Salmon v Corrective Services NSW

[2016] NSWCATAD 257

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Salmon v Corrective Services NSW [2016] NSWCATAD 257
Hearing dates:	19 October 2015; 4 November 2015; 20 November 2015; 10 February 2016 and 24 March 2016
Date of orders:	15 November 2016
Decision date:	15 November 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	(1) The decision under review is set aside. (2) The decision is made that the email response from Marc Riviere to the Manager, Information Access & Privacy United dated on or around 13 December 2013 is released. (3) The application for a referral pursuant to section 112 of the Government Information (Public Access) Act 2009 is refused. (4) The Respondent, and any other person, is prohibited from publishing those headings and paragraphs of these reasons identified as “not for publication”.
Catchwords:	ADMINISTRATIVE LAW – access to government information – access application – whether release would expose a person to a risk of harm or of serious harassment or serious intimidation
Legislation Cited:	Government Information (Public Access) Act 2009 Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Crimes (Administration of Sentences) Act 1999
Cases Cited:	"B" and Brisbane North Regional Health Authority, Re [1994] QICmr 1; (1994) 1 QAR 279 AEZ v Commissioner of Police NSW Police Force [ 2013] NSWADT 90 Attorney General’s Department v Cockcroft (1986) 10 FCR 180 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 McKinnon v Blacktown City Council [2012] NSWADT 44 Salmon v Department of Justice (Corrective Services NSW) [2014] NSWCATAD 160 Searle Australia Pty Limited v Public Interest Advocacy Centre and Another (1992) 108 ALR 163 Smith v Pittwater Council [2016] NSWCATAD 67
Category:	Principal judgment
Parties:	Owen Salmon (Applicant) Corrective Services NSW (Respondent)
Representation:	Solicitors: Owen Salmon (Applicant in person)    Corrective Services NSW (Respondent)
File Number(s):	1510405
Publication restriction:	See order 4.

REASONS FOR DECISION

1. The Applicant lodged an access application with the Respondent under the Government Information (Public Access) Act 2009 ("the GIPA Act) "seeking access to information held by the Respondent. He requested:

1.   A letter forwarded to solicitor Marc Riviere in around November 2013 from the Information Access & Privacy Unit ("record one"); and

2.   An email response from Marc Riviere to the Manager, Information Access & Privacy United dated on or around 13 December 2013 ("the Riviere email").

2. It is common ground Mr Riviere is a solicitor who has represented the Applicant’s ex-wife and her current partner in various legal proceedings including proceedings involving the Applicant.

3. The Respondent located two records falling within the scope of the request. It determined to grant partial access to those records. Access was granted to record one but access to the Riviere email was refused. The initial refusal was on the basis of a claim for legal professional privilege. It was asserted that legal professional privilege had been claimed over it and that pursuant to clause 5(1) of Schedule 1 to the GIPA Act, it is conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of legal professional privilege. The Respondent also indicated that it did not consider it appropriate to waive privilege for this record.

4. The Applicant sought a review by the Office of the Information and Privacy Commission ("the IPC"). The IPC raised issues in relation to the Respondent's claim for legal professional privilege and made a recommendation in the following terms:

I recommend that Corrective Services NSW reconsider its decision to refuse access to the information. This recommendation is made under section 93 of the GIPA Act. I make this recommendation because the information does not appear to be of a type that attracts legal professional privilege.

5. The Respondent did not follow that recommendation.

6. The Applicant has applied to the Tribunal for external review of the Respondent’s determination to refuse to provide access to the requested information. Throughout the conduct of the proceedings the Respondent withdrew its reliance on clause 5(1) of Schedule 1 to the GIPA Act. However, it refused to release the Riviere email on the ground that there is an overriding public interest against disclosure pursuant to clauses 2(a), 2(b), 3(f) and 4(d) of the Table to section 14 of the GIPA Act.

7. In my view the Respondent is entitled to rely on additional or different grounds for refusing to release the requested information. However, it is necessary that the Applicant is given reasonable notice of that approach and given a reasonable opportunity to address those grounds. I do not agree that the Respondent is estopped from relying on additional or different grounds before the Tribunal.

