Pedestrian Council of Australia v North Sydney Council

[2014] NSWCATAD 80

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Pedestrian Council of Australia Limited v North Sydney Council [2014] NSWCATAD 80

Hearing dates:

On the papers

Decision date:

17 June 2014

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

1. The decision under review is set aside insofar as it relates to Document 1. In its place the decision is made that Document 1 is to be released to the Applicant.

2.The decision under review is affirmed insofar as it relates to Document 2.

Catchwords:

Government information - public interest considerations against disclosure - information publicly disclosed - sufficiency of search

Legislation Cited:

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

Cases Cited:

Battin v University of New England [2013] NSWADT 73.
Camilleri v Commissioner of Police [2013] NSWADT 80
Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.
Leech v Sydney Water Corporation [2010] NSWADT 298
Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98
Robinson v Director General, Department of Health [2002] NSWADT 222

Category:

Principal judgment

Parties:

Pedestrian Council of Australia Limited (Applicant)
North Sydney Council (Respondent)

Representation:

H Scruby, (Applicant's Agent)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

133186

reasons for decision

1. This matter was commenced in the General Division of the Administrative Decisions Tribunal ("the ADT") pursuant to the Administrative Decision Tribunal Act 1997 ("the ADT Act"). On 1 January 2014, the ADT was abolished and its functions were taken over by the Civil and Administrative Tribunal of New South Wales ('NCAT'). The present decision is therefore a decision of NCAT. However, because the proceedings to which it relates are 'part heard proceedings' as defined in clause 6(1) of Schedule 1 of the Civil and Administrative Tribunal Act 2013, they are to be determined as if that Act had not been enacted (see clause 7(3)(b) of this Schedule).

Background

1. The Pedestrian Council of Australia Limited ("the Applicant") applied to North Sydney Council ("the Council" or "the Respondent ") under the Government Information (Public Access) Act 2009 ("the GIPA Act") seeking access to information held by the Council. The access application lodged by the Applicant's Chairman/CEO, Mr Harold Scruby, was in the following terms:

We seek copies of any reports, emails, letters, memos, file notes or general data.

1. Copy of email correspondence and replies from [an identified senior Council officer] to Jacqueline Deas on or about 7 July 2004 entitled Subject: Re: Is this OK? Harold Scrobbie

2. Copy of the response (same date) to Rangers from Ms Deas mentioning "Mr Scrobbie" and time-frames

3. Copy of email from [an identified senior Council officer] and replies on 5 Jan 2005, to: All-Parking Services and Rangers referring to me as Mr Scrubby

4. Copy of email from [an identified senior Council officer] and replies Date: 29/04/2008 16:27 regarding the number of PINs issued in NB (Neutral Bay)

5. On or about 9 March 2005 - [an identified senior Council officer] allegedly attended Harold Scruby's residential address in Mosman during work hours with a Ranger Supervisor. Apparently he was "staking out" my home for some yet unknown reason. Apparently the matter was reported to Council and there was an investigation. We seek copies of any and all reports, emails, letters, memos, file notes or general data, relating to this matter. We seek information detailing what action, if any, was taken by Council against a senior employee, and his accomplice, who apparently, during working hours, drove outside the North Sydney Council municipality and acted unlawfully outside his authority.

6. We seek copies of any and all reports, emails, letters, memos, file notes [an identified senior Council officer] and his staff have made about Harold Scruby and or the Pedestrian Council of Australia, in particular, any disparaging, belittling or defamatory remarks, or where he attempts to make fun of my name or me or the PCA."

1. The Council undertook searches in relation to the requested information and a number of documents were identified as falling within the scope of the access application. The Council also conducted consultations in regard to some of the information that was identified. The determination was made by Ms Denise Highton, the Council's Document Management Services Manager. The determination found that some of the requested information was already available, that it did not hold a significant amount of the requested information and that there was an overriding public interest against disclosure of some of the information sought.

1. The Applicant requested that the Office of Information Commissioner ("the OIC") review of the Council's determination. The OIC recommended that the Council reconsider the access application, undertake new searches for the information and make a new decision in response to the OIC's recommendation.

1. The reconsideration was undertaken by Mr Ross McCreanor, the Council's Director of Corporate Services and Public Officer.

1. The Applicant applied to the Tribunal for review of Mr McCreanor's determination.

1. As a result of planning meetings held in the Tribunal the application for review was narrowed to two documents.

(a)   Letter to Penny Holloway from the NSW Local Government, Administrative Energy, Airlines and Utilities Union dated 22 August 2008 ("Document 1").

(b)   Email from [an identified senior Council officer] to all parking services and rangers on 29 April 2008 ("Document 2").

