Tisdale v Cumberland City Council

[2021] NSWCATAD 132

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Tisdale v Cumberland City Council [2021] NSWCATAD 132

Hearing dates:

26 November 2020

Date of orders:

21 May 2021

Decision date:

21 May 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

1.   Cumberland City Council is to undertake further searches to ascertain whether the General Manager’s office has any further information which may fall within the scope of the Applicant’s requests.

2.   The further searches are to be completed within 21 days of these orders and the outcome of the searches is to be advised to the Applicant and the Tribunal.

3.   The matter is listed for a further case conference on Monday 28 June 2021 at 12:30 pm.

4.   The decisions under review are otherwise affirmed.

Catchwords:

ADMINISTRATIVE LAW – government information – access application – whether public interest considerations against disclosure outweigh public interest considerations in favour of disclosure –whether risk of harm or serious harassment or serious intimidation if disclosed – whether reasonable searches undertaken – legal privilege – conclusive presumption against disclosure.

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Administrative Decisions Review Act 1997

Government Information (Public Access) Act 2009

Evidence Act 1995

Cases Cited:

Australian Vaccination Network v Department of Finance & Services [2013] NSWADT 60

Dezfouli v Justice Health & Forensic Mental Health Network [2018] NSWCATAD 11

Klaric v Commissioner of Police [2020] NSWCATAP 153

Wojciechowska v Commissioner of Police [2020] NSWCATAP 173

Category:

Principal judgment

Parties:

Terry Tisdale (Applicant)
Cumberland City Council (Respondent)

Representation:

Solicitors:
Stringybark Legal (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2020/00226816; 2020/224009

Publication restriction:

Pursuant to section 64(1) of the Civil and Administrative Tribunal Act 2013, the content of the material that was filed by the Respondent on a confidential basis is not to be disclosed without further order of the Tribunal.
Those paragraphs of these reasons identified as “not for publication” are not to be released, other than to the Respondent, without further order of the Tribunal.
No record of the confidential sessions is to be disclosed, other than to the Respondent, without further order of the Tribunal.

Reasons for Decision

Introduction

1. These applications concern two determinations by Cumberland City Council (“the Respondent” or “the Council”) under the Government Information (Public Access) Act 2009 (“the GIPA Act”). Mr Terry Tisdale (“the Applicant”) applied to the Respondent seeking information held by the agency.

2. The Applicant is a resident of Benaud Street Greystanes (“Benaud Street”). The information that he seeks concerns incidents that have allegedly occurred in Benaud Street and which allegedly involved the Applicant and other residents of Benaud Street.

3. The two GIPA Applications were the subject of separate determinations by the Respondent’s Access to Information Officer, Ms Julie Albazouni.

4. One of the applications sought documentation relating to a Penalty Notice (“the Penalty Notice”) issued to the Applicant by the Council in December 2019 (“the Penalty Notice GIPA”). The penalty notice was issued for an alleged offence under the Protection of the Environment Operations Act 1997 (“the POEO Act”).

5. The other GIPA application sought documentation relating to declaration that the Applicant is an unreasonable complainant (“the Unreasonable Complainant GIPA”).

The Penalty Notice GIPA

6. In this access application the Applicant requested:

a)   A copy of all records relied on by Council when it determined to issue the notice of investigation sent to Mr Tisdale on 18 December 2019, as well as the purported notice sent on 28 November 2019;

b)   A copy of any records commenting on the alleged littering of 19 November 2019 by Mr Tisdale by Council's General Manager or any other staff member;

c)   A copy of any records made by Council which comment on the issuing of a PIN to Mr Tisdale for littering, prior to determining to issue a PIN on 24 December 2019;

d)   A copy of any records of comments by Council's General Manager or any other staff member subsequent to the issuing of a PIN to Mr Tisdale on 24 December 2019 by Council;

e)   A copy of all records of instructions given to Council Rangers to deliver the PIN to Mr Tisdale by hand on 24 December 2019 as well as a copy of all records which report, or comment on, the service of the PIN on 24 December 2019;

f)   A copy of any records of comments by Council's General Manager or any other staff member on the issue and decision to have Council Rangers to deliver the PIN to Mr Tisdale by hand on 24 December 2019;

g)   A copy of all records of the decision to cancel PIN 3179162517, and the reasons for the cancellation;

h)   A copy of any records of comments by Council's General Manager or any other staff member on the issue and decision to cancel PIN 3179162517; and

1. A copy of all records which communicated the decision to cancel PIN 3179162517 and the reasons why.

   7. Ms Albazouni undertook a search of the Council’s records and located a number of documents that fell within the scope of the request. She determined to provide some of the information to the Applicant but withheld other information on the basis that it was legally privileged information and the privilege had not been waived. She determined that therefore it was conclusively presumed that there is an overriding public interest against disclosure of the information pursuant to Clause 5(1) of Schedule 1 to the GIPA Act.

