Place v Department of Finance, Services and Innovation (No 2)

[2018] NSWCATAD 220

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Place v Department of Finance, Services and Innovation (No 2) [2018] NSWCATAD 220
Hearing dates:	7 March 2018
Date of orders:	18 September 2018
Decision date:	18 September 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	K Ransome, Senior Member
Decision:	1   The decision under review is varied to the extent that page 12 of the letter dated 22 February 2016 from Warwick Norris to the Building Professionals Board is to be released to the applicant.  2   The decision under review is otherwise affirmed.
Catchwords:	ADMINISTRATIVE LAW – government information – response to a complaint – prejudice to legitimate business interests – prejudice supply of confidential information – prejudice effective exercise of agency’s functions – prejudice the detection or investigation of a possible contravention of the law – personal factors - motive
Legislation Cited:	Building Professionals Act 2005 Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009
Cases Cited:	Alexander v University of Sydney [2008] NSWADT 214 Attorney-General’s Department v Cockcroft (1986) 10 FCR 18 Camilleri v Penrith City Council [2012] NSWADT 196 Commissioner of Police v Camilleri [2012] NSWADTAP 19 Donnellan v Ku-ring-gai Council [2013] NSWADT 115 Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 Hurst v Wagga Wagga City Council [2011] NSWADT 307 Leech v Sydney Water Corporation [2010] NSWADT 298 Macquarie University v Howell (No 2) [2009] NSWADTAP 19 Pemberton v Macquarie University [2014] NSWCATAD 76 Place v Department of Finance, Services and Innovation [2016] NSWCATAD 278 Robinson v Department of Health [2002] NSWADT 222 Williams v Department of Industry and Investment [2012] NSWADT 192
Category:	Principal judgment
Parties:	Anthony Glen Place (Applicant) Department of Finance, Services and Innovation (Respondent)
Representation:	Applicant in person Fair Trading Legal Services (Respondent)
File Number(s):	2017/00288031
Publication restriction:	Section 64 of the Civil and Administrative Tribunal Act 2013 applies to the material filed by the respondents on a confidential basis, to those paragraphs of these reasons identified as [Not for publication], to the evidence given in private before the Tribunal and to the record of that part of the proceedings conducted in private pursuant to s 49. That material is not to be released to either the applicant or to the public.

REASONS FOR DECISION

1. In 2015 the applicant, Dr Anthony Place, made a complaint to the Building Professionals Board against an accredited certifier, Mr Warwick Norris of Urban Approvals Pty Ltd. The complaint made certain allegations against Mr Norris in relation to the approval and construction of a development adjoining Dr Place’s property in Emu Plains. The complaint was finalised in November 2016.

2. Dr Place has made three applications under the Government Information (Public Access) Act 2009 (GIPA Act) seeking access to a range of documents relevant to his complaint. This is the third of those applications. The vast majority of the documents sought by Dr Place have now been released to him. In this application, Dr Place is seeking access to a letter written by Mr Norris dated 22 February 2016 addressed to the Building Professionals Board which was Mr Norris’s response to the complaint made by Dr Place. Page 8 of the 12 page letter has been released to Dr Place as have all the documents which were attached to the letter.

3. The decision that was made by the respondent was to refuse to deal with the application because it had already decided previous applications in relation to the same information and was of the view that there were no reasonable grounds for believing a different decision would be made (ss 58 and 60 GIPA). The issue before me, however, is whether the correct and preferable decision is that there is an overriding public interest against disclosure of any or all the remaining pages of the letter from Mr Norris.

4. At the outset I note that the respondent does not object to the release of page 12 of the letter which does no more than list the attachments which have previously been released to Dr Page.

Legislation

5. The objects of the GIPA Act as set out in s 3 is to open government to the public. This is done by authorising and encouraging the proactive release of information by agencies and by giving members of the public an enforceable right to access government information. Access to government information is to be restricted only when there is an overriding public interest against disclosure.

6. It was not disputed that the information the subject of this application is government information that is held by an agency: s 4(1) of the GIPA Act.

7. There is a presumption in favour of the disclosure of government information unless there is an “overriding public interest against disclosure”: s 5 of the GIPA Act.

8. There is a general public interest in favour of disclosure of government information: s 12 GIPA Act. However, there can be an overriding public interest against disclosure. Section 13 of the GIPA Act sets out the test that is to be applied in determining whether there is an overriding public interest against disclosure:

13   Public interest test

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

9. The public interest considerations against disclosure are set out in a Table in s 14 of the GIPA Act, and, as relevant, are discussed below.