1. Neither of these documents was located at the time of Ms Highton's determination or Mr McCreanor's redetermination. The Applicant provided copies of Documents 1 and 2 to Mr Merlino, the solicitor appearing for the Council, leading to the Council's agreement to undertake further searches and determine an application for access for Documents 1 and 2.

1. After further searches the Council located Document 1. The Respondent was unable to locate Document 2.

1. Mr McCreanor determined that there is an overriding public interest against disclosure of Document 1. However, based on the copy of Document 2 provided by the Applicant, there would be an overriding public interest in favour of disclosure for Document 2.

1. The Applicant has applied to this Tribunal for review of the Council's further determination. It seeks access to Document 1 and an explanation as to why Document 2 cannot be found or a finding as whether the searches undertaken are sufficient.

1. The parties agreed that the matter should be determined on the papers without the need for a hearing. I agreed with that position.

Applicable legislation

1. The Tribunal's function on review under section 63 of the ADT Act is to make the correct and preferable decisions having regard to the material before it before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.

1. The applicable provisions of the GIPA Act have been considered in a number of decisions of this Tribunal. For a summary of the GIPA Act provisions see the decision of Judicial Member Molony in the matter of Battin v University of New England [2013] NSWADT 73.

1. The objects of the GIPA Act are set out in section 3(1) -

In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:

(a) authorising and encouraging the proactive public release of government information by agencies, and

(b) giving members of the public an enforceable right to access government information, and

(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.

1. 'Government information' is given a wide meaning (section 4) being 'information contained in a record held by an agency.' 'Agency' is also defined in section 4. It includes "(c) a public authority." Public authority is in turn defined in Clause 2 of Schedule 4 to mean, among other things, "a body (whether incorporated or unincorporated) established or continued for a public purpose by or under the provisions of a legislative instrument". The Council is an agency to which the GIPA Act applies.

1. The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (section 5). Applicants for access to government information have a legally enforceable right to be provided with access to that information, unless there is an overriding public interest against disclosure (section 9). The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the 'overriding secrecy laws' that are set out in Schedule 1 (section 11). Schedule 1 sets out information concerning which it is conclusively presumed that there is an overriding public interest against disclosure (section 14(1)).

1. With respect to other government information, the Act establishes a principle that there is pubic interest in favour of disclosure (section 12(1)). Section 12(2) says that public interest considerations in favour of disclosure are not limited. It provides -

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

1. There will only be an overriding public interest against disclosure when the public interest test in section 13 is satisfied. It provides -

There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

1. In considering whether there is an overriding public interest against disclosure section 16 provides that the following principles apply -

(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 public interest considerations against disclosure are limited to those set out in the Table to section 14. Section 14(2) provides that -

The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

1. The Council contends that the considerations against disclosure of Document 1 found in clauses 1(d), 1(g), 1(h), 3(a) and 3(f) of the table to section 14 of the GIPA Act are relevant to Document 1. Those clauses relevantly provide:

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

...

(g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence,

(h) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).

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,

...

f) expose a person to a risk of harm or of serious harassment or serious intimidation,

...

1. Persons aggrieved by reviewable decisions have a number of options available to press their access applications. First, they may ask the agency to conduct an internal review. A decision made on internal review is a reviewable decision. A person aggrieved may seek a review by the Tribunal (section 100). When this provision is read with section 38 of the ADT Act, they confer jurisdiction on the Tribunal to review reviewable decisions under the GIPA Act.

1. In any review of a reviewable decision section 105 places the burden of justifying the decision on the agency concerned.

1. Section 107 sets out the procedure to be followed by the Tribunal in dealing with public interest considerations. It relevantly provides -

(1) In determining an application for ADT review, the ADT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure.

(2) On an ADT review, the ADT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of the ADT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.

...

1. I have removed the name of a council officer who was referred to in Document 1 to avoid disclosing information for which the Council contends that there is an overriding public interest against disclosure.

The Council's Case

1. The Respondent relies on the Affidavit evidence of Mr McCreanor. Mr McCreanor has annexed a number of documents to the Affidavit providing a document trail in relation to searches undertaken and the making of the determination. He also attached a number of policy documents that were referred to in the affidavit. Mr McCreanor was not required for cross-examination.

1. The Council's solicitors also provided written submissions in support of its case.

Searches Undertaken

1. In his Affidavit Mr McCreanor provided the following account of the searches undertaken for Documents 1 and 2 (cross-references omitted):

Council maintains a system of records and information. That system of records is managed through the use of a computer software system that is designed to manage and maintain the information. That software system is called ECM-DataWorks. I am familiar with the types of documents and information it is required to hold on behalf of the Council. I am also familiar with the manner in which ECM-DataWorks operates. ...

