Spice v Mosman Council

[2016] NSWCATAD 215

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Spice v Mosman Council [2016] NSWCATAD 215
Hearing dates:	15 September 2016
Date of orders:	28 September 2016
Decision date:	28 September 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Ludlow, Senior Member
Decision:	The decision under review is varied as follows:  (a) The applicant is to be given access to folios 26, 28, 29, 30, 34 and 39.
Catchwords:	ADMINISTRATIVE LAW –– access to government information – deliberative process of government or agency – overriding public interest against disclosure
Legislation Cited:	Government Information (Public Access) Act 2009 (NSW) Administrative Decisions Review Act 1997 (NSW)
Cases Cited:	Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 Re Waterford and Department of the Treasury (No.2) (1984) 5 ALD 588 McKinnon v Secretary Department of Treasury [2006] HCA 45
Texts Cited:	Macquarie Dictionary
Category:	Principal judgment
Parties:	Wayne Spice (Applicant) Mosman Council (Respondent)
Representation:	Solicitors: W Spice (Applicant in person) Pikes and Verekers Lawyers (Respondent)
File Number(s):	1610205

REASONS FOR DECISION

1. This is an application for review of the internal review decision by Mosman Council dated 7 January 2016 of the applicant’s access application under the Government Information (Public Access) Act 2009 (“GIPA Act”) of 11 November 2015 for the following information:

“Correspondence relating to Wayne Spice, [address], 10/50 Vegetation Clearing and Mosman Council Tree Pruning and Lopping.”

2. On internal review the Council released some information additional to that already released under the original determination and determined not to release other information. It did so on the basis that there was an overriding public interest consideration against the release of the information. There were 2 public interests relied upon.

3. Firstly, that under Table 1 of s 14, cl 1(e) of the GIPA Act, that disclosure could reasonably be expected to reveal Council’s deliberative processes in such a way as to prejudice a deliberative process. The processes concerned included the investigation, assessment and prosecution of apparent breaches of Council policy, the Mosman Local Environmental Plan 2012, the Environmental Planning and Assessment Act 1979 and / or the Local Government Act 1993.

4. Secondly, that disclosure would release information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege. There is a conclusive presumption of an overriding public interest against disclosure of such information under Sch 1 cl 5 (1). The internal review decision stated that Council had considered waiving its right to privilege but declined to do so. That decision is not reviewable by the Tribunal (Sch.1 cl 5 (3)).

The issues before the Tribunal

5. When the matter came before the Tribunal on the day of the hearing, the Applicant raised for the first time a submission that the client legal privilege had been waived by the Council. He did so in reliance on an email which is Exhibit 1 and a conversation which he alleged had occurred. However, he had not notified the respondent Council of this part of his case nor had he filed or served any evidence or submissions on this point prior to the hearing. The Respondent did not object to the admission of the email but it did object to the admission of oral evidence as to the conversation. After a short adjournment Mr Spice advised the Tribunal that he was no longer pressing for access to the documents which the Respondent claimed were covered by client legal privilege.

6. The hearing then proceeded on the basis that only the information in folios 26, 28, 29, 30, 34 and 39 were in contention. This information was subject to a claim that their disclosure would disclose Council’s deliberative processes. Also it was claimed that two of the folios were “file notes” and did not come within the scope of the application, which sought “correspondence.”

The relevant legislation

7. Section 3 of the GIPA Act sets out its objects:

(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.

8. Section 5 of the GIPA Act provides:

“There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.”

9. Section 13 provides:

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

10. Clause 1(e) of the Table to s14 of the GIPA Act provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to “reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency.”

11. Section 15 sets out principles which apply to determining whether there is an overriding public interest against disclosure. There are no relevant guidelines issued by the Information Commissioner. In making a decision, I must promote the objects of the Act.

12. In any review of a reviewable decision, s 105 places the burden of justifying the decision on the agency concerned. It provides -

(1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section.

(2) If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review.

13. The Tribunal's function on review under s 63 of the Administrative Decisions Review Act 1997 is to make the correct and preferable decisions having regard to the material before it, and any applicable written or unwritten law. The Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.

