Waite v General Manager, Hornsby Shire Council

[2004] NSWADT 93

CITATION:	Waite v General Manager, Hornsby Shire Council [2004] NSWADT 93
DIVISION:	General Division
PARTIES:	APPLICANT Peter Andrew Waite RESPONDENT General Manger, Hornsby Shire Council
FILE NUMBER:	033181
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	12/15/2003
DATE OF DECISION:	05/18/2004
BEFORE:	Higgins S - Judicial Member
APPLICATION:	access to documents - internal working documents - access to documents - operation of agencies - access to documents - personal affairs - Freedom of Information Act - access to documents - internal working documents - Freedom of Information Act - access to documents - operation of agencies - Freedom of Information Act - access to documents - personal affairs
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Privacy & Personal Information Protection Act 1998
CASES CITED:	Bennett v Vice Chancellor, University of New England [2000] NSWADT 8 Black v General Manager, Bathurst City Council [2001] NSWADT 139 Cheung v The Administrative Decisions Tribunal of NSW [2000] NSWSC 1062 McMahon v Director General, Department of Fair Trading [2003] NSWADT 63 Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs (1993) 1QAR 60 Tunchon v Commissioner of Police, New South Wales Police Service [2000] NSWADT 73 Waite v Director General, Department of Local Government [2003] NSWADT 11 Wilmshurst v Vice Chancellor, Macquarie University [2002] NSWADT 196
REPRESENTATION:	APPLICANT In person RESPONDENT C Drury, solicitor
ORDERS:	1.The Tribunal has no jurisdiction to hear and determine Mr Waite’s application for external review of FOI application No 310; 2.The General Manager’s decision to refuse Mr Waite access to the tape recording of the Council meeting of 12 March 2003 up to and including item 2 on the agenda is set aside. The General Manager is to provide Mr Waite with a copy of that tape within 28 days.

Background

1 On 8 July 2003, the applicant, Mr Waite, lodged an application with the Tribunal seeking information from the respondent, Hornsby Shire Council (“the Council”) in respect of nine specified matters He stated his reasons for the application were: “To hold Council to account and clear my name”. In the letter attached to his application, Mr Waite went on to state the following as the purpose of his application:

“1. to establish if personal and non personal information held by Hornsby Council is incorrect, and if so to have that information publicly corrected, and

2. if appropriate to have apologies issued in accordance with the Ombudsman’s guidelines, and

3. prepare and submit to Councillors Benson, Berman, Browned, Orr, Russell and White submissions showing that Council should take disciplinary action against one or more persons associated with Council who may have innocently or deliberately misrepresented information submitted to Council, the public and other authorities.”

2 Prior to the lodging of this application, Mr Waite had already lodged an application for external review of determinations by the Director General, Department of Local Government in respect of applications Mr Waite had made to the Department for access to documents and amendments of document under the Freedom of Information Act 1989 (ADT file No 033136). The Tribunal has determined that application (see Waite v Director General, Department of Local Government [2003] NSWADT 11). However, Mr Waite contends that his dispute with Council is common to both applications. I will deal with this in more detail below.

3 This external review application first came before the Tribunal at a planning meeting, on 12 August 2003. Following that meeting, on 4 September 2003, Mr Waite filed a lengthy amended application with the Tribunal, together with a folder of supporting documents.

4 The matter next came before the Tribunal at a further planning meeting on 23 September 2003. At this planning meeting, the Council provided the Tribunal with a list of 16 freedom of information applications (“FOI applications”) it had received from Mr Waite during that year. That list identified, for each FOI application, the three digit number attributed to the application by the Council, the date on which Council made a determination in respect of the application, the date on which a request for internal review was made (if any), the date on which the internal review was determined. Mr Waite accepted this document as being a true reflection of the 16 FOI applications that he had made and which were referred to in this external review application (including the amended application). On the basis of this document, Mr Waite identified the FOI applications that were relevant to this external review application, those for which he was not seeking an external review and those for which he would be making a new external review application. The proposed (new) applications for external review are included in his amended application and relate to requests for amendment to documents that Mr Waite obtained as a result of his earlier FOI applications.

