Webster v Bayside Council

[2024] NSWCATAD 226

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Webster v Bayside Council [2024] NSWCATAD 226

Hearing dates:

11 June 2024

Date of orders:

8 August 2024

Decision date:

08 August 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Sullivan, Senior Member

Decision:

(1)   The decision under review is set aside.

(2)   The matter is remitted to the respondent which is directed to grant access to the Applicant of information not previously released in accordance with paragraph 112 of these reasons for decision.

(3)   The respondent is to confirm in writing to the Tribunal, by Thursday 12 September 2024, that Order 2 has been complied with.

Catchwords:

ADMINISTRATIVE LAW – Access to information — GIPA – reasonableness of search – public interest considerations against disclosure – cl 3(a), 3(e) and 3(f) of the Table in s14 of the GIPA Act

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Cases Cited:

AEZ v Commissioner of Police, NSW Police Force [2013] NSWADT 90

AIN v Medical Council of New South Wales [2015] NSWCATAP 241

Batten v University of New England [2013] NSWADT 73

CBL v Sydney Water Corporation [2016] NSWCATAD 287

Commissioner of Police, New South Wales Police Force v Camilleri (GD) [2012] NSWADTAP 19

Commissioner of Police, NSW Police Force v Barrett [2015] NSWCATAP 68

Hurst v Wagga Wagga City Council [2011] NSWADT 307

Leech v Sydney Water Corporation [2010] NSWADT 298

Manning v Bathurst Regional Council [2018] NSWCATAD 18

Miskelly v Roads and Maritime Service [2019] NSWCATAD 133

OTB v Commissioner of Police, NSW Police Force (2019) NSWCATAD 114

Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; [2009] HCA 16,

Sheehy v Commissioner of Police; Rapisarda v Commissioner of Police; McDonald v Commissioner of Police; Housego v Commissioner of Police [2018] NSWCATAD 73

Sim v Stretch [1936] 2 All ER 1237

Tallawoladah Pty Ltd v Department of Planning, Industry and Environment [2021] NSWCATAD 248

Wojciechowska v Commissioner of Police [2020] NSWCATAP 173

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Daniel Webster (Applicant)
Bayside Council (Respondent)

Representation:

Applicant (Self-represented)

HWL Ebsworth Lawyers (Respondent)

File Number(s):

2023/00360277

Publication restriction:

Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013, the publication or disclosure of the parts of these reasons marked “NOT FOR PUBLICATION”, other than to the respondent [Bayside Council], is prohibited.

REASONS FOR DECISION

1. The Applicant, Mr Daniel Webster, applied to Bayside Council (Council) under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) for information held by Council, and is dissatisfied with the responses received.

2. The issues in these proceedings include:

1. the Council’s implied decision that it did not hold any additional information that was responsive to the request;

2. the Council’s decision concerning those redactions for information which it identified as being ‘out of scope’;

3. whether the public interest considerations against disclosure in cl 3(a), 3(e) and 3(f) of the Table in s 14(2) of the GIPA Act applies to information redacted or not produced and, on balance, that public interest consideration against disclosure outweighs the public interest in favour of disclosure.

3. In accordance with s 107 of the GIPA Act and s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act):

1. the proceedings included a confidential hearing in the absence of the public and the Applicant; and

2. the published reasons for decision do not contain those parts of the reasons which would disclose information falling within s 107(1) of the GIPA Act.

Background Facts

4. I refer below to the Applicant’s address as “42 X Street”, to his next-door neighbours as the “Neighbours” and to their property as “44 X Street”.

5. The Applicant’s application to the Council under the GIPA Act was lodged on 18 July 2022 (GIPA Application). It contained 4 questions:

[A]    19/10/2021 Phoebe Mikhiel – manager of compliance & certification, advised there was an order given to 44 X street due to their unauthorised non-compliant works on their front driveway & side passage where no storm water control system had been installed. The order was to expire 25/10/2021. Please provide the report that includes this order with all correspondence including any & all correspondence from all parties.

[B]   8/12/2021 Fausto Sut emailed that the storm water control issue was given to council engineers. Please provide the information pertaining to the handing over of the issue to the engineers & also what became of the issue.

[C]   21/08/2019 NOI corresponded by Tony De Kievit to 42 X street in regards to his assessment of my masonry front wall. Please provide all the information including reviews undertaken by council staff before the NOI was approved & follow up reviews by Meredith Wallace.

[D]   Please provide all details CRM221901.

Original Decision –15 August 2022

6. The Council issued a decision on 15 August 2022 (Original Decision), with accompanying documents and a schedule listing the documents located, released (in whole or with redactions) or not released.

IPC Report – 12 December 2022

7. On 30 September 2022, Mr Webster requested a review of the Original Decision by the Information and Privacy Commissioner (IPC). He said that:

1. information he requested had not fully been provided;

2. information that was redacted should have been provided;

3. he was not satisfied that all information had been located; and

4. there were additional factors in favour of disclosure of information and personal factors, including that he required the information for the purpose of a complaint he was making to the Independent Commission Against Corruption (ICAC).

8. The IPC issued its decision to Mr Webster and the Council on 12 December 2022 (IPC Report). It concluded the Original Decision was not justified and remitted the matter back to Council to conduct a further review. Further, in respect of the searches undertaken, it noted as follows:

I observe that the Agency has uncovered relevant information relating to the CRM221901.

