Woolley v Lismore City Council
[2013] NSWADT 10
•16 January 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Woolley v Lismore City Council [2013] NSWADT 10 Hearing dates: 19 November 2011, 16 and 26 July 2012 Decision date: 16 January 2013 Jurisdiction: General Division Before: S Higgins, Deputy President Decision: 1.The decision of the respondent in regard to the information in Dr Taylor's report and his email of 23 February 2005 (document 44 and annexure B to document 69) is affirmed.
2.The decision of the respondent in regard to the information in Mr Harrison's correspondence and his report (document 43, 50 and 69) which, if disclosed, will reveal the substance of the legal advice of Dr Taylor is affirmed.
3.The decision of the respondent in regard to the information that is the name of AB and other officers of the respondent is set aside and in substitution thereof a decision to grant the applicants access to that information.
4.The decision of the respondent in regard to the information in the body of the Memorandum dated 4 March 2005 is set aside and in substitution thereof a decision to grant the applicants access to that information.
5.The decision of the respondent in regard to the remaining information in the body of document 53, 63, 66, 69 (i.e. the report and annexures B, E, F and G) is set aside and in substitution thereof a decision to grant the applicants access to this information under paragraph 72(1)(a) of the Government Information (Public Access) Act 2009.
6.Further to order 3 and 4 above, the respondent to provide the applicants with a full copy of the Memorandum of 4 March 2005 and a further copy of document 43, 44, 47 and 60 with the name of AB and the other officers of the respondent disclosed.
Legislation Cited: Administrative Decisions Tribunal Act 1997
Evidence Act 1995 (NSW)
Freedom of Information Act 1982 (Cth)
Freedom of Information Act 1989 (NSW)(repealed)
Government Information (Public Access) Act 2009
Independent Commission Against Corruption Act 1998
Local Government Act 1993Cases Cited: Attorney-General's Department v Cockcroft (1986) 10 FCR180
Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19
Mann v Carnell (1999) 201 CLR 1
McKinnon v Blacktown City Council [2012] NSWADT 44
McKinnon v Secretary, Department of Treasury [2006] HCA 45
Osland v Secretary of the Department of Justice [2008] HCA 37Category: Principal judgment Parties: Ian Craig Woolley (First applicant)
Lynette June Woolley (Second applicant)
Lismore City Council (Respondent)Representation: Grahams Solicitors (Applicants)
McCartney Young Lawyers (Respondent)
File Number(s): 113066
REASONS FOR DECISION
Introduction
This is an application by Mr and Mrs Woolley (the applicants) seeking review of a decision of the Lismore City Council (the respondent), made under the Government Information (Public Access) Act 2009 (The GIPA Act), in regard to their request for access to information held by the respondent.
On 27 August 2010, the applicants, through their solicitor, sought access to the information in the following documents:
All documents, reports, files relating to the investigation into the conduct of [AB] in respect to 58 Satinwood Drive, including copies of reports prepared by any outside consultants or organisations.
As the respondent has claimed that there is an overriding public interest in the disclosure of the name of the person named in the applicants' access application, I have not named the person and have used the pseudonym AB instead. I have also used a pseudonym for the name of any other person from whom AB's name could be identified.
The applicants had been the owners of the land at 58 Satinwood Drive (the property or Lot 3). Lot 3 was part of a larger block of rural land, which, in 1995, the applicants subdivided into a number of Lots. In obtaining Development Consent for the subdivision, the respondent required the retention of one Lot for 'reafforestation', which specifically had a 'no dwelling entitlement.' This was Lot 3. Some years after having sold all the other blocks, the applicants approached the respondent seeking to vary the Development Consent for Lot 3 so that a dwelling could be built on the property. In their discussions with the respondent, the applicants spoke to AB, a Senior Officer in the Town Planning Department of the respondent. In mid 2001, the applicants were advised by the respondent that their application for variation had been refused.
Subsequently, the applicants advertised Lot 3 for sale. The applicants' say they received many enquiries from potential purchasers. Some purchasers, after having contacted the respondent, telephoned the applicants and advised that they were not interested in the property as they had been told by the respondent that a house could not be built on it.
In July 2002, AB contacted the applicants and offered them $5,000.00 for the property. The respondent says that AB had 'identified the property as having development potential'. The applicants accepted AB's offer and instructed their solicitor to prepare a contract for sale. On signing the contract for sale the applicants noticed that the purchaser named on the contract was Ms C of Queensland. The respondent says that AB 'brought the property to the attention' of Ms C and that he 'provided advice about the property.' The applicants settled on the sale of the property on 29 August 2002.
The respondent says that in October 2003, the respondent Council resolved to amend Schedule 4 of the Lismore Local Environmental Plan 2000 (LEP), which allowed for a dwelling to be built on the property. The respondent contended that despite the resolution having been made, the Schedule of the LEP was not altered to reflect the change for some time. The applicants say that prior to October 2003, on 5 December 2002 the respondent placed a Public Notice in the local newspaper notifying the community of a Development Application, lodged by Newton Denny & Chapelle, in respect to the property which sought the respondent's approval for modifications, including permission to build a dwelling, to the Development Approval that had been given to the applicants.
On 16 February 2005, Ms C lodged a Development Application with the respondent to build a dwelling on the property. That application, the applicants say found its way to AB, who in a Memorandum, dated 4 March 2005, advised the respondent's engineer that he would not have any involvement in the development application as Ms C was a close friend of his. It would appear that that members of the local community expressed considerable concern about the respondent's decision to allow a dwelling to be built on the property and questioned whether the decision was influenced by an officer(s) of the respondent who had a vested interest in the decision that was made.