5 The FOI applications, identified by Mr Waite, which continued to be relevant to his application (as amended) were as follows (note: for convenience the numbers attributed to the application by the Council is also used in this decision):

- FOI application no. 310 – request for clear copy of the Morgan & Banks report into the performance of the General Manager.

- FOI application no. 314 – copy of tape of meeting of Council on 12 March 2003.

- FOI application no. 323 – copies of letters from Zeaiter.

6 The matter next came before the Tribunal at a further planning meeting, on 4 November 2003. On this occasion, Mr Waite advised the Tribunal that Council had provided him with the documents that he had requested in application no. 323 and that he no longer sought an external review in respect of that application. The only FOI applications that remained in dispute were FOI application no. 310 and FOI application no. 314. At the planning meeting the parties agreed that the Tribunal was to determine, on the papers, whether the General Manager’s determination in respect of these two applications was the correct and preferred decision, subject to the parties filing submissions. Mr Waite filed additional submissions and numerous additional supporting documents on 24 and 27 November and 15 December 2003. The solicitors for the Council filed submissions on 18 November 2003, together with documents relevant to both FOI applications, including, on a confidential basis, the document and tape recording for which access had been refused.

Evidence

a) FOI application No. 310

7 The evidence, relevant to this application, is that which is contained in the documents filed with the Tribunal. That evidence is outlined below. It is convenient to first deal with the evidence relevant to the determination of FOI application 310.

8 The preliminary issue in respect of this FOI application is whether Mr Waite has made his application for external review out of time, thereby denying the Tribunal jurisdiction to hear his application in respect of this determination. In light of this issue, it is necessary to outline the background to the determination of that FOI application and the dates on which Mr Waite sought external review.

9 On 23 January 2003, Mr Waite made an FOI application seeking access to documents relating to 7 categories of documents. Included in this category of documents was a request to provide a clear copy of the December 1997 Morgan and Banks report into the performance of the General Manager.

10 On 21 February 2003, the FOI officer of the Council, as a delegate of the General Manager, wrote to Mr Waite advising him that she had determined that access to the Morgan & Banks report had been denied as the document in question could not be located. In her letter, the FOI officer made reference to s.28(1)(b) of the Freedom of Information Act 1989 (“FOI Act”) which requires an agency to provide written notice to an FOI applicant if the applicant’s application relates to a document which is not held by the agency.

11 On 12 March 2003, Mr Waite made an application for internal review. That review was determined on 28 March 2003, by another delegate of the General Manager of the Council. In her determination this delegate advised Mr Waite that a copy of the Morgan & Banks report had been located but that she had determined that access to the requested document be denied on the grounds that the document concerned the operations of the Council. The determination specifically made reference to Mr Waite’s appeal rights, in particular that he had 60 days, from the date of the determination, in which the lodge an application for external review with the Tribunal. He was also advised that he had a right to request an external review by the Ombudsman, for which there was no statutory time limit.

12 On 7 April 2003, Mr Waite requested a further internal review. On 11 April 2003, the FOI officer wrote to Mr Waite advising him that no second review would be conducted by the Council and again informed him of his external review rights. Following further correspondence from Mr Waite, on 16 May 2003 and 24 June 2003, the FOI officer again advised Mr Waite that no further internal review would be conducted and that the Council regarded the application to have been finalised. In their correspondence to Mr Waite, the Council again advised Mr Waite of his external review rights.

13 As mentioned above, this application for external review was filed on 8 July 2003.

b) FOI application No. 314 – copy of tape of Council meeting

14 On 1 April 2003, Mr Waite made an FOI application seeking a copy of the audio tape recording (“tape recording”) of the Council meeting on 12 March 2003. It is not disputed that the meeting, which was held in public and which Mr Waite attended for the purpose of addressing the Council, was in accordance with usual practices, tape-recorded. However, Mr Waite only sought a copy of the tape recording that recorded the period from the commencement of the meeting up to the end of Item 2, “Berowra Valley Bushland Park”.

