Richards v Clarence Valley Council

[2009] NSWADT 243

CITATION:	Richards v Clarence Valley Council [2009] NSWADT 243
DIVISION:	General Division
PARTIES:	APPLICANT Andrew John Richards RESPONDENT Clarence Valley Council
FILE NUMBER:	083299
HEARING DATES:	15 May 2009 and 7 August 2009
DATE OF DECISION:	22 September 2009
BEFORE:	Molony P - Judicial Member
CATCHWORDS:	Freedom of Information Act - Access to documents - internal working documents
LEGISLATION CITED:	Freedom of Information Act 1989 Companion Animals Act 1988
CASES CITED:	Bennett v University of New England [2000] NSWADT 8 Harris v Australian Broadcasting Corporation (1983) 78 FLR 236 Hutchinson v Warrumbungle Shire Council [2009] NSWADT 187 IPART v Services Sydney Pty Ltd (GD) [2008] NSWADTAP 79 Kerr v Roads & Traffic Authority (No 2) [2006] NSWADT 310 McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 O'Sullivan v Victoria Police [2005] VCAT 532 Schelbaum (No 3) v Director General, Department of Community Services [2002] NSWADT 128 Van de Wall v University of Sydney [2008] NSWADT 213 General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84
REPRESENTATION:	APPLICANT In person RESPONDENT P Salem, solicitor
ORDERS:	The matter is remitted to the Council for reconsideration in accordance with these reasons.

REASONS FOR DECISION

Background

1 On 2 July 2007 rangers from the Clarence Valley Council, in the company of a local police officer and an officer of the RSPCA, entered a property owned by Mr Richards in pursuit of a number of Pit Bull dogs owned by him. They purported to do so, without a warrant, under powers contained in s 69A of the Companion Animals Act 1988, over his objections. Mr Richards told them that all of his dogs were dead and pointed to what he said were a number of graves. They required him, under s 69B, to open the graves so that they could verify, by scanning the dog’s micro-chips, that the remains were those of his animals. He had opened one grave when, as a result of information received, the focus of their search switched from Mr Richard’s property to one of owned by a friend of his.

2 At the friend’s property Mr Richard’s dogs were found. They were seized and subsequently destroyed.

3 In the period since then Mr Richards has had substantial contact with officers of the Council, in his pursuit of justice for himself and his animals. The Council says that this was at times abusive and threatening, and caused its officers to become concerned as to their and their families welfare. The Council also says that its officers have been threatened by Mr Richards and his friend.

4 On 15 July 2008 Mr Richards made application to the Council under the Freedom of Information Act 1989 for access to information relating to is interactions with the Council concerning his dogs and the events leading up to and surrounding that entry and search, and subsequently.

5 On 30 July 2008 the Council general manager wrote to Mr Richards advising that in the light of this ‘abusive, aggressive and intimidating’ conduct that all future contact with the Council was to be in writing.

6 On 5 August 2008 the Council identified 19 documents relevant to Mr Richards request and determined to give him access to 14 of them. The remaining documents were:

- Item 13 – Diary extracts from Council officers dated 25 and 26 June 2007.
- Item 14 – Diary extracts from Council officers dated 5 October 2006, 24 November 2006, 27 and 28 February 2007, 1 March 2007, 2 April 2007, 9 May 2007, 15 June 2007, 28 June 2007, 7 November 2007, 15 January 2008, 11 and 12 June 2008, 27 June 2008, 2 to 4 July 2008, and 10 and 11 July 2008.
- Item 15 – Four internal Council emails dated 17 March 2008, 4 June 2008, 3 July 2008 and4 July 2008.
- Item 17 – Internal Council emails dated 5 July 2008.
- Item 19 – A DVD recording of the events that occurred on 2 July 2007.

7 Items 13, 14, and one paragraph of item 17 were released to Mr Richards with deletions, on the basis that the deletions contained information which did not relate to matters about which access was being sought, or ‘personal information about individuals’ (cl. 6 of Sch 1 of the Freedom of Information Act 1989).

8 The balance of Item 17 and Item 15 were not released on the ground that they were internal working documents (cl. 9 of Sch 1 of the Freedom of Information Act 1989) which contained ‘opinions, advice or recommendations made for the purpose of making decisions and it is considered, on balance, that it would be contrary to the public interest to release them.’ Access was also refused to an email from the Gold Coast Council on the basis that the information was confidential material (cl. 13 of Sch 1 of the Freedom of Information Act 1989) because ‘it was obtained in confidence and the release of that information could reasonably be expected to prejudice the future supply of information to Council. It is also considered that it would not be in the public interest to provide access to this document.’