10. A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the principles set out in s 15 of the GIPA Act which provides as follows:

15   Principles that apply to public interest determination

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

(a) Agencies must exercise their functions so as to promote the object of this Act.

(b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner.

(c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.

(d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.

(e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.

11. In determining whether there is an overriding public interest against disclosure of government information, the personal factors of the applicant may be taken into account: s 55 of the GIPA Act.

The hearing

12. The respondent presented its case first at the hearing, as is the usual practice. The respondent relied upon the documentary material filed by it in the proceedings, including an affidavit by Mr Sean Fagan who is Manager Complaints Investigations at the Building Professionals Board. Mr Fagan also gave evidence at the hearing.

13. Dr Place also relied upon documents he had provided to the Tribunal in support of his application.

Confidential hearing

14. A confidential session was held in the absence of the applicant and the public. The confidential session gave the Tribunal an opportunity to examine the letter and a further confidential document provided by the respondent in the presence of the respondent. This process is provided for in s 107 of the GIPA Act.

15. I made an order under s 64 of the Civil and Administrative Tribunal Act 2013 that the material filed by the respondents on a confidential basis and the record of that part of the proceedings conducted in private are not to be released to either the applicant or to the public. The order also applies to those portions of these reasons identified as [Not for publication].

The issues before the Tribunal

16. In deciding whether or not to release the letter, the task of the Tribunal is first, to identify the public interest considerations in favour of disclosure. Secondly, to identify the public interest considerations against disclosure. Specifically, this will require me to determine whether the letter contains information which, if released, would give rise to a public interest against disclosure on the grounds that release could reasonably be expected to:

1. prejudice any person’s legitimate business, commercial, professional or financial interests (s 14, Table 4(d);

2. prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions (s 14, Table 1(d));

3. prejudice the effective exercise by an agency of the agency’s functions (s 14, Table 1(f)); and

4. prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law (s 14, Table 2(b)).

17. Thirdly, I must determine the weight of the public interest considerations in favour of disclosure and of those against disclosure in order to determine where the balance between those interests lies. The personal factors referred to in s 55 may also be taken into account in this process. These are:

1. the applicant’s identity and relationship with the other person;

2. the applicant’s motives for making the access application and

3. any other factors particular to the applicant.

Public interest considerations in favour of disclosure

18. Section 12 of the GIPA Act sets out the general presumption in favour of disclosure of government information and lists examples of public interest considerations that favour disclosure. Both parties referred to the statutory presumption and are in general agreement that the public interest considerations in favour of disclosure can be broadly summarised as follows:

• disclosure will enable the public to ascertain whether complaints are being dealt with properly and transparently; and

• disclosure will further the accountability, responsibility and openness of the government.

19. I agree with the parties’ characterisation of the public interest considerations in favour of disclosure.

Public interest considerations against disclosure

20. Each of the considerations against disclosure set out in the table to s 14 of the GIPA Act have the requirement that disclosure of the information could reasonably be expected to have the nominated effect.

21. The words “could reasonably be expected to” are to be given their ordinary meaning (Attorney-General’s Department v Cockcroft (1986) 10 FCR 180). In that case, Bowen CJ and Beaumont J explained, at 190, that the words:

... require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like.

22. In Leech v Sydney Water Corporation [2010] NSWADT 298 the Tribunal referred to a number of cases which had considered the term “could reasonably be expected to” and stated at [25]:

“[25] … 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: Searle Australia Pty Ltd v PIAC.”

23. The public interest considerations against disclosure require an objective assessment as to whether the claimed effects could be expected to arise. This is ultimately a question of fact to be established to the relevant standard of proof, on the balance of probabilities (Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42].

Table 4(d) consideration

24. The respondent states that release of the balance of the letter could reasonably be expected to prejudice the business interests of Mr Norris. The respondent notes that Mr Norris objects to the release of the information and submits that its release could reasonably be expected to:

• result in the information being available to the world at large;

• increase the volume of material publicly available in relation to the Applicant’s complaint and its response;

• make publicly available the personal views of Mr Norris;

• cause damage to the professional reputation of Mr Norris and his company, Urban Approvals Pty Ltd

• cause potential clients of Mr Norris and Urban Approvals Pty Ltd to seek the services of other certifiers; and

• cause financial and personal detriment to Mr Norris.

25. In an earlier application by Dr Place seeking information held by the respondent, Professor G Walker, Senior Member, found that disclosure of the information then sought, and which included the letter the subject of this application, could reasonably be expected to prejudice Mr Norris’s legitimate business, commercial, professional or financial interests (Place v Department of Finance, Services and Innovation [2016] NSWCATAD 278). That decision was made before the investigation of Dr Place’s complaint had been concluded, but the respondent submits that it remains appropriate in the circumstances for this Tribunal to continue to give substantial weight to the factors outlined in Table 4(d).