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

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

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

15. Section 63 of the Administrative Decisions Review Act 1997 states:

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

The Respondent’s case

16. The Respondent tendered an affidavit of Anthony Gerard Fitzpatrick sworn 1 August 2016. Mr Fitzpatrick’s evidence was not disputed by the Applicant. His affidavit describes relevantly the process to be followed by the Council in relation to action in respect of what is referred to as a “tree breach”, being a breach under cl. 5.9 of the Mosman Local Environmental Plan 2012. He identified the persons involved in the decision making process surrounding the investigation and prosecution arising from alleged unauthorised removal of trees from private land. It was evident that the Mayor in consultation with the General Manager makes any decision to commence legal proceedings and the Mayor, General Manager or Director Environment and Planning may seek advice, briefing or recommendations from those council officers having conduct of the proceedings.

17. Ms Hold for the Respondent referred me to Re Waterford and Department of the Treasury (No.2) (1984) 5 ALD 588 where it was held that the deliberative processes involved in the functions of an agency are “its thinking processes — the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action” (at [58]). She also cited McKinnon v Secretary of the Treasury [2006] HCA 45 at [5] which held that the decision as to whether disclosure of an internal working document would be contrary to the public interest should not be made in a vacuum.

18. The Respondent submitted that it would be disruptive to Council’s function of prosecuting breaches to require the disclosure of documents such as email correspondence between Council staff relating to the formation of a decision whether to prosecute a particular person.

The Applicant’s case

19. The Applicant submitted that this was exactly the kind of information which should be released under the GIPA Act. The relevant background as provided by the Applicant was that the Council had prosecuted the applicant for damage to a tree. The Council withdrew the prosecution at a late stage. He submitted that the Council’s decision to withdraw its prosecution against him had indicated that the proceedings were initiated without reasonable cause.

20. In reply, the Respondent submitted that the conduct of the prosecution was not relevant to the matter before the Tribunal.

Consideration

21. I considered the information in the presence of the applicant, as it was not necessary to refer to the contents of the documents in any more detail than they were described in the Respondent’s submissions.

22. The information in issue is contained in folios 26, 28, 29, 30, 34 and 39.

23. In my view the evidence before the Tribunal does not show that the information in folios 26, 30 and 39 reveals a deliberation, consultation, opinion, advice or recommendation. Therefore, the information does not fall within the category of cl 1(e) of Table 1 to s 14 of the Act.

24. The Respondent submitted that folios 28 and 29 revealed a deliberative process of the respondent and its release would act to stifle the ability of the Respondent to seek proper advice on contentious matters. Having considered the information contained in these documents, I am unable to agree. At the most, they reveal the outcome of a decision, and in very brief terms. There is nothing in the information or Mr Fitzpatrick’s affidavit to indicate why release would have the prejudicial effect of preventing officers of the Council seeking advice about proceedings.

25. The Respondent also submitted that Folios 28 and 29 were file notes and therefore not within the scope of the application, which sought “correspondence”. The Applicant submitted that he had intended to seek all information held, and this reliance on the word “correspondence” was just a technicality.

26. The Macquarie Dictionary defines “correspondence” as “communication by exchange of letters … letters that pass between correspondents.”

27. The GIPA Act deals with access to information, rather than documents. An applicant under the Act must include such information in their application as is reasonably necessary to enable the government information applied for to be identified. In my view it was reasonable for the Respondent to provide communications between correspondents only. However, the Tribunal’s role is to make the correct and preferable decision having regard to the material before it. The notes communicate information to other persons using the file. They do not appear to be merely for the purpose of the person who made them. In keeping with the objects of the Act, and given that I have identified no overriding public interest against disclosure, I am inclined to give a broad interpretation to the word “correspondence” in this case.

28. Folio 34 in my view does reveal that a consultation was sought, and its nature. But in order to establish that a public interest against disclosure exists the Respondent must establish that disclosure of this information would reasonably be expected to prejudice a deliberative process of government or an agency. It was submitted by the Respondent that it would be disruptive to the function of Council to prosecute breaches, to disclose information such as email correspondence between staff relating to forming a decision whether to prosecute a particular person.

29. Folio 34 contains information relating to consultation concerning the obtaining of legal advice. It does not contain legal advice. The Respondent has not met the onus of establishing that disclosure of this information could reasonably be expected to prejudice Council’s deliberative processes concerning decisions to prosecute. I do not think it can reasonably expected that this Council, or a Council, would hesitate to obtain legal advice before initiating a prosecution because of the disclosure of information of the nature of Folio 34.

30. Accordingly the correct and preferable decision in this case is to give Mr Spice access to folios 26, 28, 29, 30, 34 and 39.

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: 28 September 2016