In order to locate Documents 1 and 2 I undertook searches within ECM-DataWorks using a specialised searching software program called iFerret. This program is a powerful searching tool that allows searches to be undertaken across a significant amount of information held by the Council.

I located Document 1 in ECM-DataWorks as document number 4259167. This Document was classified as a highly confidential employee document and access to it was restricted to those staff included in its distribution, namely the General Manager (Penny Holloway), Director of Corporate Services (Kerry Gilbert who has since retired) and the Human Resources Manager (Karen Ireland).

I have undertaken a search using ECM-DataWorks of the history of users who have accessed Document 1. I have also made enquiries of the persons to whom access was granted to Document 1. I state that those persons who have accessed Document 1 have not provided a copy of Document 1 to the applicant.

The Application for Review also states that Document 1 was provided to the Applicant "in confidence". I am not aware of how Documents 1 and 2 were provided to the Applicant nor by whom. They were not provided to him by the Council.

I have concluded that Document 1 was provided to the applicant in breach of Council Policy and otherwise unlawfully.

In relation to locating Document 2 I undertook my own searches using the iFerret searching application using the following search terms being terms found within Document 2:

(a) Pedestrian and 29/04/2008;

(b) Pedestrian Council;

(c) 29/04/2008 16:27;

(d) Find 26 PINS;

(e) H.S. is right;

(f) PINForxe.

From my knowledge of the iFerret application the typographical error in the search term PINForxe provided a powerful search term. Despite the search terms used I was unable to locate Document 2.

I also instructed the following persons at Council to undertake searches to locate Document 2:

(a) Council's Manager of Document Management Services; and

(b) Council's Manager of Information Technology.

Document 2 was unable to be located.

Document 1

1. In regard to Document 1 Mr McCreanor stated (cross-references omitted)::

Confidentiality of Document 1

One of the roles of the Manager for Document Management Services is to assess the level of confidentiality that applies to information managed and held by the Council. When assessing the level of confidentiality the Manager for Document Manager Services also determines who should or should not have knowledge and/or access of a document.

After applying this process to Document 1 the Manager for Document Manager Services marked it "highly confidential" in ECM-DataWorks in order to ensure that confidentiality of Document 1 was maintained.

It is clear that the terms of Document 1 require that the matter be kept strictly confidential. Document 1 was provided to the Council in confidence.

Document 1 relates to unsupported allegations regarding the behaviour of a Council employee and contains personal information. ....

I refer to Council's Confidentiality of Employee Information Policy and state that Document 1 would form part of two Council employee's Personal Files and is required to be kept confidential in accordance with that Policy.

Document 1 contains confidential information as defined in the Confidentiality of Employee Information Policy.

1. Mr McCreanor annexed a copy of the Council's Confidentiality of Employee Information Policy to his Affidavit. In relation to the decision not to disclose Document 1 he stated:

I have explained my reasons for not disclosing Document 1 in the Notice of the Third Decision appearing at annexure H to this my affidavit. In my opinion disclosure of Document 1 is reasonably expected to found an action against Council for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence.

In my role as Director of Corporate Services, maintaining confidentiality of employee's personal files is essential to facilitating the effective exercise of the Council's functions and continuing the supply of that confidential employee information.

In the circumstances of this case, it was necessary for the Council to exercise its functions of responding to and investigating the unsupported allegations made in Document 1, on the basis that the allegations and the persons making them remained confidential.

In my opinion disclosure of Document 1 is reasonably expected to prejudice the conduct, effectiveness or integrity of any investigation into the allegations made in Document 1 by the Council.

For the reasons explained in my [Notice of the Third Decision] and the reasons in this my affidavit the public interest considerations against disclosure of Document 1 outweigh those in favour and the document should not be disclosed.

1. Mr McCreanor annexed a copy of the Notice of the Third Decision to his Affidavit. In relation to the decision not to disclose Document 1 and in favour of disclosure of Document 2, the Notice stated:

Public interest considerations in favour of disclosure

Under section 12(1) of the GIPA Act, there is a general public interest in favour of disclosing government information. Section 12(2) of the GIPA Act notes some examples of other public interest considerations in favour of disclosure. Whilst I have not limited my considerations to those matters in deciding your application I have nevertheless considered them as well as the other considerations set out in this decision.

In terms of Item 1 (Letter to Penny Holloway from the NSW Local Government, Administrative, Energy, Airlines & Utilities Union dated 22/8/2008), Point 19 clearly identifies Mr Scruby and contains an allegation that [an identified senior Council officer], a Council Officer had conducted and directed improper behaviour towards Mr Scruby.

Therefore with reference to parts 2 (d) & (e) of Section 12, weight can be given to disclosing part (or all) of this document.