9 With respect to Item 19, the DVD, access was refused on the basis that:

‘… this recording falls within the following exemptions:
(a) legal professional privilege (Clause 10 refers) — the recording was made for the dominant purpose of legal proceedings,
(b) it is an internal working document as it has been recorded for the secondary purpose of assisting Council in its decision making process (Clause 9 applies), and
(c) it contains personal information about third parties (Clause 6 applies).’

10 On 26 August 2008 Mr Richards sought an internal review of that decision. On 8 September 2008 the decision was affirmed on internal review. With respect to the DVD the internal review officer advised:

‘Should no legal proceeding arise, Council will release the DVD to yourself, though I understand that there is an outstanding notice issued against you and at the time of this review I was unable to obtain information as to whether it had been paid.’

11 On 3 October 2008Mr Richards filed an application for external review of that decision in this Tribunal.

12 On 11 March 2009 in proceedings arising from the raid on his property Mr Richards saw the DVD at the Local Court.

13 As the application progressed through the Tribunal’s processes the Council’s position with respect to Item 19 changed. Rather than relying on the exemptions claimed on internal review for the DVD, the Council claimed that release of the DVD could reasonably be expected to endanger the life or physical safety of any person (cl. 4(1)(c) of Sch 1 of the Freedom of Information Act 1989) and opposed its release.

14 With respect to Items 13, 14, and one paragraph of item 17, the Council maintained its position with respect to the relevance of the information, but did not rely on the personal affairs exemption.

15 With respect to the balance of Item 17 and Item 15 the Council maintained its reliance on the internal working documents exemption but did not press the confidential information exemption.

16 The issues to be determined in this case are therefore:

- First, whether the information deleted from Items 13, 14, and paragraphs of item 17, fall within the scope of Mr Richards' request, or are irrelevant to it.
- Secondly, with respect to Item 19 – the DVD – whether its release could reasonably be expected to endanger the life or physical safety of any person.
- Thirdly, with respect to the balance of Item 17 and Item 15, whether their release would disclose any opinion, advice or recommendation that was obtained or prepared in the course of, or for the purpose of, the decision-making functions of the Council and would, on balance, be contrary to the public interest.

17 Importantly, s 61 of the Freedom of Information Act 1989 provides that the burden of establishing that the determination is justified lies on the agency.

Irrelevance

18 When responding to an application for access to information an agency need only produce those parts of a document that are responsive to the application: Schelbaum (No 3) v Director General, Department of Community Services [2002] NSWADT 128 at [20] and Kerr v Roads & Traffic Authority (No 2) [2006] NSWADT 310 at [8-9].

19 I have examined Items 13, 14, and the paragraphs of Item 17 which were deleted from the redacted copies supplied to Mr Richards. With three exceptions, all of which relate to diary entries in Item 14, I am satisfied that the deleted material relates to matters and persons entirely unrelated to Mr Richards and his dogs. They are not relevant to Mr Richards’s request and were properly deleted.

20 The three deletions from diary entries in Item 14 relate to diary entries for 24 November 2006, 28 February 2007 and 15 June 2007. Each contains material relevant to and responsive to Mr Richards’s request. I infer that two of them may have originally been deleted in purported reliance on the personal affairs exemption, but note that no such reliance was maintained before me.

21 The first deleted entry (24 November 2006) is a single line entry immediately before the disclosed entry commencing, “AT PARKER ROAD…” It relates to and is pertinent to that disclosed entry.

22 The second deleted entry (28 February 2007) is the last two lines of the last entry on that page, immediately following the words “breed assessor” in the disclosed entry above it. It relates to and is pertinent to that disclosed entry.

23 The third deleted entry (15 June 2007) consists of the last 5 lines of the entry immediately before the words, “off duty – ‘WHAT A DAY’. It relates to and is pertinent to the disclosed entry above it, and is relevant to Mr Richards’s request.

The DVD

24 The DVD is of the ‘raid’ conducted on Mr Richards’s property on 2 July 2008 and, partially, of the subsequent events at his friend’s property. I have viewed it in full. Unfortunately the recording does not show the date and time of recording, so it is not possible to determine the time when the events depicted occurred. There is an apparent, unexplained, but I suspect, short gap in the recording of events which occurred at Mr Richards’s property.