On 8 August 2007, Ms C sold the property to Ms D and Mr E for $255,000.00. Of concern to the applicants is AB's involvement in the original purchase by Ms C and the subsequent resolutions of the respondent Council in approving Development Applications of Ms C to remove the original development restrictions and to approve the building of a dwelling on the property. When the property was sold in 2007, no dwelling had been built on it.
In June 2008, the General Manager of the respondent received an oral complaint, from a person (not the applicants), alleging serious misconduct of by AB concerning the Development Application decisions made in regard to the property. On receipt of the complaint, the General Manager initiated an investigation into the alleged misconduct (alleged misconduct investigation). In 2009, the General Manager engaged Dr Lindsay Taylor, a solicitor, to report on the matter. Dr Taylor provided a report, dated 14 February 2009. As a result of that advice the respondent made further enquiries in the course of the alleged misconduct investigation, which included making enquires of the applicants in regard to their sale of the property in 2002. The applicant's solicitor responded to those enquiries in a letter dated 16 September 2009. In March 2010, the General Manager of the respondent wrote to the Independent Commission Against Corruption (ICAC) seeking an assessment of its enquiries into the alleged misconduct. The ICAC responded in June 2010, referring the matter back to the respondent for assessment/investigation under sections 53 and 54 of the Independent Commission Against Corruption Act 1998 (ICAC Act). At the time the applicants made their application for access, the respondent had engaged Mr N Harrison, a barrister, to conduct the referred assessment/investigation. Mr Harrison found that 'there is no evidence of corrupt conduct (as specified in the questions posed by the ICAC) ...'.
The respondent's original determination of the applicants' request
On 8 September 2010, the respondent determined the applicants' request for access by refusing access to the information sought on the grounds that the there was an overriding public interest against disclosure of the information sought. That is, it found that the disclosure of the information may 'prejudice the prevention, detection or investigation of a contravention or possible prevention of the law or prejudice the enforcement of the law': see item 2(b) in the table to subs 14(2) of the GIPA Act.
Review by the Information Commissioner
The following day, the applicants' solicitor made an application for review by the Office of the Information Commissioner (OIC): see section 89 of the GIPA Act. The OIC finalised its review on 15 February 2011. It recommended that the respondent confirm the status of the investigation that was being conducted by the Independent Commission Against Corruption (the ICAC) in regard to AB's dealings with the property and that it reconsider the applicants' GIPA request once the ICAC investigation had concluded.
History of the applicants' review application before the Tribunal
On 11 March 2011, the applicants' solicitor lodged this application for review by the Tribunal. The application first came before me on 19 April 2011 at a planning meeting. The solicitor for the applicants and the solicitor for the respondent appeared by telephone. By consent I made orders that the respondent prepare a schedule of documents relevant to the applicants GIPA request and that it provide the Tribunal with a copy of these documents on a confidential basis. A further planning meeting was scheduled for 24 May 2011. At the request of the paries, that planning meeting was vacated and the matter next came before me at a planning meeting on 21 June 2011. On this occasion, orders were made for the filing and serving of evidence and written submissions. The matter did not come before me for a further a planning meeting until 11 October 2011, when, by consent, the matter was set down for hearing, at Lismore, on 19 November 2011.
The respondent itemised 74 documents in its schedule of documents, as being the documents containing the information relevant to the applicants' GIPA request. The schedule identified the date of each document (i.e. between 25 June 2008 and 18 April 2011), the type of document it was (e.g. email, file note, or letter), the author, a brief description of what is contained in the document and the reason for non disclosure. Eleven documents were asserted to contain information to which legal professional privilege was attached. Others were asserted to contain information, the disclosure of which could reasonably be expected to (a) prejudice supply to the respondent of confidential information that facilitates the effective exercise of the respondent's function (item 1(d) of the table to section 14 of the GIPA Act) and (b) prejudice the conduct of an investigation conducted by the respondent (item 1(h) of the table to section 14 of the GIPA Act). And there were six documents which the respondent asserted could be disclosed subject to the deletion of some names.
At the hearing, the respondent tendered an affidavit of Graeme Wilson, the Corporate Services Co-ordinator (Corporate Compliance Manager) and Public Officer of the respondent and the applicants tendered an affidavit of Mr Ian Craig Woolley. The respondent had also provided the Tribunal, on a confidential basis, with a copy of the document is issue.
During the course of the hearing it became apparent that the respondent had not fully understood the application of the public interest considerations set out in the GIPA Act, which had come into operation on 1 July 2010. Accordingly, with the consent of the parties, I remitted the decision of the respondent for reconsideration under section 65 of the Administrative Decisions Tribunal Act 1997 (the ADT Act). By consent, I also made an order as to the date on which the respondent was to file and serve its decision following reconsideration, an order for the filing and serving of further written submissions by the parties and an order that the application was to be determined on the papers pursuant to section 76 of the ADT Act.
Subsequently, I listed the matter for directions on 16 and 26 July 2012 as it was not clear from the material filed which documents remained in dispute and whether the Tribunal had been provided with a copy of each of these.
As a result of these directions hearing and the determination of the respondent on re-consideration, the applicants were provided with some additional information. The applicants also narrowed the information for which they pressed access. As a consequence, the information which remains in dispute is that contained in 11 documents (in whole or in part), dated between 8 August 2010 and 18 April 2011, and numbered as follows:
- Document No 43, 44, 47, 50, 53, 60, 63, 66, 69, 73 and 74.
It is the contention of the respondent that these documents contain information that is either (a) information to which client legal professional privilege attaches (clause 5 of Schedule 1 of the GIPA Act), or (b) information, the disclosure of which could reasonably be expected to: -prejudice supply to the respondent of confidential information that facilitates the effective exercise of the respondent's functions (item 1(d) of the table to section 14 of the GIPA Act), or prejudice the effective exercise by an agency (item 1(f)), or prejudice the conduct, effectiveness or integrity of any audit, test investigation or review conducted by or on behalf of the respondent (item 1(h)), or information, the disclosure of which could reasonably be expected to reveal an individual's personal information (item 3(b)). The content of the documents in issue is set out below.