The Issues

8. My understanding is that the only issue remaining for determination is whether the Applicant has been given access to all the information that he is entitled to receive. This requires consideration of whether the Riviere email should be released to the Applicant.

Applicable legislation

9. The Tribunal's function on review under section 63 of the Administrative Decisions Review Act 1997 is to make the correct and preferable decision having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. The Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the Administrator who made the decision. In so doing, the Tribunal is not confined to the material that was before the Administrator, but may have regard to any relevant material before it at the time of review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

10. The objects of the GIPA Act are set out in section 3 as follows:

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

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

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

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

(2) It is the intention of Parliament:

(a) that this Act be interpreted and applied so as to further the object of this Act, and

(b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.

11. Section 5 of the GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.

12. Under section 9(1) of the GIPA Act, a person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an overriding public interest against the disclosure of the information.

13. Section 12 of the GIPA Act states that there is a general public interest in favour of disclosing government information and nothing in the GIPA Act limits the public interest considerations in favour of disclosure which may be taken into account when determining whether information is to be disclosed. Section 12(2) provides:

12 Public interest considerations in favour of disclosure

...

(2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.

The following are examples of public interest considerations in favour of disclosure of information:

(a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.

(b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.

(c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.

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

(e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.

...

14. Section 13 of the GIPA Act provides that there is an "overriding public interest against disclosure" of government information 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. This balancing exercise involves:

• identifying the public interest in favour of disclosure;

• identifying the public interest against disclosure, and

• determining where the balance lies.

15. When weighing the public interest considerations in favour of disclosure against those against disclosure, the balancing of competing interests is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation.

16. Section 14(2) of the GIPA Act provides:

14 Public interest considerations against disclosure

...

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

...

17. Clauses 2(a), 2(b), 3(f) and 4(d) of the Table to section 14 of the GIPA Act provide:

2 Law enforcement and security

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally):

(a) reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant,

(b)    prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law

...

3 Individual rights, judicial processes and natural justice

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects:

…

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

…

4 Business interests of agencies and other persons

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects:

...

(d) prejudice any person’s legitimate business, commercial, professional or financial interests,

18. Section 55 of the GIPA Act provides:

"(1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section:

(a)   the applicant's identity and relationship with any other person,

(b)   the applicant's motives for making the access application,

(c)   any other factors particular to the applicant."

19. Section 58(1)(d) of the GIPA Act provides that an agency may decide an access application by deciding to refuse to provide access to information because there is an overriding public interest against the disclosure of the information.

20. There is no dispute that the Tribunal has jurisdiction to hear this application. Section 100 of the GIPA Act provides jurisdiction.

21. Section 105(1) of the GIPA Act provides that the burden of establishing that the decision is justified lies on the Respondent. This means the Respondent has the burden of establishing that each of the public interest considerations against disclosure relied upon apply. The Respondent also bears the burden of establishing that, on balance, they outweigh the public interest considerations in favour of disclosure.

Could reasonably be expected

22. The requirement, common to all the public interest considerations against disclosure in the Table to section 14, is that disclosure could reasonably be expected to have the nominated effect.

23. The phrase ‘could reasonably be expected to’ has been the subject of judicial consideration with respect to its use in the Freedom of Information Act 1989 (“the FOI Act”) and the Commonwealth Freedom of Information Act 1982 ("FOI Act (Cth)"). The words in the phrase are to be given their ordinary meaning. In Attorney General’s Department v Cockcroft (1986) 10 FCR 180 at 190, Bowen CJ and Beaumont JJ interpreted the term in the following way:

In our opinion, in the present context, the words "could reasonably be expected to prejudice the future supply of information" were intended to receive their ordinary meaning. That is to say, they 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 Commonwealth or any 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...

24. The word "expected" is not to be given too wide a meaning in light of the objectives of the statute: Cockcroft per Sheppard J at 112. The occurrence of the prejudice does not have to be established on the balance of probabilities but there must be something more than a possibility, risk or chance of the event occurring: Cockcroft per Bowen CJ and Beaumont J at 106.