25 Clause 4 of Schedule 1 relevantly provides:

‘(1) A document is an exempt document if it contains matter the disclosure of which could reasonably be expected:
…
(c) to endanger the life or physical safety of any person, or
(2) A document is not an exempt document by virtue of subclause (1):
(a) if it merely consists of:
(i) a document revealing that the scope of a law enforcement investigation has exceeded the limits imposed by law, or
…
(iv) a report prepared in the course of a routine law enforcement inspection or investigation by an agency whose functions include that of enforcing the law (other than the criminal law), or
(v) a report on a law enforcement investigation that has already been disclosed to the person or body the subject of the investigation, and
(b) if disclosure of the document would, on balance, be in the public interest.

26 Section 4 of the FOI Act defines document to include ‘any disc, tape or other article from which sounds, images or messages are capable of being reproduced.’ The DVD of the raid is therefore a document for the purposes of cl. 4. Whether or not it is also a report to which cl. 4(2)(iv) and (v) could apply is not so clear, as there is no definition of the word ‘report’ in the Act.

27 Clause 4 is found in Part 1 of Schedule 4 which relates to restricted documents (see the definition of restricted document in s 4). Section 57 makes specific provisions with respect to the consideration of restricted documents. It provides:

(1) The Tribunal may, on the application of the review applicant, consider the grounds on which it is claimed that a document is a restricted document, but only if the document is not subject to a Ministerial certificate.
(2) In any proceedings under this section, the Tribunal is, on the application of the Minister administering this Act, or the agency or Minister concerned, to receive evidence and hear argument in the absence of:
(a) the public, and
(b) the review applicant, and
(c) if in the opinion of the Tribunal it is necessary to do so to prevent the disclosure of any exempt matter the review applicant’s representative.
(3) If the Tribunal is not satisfied, by evidence on affidavit or otherwise, that there are reasonable grounds for the claim, it may require the document to be produced in evidence before it.
(4) If, after considering any document produced before it, the Tribunal is still not satisfied that there are reasonable grounds for the claim, the Tribunal is to reject the claim when determining the review application.
(5) The Tribunal is not to reject the claim unless it has given the Minister administering this Act a reasonable opportunity to appear and be heard in relation to the matter.
(6) For the purposes of any proceedings under this section, the Minister administering this Act is a party to the proceedings.

28 In this case, as soon as I became aware that the Council was seeking to rely on a restricted document exemption I required the Council to give notice to the Premier, as the Minister administering the Act. There has been no appearance made on his behalf.

29 There is no Ministerial certificate to which ss (1) applies. The Tribunal is therefore free to consider the grounds on which the claim of exemption is made.

30 The Tribunal’s role when carrying that task was clarified by the Appeal Panel in IPART v Services Sydney Pty Ltd (GD) [2008] NSWADTAP 79. In such circumstances s 57 requires that the Tribunal determine whether it is satisfied that there are ‘reasonable grounds for the claim’ of exemption. If so satisfied, the Tribunal’s inquiry is to go no further. If not so satisfied, after considering the document, the Tribunal is to reject the claim. As the Appeal Panel pointed out in IPART (at [42]) this procedure does ‘not permit the Tribunal to engage in full merits review.’ As a result there is ‘no scope’ for the Tribunal to exercise its residual discretion with respect to such reviews: IPART at [46].

31 The Appeal Panel in IPART followed the decision of the High Court in McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423. There the High Court considered the role of the Commonwealth AAT when reviewing a Ministerial Certificate to the effect that disclosure would be against the public interest. Section 58(5) under the Freedom of Information Act 1982 (Cth) provided that the Tribunal was to determine ‘whether there exist reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest.’ Hayne J, said, at [55]:

‘…Its task is to answer the statutory question: are there reasonable grounds for the claim that disclosure would be contrary to the public interest?’

32 At [63] he said:

‘In deciding whether reasonable grounds exist for a claim, the Tribunal must take account of any relevant evidence that has been adduced and of any relevant arguments that have been advanced. It must consider the particular claim that has been made and that will require consideration (and commonly the examination) of the particular documents that are in question.’