The Unreasonable Complainant GIPA

8. In this access application the Applicant requested:

a    A copy of the correspondence claimed to have been sent to Mr Tisdale on 9 November 2019 regarding his alleged unreasonable conduct;

b    A copy of any memos or file notes made by the General Manager, or their delegate, in making the decision to determine and declare Mr Tisdale as an unreasonable complainant;

c    A copy of any memos or file notes made by the General Manager, or their delegate, when making the decision to determine and declare Mr Tisdale as an unreasonable complainant which refer to the allegation that Mr Tisdale did not observe the warning letter dated 19 November 2019;

d    A copy of any records, memos or file notes made by the General Manager, or their delegate, in communicating the decision to determine Mr Tisdale an unreasonable complainant to Council staff; and

e    A copy of Mr Tisdale's file or files, which were referred to in making the determination that he had engaged in unreasonable conduct.

9. Ms Albazouni undertook a search of the Council’s records and located a number of documents that fell within the scope of the request. She determined to provide some of the information to the Applicant but withheld other information on the basis that there is an overriding public interest against disclosure of some of that information as the disclosure could reasonably be expected to expose a person to a risk of harm or of serious harassment or serious intimidation.

The Application to the Tribunal

10. The Applicant was not satisfied with the determinations. He did not seek an internal review by the Respondent of either of the decisions however he has sought external review in the Tribunal. By agreement between the parties and the Tribunal the two matters were heard together. Mr James Ryan appeared for Mr Tisdale. Mr Tom Ward appeared for the Respondent.

11. Following case conferences held in relation to both sets of proceedings on 8 September 2020, the Respondent undertook further searches and provided the Applicant with further documentation in relation to these proceedings.

Issues in dispute

12. There are three issues in dispute. Firstly, whether the searches undertaken by the Respondent were adequate to locate all the information held by the council that falls within the scope of the access applications. If the searches were not adequate, the issue arises as to whether the Respondent should be ordered to undertake further searches. This issue relates to the Unreasonable Complainant GIPA and particular concerns information relating to the Council's General Manager.

13. Secondly, whether the information that is said to subject to legal professional privilege falls within the scope of clause 5 of Schedule 1 to the GIPA Act. The claim for legal professional privilege concerns two emails related to the Penalty Notice GIPA This issue requires consideration of whether the documents were brought into existence for the dominant purpose of providing legal advice to a client or the client being provided with professional legal services. Were they prepared for one or both of the dominant purposes referred to in sections 118 and 119 of the Evidence Act 1995?

14. The Council’s position is that privilege has not been waived and that this information should not be released.

15. It is not in dispute that the claim relates to communication from an in-house lawyer, Mr Colin McFadzean. The Applicant does not contend that there is a lack of independence because of the relationship between Mr McFadzean and the Council. There is no claim that Mr McFadzean was not objective or that he has been unprofessional in any way.

16. Thirdly, whether the disclosure of certain information about a complainant or complainants (“the third parties”) and accompanying CCTV video footage (“the video footage”) could reasonably be expected to expose a person to a risk of harm, or of serious harassment or serious intimidation: clause 3(f) of the table to section 14 of the GIPA Act. The video footage was provided by third parties who objected to the release of the footage as they wished to protect their identity. The video footage issue relates to the Penalty Notice GIPA as it formed the basis for the issue of the penalty notice.

Material before the Tribunal

17. The Applicant relies on his own affidavit evidence and annexures and written and oral submission. He attended the hearing and was cross-examined.

18. The Respondent relies on written and oral submissions; an affidavit of Mr McFadzean and an open affidavit of Ms Albazouni with annexures. Mr McFadzean was not required for cross-examination. However, Ms Albazouni attended the hearing by telephone and was cross-examined.

19. The Respondent also relies on a confidential affidavit by Ms Albazouni which annexed un-redacted versions of the information which has been withheld. The confidential affidavit also annexes evidence upon which the Respondent seeks to rely. These annexures relate to the withholding of information based on clause 3(f) of the table to section 14. The video footage has been provided to the Tribunal on a USB stick as part of the confidential affidavit of Ms Albazouni.

20. Section 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (“the Tribunal Act”) enables the Tribunal to make an order prohibiting or restricting disclosure of the contents of a document to some or all of the parties to the proceedings if satisfied it is desirable to do so by reason of the confidential nature of the matter or for "any other reason".

21. Section 107 of the GIPA Act provides:

1. Procedure for dealing with public interest considerations

2. In determining an application for NCAT administrative review, NCAT 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.

3. On an NCAT administrative review, NCAT 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 NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.

   22. A confidential session was held in relation to the confidential evidence. Orders were made under Section 64 of the Tribunal Act and section 107 of the GIPA Act that the Respondent did not have to serve some material which had been filed with the Tribunal on a confidential basis. Accordingly, that material has not been provided to the Applicant. Nevertheless, I have taken that material into account.