25. In "B" and Brisbane North Regional Health Authority, Re [1994] QICmr 1; (1994) 1 QAR 279 at [154] - [160] the Commissioner analysed the meaning of the phrase "could reasonably be expected to" by reference to relevant Federal Court decisions. The Commissioner said that:

The words call for the decision-maker ... to discriminate between unreasonable expectations and reasonable expectations, between what is merely possible (e.g. merely speculative/conjectural "expectations") and expectations which are reasonably based, i.e. expectations for the occurrence of which real and substantial grounds exist.

26. The words "could reasonably be expected" refer to an expectation that is based on reason, that is to say one for which real and substantial grounds exist when looked at objectively. (Searle Australia Pty Limited v Public Interest Advocacy Centre and Another (1992) 108 ALR 163 at 176.)

27. In McKinnon v Blacktown City Council [2012] NSWADT 44 Judicial Member Molony stated:

42 … the public interest consideration against disclosure in clause 1 and 3 of the Table requires an objective assessment as to whether the claimed effects could be expected to arise. Ultimately, it is a question of fact as to whether the disclosure of the information in issue could reasonably be expected to have the prescribed effect if disclosed. That fact being established to the relevant standard of proof, on the balance of probabilities.

43 In submissions the Agency argued that the suggestion that a fact had to be established on the balance of probabilities was at odds with established authority in dealing with the same phrase in the context of the Freedom of Information Act 1989. The Agency referred to the Tribunal decisions in Leech and in Neary v State Rail Authority [1999] NSWADT 107, where the President said, at [35] –

.. it is not necessary that the level of risk be such that it be assessed as more probable than not. Nor is it necessary for the administrator to apply a balance of probabilities calculus similar to that used to set the burden of proof in litigation.

44 In my view the weight of authority establishes that it is necessary for the Agency to demonstrate, with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect as explained in Cockroft and elucidated in McKinnon v Secretary, Department of Treasury.

28. In my view this is the correct basis for determining whether the disclosure of a document "could reasonably be expected" to have a particular effect.

29. With respect to each public interest consideration against disclosure upon which it relies, the Respondent is to show that there is something more than a possibility, risk or chance that disclosure of the information could have the nominated effect.

30. Schedule 4 to the GIPA Act provides these definitions:

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

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

Clause 3(f) of the table to section 14

31. I recently considered Clause 3(f) in the matter of Smith v Pittwater Council [2016] NSWCATAD 67. I adopt a summary of a number of relevant authorities by Judicial Member Molony in AEZ v Commissioner of Police NSW Police Force [2013] NSWADT 90 from paragraphs [82] to [94]. He stated:

Disclosure of the information could reasonably be expected expose a persons to risk of harm or of serious harassment or serious intimidation (s 14 Table 3(f))

82   The question here is whether if the information is disclosed, it could reasonably be expected that the disclosure would "expose a person to a risk of harm or of serious harassment or serious intimidation."

83   The GIPA Act does not contain a definition of harm, serious harassment or serious intimidation. It is to be noted that harm is not qualified by the adjective serious. The Macquarie Dictionary online defines harm thus -

noun 1. injury; damage; hurt: to do someone bodily harm.

2. moral injury; evil; wrong.

-verb (t) 3. to do harm to; injure; damage; hurt.

-phrase 4. in harm's way, in danger.

5. out of harm's way, out of danger.

[Middle English; Old English hearm]

84   Harm is a concept frequently used by the law. The criminal law prohibits assaults occasioning bodily harm. This has been interpreted in its ordinary meaning to" include any hurt or injury calculated to interfere with the health or comfort of [the injured person]": see R v Donovan [1934] 2KB 498. "Serious harm" is a concept used in criminal defamation, which requires proof of an intent to cause serious harms. Section 40 of the Civil Law (Wrongs) Act 2002 (ACT) on the other hand defines "harm" to be harm of any kind, including personal injury, damage to property and economic loss. Harm is also a concept in child protection: in section 9 of the Child Protection Act 1999 (Qld) it is defined as "as any detrimental effect of a significant nature on the child's physical, psychological or emotional wellbeing."