33 Heydon and Callinan JJ agreed. At [131] they said:

‘…. It does follow, as the majority in the Full Court effectively held, that if one reasonable ground for the claim of contrariety to the public interest exists, even though there may be reasonable grounds the other way, the conclusiveness will be beyond review. It is important to notice that the statutory language does not give an entitlement to access if there are, as often there may very well be, reasonable grounds for the revelation of the document in the public interest. It further follows that the Tribunal is not obliged to undertake a balancing exercise of the kind the appellant submits it was bound to do. The role of the Tribunal in the circumstances of, and on the basis of the statutory language governing this case, is not to undertake a full merits review of the kind contemplated by s 43(1) of the AAT Act. Whether therefore, the only practical and real means of attacking a conclusive certificate will be by demonstrating that there are no reasonable grounds in fact, or that the grounds relied on are so unreasonable that no reasonable person could hold the opinions upon which they are based, does not arise for decision in this appeal.’

34 The Council submitted that the last sentence of that passage suggested, without deciding the issue, ‘two possible bases for establishing “reasonable grounds.”’ I do not accept that proposition. To accept it would leave s 61 of the FOI Act with no effect. It expressly stipulates that the burden of establishing that the determination is justified lies on the agency. In the context of s 57 this means that the agency bears the burden of showing that there is a reasonable ground for the exemption claimed.

35 In this case that burden requires the Council to establish that there are reasonable grounds for the claim that the disclosure of the DVD could reasonably be expected to endanger the life or physical safety of any person. The persons whose life or physical safety the Council says would be imperilled are ‘the officers of the Respondent’ (the Council’s submissions at [23]). The Council relies on the decision of Morris J in O'Sullivan v Victoria Police [2005] VCAT 532 made under sections 31(1)(d) and (3) and 33(1) of the Freedom of Information Act 1982 (Vic). There, the Council submitted, the Tribunal:

‘… considered the character of the document sought to be released in all of the circumstances of the case. The VCAT determined that in circumstances where the Applicant in that case had made a threatening statement towards the Victorian Police, irrespective of whether or not the Applicant was serious or not, the effect of his words made the police officers feel less safe and, as a consequence, their physical safety was endangered and refused to release the document.’

36 The documents in that case were extracts from the Victoria Police’s primary relational base, in which operational and intelligence data, including the names of those who had accessed that data and when that access took place, could be found. Mr O’Sullivan sought access to documents which would enable him to identify when and by whom Police records relating to him had been accessed. Mr O’Sullivan had a substantial criminal record including convictions for possessing ammunition without a licence, assault with a weapon and stalking. There was evidence before the Tribunal that Mr O’Sullivan had a hatred for the Police and had told a Senior Police officer that, ‘I would track police down who I considered were harassing me.’ Mr O’Sullivan told the Tribunal that he enjoyed taking the micky out of Police, and had been doing so to the Senior Police officer. Morris J found that no matter what Mr O’Sullivan’s intention, the effect had been to intimidate. His Honour continued, at [19-20]:

‘19. That effect of his conduct is relevant because the relevant test in section 31(1)(e) requires a focus upon the impact on the persons engaged in law enforcement. Focusing on those persons, as opposed to focusing upon the motives of Mr O’Sullivan, I pose the question whether the disclosure of the names of those persons would be reasonably likely to endanger their physical safety. I have commented in another context that physical safety is not just about actual safety. Bell v Boroondara City Council [2003] VCAT 1694. Physical safety is also about the perception that one is safe. The case in question ironically was a town planning case, far removed from the present one, which concerned the provision of lighting in a public park. A contention was put that public lighting would not improve the safety of people using the park. But I concluded that it would improve the safety of people using the park because it would make them feel safer even if, as a matter of fact, it made absolutely no difference to the crime rate.

20. Thus, even if contrary to my finding Mr O’Sullivan was only intending to tease and was not intending to intimidate, his actions have had the effect of intimidating; and that effect leads me to find that the disclosure of the names of the police officers who have accessed the LEAP database would endanger the physical safety of those persons because it would make them feel less safe.’

37 In Mr Richard’s case the Council has led a body of evidence in relation to Mr Richards’s conduct towards its officers, both before and after the ‘raid’ on his premises, which, if accepted, demonstrates that he has consistently verbally abused, harassed, threatened and intimidated its officers. At best, it shows Mr Richards as a persistent, annoying man, who believes himself to have been grievously wronged, and who has harried Council officers about that wrong to the point where he has been forbidden contact with them, other than in writing. Mr Richards certainly perceives himself as the latter, although he may question to use of the word annoying. He sees the actions of the Council’s officers as unlawful, and believes they have been manipulated as part of a greater conspiracy against him by former officers of the Gold Coast Council. He denies abusing or intimidating Council officers, but sees his ongoing contact with them in the light of his pursuit of justice for himself and his dogs. He denies he is a danger to anybody. There is certainly no evidence, as there was in O’Sullivan, of Mr Richards having a substantial or concerning criminal record.