26. Dr Place submits that there is no evidence how the release of the information contained in the remaining 11 pages of the letter could reasonably be expected to prejudice any person’s legitimate business, commercial, professional or financial interests. He submits that this is particularly the case where the respondent has already released other information, including internal reports and the Building Professionals Board’s response to the complaint, which summarise Mr Norris’s response to the allegations raised in his complaint. He also points out there is no evidence directly from Mr Norris of any prejudicial effect of release of the information on his business.

27. [Not For Publication]

28. In my view, the fact the complaint has now been finalised does not alter the characteristics of the information provided by Mr Norris and sought by Dr Place. It is apparent that Mr Norris objects to the release of the information and, as Professor Walker noted in Place, there is other relevant evidence to indicate that releasing his response to the complaint, which would place the entire matter in the public domain, could be expected to exacerbate damage done to Mr Norris’s business and professional reputation by publication of the complaint itself.

29. I therefore find that disclosure of the information could reasonably be expected to prejudice Mr Norris’s legitimate business, commercial, professional or financial interests.

Table 1(d), 1(f) and 2(d) considerations

30. It is useful to deal with these considerations together as they are related matters concerning the Building Professional’s Board effective investigation of complaints. The respondent submits that release of the information could reasonably be expected to:

• prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions (Table 1(d));

• prejudice the effective exercise by an agency of the agency’s functions (Table 1(f)); and

• prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law (Table 2(d)).

31. As the Appeal Panel set out in Commissioner of Police v Camilleri [2012] NSWADTAP 19 at [26], an assessment of the considerations against disclosure as set out in the Table to s 14 require consideration at “a broader operational level” rather than “considerations connected with the particulars of the instant situation”.

32. The Building Professionals Board is required under the Building Professionals Act 2005 to investigate all complaints made about the holder of an accreditation (s 27). The purpose of an investigation of a complaint is to determine whether disciplinary action should be taken against a certifier.

33. The Act has provisions which give it quite extensive coercive powers in relation to investigations (ss 48-51); there are offence provisions for obstructing investigations and limitations on self-incrimination for persons required to provide evidence (ss 58 and 59); disciplinary hearings are conducted in private (s 30); confidential information can be excluded from any statement of decision made by the Building Professionals Board which is provided to the complainant (s 32); and a general provision in s 83 regarding the disclosure or misuse of information obtained in connection with the administration or execution of functions under the Act.

34. As Dr Place points out, the Building Professionals Act has no strict confidentiality requirement concerning an accredited person’s response to a complaint. Furthermore, in two letters sent to Mr Norris by the Building Professionals Board during its investigation asked Mr Norris to note that “any comments” he made “may be conveyed to the complainant”. In these circumstances, Dr Place submits there can be no implication that information was received in confidence.

35. Dr Place also refers to the fact that all the attachments to the letter from Mr Norris, have now been released, as has page 8 of the letter. He states that, in circumstances where the respondent has released most of the information contained in Mr Norris’s response, it cannot now argue that any further release would prejudice the supply to it of confidential information.

36. Mr Sean Fagan gave evidence about how the Building Professionals Board fulfils its investigative function. He states that, once a complaint is received, access to the information, including submissions and other information received from a certifier, is restricted to the relevant investigator or investigators appointed to investigate the information received, and their managers. The information is retained on files maintained by the Building Professionals Board, access to which is restricted on a “need to know only” basis. Generally, that access is limited to the appointed investigator and his or her managers.

37. Mr Fagan gave evidence that he cannot recall any occasion where a copy of a response to a complaint by a certifier has been made available to the complainant. He said that, in his experience, attachments to a response are sometimes released, but not the response itself. He said that the letters sent to Mr Norris which indicated information may be provided to a complainant were standard letters sent in all investigations.

38. The issue of whether the response was provided to the Building Professionals Board in confidence was canvassed at length in Place and the Senior Member reached the conclusion that it and the attachments to the letter were indeed provided in confidence, although he did note that the attachments included some documents or pieces of information that may have been released.

39. I see no reason to disturb the finding that was made by the Senior Member in the previous case and also refer to the cases set out in paragraphs 124 to 127 of those reasons for decision.