   23. [NOT FOR PUBLICATION]

   24. [NOT FOR PUBLICATION]

   25. [NOT FOR PUBLICATION]

   26. [NOT FOR PUBLICATION]

   27. [NOT FOR PUBLICATION]

   28. [NOT FOR PUBLICATION]

Applicable legislation

29. Under the GIPA Act there is a presumption in favour of the disclosure of government information unless there is an “overriding public interest against disclosure”: section 5 of the GIPA Act.

30. There is a general public interest in favour of disclosure of government information: section 12 GIPA Act. However, there can be an overriding public interest against disclosure. Section 13 of the GIPA Act sets out the test that is to be applied in determining whether there is an overriding public interest against disclosure:

13 Public interest test

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 in favour of disclosure.

31. The public interest considerations against disclosure are set out in a Table to section 14 of the GIPA Act. Section 14 provides:

14 Public interest considerations against disclosure

1. It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.

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.

   32. Clause 5 of schedule 1 to the GIPA Act provides:

5 Legal professional privilege

1. It is to be 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 client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege.

2. If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause.

3. A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5.

   33. Clause 3(f) of the table to section 14 provides:

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,

...

34. A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the principles set out in section 15 of the GIPA Act which provides:

15 Principles that apply to public interest determination

A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles -

(a)   Agencies must exercise their functions so as to promote the object of this Act.

(b)   Agencies must have regard to any relevant guidelines issued by the Information Commissioner.

(c)   The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.

(d)   The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.

(e)   In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.

35. In determining whether there is an overriding public interest against disclosure of government information, the personal factors of the Applicant may be taken into account: section 55 of the GIPA Act.

36. In these matters, the Respondent asserts that after making reasonable searches it has no further information to provide. Section 53 of the GIPA Act states:

53 Searches for information held by agency

1. The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received.

2. An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency’s searches must be conducted using the most efficient means reasonably available to the agency.

3. The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically.

4. An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency’s established record management procedures.

5. An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency’s resources.

   37. Section 58 of the GIPA Act states:

58 How applications are decided

1. An agency decides an access application for government information by-

   (a)   deciding to provide access to the information, or

   (b)   deciding that the information is not held by the agency, or

   (c)   deciding that the information is already available to the applicant (see section 59), or

   (d)   deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or

   (e)   deciding to refuse to deal with the application (see section 60), or

   (f)   deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact.

Note-

These decisions are reviewable under Part 5.

1. More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for.

2. If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired.

   38. The decision of the Respondent to refuse access is a reviewable decision under section 80 of the GIPA Act. The Tribunal has jurisdiction to conduct the review by reason of section 9 of the Administrative Decisions Review Act 1997 (“the ADR Act”).

   39. The Tribunal’s function on review is to decide the correct and preferable decision, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law: section 63(1) of the ADR Act). In deciding the correct and preferable decision, the Tribunal stands in the shoes of the decision maker and remakes the decision, as if it were the administrator: section 63(2) of the ADR Act.

   40. In conducting a review, the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any material before it at the time of the review. The time at which the Tribunal is to determine the correct and preferable decision is at the time the Tribunal makes its decision.

   41. In respect of the burden of establishing that a decision is justified, section 105 of the GIPA Act states:

105 Onus on agency to justify decisions

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.

3. If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review.

4. If the review is of a decision to include information in a disclosure log despite an objection by the applicant for review, the burden of establishing whether the objection outweighs the general public interest to have the information included lies with the applicant for review.

   42. The Applicant has raised an issue about the searches and the adequacy of searches and has given some explanation in regard to why he believes that there should be other material. In Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 the Appeal Panel reviewed a number of authorities relating to section 53 of the GIPA Act and stated at paragraph [36] - [44]:

5. Section 53 of the GIPA Act imposes an obligation on an agency to undertake “such reasonable searches as may be necessary to find” the requested information: s 53(2). That obligation is limited to “information held by the agency when the [access] application is received”: s 53(1). The search must be conducted “using the most efficient means reasonably available to the agency”: s 53(2). The obligation extends to searches using “any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically”: s 53(3). The obligation to search does not extend to searches that would require a “substantial and unreasonable diversion of the agency’s resources”.

6. The question of whether there are reasonable grounds to believe that the information the subject of the access application exists and is held by an agency, is plainly relevant to the nature and extent of the searches required to be undertaken to discharge the obligation under s 53. Where, for example, the likelihood of the requested information existing and being held by the agency is farfetched or fanciful, for example, NSW Health holding information about US President Donald Trump’s Twitter account or evidence of alien life in Wagga Wagga, arguably no search could properly be characterised as being a “reasonable search … as may be necessary to find any of the government information applied for” and, therefore no obligation to search arises. Conversely, where it is reasonably likely that the requested information exists and is held by the agency, a cursory search said to be unable to find the requested information, is unlikely to satisfy the obligation imposed by s 53.

