Thompson -v- The Lord Howe Island Board

[2003] NSWADT 193

CITATION:	Thompson & Ardill v The Lord Howe Island Board [2003] NSWADT 193
DIVISION:	General Division
PARTIES:	APPLICANTS Rodney Thompson & Barbara Ardill RESPONDENT The Lord Howe Island Board
FILE NUMBER:	033070
HEARING DATES:	25/06/2003
SUBMISSIONS CLOSED:	06/25/2003
DATE OF DECISION:	07/16/2003
BEFORE:	Hennessy N - Magistrate (Deputy President)
APPLICATION:	access to documents - personal affairs - Freedom of Information Act - access to documents - personal affairs
MATTER FOR DECISION:	Principal
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Commissioner of Police v District Court of NSW (Perrin’s case) (1993) 31 NSWLR 606 Young v Wicks (1986) 79 ALR 448 Colakavski v Australian Telecommunications Corporation (1991) 29 FCR 429 Gilling v General Manager, Hawkesbury Shire Council [1999] NSWADT 43 Chandra and Minister for Immigration and Ethic Affairs (1984) 6 ALD 257
REPRESENTATION:	APPLICANTS In Person RESPONDENT E Glancey, solicitor
ORDERS:	1. The agency’s decision is varied to give Mr Prout access to the recording without any deletions. ; 2. The publication or broadcast of any report of these proceedings is prohibited for 28 days from the date of this decision. ; 3. The publication of evidence given before the Tribunal or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal is prohibited for 28 days from the date of this decision.

REASONS FOR DECISION

Introduction

1 Ms Ardill and Mr Prout are neighbours who live on Lord Howe Island. They are not on good terms. Ms Ardill has a number of tourist units on her property. She objected to a development application lodged by Mr Prout to build a house on land adjacent to her property. On 11 March 2002 Ms Ardill and another Lord Howe Island resident, Mr Thompson, had a private meeting with officers of The Lord Howe Island Board (the agency) in relation to Mr Prout’s development application.

2 On 17 May 2002 Mr Prout applied under the Freedom of Information Act 1989 (FOI Act) for “access to documents concerning discussions between B Ardill and R Thompson and Lord Howe Island Board during Board Meeting March 2002 concerning my DA 2001/05 including copy of any tape recordings made.” Two documents fell within this request, namely the brief written minutes of the private meeting with the applicants and the tape recording of the meeting (the recording).

3 The applicants did not object to Mr Prout being given access to the minutes and the agency made a determination that access be granted. The minutes stated that:

The Board welcomed Mrs Ardill and Mr Thompson to the meeting and noted their concerns regarding development application 2001/05 lodged by Mr N Prout. The Board also noted that no new information or concerns were brought up during this discussion and that the points covered had already been repeatedly raised in written submission to the Board and others. This interview was held on Monday 11 March commencing at approximately 2.45 pm and lasting approximately 60 minutes. The proceedings of the interview were audio taped by the interviewees with the Board’s agreement. A copy of one of the audiotapes was retained by the Board.
4 The applicants objected to Mr Prout being given access to the recording. That objection was made after the agency consulted with them pursuant to s 31 of the FOI Act because it considered that the documents may contain information concerning the applicants’ personal affairs. Several other people were mentioned in the private meeting but the agency did not consult with them.

5 After taking into account the applicants’ objection, the agency determined that Mr Prout should be given access to the recording with the names of two other people deleted. The applicants requested an internal review of that decision. Although an internal review was not completed within the 14 day time limit allowed by s 34(6) of the FOI Act, a review was subsequently undertaken which affirmed the original determination.

6 The applicants applied to the Tribunal for a review of the agency’s decision. The Tribunal must determine, pursuant to s 63 of the Administrative Decisions Tribunal Act 1997 (ADT Act), what the “correct and preferable” decision is having regard to the material now before it. The agency submitted that despite the fact that the original determination was affirmed, the “correct and preferable” decision is to grant Mr Prout access to the entire recording without the deletion of any names. The applicants submitted that the correct decision was not to grant Mr Prout access to the recording.

7 The Tribunal has jurisdiction to review the decision pursuant to s 53 of the FOI Act.

Legislative framework

8 Under s 16 of the FOI Act a person has a legally enforceable right to an “agency’s documents”. An agency can refuse access to a document if it is an exempt document. Section 61 of the FOI Act provides that “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.” Consequently, although the agency has decided to grant access to the document, the burden of proof remains on it to establish that the determination is justified.