On review of the Applicant submissions, I accept that there is some evidence in the form of quotes from emails and reference to correspondence that would indicate that further relevant information may exist that is responsive to his request for access, such as emails from Fausto Sut.

On this basis, I am satisfied that additional searches of staff emails informed by the submissions of the Applicant above are likely to locate additional responsive information.

Overall, I am not satisfied that the Agency’s implied decision that no further information is held is justified and make recommendation to facilitate the Agency’s decision making on the additional information located at review and to allow for further search effort as may be appropriate in the circumstances.

9. On 9 January 2023, the Council wrote to Mr Webster advising they would undertake an internal review, as recommended by the IPC Report.

Application to the Tribunal – November 2023

10. On 6 November 2023, Mr Webster filed his application to the Tribunal.

1. The “Decision for Review” was stated to be a decision dated 9 January 2023.

2. In “Grounds for Application” he said:

I have attached documents to substantiate my request.

3. The application attached the 9 January 2023 Letter, the IPC Report, and a document (titled “6 November 2023”) written by Mr Webster (the Attachment).

11. The Attachment contained a history of communications with the Council since 1 October 2019 and numerous email extracts from documents received with attached commentary.

Tribunal Orders - 4 December 2023

12. On 4 December 2023, the Tribunal made orders in these proceedings requiring (inter alia) the Council to undertake and complete the internal review the subject of the IPC Report. The Tribunal also extended the time for the Applicant’s filing of his application.

Internal Review Decision – 19 February 2024

13. The Council’s internal review was undertaken by Fausto Sut (Mr Sut), who also conducted additional searches. Evidence relating to those searches is set out below. The review resulted in the “Internal Review Decision” dated 19 February 2024 (Internal Review Decision). The Internal Review Decision referred to additional searches undertaken by the Council. It provided updated schedules, highlighted in yellow to show additional responsive documents that had been located and the grounds on which some information was not provided. It also noted as follows:

I consulted with third parties about your application, and they have objected to their information being disclosed. Since I have decided to give you access to some of the information, despite the objections, they are entitled to ask for a review of the decision to disclose the information (under section 80(d) of the GIPA Act)…. The third parties have 20 working days to ask for an internal review and I cannot release the information to you while their review rights are pending, or while the decision is under review.

…

14. The Internal Review Decision letter, and two accompanying volumes of documents released to the Applicant in February 2024 (with redactions), were before the Tribunal as R2 Vol 1 and R2 Vol 2. This included the full content of emails sent by the Applicant to and from the Council.

Third parties – request for internal review

15. On 18 March 2024, third parties notified the Council of their request for an internal review of the Internal Review Decision. That internal review request was determined by the Council’s General Counsel on 9 April 2024 (Third Party Internal Review Decision).

16. [NOT FOR PUBLICATION]

17. Further Release of documents – 6 June 2024

18. Shortly before this hearing, the Applicant was issued a further letter by the Council on 6 June 2024. The letter referred to s 54(6) and (7) of the GIPA Act, and advised that the review period for the objectors’ rights to have the Third Party Internal Review Decision reviewed by the Tribunal had expired. Accordingly, the letter was accompanied by a small volume of documents released to the Applicant.

19. The Applicant confirmed he wished to continue with the current proceedings notwithstanding the issue to him of the additional information under cover of the 6 June 2024 letter.

The relevant legislation

20. The object of the GIPA Act is to open NSW government information to the public: s 3 of the GIPA Act. It also provides an access mechanism for the public to facilitate access to government information.

21. “Government information” is defined broadly to include “information contained in a record by agency”: s 4 of the GIPA Act. There is no dispute that the Council is a relevant agency.

22. The GIPA Act should be interpreted and applied to further the object of the Act, and it is the intention of Parliament that any discretions be exercised, as far as possible, to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information: s 3(2) of the GIPA Act.

Public interest considerations and determination

23. The GIPA Act provides for 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.

24. Sections 13 and 14 of the GIPA Act provide as follows:

13 Public interest test

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

14 Public interest considerations against disclosure

…

(2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

(3)   The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section.

..

Table

…

3 Individual rights, judicial processes and natural justice

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects:

(a) reveal an individual’s personal information,

…

(e) reveal false or unsubstantiated allegations about a person that are defamatory,

(f)   expose a person to a risk of harm or of serious harassment or serious intimidation,

25. Section 15 provides the principles that apply to a determination as to whether there is an overriding public interest against disclosure of government information:

15   Principles that apply to public interest determination

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

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

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

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

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

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

Obligations to search for information

26. The Council’s obligation to search for information in response to an access application is set out in s 53 of the GIPA Act:

53 Searches for information held by agency

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

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

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

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

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

Decisions made on an access application

27. Section 58 of the GIPA Act provides:

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

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

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

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

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

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

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

Note : These decisions are reviewable under Part 5. 

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

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

28. Section 74 of the GIPA Act permits the deletion (including by way of redaction) from records provided to an applicant in certain circumstances:

74 Deletion of information from copy of record to be accessed

An agency can delete information from a copy of a record to which access is to be provided in response to an access application (so as to provide access only to the other information that the record contains) either because the deleted information is not relevant to the information applied for or because (if the deleted information was applied for) the agency has decided to refuse to provide access to that information.

