that it is in the public interest that the requested names be disclosed and it is the right of the public that a proper investigation takes place regarding the legality of the voting at the meeting of 11 October 2004. She says that the public are aware of the allegations of corruption against the Council and this adds to the need for investigation.

51 Ms Parkinson also says that neighbourhood meetings have been held protesting against the sale and development of the land. She provided a copy of a petition bearing 460 signatures that has been presented to Port Stephens Council asking the Council to take steps to protect the land from development. She says that the petition illustrates the interest of the public.

52 Ms Parkinson argues that section 31(2) of the FOI Act requires an Agency to "obtain the views of the person concerned as to whether or not the document is exempt by virtue of clause 6 of Schedule 1 to the FOI Act. She says that Worimi Dates, Cynthia Dates, Debbie Dates and Susan Dates have all advised that they have not been approached by the Council as to their views regarding the exemption or otherwise of the requested documents. She submits that it is highly likely that other members of the Council have been similarly by-passed.

53 Ms Parkinson further asserts that for membership details and attendance records to be kept secret, it must be shown that this information was "obtained in confidence". It must be shown that it was communicated and received under an expressed or inferred understanding that it would be kept confidential: Re Maher and Attorney General’s Department (1985) 7 ALD 731. She says that there is no provision within the ALRA that states that members' names and addresses are exempt from disclosure. Further, names of many LALC members are freely available on the NSWALC's web site.

54 With respect to Mr. Wright’s assertion that the only records that a member of a LALC has access to are the Minutes of Meetings, Ms Parkinson argues that model rule 11 refers to Minutes being made available but nowhere does it exempt other documents from being made available. She also disputes that the disclosure of names will automatically provide disclosure of age. She says that the disclosure of names would only indicate that those persons are adults.

55 She also disputes that the disclosure of names of attendees at the meeting will divulge personal affairs by reason of the nature of the vote. She says that as the vote was taken by a show of hands, the names of attendees will not divulge who voted in favour and who voted against. It will merely show who attended the Meeting. She says that therefore the voting that took place at the meeting cannot in any way reflect the personal affairs of any person.

56 Ms Parkinson argues that her position is supported by views expressed by Kirby P in Perrin’s case at 625:

"personal affairs means the composite collection of activities personal to the individual concerned. Applying that test, it cannot properly be said that the disclosure of the names of Police Officers and employees involved in the preparation of reports within the N.S.W. Police can be classified as disclosing information concerning their personal affairs. The preparation of the reports apparently occurred in the course of the performance of their police duties. What would then be disclosed is no more than the identity of officers and employees of an agency performing such duties. As such, there would appear to be nothing personal to the officers concerned, nor should there be. It is quite different if personnel records, private relationships, health reports, (perhaps) private addresses would be disclosed. Such information would attract the exemption."

57 Ms Parkinson also relies on Dawson v The Commissioner, Health Care Complaints Commission [1999] NSWADT 57, where the Tribunal's Deputy President observed at paragraph 33:

"Prima facie there is nothing "personal" about someone's name being on a list of professional psychiatrists held by a public agency. It does not matter that these practitioners were not public servants or that they could remove their names at any time. What matters is the nature of the information interpreted in its context. The information in question does not relate to their family or personal relationships, their financial or health status or any other matter personal to them. It relates to their identity and competence as a professional person. For these reasons the information does not concern their personal affairs."

58 In response to the Council’s expressed concern that Ms Parkinson will approach and question individual Council members regarding the decision made at the meeting of the 11 October 2004 if the names requested are disclosed, she denied having any such intention. She says that if there are any anomalies, she will refer them to the appropriate authorities.

59 In summary, she says that the release of the documents she seeks would not involve the unreasonable disclosure of information concerning the personal affairs of any persons and that it is in the Public Interest that the information she seeks is disclosed.

Findings and Reasons

60 The Council has identified a number of documents as falling within the scope of Ms Parkinson’s applications. The issue to be determined is whether the grounds on which the Council has refused access to the documents that Ms Parkinson requested have been made out. That is, whether the documents that Ms Parkinson sought are exempt documents within Schedule 1 of the FOI Act; and if the documents are exempt documents whether it is practicable to give access to copies from which exempt matter has been removed.