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

2 (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.

In terms of Item 2 (copy of Email from [an identified senior Council officer] to all parking services and rangers on 29/4/2008 regarding Mr Scruby), Mr Scruby is identified through a combination of "Pedestrian Council" and "H. S.". There is also sufficient information within the document that goes to suggesting the organisations approach to parking enforcement and to the relationship between council staff and Mr Scruby.

Therefore with reference to parts 2 (b) & (d) of Section 12, weight can be given to disclosing part (or all) of this document.

2 (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.

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

...

Public Interest considerations against disclosure

When applying the public interest test, the only public interest considerations against disclosure that I can take into account other than the conclusive presumptions set out in Schedule 1 to GIPA Act are those set out in the Table to section 14 of the GIPA Act. To show that they are relevant to the information you asked for, I need to consider whether they could reasonably be expected to have the effect outlined in the table.

In terms of Item 1, I have identified the following considerations against disclosure as being relevant to your application:

As this information reveals personal details of [an identified senior Council officer] that were provided to Council in confidence and deals with a number of allegations, then as per 1(g) & 3(a) these can be matters for consideration for non-disclosure. The document sought clearly identifies their (the Union and the union member) requirements to keep this matter "strictly confidential" and in my judgement, the effect of disclosure could reasonably be expected to breach this confidence and reveal personal information.

In addition and further strengthening the case for non-disclosure, releasing this information could reasonably be expected to prejudice any further investigative conduct around this matter [Consideration 1(h) of the Table]. It also appears to me that future court proceedings could be prejudiced as well as the potential to expose persons to serious harm and intimidation [Consideration 3 (c) & (f) of the Table].

Table: 1 (g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence

Table: 1 (h) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).

Table: 3 (a) reveal an individual's personal information,

Table: 3 (c) prejudice any court proceedings by revealing matter prepared for the purposes of or in relation to current or future proceedings,

Table: 3 (f) expose a person to a risk of harm or of serious harassment or serious intimidation

In terms of Item 2, I have not identified any considerations of real significance against disclosure based under section 5 of the GIPA Act, where there is a presumption in favour of disclosing government information unless there is an overriding public interest against its disclosure.

Consultation

In relation to Item 1, some of the information you have asked for includes information that is of a personal nature as defined in section 54 of GIPA Act.

If I were to consider releasing part or all of this information based on balancing the public interest test, then I would need to undertake consultation with respect to a number of third parties as required under section 54 of the GIPA Act before considering the release of such information. If this consultation was to occur with the third parties, [an identified senior Council officer] would be included in that process and would be contrary to the request from Mr Scruby for privacy.

Notice of Decision

During this process, I would be considering the public interest provisions of the Act and the balancing of the public interest as required by the Act.

In relation to Item 2, no such consultation would be required.

Balancing the public interest test

I have considered the relevant public interest considerations in favour of and against disclosure of the information you requested.

In relation to Item 1 (Letter to Penny Holloway from the NSW Local Government, Administrative, Energy, Airlines & Utilities Union dated 22/8/2008), weight can be given to releasing part (or all) of this information given that the information is of a personal nature as found under Section 12(2)(d). The information is personal information of the person to whom it is to be disclosed.

In contrast, the considerations for non-disclosure, especially in terms of Section 14 considerations 1(g) and 3(a) to the Table, where the information was provided in confidence and was personal, on balance carry even more weight for non-disclosure than for disclosure. In addition if disclosure were determined to be appropriate, then that would necessitate consultation (under section 54 of GIPA Act) with all the third parties, including [an identified senior Council officer]. This would result in Council being unable to maintain Mr Scruby's request for privacy.

In relation to Item 2 (Email from [an identified senior Council officer] to all parking services and rangers on 29/4/2008 regarding Mr Scruby) and relying on the copy provided by Mr Scruby, the weighting in favour of disclosure far exceeds that of non-disclosure.

Having weighed up the considerations for both Items 1 and 2, I have decided that there is

· an overriding public interest against disclosure for Item 1 and

· an overriding public interest for disclosure for Item 2 (relying on the copy provided by Mr Scruby).

The Council's Submissions

1. The Council relies on the considerations against disclosure of Document 1 found in clauses 1(d), 1(g), 1(h), 3(a) and 3(f) of the table to section 14 of the GIPA Act. The Council submits that Document 1 should not be released for the following reasons

(a)   The public interest considerations against disclosure override those in favour of disclosure

(b)   Document 1 is expressly stated to be in confidence

(c)   Council's policies require the information to be dealt on a confidential basis

(d)   If the Council is required to release Document 1 then it will no longer have the same capacity to effectively investigate and manage such issues

(e)   If the Council is required to release Document 1 then it will be exposed to possible proceedings from the NSW Local Government, Administrative Energy, Airlines and Utilities Union for breach of confidence

(f)   If the Council is required to release Document 1 then it would certainly result in the disclosure of information provided to the Council in confidence

(g)   Disclosure of Document 1 would reveal an individual's personal information of two Council employees.