Internal Review by the agency

29. Section 82 of the GIPA Act provides:

82   Right of internal review

(1)  A person aggrieved by a reviewable decision of an agency is entitled to a review of the decision by the agency that made the decision (which is referred to in this Part as an internal review).

…

(4)  There is to be no internal review of a decision that is or has been the subject of review by the Information Commissioner under this Part except internal review conducted on the recommendation of the Information Commissioner.

…

30. Section 84 of the GIPA Act provides:

84   Conduct of internal review

(1)  An internal review is to be done by making a new decision, as if the decision being reviewed (the original decision) had not been made, with the new decision being made as if it were being made when the access application to which the review relates was originally received.

(2)  An internal review is not to be done by the person who made the original decision and is not to be done by a person who is less senior than the person who made the original decision.

Review by the Civil and Administrative Tribunal

31. What is a “reviewable decision” by the Tribunal is prescribed by s 80 of the GIPA Act:

80 Which decisions are reviewable decisions

The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part—

…

(d)  a decision to provide access or to refuse to provide access to information in response to an access application,

(e)  a decision that government information is not held by the agency,

(f)  a decision that information applied for is already available to the applicant,

(g)  a decision to refuse to confirm or deny that information is held by the agency

…

32. Section 63 of the GIPA Act provides:

63 Determination of administrative review by Tribunal

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

(a)   any relevant factual material,

(b)   any applicable written or unwritten law.

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

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

(a)   to affirm the administratively reviewable decision, or

(b)   to vary the administratively reviewable decision, or

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

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

Confidential Hearings

33. Section 107 of the GIPA Act prescribes the following procedures which required the holding of a confidential hearing in this matter (in part), and the application of redactions to these reasons for decision:

107 Procedure for dealing with public interest considerations

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

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

The material before the Tribunal

34. The Applicant relied on his application to the Tribunal filed on 6 November 2023 (A1), submissions dated 11 May 2024 (A2), and emails to the Tribunal dated 26 May 2024 (A3).

35. The Council relied on the Original Decision (R1), the Internal Review Decision dated 19 February 2024 with accompanying documents as provided to the Applicant (R2-V1 and R2-V2), the 6 June 2024 Decision with accompanying documents as provided to the Applicant (R3), documents filed at the request of the Tribunal on 29 November 2023 (R4), submissions filed on 24 April 2024 (R5) and in reply on 28 May 2024 (R6), and further submissions and materials provided at the hearing on 11 June 2024 (R7).

36. The Council also relied on confidential material filed on 24 April 2024, being confidential submissions (CR1), a bundle of (unredacted) Internal Review Decision documents dated 19 February 2024 (CR2), and a bundle of (unredacted) Internal Review Decision documents dated 9 April 2024 (CR3).

Submissions of the Applicant

37. The Applicant’s submissions dated 11 May 2024 raised several matters:

1. the non-provision of information relating to the “stormwater issue”, including records regarding Council’s assessment of the issue including engineering reports;

2. why information had been provided that was “not relevant to my requests (e.g. sending the BIC application report as an example which I already had & wasn’t requested in place of the storm water information I actually requested many times)”;

3. why he was not provided with the information relating to the third party “consultation process”; and

4. how information could have been withheld on the basis of being “personal information”, under cl 3(a) of the Table in s 14 of the GIPA Act.

38. The Applicant’s materials raised examples of where he said that additional information should have been located and provided in response to his GIPA Application. Of primary concern was the absence of any information relating to Council’s deliberations prior to the issue of Notices of Intention (NOIs), assessment by Council of reports, and reasons for decisions made by Council to take no further action. The Applicant’s submissions (oral and in writing) included other allegations regarding the behaviour of Mr Sut, Anthony Byrne, lawyers or other Council officers, and accusations of lying, corruption and conflicts of interest by Mr Sut.

The Respondent’s submissions

39. The Council’s submissions were filed before and also after the release of additional information to the Applicant on 6 June 2024. In respect of the public interest considerations against the disclosure, the Council appeared to rely on the outcome of the Third Party Consultation and the objections made therein, having particular regard to s 54 of the GIPA Act and clauses 3(a) and 3(f) of the Table in s 14 of the GIPA Act. These matters were addressed more fully at the Confidential Hearing and in the Confidential Submissions.

THE HEARING

Evidence presented at the Open Hearing

40. The hearing took place in person, although Mr Webster (who was ill) attended by AVL. Mr Sut of the Council attended, gave oral evidence under oath in respect of the searches undertaken by the Council, and was cross-examined.

Evidence of Mr Sut

41. Mr Sut has worked at the Council since 2010.

42. His current position at the Council is Manager, Mayoral and Councillor Support. He was previously the Manager of Investigations of Review was Manager of Governance and Risk.

43. Prior to joining the Council in 2010, he worked at the Department of Local Government (now called the Office of Local Government) which oversaw 170 councils. All his roles involved governance, including access to information and FOI applications and review.

44. Mr Sut was essentially the team leader of the team which undertook the original search for information and prepared the initial response to Mr Webster’s GIPA Application. He said he was not involved in the Original Decision, and did not sign off on it. He said this was to make sure he would be able to conduct an internal review if required.

45. As noted above, the IPC Report recommended the Council conduct an internal review, and also that further searches be undertaken.