The role of the Tribunal in reviewing the decision of the respondent is to decide what is the correct and preferable decision having regard to the material before it, including (a) any relevant factual material and (b) any applicable written or unwritten law: see subsection 63(1) of the ADT Act.
Applicable legislation
The applicable law is that set out in the GIPA Act, the objects of which are set out in section 3 as follows:
3 Object of Act
(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:
(a) authorising and encouraging the proactive public release of government information by agencies, and
(b) giving members of the public an enforceable right to access government information, and
(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
(2) It is the intention of Parliament:
(a) that this Act be interpreted and applied so as to further the object of this Act, and
(b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
The term 'government information' is defined in section 4 of the GIPA Act to mean 'information contained in a record held by an agency'. Government information 'held' by an agency is defined in clause 12 of Schedule 4 of the GIPA Act. It provides as follows:
12 Government information held by agency
(1) A reference in this Act to government information held by an agency is a reference to:
(a) information contained in a record held by the agency, or
(b) information contained in a record held by a private sector entity to which the agency has an immediate right of access, or
(c) information contained in a record in the possession or custody of the State Records Authority (or that the Authority has in the custody or possession of some other person) to which the agency has an immediate right of access, other than a record that is withheld from public access under section 59 of the State Records Act 1998, or
(d) information contained in a record that is in the possession, or under the control, of a person in his or her capacity as an officer or member of staff of the agency (including, in the case of a Minister, the personal staff of the Minister).
(2) Information that would be regarded as government information held by an agency because the agency has access to a record that contains the information is not to be regarded as government information held by the agency if the public generally has access to the record (for example, because the record is available on the Internet).
(3) Information contained in a record that genuinely forms part of the library material held by an agency is not government information held by the agency.
Section 5 of the GIPA Act contains a presumption in favour of the disclosure of government information unless there is an 'overriding public interest against disclosure'. Section 13 of the GIPA Act sets out the test to be applied in determining whether there is an overriding public interest against disclosure. That test is in the following terms:
'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.'
Section 12(1) of the GIPA Act provides that there is a general public interest in favour of disclosure of government information. Subsection 12(2) provides that public interest considerations in favour of disclosure are not limited. The section goes on to provide some examples of public interest considerations in favour of disclosure of government information. These include:
Note. The following are examples of public interest considerations in favour of disclosure of information:
(a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.
(b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.
(c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.
(d) The information is personal information of the person to whom it is to be disclosed.
(e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.
The public interest considerations against disclosure are limited. These are set out in section 14 of the GIPA Act. Subsection 14(1) provides that government information described in Schedule 1 of the GIPA Act is to be conclusively presumed to give rise to a public interest consideration against disclosure. Included in this Schedule is information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege): see clause 5 in Schedule 1, which provides as follows:
5 Legal professional privilege
(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege.
(2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause.
(3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5.
Sections 117, 118 and 119 of the Evidence Act 1995 (NSW) sets out the circumstances in which information is privileged from production in legal proceedings. These provisions are discussed in more detail below.
Also included in this Schedule is information the disclosure of which is prohibited by a 'secrecy law' (see clause 1 of the Schedule) and 'excluded information' (see clause 6 of the Schedule). A 'secrecy law' is defined as a law set out in any of the Acts listed in clause 1. This list includes the ICAC Act, which contains a secrecy provision at section 111. 'Excluded information' is that which relates to a function specified in Schedule 2 of the GIPA Act and which relates to an agency listed in that Schedule. Clause 2 of that Schedule relates to the function of 'Complaint handling and investigative information' and included in this clause is the ICAC's 'corruption prevention, complaint handling, investigative and reporting functions.' The respondent has not contended that the information in dispute falls within a secrecy law or an excluded information provisions in Schedule 1.
Subsection 14(2) sets out the only other public interest considerations against disclosure. For the purposes of this application, the relevant public interest considerations against disclosure are as follows:
14 Public interest considerations against disclosure
(1) ...
(2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.
(3) ...
Table
1 Responsible and effective government
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 (whether in a particular case or generally):
(a)
...,
(b)
..., ,
(c)
...,
(d)
prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions,
(e)
...
(f)
prejudice the effective exercise by an agency of the agency's functions,
(g)
...
(h)
prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).
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,
(b)
...
Section 15 sets out the principles that are to be applied when determining whether there is an overriding public interest against disclosure. That section provides as follows:
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.
Part 4 of the GIPA Act deals with how an access application is to be made, dealt with and determined. Section 43 in this Part provides that an access application cannot be made for 'excluded' information (see paragraph ?? above). As I have indicated, the respondent has not contended that the information is 'excluded' information.
Section 53 of the GIPA Act sets out the obligation of an agency in searching for the information for which access is sought. Subsection 53(1) provides that the agency's obligation is limited to the information held by the agency as at the date on which the access application is received. In this application, the respondent did not press this point and identified information relevant to the applicants' access application that came into existence subsequent to the date of their request.
Also in dealing with an access application which seeks access to 'personal information' about a person (other than the access applicant), or concerns the person's business, commercial, professional or financial interests, section 54 of the GIPA Act requires an agency to consult with that person before providing access where (a) the person may reasonably be expected to have concerns about the disclosure of the information, and (b) those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information.
Section 55 provides for personal factors to be taken into account in determining where the public interest lies. That section is in the following terms:
55 Consideration of personal factors of application
(1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section:
(a) the applicant's identity and relationship with any other person,
(b) the applicant's motives for making the access application,
(c) any other factors particular to the applicant.
(2) 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.