15 On 14 April 2003 the Council’s FOI officer, as a delegate of the General Manager, determined to grant Mr Waite access to part of that document and denied him access to the remainder of it. In her determination, the FOI officer made available to Mr Waite that part of the tape recording, which related to his address to Council and the address given by the Mayor regarding a then recent police investigation. The FOI officer refused access to the remainder of the tape recording on the basis of the exemption set out in Clause 9 of Schedule 1 of the FOI Act. That clause relates to internal working documents.

16 It is not disputed that the part of the tape recording, to which Mr Waite was refused access, contained oral submissions made by other members of the public who attended the meeting and discussions and debate between Council Members that preceded the resolutions of Council in respect of agenda item 2. Nor is it disputed that this meeting, as with all other meetings of Council, was tape-recorded by Council for the purpose of preparing accurate minutes of that Council meeting. It is the latter and not the former that forms part of the public record of Council meetings.

17 In her written reasons for decision, the FOI officer stated that in making her determination she had regard to a resolution of Council, dated 13 November 2002, concerning the tape recording of Council meetings. That resolution was made following advice the Council had received, in the latter part of 2002, from the Privacy Commissioner (NSW). The effect of the resolution was that while Council gave an in principle decision to support the tape recording of Council meetings for the purpose of preparing accurate minutes of the meeting and to make “them available to interested members of the public in order to further the democratic objectives of the Local Government Act and to broaden knowledge and participation in community affairs”, the tapes would not be made available to the public until Council had obtained clarification of the Privacy Commissioner’s advice and Council had resolved that access should be granted. On the basis of this resolution the FOI officer determined that the contents of the tape for which access was refused were opinions of persons other than Mr Waite and deliberations of Council Members made in the course of Council’s decision-making functions. She went on to determine that as Council had not made any further resolutions in respect of access to tape recordings to members of the public, that on balance it was not in the public interest to grant him access to this part of the tape recording.

18 The General Manager’s delegate, who made the internal review determination, elaborated further on the question of public interest in her written reasons for decision. In particular she referred to Section 7.9.3 of the FOI Procedures Manual issued by the NSW Premier’s Department. On the basis of these procedures she found that the release of the tape “would not provide any advantage or assistance” to Mr Waite “in enhancing his understanding of the process of local government” and that “the proper workings of Council would be affected by its release.” She considered “there to be a need to protect the integrity and viability of Council’s decision making process.” She also stated that privacy issues were relevant when considering whether it was in the public interest not to disclose the whole of the contents of the tape recording requested. She referred to the advice that Council had obtained from the Privacy Commissioner and stated: “It is my understanding that the current practice and conditions under which Council records meetings, if such information were to be released to the public, means that Council may find itself to be in breach of the” Privacy and Personal Information Protection Act 1998 (NSW)(“Privacy Act”).

Relevant Law

19 Part 3 of the FOI Act makes provision for any person to make an application for access to documents held by a government agency or a Minister (s.17 FOI Act). Where a person makes such an application the agency is required to determine whether access to the document is to be given or refused (s.24 FOI Act). Access can only be refused on specified grounds (s.25 FOI Act) and after the agency has made its determination, s.28 of the FOI Act requires the agency to cause written notice of its determination to be given to the applicant.

20 If the applicant is dissatisfied with the determination of the agency, the applicant is able to seek an internal review of that determination (s.34 FOI Act). Subsection 34(4) of that Act provides that an application for internal review is to be dealt with in accordance with Part 3 as if it were an application under s.17. This means that after the agency has made a determination in respect of the internal review, the agency is required to cause notice of its internal review determination to be forwarded to the applicant.