46. Ms Catherine Bush commenced that Internal Review process, and Mr Sut took it over when she left the Council.

47. Mr Sut explained that the Council has policies for the placing of relevant records on to one of two electronic systems:

1. “Pathway” - this was the “customer request management system” module of the Council’s electronic records. Any external request or complaint received by the Council is assigned a CRM reference number. Subsequent documents or correspondence are then loaded with that same reference number when placed on to the system. It was also possible (and usual practice) for Council staff to make notes directly onto this system by reference to the assigned number.

2. “Content Manager” (or “TRIM”) – this was the EDRMS electronic document management system which held emails and other correspondence relating to Council business which were not a CRM matter.

48. Mr Sut referred to the IPC’s recommendations for additional searches to be conducted, and confirmed that had been done by him.

49. Mr Sut said that he was assisted by, and had oversight of, the Information Access Officer in relation to his search of these Council records. He accepted that further additional documents were located, suggesting the initial search had not been comprehensive. He checked to make sure that the Information Access Officer had asked all relevant Council employees to make sure they had put correspondence (including emails) and documents on to the systems which were then searched, as required by the policy. He acknowledged that there were no formal signed undertakings by the relevant employees that this had been done. He said he had no reason to suspect from his review of the information that this was not done, or that anything was missing.

50. He confirmed that all of his own documents had been appropriately loaded on to the system including his own emails.

51. Mr Sut personally conducted the searches across these systems to extract information relevant to the GIPA Application, using relevant search terms which were set by him. These search terms (which were in materials before the Tribunal) included surnames of the Applicant, the Neighbours, their addresses, and the relevant CRM numbers.

52. He confirmed that no other documents had subsequently come to light since those additional searches were done by him.

53. He stated that in the usual course, Council rangers and compliance officers have various discussions and not every discussion will be recorded or documented.

Evidence presented at the Confidential Hearing

54. The Council provided confidential submissions and other confidential materials (including unredacted documents).

55. [NOT FOR PUBLICATION]

56. [NOT FOR PUBLICATION]

57. [NOT FOR PUBLICATION]

CONSIDERATION

Jurisdiction and role of the Tribunal

58. The Tribunal’s administrative review jurisdiction is conferred under s 80 of the GIPA Act, s 9 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) and s 30 of the CAT Act.

59. The application to the Tribunal referred to the relevant “decision” for review as the 9 January 2023 letter, and attached the IPC Report. Neither of these were reviewable decisions.

60. At the time the application was filed, the only relevant “reviewable decision” was the Original Decision. However, s 84 of the GIPA Act prescribes that a later decision/s on internal review (by the agency) is a “new decision being made as if it were being made when the access application to which the review relates was originally received”.

Limitations on the role of the Tribunal

61. The Tribunal “stands in the shoes” of the Council in respect of the GIPA Application made to the Council by the Applicant. The scope of the Tribunal’s review is therefore limited to the terms of the requests originally made in the GIPA Application. Further, the only relevant information that can be responsive to that request is information held by the Council as at 18 July 2022 (the date of the GIPA Application).

62. It is convenient to first deal with some of the points raised by the Applicant in his submissions:

1. The third party consultation material was before the Tribunal in the Confidential Materials filed by the Council.

2. The Tribunal is concerned only with the determining what is the correct and preferable decision in responding to the GIPA Application.

3. Accordingly, to the extent that matters are not recorded in writing, electronically or otherwise, even if they should have been, that is not a matter that concerns the Tribunal in these proceedings. That is because there is no relevant “government information” in those circumstances.

4. Nor does the Tribunal concern itself with “why” a decision was made by Council, or other allegations raised in respect of the wider conduct of Council officers or other persons in respect of dealing with property matters over which they may issue notices or otherwise take action. The GIPA Act is not a vehicle for the review of the merits of the decisions themselves, nor a place for remedies to be sought other than as prescribed by the provisions of the GIPA Act. As noted by the IPC Report, the cases of Sheehy v Commissioner of Police; Rapisarda v Commissioner of Police; McDonald v Commissioner of Police; Housego v Commissioner of Police [2018] NSWCATAD 73 at [62] made the following observations in respect of collateral review:

…[I]t is not a matter for the Tribunal to be undertaking any factual inquiries about unsupported allegations of fabrication of evidence or malicious complaints. It is for the Tribunal to conduct an administrative review, and to do otherwise may amount to the proceedings being used as a vehicle for the collateral review of the merits or validity of official action: Raven v University of Sydney [2015] NSWCATAD 104 at [44] to [45]; Crewdson v Central Sydney Area Health Service [2002] NSWCA 354 at [24].

The role of the Tribunal

63. The role of the Tribunal is to decide whether the decision under administrative review is the correct and preferable decision (s 63(1) ADR Act). As noted above, in determining this question, the Tribunal is to have regard to the material before it (at the time of the hearing), including any relevant factual material and any applicable written or unwritten law. The Tribunal may exercise all functions conferred or imposed by any relevant legislation on the administrator who made the decision (s 63(2) ADR Act).