85 In the context of s 14 of the GIPA Act I am inclined to the view the meaning of harm should be confined to a real and substantial detrimental effect on a person, rather than on their business interests. This is so given the juxtaposition of the word "harm" with the concepts of serious harm and intimidation, and the fact that economic and business interests are the subject of public interest consideration against disclosure in part 4 of the section 14 Table. A detrimental effect may be to a person's physical, psychological or emotional wellbeing.

86   Serious harassment is a separate and distinct concept. The Macquarie Dictionary online defines harass -

verb (t) 1. to trouble by repeated attacks, incursions, etc., as in war or hostilities; harry; raid.

2. to disturb persistently; torment.

[French harasser, from Old French harer set a dog on]

87   The concept of harassment is one familiar to anti-discrimination law, with sexual harassment being prohibited and subject to remedies. A consideration of those laws reveals that a common element in most jurisdictions is that the person harassed would be offended, humiliated or intimidated by the conduct in the circumstances: see Sex Discrimination Act 1984 (Cth), s 28A(1); Anti-Discrimination Act 1977 (NSW), s 22A; and Equal Opportunity Act 1984 (SA), s 87(9).

88   In Henderson v McKenzie [2009] ACTSC 39 Higgins CJ was considering a charge of stalking with intent to harass contrary to s 35(1)(c) of the Crimes Act 1900 (ACT). His Honour said, at [6-8] -

6. Harassment is not defined in the Crimes Act, nor, indeed, in the Criminal Code 2002 (ACT) (Criminal Code). However, it does seem in context to bear its usual meaning, ie "to trouble by repeated attacks; harry; (1) to worry or unnerve (an enemy) by continuous small attacks; (2) to disturb, worry, torment, distress with annoying labour, care or misfortune" (World Book Dictionary); "Vex by repeated attacks; trouble, worry" (Concise Oxford Dictionary).

89 All of the definitions of harassment require a consideration of how the conduct complained of is experienced by the person alleged to be harassed, and are concerned with whether that person was offended, worried, tormented, distressed or harassed by the conduct. In the context of the GIPA Act where the decision maker has to be satisfied that, if the information is disclosed, it could reasonably be expected that the disclosure would expose a person to serious harassment, the assessment of the impact of the conduct on the individual concerned is an objective one, although particular circumstances and vulnerabilities relating to that individual may be taken into account when making that assessment.

90 The GIPA Act makes specific mention of serious intimidation as another element of the public interest consideration against disclosure in point 3(f) of the Table to s 14, despite the fact that the two concepts of intimidation and harassment are clearly related.

91   Intimidation is defined by The Macquarie Dictionary online as -

verb (t) (intimidated, intimidating) 1. to make timid, or inspire with fear; overawe; cow.

2. to force into or deter from some action by inducing fear: to intimidate a voter.

[Medieval Latin intimidātus, past participle, made afraid. See TIMID]

92   Intimidation is defined in s 7 of the Crimes, Domestic and Personal Violence Act 2007 (NSW) thus -

(1) For the purposes of this Act, intimidation of a person means:

(a) conduct amounting to harassment or molestation of the person, or

(b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or

(c) any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property.

93   In PE V MU [2010] NSWDC 2 William DCJ referred to that definition and said -

15...intimidatory conduct... is conduct amounting to harassment or molestation or contact by one person with another such as would cause the other person to fear for their safety.

16 Harassment is not defined in the Act but in its legal sense refers to ongoing behaviours that are found to be threatening or disturbing. ...

94   Importantly the intimidation or harassment referred to in point 4(f) is required to be serious intimidation or serious harassment, requiring that the decision maker be satisfied that release of the information could reasonably expose a person to intimidation or harassment that is heavy, weighty or grave, and not trifling or transient.

32. In AEZ v Commissioner of Police, the Tribunal considered that "harm" in the context of clause 3(f) of the table to section 14 of the GIPA Act means "a real and substantial detrimental effect on a person" which may have a detrimental effect on their "physical, psychological or emotional wellbeing".

33. The Tribunal determined that the threshold to be reached was for the decision-maker to be satisfied that if the information was disclosed, it could be reasonably expected that the disclosure would expose a person to serious harassment, and that the assessment of the impact of the conduct on the individual concerned was an objective one. The Tribunal also found that the particular circumstances and vulnerabilities relating to that individual may be taken into account when making that assessment.

