Webb v Secretary, Department of Communities and Justice

[2024] NSWCATAD 238

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Webb v Secretary, Department of Communities and Justice [2024] NSWCATAD 238

Hearing dates:

9 October 2023

Date of orders:

14 August 2024

Decision date:

14 August 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

K Ransome, Principal Member

Decision:

(1)   The decision of the respondent is set aside in part.

(2)   The respondent is to release the information provided to the applicant prior to the Tribunal hearing.

(3)   The respondent is to release the information identified in paragraph [100] of these reasons.

(4)   The decision of the respondent is otherwise affirmed.

Catchwords:

ADMINISTRATIVE LAW – administrative review - Government Information – whether there is an overriding public interest consideration against disclosure – meaning of prejudice to relations between governments – agency’s functions with regard to work health and safety – risks to health and safety of staff – personal information – effect of no consultation - balancing the public interest

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Government Information (Public Access) Act 2009

Work Health and Safety Act 2011

Cases Cited:

Applicants v Commissioner of Police (NSW) [2015] NSWCATAD 22

Attorney-General's Department v Cockcroft (1986) 10 FCR 180

Else v Sydney Trains [2021] NSWCATAP 245

Fire Brigade Employees’ Union v Fire and Rescue (NSW) [2014] NSWCATAD 113

Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286

Galiatsatos v Legal Profession Admission Board [2016] NSWCATAD 143

Hurst v Wagga Wagga City Council [2011] NSWADT 307

Leech v Sydney Water Corporation [2010] NSWADT 298

McEwan v Port Stephens Council [2018] NSWCATAP 211

Miskelly v Secretary, Department of Education [2019] NSWCATAD 48

Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254

Newton v Newcastle City Council [2022] NSWCATAD 18

Ryan v NSW Minister for Planning and Open Spaces [2021] NSWCATAP 221

Selby v Commissioner of Police (NSW) [2013] NSWADT 61

Smolenski v Commissioner of Police, NSW Police [2015] NSWCATAD 21

South Dural Residents and Ratepayers Group Inc. v Roads and Maritime Services [2019] NSWCATAD 83

Taylor v Destination NSW [2017] NSWCATAD 272

Webb v iCare NSW [2023] NSWCATAD 316

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Telina Webb (Applicant)
Secretary, Department of Communities and Justice (Respondent)
Also heard:
Information Commissioner (see s 104(1), Government Information (Public Access) Act 2009)

Representation:

Applicant (self-represented)
DCJ Legal, solicitor for the Respondent
Information Commissioner by her employed solicitor

File Number(s):

2023/00125842

Publication restriction:

Section 64(1)(c) and s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 applies to the material filed by the respondent and the Information Commissioner on a confidential basis, to the evidence given in private before the Tribunal and to the record of that part of the proceedings conducted in private pursuant to s 49. Pursuant to ss 64(1)(b) and 64(1)(c) the publication or reporting of those portions of the public hearing of the application which disclosed any of the redacted information is prohibited. That material is not to be released to either the applicant or to the public.

REASONS FOR DECISION

1. On 5 September 2022 Telina Webb applied under the Government Information (Public Access) Act 2009 for access to information held by the Department of Communities and Justice (DCJ). She sought the following:

A full and unedited copy of the presentation which may be titled “Dealing with Difficult Applicants” made by Justice NSW/Department of Justice to the NSW Right to Information and Privacy Practitioners Network on Wednesday 27th March 2019, 9.40 am.

2. DCJ located one document responsive to the request which was a 12 page PowerPoint presentation titled “A tale of a fixated applicant” made by Jodie Cobbin to the NSW Right to Information and Privacy Practitioners Network (NIPPN) on Wednesday 27 March 2019 at approximately 9:40 am. In a decision dated 5 October 2022 DCJ released some information and withheld other information. Ms Webb sought an external review by the Information Commissioner who concluded that the decision made by DCJ was justified. Ms Webb then sought review of DCJ’s decision by the Tribunal.

3. During the course of the Tribunal proceedings some further information was released to Ms Webb. DCJ submits that the decision should be varied to reflect release of the additional information but otherwise affirmed. This review deals with the information which has not been released to Ms Webb. To give context to the discussion below, I note that the information is a printout of the PowerPoint slides. Five slides (pages 1, 4, 6, 11 and 12) have been released in full and two slides (pages 9 and 10) have been completely withheld. Various portions of the five remaining slides (pages 2, 3, 5, 7 and 8) have been redacted and thus withheld from Ms Webb.

Role of the Tribunal

4. The objects of the GIPA Act as set out in s 3 are to open government to the public. This is done by authorising and encouraging the proactive release of information by agencies and by giving members of the public an enforceable right to access government information. Access to government information is to be restricted only when there is an overriding public interest against disclosure.

5. Sub-section 3(2) provides that it is the intention of Parliament that the GIPA Act be interpreted and applied so as to further the objects of the Act and that the discretions conferred by the Act are to be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information. Section 9 of the GIPA Act gives a person who makes an access application for government information a legally enforceable right to be provided with access to the information, unless there is an overriding public interest against disclosure of the information.