(3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14.
(4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for.
(5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to provide proof of his or her identity.
(6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person.
Note. An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73.
In this application, by reason of subsection 105(1) of the GIPA Act, the onus is on the respondent, and not the applicants, to establish that the there is an overriding public interest against disclosure of the information in issue.
Section 107 of the GIPA Act sets out how the Tribunal is to deal with information for which there is, or is claimed to be, an overriding public interest against disclosure. In essence that section provides that the Tribunal is to prevent the disclosure of such information to the public, GIPA applicant and the applicant's legal representative. In accordance with the nondisclosure requirements of this section the Tribunal was provided with a copy of the disputed information in confidence. As I have indicated above, the respondent has claimed that there is an overriding public interest against the disclosure of the name of AB. It is in accordance with subsection 107(3) that I have not named him in these reasons for decision. However, for the reasons set out below I have found that the respondents have not made out their claim.
Section 72 of the GIPA Act sets out the form in which access is to be given where the agency determines to grant access to the information sought. That section provides:
72 Forms of access
(1) Access to government information in response to an access application may be provided in any of the following ways:
(a) by providing a reasonable opportunity to inspect a record containing the information,
(b) by providing a copy of a record containing the information,
(c) by providing access to a record containing the information, together with such facilities as may be necessary to enable the information to be read, viewed or listened to (as appropriate to the kind of record concerned),
(d) by providing a written transcript of the information in the case of information recorded in an audio record or recorded in shorthand or other encoded format.
(2) The agency must provide access in the way requested by the applicant unless:
(a) to do so would interfere unreasonably with the operations of the agency or would result in the agency incurring unreasonable additional costs, or
(b) to do so would be detrimental to the proper preservation of the record, or
(c) to do so would involve an infringement of copyright, or
(d) there is an overriding public interest against disclosure of the information in the way requested by the applicant.
Section 74 of the GIPA Act makes provision for the deletion of information in providing an applicant access to information in a record, which contains, in part, information for which there is an overriding public interest against disclosure. That section is in the following terms:
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.
Section 73 of the GIPA Act deals with conditions on access. It provides as follows:
73 Access to be unconditional
(1) An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application.
(2) A condition may be imposed as to how a right of access may be exercised (such as a condition that prevents an applicant making notes from or taking a copy of a record that is made available for inspection) but only to avoid there being an overriding public interest against disclosure of the information.
(3) A condition may be imposed that access to medical or psychiatric information will only be provided to a medical practitioner nominated by the applicant and not to the applicant personally.
Note. Access can also be made conditional on the payment of processing charges (s 64) and on the provision of evidence of identity or other personal factors relevant to the agency's decision to provide access (s 55).
The documents in dispute
As can be seen from the descriptions below, the nature of the information for which access has been refused can be categorised as follows:
- the information in Dr Taylor's report (dated 14 February 2009) and Dr Taylor's communication with the respondent on 23 February 2009,
- the information in the communications between the respondent and Mr Harrison in regard to his investigation (this includes a copy of Dr Lindsay Taylor's report),
- the information in Mr Harrison's investigation report,
- the respondent's communication with the ICAC,
- the respondent's communication with another officer of the respondent, and
- information that is the name of AB and other officers of the respondent who provided information in the course of the respondent's enquiries/investigation into AB's alleged misconduct.
Document 43 - This document is a letter, dated 8 August 2010, from Mr Harrison to the General Manager of the respondent, concerning the 'ICAC Referral'. The applicants have been provided with a copy of the letter with some of the information in the letter deleted. The deleted material includes the names of persons other than the applicants, or the applicants' solicitor.
Document 44 - This document consists of an email from Ms Isabel Perdriau, the Manager Human Resources of the respondent, to Mr Harrison dated 9 August 2009. In her email, Ms Perdriau forwarded an email Dr Lindsay Taylor had sent to the General Manager of the respondent, on 23 February 2009. Also attached to the email is a copy of, Dr Taylor's report dated 14 February 2009.
The applicants have been provided with a copy of the information in the body of the email of Ms Perdriau, the formal parts of the email of Dr Taylor and the date, address and subject matter of page 1 of Dr Taylor's report.
Document 47 - This document consists of an email from Ms Perdriau to Mr Harrison sent on 12 August 2010. Attached to the email were several documents, including copies of a letter from the applicants' solicitor, dated 16 December 2009. The applicants have been provided with a copy of the email and the attachments which are the letters written by their solicitor. In regard to the remaining attachments, subject to one deletion, the applicants have been granted access to the email of Helen Manning, the Manager Planning of the respondent, to the respondent Councillors, sent on 4 March 2005 and the reply sent by Councillor M Bismire. The deletion is the name of a person to whom Ms Manning copied in on her email.
The remaining attachment is an internal Memorandum of the respondent dated 4 March 2005. The applicants have been provided the information that is the title, date, file and subject matter of the document. Access to the remaining information (i.e. person who wrote the memo, to whom it was sent and what was said in the memo) was refused.
Document 50 - This document is a letter from Mr Harrison to the General Manager of the respondent, dated 13 August 2010, concerning the ICAC Referral. Other than the formal parts, the applicants have been refused access to the information in this document.
Document 53 - This document is a series of emails between Mr Harrison and Ms Perdriau on 13 August 2010. Other than the formal parts of the email, access to the information in the body of each email has been refused.
Document 60 - This document is an email from John Eddy, a Human Resources Officer of the respondent, to Mr Harrison. Subject to two deletions the applicants have been provided with a copy of this document. Each deletion is the name of a person.
Document 63 - This document is a letter Mr Eddy wrote, on 31 August 2010, to a person form whom he requested information about the property. Other than the date of the letter and that it was written by Mr Eddy, the applicants have been refused access to this information.