64. Section 105 of the GIPA Act places the onus of proof on the respondent to justify its decision.

65. The correct approach of the Tribunal’s “balancing exercise” in considering and weighing the public interest considerations for and against disclosure (in the context of s 13 of the GIPA Act) was explained in Callawadda Pty Ltd v Department of Planning, Industry and Environment [2021] NSWCATAD 248 in the following terms at [19]:

The test in section 13 requires the Tribunal as decision-maker to attribute weight to each consideration for and against disclosure, and determine whether the balance of the public interest lies in favour of, or against, disclosure of government information: Hurst v Wagga Wagga City Council [2011] NSWADT 307; Flack v Commissioner of Police, NSW Police [2011] NSWADT 286. The GIPA Act provides no set formula for calculating the weight of considerations for determining whether one set of considerations outweighs the other, and the Tribunal has stated that “any reasonable approach that follows section 15 principles seems to be acceptable ... it is really a matter of placing identified considerations in order of priority or importance”: Place v Department of Finance, Services and Innovation [2016] NSWCATAD 278 at paragraph [96]. The balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at paragraph [17].

66. This is also the approach adopted in Commissioner of Police, New South Wales Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [23]-[30].

Issue 1 – Information that is “out of scope”

67. Council determined that certain information contained in responsive documents was “out of scope”. Redactions were therefore applied under s 74.

68. A decision to redact a record under s 74 of the GIPA Act because information is “out of scope” is not a decision of an agency prescribed by s 80 of the GIPA Act. Hence the Tribunal has no jurisdiction to review such decisions: see Miskelly v Roads and Maritime Service [2019] NSWCATAD 133 at [106]. This position is supported by the following observations by the Tribunal in Manning v Bathurst Regional Council [2018] NSWCATAD 18 at [29]-[31]:

25. The Tribunal has jurisdiction to review a “reviewable decision” under the GIPA Act, including the decision of an agency to refuse access to information: GIPA Act, ss 80(d), 100; Administrative Decisions Review Act 1997 (NSW), s 9; Civil and Administrative Tribunal Act 2013 (NSW), ss 28, 30. To be a “reviewable decision,” the decision must be a decision “of an agency in respect of an access application” (GIPA Act, s 80; my emphasis). The term “reviewable decision” is defined to mean “a decision of an agency that is a reviewable decision under Part 5” (which includes s 80) (GIPA Act, Sch 4). A person is entitled to apply to the Tribunal for review if he or she is “aggrieved by a reviewable decision” (GIPA Act, s 100).

26. There is no doubt that the applicant is aggrieved by the decision to refuse to provide her with access to the redacted material in the valuation report and the solicitor’s letter. The question is whether these are “reviewable decisions” in circumstances where she did not seek that information in her access application.

27. The phrase “in respect of,” which is used in s 80 of the GIPA Act and many other statutory provisions, “may appropriately be afforded a ‘wide meaning’” but the ambit of the words “in respect of” “must yield both to the particular statutory provision in which they find expression and to the context of that provision within the statute being considered” (The Northern Eruv Incorporated v Ku-Ring-Gai Council [2012] NSWLEC 249 at [36]).

28. A possible construction of s 80 is that the decisions to refuse access to the valuation report and the solicitor’s letter are “reviewable decisions” because they were made in response to the access application and thus “in respect of” it. However, I consider that the statutory context of s 80 indicates that the phrase “in respect of” has a narrower meaning.

29. The GIPA Act provides for the making and review of decisions about access applications. The relevant provisions, and the right to access information, turn on the scope of an access application. Section 9(1) provides that: “A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.” The “information” the subject of the “enforceable right” is the information the subject of the application.

30. Section 58(1) of the GIPA Act provides for the ways in which an agency may decide an access application. These include deciding to provide access to the information and deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information. Each of the decisions an agency may make concern the government information the subject of the access application.

31. It follows from these provisions, and the scheme of the GIPA Act more generally, that the words “in respect of” in s 80 confine “reviewable decisions” to those which concern the information to which the applicant has sought access. That is, a “reviewable decision” does not include a decision purportedly made about information falling outside the scope of the access application…

69. Accordingly, these reasons for decision do not review redactions made by the Council which are said to be “out of scope” of the GIPA Application.

Issue 2 - “Not held”

70. There is an implied decision that any documents not described in the schedules of responsive documents (as produced to the Tribunal) are “not held” by the Council.

71. In discharging the Council’s burden of proof requiring that the Tribunal be satisfied that other information is “not held”, the reasonableness of the search undertaken (s 53) operates as a “plainly relevant factor”: Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 (Wojciechowska) at [41].

72. Wojciechowska (at [44]) also stated:

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

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

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

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

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

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

73. What constitutes a reasonable search will vary with the circumstances of each matter and depends upon the agency to whom the access application is made and on what terms it is made.

74. The Applicant submitted that the searches conducted by the Council were “not adequate”, or “not appropriate”. He referenced emails of a Council employee, Mr Anthony Byrnes, who (he said) told him that he had passed on information from managers withdrawing action against his neighbours, and said that no such documents were provided to him, i.e. there was no email trail withdrawing the enforcement action.

75. The evidence of Mr Sut is set out above.

Conclusion on searches undertaken

76. It is clear from the volume of information located following the IPC Report that the Council’s original search was not reasonable for the purposes of s 53 of the GIPA Act.

77. Nonetheless, I find that, on the evidence before me, the searches (eventually) undertaken by the Council were consistent with its obligations under s 53 of the GIPA Act:

1. I found Mr Sut to be a truthful and credible witness (despite the Applicant’s allegations to the contrary). I accept his evidence regarding the systems used by Council and the searches undertaken.

2. Mr Sut adequately explained to the Tribunal the functionalities and limitations of the Council’s electronic record keeping systems.