21 If an applicant is aggrieved by an internal review determination by an agency, the applicant has a right of external review to the Tribunal in certain circumstances (s.53 FOI Act). There is no dispute that Mr Waite had a right to seek external review by the Tribunal pursuant to the FOI Act (s.53(3)(a)(i) and (iii) FOI Act).

a) Time within which to make an application for external review

22 Paragraph 54(a) of the FOI Act sets out the time within which an external review application is to be lodged. That paragraph provides, so far as is relevant, as follows:

“54 A review application is to be made:

(a) except as provided by paragraph (b) – within 60 days after notice of the determination to which it relates is given to the access applicant, or

(b) if a complaint is made to the Ombudsman…”

23 In this case there is no dispute that Mr Waite received notice, in accordance with section 60 of the FOI Act, of the internal review determination in respect of application no 310, on or about 28 March 2003.

24 Section 55 of the Administrative Decisions Tribunal Act, 1997 (“ADT Act”) sets out the circumstances in which a person can make an application for review of a “reviewable decision”. A “reviewable decision” is defined in s. 8 of the ADT Act to mean “… a decision of an administrator that the Tribunal has jurisdiction under an enactment to review.” And an “enactment” in relation to a “reviewable decision” is defined in s. 5(a) of the ADT Act to mean an Act (other than the ADT Act) or a statutory rule (other than a statutory rule made under the ADT Act.

25 Paragraph 55(1)(d) of the ADT Act provides that an application for a review of a “reviewable decision” is to be made within such period as prescribed by the Rules of the Tribunal following the date on which the internal review is taken to have been finalised. Under its Rules the Tribunal has prescribed a period of 28 days (rule 15(3)).

26 Section 57 of the ADT Act gives the Tribunal a discretion to extend the time for making an application under s.55. The FOI Act contains no equivalent provision.

b) Grounds for refusing access to a document

27 As mentioned above, where a person has made an application for access pursuant to s.16 of the FOI Act, s.25 provides that an agency may refuse access to the document in certain specified circumstances. One such circumstance is where the document is an “exempt document” (see s.25(1)(a) FOI Act). The term “exempt document” is defined in s.6 to mean the following:

“ exempt document means:

(a) a document referred to in any one or more of the provisions of Schedule 1, or

(b) a document that contains a matter relating to functions in relation to which body or office is, by virtue of section 9, exempt from the operation of this Act”.

28 In this case the relevant exemptions are those contained in Clause 6, 9, and 16 of Schedule 1. These exemptions provide as follows:

“ 6 Documents affecting personal affairs

(1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).

(2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made.

9 Internal Working Documents

(1) A document is an exempt document if it contains matter the disclosure of which:

(a) would disclose:

(i) any opinion, advice or recommendation that has been obtained, prepared or recorded, or

(ii) any consultation or deliberation that has taken place, in the course of, or for the purpose of, the decision making functions of the Government, a Minister or an agency, and .

(b) would, on balance, be contrary to the public interest.

(2) A document is not an exempt document by virtue of this clause if it merely consists of:
(a) matter that appears in any agency’s policy document, or

(b) actual or statistical material.

16 Documents concerning operations of agencies

A document is an exempt document if it contains matter the disclosure of which:

(a) could reasonably be expected:

(i) to prejudice the effectiveness of any method or procedure for the conduct of tests, examinations or audits by an agency, or

(ii) to prejudice the attainment of the objects of any test, examination or audit conducted by an agency, or

(iii) to have substantial adverse effect on the management or assessment by an agency of the agency’s personnel, or

(iv) to have substantial adverse effect on the effective performance by an agency of the agency’s functions, or

(v) to have a substantial adverse effect on the conduct of industrial relations by an agency, and

(b) would, on balance, be contrary to public interest.”

29 Where a document contains information concerning the personal affairs of a person, s.31 of the FOI Act provides that an agency is not to give access to the document unless it has taken such steps as are reasonably practicable to obtain the views of the person concerned.

c) Non disclosure of exempt matters

30 Section 55 of the FOI Act provides that the Tribunal, when determining a review application is to ensure that it does not, in its reasons for its decision or otherwise, disclose any exempt matter.

d) Burden of proof

31 Section 61 of the FOI Act provides that in these proceedings, the burden of establishing that the determination is justified lies on the agency or the Minister.