Document 66 - This document is a letter, dated 14 September 2010, in response to the abovementioned letter of Mr Eddy. Again, the applicants have been refused access to the information in this document, other than Mr Eddy's details and the date of the letter.
Document 69 - This document is a letter, dated 8 October 2010, from the General Manager of the respondent to the ICAC Commissioner. Attached to the letter is a copy of Mr Harrison's' investigation report, dated 28 September 2010. It also includes a copy of the attachments to the report, namely annexure A - a copy of Dr Taylor's report that is attached to the email which is document 47, B - a 9 page document that came into existence after Dr Taylor's report, C - the Memorandum of 4 March 2005 that is the attachment to the email that is document 47, D - letter from the applicants' solicitor dated 16 September 2009 that is an attachment to the email that is document 47, E - a one page email exchange between Ms Perdriau and another person sent on 1 February 2010, F - a copy of document 63 and G - a copy of document 66).
With the exception of one deletion, the applicants have been provided with a copy of the information in the letter of the General Manager and the covering letter to Mr Harrison's advice. The deletion is the name of a person. In the information that was provided is a statement that 'there is no evidence of corrupt conduct'.
The applicant's have also been provided with a copy of annexure D and the formal parts of annexure A, C, E, F and G. Otherwise, the applicants have been refused access to the information in this document and its attachments.
Document 73 - This document is an email exchange between Michael Kane, Acting Chief Investigator of the ICAC, and Ms Perdriau on 25 March and 18 April 2010. Subject to one deletion, the applicants have been granted access to the email exchange of 18 April 2010. The deletion is the name of a person. Other than the formal parts, the applicants have not been granted access to the body of the information in the email of 25 March 2010.
Document 74 - This document is an email from Ms Perdriau to Mr Kane, also dated 18 April 2010. Again the applicant's have been refused access to the bulk of the information contained in this email.
Consideration
It is convenient to deal with the information in dispute in accordance with the categories as mentioned in paragraph 35 above. In doing so, I have first and foremost considered the public interest considerations against disclosure as claimed by the respondent.
Public interest considerations against disclosure
Dr Taylor's report (document 44 and attachment to document 69) - it is the contention of the respondent that the information in Dr Taylor's report is privileged. In order for the information to be privileged it must fall within the terms of sections 118 and 119 of the Evidence Act 1995 (NSW), which provide as follows:
118 Legal advice
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:
(a) a confidential communication made between the client and a lawyer, or
(b) a confidential communication made between 2 or more lawyers acting for the client, or
(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person,
for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
119 Litigation
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:
(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or
(b) the contents of a confidential document (whether delivered or not) that was prepared,
for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.
The words and terms 'client', 'lawyer', 'confidential communication' and 'confidential document' are defined in section 117 of the Evidence Act. There is no dispute that the communications between Dr Taylor and the respondent were confidential and that they were made in the course of a client/lawyer relationship. The question is whether the communications were made for the dominant purpose of providing legal advice or for use in anticipated litigation. In my view, the evidence of Mr Wilson and the content of Dr Taylor's report is not sufficient to establish that at the time this communication came into existence that the respondent was anticipating litigation in regard to the matters contained in the report. Accordingly, the respondent has failed to establish that the information in Dr Taylor's report is privileged under section 119.
However, having regard to the information in the report of Dr Taylor, I am satisfied that the information falls within the terms of section 118 of the Evidence Act and is privileged. In this regard I note Dr Taylor was expressly engaged to provide legal advice on a number of matters, which he did.
In regard to the information in the body of the email Dr Taylor sent to the General Manager, on 23 February 2009, I am also satisfied that this information is legal advice and privileged under section 118 of the Evidence Act.
Accordingly, I find that the information in Dr Taylor's report which is legal advice falls within subsection 14(1) of the GIPA Act (i.e. conclusively presumed to give rise to a public interest consideration against disclosure) and the Tribunal has no jurisdiction to review the decision of the respondent in this regard.
I am also satisfied that there has been no waiver of that privilege: see sections 121 and 122 of the Evidence Act 1995. The provision of a copy of that report to Mr Harrison, in my view, was not inconsistent 'with the maintenance of the confidentiality which the privilege is intended to protect': see Osland v Secretary of the Department of Justice [2008] HCA 37 at [45] and Mann v Carnell (1999) 201 CLR 1.
As pointed out in the written submissions of Ms Case, of the Office of the Information Commissioner, while clause 5(2) of Schedule 1 of the GIPA Act required the respondent to consider whether it would be appropriate for it to waive its privilege and disclose the information to the applicants, clause 5(3) goes on to provide that the respondent's decision not to waive privilege is not a reviewable decision.
On the basis of my findings, the respondent's decision in regard to the deleted information in document 44 and annexure A (a copy of Dr Taylor's report) in document 69 is the correct and preferred decision as the GIPA Act provides a conclusive public interest consideration against disclosure of information of this kind.
I also find that the information in document 43, 50 and 69, which, if disclosed would reveal the substance of Dr Taylor's legal advice is also privileged. I note that this information is limited in document 43 and 69.
Mr Harrison's report (document 69) and communications between Mr Harrison and the respondent (document 43, 50 and 53) -As I have indicated above, the respondent retained Mr Harrison at the request of the ICAC and pursuant sections 53 and 54 of the ICAC Act. Section 53, makes provision for the ICAC to refer a matter for investigation to another appropriate body and in doing so it can recommend what action should be taken by that body and the time within it is to be completed. The body to which a matter is referred for investigation is called the 'relevant authority' for the purpose of that Part of the ICAC Act. Subsection 53(6) of the ICAC Act provides that 'if the Commission communicates information to a person or body under this section on the understanding that the information is confidential, the person or body is subject to the secrecy provisions of section 111 in relation to the information.' There is no evidence before the Tribunal to indicate that the ICAC's communication with the respondent was made pursuant to this subsection. On the contrary, the respondent has disclosed, in part, the information contained in these communications. Accordingly, I have not considered the operation of section 111, in regard to the disputed information, any further.