1. In support of those contentions, the Council relies on the following submissions (cross-references omitted):

Prejudice supply of confidential information - Clause 1(d)

The GIPA Act states that there is a public interest consideration against disclosure if disclosure could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's function"

Whether a disclosure will prejudice should be understood in the context of its ordinary meaning "to cause detriment or disadvantage or "to impede or derogate from".

Under the GIPA Act, the determining question is whether, as a question of fact, the information is confidential. In determining the question of confidential information the following principles have been developed through the right to information legislation

(i) The confidential quality of communications is a question of fact,

(ii) To establish its confidential quality, information must have been supplied under an express or implied pledge of confidentiality,

(iii) The confidential quality of the information may be inferred from the nature of the relationship between the informer and person informed,

(iv) The confidential quality of the information must be determined in the light of all of the circumstances of the particular case

Disclosure of Item 1 could reasonably be expected to prejudice the supply of confidential information in relation to employee information which includes in the circumstances of this case complaints and grievances made in respect of employee actions The supply of such confidential information is essential to the implementation of an effective management of employees and their information in the workplace

It is necessary for the Council to employ persons in order to carry out its functions set out in the Local Government Act 1993 as well as other legislation such as Environmental Planning and Assessment Act 1979 and Protection of the Environment Operations Act 1997

If Item 1 is disclosed, the effective exercise of Council's functions would be diminished because employees would be less willing to provide information in relation to their employment and come forward with complaints about other employees' actions.

The Respondent submits that Item 1 is a confidential document based on the following facts

(a) Item 1 is expressly stated to be kept Strictly Confidential.

(b) In accordance with Council's Confidentiality of Employee Information Policy, Item 1 forms part of two Council employees' Personal Files which are required to be kept confidential in accordance with that Policy.

(c) The Council attributed and maintained Item 1 in its system as a confidential document, granting access to 3 people on its document management system.

(d) Item 1 is the result of a Council employee approaching her union to make a complaint about another Council employee The union has then raised the matter with the Council on a confidential basis.

In Robinson v Director General, Department of Health [2002] NSWADT 222 at [71] the Tribunal found that

If information obtained confidentially is provided to an applicant under the FOI Act, then that disclosure could reasonably be expected to have a substantial adverse effect on the effective performance by an agency of the agency's functions

The Respondent submits that Item 1 contains expressly confidential information and to disclose it would reasonably be expected to prejudice the supply of confidential information that facilitates the effective exercise of Council's function.

Has the information contained Item 1 been disclosed?

In Camilleri v Commissioner of Police [2013] NSWADT 80 the Tribunal held:

It is important to consider at the outset whether the information sought by the Applicant has already been disclosed. If information in a record has already been disclosed, it cannot then be "revealed" as defined in cl 1 of Schedule 4 GIPA Act, by giving access under the GIPA Act Nature Conservation Council of NSW v Department of Trade and Investment, Regional Infrastructure and Services [2012] NSWADT 195

...

The issue for consideration is not whether the document, or in this case, recording, has been publicly disclosed, but whether the information contained therein has been publicly disclosed see Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98.

It is submitted that although Item 1 has been provided to the applicant in part, its provision is not disclosure to the applicant for the following reasons:

Clause 1 of Schedule 4 of the GIPA Act provides that:

"disclose" information includes make information available and release or provide access to information.

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

The applicant has stated in the Application for Review filed in the Tribunal that Item 1 was provided to him in confidence.

The Council further submits that Item 1 was provided to the applicant by an unlawful disclosure because those persons who had access to Item 1 have not provided it to the applicant. Item 1 was provided to the applicant in breach of the following Council policies:

(a) Confidentiality of Employee Information Policy,

(b) Access to Council Information Policy,

(c) Record Keeping Plan of Management, and

(d) Collection and Recording of Information Policy

Despite this possible breach of confidence, Item 1 has not been publicly disclosed nor has it lost its confidential nature. In Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 Mason J adopted the statement of principle that confidential information improperly or surreptitiously obtained, on the one hand, and information imparted in confidence on the other, are treated as species of the same genus.

The Respondent therefore submits that Item 1 remains confidential and has not been revealed or publicly disclosed in accordance with the GIPA Act because any such disclosure to the applicant was unlawful and in confidence to the applicant in any event.