Submissions

32 As mentioned above, the General Manager’s legal representative provided detailed written submissions to the Tribunal. In summary, these contended as follows in respect of the determinations of the two FOI applications made by Mr Waite:

(a) FOI application No 310:

On the basis of the decision in Wilmshurst v Vice Chancellor, Macquarie University [2002] NSWADT 196, Mr Waite’s application is out of time and the Tribunal has no jurisdiction to hear and determine the matter as s.54 of the FOI Act prevails over the provisions of the ADT Act;

in the alternative, it is submitted that the Morgan & Banks report is exempt under cl. 6 (personal affairs) and 16 (document concerning operations of agencies) of Schedule 1 of the FOI Act.

(b) FOI application No 314:

the contents of the tape recording, as a matter of fact was an internal working document within the meaning of cl 9(a) of Schedule 1 of the FOI Act;

privacy concerns are a relevant consideration in determining whether it was not in the public interest to grant access to the tape recording. Reliance was placed on paragraphs 7-19 of the decision in Tunchon v Commissioner for Police [2000] NSWADT 73 as the process, which needs to be undertaken when determining this aspect of the exemption. Reliance was also placed on paragraph 14 of the decision of Deputy President Hennessy in Bennett v Chancellor, University of New England [2000] NSWADT 8;

while the Privacy Act does not prevent access to such information under the FOI Act, the fact that Council obtained the advice of the Privacy Commissioner and it passed a resolution in regard to that advice were factors that were relevant when considering where the public interest lay in respect of disclosing the tape recording in question.

33 Mr Waite’s submissions raised numerous matters, many of which were not relevant to the issues that the Tribunal has jurisdiction to determine by virtue of his application for external review of the abovementioned determinations by delegates of the General Manager pursuant to the FOI Act. In respect of the issues that are relevant, Mr Waite contended as follows:

(a) FOI application No 310

the application for external review was filed within time together with the application for external review of the determination by the Director General of the Department of Local Government (File no 033136). A fresh application had only been filed as a result of directions made by Judge O’Connor in matter No 033136;

the Morgan & Banks report was prepared to “withstand close public scrutiny” and the General Manager’s credibility has been shown to be wanting on numerous occasions. For these reasons access to the report should be granted.

(b) FOI application No 314

the tape recording, which records what was said in a public forum cannot be an “internal working document”;

Council is a deliberative agency of elected representatives and suppression of tape recordings of Council meetings is akin to no records of Hansard or of court cases;

the purpose of Council reports being made available is to enable informed comments on Council decisions;

the Premier’s Department FOI Procedures Manual is not referred to in the FOI Act. These procedure were prepared to assist agency staff to understand the intricacies of the FOI Act, which was to allow a simple process to obtain information – not complicate the process

34 In his submissions Mr Waite submitted that he had provided sufficient evidence to the Tribunal to demonstrate that the Hornsby Councillors, the General Manager and their legal representatives were biased and that this was a sufficient basis to put his allegations before the Minister for Local Government pursuant to s.58 of the FOI Act.

Reasons and Decision

35 The Tribunal has had regard to all the relevant material, including submissions that have been placed before it. As the issues, relating to the review of the two determinations the subject of this external review application, differ significantly, again it is convenient to deal with each determination separately.

a) FOI application No 310: Morgan & Banks report

36 As mentioned above, the preliminary issue in respect of Mr Waite’s application for external review of the determination of FOI application No 310 is whether Mr Waite filed his application within the time prescribed. If he did not file it within the prescribed time the question is whether this ousts the jurisdiction of the Tribunal to review that determination.

37 Sub-section 38(1) of the ADT Act expressly provides that the Tribunal only has jurisdiction to “review a reviewable” decision made pursuant to an enactment other than the ADT Act. It is not disputed that the determination in respect of FOI application No 310 is a decision that comes within the terms of this sub section. However, sub-section 38(3) of the ADT Act goes on to provide as follows:

“If an enactment makes provision for applications to be made to the Tribunal in respect of a reviewable decision subject to certain conditions, the Tribunal has jurisdiction under the enactment only if those conditions are satisfied.”