1. I am satisfied that the record keeping system of the respondent was such that the relevant “government information”, if available, was located on the electronic systems noted above.

2. Although no written declarations were provided, I find that Mr Sut obtained appropriate assistance from other Council employees to confirm the loading of relevant information on to the Council systems, and that on the balance of probabilities, Council employees had complied with directions given to them.

3. I am satisfied that the search terms applied were reasonable to locate the information.

4. There was no aspect of Mr Sut’s cross-examination which caused me to doubt his evidence.

78. In respect of allegations regarding a conflict of interest by Mr Sut, there was no aspect of his evidence that provided any substance to such allegations regarding a conflict of interest (if that were required to be considered). I was taken to the case of Deputy Secretary, Local Government, Planning and Policy v Byrne [2021] NSWCATOD 53. That case involved different circumstances not here present; in any event, the action requested was under the provisions of the Local Government Act 1993. The function before me is not a review of conduct, but of whether information has been provided as requested.

79. I have had regard to the Applicant’s submissions regarding correspondence or documentation that would be expected, in his view, to have been located, including an email saying a Council officer had passed on information and was withdrawing the action. However, there was nothing specific that Mr Sut (or myself) were taken to that established to my satisfaction that particular responsive documents, including emails, were created or held but not produced. In the circumstances of this case, where the Applicant’s assertions of documents not produced relies on assumptions (about emails being replied to, reviews undertaken being documented, and information passed on in a documented way) and other generalised statements by the Council, I consider the searches conducted by the Council and its witness’s evidence demonstrates on the balance of probabilities that such information does not exist, and the Council conducted reasonable searches for the purpose of s 53.

80. Accordingly, to the extent that further information was not located, the correct and preferable decision is that such information is “not held” to the extent it was not recorded in the most recent schedule provided to the Applicant on 6 June 2024.

Issue 3 – Consideration of factors under the GIPA Act relating to disclosure

Public Interest Considerations in favour of disclosure

Section 12 of the GIPA Act

81. Having regard to s 12(1) of the GIPA there is a general public interest in favour of the disclosure of government information. This must therefore be taken into account in the balancing exercise.

82. Further, having regard to s 12(2) of the GIPA Act, I find that there are the following public interest considerations in favour of disclosure:

1. Disclosure of the information could reasonably be expected to promote open discussion of Council’s processes, its interaction with the public, and the manner in which it responds to and investigates complaints. This will contribute to positive and informed debate on issues of public importance. I ascribe a significant weight to this factor.

2. Disclosure of the information could reasonably be expected to inform the public about the operations of the Council and their policies and practices for dealing with members of the public. I ascribe a significant weight to this factor.

3. To the extent that the information is personal information of the Applicant (in respect of matters relating to his property, or opinions or information held by others relating to him), and the information would be disclosed to him, that is a matter in favour of disclosure (Note (d) to s 12(2)). I ascribe a significant weight to this factor.

4. Note (e) to s 12(2) refers to a factor in favour of disclosure of the information where disclosure could reasonably be expected to reveal or substantiate that the agency (or a member/officer of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. However, as noted in Commissioner of Police, NSW Police Force v Barrett [2015] NSWCATAP 68, there would need to be cogent and persuasive evidence for this public interest consideration to apply. Having reviewed the materials before me, I find that although some of the processes adopted by Council may have led to delays or resulted in a change of position, the evidence does not establish this matter to my satisfaction. Further, having regard to my discussion below regarding the remission of matters to ICAC, I find that this is not a factor in favour of the disclosure of the information or, alternatively, if it was, it would not be of significant weight.

Factors relevant to the Applicant

83. Section 55 of the GIPA Act provides that the following “personal factors of the application” can be taken into account as factors in favour of providing the applicant with access to the information:

1. the applicant’s identify and relationship with any other person;

2. the applicant’s motives for making the application; and

3. any other factors particular to the applicant.

84. There is no issue that the information request relates (to a large degree) to the Applicant’s own affairs. I ascribe this factor significant weight.

85. The Applicant stated that ICAC proceedings were “on foot”, there were “current investigations” of various Council officers, and that ICAC was “waiting on the documents”. He said that this was an additional ground in favour of disclosure. I acknowledge his assertions. However (as also noted in the IPC Report), there was nothing by way of evidence which allows me to be satisfied that it conclusively demonstrates or contains persuasive evidence to bring this factor into account in my balancing exercise. If it did, I would ascribe it a medium weight.

Public interest considerations against disclosure

86. The Respondent identified cl 3(a), 3(e) and 3(f) in the Table in s 14 of the GIPA Act as public interest considerations against disclosure.

87. The “personal factors of the application” (listed at para 82 above) may also be taken into account as factors against providing access to the extent that they are relevant to one of the cl 3 matters discussed below: s 55(2) and (3).

88. The relevant considerations in the Table under s 14 may be satisfied where it “could reasonably be expected” to have the relevant effect. What this means was described in Leech v Sydney Water Corporation [2010] NSWADT 298 at [25] in the following terms:

The term ‘could reasonably be expected’ has been considered in a number of cases. The words have their ordinary meaning: Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163. 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.

3(a) – personal information

89. Clause 3(a) of the Table in s 14 provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to reveal an individual’s personal information.

90. Personal information is defined in cl 4 of Sch 4 to the GIPA Act as follows:

4   Personal information

(1)  In this Act, personal information means 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.

