Rouvinetis v Director General, Department of Housing

[2001] NSWADT 155

CITATION:	Rouvinetis -v- Director General, Department of Housing [2001] NSWADT 155
DIVISION:	General Division
PARTIES:	APPLICANT Evangelos Rouvinetis RESPONDENT Director General, Department of Housing
FILE NUMBER:	013010
HEARING DATES:	02/07/2001
SUBMISSIONS CLOSED:	07/02/2001
DATE OF DECISION:	10/03/2001
BEFORE:	O'Connor K - DCJ (President)
APPLICATION:	access to documents - confidential material - access to documents - internal working documents - access to documents - legal professional privilege - access to documents - personal affairs - Freedom of Information Act - access to documents - confidential material - Freedom of Information Act - access to documents - internal working documents - Freedom of Information Act - access to documents - legal professional privilege - Freedom of Information Act - access to documents - personal affairs
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989 Privacy & Personal Information Protection Act 1998
CASES CITED:	Rouvenitis v Department of Housing Commission of NSW [1998] NSWSC 427 (CA) Rouvenitis v Department of Housing [2000] NSWSC 131 Charteris v General Manager, Leichhardt Municipal Council [2001] NSWADTAP 12
REPRESENTATION:	APPLICANT In person RESPONDENT M Fordham, barrister
ORDERS:	That the decision under review be affirmed except as set out in paragraph 32 of these reasons.

1 By request dated 16 August 2000, with fee paid 16 September 2000, the applicant sought access pursuant to the Freedom of Information Act 1989 (FOI Act) to tenancy records held about him by the respondent agency. The applicant was refused access to part or the whole of 154 documents contained on the agency’s file relating to him, the file comprising 586 folios numbered D1 to D586 . The agency’s final decision was made on 15 November 2000 following internal review, with reasons recorded in a letter dated 18 November 2000. The applicant has applied to the Tribunal for review of that decision.

2 In the meantime the agency has decided to release the whole of a further 49 documents covered by the decision of 15 November 2000: see letter 27 June 2001 to the applicant. It has also released material not dealt with by that decision, being all folios belonging to the period June 2000 to 28 June 2001, marked D587 to D632 inclusive to the applicant. These were handed up to the Tribunal, and marked exhibit 1. 105 documents remain in issue.

3 For present purposes I regard the decision under review as being the decision recorded in the letter of 18 November 2000 read in conjunction with the further letter to the applicant of 27 June 2001.

4 The applicant is a public housing tenant of the agency. He has been a public housing tenant since 1995. He presently resides in the Department of Housing complex at 34 Boronia Street, Kensington. He has been the subject of complaints by other tenants in the complex alleging acts of harassment and nuisance. He was the subject of similar complaints at a previous location in Waterloo. The file to which he has sought access covers the time since he became a tenant.

5 The agency has brought proceedings against him over the years, and he in turn has brought proceedings against the agency alleging ‘malicious persecution’ among other things. In 1996, the Residential Tenancies Tribunal granted the agency’s application for an order terminating the applicant’s tenancy at premises at Waterloo after hearing evidence of various incidents of nuisance and provocative conduct: Matter No 96/10673, 24 May 1996. Other information in the documents before the Tribunal indicate that that decision was set aside by the Supreme Court on 17 July 1996 on error of law grounds, and that the proceedings were remitted to the Tribunal. What then occurred is not clear. (Mr Fordham for the agency said that there had been five Residential Tribunal proceedings brought against the applicant.) The applicant has initiated Supreme Court proceedings on at least two occasions against the agency. Each has been dismissed at an early stage as being without legal foundation: see Rouvenitis v Department of Housing Commission of NSW [1998] NSWSC 427 (CA) (8 September 1998): Rouvenitis v Department of Housing [2000] NSWSC 131 (9 March 2000).

6 Of the 105 documents that are in issue, 70 are the subject of full exemption claims and 35 as to part of their contents. There are four exemptions variously relied upon: the personal affairs exemption (cl 6, Schedule 1), the internal working documents exemption (cl 9), the legal professional privilege exemption (cl 10) and the confidential material exemption (cl 13).