38 In my opinion, on a proper construction of sections 53(1) and 54(a) of the FOI Act, the time prescribed in sub-section 54(a) is a condition precedent to an FOI applicant’s right to seek an external review by the Tribunal. Where that condition is not met, then the Tribunal has no jurisdiction to hear or determine the application for external review by virtue of sub-section 38(3) of the ADT Act (see McMahon v Director General, Department of Fair Trading [2003] NSWADT 63).

39 The Tribunal has also previously held that section 54 of the FOI Act prevails over the general extension of time provisions in sections 44 and 57 of the ADT Act on the basis of the “generalia specialibus non derogant” rule of statutory interpretation (see Wilmshurst v Vice Chancellor, Macquarie University [2002] NSWADT 196 at [15] and Black v General Manager, Bathurst City Council [2001] NSWADT 139. See also Cheung v The Administrative Decisions Tribunal of NSW [2000] NSWSC 1062).

40 As mentioned above, there is no dispute that Mr Waite received the internal review determination in respect of FOI application 310 on or about 28 March 2003. Nor is there a dispute that Mr Waite lodged this application for external review of that determination, on 8 July 2003, which is 92 days after he received the internal review determination. This means that on these facts Mr Waite’s external review application is out of time and for the reasons stated above, the Tribunal would have no jurisdiction to hear and determine his application for review.

41 However, Mr Waite contends that his application for external review of the determination of FOI application No 310 was lodged with his application for external review of the determinations made by the Director General of the Department of Local Government (ADT file No 033136). That application was filed on 30 May 2003, which is 63 days after he received the internal review determination. As this is only 3 days late and there may be questions about the date on which Mr Waite in fact received the internal review determination, I have examined the documents ADT file No 033136. I note that this file does not contain record of a direction to Mr Waite that he file this application. This does not mean that Mr Waite did not raise his concerns about Hornsby Shire Council at a directions hearing in that matter and as a result it was suggested to him that if he wished to seek external review of determinations by the General Manager of the Council he needed to lodge a separate application in that regard.

42 In his letter, dated 30 May 2003, that was attached to his application in ADT file No 033136, Mr Waite stated “I wish to challenge the Minister for Local Government over two FOI and the Hornsby Council over 19 FOI applications and Council’s refusal to accept two applications”. However, he then goes on to state that his application relates to determinations by the Minister of Local Government not to investigate his complaints about Hornsby Council. In an attachment to his letter, Mr Waite, listed the numerous FOI applications he had made to the Department and Hornsby Council. That list included FOI application No 310. At the top of the list Mr Waite stated: “Reasons for applications: I am of the opinion there is considerable erroneous material held by the Department of Local Government, Hornsby Council and other agencies that adversely affects my reputation. I wish to have this corrected.”

43 In my opinion, the contents of Mr Waite’s letter and attached list that accompanied his ADT application No 033136 do not support his contention that he had made an application for external review of the determination in FOI application No 310. The document in question is of no relevance to Mr Waite’s reputation and it has never been suggested that the document contains erroneous material. In my view, this determination was mentioned only in the overall context of his ongoing dispute with Hornsby Shire Council and it’s General Manager. The Tribunal does not level any criticism at Mr Waite in this regard, however, it finds, as a matter of fact, that Mr Waite’s application for external review in ADT file No 033136 did not include an application for external review of the determination in FOI application 310 to the Council.

44 Accordingly, the Tribunal confirms it’s finding that Mr Waite lodged his application for external review on 8 July 2003. For the reasons set out above, this was well beyond the time prescribed and as a consequence the Tribunal has no jurisdiction to hear and determine Mr Waite’s application for external review of FOI application No 310. This may appear to be harsh, however what cannot be disputed is that Mr Waite was made fully aware of his rights to an external review by the Tribunal, together with the need to exercise those rights within 60 days of receipt of the internal review determination, on 28 March 2003 and again on 11 April and 16 May 2003. These notifications were all within the 60 day limitation period and he chose not to act on them during this time. Parliament has made it clear that a failure to exercise that right within the prescribed time means that the right no longer exists.