6. A person aggrieved by a “reviewable decision” may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (ADR Act) of that decision. A decision to refuse to provide access to information in response to an access application is a reviewable decision for the purposes of the GIPA Act: s 80 (d).

7. The Tribunal’s function under s 63 of the ADR Act is to determine, based on the material before it, what is the correct and preferable decision, and may affirm, vary, or set aside the decision and make a substitute decision, or set aside the decision and remit it to the agency for further determination.

8. The burden of establishing that a decision made under the GIPA Act is justified lies on the agency, in this case the Commissioner: s 105(1) of the GIPA Act.

Evidence before the Tribunal

9. Ms Webb relied upon submissions and attachments filed with the Tribunal on 11 July 2023.

10. DCJ relied upon an open affidavit of Jodie Cobbin, Director, Open Government, Information and Privacy Unit, DCJ (OGIP) dated 13 June 2023 and a confidential affidavit of the same date. DCJ also filed open and confidential submissions dated 13 June 2023 and open and confidential submissions in reply dated 28 July 2023.

11. The Information Commissioner exercised her right under s 104 of the GIPA Act to appear and be heard in these proceedings. She relied upon submissions filed on 8 August 2023 and a confidential schedule to those submissions received on the same date.

12. Ms Webb, DCJ and the Information Commissioner provided further oral submissions at the hearing and Ms Cobbin gave evidence.

Adjournment request

13. This application was originally listed for final hearing on 17 August 2023 but the hearing was vacated as Ms Webb advised she was considering an appeal to the Supreme Court from a decision of the Appeal Panel which had dismissed her appeal from an interlocutory decision made in these proceedings on 27 June 2023. The interlocutory decision was to refuse to allow Ms Webb to attend the final hearing of this application by audio visual link (AVL). The matter was re-listed for hearing on 25 September 2024. Ms Webb did not in fact file any appeal with the Supreme Court.

14. On 22 September 2023 (the last business day before the final hearing) DCJ made an application for its witness, Ms Cobbin, to give evidence at the hearing by AVL. Ms Webb objected but agreed to a postponement of the hearing to allow Ms Cobbin to attend in person. The Tribunal vacated the 25 September hearing and it was later set down for hearing on 9 October 2023.

15. On 6 October 2023 DCJ made a further request for Ms Cobbin to attend the hearing by AVL as she had suffered a back injury. Ms Webb objected but on 6 October 2023 I granted leave for Ms Cobbin to appear by AVL. I gave brief written reasons for that decision.

16. Ms Webb made an application to adjourn the 9 October 2023 hearing on the basis that she wanted time to consider whether to appeal my interlocutory decision. She also made a submission that the hearing should be adjourned as DCJ had failed to consult third parties before making its decision not to release certain information.

17. All documents and submissions had been filed in the matter some months previously and the hearing had been adjourned on two previous occasions. In circumstances where the onus to establish that its decision is justified fell on DCJ and where Ms Webb could appeal against the interlocutory decision after the substantive matter was finalised, taking into account the guiding principle set out in s 36 of the Civil and Administrative Tribunal Act 2013, I refused the adjournment.

18. Ms Webb, although on notice that the adjournment request was to be dealt with at the hearing and therefore aware it might not be granted, had failed to bring to the hearing her copies of all open evidence and submissions with which she had previously been provided. The representative from DCJ was able to provide her with a copy of the DCJ material for her to refer to during the hearing. Ms Webb declined a copy of her own material and the submissions of the Information Commissioner. I note that Ms Webb cross-examined Ms Cobbin when she gave evidence but asked few questions.

Is the information government information?

19. A threshold issue arises as to whether the information sought by Webb is in fact government information and therefore whether the access provisions of the GIPA Act apply to that information.

20. Ms Webb states that she relies upon submissions made by another government agency, Insurance and Care NSW (iCare), in different proceedings before the Tribunal where iCare argued that the information she sought was not in fact government information.

21. I note that in those proceedings Ms Webb sought access to the membership list of the NIPPN from 2009 to 2022, attendee lists at NIPPN events held from 2009 to 2019 and minutes of NIPPN meetings from 2019 to 2022. She had been provided informally with access to the minutes and the issue was whether the membership lists and attendance lists were government information. In Webb v iCare NSW [2023] NSWCATAD 316 the Tribunal held that the information was government information and therefore subject to the GIPA Act.

22. It is not clear from Ms Webb’s submissions that she is submitting in these proceedings that the information she seeks is not government information as, if that is the case, she would have no right of access to that information. Indeed, she refers to her review application as a “valid request for administrative review”.