In so far as there is an alternative argument that the copy of Item 1 provided to the Applicant was redacted such that only part of the document was disclosed to the Applicant, the Respondent submits that that part of Item 1 provided to the applicant is the only part of the document that could have possibly been disclosed The Respondent however relies on the arguments above such that Item 1 has been unlawfully provided to the applicant such that it has not been disclosed in accordance with the GIPA Act

Clause 1(g) - found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence

The Respondent repeats its submissions with respect to Item 1 being provided to the Council in confidence as referred to in regard to Clause 1(d).

If as a matter of fact, Item 1 is confidential in nature, then disclosure could reasonably be expected to found an action against the Council for breach of confidence or otherwise result in the disclosure of information provided to the Council in confidence.

Clause 1(h) - prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).

The Respondent repeats its submissions above regarding the interpretation of the word 'prejudice'.

The Respondent submits that disclosure of Item 1 will prejudice the conduct, effectiveness or integrity of any audit review or investigation by the Council in relation to the matters raised in Item 1.

It is submitted that disclosure of Item 1 would reveal the purpose of any investigation and any further investigation in relation to the complaints made about the Council employee concerned in Item 1. Such disclosure could reasonably be expected to prejudice any such investigation because those investigations must be carried out in thorough and unbiased manner.

Disclosure of Item 1 could reasonably be expected to create bias in the way that any further investigations regarding the allegations in Item 1 are carried out.

Clause 3(a) - Disclosure of the information could reasonably be expected to reveal an individual's personal information

Personal information is defined in clause 4 of Schedule 4 of the GIPA Act

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

(2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics.

(3) Personal information does not include any of the following:

(a) information about an individual who has been dead for more than 30 years,

(b) information about an individual (comprising the individual's name and non-personal contact details) that reveals nothing more than the fact that the person was engaged in the exercise of public functions,

(c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause.

It is submitted that disclosure of Item 1 will reveal personal information relating to two Council employees.

As set out in the Notice of Decision, in order to preserve the confidence of the Access Application from Mr [an identified senior Council officer] he was not consulted on the release of any personal information that relates to him.

Clause 3(f) - exposing a person to a risk of harm, serious harassment or intimidation.

The GIPA Act provides that there is a consideration against disclosure of information if disclosure could reasonably be expected to "expose a person to a risk of harm or of serious harassment or serious intimidation".

It is submitted that for the purposes of this consideration, harm means injury, damage, hurt and includes psychological harm as well as physical.

The Respondent submits that disclosure of Item 1 could reasonably be expected to expose a council employee to a risk of psychological harm by revealing information about grievances between Council employees.

It is submitted that such a risk is more than mere irritation, annoyance, unease or discomfort.

Balance between the considerations for and against disclosure

It is submitted that the balance between the considerations for and against disclosure of Item 1 should weight in favour of not disclosing Item 1.

Item 1, as a matter of fact:

(a) Is clearly confidential information;

(b) Has not been publicly disclosed;

(c) Has been provided to the Applicant unlawfully in breach of both confidence and a number of Council policies.

Disclosure of Item 1 is reasonably expected to:

(a) Reveal personal information;

(b) Found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence;

(c) Prejudice the supply of confidential information to the Respondent;

(d) Prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed.

In the Respondent's submissions the above considerations against disclosure clearly outweigh those in favour of disclosure. Disclosure will prejudice the ability of Council to efficiently and thoroughly deal with employee information and issues in an unbiased manner.

The Applicant's Case

1. Mr Scruby appeared on behalf of the Applicant. He provided written submissions in support of the Applicant's case seeking disclosure of Document 1 and a finding in relation to the adequacy of the search for Document 2.

1. In regard to Document 1 he asserted that in attempting to obtain a copy of the document the Applicant provided a virtually perfect description of the document including the date, sender, recipient and content. Nevertheless the Council continued to deny its existence. The Council finally located the document after the application to the Tribunal and the second meeting with the Council's solicitors.

1. Mr Scruby submits that Document 1 contains very serious and perhaps criminal allegations and that there has been a very serious and possibly illegal cover up. He contends that the document suggests that on 10 March 2005, two Council officers staked out his house, in a municipality completely outside of their jurisdiction and authority, for the purpose of obtaining details of Mr Scruby's registration so that they could be booked at a later date.

1. Mr Scruby further asserted that one of those Council officers subsequently booked him for a No Stopping offence. He stated that following his representations, the Office of State Revenue confirmed that he did not have to pay the penalty and apologised for the inconvenience the matter had caused.