7 The legal professional privilege and internal working documents exemptions are invoked where advice has been obtained by the agency to assist it in dealing with claims, disputes and litigation relating to the applicant. The personal affairs and confidentiality exemptions have usually been invoked by the agency where it seeks to protect the identity of complainants in relation to the conduct of the applicant or content of the information provided by them. On their face these are all circumstances to which the exemptions mentioned could be relevant.

Applicable Law
8 The right of access is conferred by s 16:

‘16. Right of access to agencies' documents
(1) A person has a legally enforceable right to be given access to an agency's documents in accordance with this Act.
(2) (Repealed).’
9 An agency may refuse access on the grounds set out in s 25, of which sub-section (1) is relevant to these proceedings:
‘ 25. Refusal of access
(1) An agency may refuse access to a document:
(a) if it is an exempt document.’
10 An exempt document is defined at s 6 as relevant to this case as:
‘a document referred to in any one or more of the provisions of Schedule 1.’

11 The text of the four clauses of Schedule 1 containing the exemptions relevant to this case follows:
‘6. Documents affecting personal affairs
(1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).
(2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made.’
‘9. Internal working documents
(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
factual or statistical material.’
‘10. Documents subject to legal professional privilege
(1) A document is an exempt document if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege.
(2) A document is not an exempt document by virtue of this clause merely because it contains matter that appears in an agency's policy document.’
‘13. Documents containing confidential material
A document is an exempt document:
(a) if it contains matter the disclosure of which would found an action for breach of confidence, or
(b) if it contains matter the disclosure of which:
(i) would otherwise disclose information obtained in confidence, and
(ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and
would, on balance, be contrary to the public interest.’
12 The burden of proof lies on the agency:
‘61. Burden of proof
In any proceedings concerning a determination made under this Act by an agency or Minister, the burden of establishing that the determination is justified lies on the agency or Minister.’
MATERIAL BEFORE TRIBUNAL
13 The documents for which part of the contents only is the subject of a claim for exemption are contained in confidential exhibit 2, and those subject to a claim in respect of the whole of their contexts are contained in confidential exhibit 3.

14 The agency placed the following additional evidence before the Tribunal: an affidavit from Mr Calcopietro, solicitor to the agency, sworn 27 June 2001 attaching the agency’s ‘Good Neighbour Policy’, its ‘Privacy and Confidentiality Policy’ and its ‘Freedom of Information Policy’. It also explained the organisation of the confidential exhibits and presented a schedule of documents in issue prepared by Mr Calcopietro. There was also an affidavit sworn 29 June 2001 from Mr Weeks, advocate/investigator, Legal Services Branch in the agency referring specifically to D473-475, and explaining generally the basis for the claims of legal professional privilege in respect of documents subject to that claim.

DEPARTMENTAL POLICIES
15 The agency’s Good Neighbour Policy states in its opening sentences:

‘The Department of Housing wants to make sure that all its tenants can live in peace and harmony with their neighbours.
We will manage the tenant mix in a locality to reduce the potential for conflict.’

16 It then goes on to explain the primary mechanisms used to resolve conflict, in a hierarchy ranging from local mediation through to eviction action.

17 The policy contains various commitments one of which was highlighted by the agency to the Tribunal: ‘We will keep the identity of the person making the complaint confidential unless they give permission in writing to disclose their identity.’

18 The Privacy and Confidentiality policy also contains commitments including only to release personal information with written permission unless specified public interest exceptions apply. It would seem that the policy was issued prior to the State Privacy and Personal Information and Protection Act being enacted, as it refers only to the Federal legislation, which the policy states is used ‘to guide our actions.’ The Freedom of Information Policy refers to the possibility that access to documents will be refused if another person’s privacy is involved.

GENERAL CONSIDERATIONS
19 The Good Neighbour Policy is indicative of the sensitivities that can be involved in managing tenants who cause annoyance, damage and disruption in public housing. I have taken account of the Policy in forming a view as to public interest considerations relevant to this application for review.