23. However, the Information Commissioner also initially raised an issue as to whether the information sought is in fact government information and therefore subject to the GIPA Act. After hearing evidence, the Information Commissioner was satisfied that the information is government information as defined in the GIPA Act. I also am so satisfied. The evidence demonstrates that the PowerPoint slides were created by Ms Cobbin in her in her capacity as Director of the OGIP Unit, not in any personal capacity, and are stored in a drive on DCJ’s server. In my view the presentation is clearly relevant to Ms Cobbin’s functions as Director of the OGIP Unit within DCJ and indeed relates directly to her role. As was stated in Webb v iCare at [62]-[63], the functions of an agency include its obligations under the GIPA Act. I am therefore satisfied that the information sought by Ms Webb is government information and thus subject to the GIPA Act.

Is the information already publicly available?

24. Ms Webb states that she became aware of the existence of the NIPPN from an entry on the Information Commissioner’s website and further searches of the internet. She contacted the then Chair of the NIPPN who provided her with a copy of the minutes of various meetings, including that held on 27 March 2019. The minutes recorded that DCJ gave a presentation on “dealing with difficult applicants.” As noted above, the minutes were provided to Ms Webb informally and not under the GIPA Act.

25. Ms Webb submits that Ms Cobbin, as the presenter from DCJ, made a public presentation to a non-governmental organisation and she should therefore be provided with access to the information. In this respect Ms Webb relies upon submissions and an affidavit provided to the Tribunal in Webb v iCare at least insofar as that material is to the effect that the NIPPN is not a government agency.

26. The evidence in that case was that the NIPPN is an ad hoc forum for officers employed in various agencies, statutory corporations, universities and local government who carry out functions under the GIPA Act and privacy legislation. The NIPPN was described as being independent of government and “not a government body”. In this matter Ms Cobbin states that the NIPPN enables practitioners to across NSW to share information, knowledge and experiences. Practitioners do not represent the views of their agencies and Chatham House Rules apply to meetings. There is a voluntary committee, the NIPPN Consultative Committee, which provides the machinery by which the forum operates.

27. As I understand Ms Webb’s submissions, she contends that because the NIPPN is not a distinct government body and members do not represent the views of government agencies, the presentation made by Ms Cobbin was made in a public forum and the information was therefore made publicly available. The evidence of Ms Cobbin, however, is that the first part of the meeting was only open to practitioners who are part of the NIPPN, no members of the public were invited to attend and the venue where the meeting was held was closed to the public. The minutes of the meeting describe the first part of the meeting which commenced at 9:30 am - which was the part during which Ms Cobbin gave her presentation - as “Session 1 (Practitioners only)”. The next session which commenced at 11:00 am after a break is described as “Session 2 (Open Session)”.

28. I do not consider that the presentation was made in a public forum. Those in attendance were all employees of agencies subject to the GIPA Act and members of the public were not invited or able to attend the session in which Ms Cobbin gave her presentation. The fact that Chatham House Rules applied to the sessions strengthens my view in this regard. I note that a private organisation, Salinger Privacy, presented one of the sessions. Ms Cobbin’s evidence at the hearing was that the presenters were in attendance only for their session. I am satisfied their presence did not detract from the private nature of the meeting.

29. I am therefore satisfied that the information has not previously been made publicly available.

Is the information sought open access information?

30. Ms Webb also argues that the information sought is “open access information” and therefore must be made publicly available. Part 3 of the GIPA Act sets out what information is open access information. It is mandatory for agencies to make open access information publicly available: s 6 of the GIPA Act. However, s 6(1) also provides that open access information does not have to be made publicly available if there is an overriding public interest against disclosure of the information.

31. Section 100 of the GIPA Act gives a person the right to apply to the Tribunal for a review of a “reviewable decision”. “Reviewable decisions” in respect of access applications are set out in s 80 of the GIPA Act. A decision that information is or is not open access information is not within the list of reviewable decisions. It is therefore not necessary to decide whether the information contained within the PowerPoint presentation comes within the definition of open access information, because neither the GIPA Act, nor any other enabling legislation, gives the Tribunal power to review a decision made by an agency about open access information: Galiatsatos v Legal Profession Admission Board [2016] NSWCATAD 143 at [20].

32. Whether Ms Webb is granted access to the information she seeks is to be determined according to whether there is an overriding public interest against disclosure of the information irrespective of whether the information is open access information. That being said, it is clear that, if the information is in fact open access information, this would be an important factor in favour of disclosure: McEwan v Port Stephens Council [2018] NSWCATAP 211 at [45].

33. The Information Commissioner raises a question of whether some of the information sought to be withheld is in fact policy material and therefore open access information. Section 18 of the GIPA Act sets out the information that is open access information. One category of such information is an agency’s policy documents: s 18(3). Policy documents are defined in s 23 as follows:

An agency’s policy documents are such of the following documents as are used by the agency in connection with the exercise of those functions of the agency that affect or are likely to affect rights, privileges or other benefits, or obligations, penalties or other detriments, to which members of the public are or may become entitled, eligible, liable or subject (but does not include a legislative instrument) —

(a)  a document containing interpretations, rules, guidelines, statements of policy, practices or precedents,

(b)  a document containing particulars of any administrative scheme,

(c)  a document containing a statement of the manner, or intended manner, of administration of any legislative instrument or administrative scheme,

(d)  a document describing the procedures to be followed in investigating any contravention or possible contravention of any legislative instrument or administrative scheme,

(e)  any other document of a similar kind.