38 For the purposes of the present discussion I intend to take that evidence at its best or highest from the Council’s perspective and proceed on the basis that Mr Richards has verbally abused, harassed and intimidated its officers.

39 What is abundantly clear from all the material is that Mr Richards is well aware of the identity and work location of all the officers whose life and personal safety the Council says are endangered. Indeed, it was apparent during the course of the hearing, as it is on the DVD, that he is on first name terms with many of them. That being the case, the fact that release of the DVD would reveal the identity of those officers to Mr Richards is not a reasonable grounds for the claim that the disclosure of the DVD could reasonably be expected to endanger their lives or physical safety. This is more so, when one considers that Mr Richards has already seen the DVD in Court proceedings following the raid. Moreover, the Council is prepared to allow Mr Richards to view the video again at its premises.

40 The Council also points to the dangers of disclosure to Mr Richards’s friend, who it seeks to portray as a ‘bikie’ with all the adverse connotations that description can carry. It relies on evidence that the friend participated in the abuse, harassment and intimidation of its officers. This too is denied. Again, taking that evidence at its best or highest from the Council’s perspective, the reality is that the friend’s property was visited on the day concerned by most of the officers who attended the raid on Mr Richards’s property. He knows who was there. This is apparent from the DVD in which he is shown with them all around him. If he needed any clarification as to their identities, no doubt he could ask Mr Richards. That being the case, the fact that release of the DVD would reveal the identity of those officers to the friend is not a reasonable grounds for the claim that the disclosure of the DVD could reasonably be expected to endanger their lives or physical safety.

41 There is no doubt that ‘a reasonable ground’ can be advanced for supporting the contention that the physical safety of the Council officers is endangered by Mr Richards, especially if one follows the decision in O’Sullivan with regards the effect of conduct being intimidating, irrespective of the intention. Whether or not I agree with that reasonable ground is immaterial for the purposes of the present discussion.

42 The difficulty that confronts the Council in this case is that that is not the test. The test is whether there are reasonable grounds for the claim that the disclosure of the DVD could reasonably be expected to endanger the life or physical safety of any person. The Council submissions do not directly address the question of how disclosure of the DVD could be reasonably expected to put them in peril.

43 That the DVD would disclose the identity of the Council’s officers to Mr Richards and his friend, as was the case in O’Sullivan, is not a reasonable ground as the evidence establishes that their identities are already known.

44 A concern raised by the officers, in their evidence, was that if the DVD is released to Mr Richards he might put it up on the internet, exposing their identities more generally and making them potential targets of ridicule and harassment. While I understand and have some sympathy for those concerns, this does not provide a reasonable ground for the claim that the disclosure of the DVD could reasonably be expected to endanger their lives or physical safety. Such an outcome is entirely speculative.

45 Out of fairness, I note that Mr Richards denied that he would make such a use of the DVD, if disclosed.

46 The Council did not in submissions or evidence advance any other reasonable ground.

47 It follows that I am not satisfied that there are reasonable grounds for the claim that the disclosure of the DVD could reasonably be expected to endanger the life or physical safety of any person.

48 I add that were that not the case, and there were reasonable grounds for the claim that the release of the video would endanger the life or physical safety of any person, then the DVD would not be an exempt document by virtue of cl 4(2)(a)(iv) and (b).

49 It is uncontroversial that the DVD was prepared in the course of a routine law enforcement inspection or investigation by an agency (the Council) whose functions include that of enforcing the law (other than the criminal law). To satisfy the requirements of cl. 4(2)(a)(iv) the DVD must be ‘merely’ a report within the meaning of the FOI Act. The Council submitted that the word ‘report’ connotes a written document, and that the DVD therefore did not satisfy the requirements of that sub clause. I disagree. The Macquarie Dictionary On Line offers the following relevant definitions of report:

‘noun 1. an account brought back or presented; a statement submitted in reply to inquiry as the result of investigation, or by a person authorised to examine and bring or send information.
2. an account of a speech, debate, meeting, etc., especially as taken down for publication.’