34. The requirement that the intimidation or harassment be serious means that the decision maker must be satisfied that the release of the information could reasonably be expected to expose a person to intimidation or harassment that is "heavy, weighty or grave, and not trifling or transient".

Material before the Tribunal

35. The Respondent relies on evidence from the Manager of its Information Access & Privacy Unit, Ms Margaret Fulford, the Director and Secretary of the NSW State Parole Authority, Mr Robert Allen Cosman. Both Ms Fulford and Mr Cosman attended the hearing and gave evidence and were cross-examined.

36. The Applicant relies on his own evidence. Each of the parties provided both written and oral submissions.

37. The Tribunal received confidential evidence on behalf of the Respondent pursuant to section 64 of the Civil and Administrative Tribunal Act 2013. I note that the Applicant made submissions opposing this approach.

Margaret Fulford

38. Ms Fulford gave evidence in relation to the determination. Her evidence was that she had exchanged correspondence with Mr Riviere in relation to the access application and that he had objected to the release of the Riviere email on the grounds of legal professional privilege. She obtained advice from the Respondent’s Legal Officer, Ms Glenn Singer, who agreed that legal professional privilege could be claimed. She determined to refuse to release the Riviere email on the basis of legal professional privilege and that it was therefore conclusively presumed that there was an overriding public interest against disclosure.

39. Ms Fulford referred to the recommendation by the IPC and that the Respondent had declined to reconsider its decision to refuse access to the Riviere email. Her evidence was that as a matter of course the Respondent does not accept IPC recommendations as they are not binding. She also gave evidence that she would not change her view on the basis of a recommendation because it would mean contradicting the view expressed by a more senior officer of the Respondent.

Robert Cosman

40. Mr Cosman gave evidence of his role in relation to the State Parole Authority and to explain the importance of confidentiality in regard to the operations of the Authority. From time to time he attends meetings of the Authority where consideration is given to whether to grant or to revoke parole of an offender. At those meetings, consideration is given to written materials provided by relevant authorities.

41. From time to time the Authority members' consideration of any given offender requires that further information or reports are requested in order to assist the Authority to satisfy itself of all the matters that it is required to address.

42. Section 194 of the Crimes (Administration of Sentences) Act 1999 contains a prohibition on the disclosure of reports or other documents to any person if in providing the report or documents it may, in the opinion of a judicial member, cause any of a number of consequences. These consequences, as listed in the Act, include:

(a)   adversely affect the security, discipline or good order of a correctional centre, or

(b)   endanger the person or any other person, or

(c)   jeopardise the conduct of any lawful investigation, or

(d)   prejudice the public interest, or

(e)   adversely affect the supervision of any offender who has been released on parole, or

(f)   disclose the contents of any offender's medical, psychiatric or psychological report.

43. Section 194 also provides a prohibition on the provision of information about the content of a report or other document, where it is prohibited from disclosure under section 194, if a judicial member considers:

(a)    not providing the information is necessary in the public interest, and

(b)   that public interest outweighs any right to procedural fairness that may be denied by not providing the information.

44. Mr Cosman gave evidence that on 11 June 2014 Judicial Member Moore certified a letter dated 22 November 2011 written by Mr Riviere, as a document falling within section 194 material. That particular document is the subject of the decision by Senior Member Walker in Salmon v Department of Justice (Corrective Services NSW) [2014] NSWCATAD 160. Senior Member Walker affirmed the Respondent’s decision to refuse to give the Applicant access to the document. The Riviere email that is the subject of these proceedings is an email from Mr Riviere to Ms Fulford setting out the reasons why he objects to the Applicant being granted access to his letter to the State Parole Authority.

45. Mr Cosman gave evidence setting out his view in regard to the importance of confidentiality to the operations of the Authority. That evidence was not specific to the Riviere email.

46. [not for publication]

47. [not for publication]

48. [not for publication]

49. [not for publication]

50. [not for publication]

51. [not for publication]

52. [not for publication]

53. [not for publication]

54. [not for publication]

55. [not for publication].