40. The fact that the attachments have now been released to Dr Place does not change the previous conclusion that the letter itself was provided in confidence. The attachments are historical, factual documents relied upon by Mr Norris in making his response to the complaint. By its very nature, the letter is a much more nuanced document containing views, statements and opinions about the matters raised by the complainant. I am satisfied that, despite the statement contained in the standard letters, there was a general understanding that the information was provided in confidence.

31. In order to fall within the considerations against public disclosure in 1(d), 1(f) and 2(b) of the Table to s 14, there must be prejudice of the sort described in the relevant consideration.

32. In relation to the consideration now set out in 1(d) of the GIPA Act, the Appeal Panel in Macquarie University v Howell (No. 2) [2009] NSWADTAP 19 at [10] stated:

In our view, the Tribunal is required to engage in a relatively abstract analysis. The Tribunal needs to characterise the nature of the material sought to be protected on the present occasion; identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; and consider the extent to which guarantees of confidentiality may be necessary. It is then necessary to evaluate the effect on the agency’s ability in future to obtain similar information.

43. While 1(f) and 2(b) do not refer to confidential information, they are also concerned with the prejudice that release of information could reasonably be expected to be caused to the effective exercise of an agency’s functions or, in this case, detection or investigation of a possible contravention of the law.

44. The respondent submits that the information sought by Dr Place was provided to the Building Professionals Board by Mr Norris to enable the Building Professionals Board to consider Dr Place’s complaint, his response and any evidence in support of that response.

45. Mr Fagan’s evidence was that, to reach the correct outcome an investigation needs the co-operation of the certifier in explaining their conduct and the context and rationale behind it. It is his belief that, if certifiers understood that their response to a complaint would be released to persons outside the Building Professionals Board, they would be reluctant to make submissions in response to a complaint or would make brief, circumspect submissions only.

46. In Robinson v Department of Health [2002] NSWADT 222 at [71], the Tribunal held that the effectiveness of an agency’s investigative functions depend on the co-operation of those who have information relevant to the investigation. This in turn may depend on the information they provide being kept confidential, if that is legally possible. The Tribunal found that disclosure of information obtained confidentially could reasonably be expected to have a substantial adverse effect on the effective performance by an agency of the agency’s functions.

47. In Alexander v University of Sydney [2008] NSWADT 214 at [33]-[35] the Tribunal considered reasons put forward by the University why it endeavours to maintain confidentiality of information obtained, in that case, in regard to allegations of employee misconduct. The Tribunal accepted evidence that if confidentiality could not be guaranteed many people within the University would be much more reluctant to come forward with information or concerns and this in turn would adversely affect the ability of the University to conduct investigations. Similar conclusions were reached by the Tribunal in Williams v Department of Industry and Investment [2012] NSWADT 192.

48. Dr Place sought to distinguish the above cases from the present matter, but, in my view, the principles underlying the consideration of the factual circumstances in those cases remain apposite.

49. Mr Fagan’s evidence was to the effect that, if certifiers were not to provide full and candid responses to complaints, investigations would be prolonged as further investigations would need to be conducted or, alternatively, a matter would have to be decided in a vacuum without the benefit of the certifier’s response.

50. I am satisfied that, in general, release of responses by certifiers to complaints made against them (when those certifiers had a reasonable expectation their response would be treated confidentially) could reasonably be expected to have the adverse effects as submitted by the respondent. I find that considerations 1(d), 1(f) and 2(b) have been established in relation to remaining pages in the letter (with the exception of page 12 which the respondent rightly conceded should be released to the applicant).

Determining where the public interest balance lies and s 55 considerations

51. I have found that each of the public interest considerations against disclosure relied upon by the respondent is present in this case. These are to be balanced against the public interest considerations in favour of disclosure as set out above.

52. Balancing the competing public interest considerations is “a question of fact and degree, requiring the weighing of competing matters, and a task that is not amenable to mathematical calculation” (Hurst v Wagga City Council [2011] NSWADT 307 at [70]).

53. In determining where that balance lies the Tribunal is entitled, under s 55 of the GIPA Act, to take into account the personal factors of the application, namely:

1. the applicant’s identity and relationship with any other person;

2. the applicant’s motives for making the access application; and

3. any other factors particular to the applicant.

54. These factors can be taken into account as matters either favouring access or as factors against providing access. Personal factors of the applicant which are a factor against providing access can only, however, be taken into account in relation to clauses 2 to 5 of the Table to s 14. In this case, they are relevant therefore to matters under 2(b) and 4(d), but not to clause 1 considerations. Under s 55(6), the Tribunal is under no obligation to inquire into, or verify, claims made by an applicant or any other person about the personal factors, but is entitled to have regard to evidence or information provided by them.