(2)  Personal information includes such things as an individual’s fingerprints, retina prints, body samples or genetic characteristics.

(3)  Personal information does not include any of the following—

(a)  information about an individual who has been dead for more than 30 years,

(b)  information about an individual (comprising the individual’s name and non-personal contact details, including the individual’s position title, public functions and the agency in which the individual works) that reveals nothing more than the fact that the person was engaged in the exercise of public functions,

(c)  information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause.

91. “Reveal” is defined in cl of Sch 4 to mean:

reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).

92. Section 15(1)(b) of the GIPA Act states that agencies must have regard to any relevant guidelines issued by the Information Commissioner whether determining whether there is an overriding public interest against disclosure. The Information Commissioner has published Information Access Guideline 4 – Personal Information as a public interest consideration under the BIPA Act October 2023. This Guideline provides examples of what is meant by “personal information” under the GIPA Act.

93. The most relevant examples of “personal information” are details that can directly identify the persons which are recorded in the relevant documents. This includes the names, home addresses and personal contact details of persons.

94. [NOT FOR PUBLICATION]

95. [NOT FOR PUBLICATION]

Clause 3(e) – reveal false or unsubstantiated allegations about a person that are defamatory

96. The next question is whether disclosure of information could reasonably be expected to reveal false or unsubstantiated allegations about a person that are defamatory.

97. In Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [83]-[84], Judicial Member Malony (of the former NSW Administrative Decisions Tribunal) held there were two elements to be considered: first, the respondent must show that the information to which the applicant seeks access contains false or unsubstantiated allegations against a person [i.e. an individual], and that those allegations are defamatory; second, the respondent must reach a conclusion about whether the allegations are defamatory according to the general principles of defamation law. The Tribunal accepted that a publication is defamatory of a person if it tends, in the minds of ordinary reasonable people, to injure their reputation either by:

1. Disparaging him or her;

2. Causing others to shun or avoid him or her; or

3. Subjecting him or her to hatred, ridicule or contempt.

98. In Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; [2009] HCA 16, the High Court approved the test proposed by Lord Atkin in Sim v Stretch [1936] 2 All ER 1237 that statements might be defamatory if “the words tend to lower the plaintiff in the estimation of right-thinking members of society generally” (at [4]). The general test is whether the published matter is “likely to lead an ordinary reasonable person to think the less of a plaintiff” (at [5]). The Court said the hypothetical audience has been regarded as “composed of ordinary reasonable people…of ordinary intelligence, experience and education” (at [6]).

99. [NOT FOR PUBLICATION]

3(f) – risk of harm, serious harassment or serious intimidation

100. The next question is whether release of particular information could reasonably be expected to expose people to a “risk of harm or of serious harassment or serious intimidation”: cl 3(f) of the Table in s 14 of the GIPA Act.

101. In OTB v Commissioner of Police, NSW Police Force (2019) NSWCATAD 114, at [77] to [79], SM Blake SC reviewed and summarised several authorities considering cl 3(f):

77   The issue for determination is whether release of the information would expose people to a “risk of harm or of serious harassment or serious intimidation”. It is not necessary to decide whether such harm is likely. It is sufficient that there is a risk of it: Zonnevylle v Department of Education and Communities [2018] NSWCATAD 139 at [49]; Miskelly at [94].

78 “Harm”, “serious harassment”, and “serious intimidation” are not defined in the GIPA Act. Their meaning received extensive judicial consideration by the Tribunal in AEZ v Commissioner of Police, NSW Police Force [2013] NSWADT 90. Each is to be seen as a separate matter to be considered: AEZ at [89]; Miskelly at [95].

79   As to “harm”, the Tribunal has held that the meaning of harm should be confined to a real and substantial detrimental effect on a person, rather than on their business interests. A detrimental effect may be to a person’s physical, psychological or emotional wellbeing: AEZ at [85]; Miskelly at [96]. Mere discomfort or tension is not ordinarily enough: Ermel v Department of Finance and Services [2013] NSWADT 183 at [90]; Miskelly at [105].

102. As noted above, each of these terms was addressed in some detail in in AEZ v Commissioner of Police, NSW Police Force [2013] NSWADT 90 at [82] –[ 94]:

82 The question here is whether if the information is disclosed, it could reasonably be expected that the disclosure would “expose a person to a risk of harm or of serious harassment or serious intimidation.”

83 The GIPA Act does not contain a definition of harm, serious harassment or serious intimidation. It is to be noted that harm is not qualified by the adjective serious. The Macquarie Dictionary online defines harm thus -

noun 1. injury; damage; hurt: to do someone bodily harm.

2. moral injury; evil; wrong.

-verb (t) 3. to do harm to; injure; damage; hurt.

-phrase 4. in harm’s way, in danger.

5. out of harm’s way, out of danger.

[Middle English; Old English hearm]

84 Harm is a concept frequently used by the law. The criminal law prohibits assaults occasioning bodily harm. This has been interpreted in its ordinary meaning to “include any hurt or injury calculated to interfere with the health or comfort of [the injured person]”: see R v Donovan [1934] 2KB 498. “Serious harm” is a concept used in criminal defamation, which requires proof of an intent to cause serious harms. Section 40 of the Civil Law (Wrongs) Act 2002 (ACT) on the other hand defines “harm” to be harm of any kind, including personal injury, damage to property and economic loss. Harm is also a concept in child protection: in section 9 of the Child Protection Act 1999 (Qld) it is defined as “as any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing.”