56. [not for publication]

The Applicant’s evidence

57. The Applicant relies on his own evidence. He provided an affidavit and also attended the hearing gave evidence and was cross-examined. He made both written and oral submissions.

58. The Applicant gave evidence of various proceedings in which he had been involved including those in which Mr Riviere had been instructed. In his evidence the Applicant asserted that he is aware that Mr Riviere wrote similar letters to both the State Parole Authority and NSW Police as Mr Riviere had admitted it in other proceedings. He submitted that through Family Court subpoenas he has seen the letters provided by NSW Police and he has had unrestricted access to their files. He has had access to the letter that Mr Riviere wrote to NSW Police and on the basis of the content of that letter he contends that the allegations that Mr Riviere made about him to the State Parole Authority were fabricated.

59. In support of that contention the Applicant pointed to a letter that Mr Riviere had written in which he referred to matters 'brought by police on behalf of Mr Salmon' and he asserts that no such matter occurred. He also referred to the assertion made by Mr Riviere that “Mr Salmon has subsequently been charged with further offences against Mr McDermott (and his wife)”. The Applicant contends that this statement was completely false and no such charges ever existed.

60. He points to an email dated 5 February 2016 from Rachel Puckett, Senior Records Release Officer, Criminal Records with the New South Wales Police Force which stated:

In response to your email the NSW Police Force can confirm you have one charge on your criminal record whereby you were arrested on 12/03/2009.

61. In his statement he wrote

It is my strongest belief that correspondence sent by Marc Riviere to the SPA was false and never intended for a lawful purpose. From police records and from cross examination of Mr Darren McDermott I can categorically say all allegations made to SPA and police against me were fabricated.

62. The Applicant asserted that he has had access to the file concerning proceedings in the Family Court. He has viewed the letters that Mr Riviere had written to police. These were provided to the Family Court of Australia under subpoena. He also notes that Mr Riviere claimed in his correspondence that the letter to the State Parole Authority is 'identical in all aspects to that written to police'. He also stated that he has read the emails contained in the Family Court file and he disputes the allegation that police had concluded that 'the children had lied to police'. He says that the allegation is false.

63. He further submitted that the release of correspondence Mr Riviere has had with the State Parole Authority does not show him in a positive or truthful light and that his desire to keep this from the Applicant is purely for self interest and nothing more.

64. The Applicant submitted that the evidence by Mr Cosman has no bearing on this matter. He noted that Mr Cosman admitted in cross examination that he could not provide any example of a loss of confidence in victims giving evidence or not giving evidence due to the agency revealing information they had provided. The Applicant submitted that it is therefore not reasonable to argue this. In any event he submitted that there is nothing in the Riviere email that would give section 194 of the Crimes (Administration of Sentences) Act any support in this GIPA matter. He submitted that section 194 has no binding relationship under GIPA. This Tribunal is not bound to consider the section 194 issue and should not.

65. In regard to Mr Riviere’s concerns of what might flow from release of the Riviere email, the Applicant submitted that the there are no further proceedings that he could bring that could be considered to be a 'reasonable risk' to Mr Riviere. None have been identified by the Respondent and therefore this issue cannot be considered reasonable or relevant. He further submitted that the Respondent has not identified any steps that could put Mr Riviere at risk. The Applicant contends that he has no history of threats, harassment or intimidation and that there are no concerns that could reasonably be expected to be relevant to whether there is a public interest against disclosure.

66. He further stated that he has Mr Riviere's details and many documents from him. He has viewed police files in family court proceedings and is aware that the other parties are his children and former spouse and her husband. He submitted that there is nothing confidential about these parties and that the Family Court proceedings ensure nothing is confidential in any of their lives.

Consideration

67. In these reasons I have referred to specific evidence and submissions relied on by each of the parties. However I do not refer to all of that information. I have had regard to all of the evidence and submissions in these proceedings including material that I do not refer to in these reasons.