Section 54 of the ICAC Act makes provision for the relevant authority to report to the ICAC following its investigation.
In light of Mr Harrison's retainer arising from sections 53 and 54 of the ICAC Act, the respondent no longer asserts that the information in his report and the communications between him and the respondent is privileged. However, the respondent does assert that the information was provided in confidence as part of an internal independent review of alleged misconduct by AB and it asserts that the public interest considerations against disclosure in item 1(d), 1(f) and 1(h) apply.
As identified above, the introductory words to clause 1 require the decision maker to enquire 'if disclosure of the information could reasonably be expected' to have the effect as prescribed in one or more of the paragraphs in this item. These introductory words have been the subject of considerable judicial consideration with respect to its use in the context of exempt documents under the repealed Freedom of Information Act 1989 (NSW) and also the Freedom of Information Act 1982 of the Commonwealth. The same meaning has been applied to this phrase as it appears in the table to section 14 of the GIPA Act. That is, the words in the phrase are to be given their ordinary meaning and ' require a judgement 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 to have the prescribed consequences: see McKinnon v Blacktown City Council [2012] NSWADT 44, at [40] - [44], Attorney-General's Department v Cockcroft (1986) 10 FCR180, at 190 and McKinnon v Secretary, Department of Treasury [2006] HCA 45, at [61].
I note the information on which Mr Harrison made his findings in his report is based entirely on information he received from the respondent, copies of which form the annexures to his report. That information, other than the information in the Memorandum of 4 March 2005 (annexure C) and the attachment to the letter of the applicants' solicitor (annexure D) is information acquired by, or provided to the respondent in its ongoing enquiries into the alleged misconduct. The cover letter to Mr Harrison's advice is marked 'In Confidence'. Annexure B, D and E are also marked 'confidential'. However, the remaining annexures have not been marked as such.
Item 1(d) public interest consideration against disclosure - For this public interest consideration against disclosure to apply to the deleted information in this document and the annexures thereto, it must be established that the information is 'confidential information' in the relevant sense. As Ms Case, of the Office of the Information Commissioner pointed out this is ultimately a question of fact.
In Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [33], the Appeal Panel considered the construction and application of item 1(d) of the table to section 14 of the GIPA Act in regard to information received in the course of the 000 service that is operated by the appellant. At [33], the Appeal Panel said that the question as to whether information is 'confidential information' is to be examined, primarily at least, by reference to the agency's evidence and the conditions under which it conducts the service (i.e. function) in which the information in issue was obtained. At [34], the Appeal Panel said that, the enquiry under this clause 'should focus on the point of receipt, and the administrative standards and community understandings which surrounded it.'
The respondent contended that receiving and dealing with allegations of misconduct by employees is one of the many functions of the respondent: see Chapter 14 of the Local Government Act 1993 which deals with 'serious corrupt conduct' and complaints and investigations in regard to the 'disclose of a pecuniary interest' by employees and councillors. The applicants have not questioned this as being a function of the respondent. In my view, it can be inferred from the provisions of that Local Government Act generally that within every local council's staff employment function there is the ability to discipline employees for alleged misconduct. Indeed it is a function of every organisation that employs people.
It is the evidence of Mr Young that information obtained in the course of a misconduct investigation (whether internal or external) is treated as confidential. He went on to say 'by maintaining confidentiality the investigation has the best chance of obtaining and securing honest and forthright information from the people concerned.' The Tribunal has long accepted that the circumstance in which information is obtained in the course of an alleged misconduct investigation is obtained in confidence.
As I have indicated, Mr Harrison's report is expressly stated to have been provided to the respondent in confidence. I also accept that the information in the annexures, other than annexure C (the Memorandum), were provided to the respondent in confidence as they came into existence in the course of the respondent's enquiries into the alleged misconduct. I am also satisfied, on the basis of the evidence of Mr Young and the circumstances in which the information in Harrison's report and the information in the annexures thereto (other than annexure C), that disclosure of this information could reasonably be expected to prejudice the supply to the respondent of confidential information that facilitates the effective exercise of the respondent's disciplinary functions for alleged misconduct.
I make a similar finding in regard to the deleted information in the correspondence between Mr Harrison and the respondent (document 43, 50 and 53).
In regard to annexure C (Memorandum of 4 March 2005), the information in this document appears to have arisen in the ordinary course of the respondent's day to day operations. It was created by an employee of the respondent and is not marked confidential, nor is there any evidence to indicate that information of this kind is regard by the respondent as confidential. Indeed it is information of a kind a person is obliged to provide. Accordingly, the respondent has failed to establish that this ground of public interest consideration against disclosure in regard to annexure C.
Item 1(f) public interest consideration against disclosure - Other than a mere assertion, the respondent has not identified how disclosure of the deleted information could reasonably be expected to prejudice the effective exercise of its functions, either specifically or more generally. The onus is on the respondent to establish this and it is not for the Tribunal to infer it from the material before it. Accordingly, I find that the respondent has not established its claim that the public interest consideration against disclosure in item 1(f) of the table to section 14 of the GIPA Act applies to the information in dispute.
Item 1(h) public interest consideration against disclosure - I make a similar finding in regard to the respondent's claim that the public interest consideration against disclosure in item 1(h) applies to the information in dispute. The evidence is that the investigation into the alleged misconduct was finalised in May 2011 and no further investigation is or has been proposed. On that basis it is difficult to see how alleged the conduct, effectiveness or integrity of the 2008 to 2010 enquiries/investigations into the alleged misconduct could reasonably be prejudiced if the deleted information were to be disclosed today. Nor has the respondent provided any evidence on this issue.