45 In light of the abovementioned findings it is unnecessary to consider whether the 1997 Morgan & Banks report is an exempt document by reason of clause 6 and 16 of Schedule 1 of the FOI Act.

b) FOI application No 314: Tape recording of Council meeting

46 There is no dispute that Mr Waite lodged his application for external review for the determination of FOI application No 314 within the time prescribed by section 54 of the FOI Act. Accordingly, the Tribunal has jurisdiction to hear and determine this external review application pursuant to s. 53(1) & (3)(a)(i) of the FOI Act and 38 of the ADT Act.

47 As mentioned above, the document in question is the tape recording of the Council meeting on 12 March 2003. This was a public meeting and the part of the tape recording for which Mr Waite sought access and, which the General Manager refused access, relates to discussions concerning item 2 on the agenda for the meeting. The discussions were in the form of addresses and recommendations by 4 members of the public to Council, and addresses, recommendations and questions by individual Council Members and the General Manager, prior to Council moving its resolution in respect of this agenda item. It is not disputed that the tape recording comes within the meaning of the term “document” in section 6 of the FOI Act.

48 As stated above, the General Manager, on whom the onus rests, contends that the tape recording is an exempt document by reason of clause 9 of Schedule 1 of the FOI Act.

49 Clause 9 of Schedule 1 requires determination of 2 factual matters. The first being whether the document in question comes within the terms of paragraph 9(1)(a) of Schedule 1 – i.e. is it an “internal working document” as defined in this paragraph? This term is defined very widely and in my opinion, having listened to the contents of the tape recording, I am satisfied that the disclosure of the tape recording would disclose “deliberations” and “recommendations” that were made for the purpose of Council’s decision making functions (i.e. its resolutions in regard to agenda item 2). While the “deliberations” and “recommendations” were oral, the tape recording has effectively documented these.

50 The other factual matter to be determined is whether disclosure of the tape recording would be contrary to the “public interest” as provided in paragraph 9(1)(b) of Schedule 1. The term “public interest” is not defined in the FOI Act. However, section 59A of the Act provides as follows:

59A Public interest

For the purpose of determining under this Act whether disclosure of a document would be contrary to the public interest it is irrelevant that the disclosure may:

(a) cause embarrassment to the Government or a loss of confidence in the Government, or

(b) cause the applicant to misinterpret or misunderstand the information contained in the document because of an omission from the document or for any other reason.

51 In Bennett v Vice Chancellor, University of New England [2000] NSWADT 8, the Deputy President adopted the views of the Queensland Information Commissioner in Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs (1993) 1QAR 60 that this exemption is to be applied in a manner which accords appropriate weight to the public interest objects sought to be achieved by the FOI Act. Those objectives are set out in section 5 of the Act and includes the right to obtain access to information held by the Government (s.5(1)(a) FOI Act).

52 As was pointed out in Bennett at [55] in determining whether to provide access to a document or part of a document that is an internal working document, the Tribunal, and the administrator, is required to identify and weigh the competing public interests for and against disclosure.

53 In Tunchon v Commissioner of Police, New South Wales Police Service [2000] NSWADT 73 the Tribunal held that the public interest test in clause 9 must be considered in the context in which the internal working document was created. It stated at [16] the following:

“… I consider that the exemption requires me to identify the circumstances surrounding the particular decision-making, discover the role which has been or is to be played by the document in that decision making, and consider the extent to which retaining secrecy for the document is at present necessary for “the proper administration of the Government” in that particular decision making process (c.f. s5(2)(b)).”