7. However, in my view, there is no warrant for interpreting s 53 of the GIPA Act to mean that the obligation to undertake “reasonable searches” is enlivened only where the access applicant establishes to the satisfaction of the agency (or the Tribunal on review) that “there are reasonable grounds to believe that the requested information exists and is held by the agency”. Being familiar with the type of information it holds, its information management and retrieval systems, generally the agency will be best placed to make an assessment about the likelihood that the requested information exists and is held by it. Requiring an applicant, who may not be familiar with those systems, to first establish that there are reasonable grounds to believe that the requested information exists and is held by the agency, sits uncomfortably with the obligation imposed by s 53. This is not to say that the stated basis for an applicant’s belief that the requested information exists and is held by the agency. Indeed, the basis for that belief may assist the agency in identifying and finding the requested information. However, the failure of an applicant to satisfy the agency (or the Tribunal) that there are reasonable grounds for that belief should not be considered as being dispositive of the question of whether the agency’s “information is not held” is the correct and preferable decision.

8. While reluctant to depart from a long line of authority, I have concluded that in the context of an administrative review of an “information is not held” decision made under s 58(1)(b) of the GIPA Act, the application of the two-step test in Shepherd is plainly wrong. Applying that test requires the Tribunal to first determine whether there are “reasonable grounds to believe that the requested documents exists and are documents of the agency”. If the Tribunal concludes that the answer to that question is no, the antecedent question of whether the “search efforts made by the agency to locate such documents have been reasonable” does not arise. In my view, that approach is at odds with s 105 of the GIPA Act which places the burden on the agency of establishing that its decision that information is not held, is justified.

9. In a recent decision, the Appeal Panel in Klaric v Commissioner of Police [2020] NSWCATAP 153 considered the scope of the Tribunal’s power when reviewing an “information not held” decision, stating at [33]:

   The question of whether government information is held by an agency is distinct from the question of whether the agency has conducted reasonable searches. The Tribunal has power to review a decision that information is not held, but it has no power to review the sufficiency of an agency’s search.

10. I agree with that comment. Nonetheless, whether an agency has complied with the obligation imposed by s 53 of the GIPA Act is plainly a relevant factor in determining whether an “information is not held” decision is the “correct and preferable decision”. I do not understand the Appeal Panel in Klaric to suggest otherwise.

11. The role of the Tribunal in reviewing an “information not held” decision (ss 58(1)(b), 80(e)) is “to decide what the correct and preferable decision is having regard to the material then before it”: s 100(1) of the GIPA Act and s 63(1) of the Administrative Decisions Review Act. The “burden of establishing that the decision is justified lies on the agency”: s 105(1) of the GIPA Act. In summary, the burden is on the agency to prove that the decision that the government information applied for is not held by the agency, is the correct and preferable decision.

12. In the context of a decision made under s 58(1)(b) of the GIPA Act, the issues of fact which an agency must establish on the balance of probabilities, will depend on the reasons given by the agency that it does not hold the requested information. If the stated reason is that the agency has searched for the information but is unable to find the requested information, a factual issue will be whether the agency has undertaken “such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received”: s 53(2) of the GIPA Act. A further relevant issue may be whether material has emerged since the search was undertaken which suggests that the requested information exits and is held by the agency. Other relevant factual issues may include whether any search for information would require an unreasonable and substantial diversion of the agency’s resources: s 53(5) of the GIPA Act.

13. In summary, the task for the Tribunal when reviewing a decision that the requested information is not held by the agency, is to:

    (1) identify on the basis of the agency’s reasons and the applicant’s submissions, any relevant factual issues including those derived from s 53(1) – (5);

    (2)   determine whether the agency has proved any relevant factual issues on the balance of probabilities;

    (3)   consider any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency;

    (4)   applying those findings, decide what the correct or preferable decision is;

    (5) affirm, set aside or vary the agency’s decision: s 63(3) of the Administrative Decisions Review Act.

Consideration

Legal Privilege

43. Section 14(1) of the GIPA Act provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.

44. The documents that are the subject of this claim have been provided to the Tribunal on a confidential basis.

45. Mr McFadzean is the Council's general counsel. In that role he reports directly to Council's General Manager. In his affidavit he provided evidence in regard to his duties and qualifications. In relation to the withheld information he stated:

On 10 February 2020, I received email correspondence from Council's Team Leader Environmental Protection, Steve McGregor regarding a Court Elected Penalty Notice issued to the Applicant. This documentation indicated that a Court Attendance Notice had been issued to the Applicant and that the proceedings were listed for mention in Burwood Local Court on Tuesday 7 April 2020. I responded to Mr McGregor's email on this date and requested further documentation from him regarding these proceedings.