85 In the context of s 14 of the GIPA Act I am inclined to the view the meaning of harm should be confined to a real and substantial detrimental effect on a person, rather than on their business interests. This is so given the juxtaposition of the word “harm” with the concepts of serious harm and intimidation, and the fact that economic and business interests are the subject of public interest consideration against disclosure in part 4 of the section 14 Table. A detrimental effect may be to a person’s physical, psychological or emotional wellbeing.

86 Serious harassment is a separate and distinct concept. The Macquarie Dictionary online defines harass -

verb (t) 1. to trouble by repeated attacks, incursions, etc., as in war or hostilities; harry; raid.

2. to disturb persistently; torment.

[French harasser, from Old French harer set a dog on]

87 The concept of harassment is one familiar to anti-discrimination law, with sexual harassment being prohibited and subject to remedies. A consideration of those laws reveals that a common element in most jurisdictions is that the person harassed would be offended, humiliated or intimidated by the conduct in the circumstances: see Sex Discrimination Act 1984 (Cth), s 28A(1); Anti-Discrimination Act 1977 (NSW), s 22A; and Equal Opportunity Act 1984 (SA), s 87(9).

88 In Henderson v McKenzie [2009] ACTSC 39 Higgins CJ was considering a charge of stalking with intent to harass contrary to s 35(1)(c) of the Crimes Act 1900 (ACT). His Honour said, at [6-8] -

6. Harassment is not defined in the Crimes Act, nor, indeed, in the Criminal Code 2002 (ACT) (Criminal Code). However, it does seem in context to bear its usual meaning, ie “to trouble by repeated attacks; harry; (1) to worry or unnerve (an enemy) by continuous small attacks; (2) to disturb, worry, torment, distress with annoying labour, care or misfortune” (World Book Dictionary); “Vex by repeated attacks; trouble, worry” (Concise Oxford Dictionary).

89 All of the definitions of harassment require a consideration of how the conduct complained of is experienced by the person alleged to be harassed, and are concerned with whether that person was offended, worried, tormented, distressed or harassed by the conduct. In the context of the GIPA Act where the decision maker has to be satisfied that, if the information is disclosed, it could reasonably be expected that the disclosure would expose a person to serious harassment, the assessment of the impact of the conduct on the individual concerned is an objective one, although particular circumstances and vulnerabilities relating to that individual may be taken into account when making that assessment.

90 The GIPA Act makes specific mention of serious intimidation as another element of the public interest consideration against disclosure in point 3(f) of the Table to s 14, despite the fact that the two concepts of intimidation and harassment are clearly related.

91 Intimidation is defined by The Macquarie Dictionary online as -

verb (t) (intimidated, intimidating) 1. to make timid, or inspire with fear; overawe; cow.

2. to force into or deter from some action by inducing fear: to intimidate a voter.

[Medieval Latin intimidātus, past participle, made afraid. See TIMID]

92 Intimidation is defined in s 7 of the Crimes, Domestic and Personal Violence Act 2007 (NSW) thus -

(1) For the purposes of this Act, intimidation of a person means:

(a) conduct amounting to harassment or molestation of the person, or

(b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or

(c) any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property.

93 In PE V MU [2010] NSWDC 2 William DCJ referred to that definition and said -

15...intimidatory conduct... is conduct amounting to harassment or molestation or contact by one person with another such as would cause the other person to fear for their safety.

16 Harassment is not defined in the Act but in its legal sense refers to ongoing behaviours that are found to be threatening or disturbing. ...

94 Importantly the intimidation or harassment referred to in point 4(f) is required to be serious intimidation or serious harassment, requiring that the decision maker be satisfied that release of the information could reasonably expose a person to intimidation or harassment that is heavy, weighty or grave, and not trifling or transient.

103. [NOT FOR PUBLICATION]

104. [NOT FOR PUBLICATION]

105. [NOT FOR PUBLICATION]

106. [NOT FOR PUBLICATION]

Legal Professional Privilege

107. For completeness, I note that Council did not rely on any claim for legal professional privilege.

108. There is no need for me to consider that aspect further. In any event, I agree with the approach adopted by General Counsel of the Council.

Conclusion - the balancing exercise

109. The balancing exercise ‘is a question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation’: see Battin v University of New England [2013] NSWADT 73, at [74].

110. I have had regard above to each of the public interest considerations in favour of disclosure, and against disclosure, and ascribed them a relevant weight. In weighing the competing public interest considerations, I have taken the general public interest considerations in favour of disclosure and the public’s legally enforceable right to government information into account. The personal factors of the application in s 55 of the GIPA Act have also been considered.

109. [NOT FOR PUBLICATION]

110. [NOT FOR PUBLICATION]

111. [NOT FOR PUBLICATION]

112. [NOT FOR PUBLICATION]

113. The correct and preferable decision is to set aside the decision of the Council and remit it for reconsideration by the Council in accordance with the procedure set out above.

Orders

1. The decision under review is set aside.

2. The matter is remitted to the Council which is directed to grant access to the Applicant of information not previously released in accordance with paragraph 112 of these reasons for decision.

3. The Council is to confirm in writing to the Tribunal, by no later than Friday 13 September 2024, that Order 2 has been complied with.

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: 08 August 2024