20 As to the law to be applied in this case, two exemptions require the agency to have regard to the ‘public interest.’

21 If a document falls into the categories found in the internal working documents exemption, cl 9(1)(a), the exemption may only be invoked if disclosure ‘would, on balance, be contrary to the public interest.’ I consider that the public interest in the public housing context may include the need not to promote further tension or conflict between neighbours by disclosing the identity of complainants until such point as that may become unavoidable in order to obtain resolution.

22 A similar structure is found in the confidentiality exemption, cl 13. If the document falls into one of the listed categories, the same public interest test as for the internal working documents exemption applies. I see the same policy considerations as relevant.

23 Whether a document is affected by the legal professional privilege exemption, cl 10, is governed by the general law test for legal professional privilege. See generally, Charteris v General Manager, Leichhardt Municipal Council [2001] NSWADTAP 12.

24 In the case of the personal affairs exemption, cl 6, the discretionary factory to be considered by the agency is whether disclosure of the personal affairs of one person to another person is ‘unreasonable.’ Again the Good Neighbour Policy and the considerations on which it is, I consider, relevant.

25 I note that in the lengthy written submissions filed by the applicant, and in his oral submissions at planning meetings and the hearing, much of which were irrelevant and expressed with great anger and aggression, he frequently made the following points:

(i) that as the file to which he sought access was about him he was entitled to see everything on it, and
(ii) that the ‘personal affairs’ exemption was not relevant as he had not had any personal affairs with anyone.
26 These are misunderstandings of the relevant law.

27 As to (i), a file held under the name of a person may include within it references to other people and to the information that they have provided. These people and that information can include, as in this case: complaints by neighbours; advice and records of action taken by officers of the agency; and preparation for legal proceedings. The FOI Act seeks to strike a balance between the various interests - the important right of applicants to see the information held about them is balanced against, for example, the interest of complainants in protecting their identity and the agency’s interest in obtaining confidential advice in relation to the options it has to deal with a problem.

28 As to (ii), the applicant misunderstands the focus of the exemption. It is not concerned with the situation of the applicant; it is asking whether the information concerning the other persons forms part of their ‘personal affairs’, a term which has a wide meaning covering such matters as address details, financial information, family history, personal, health and grievances.

Assessment
29 I will now deal, document by document, with the claims for exemption (or document group by document group) in the sequence of the submissions made by the agency. The following table sets out the identifying number of the document (e.g. D1), followed by the business category that the agency ascribes to the document, followed by a short-form reference to the exemption relied upon (PA = Personal Affairs, cl 6; IWD = Internal Working Documents, cl 9; LPP = Legal Professional Privilege, cl 10; and CFD = Confidential Material, cl 13).

30 Documents where part of the contents are the subject of a claim for exemption comprise confidential exhibit 2. The agency included a full version of the document to compare with the part released. Documents where the whole of the contents are claimed to be exempt comprise exhibit 3.

31 The table set out below is derived from the schedule prepared by the agency for the hearing as set out in Mr Calcopietro’s affidavit, and submission as to applicable exemptions made at hearing by Mr Fordham for the agency.