9 The legislative basis for the applicants’ objection was Clause 6(1) of Schedule 1 to the FOI Act which states that:

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).
Issues

10 The legislation and the submissions raise three issues which the Tribunal must determine. The first is whether the recording is one of the “agency’s documents” as required by s 16. If so, the second question is whether the recording contains material relating to the applicants’ personal affairs. If it does, the final question is whether granting Mr Prout access to the recording “would involve the unreasonable disclosure” of that personal information.

The agency’s documents

11 In relation to the first issue, the applicants submitted that since the recording is their property it is not subject to the FOI Act. Mr Thompson also said that they were not making an official submission at that meeting because the agency did not receive it 14 days prior to their consideration of the development application. The difficulty with these submissions is that under s 16 of the FOI Act a person has a legally enforceable right to be given access to an agency’s documents. Section 6 defines an “agency’s document” to mean “a document that is held by the agency.” A “document” includes “any disc, tape or other article from which sounds, images or messages are capable of being reproduced.” Since the agency held the recording, it is subject to the FOI Act, despite the fact that the agency did not create the document or that it may not have been an official submission.

12 Mr Thompson also mentioned that he had copyright over the tape. There is no need for me to decide whether or not that is the case because there is nothing in the FOI Act which allows an agency to refuse to provide access to a document because someone else holds copyright in that document. The only provision relating to copyright in the FOI Act is s 27(3)(c) which allows an agency to refuse to give access in the form requested if that “would involve an infringement of copyright subsisting in matter contained in the document.” If access in that form is refused, access must be given in another form.

Personal affairs

13 The second issue is whether the recording contains material relating to the applicants’ personal affairs. Personal affairs have been described as ‘the composite collection of activities personal to the individual concerned” (Commissioner of Police v District Court of NSW (Perrin’s case) (1993) 31 NSWLR 606 at 625); matters of private concern to a person (Young v Wicks (1986) 79 ALR 448) and information which concerns or affects a person as an individual (Colakavski v Australian Telecommunications Corporation (1991) 29 FCR 429).

14 The applicants’ submitted that that all the information in the recording concerns their personal affairs because it was communicated in a private meeting. The applicants said that they expected the contents of the meeting to be kept confidential because they were the only ones present. The agency did not tell them that a person could be given access to any recording made of the meeting under the FOI Act. If they had known that the agency intended to give Mr Prout access to the recording under the FOI Act, they would not have attended the meeting, or would not have recorded it. They felt betrayed by the agency’s decision.

15 The fact that both the agency and the applicants understood that the meeting was private, is not relevant to the question of whether the information in the recording itself concerns the applicants’ personal affairs. The information in the recording itself must concern their personal affairs before the exemption in Clause 6 can apply. The circumstances in which the information was obtained may, however, be relevant to the reasonableness of any disclosure to a third party.

16 The agency submitted that the majority of the recording dealt with environmental and legal objections to the development application and the Board’s response to that application which are not part of the applicants’ personal affairs. However, the agency conceded that parts of the recording concerns Ms Ardill’s personal affairs, namely her comments about her poor relationship with Mr Prout, statements about her financial status and the effect of the development on her financial affairs.

17 For the purpose of determining whether the recording contains information concerning the applicant’s personal affairs, the content can be divided into the following categories:

· the names of the applicants and agency officials;

· the names of other people mentioned during the meeting;

· the applicants’ views about the validity of the development application;

· the applicants’ views about the agency’s handling of the development application;

· the applicants’ views about the environmental impact of the proposed siting of the development;

· the difficulty of Ms Ardill’s relationship with Mr Prout including noise generated by parties on Friday nights, which resulted in her obtaining an apprehended violence order against him; and

· the potential effect of the development on Ms Ardill’s business; and

· Ms Ardill mentioning her late husband.

18 The names of the applicants and agency officials. The Tribunal has previously regarded the name of a person objecting to a development application as concerning their personal affairs. (Gilling v General Manager, Hawkesbury Shire Council [1999] NSWADT 43 at [35] to [44]. I find that in the context of providing information to the agency, the applicants’ names concern their personal affairs. The names of agency officials revealed in the course of the performance of their duties does not concern their personal affairs (Perrin's Case [1993] 31 NSWLR 606 at 625).

19 The names of other people mentioned during the meeting. The names of several people were mentioned during the course of the meeting. These people’s names were mentioned in the context of their official or work-related roles and not in their personal capacity. Consequently the agency’s decision to delete the names of two people mentioned in the recording is not the correct decision as that information does not concern the personal affairs of any person.

20 Views about the development application. The applicants’ views about the validity of the development application, the agency’s handling of the development application and the environmental impact of the development are opinions about matters of public interest and concern. They do not relate to their personal affairs.