1. In relation to Document 1, Mr Scruby stated that he has evidence regarding action by Ms Penny Holloway in response to the allegations. However, he has not produced that evidence to the Tribunal. He asserts that the Document 1 was addressed to Ms Holloway and he clearly described the letter and its date in the initial GIPA application. He submitted that it is therefore impossible that Ms Holloway was unaware of the matter, or the letter which was sent to her. Nevertheless the Council continued to deny its existence.

1. Mr Scruby submitted that there can be no doubt that this was to protect one of those Council officers and the reputation of the Council.

1. Mr Scruby further submitted that the GIPA Act states that there is a presumption towards the release of information. There can be no doubt that there is an overriding and overwhelming public interest in this matter. He says that it concerns his privacy, victimisation and intimidation and possible criminal behaviour by a senior Council officer. But now, it also concerns deliberate cover-up by senior employees of North Sydney Council and probable offences relating to the GIPA Act.

1. The Applicant therefore requests that this document be released.

1. In relation to Document 2, Mr Scruby submitted that the Council's inability to find that email (or many others that the Applicant requested) in spite of the fact that it was sent to ALL parking officers and rangers, points towards serious maladministration and deception by a senior Council officer and further protection and cover-up by senior management.

1. He submitted that it follows that there can be no doubt there is an overriding and overwhelming public interest in releasing this document.

Discussion

1. As noted above, the issues have been narrowed to two disputed documents. In relation to Document 2 the Council's evidence is that despite the searches that were undertaken, the document could not be located. The issue for determination by the Tribunal is whether the searches undertaken by the Council to try to locate the document were adequate.

1. The Tribunal's jurisdiction is limited to that set out in the GIPA Act. Mr Scruby contends that the inability to locate the document suggests serious maladministration within the Council. However, it is not for this Tribunal to comment on maladministration or allegations of corruption unless this raises issues that fall within the Tribunal's jurisdiction. For example, section 112 of the GIPA Act provides for the Tribunal to bring a matter to the attention of the relevant Minister if it forms the view that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under the GIPA Act:

1. Mr Scruby contends that the application suggests conduct within the Council such as protection and cover-up by senior management, but he does not assert that this is related to a function conferred by the GIPA Act. In my view this is not the correct forum to raise those issues.

Document 2

1. I accept that there is some merit in the Applicant's argument that Document 2 should be held by the Council. Nevertheless, it has not been identified by the searches that were undertaken. This may well be a function of adequacy of the Council's record keeping and/or search capacity but I have no evidence to support a finding in that regard. I note however that the Council was unable to locate Document 1 though its initial searches and that document may well have never been located had the Applicant not provided a copy to the Council. This resulted in considerable delay in locating Document 1.

1. I have set out above Mr McCreanor's evidence in regard to the searches undertaken by the Council. While Mr Scruby has raised concerns about the adequacy of the searches, he has not suggested other searches that might have revealed the document.

1. What constitutes a sufficient search will vary with the circumstances. In my view, the initial searches that were undertaken were not adequate. Clearly, the searches failed to locate a document that was held and was ultimately located. However, on the basis of Mr McCreanor's evidence I am no longer concerned that that is the case. I am satisfied on the evidence that has been presented that the searches ultimately undertaken were reasonable, sufficient and adequate.

1. I have no evidence on which I can form a view as to why Document 2 could not be located by the searches undertaken. Neither party has suggested additional searches that might locate it. In my view, it is improbable that any further search would locate the document. If the Council does not hold the document, it is possible that it has been destroyed or misplaced - either deliberately or accidently. If the Council does hold the document but is simply unable to locate it, the explanation may be that the document is archived in a way that is not able to be searched readily. Alternatively, it may be that the Council's record keeping and search capability is inadequate.

1. I accept the Council's view, based on the copy of Document 2 provided by the Applicant, that there would be an overriding public interest in favour of disclosure for Document 2.

1. No purpose would be served by requiring the Respondent to do any more searches. The decision in regard to Document 2 is therefore affirmed.

Document 1

1. As noted above, the Council ultimately located Document 1 after the Applicant provided it with a copy. This again points to the inadequacy of the Council's initial searches.

1. The Council has determined that Document 1 should not be released. It maintains this position notwithstanding that the Applicant holds a copy of the document. The Council argues that the Applicant obtained that copy in breach of confidence and presented evidence to show that the Council had not authorised for the copy to be given to the Applicant.

1. In his affidavit Mr McCreanor stated:

18. I located Document 1 in ECM-DataWorks as document number 4259167. This Document was classified as a highly confidential employee document and access to it was restricted to those staff included in its distribution, namely the General Manager (Penny Holloway), Director of Corporate Services (Kerry Gilbert who has since retired) and the Human Resources Manager (Karen Ireland).