55. Matters concerning s 55 were also raised in Place. In that case, the Tribunal made findings that while Dr Place, as owner of the adjoining property, has a personal interest in ensuring that the development on the subject land complies with applicable regulations and that approval processes are carried out in a proper and transparent manner, and that this is a factor which favours release of the information, other factors militated against disclosure.

56. The Tribunal found, after considering the evidence, that an acrimonious and protracted dispute existed between Dr Place, his neighbour, the Building Professionals Board and Mr Norris which was relevant to the question of motive and relationship under s 55. The Tribunal pointed to both open and confidential evidence to support this finding. The evidence included voluminous correspondence from Dr Place, foreshadowed further access applications by him and that Dr Place had recorded telephone conversations with the certifier without his knowledge or permission. The Tribunal concluded that the dispute was likely to continue and be exacerbated by release of (in that case) the remaining items of information.

57. In this application, Dr Place states that there is no long running dispute between him and Mr Norris or his neighbour whose property he adjoins. He states he has had no contact with his neighbour or Mr Norris for some years. He also states that he has shown a rational approach during his utilisation of various avenues to express his concerns. He strongly disputes the findings made in Place which he states were made without an opportunity for him to rebuff any allegations against him.

58. In this application, the respondent refers to the evidence which was considered by the Tribunal in Place and drew attention to a website which Dr Place admits he established and which, as at the date of the hearing, was still live. The website is about his complaint against Mr Norris.

59. The respondent referred to the copy of the decision in Place which is contained on that website. It appears that initially the Tribunal published the decision and in error included in paragraph [173] of the reasons for decision material which the Senior Member has specifically ordered not be published. The material was redacted in the final published version following representations made by the respondent. It appears Dr Place was made aware of the error shortly after it was published in 2016, however, the unredacted version of the decision remained on his website, at least until the date of the hearing.

60. The respondent submits that Dr Place was well aware of the Tribunal’s order that the material not be published but did so anyway and continued to leave the material on his website. The respondent submits that this is a matter which goes towards the s 55 considerations.

61. Dr Place states the website has limited visibility as he has to give someone the address for them to be able to access the site. He states that he will remove the material from the site.

62. [Not For Publication]

63. [Not For Publication

64. [Not For Publication]

65. The respondent submits that no evidence has been provided by Dr Place to contradict the findings which were made in Place and that the s 55 considerations weigh heavily against disclosure. The respondent notes that the development was approved in 2012 and Dr Place’s complaint against Mr Norris was finalised in 2016. However, Dr Place has continued to make further access applications and his website still exists. The respondent submits that these matters suggest that Dr Place’s motives for seeking access are more personal than he sets out in his submissions.

66. In Camilleri v Penrith City Council [2012] NSWADT 196 and Pemberton v Macquarie University [2014] NSWCATAD 76 the Tribunal considered the applicants’ motives for their access applications. In each case the Tribunal held that disclosing the information was likely to exacerbate the acrimony or personal tension between the applicant and other persons and was a matter which weighed heavily against disclosure.

67. While s 55 provides that motives are relevant to the issue of determining where on balance the public interest lies, as was stated in Donnellan v Ku-ring-gai Council [2013] NSWADT 115 at [60], that motive must be established on reliable evidence and not by mere assertion. The evidence provided in these proceedings satisfies me that Dr Place’s motives in seeking access to the information in question go far beyond a keen and legitimate interest in the proper investigation of complaints and government accountability. I agree with the assessment previously made by the Tribunal that there exists a protracted and acrimonious dispute between Dr Place, his neighbour and Mr Norris. Even though Dr Place has stated he has not spoken with his neighbour or Mr Norris for some time, his conduct indicates that the dispute is likely to continue and, in my view, would be exacerbated by release of the balance of the letter (except for page 12). I therefore find that the s 55 personal factors add substantial weight to the 2(b) and 4(d) considerations against disclosure.

68. In weighing up the public interest considerations for and against disclosure, I find the respondent's evidence and submissions are sufficiently persuasive for it to have discharged its onus under s 105 of the GIPA Act. I find that overall the public interest considerations against disclosure, on balance, outweigh the public interest considerations in favour of disclosure.

Costs

69. Dr Place sought his costs of the proceedings. There is no basis upon which costs can be awarded as he has been largely unsuccessful in his application.

Orders

1. The decision under review is varied to the extent that page 12 of the letter dated 22 February 2016 from Warwick Norris to the Building Professionals Board is to be released to the applicant.

2. The decision under review is otherwise affirmed.

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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: 18 September 2018