21 Ms Ardill’s relationship with Mr Prout. The difficulty of Ms Ardill’s relationship with Mr Prout including noise generated by parties on Friday nights, which resulted in her obtaining an apprehended violence order against him clearly relate to her personal affairs.

22 Effect of the development on Ms Ardill’s business. While this may relate to Ms Ardill’s business affairs under Clause 7(1)(c) of the FOI Act that provision was not raised in the course of the hearing. In any case, it is highly unlikely that the information relating to Ms Ardill’s business affairs would be exempt under that provision. It is not exempt under Clause 6.

23 Ms Ardill mentioning her late husband. This information concerns Ms Ardill’s personal affairs.

Unreasonableness

24 The third issue is whether disclosure of the personal information would be unreasonable. A determination of reasonableness requires the Tribunal to balance the public interest in the disclosure of information with the competing public interest in the protection of the privacy of the individual. (Re Chandra and Minister for Immigration and Ethic Affairs (1984) 6 ALD 257.) Factors which are relevant to the question of unreasonableness are: the views of the third parties; the nature and extent of any prejudice to third parties if the information is disclosed; the circumstances in which the information was obtained, the current relevance of the information and whether disclosure would serve the public interest purposes of the legislation.

25 In relation to the views of Ms Ardill, she did not specifically object to the disclosure of her personal information because it was sensitive or would cause her embarrassment or offence. She objected to the disclosure of all the information on the recording largely because the meeting was held in private and should therefore remain confidential.

26 In relation to the nature and extent of any prejudice to Ms Ardill if the information is disclosed she expressed concern that disclosure would exacerbate the already tense relationship between her and Mr Prout and adversely affect her reputation. Ms Ardill told the Tribunal that she and Mr Prout had apprehended violence orders against one another and recounted some of the history of the relationship with her former husband and Mr Prout. She said that it would be better if things were left as they were since the development application had now been approved.

27 Any prejudice to Ms Ardill of her personal information being disclosed is significantly diminished because all of the information contained in the recording has had already been disclosed to Mr Prout. On 26 July 1999, Ms Ardill wrote to the agency objecting to the development application because of the environmental impact and because of “Prout himself”. In relation to the second objection, she wrote:

2. Prout himself. When he took up residence next door my late husband and myself had to endure his Friday night parties which start around 1 am. My late husband would call the police. Sometimes they would come up twice in one night. Our guest would complain. So this has an effect on our business. If he builds out in the front my guests will hear all the noise and I will have unhappy guest. My business will be affected by this and no one has the right to interfere with your business.
28 The agency gave Mr Prout all objections made to the development application including those made by the applicants.

29 The circumstances in which the information was obtained is important. The meeting was held in private and the applicants’ expectation was that the recording would not be released to any third party.

30 The information is not currently relevant because the development application has been approved and building has commenced. However, as the agency pointed out, because the release of the recording will reveal information on which the agency’s decision was based, Mr Prout will be able to understand the basis for that decision.

31 However disclosure would serve the public interest purposes of the legislation because it would promote transparency of the agency’s processes and accountability for their decision-making. A policy of “open access” to objections to development applications discourages the lodging of submissions in bad faith or the making of malicious or gratuitous comments about the person seeking approval. To the extent that the recording contains complaints about Mr Prout’s behaviour, it is in the public interest that he be made aware of the substance of those complaints, even if they are not new.

32 Mr Prout already knows the vast majority of the information in the recording because it is contained in earlier submissions made by the applicants to the agency. There would be little, if any, prejudice to Ms Ardill if this information were disclosed again. The only factor which suggests that it would be unreasonable to disclose the information is the fact that the meeting was held in private. In my view, the fact that the meeting was held in private and that the applicant’s expectations were that the information would not be disclosed, does not outweigh the important public interest purposes of the legislation. Consequently, the disclosure of the applicants’ personal affairs is not unreasonable and the correct and preferable decision is that the recording, in its entirety, should be given to Mr Prout.

Non-publication order

33 Under s 55 of the FOI Act, the Tribunal “is to ensure that it does not, in the reasons for its decision or otherwise, disclose any exempt matter.” As the Tribunal has determined that the information is not exempt, the information is disclosed in this decision. However, to preserve the applicants rights on appeal, I will not make the decision available to the public until any appeal rights which the applicants may choose to pursue have been exhausted. Consequently I make orders pursuant to s 75(b1) and (c) of the ADT Act that:

The publication or broadcast of any report of these proceedings is prohibited for 28 days from the date of this decision.

The publication of evidence given before the Tribunal or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal is prohibited for 28 days from the date of this decision.