After considering the background material provided to me and the relevant legislative provisions governing this matter, I sent an email on 28 February 2020 to a number of Council staff. The purpose of preparing and sending this email was to provide legal advice to Council in relation to these proceedings.

On Monday 2 March 2020, I received an email from Council's Manager Health and Environmental Protection, Stuart Nunn. Within this email Mr Nunn made reference to the legal advice provided in my email of 28 February 2020.

Following the provision of this legal advice on 28 February 2020, the Penalty Notice issued to the Applicant was withdrawn by Council.

46. It is the Respondent’s position at sections 118 and 119 of the Evidence Act apply and as such these documents are subject to an overriding public interest against disclosure. It contends that the email correspondence prepared by Mr McFadzean on 28 February 2020 and the response of 2 March were prepared for the dominant purpose of the Council’s General Counsel providing legal advice to the Council. Therefore, it is submitted, the information is the subject of legal advice privilege pursuant to section 118 of the Evidence Act.

47. The Respondent also submits that the litigation privilege in section 119 of the Evidence Act applies as that correspondence was prepared for the dominant purpose of the Respondent being provided with legal advice in relation to Local Court proceedings which arose as a consequence of the Applicant court electing the penalty notice.

48. Mr McFadzean’s independence is not in issue. Nevertheless his independence is established by the unchallenged evidence given in Mr McFadzean’s affidavit.

49. I have read the documents over which the claim of legal privilege is made. I am satisfied that these documents are confidential communications made between the client and a lawyer prepared for the dominant purpose of the lawyer providing legal advice to the client. I am also satisfied that the documents were prepared for the dominant purpose of the client being provided with professional legal services relating to pending proceeding in which the client was a party.

50. There can be no doubt that this information falls within the scope of clause 5 of schedule 1 to the GIPA Act. Therefore, it is to be conclusively presumed that there is an overriding public interest against disclosure of the information.

51. Where the withheld information is subject to a conclusive presumption against disclosure pursuant to section 14(1) of the GIPA Act, no regard is to be given to the "public interest test" set out in section 13.

52. Accordingly, the decision is to be affirmed insofar as it relates to the withheld information over which a claim of legal privilege is made.

The adequacy of the searches undertaken by the Council

53. The Applicant has raised an issue with respect to the searches undertaken by the Council in relation to the unreasonable complainant GIPA application.

54. Ms Albazouni provided evidence of the searches that she undertook to locate information held by the Council which falls within the scope of this access application. She explained that she undertook her own searches of the agency’s databases and also requested that a number of identified officers undertake their own searches and provide her with material that was within the scope of the requests.

55. Following the case conference held before the Tribunal in September 2020, Ms Albazouni sent further emails to Council officers seeking confirmation as to whether they had any further information which may fall within the scope of the requests. She forwarded the full scope of both of the GIPA access applications to all of those addressees. Further material was provided to the Applicant following the further searches.

56. The Respondent contends that the searches that Ms Albazouni undertook were reasonable.

57. Under cross-examination, Ms Albazouni conceded that she had not communicated directly with the Council’s General Manager, Mr Hamish McNulty. The emails that Ms Albazouni sent following the case conference were not addressed to Mr McNulty. Instead, Ms Albazouni asked Mr Ayoub to make requests of Mr McNulty’s office.

58. She explained that it was the Council’s protocol to ask Mr Ayoub to forward the request to Mr McNulty rather than for her to contact him directly. Ms Albazouni could not say whether or not Mr McNulty had been given the full scope of the GIPA requests. Therefore, it is not clear that the General Manager has been fully informed of the scope of the GIPA the access applications.

59. In the circumstances, I cannot be satisfied that the searches undertaken were adequate. If Mr McNulty had not been given the full scope of the GIPA requests, he would not have been in a position to search for documents that fall within the scope of the requests.

60. In my view, the Respondent should undertake further searches to ascertain whether the General Manager’s office has any further information which may fall within the scope of the requests.

61. With that exception, I am satisfied that the searches undertaken were reasonable.

Clause 3(f)

62. The video footage and related information (“the withheld information”) was provided by third parties on a confidential basis. The third parties objected to the release of the footage as they wished to protect their identity. I have viewed the video footage.

63. None of the third parties provided evidence in the proceedings or attended the hearing. The Applicant has not been given the withheld information. Therefore, the Applicant has not been able to test any of the material that the third parties have provided to the Council on a confidential basis. There is no open evidence that there is a serious risk of intimidation or harm from the Applicant.