61 The Council has provided the Tribunal with a copy of each of the documents that it says fall within the scope of Ms Parkinson’s applications. The Council’s evidence is that it does not hold a document that lists the names and addresses of all Members of the Council who voted to sell the land at the meeting of 11 October 2004. I am satisfied that the vote taken at the meeting of 11 October 2004 was by show of hands and therefore the Council does not hold any document that meets the description of that request.

62 I note that the Council provided Ms Parkinson with an edited copy of the Minutes of the meeting of 11 October 2004 at which it was voted to sell the land. The Council deleted information concerning the possible sale price of the land from the copy of the Minutes that it gave to Ms Parkinson. The Council contends that the deleted information is exempt under clause 7 of Schedule 1 to the FOI Act – the Business Affairs Exemption. This exemption is asserted on the basis that the document contains matter that concerns the business and commercial affairs of the Council and that if it was released, the disclosure of this information would have an unreasonable adverse effect on those affairs.

63 The Tribunal’s President considered a number of authorities relating to the Business Affairs Exemption in C H Real Estate Pty Limited (t/a Raine & Horne Commercial, Penrith) v Penrith City Council [2005] NSWADT 147. The President stated:

“38 Information of Commercial Value . In Re Pfizer the AAT noted at 676, in relation to the equivalent Federal exemption, that the question is not whether there is a reasonable basis for the claim to exemption but merely ‘whether the commercial value of the information could reasonably be expected to be destroyed or diminished if it were disclosed’. Powell J said in Wittingslow Amusements Group v Environment Protection Agency (NSWSC, 23 April 1993) at p 29 that an objective of this exemption is: ‘To protect a person or companies … from commercial disadvantage which they might suffer if commercially sensitive or commercially valuable information … was to be disclosed.’

39 The Tribunal is required to satisfy itself as to two matters in respect of the information in issue – first that the document contains ‘information that has a commercial value’; and, secondly, that disclosure ‘could reasonably be expected to destroy or diminish the commercial value of the information’. ...

46 The breadth of the terms ‘business, professional, commercial or financial affairs’ has been noted in a number of cases (see, for example, Raethel v Director General, Dept of Education and Training [1999] NSWADT 108 at [43]); and it has also been noted that they can be overlapping categories not to be read down by reference to each other (Schlebaum (No 2) v Director General, Dept of Community Services & anor [2001] NSWADT 214 at [36]).

47 The next question is could disclosure ‘reasonably be expected to have an unreasonable adverse effect on those affairs’. ... What is required of the decision-maker assessing this question is a judgment as to whether the claimed disadvantage is ‘reasonable as distinct from something that is irrational, absurd or ridiculous’: Re Attorney General’s Dept and Cockcroft (1986) 64 ALR 97 at 106, and Re Organon at [27].”

64 In the circumstances of this matter, the Minutes refer to the price for which the Council may be willing to dispose of the land. I am satisfied that this is information that has a commercial value. I am also satisfied that the Council’s claim that the release of this information would provide any prospective purchaser with an unfair commercial advantage and would place the Council in the position where its ability to negotiate with a prospective purchaser over the sale of the land was severely impaired is reasonable. It is not a claim that could be considered to be ‘irrational, absurd or ridiculous’. Therefore, it is my view that disclosure of this information could reasonably be expected to destroy or diminish the commercial value of the information.

65 In the circumstances, the information that was deleted from the Minutes is exempt and need not be provided to Ms Parkinson. I note that my view would have been different if negotiations and the sale of the land had been finalised.

66 The remaining documents that Ms Parkinson sought are a “list of the bona fide members of the Worimi Land Council as at 11 October 2004” and a “list of names and addresses of all attendees at the Meeting” on 11 October 2004. The Council has identified two documents that fall within the scope of this aspect of Ms Parkinson’s applications. Those document are headed “201 X Voting Members for Worimi LALC as at 11/10/2004” (“Voting Member list”) and “113 X Non-Voting Member Notices for Worimi LALC as at 11/10/2004” (“Non-Voting Member list”).

67 Each of those documents is in table format with the following column headings:

First Name

Surname

DOB

St No

St Name

Suburb

Signature

68 These documents provide a list of the members of the Council as at 11 October 2004 and those members who attended the meeting on that date are identified by signatures in the column headed “Signature”.