54 In this case, the tape recording is a recording of a public meeting of Council, an elected body where the participants at that meeting knew it was being recorded. However, the purpose of the recording was to make accurate minutes of the meeting. Another stated reason was for the purpose of resolving any future dispute about the exact terms of what was or was not resolved at a meeting. Having regard to these factors alone, in the opinion of the Tribunal, the public interest in favour of disclosure outweighs the public interest in not disclosing it. There is clearly a public interest in the transparency of decision-making by an elected body of government. It was for this reason the meeting was a public meeting. At the same time it cannot be said that disclosure of a contemporaneous record of that meeting would jeopardise the integrity of Council’s decision-making process as all members of the public were invited to attend and address the Council should they wish to.

55 However, the General Manager contends that the Privacy Act and the 2002 advice from the Privacy Commissioner are relevant factors to be taken into account in the exercise of weighing where the public interest lies. In my opinion, this is not correct. Firstly, section 5 of the Privacy Act expressly provides that the provisions of that Act do not affect the operation of the provisions of the FOI Act. That section provides as follows:

5 Freedom of Information Act 1989 not affected

(1) Nothing in this Act affects the operation of the Freedom of Information Act 1989.

(2) In particular, this Act does not operate:

(a) to modify any exemption under the Freedom of Information Act 1989 , or

(b) to lessen any obligations under the Act in respect of a public sector agency

56 While the General Manager concedes that the Privacy Act does not affect the operation of the FOI Act, it appears that he is arguing that in this case the tape recording contains “personal information” about participants at that meeting and that it is this information which falls within the terms of the Privacy Act. In the opinion of the Tribunal, as a matter of fact, the tape recording does not contain “personal information”. The participants who addressed Council were not representing their own interests, they were representing the interests of the community group of which they were a member. In any event, such information, if it was contained in the tape recording, would arguably be exempt by reason of clause 6 of the FOI Act (affecting personal affairs). Furthermore if the tape recording contained such exempt material, section 31 of the FOI Act requires the administrator to consult the person concerned.

57 In respect of the advice of the Privacy Commissioner the Tribunal notes that this “advice” was sought in respect of the sale of these tape recordings by Council and not in the context of compliance with the FOI Act to an FOI application for access. It is also noted that the Privacy Commissioner expressly stated that the information provided was not legal advice.

58 Finally, in respect of Council’s resolution of 13 November 2003 concerning the release of tape recordings to members of the public, in my opinion, this is a relevant document for considering where the public interest lies in respect of the disclosure of the tape recording. In this regard, the Council resolved, in principle, to make such tape recordings available to members of the public subject to concerns that disclosure would breach the Privacy Act. As mentioned above, the Privacy Act does not affect the operation of the FOI Act and the obligations of Council under that Act. Accordingly, the Council is obliged to give an FOI applicant access to the tape recordings unless it can establish that it is an exempt document under Schedule 1 of the FOI Act or its disclosure can be refused on any of the other grounds set out in section 25 of that Act. This does not mean that Council’s resolution has no application where the tape recordings are sought and or disclosed in circumstances other than a request under the FOI Act.

59 For the reasons stated above, the Tribunal finds that the General Manager’s decision to refuse Mr Waite access to the tape recording of the meeting of Council of 12 March 2003 up to and including item 2 on the agenda is not the correct and preferred decision.

60 As it was raised by Mr Waite, the I wish to comment briefly on the operation of section 58 of the FOI Act. That section gives the Tribunal power to report improper conduct (bad faith) of an officer of an agency to the attention of the Minister responsible for the agency. Under this section, the improper conduct must relate to the officers conduct in respect of his/her exercise of the functions and obligations under the FOI Act. In this case, there is absolutely no evidence to indicate bad faith on behalf of any officer of the Council or its legal representatives in dealing with Mr Waite’s FOI applications. Indeed, the material provided by the Council suggests the contrary. Every application made by Mr Waite was dealt with appropriately.

61 For the reasons stated above, the Tribunal orders:

1. The Tribunal has no jurisdiction to hear and determine Mr Waite’s application for external review of FOI application No 310.

2. The General Manager’s decision to refuse Mr Waite access to the tape recording of the Council meeting of 12 March 2003 up to and including item 2 on the agenda is set aside. The General Manager is to provide Mr Waite with a copy of that tape recording within 21 days.