64. I have been referred to the decision in Australian Vaccination Network v Department of Finance & Services [2013] NSWADT 60 in regard to the necessary caution that the Tribunal should bring to issues which raise clause 3(f) of the table to section 14 of the GIPA Act. The approach to be taken was considered by Senior Member Ransome in Dezfouli v Justice Health & Forensic Mental Health Network [2018] NSWCATAD 11. Senior Member Ransome discussed a number of cases which had considered the provisions of clause 3(f) of the table to section 14 of the GIPA Act. She stated:

1. At issue is whether disclosure of the names of the AFP and Justice Health officers could reasonably be expected to expose them to a risk of harm or serious harassment or serious intimidation. The phrase “could reasonably be expected to” has been the subject of judicial consideration in relation to freedom of information legislation at the Commonwealth and State level.

2. In the recent case of CJO v NSW Police Force [2016] NSWCATAD 262 the Tribunal examined a line of authorities dealing with the phrase “could reasonably be expected to” and concluded that what was required was something more than a possibility, risk or chance that disclosure of the information would have the nominated effect. The expectation must be based on reason, that is to say, one for which real and substantial grounds exist when looked at objectively (Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another (1992) 108 ALR 163 at 176).

3. Harm, harassment and intimidation are not terms that defined in the GIPA Act and must be given their ordinary meaning. These terms were considered by the Tribunal in AEZ v Commissioner of Police, NSW Police Force [2013] NSWADT 90 and adopted in CJO v NSW Police Force.

4. The Macquarie Dictionary defines “harm” to mean injury, damage, hurt, moral injury, evil, wrong. The Tribunal in AEZ considered that “harm” in the context of clause 3(f) means "a real and substantial detrimental effect on a person" which may have a detrimental effect on their "physical, psychological or emotional wellbeing".

5. The Macquarie Dictionary defines “harass” to mean to trouble by repeated attacks, or disturb persistently. “Intimidate” is defined to mean to make timid or inspire with fear. In AEZ the Tribunal stated that a person who is harassed would be offended, humiliated or intimidated by the conduct in the circumstances. Harassment requires a consideration of whether the person alleged to be harassed was offended, worried, tormented, distressed or harassed by the conduct.

6. Citing PE v MU [2010] NSWDC 2, the Tribunal in AEZ noted that harassment is ongoing behaviour that is found to be threatening or disturbing and intimidation is conduct such as would cause a person to fear for their safety.

7. 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" (AEZ at [94]).

8. The evidence before me is that Mr Dezfouli has a history of fixated behaviour in which he sends often offensive correspondence to office holders. He clearly has strong views about the police and justice systems and sees himself as being victimised by those systems. It was apparent at the hearing that his reason for wishing to obtain the names of the officers who either prepared the Information Report or were involved in the email exchanges between the AFP and Justice Health is so he can pursue action against what he describes as AFP’s sinister motives in making reports about him.

9. When looked at objectively, the evidence shows that here are sound reasons for believing that Mr Dezfouli’s fixated behaviour will continue. Were he to be provided with the names of the officer who wrote the Information Report or those officers who were involved in email exchanges about the Report, it is highly likely Mr Dezfouli would seek to communicate directly with those officers and/or name them in his correspondence with others and on his website. It is also highly likely he would make offensive comments about them and issue threats of violence towards them.

10. Mr Dezfouli’s past behaviour strongly indicates that he is likely to engage in harassing and intimidatory behaviour towards the officers named in the Information Report and emails if their identities were known to him. In my view that harassment or intimidation is likely to be at such a level that it amounts to serious harassment or serious intimidation.

11. I am therefore of the view that disclosure of the names of the officers could reasonably be expected to expose those persons to a risk of serious harassment or serious intimidation and that, on balance, there is an overriding public interest against the disclosure of that information pursuant to clause (3)(f) of the table to s 14 of the GIPA Act.

    65. The Respondent has concerns in relation to the disclosure of the withheld information based on material contained in the annexures to Ms Albazouni’s confidential affidavit. It considers it is likely that a person viewing the footage would be able to ascertain the identity of the third parties.

    66. The Respondent relies upon that material as evidence on which the Tribunal can be satisfied as to the concerns that the third parties have expressed. Ms Albazouni agreed that she did not dispute the third parties’ belief. She didn’t make an evaluation of how likely it was that the feared harm or intimidation would occur. However, she accepted that her role as the Respondent’s Access to Information Officer required her to make an assessment of the evidence and of the credibility and the reliability of any evidence that was put to her. In deciding the correct and preferable decision, the Tribunal stands in the shoes of the decision maker and therefore this assessment must be carried out by the Tribunal.

    67. As the Applicant has not been given access to the annexures to Ms Albazouni’s confidential affidavit, he is in the positon where he is unable to challenge its contents.

    68. I have taken into account the material that has been provided on a confidential basis. In my view, this material before me establishes that the disclosure of the withheld information could reasonably be expected to expose a person to a risk of a real and substantial detrimental effect on a person’s psychological or emotional wellbeing. Further, the disclosure of the withheld information could also reasonably be expected to expose a person to a risk of serious harassment or serious intimidation. I am satisfied that the risk exists based on the Applicant’s prior conduct. Therefore, in my view, there is a public interest consideration against disclosure of the withheld information. It should be given significant weight.