34. The presentation is a series of slides generally in dot point form as is usual with such things. DCJ submits that the relevant information contained in the slides is not a statement or summary of departmental policy but rather represents strategies identified by Ms Cobbin as being useful in dealing with fixated persons. Ms Cobbin states in her affidavit that the strategies contained in the presentation are unique to her unit and were developed by her.

35. In this context, Ms Webb states that it is extremely likely that there is nothing new in the presentation. She refers to the Guideline issued by the Ombudsman titled “Unreasonable Complainant Conduct Model Policy” and to another publication by the Ombudsman titled “Responding to unreasonably persistent litigants”. I am satisfied, however, that the material in the presentation has been, as Ms Cobbin states, developed specifically by her for her unit and addresses issues of specific concern to her unit.

36. The relevant information in the slides which the Information Commissioner states “could possibly be construed” as being a policy is very brief. While Ms Cobbin states the strategies identified are unique to her unit in DCJ, they also appear to be a work in progress with the slide titled “Our strategies so far?” and the minutes of the meeting recording that Ms Cobbin sought further input from the practitioners present at the meeting. I am not satisfied that the information comes within the meaning of a policy. It is therefore not open access information.

Is there an overriding public interest against disclosure?

37. Before dealing with the information that has not been disclosed to Ms Webb, it is worth setting out the approach to be applied in considering whether there is an overriding public interest against disclosure of government information.

38. As noted above, 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": s 5 of the GIPA Act. There are two situations in which there will be an overriding public interest against disclosure. The first concerns government information described in Schedule 1 to the GIPA Act and is not relevant to these proceedings.

39. In the second situation, there will be an overriding public interest against disclosure if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. Section 12 of the GIPA Act provides that there is a general public interest in favour of disclosure of government information and the section sets out a non-exhaustive list of some examples of such considerations. The public interest considerations against disclosure are set out in a table in s 14 of the GIPA Act.

40. In the second situation, the decision-maker's task is to first determine whether, in respect of the information sought, there are public interest considerations against disclosure and then to balance those considerations against those public interest considerations in favour of disclosure.

41. In this application, DCJ refers to public interest considerations set out in cll 1(c) 1(e), 1(f), 2(d), 3(a) and 3(b) of the table in s 14 and submits that those considerations outweigh the considerations in favour of disclosure.

Public interest considerations in favour of disclosure

42. In addition to the statutory presumption in favour of disclosure of government information set out in s 5 of the GIPA Act, DCJ referred to the general right of the public to have access to government information set out in s 12(1) of the GIPA Act as a consideration in favour of disclosure. DCJ also submits that another public interest consideration in favour of disclosure is that set out in note (b) to s 12(2) of the GIPA Act which states that 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.

43. Ms Webb did not identify any other public interest considerations in favour of disclosure. I am satisfied that the considerations referred to by DCJ are relevant and should be accorded weight.

Public interest considerations against disclosure

44. The public interest considerations against disclosure in the table to s 14 identified by DCJ are that it could reasonably be expected disclosure would:

1. prejudice relations with, or the obtaining of confidential information from, another government: cl 1(c);

2. reveal the deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency: cl 1(e);

3. prejudice the effective exercise by an agency of the agency's functions: cl 1(f);

4. endanger, or prejudice any system or procedure for protecting, the life, health or safety of any person: cl 2(d);

5. reveal an individual's personal information: cl 3(a); and

6. contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (PPIP Act): cl 3(b).

45. Each of the considerations against disclosure set out in the table in s 14 of the GIPA Act have the requirement that disclosure of the information could reasonably be expected to have the nominated effect. The words "could reasonably be expected to" are to be given their ordinary meaning: Attorney-General's Department v Cockcroft (1986) 10 FCR 180. In that case, Bowen CJ and Beaumont J explained, at 190, that the words:

... require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like.

46. In Leech v Sydney Water Corporation [2010] NSWADT 298 the Tribunal referred to a number of cases which had considered the term "could reasonably be expected to" and stated at [25]:

The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC.

47. The public interest considerations against disclosure require an objective assessment as to whether the claimed effects could be expected to arise. This is ultimately a question of fact to be established to the relevant standard of proof, on the balance of probabilities: Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42].

48. A number of the public interest considerations against disclosure require that there be some relevant "prejudice" to the agency. The term "prejudice" is to be given its ordinary meaning, that is, to cause detriment or disadvantage, or to impede or derogate from: South Dural Residents and Ratepayers Group Inc. v Roads and Maritime Services [2019] NSWCATAD 83 at [47]; Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60]. In Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 the Appeal Panel considered the evidence required to establish that disclosure of the information could reasonably be expected to have a particular effect. After referring to various authorities, the Appeal Panel said at [59]:

Based on these authorities when considering the evidence on which it is asserted that disclosure "could reasonably be expected" to have a particular effect, the following principles should be kept in mind:

(1) a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient;

(2) there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect;

(3) prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses.