DOCUMENTS SUBJECT TO CLAIM OF PARTIAL EXEMPTION

Doc. No.	Description	Exemption	Reasons for claim	Conclusion
D8	Request for payment cards, new tenancies: certain entries	PA	Discloses names with the account numbers of two other tenants	Satisfied exemption applicable. Private financial affairs information.
D11-21	Letting queue enquiry: certain entries	PA	Shows names of other persons who are listed as not suitable for tenancy with reason.	Satisfied applicable. Reveals outcome of private application and fact that they have applied for public housing.
D22	Advice of vacant dwelling: certain entries	PA	Includes person vacating and state of rental a/c. All other information supplied to applicant except name of tenant and vacating details and other tenants	Satisfied applicable. Reveals fact that other individual was a public housing tenant and amount of debt owed on cessation of tenancy.
D158-160 D263-265	Rebate summary: certain entries Copies of above	PA	Deal with affairs of other tenants	Satisfied. Deals with rent assessed to be paid by another tenant taking account of their rebate status.
D168 (&D266)	Briefing note in respect of applicant representations to Minister: references to a neighbour of applicant (& Copy)	PA	1st sentence excluded: material identifying details of financial affairs of tenant complained against 2nd sentence: [Claim not pressed at hearing]	1. Satisfied, reveals private financial information 2. ORDER RELEASE of 2nd sentence in D168 and D266
D172	Internal Memorandum from team leader Bondi office: final recommendation	IWD	This reveals a process of officer advice and reasoning.	Satisfied is in the nature of internal advice (cl 9(1)(a) and not in public interest to reveal (cl 9(1)(b)).
D193	Internal Memorandum final recommendation	IWD	This reveals a process of officer advice and reasoning.	Satisfied is in the nature of internal advice (cl 9(1)(a) and not in public interest to reveal (cl 9(1)(b)).
D305	Department letter to local police seeking information: reference to nature of other residents’ concern	CFD	Submission noted that the concern expressed seems to be ‘somewhat innocuous’ but goes to the ‘imperative’ of maintaining confidence between agency and other tenants in respect of complaints.	Satisfied in circumstances that requirement (b)(ii) and b(iii) of cl 13 met.
D309	Internal Memorandum advice as to further action	IWD & CFD arguably LPP	IWD, CFD, LPP	Satisfied IWD applies in circumstances. Cl9(1)(a)(I) and (b) applicable. No view on whether cl 10 and cl 13 applicable.
D327	Internal Memorandum:	CFD	Number of persons referred to in deleted section is significant	Satisfied
D338	Internal Memorandum	PA, CFD	Specific references to identified individual tenant and to gender	Satisfied both exemptions applicable.
D362	Internal Memorandum	PA, CFD	Specific references to identified individuals.	Satisfied both exemptions applicable.
D366 & D367	Letters to Prospective Witnesses	PA, CFD	Identifying particulars	Satisfied both exemptions applicable.
D385	Internal Memorandum 2 sentences	1st sentence: LPP 2nd sentence: not pressed	1st sentence, claim pressed: refers to advice from Legal Branch	1st sentence, satisfied. ORDER RELEASE of 2nd sentence.
D400 - 401	Same documents as D385 in a different format	As for D385	As for D385	ORDER RELEASE of 2nd sentence
D413	Internal Memorandum: from officer to solicitor in respect of legal proceedings	IWD & LPP	LPP, IWD	Satisfied LPP applicable. Not necessary to consider IWD.
D455	RTT Notice: handwritten notation at foot as to witnesses	CFD	Maintenance of confidentiality in respect of potential witnesses	Satisfied.
DOCUMENTS SUBJECT TO A CLAIM OF FULL EXEMPTION
D500-501	Client service visit form relating to another tenant [at an address in Coogee]	CFD, PA IWD	Information personal to tenant given to department officer	Satisfied confidentiality and personal affairs exemptions apply. Not clear why on applicant’s file. Should be removed from his file if no basis for being there.
D492	Instructions to barrister for hearing of case brought by agency against applicant	LPP	LPP	Satisfied
D482	Internal Memorandum to head, legal branch of agency	LPP	Deals with litigation matters	Satisfied
D481	Internal Memorandum to head, legal branch	LPP	Related to request for legal advice in respect of proceedings against applicant	Satisfied
D480	Internal Memorandum to head of legal branch	LPP	Seeking advice in relation to legal action to be taken against applicant	Satisfied
D479-477	Witness Incident Report	PA, IWD	Complaint from neighbour re conduct of applicant	Satisfied
D476	Hand-written letter of complaint	PA, IWD	Complaint from neighbour re conduct of applicant	Satisfied
D475 - D473	Solicitor’s preparatory note	PA LPP	Summary of particulars to be relied upon in presenting case	Satisfied