68. I note that the Respondent relies on clauses 2(a), 2(b), 3(f) and 4(d) of the Table to section 14 of the GIPA Act.

69. As noted above, clauses 2(a) and 2(b) provide that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to:

(a)    reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant,

(b)    prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law

70. On the evidence before me I do not accept that the release of the Riviere email could reasonably be expected to have either of those outcomes. As noted, Mr Riviere's identity is already known, as is the identity of his children, his ex-wife and her husband. Release of the email could not reveal what is already known. In my view, the likelihood that release of the Riviere email could prejudice the future supply of information from an informant would be very low. There is no evidence before me to support that contention. Similarly, I do not accept that release of the Riviere email could reasonably be expected to prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law. There is no evidence before me to support that contention.

71. In the circumstances, it is my view that these factors should be given little or no weight.

72. In regard to the Respondent’s assertion based on clause 3(f) of the Table to section 14 of the GIPA Act, it is my view that there is some possibility that disclosure of the information could reasonably be expected to result in the Applicant taking some action in regard to Mr Riviere. However, if he were to do so, I do not consider that using legitimate legal processes can be regarded as falling within the scope of clause 3(f). The Applicant is entitled to use whatever legitimate legal processes are available to him. If, for example, he is entitled to make a complaint to the Legal Services Commissioner or bring an action in defamation, I do not consider that such action can be regarded as exposing a person to “a risk of harm or of serious harassment or serious intimidation” for the purposes of clause 3(f). This falls far short of the required standard to be met as referred to above: AEZ v Commissioner of Police.

73. In the circumstances, it is my view that this factor should be given little weight.

74. Similarly, while there could clearly be some consequences to Mr Riviere’s business if the Applicant were to take some action against him, that would not be a consequence of the release of the Riviere email. It would be a consequence of whatever action the Applicant takes.

75. I accept the Applicant’s evidence that he has had access to the Family Court file and that he is therefore aware of Mr Riviere’s correspondence. Any action that the Applicant could take in regard to Mr Riviere could be taken regardless of whether he gains access to the Riviere email.

76. In the circumstances, it is my view that this factor should be given little or no weight.

77. For completeness, I note that I also agree with the Applicant that section 194 of the Crimes (Administration of Sentences) Act is not a factor for consideration in this matter. Further, there is also no evidence to support any claim for legal privilege in relation to the Riviere email.

78. I accept that section 55 of the GIPA Act has some relevance in these proceedings because of prior dealings between the Applicant and Mr Riviere. However, in my view the personal factors of the application are evenly balanced both in favour of and against providing the Applicant with access to the information.

79. It is necessary that I weigh the public interest factors in favour of the release of the Riviere email against those factors that have been identified as against its release. As noted, section 5 of the GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. Section 12 provides a number of public interest factors in favour of disclosing government information and I have set these out above.

80. Given my views in regard to the factors that the Respondent relies on, I am not satisfied that there is any reasonable basis to move away from the presumption set out in section 5. Accordingly, it is my view that the decision to refuse to release the Riviere email should be set aside and in its place the decision should be made that the email is to be released.

81. I note that the Applicant has also raise the question of whether the Tribunal should take action under section 112 of the GIPA Act. Section 112 provides:

112 Report on improper conduct

If NCAT is of the opinion as a result of an NCAT administrative review that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act, NCAT may bring the matter to the attention of the Minister who appears to NCAT to have responsibility for the agency.

82. I have commented briefly about Ms Fulford’s evidence regarding the Respondent’s approach to recommendations by the Office of the Information and Privacy Commission. While this is of itself cause for concern, it appears to me that it reflects an attitude within the organisation rather than the conduct of a particular officer of the agency that shows that the officer has failed to exercise in good faith a function conferred on them by or under the GIPA Act.

83. In the circumstances, I decline to make the requested referral under section 112 of the GIPA Act.

Orders

1. The decision under review is set aside.

2. The decision is made that the email response from Marc Riviere to the Manager, Information Access & Privacy United dated on or around 13 December 2013 is released.

3. The application for a referral pursuant to section 112 of the Government Information (Public Access) Act 2009 is refused.

4. The Respondent, and any other person, is prohibited from publishing those headings and paragraphs of these reasons identified as “not for publication”.

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: 15 November 2016