Clause 1 (c) - Prejudice relations with, or the obtaining of confidential information from, another government

49. This clause is said to apply to redacted information contained on slides 5, 7 and 8. DCJ submits that disclosure of some of the withheld information could prejudice the relationship between state government agencies and prejudice the supply of confidential information by state departments.

50. This submission is based upon Ms Cobbin’s affidavit in which she describes the purpose and function of the NIPPN. Her evidence is that the NIPPN was established to enable information access and privacy practitioners across NSW to share information, knowledge and experiences. The PowerPoint presentation the subject of this application was delivered to attendees restricted to information access and privacy practitioners from government agencies and statutory bodies such as universities and local government.

51. DCJ submits that cl 1(c) captures relationships between or the disclosure of confidential information between difference state government agencies. The submission relies on the decisions in Miskelly v Secretary, Department of Education [2019] NSWCATAD 48 and Smolenski v Commissioner of Police, NSW Police [2015] NSWCATAD 21. Neither of those cases are authority for that proposition.

52. Miskelly concerned information that agencies of other governments had provided to the Department of Education in confidence and information about co-operation with other agencies of the NSW government. The Tribunal held at [156] that disclosure of the relevant information could reasonably be expected to prejudice to relations with “other governments” (emphasis in the original). Upon my reading of the decision, this did not include information exchanges with other NSW government agencies as, at [152], the Tribunal stated that this co-operation engaged clauses 1(d) and 1(f) of the table. A distinction is made in the decision between information exchange between governments and such exchanges between NSW government agencies.

53. Smolenski dealt with information exchanged between the NSW Police Force and several Commonwealth agencies. At issue was whether the relevant information in that case came within cl 7 of the table to s 14 (a clause which is not under consideration in this application) being “information communicated to the Government of New South Wales by the Government of the Commonwealth”. The Tribunal held at [51] that the reference to “the Government of New South Wales” in cl 7 included a government agency of NSW. The Tribunal referred to cl 7 of Schedule 4 to the GIPA Act which provides that a reference in the Act to “the Government includes, where appropriate, a reference to an agency”. It was therefore sufficient that the information had been communicated to the NSW Police Force which is a NSW government agency for it to be considered to be communicated to the Government of NSW.

54. I am of the view that cl 1(c) does not capture relationships or information exchange between state government agencies. The clause is concerned with relationships between nations or between the NSW government and the Commonwealth government.

55. DCJ argues that here is an inter-governmental character to the relevant information and refers to the participation of local government authorities in the NIPPN. The Information Commissioner points out that local authorities are established by an Act of the NSW Parliament. I also note that local authorities are responsible to a Minister of the state who has considerable powers, including to dismiss mayors and councillors. I agree with the submissions of the Information Commissioner that local authorities are agencies of the state government. I therefore do not consider that relationships or information exchange between a local authority and another NSW government agency fall within cl 1(c).

56. In any event, there is no evidence before me about the source of the information sought to be withheld or anything else about it so that a conclusion could be drawn that the information may have any of the effects set out in cl 1(c).

Clause 1(e) - prejudice to a deliberative process of government or an agency

57. Clause 1(e) of the table to s 14 provides that there is a public interest consideration against disclosure if disclosure could reasonably be expected to reveal the deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency. DCJ submits that this clause applies to redacted information contained on slides 5, 7 and 8.

58. In South Dural Residents and Ratepayers Group Inc v Roads and Maritime Services [2019] NSWCATAD 83, the Tribunal said at [45]-[46]:

There are two general elements which must be satisfied in order for this public interest consideration against disclosure to apply:

(i) the information must reveal a deliberation, consultation, opinion, advice or recommendation; and

(ii) disclosing the information must be reasonably expected to prejudice a deliberative process.

This requires there to be a connection between the opinion, advice or recommendation and the relevant deliberative process (Luxford v Department of Education and Communities (NSW) [2016] NSWCATAD 118 at [103]).

59. In Ryan v NSW Minister for Planning and Open Spaces [2021] NSWCATAP 221, the Appeal Panel noted the following at [34] in relation to cl 1(e):

(1) Cl 1(e) contemplates that the deliberative process that may reasonably be expected to be prejudiced may be a “particular case or generally”. Thus, the focus of this clause goes beyond particular deliberative processes;

(2) There is no requirement that the deliberative process that may reasonably be expected to be prejudiced is the same as the deliberation which could be expected to be revealed by disclosure of the information (where it is a deliberation rather than a consultation, opinion advice or recommendation that would be revealed by disclosure of the information). This is clear from the use of the phrase "a deliberative process";

(3) The existence of a deliberative process which might reasonably be expected to be prejudiced by disclosure will turn upon the evidence before the Tribunal in each case.

60. In Fire Brigade Employees’ Union v Fire and Rescue (NSW) [2014] NSWCATAD 113, the Tribunal adopted the comments made by the Administrative Appeals Tribunal in Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 558 where it was said that the action of deliberating “involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one’s course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes – the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action…It by no means follows, therefore, that every document on a departmental file will fall into this category…documents disclosing deliberative processes must, in our view, be distinguished from documents dealing with the purely procedural or administrative processes involved in the functions of an agency.”