50 According to the ordinary meaning of the word ‘report’ I can see no reasons for importing into its meaning a requirement that a report be in writing. Reports can be oral, filmed, graphic, written or a combination of all the above. This is illustrated by the news media which reports on news events using all these forms of communication. It would be fanciful to suggest that a film shown on TV of a newsworthy event is not a ‘report’ of the event, according to the plain and ordinary meaning of the word. There is nothing in the context of cl. 4(2)(a)(iv) which indicates that the word “report’ in that clause should be given anything other than its plain and ordinary meaning. As a result I am satisfied that the DVD is merely a report prepared in the course of a routine law enforcement inspection or investigation by the Council, whose functions include that of enforcing the Companion Animals Act 1998.

51 Further, I am satisfied that disclosure of the DVD is on balance in the public interest. In favour of disclosure is the public interest in the open and accountable operation of government as exemplified in the objects of the FOI Act, and the public interest in ensuring fair and impartial enforcement of and administration of justice. In submissions the Council did not specifically advance any public interest said to support non-disclosure. The major public interest advanced by its evidence is the public interest in the protection of law enforcement officers. This can be given little or no weight in this case as there is no evidence as to how that public interest would be damaged by the release of the DVD, especially as the identity of the officers is already known to Mr Richards.. It should also be remembered that s 59A of the FOI Act provides:

‘For the purpose of determining under this Act whether the disclosure of a document would be contrary to the public interest it is irrelevant that the disclosure may:
(a) cause embarrassment to the Government or a loss of confidence in the Government, or
(b) cause the applicant to misinterpret or misunderstand the information contained in the document because of an omission from the document or for any other reason.’

52 I conclude, on balance, that the release of the DVD would be in the public interest.

53 I note that Mr Richards submitted that the DVD was also not an exempt document under clause 4(2)(a)(i) and (v). In view of the conclusions I have already reached I consider it unnecessary to explore those submissions further.

54 I should, however, refer to one submission made by the Council with respect to cl 4(2), before concluding my consideration of the DVD. The Council submitted, at [27] of its supplementary submissions, that:

‘The Respondent submits for the Tribunal to further consider clause 4(2)(a) of Schedule 1 of the FOI Act in the absence of any evidence or submissions to this effect would be opportunistic and procedurally unfair to the Respondent, in circumstances where the Respondent has closed its evidence on the basis that clause 4(2)(a) of Schedule 1 of the FOI Act has not been argued by the Applicant and therefore not required a response.’

55 This submission is misconceived for a number of reasons. First, it entirely disregards s 61 of the FOI Act, which places on the Council the burden of establishing that its determination was justified. This includes the onus of establishing that the exceptions in clause 4(2) do not apply, as this is a necessary part of establishing that the determination was justified. If an agency’s evidence fails to establish that a determination was justified, it is open to an applicant to make submission to that effect. Secondly, I consider that the Council was on notice, at the time it closed its case, that Mr Richards was raising issues going to the legality of the ‘raid.’ While Mr Richards’s questions and comments at times rambled and were hard to follow, this was clearly raised during the first day of hearing Thirdly, the Council’s own evidence established that the DVD was prepared in the course of a routine law enforcement inspection or investigation by the Council, whose functions include that of enforcing the Companion Animals Act 1998.

56 Clause 9 of Schedule 1 provides:

(1) A document is an exempt document if it contains matter the disclosure of which:
(a) would disclose:
(i) any opinion, advice or recommendation that has been obtained, prepared or recorded, or
(ii) any consultation or deliberation that has taken place,
in the course of, or for the purpose of, the decision-making functions of the Government, a Minister or an agency, and
(b) would, on balance, be contrary to the public interest.
(2) A document is not an exempt document by virtue of this clause if it merely consists of:
(a) matter that appears in an agency’s policy document, or
(b) factual or statistical material.