The respondent's communication with the ICAC (document 73 and 74) The email from Ms Perdriau to the ICAC is marked confidential. The email from the ICAC, to Ms Perdriau has the commonly seen notation at the end of emails stating that the information in the email 'may be of a confidential and/or private nature'. As the deleted information concerns the respondent's enquiries/investigation into the alleged misconduct and they have been marked 'confidential', for the reasons I have already given, I am satisfied that the respondent has established its claim that the public interest consideration against disclosure as set out in item 1(d) of the table to section 14 of the GIPA Act applies.
For the reasons set out above, I am not satisfied that the respondent has established its claim that the public interest consideration in items 1(f) and 1(h) of the table in section 14 of the GIPA Act apply.
The respondent's communication with another officer of the respondent (document 63 and 66) - The information in these communications are not identified as being confidential. However, in his letter, Mr Eddy expressly states that the purpose of the letter is to seek information from the officer concerning the respondent's enquiries/investigation into the alleged misconduct by AB. As I have explained, the officer subsequently provided the information requested.
As the deleted information in this exchange of correspondence came into existence in the course of and for the purpose of the respondent's enquiries/investigation into the alleged misconduct of AB I am satisfied that it is confidential information. For the reasons I have already given, I am also satisfied that the respondent has established that the public interest consideration against disclosure as set out in item 1(d) of section 14 of the GIPA Act applies to the information. However, again for the reasons set out above, I am not satisfied that the respondent has established its claim that the public interest consideration in items 1(f) and 1(h) of the table in section 14 of the GIPA Act apply.
Names It is the disclosure of the name of AB and the name of other officers who provided information for the purpose of the respondent's enquiries/investigation which the respondent contends gives rise to the item 3(a) public interest consideration against disclosure. That is, the respondent contends that the name of each of these persons is 'personal information' and a disclosure of that information could reasonably be expected to 'reveal' that person's 'personal information'.
'Personal information' is defined in clause 4 of Schedule 4 of the GIPA Act. It relevantly provides 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 data base and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can easily 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 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) that reveals nothing more than the fact that the person was engaged in the exercise of public functions,
(c) ...
With one exception, I agree with the respondent that the deleted names, in the context in which they appear, are the personal information of the persons named. The exception is the deleted names in the Memorandum of 4 March 2005, as in my view it is information falling within the exception in clause 4(3)(b) above.
Arguably, to the extent the deleted information also contains an opinion about one or more of these persons, that information is also personal information. However, as I understand the respondent's submissions, it does not rely on this as a ground of public interest consideration against disclosure. Instead it relies on the fact that the information confidential information.
As I have explained above, in order for the public interest consideration against disclosure under item 3(a) of the table to section 14 of the GIPA Act to have any application, the respondent must establish that a disclosure of the deleted names could reasonably be expected to 'reveal' those names. The word 'reveal' is defined in clause 1 of Schedule 4 of the GIPA Act to mean 'to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)'. The word 'disclose information' is also defined in clause 1 to include 'make information available and release or provide access to information.'
There is no dispute that the applicants and their solicitor know the name of AB and that he was the subject of the alleged misconduct investigation. However, there is no material before the Tribunal to indicate that the name of AB or the details of the misconduct complaint and the subsequent enquiries/investigation has already been publicly disclosed. Accordingly, I am satisfied that the respondent has established the public interest consideration against disclosure in item 3(a) applies to the name of AB and the other officers of the respondent.
Public Interest considerations in favour of disclosure
In my view the public interest considerations in favour of the disclosure of the deleted information is:
(a) the general public interest in favour of disclosure of government information,
(b) disclosure of the information could reasonably be expected to enhance government accountability in regard to dealing with allegations of misconduct,
(c) disclosure of the information could reasonably be expected to contribute to positive and informed debate on issues of public importance (i.e. alleged corrupt conduct),
(d) disclosure of the information could reasonably be expected to inform the public about the operations of the respondent in regard to its decisions in regard to Development Applications, and
(e) disclosure of the information could reasonably be expected to reveal or substantiate that an officer(s) of the respondent has engaged in misconduct, improper or unlawful conduct.
Where, on balance, does the public interest lie?
As I have indicated above, to the extent the information in Dr Taylor's report and his email of 23 February 2009 (document 44) is privileged there is a conclusive presumption that there is a public interest consideration against disclosure of this information. Hence the public interest test in section 13 does not apply, as the conclusive presumption against disclosure is an overriding public interest consideration against disclosure. The same applies to the information in Mr Harrison's report and covering letter (document 69) and his letters (document 43 and 50) the disclosure of which would reveal the legal advice given to the respondent in Dr Taylor's report and his email. Information which is a reference to the fact that Dr Taylor provided legal advice is not privileged.
In regard to the information in the Memorandum of 4 March 2005 (attachment to document 47 and annexure C to document 69), I have found that the respondent has failed to establish its claimed public interest considerations against disclosure. Accordingly, it is unnecessary for me to apply the public interest test in regard to that information as the general public interest consideration in favour of disclosure will apply.
In regard to the deletions that are the name of AB and other officers of the respondent, in my view, on balance, the public interest considerations against disclosure do not outweigh the public interest considerations in favour of disclosure. While I accept that their names are personal information and that a disclosure of their names could reasonably be expected to reveal their names, the respondent has already disclosed the context in which their names appear. Following the hearing in November 2011, the respondent consulted AB in regard to the disclosure of his name in the documents in issue. An unedited copy of that response was forwarded to the applicants' solicitor. In that response AB said he objected to the disclosure of any of the information in the documents at issue as this information was 'private and personal in nature' and provided in confidence. AB also asserted that at the time the information was provided the General Manager undertook to treat the information as confidential. However, other than the more general evidence of Mr Young, there is no evidence of such an undertaking having been specifically made to AB.