61. Ms Cobbin states that her presentation to the NIPPN was aimed at sharing her internal thinking on how the OGIP Unit has and continues to identify and manage unreasonable conduct. She states that release of information which discloses the deliberative process of DCJ may impact the willingness of practitioners to engage in confidential, meaningful and important information sharing if ongoing strategies were released to the world at large. The evidence of Ms Cobbin is that the strategies have been developed to manage applications from unreasonable or vexatious applicants and to mitigate any risk to staff health and wellbeing in order for DCJ to comply with its obligations under the Workplace Health and Safety Act 2011 (WHS Act).

62. DCJ submits that the information captured in these slides could best be described as opinion, advice and recommendations to other public sector GIPA decision makers to inform their management of their work health and safety responsibilities. It is further stated that if the information was disclosed, access applicants would be aware of DCJ’s strategies and thus able to circumvent the processes put in place for assessing unreasonable conduct and consequent risk/harm to staff. It is argued therefore that disclosure of this information would reasonably prejudice DCJ’s deliberative process in dealing with such conduct.

63. The Information Commissioner submits it may not be open to the Tribunal to take this consideration into account in applying the public interest test for the reason that no deliberative process has been identified. I agree with the Commissioner's submission. The dot points contained on the slides do not reveal any deliberative process, nor does the evidence provided to support the claim. Rather, the information is better characterised as management decisions put in place to support staff and any impacts on their work health and safety as a result of complainant conduct. In my view, the information does not engage the concept of “a deliberative process” of an agency. Clause 1(e) cannot therefore be relied upon by DCJ.

Clause 1(f) - prejudice the effective exercise by an agency of the agency's functions

64. There is a public interest consideration against disclosure of information if disclosure could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions. DCJ submits that cl 1(f) applies to information contained on slides 2, 3, 5, 7, 8, 9 and 10.

65. In Newton v Newcastle City Council [2022] NSWCATAD 18 the Tribunal summarised at [80] the elements of clause 1(f) as follows:

1. There is an agency function relevant to the information;

2. Disclosure of the information could reasonably be expected to prejudice the agency's exercise of that function.

66. “Function” is defined in cl 1 of Schedule 4 to the GIPA Act to include a power, authority or duty. I accept that DCJ has a duty to protect the welfare of its employees under the WHS Act and performance of this duty is one of its functions. The duty extends to the management of risks to health and safety: s 17. The duty is one of strict liability. I am satisfied that the duties imposed on DCJ under the WHS Act is a relevant function for the purposes of cl 1(f).

67. In confidential portions of her affidavit Ms Cobbin sets out considerable detail of the behaviours displayed by some GIPA and privacy applicants which may be described as unreasonable, vexatious, intimidating and harassing. She also sets out the effects these behaviours have had upon employees. Ms Cobbin states that, as Director of the OPIG Unit, she has responsibility for ensuring the work, health and safety of staff within the unit in accordance with the WHS Act. She further states that this was the reason for the development of the risk mitigation procedures to deal with unreasonable conduct as set out in the presentation.

68. DCJ submits that disclosure of the full presentation would prejudice its functions in protecting staff against harm to their health, safety and welfare through the elimination or minimisation of risks arising from unreasonable and fixated applicants. I accept that, if the information was released and thus available to the world, the ability of DCJ to provide a safe workplace would be hindered as unreasonable complainants would have knowledge of the current strategies systems and would make every effort to circumvent those strategies thus prejudicing DCJ’s ability to provide a safe work environment.

69. The Information Commissioner points out that the relevant portions of the slides may also fall within cl 3(f) which concerns whether it could reasonably be expected that release of the of the information would expose a person to a “risk of harm or of serious harassment or serious intimidation”. I am also of the view that this public interest consideration against disclosure is applicable.

70. The primary function of the OGIP Unit is to deal with applications for access to information. Ms Cobbin states that this includes, among other things, applications under the GIPA Act, privacy complaints and ensuring compliance in responding to subpoenas and other court orders. She states that applicants engaging in unreasonable or vexatious conduct unfairly consume limited resources and detract from the ability of DCJ to respond to other access applications. Ms Cobbin states that there is currently a backlog of access applications and operational capacity to deal with them is impeded by unreasonable complainants’ applications and behaviours.

71. I am satisfied that there is a real risk that disclosure of the information would lead to an escalation of behaviour on the part of several unreasonable complainants, particularly as they would seek to circumvent strategies currently in place to minimise the effects of such behaviours, which would further impede the ability of the OGIC Units core function.