D438 - D437 & D414	Witness Incident Reports	CFD	List of alleged events subject of complaint	Satisfied
D435	Memorandum from head, legal branch to officer	IWD, LPP	Advice as to possible course of action to be taken by agency	Satisfied as to both
D408 & D315	Letter of support for tenants	CFD	Confidentiality of affected tenants	Satisfied
D383	Internal Memorandum	LPP	Redirection of privileged material	LPP not applicable but IWD is applicable. Satisfied.
D382	Internal Memorandum	LPP	Report on outcome of proceedings	Satisfied
D377	Covering letter from MP forwarding tenant complaint	PA, CFD	Concern as to identity of complainant	Whole document need not be withheld. Letter of a usual kind from MP to agency. ORDER RELEASE with name of tenant deleted.
D376	Tenant complaint	CFD	Outlining alleged conduct of applicant	Satisfied
D347-D339	Witness Incident Report	PA, CFD	Listing incidents of alleged nuisance	Satisfied
D337& 336	Agency letters to tenant	PA, CFD	Acknowledge receipt and give information as to possible action.	Whole document need not be withheld. Letter of pro forma kind from agency. ORDER RELEASE with name and address of tenants deleted.
D326	Briefing note to Minister	CFD	Outlining nature of concerns and possible responses	Satisfied. In particular that it would be contrary to the public interest (in this instance the interest of other tenants in a peaceful neighbourhood) for the contents to be revealed to the applicant.
D320-321 & 318	Letter from MP to Minister forwarding two letters of complaint	PA, CFD	Complaints against applicant	Satisfied except as to D321, the MP’s letter. ORDER RELEASE of that letter with first sentence deleted, and in the second sentence the reference to number of tenants and their address deleted.
D317	Letter from MP to Minister	PA, CFD	Covering letter.	ORDER RELEASE with first sentence deleted and in the second sentence the reference to the number of tenants and their address.
D316	Letter from MP to agency	PA, CFD	Forwarding letter of complaint	As previously, not satisfied whole document should be withheld ORDER RELEASE with the final sentence of 2nd paragraph deleted.
D311-314	Letters to various tenants re complaints and action to be taken	PA, CFD	Confidentiality	Satisfied as to whole.
D308 - D310	Internal Memorandum from solicitor, legal branch	LPP	Advice	Satisfied
D306	Internal Memorandum to solicitor, legal branch	CFD, LPP	Information as to further events that may be relevant	Satisfied as to both.
D303	Fax cover sheet from officer to solicitor, legal branch	LPP	Description of contents to follow and request for advice	Satisfied
D301	Internal Memorandum to solicitor, legal branch	CFD, PA	Refers to specific tenant and conduct of matter	Satisfied
D300 & 299	Internal Memorandum between officers (& copy)	CFD	Conduct of case	Satisfied
D298	Internal Memorandum	CFD	Record of contact by tenant with complaint	Satisfied
D297	Internal Memorandum	CFD	Detailed account of concerns of tenant	Satisfied
D296, D295, D294	Internal Memorandums some with handwritten officer notation	CFD, IWD	Report of tenant concerns with suggestions from officer as to action and responses	Satisfied
D293	Letter from tenant	CFD	Complaint	Satisfied
D268 & D248 & D165	Memorandum to agency from solicitor	LPP	Advising as to further action following Supreme Court ruling	Satisfied
D242 & 241	Letter from tenant	CFD	Complaint	Satisfied
D165	LPP
D93-97	Typescript of legal and factual submissions dated 9 October 1996 prepared by Ms Stenekes, solicitor for the further hearing of termination case brought in Residential Tribunal in 1996	LPP	In the nature of preparatory materials for use at tribunal hearing.	Satisfied. Have noted in that regard the agency’s recognition that if the submissions were handed up at the tribunal hearing it would not be able to rely on this exemption. Accept that the agency has no record as to that occurring.
D30, D29 & D28	Statutory Declarations	CFD	Complaints from tenants	Satisfied

32 The net result of the above assessment is that I am satisfied that the decision under review, being the decision contained in the agency’s letter to the applicant dated 18 November 2000 read in conjunction with its further letter of 27 June 2001, should be varied as follows:
in respect of the documents over which exemption has been claimed as to part of their contents : in the case of D168, D266, D385 and D400-401 that a further part of their contents be disclosed as specified in the table.
in respect of the documents over which exemption has been claimed as to the whole of their contents : in the case of D377, D337, D336, D321, D317 and D316 that part of their contents be disclosed as specified in the table.
Order
That the decision under review be affirmed except as set out in paragraph [32] of these reasons.