The respondent has not consulted the other officers whose names have been deleted. As I have indicated, these persons provided information about AB and his alleged misconduct.
As provided in subsection 54(5) of the GIPA Act, the views of this person is to be taken into account in determining whether there is an overriding public interest against the disclosure of the name of the person the subject of the alleged misconduct.
In my view, notwithstanding the objections of AB, the fact is that the applicants are fully aware of the name of AB and the names of the other officers. As the context in which the names appear relates to allegations of misconduct by AB in his capacity as an officer of the respondent and that the misconduct was of a nature to refer the matter to the ICAC, the public interest against disclosure does not, on balance, outweigh the public interest in favour of disclosure. I make a similar fining in regard to the names of the other officers who provided information in regard to AB's alleged misconduct.
In regard to the remaining deleted information, which is that contained in the body of document 53, 63, 66, 69 (Mr Harrison's report and annexure B, E, F and G), 73 and 74, I accept that considerable weight is to be given to the established public interest considerations against disclosure as the information is confidential and relates to the respondent's enquiries/investigation into alleged misconduct by AB in regard to decisions concerning the purchase and subsequent development approval of the applicants property. I also note that the respondent's enquiries/investigation found that there was no evidence of corrupt conduct by AB.
However, as the information concerns possible misadministration and corrupt conduct, the public interest in favour of disclosure is also strong. Disclosure of this information would inform the public about what had occurred and what the respondent had determined in regard thereto. As I have indicated, it was not the applicants who had made the allegation of misconduct, yet the evidence is that there was considerable community interest in how decisions concerning the property had been made and AB's involvement in them. At the same time, the information is of specific interest to the applicants as they had sought a similar modification to their Development Consent a relatively short period before AB approached them to purchase the property.
The question is whether, on balance, the public interest considerations against disclosure outweighs the public interest considerations in favour of disclosure of the body of the deleted information in document 53, 63, 66, 69 (Mr Harrison's report and annexure B, E, F and G), 73 and 74. In my view, subject to the form of access, the public interest considerations against disclosure do not outweigh the public interest considerations in favour of disclosure. As I have indicated, subsection 72(2) of the GIPA Act provides that, where access is to be granted to the information sought, that access is to be provided in the form requested, unless one of the exceptions in that subsection applies. In my view, paragraph 72(2)(d) applies in that 'there is an overriding public interest against disclosure of the information in the way requested by the applicants'. I make this finding on the basis of the conclusions reached by Mr Harrison in his report, the fact that the ICAC does not propose to take any further action in the matter and the fact that it does not appear that the allegations and investigation were otherwise publicly disclosed by the respondent. However, if the applicants are given access to the information in accordance with paragraph 71(1)(a) of the GIPA Act, in my view, on balance, the public interest considerations against disclosure do not outweigh the public interest considerations in favour of disclosure. As set out above, paragraph 71(1)(a) provides for access in the form of a 'reasonable opportunity to inspect a record containing the information by being able to read it.' At the same time, no conditions should be placed on the applicants' access to the information (see subsection 73(1)).
Conclusions and orders
For the reasons set out above I find that the decision of the respondent in regard to the deleted information in:
(a) the report of Dr Taylor and his email of 23 February 2009 (document 44 and annexure A in document 69),
(b) the correspondence of Mr Harrison and Mr Harrison's the disclosure of which would reveal the substance of Dr Taylor's advice (document 43, 50 and 69)
is the correct and preferred decision and should be affirmed.
For the reasons set out above, I find that the decision of the respondent in regard to the deleted information that is the name of AB and other officers of the respondent is not the correct and preferred decision and should be set aside and in substitution thereof a decision should be made to disclose that information.
For the reasons set out above, I find that the decision of the respondent in regard to the deleted information in the body of the Memorandum dated 4 March 2005 (attachment to the email that is document 47 and annexure C at document 69) is not the correct and preferred decision and should be set aside and in substitution thereof a decision should be made to disclose that information.
For the reasons set out above, subject to my findings in regard to the information that is Dr Taylor's legal advice, I find that the decision of the respondent in regard to the deleted information in the body of document 53, 63, 66, 69 (Mr Harrison's report and annexures B, E, F and G), 73 and 74 is not the correct and preferred decision and should be set aside and in substitution thereof a decision that the applicants be granted access to that information under paragraph 72(1)(a) of the GIPA Act.
Accordingly, I make the following orders:
1. The decision of the respondent in regard to the information in Dr Taylor's report and his email of 23 February 2005 (document 44 and annexure B to document 69) is affirmed.
2. The decision of the respondent in regard to the information in Mr Harrison's correspondence and his report (document 43, 50 and 69) which, if disclosed, will reveal the substance of the legal advice of Dr Taylor is affirmed.
3. The decision of the respondent in regard to the information that is the name of AB and other officers of the respondent is set aside and in substitution thereof a decision to grant the applicants access to that information.
4. The decision of the respondent in regard to the information in the body of the Memorandum dated 4 March 2005 is set aside and in substitution thereof a decision to grant the applicants access to that information.
5. Subject to the deletion of the information referred to in order 2, the decision of the respondent in regard to the remaining information in the body of document 53, 63, 66, 69 (i.e. the report and annexures B, E, F and G) is set aside and in substitution thereof a decision to grant the applicants access to this information under paragraph 72(1)(a) of the Government Information (Public Access) Act 2009.
6. Further to order 3 and 4 above, the respondent to provide the applicants with a full copy of the Memorandum of 4 March 2005 and a further copy of document 43, 44, 47, 53 and 60 with the name of AB and the other officers of the respondent disclosed.
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Decision last updated: 16 January 2013
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