72. The matters in both cl 1(f) and cl 3(f) should be given significant weight.

Clause 2(d) - endanger, or prejudice any system or procedure for protecting, the life, health or safety of any person

73. DCJ submits that cl 2(d) applies to information contained on slides 2, 3, 5, 7 and 8. The Appeal Panel has noted that mere disclosure of information is not sufficient to engage cl 2(d) and the clause envisages a person doing something with the information which could reasonably be expected to endanger, or prejudice any system or procedure for protecting, the life, health or safety of any person: Else v Sydney Trains [2021] NSWCATAP 245 at [36].

74. To show that this is a relevant consideration against disclosure, DCJ must establish that disclosure of the information could reasonably be expected to:

1. endanger the life, health or safety of any person;

2. or prejudice any system or procedure for protecting the life, health or safety of any person.

75. DCJ submits that (b) is relevant and release of the information could reasonably be expected to prejudice any system or procedure for protecting the life, health or safety of DCJ staff. The arguments put forward are, in essence, those advanced in relation to cl 1(f).

76. I am satisfied that the methods and strategies outlined in the presentation for identifying and managing behaviours of unreasonable conduct are designed to ensure that the health and safety of staff is protected and that those methods and strategies come within the meaning of “any system or procedure” in cl 2(d). I am also satisfied that the evidence of Ms Cobbin establishes the adverse effects these behaviours have had upon employees.

77. I am also satisfied that release of the withheld information which identifies the methods and strategies currently employed by DCJ in dealing with unreasonable conduct would prejudice the procedures in place to mitigate against the risk of harm, specifically psychological harm, to employees.

78. Where applicable, this public interest consideration against disclosure should be given significant weight.

Clause 3(a) – reveal an individual’s personal information

Clause 3(b) – contravene an information protection privacy principle

79. These two clauses concern the release of personal information. The definitions of “personal information” in the GIPA Act and in the Privacy and Personal Information Protection Act 1998 (PPIP Act) are similar. Both relevantly provide that personal information means information about an individual whose identity is apparent or can reasonably be ascertained from the information: GIPA Act Sch 4 cl 4; PPIP Act s 4. The GIPA Act provides that to “reveal” information means to “disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)”. DCJ submits that these public interest considerations against disclosure apply to information contained on slides 2, 9 and 10.

80. Personal information is defined in cl 4 of Schedule 4 to mean “ information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.” The personal information sought to be withheld is the personal information of Ms Cobbin and the personal information of other individuals.

81. Ms Webb states that it does not appear that third party consultations have been conducted in relation to any personal information. She suggests that the matter should therefore be remitted to DCJ to enable such consultation to occur and an informed decision to be made. If the information concerned is of a type described in section 54 of the GIPA Act and the agency is considering releasing the information under an access application, the agency is required to take all reasonable steps to consult with third parties to obtain their views.

82. In Selby v Commissioner of Police (NSW) [2013] NSWADT 61 at [44] the Tribunal stated that the obligation to consult under s 54 “is only relevant if an agency decides that it may decide to provide access to information relating to the person”. Where the agency had determined not to provide access, consultation is not required. A plain reading of the text of s 54 supports the view expressed in Selby. However, in Taylor v Destination NSW [2017] NSWCATAD 272, the Tribunal found that consultation with third parties assists and informs a decision maker in applying the public interest test, and that assuming an objection without any consultation does not inform the public interest considerations against disclosure. The Tribunal considered it could not properly assess what the correct and preferable decision was and remitted the matter back to Destination NSW to undertake consultation pursuant to s 54 of the GIPA Act (at [56]–[58]).

83. In relation to the personal information said to be the personal information of Ms Cobbin, I am satisfied that she has been consulted and has objected to its release. No consultation has been had with third party individuals whose information is otherwise used in the presentation. It is clear that DCJ has formed a view that those consultations should not occur and the information should be withheld. The decision in Taylor would suggest that the matter be remitted to enable such consultation to occur. In the context of this application I understand why DCJ might not wish to pursue that course and note its submission that in determining whether to release the personal information, regard must be had to the highly sensitive nature of the information and the context in which the balance of the presentation was delivered. However, no submissions have been made about why consultation was not appropriate in this case.

84. In relation to Ms Cobbin, some of the information sought to be withheld in the presentation is her personal opinion. A person’s opinion is their personal information: Applicants v Commissioner of Police (NSW) [2015] NSWCATAD 22. I am satisfied that disclosure of the information would reveal her personal information which has not already been publicly disclosed.

85. In relation to cl 3(b) and whether disclosure could reasonably be expected to breach an information protection principle, DCJ is a public sector agency as defined in the PPIP Act and is required to comply with the information protection principles set out in that Act.

86. Section 18 of the PPIP Act sets out limits on the disclosure of personal information. That section provides that a public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) unless:

1. the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or

2. the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or

3. the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.

87. I am satisfied that disclosure of the personal information contained in the presentation would not be disclosure for any of the permitted purposes in s 18 of the PIPP Act. In relation to the disclosure of the information relating to persons other than Ms Cobbin, as with cl 3(a), the issue of a lack of consultation arises.