The Balancing Process

69. It is necessary to balance the public interest considerations in favour of release of the withheld information against those against its release. The video footage and related information doesn’t attract a conclusive presumption against disclosure.

70. It is common ground that the withheld information includes references to the Applicant and therefore it is his personal information. There is a public interest consideration in favour of disclosure in that regard.

71. Section 12 of the GIPA Act outlines a number of public interest considerations in favour of disclosure. Section 12(2) provides:

12 Public interest considerations in favour of disclosure

…

1. 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.

Note—

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.

72. Mr Ryan submitted that there is a high degree of public interest in releasing the video footage and other information. He contends that this application would meet all of the section 12(2) considerations. I agree with that contention insofar as it concerns 12(2) (a) to (d). Those considerations should be given reasonable weight.

73. Mr Ryan submitted that the Applicant’s motivation in requesting the video footage is to try and find out if the council has acted reasonably or improperly in relation to the penalty notice.

74. The Applicant is concerned that he is being harassed by Council officers. He is concerned that his emails to the Council appear to be disbelieved while other residents’ emails to the Council appear to be believed. I agree that disclosure of the information could reasonably be expected to indicate whether or not the Applicant’s concerns are justified. It may indicate whether or not he has been victimised by the Council’s procedures. This consideration should be given reasonable weight.

75. The Applicant has concerns in regard to the processes that the Council went through in terms of making the decision to issue the penalty notice and the declaration of the Applicant as an unreasonable complainant.

76. He contends that the Council’s regulatory officers have overstepped their power under the POEO Act. He considered that it was unreasonable to require him to attend a meeting at such short notice and without knowing what was to be discussed. He was not accorded procedural fairness.

77. The Applicant stated that he is seeking the information to hold the Respondent accountable for its conduct and for the council processes to be transparent. He identified a number of examples of action taken by Council officers which show bias against him.

78. The Applicant agreed that he had raised concerns with Council in relation to their request for a meeting about an alleged littering offence prior to the penalty notice being issued. He was subsequently provided with some very basic details as to what the council was investigating.

79. He gave evidence of a conversation in which a Council officer had informed him that the Council had received video footage from a resident of Benaud Street and had informed him who had provided the footage. He stated in his affidavit:

During September 2019 Mr Frank Cassar of Cumberland Council called me on my mobile. He stated "I have complaints you are putting something on No 19 nature strip" I replied "Frank, few wholegrain breadcrumbs, I'm feeding starving birds coming in from the West Just a few pieces for the sick, older birds." He replied "I've got CCTV footage supplied by residents no 19" "oh you can see the birds following you" "it’s OK"

80. The Council nevertheless issued a penalty notice for similar conduct.

81. He contends that the Council demanded that he attend for a formal interview on 24 December 2019; they didn’t tell him what the interview was about; they didn’t give him enough notice; they misquoted section 203 of the POEO Act and as such he was not accorded procedural fairness. He considered that it was unreasonable to attend a meeting at such short notice and without knowing what was to be discussed so he declined to attend. He stated:

In my opinion I gave a reasonable response to Council's request for an interview given that Section 203(6) of the Protection of the Environment Operations Act 1997 states that the subject person (myself) was to nominate the time and place to meet, and if no reasonable place was nominated by myself then the authorised officer could nominate a time and place that was reasonable.

At no time was I asked by Council to nominate a time and place to attend and answer questions.

In my opinion requiring me to meet at the Council on Christmas Eve with less than 7 days’ notice was unreasonable.

82. The Applicant agreed that when he was advised that the Council had received a complaint he had specifically requested information as to who had lodged the complaint. He agreed that he had made that request several times. However, he denied that he wanted to know who the complainant was because he wanted to raise concerns with those persons once he knew their identity.

83. He identified an instance in which a resident of Benaud Street had told him that a council officer had told the resident that the Applicant had complained to the Council that the resident was operating a business from his home. In reference to document that he annexed to his affidavit he stated:

Attached … is a series of emails documenting my raising the issue with Council over a 4 month period and being told there was no evidence of a business being operated from the address.

Attached … is a letter from Stewart Rodham demonstrating that Council finally agreed a business was operating out of 37 Benaud St with numerous vans parked on the street.

Attached … are email between the General Manager Hamish McNulty and Mr Taylor apparently agreeing that the issue at 37 Benaud St should be referred to the ICAC.

84. The Applicant contends that despite his request for information from the Council about specific issues, he had not received a reply. When he followed up with Council officers in relation to those issues he was effectively merely reminding the Council officers that they had not responded to his inquiries. Nevertheless the Council had declared him to be an unreasonable complainant.