19. I have undertaken a search using ECM-DataWorks of the history of users who have accessed Document 1. I have also made enquiries of the persons to whom access was granted to Document 1. I state that those persons who have accessed Document 1 have not provided a copy of Document 1 to the applicant.

1. Mr McCreanor did not elaborate on the enquiries that he made to satisfy himself that the persons to whom access was granted have not provided a copy of Document 1 to the applicant. There is no evidence from Penny Holloway, Kerry Gilbert or Karen Ireland to confirm that they did not provided a copy of Document 1 to the Applicant. There is no evidence to show whether any of those persons provided a copy of Document 1 to any other officer within the Council who might have passed it on to the Applicant.

1. I have no evidence in regard to how the Applicant obtained the copy of Document 1. Mr McCreanor stated

I am not aware of how Documents 1 and 2 were provided to the Applicant nor by whom. They were not provided to him by the Council.

1. This statement suggests that it is not clear from the face of Document 1 that the copy held by the Applicant was in fact obtained from the Council.

1. I have not been given a copy of Document 1 and I am therefore unable to ascertain whether the copy held by the Applicant was in fact obtained from the Council. If the Applicant obtained the document from the NSW Local Government, Administrative Energy, Airlines and Utilities Union, it is possible that that Union authorised the release of the copy held by the Applicant.

1. In Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98 Judicial Member Molony considered the question of where the burden lies in regard to establishing whether or not information has been publicly disclosed. He stated at paragraph [40]:

It is important to note that the definitions of 'government information', 'personal information', and 'reveal' in the GIPA Act operate on information alone, not, as was the case under the Freedom of Information Act 1989, with respect to documents. The issue for consideration is not whether the document has been publicly disclosed, but whether the information they contain has been publicly disclosed. The effect of s 105(1) is to place the burden, of establishing that a decision with respect to an access application is justified, on the agency. In circumstances such as the present, that burden includes establishing that release under the GIPA Act could reasonably be expected to reveal an individual's personal information. Where there is material indicating that the information has already been publicly disclosed, that burden requires the agency to establish that it was not.

1. I agree with this view. The burden is on the Council to establish that the information in Document 1 has not been publicly disclosed. The Council could have provided the Tribunal with a copy of the document, if that would be conclusive of its origin, or it could have called evidence from the Union to establish that the copy of the document held by the Applicant was in fact obtained in breach of confidence. It has not done so.

1. In my view there is material indicating that the information in Document 1 has already been publicly disclosed. The Council has failed to establish that it was not. I therefore find as a fact that Document 1 has been publicly disclosed.

Public interest considerations against disclosure

1. The public interest considerations against disclosure are limited to those set out in the Table to section 14 of the GIPA Act. As noted above, the Council has asserted that the disclosure of the information in Document 1 "... could reasonably be expected to have .... the effect" outlined in clauses 1(d), 1(g), 1(h), 3(a) and 3(f) of the table to section 14.

1. The principles for the interpretation of "could reasonably be expected" have been discussed in a number of decisions. In Leech v Sydney Water Corporation [2010] NSWADT 298 I stated at paragraph [25]:

25 The term 'could reasonably be expected' has been considered in a number of cases. The words have their ordinary meaning: Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163. The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived

1. Because the Council bears the onus of justifying its decision to refuse the Applicant access to the information, it has the burden of establishing that the public interest considerations against disclosure it relies on apply. It also bears the burden of establishing that, on balance, they outweigh the public interest considerations in favour of disclosure.

1. I have considered the arguments raised by the parties and I have weighed the public interest considerations for and against disclosure as set out above. In my view, the considerations against disclosure are outweighed by the fact that Document 1 has been publicly disclosed.

1. The Applicant has had a copy of Document 1 for around two years. In circumstances where the information in Document 1 has already been publicly disclosed, I do not accept that the release of the information to the Applicant could reasonably be expected to have any of the asserted effects.

1. I note however, that had the Council been able to satisfy me that Document 1 had not been publicly disclosed, I would have accepted the Council's arguments in regard to the application of clauses 1(d), 1(g) and 3(a) of the table of section 14 of the GIPA Act. Given the time that has passed, I do not accept that release of the document could reasonably be expected to prejudice the conduct effectiveness of integrity of any investigation or to expose a person to a risk of harm, serious harassment or intimidation.

1. Nevertheless, from the finding I have made that Document 1 has already been publicly disclosed, IT follows that the decision in regard to Document 1 should be set aside. In its place the decision should be made that Document 1 is to be released to the Applicant.

Order

(1)   The decision under review is set aside insofar as it relates to Document 1. In its place the decision is made that Document 1 is to be released to the Applicant.

(2)   The decision under review is affirmed insofar as it relates to Document 2.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 17 June 2014