88. I am, however, satisfied that the public interest considerations in cll 3(a) and (b) with respect to personal information are applicable to my consideration of whether the information should be released. The public interest in protecting and controlling the disclosure of that personal information of other individuals should be afforded significant weight. In relation to Ms Cobbin’s personal information these considerations should be given significant weight. In relation to the personal information of the other individuals, there remains the issue of a lack of consultation.

Personal factors of the application

89. Section 55(1) of the GIPA Act provides that, in determining whether there is an overriding public interest against disclosure of information, an agency is entitled to take into account the following "personal factors of the application":

1. the applicant's identity and relationship with any other person,

2. the applicant's motives for making the access application,

3. any other factors particular to the applicant.

90. Relevantly, the personal factors of the application may not be taken into account as considerations against disclosure in respect of matters in clause 1 of the Table in s 14. Section 55(2) of the GIPA Act provides that the personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information.

91. DCJ states that there is a high likelihood of Ms Webb publishing the presentation on the “NSW Freedom of Information” website of which she is the administrator. It is also stated that she is likely to share the information to other GIPA applicants, including some who have been identified as engaging in unreasonable conduct and who, according to Ms Cobbin, Ms Webb is in contact with.

92. DCJ is concerned that release of the information to Ms Webb will result in the information being widely disseminated and used to circumvent the procedures put in place to enable DCJ to fulfil its obligations and protect its staff from harm.

93. As the Information Commissioner points out, the fact than an applicant may disseminate information provided in response to an access application should have little bearing on the application of the public interest test as release of the information is to the world at large. Limits and conditions cannot be placed upon its use.

Application of the public interest considerations against disclosure

94. I now turn to the application of the identified public interest considerations against disclosure to the particular information sought to be withheld.

Slide 2

95. I am satisfied that cll 1(f), 2(d) and 3(f) are relevant to the information sought to be withheld on this slide and these public interest considerations against disclosure should be given significant weight. One item also concerns the personal information of another individual. While I am satisfied that these public interest considerations are applicable, I note the lack of consultation.

Slides 3, 5, 7,

96. I am satisfied that cll 1(f), 2(d) and 3(f) are relevant to the information sought to be withheld on these slides and these public interest considerations against disclosure should be given significant weight.

Slide 8

97. I am satisfied that cll 1(f), 2(d) and 3(f) are relevant to the information sought to be withheld on this slide. In addition, I am satisfied that public interest considerations against disclosure in cll 3(a) and 3(b) are applicable. These public interest considerations against disclosure should be given significant weight.

Slide 9

98. I am satisfied that cll 1(f), 2(d) and 3(f) are relevant to the information sought to be withheld on this slide and these public interest considerations against disclosure should be given significant weight. This information also concerns the personal information of another individual and thus cll 3(a) and 3(b) apply. While I am satisfied that these public interest considerations are applicable, I note the lack of consultation.

Slide 10

99. I am satisfied that cll 1(f), 2(d) and 3(f) are relevant to the information sought to be withheld on this slide with the exception of the information contained in the fourth dot point. That information is to be released to the applicant. Otherwise, I am satisfied that these public interest considerations against disclosure should be given significant weight.

Where does the balance lie?

100. I have found that the public interest considerations against disclosure contained in cll 1(f), 2(d), 3(a), 3(b) and 3(f) in relation to the information in the presentation sought to be withheld are present in this case, with the exception noted above in relation to one item on slide 10. These are to be balanced against the public interest considerations in favour of disclosure as set out above.

101. Balancing the competing public interest considerations is “a question of fact and degree, requiring the weighing of competing matters, and a task that is not amenable to mathematical calculation”: Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [70].

102. As noted above, the public interest considerations which have been identified in this matter are relevant and should be accorded weight. In general, they relate to the desirability of government information being accessible wherever appropriate.

103. So far as the public interest considerations against disclosure contained in cll 1(f), 2(d) and 3(f) are concerned, I am satisfied, particularly in light of the evidence provided by Ms Cobbin these public interest considerations against disclosure far outweigh those in favour of disclosure. This is so having regard to the effect that disclosure could have on the health and wellbeing of DCJ staff and on the ability of DCJ to fulfil its obligations under the WHS Act and to others to whom it provides services and assistance.

104. I also consider that the public interest consideration against the disclosure of Ms Cobbin’s personal information outweighs the public interest disclosure in its release. In relation to the personal information of the other individuals, I have decided that there is no utility in remitting the matter to DCJ so such consultation can occur. This is because I am satisfied that cll 1(f), 2(d) and 3(f) also applies to the relevant information and those public interest considerations militate so strongly against release of the information that, even if the person agreed to release of their personal information, I would to be satisfied that the information should in fact not be released because of the risks posed by its release.

105. The correct and preferable decision, therefore, other than in relation to the information in the fourth dot point on slide 10 and the additional information released to Ms Webb prior to the hearing, is to affirm the decision under review.

Orders

1. decision of the respondent is set aside in part.

2. The respondent is to release the information provided to the applicant prior to the Tribunal hearing.

3. The respondent is to release the information identified in paragraph [100] of these reasons.

4. The decision of the respondent is 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: 14 August 2024