85. Mr Ryan argued that the actions that a public authority takes against an individual and how they treat individuals is significant. He submitted that there is a public interest in maintaining transparency and maintaining proper and fair actions by public authorities who have statutory penalty powers. He further submitted that it is in the public interest for the Applicant and for the public to be able to be satisfied that the Council is acting fairly and reasonably and without bias towards residents when it’s issuing penalty notices and issuing decrees that they are unreasonable complainants.

86. Mr Ryan argued that greater weight should be given to the public interest in transparency, notwithstanding that there has been previous tension in the street and that people have requested their identity not be disclosed.

87. In my view, the Applicant’s concerns are not matters that the Tribunal is required to determine. However, I agree that transparency in regard to the Council’s processes is a consideration in favour of release of the withheld information. I agree that the public interest in maintaining transparency and maintaining proper procedures should be given significant weight.

Where does the balance lie?

88. Ms Albazouni provided material which includes correspondence from the third parties to the Council. The correspondence indicates that the third parties believed that they would be at risk of intimidation, harassment or harm if the Applicant became aware of their identities and they objected to the release of the withheld information. Ms Albazouni confirmed that the Council contacted the third parties prior to the hearing and that the objection was maintained.

89. It is not in dispute that the Applicant sought to know the identity of the third parties on at least three occasions. The Respondent contends that this demonstrates a motive that is more than curiosity.

90. Furthermore the Respondent has concerns that no conditions could be imposed in relation to what the Applicant could do with the withheld information if it were released. The Respondent is concerned that the release of this information to the Applicant may well lead to him providing it to the media. If this were the case it could be seen as a form of intimidation of the third parties.

91. As was the case in Dezfouli the evidence before me indicates that the Applicant has a history of sending correspondence to officers of the Council and the correspondence has often been abusive, defamatory or offensive. Some of his correspondence has also been circulated to numerous other agencies and the media.

92. In this matter, the Applicant’s behaviour falls well short of that discussed in Dezfouli. However, it is apparent that there is ongoing conflict between the Applicant and other residents in Benaud Street. There is also considerable animosity towards a number of Council officers.

93. I accept that the Applicant is frustrated by the lack of response that he has received in regard to issues that he has raised with the Council. He clearly has strong views about a number of the Council’s officers and sees himself as being victimised by the Council’s procedures. This explains but does not justify his behaviour.

94. The evidence before me also suggests that the Applicant has engaged in harassing and intimidatory behaviour towards other residents in the street.

95. When looked at objectively, I am satisfied that there are sound reasons for believing that the Applicant’s behaviour will continue. Were he to be provided with the video footage, it is highly likely he would be able to identify the location or locations from which the footage was obtained. It is likely that he would seek to communicate directly with third parties in Benaud Street and/or name them in his correspondence with the Council and other agencies. It is also highly likely he would make offensive comments about them and issue threats towards them.

96. The question to be determined is whether or not the disclosure of the withheld information could reasonably be expected to expose a person to a risk of harm, or of serious harassment or serious intimidation. The material before me suggests that the Applicant has already engaged in conduct that exposed a person to harm, serious harassment or serious intimidation. Arguably, the disclosure of the withheld information could not reasonably be expected to expose a person to those risks if the Applicant merely continued such conduct.

97. The Respondent contends that if the withheld information is released, it is reasonable to expect that there would be an escalation of what is already occurring. I agree with that contention.

98. The Applicant’s past behaviour strongly indicates that he is likely to engage in harassing and intimidatory behaviour towards other residents in Benaud Street if he were to be provided with the information. In my view that harassment or intimidation is likely to be at such a level that it amounts to serious harassment or serious intimidation. As I have noted above, it is also my view that the disclosure of the withheld information could reasonably be expected to expose a person to a risk of harm. That is, a real and substantial detrimental effect on a person’s psychological or emotional wellbeing.

99. In my view, this consideration against disclosure should be given greater weight than the considerations in favour of disclosure that I have referred to above.

100. I am therefore of the view that disclosure of the video footage and related information could reasonably be expected to expose other residents in Benaud Street to a risk of harm or of serious harassment or serious intimidation and that, on balance, there is an overriding public interest against the disclosure of that information pursuant to clause (3)(f) of the table to s 14 of the GIPA Act.

101. Accordingly, that aspect of the determination should be affirmed.

102. It is not necessary to determine whether disclosure of the information could also reasonably be expected to expose some Council officers to a risk of serious harassment or serious intimidation.

Orders

1. Cumberland City Council is to undertake further searches to ascertain whether the General Manager’s office has any further information which may fall within the scope of the Applicant’s requests.

2. The further searches are to be completed within 21 days of these orders and the outcome of the searches is to be advised to the Applicant and the Tribunal.

3. The matter is listed for a further case conference on Monday 28 June 2021 at 12:30 pm.

4. The decisions under review are otherwise affirmed.

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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: 21 May 2021