69 The Council has asserted that these documents are exempt pursuant to the ‘personal affairs’ exemption provided for by clause 6 of Schedule 1 to the FOI Act. Each of the parties has referred to the observations on the scope of the meaning of ‘personal affairs’ made by Kirby P in Perrin’s case. There Kirby P pointed out that clause 6 could not be invoked to protect from disclosure to an applicant the identity of public servants named in files in connection with the performance of their official duties. However, he drew the important distinction between information relating to their official responsibilities and information relating to their private affairs. He stated at 625:

Applying that test, it cannot properly be said that the disclosure of the names of police officers and employees involved in the preparation of reports within the New South Wales police can be classified as disclosing information concerning their personal affairs. The preparation of the reports apparently occurred in the course of the performance of their police duties. What would then be disclosed is no more than the identity of officers and employees of an agency performing such duties. As such, there would appear to be nothing personal to the officers concerned. Nor should there be. It is quite different if personnel records, private relationships, health reports or (perhaps) private addresses would be disclosed. Such information would attract the exemption. But the name of an officer or employee doing no more than the apparent duties of that person could not properly be classified as information concerning the “personal affairs” of that person. The affairs disclosed are not that person's affairs but the affairs of the agency.

70 In Perrin’s case Mahoney JA said at 638:

‘However, in construing or applying cl 6 it is unwise to deal in absolutes. Whether a fact is part of a person's personal affairs may be affected by the circumstances of the case. …

A person’s name would not, I think, ordinarily be, as such, part of his personal affairs. It is that by which, not merely privately but generally, he is known. In some circumstances, it may be personal in the sense of private but that has not been shown to be the case here.’

71 Clarke JA expressed similar views at 644:

It seems to me that, generally speaking, the Act is concerned with “the affairs” of individuals and that as a matter of ordinary English a person's name would not be considered as falling within that concept. On the other hand it may be that in particular circumstances it may be right to conclude that a person's name, or the particular name that that person was using at that time, was a matter concerning that person's personal affairs. Those considerations lead me to conclude that whether in particular circumstances a person's name concerned that persons personal affairs is a question of fact and that it cannot be laid down as a matter of law that the name must always concern a person's personal affairs.

72 I do not agree with the Council’s arguments that it is not in the public interest that the decision making processes of the Council be open to scrutiny. However, while I accept Ms Parkinson’s argument that that LALCs are Public authorities for the purposes of the FOI Act and as such, should be open to public scrutiny, the role played by members of the Council are not comparable to public servants performing official duties. They are exercising a private right to participate in the affairs of the Council.

73 In the particular circumstances of this matter it is my view that the name of a member of the Council is not information concerning the personal affairs of that person. However, I agree with the Council’s argument that the private address and date of birth of a member of the Council is information concerning the personal affairs of that person. Accordingly, this is information that falls within the ‘personal affairs’ exemption provided for by clause 6 of Schedule 1 to the FOI Act and should not be released to Ms Parkinson.

74 Section 25(4) of the FOI Act provides that an agency shall not refuse access to an exempt document if it is practicable to give access to a copy of the document from which the exempt matter has been deleted and if it appears that the applicant would wish to be given access to such a copy. In my view, it is practicable to delete the columns headed “DOB”, “St No”, “St Name” and “Suburb” from the Voting Member list and the Non-Voting Member list.

75 Once this exempt information is deleted from the documents, the names of the members of the Council as at 11 October 2004 and the signatures of those members who attended the meeting that appear in the column headed “Signature”. Ms Parkinson should receive a copy of the documents in that amended form.

Summary of Information to be Exempted

76 The following passages should not be released:

(a) Minutes of the meeting of 11 October 2004
- information concerning the possible sale price of the land.
(b) Those document are headed “201 X Voting Members for Worimi LALC as at 11/10/2004” and “113 X Non-Voting Member Notices for Worimi LALC as at 11/10/2004”
– all information contained within the columns headed “DOB”, “St No”, “St Name” and “Suburb”.

1. The Respondent’s determination is varied.

2. The Respondent is to grant Ms Parkinson access to the documents it has identified as falling within the scope of these applications with the exception that it is to refuse to grant access to the information itemised in paragraph [76] of these reasons.