57 The relevant principles were outlined by Deputy President Handley in Van de Wall v University of Sydney [2008] NSWADT 213 in the following terms:

36... Clause 9 requires, relevantly, that a distinction should be drawn between documents that contain purely factual matters and those that contain “opinion, advice or recommendation”: Harris v Australian Broadcasting Corporation (1983) 78 FLR 236. Further, for the exemption to apply, there must be a relevant connection between the opinion, advice, or recommendation and the agency’s decision-making functions, and the disclosure must “on balance, be contrary to the public interest”.
37 In the WorkCover Case [ General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84], at paragraph 162, McColl JA said:
“The cl 9(1)(b) public interest issue should, in my view, be determined by reference to the facts of the particular application, not by reliance on theoretical possibilities which flow if disclosed documents thereafter gained wider release.”
38 I note that in Bennett v University of New England [2000] NSWADT 8, at paragraph 63, Deputy President Hennessy said:
“Even if some diminution in candour and frankness caused by the prospect of disclosure is conceded, the real issue is whether the efficiency and quality of a deliberative process is thereby likely to suffer to an extent which is contrary to the public interest ... In the absence of clear, specific and credible evidence, I would not be prepared to accept that the substance or quality of advice prepared by professional public servants could be materially altered for the worse, by the threat of disclosure under the FOI Act.”

58 Further, the public interest in the non-disclosure of preliminary decision-making processes will often ‘fall away’ once a final decision has been made: Hutchinson v Warrumbungle Shire Council [2009] NSWADT 187 at [53].

59 Item 15 consists of emails between officers of the Council concerning their dealing with and management of Mr Richards about the time of the raid and subsequently, leading up to the decision to require him to contact the Council in writing only.

60 Item 17, consists of emails between officers of the Council and others concerning the development of the policy that Mr Richards only contact the Council in writing. Item 17 also contains paragraphs which I have already found to be irrelevant.

61 Both reflect an exchange of information between officers of the council, and in one case of others, which took place in the evolution of the Council’s policy for dealing with Mr Richards’ persistent complaints and abuse.

62 Mr Richards submitted that some of these documents had already been released to him by the Gold Coast City Council following an FOI request he made. Having examined the documents Mr Richards said he obtained under that request I do not accept this is the case.

63 The issue therefore is whether, on balance, the disclosure of these emails would be contrary to the public interest. The Council submitted that the following public interest considerations were against releasing them:

‘(a) the exemption under clause 9 of schedule 1 is designed to protect pre-decision processes of government before an actual decision is made so as to preserve the integrity of those processes;
(b) the need for government agencies to be able to think about issues and make decisions without having to disclose the thought processes and that giving access to the preliminary thought processes may inhibit the free flow of ideas and options in making a final decision;
(c) officers of government should be able to communicate directly, freely and confidentially with other members of government on issues which are considered to have on going sensitivity; and
(d) concern that the disclosure of information could compromise the safety of the Council's staff.’

64 Consideration (a) is not pertinent as the decision to conduct the raid and the subsequent decision to restrict Mr Richards’s means of communication with the Council have been made. They are past decisions, so the need to protect those pre-decision making processes is past.

65 Considerations (b) and (c) do not address the objects of the FOI Act which seek to make the operations of government open and accountable, to the extent that it was the express legislative intention to confer on each member of the public a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government. Hennessey DP’s observation in Bennett v University of New England [2000] NSWADT 8, at paragraph 63 (quoted at [57] above) strikes me as both relevant and pertinent to these submissions, especially in the light of consideration (d).

66 What is clear from the evidence is that since the raid on his property Mr Richards has, in his pursuit of ‘justice,’ engaged in a pattern of repeated phone calls of officers of the Council, which have at times been reasonably perceived by them as abusive and harassing. The affidavits filed by council officers amply demonstrate this. This ultimately led to the Council making a decision to only deal with Mr Richards in writing. While Mr Richards denies any intention to intimidate, I accept that the effect of his conduct has been to cause officers of the Council to become concerned as to the safety of themselves and their families. In those circumstances, I think that the Council has legitimate cause for concern that individual officers, who expressed opinions in the course of the development of the Council’s responses to Mr Richards, might become targets of Mr Richards’s specific attention should the emails exposing those opinions be released.

67 Were it not for these legitimate concerns the public interest would, in my opinion, require the release of the emails. In the circumstances of this case however, the public interest in the protection of law enforcement officers and in ensuring that their deliberative processes are not affected by legitimate concerns relating to exposure of themselves, or their families, to harassment or intimidation, result in the balance of the public interest being against disclosure. In reaching that conclusion I emphasise that this conclusion is reached in the light of the facts of this particular application, given the evidence of Mr Richard’s conduct.

Conclusion

68 In the light of all the above I think that the correct and preferable decision is to remit the matter to the Council for reconsideration in accordance with these reasons.