Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Cincotta v Council of the City of Ryde [2021] NSWCATAD 131 Hearing dates: 12 March 2020 Date of orders: 20 May 2021 Decision date: 20 May 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: A Starke, Senior Member Decision: The decision of the respondent dated 8 October 2020 is affirmed. Catchwords: ADMINISTRATIVE LAW — Public access to government information — Request for information concerning complaints against the applicant — Third party consultation concerning other personal information — Balancing public interest considerations Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Government Information (Public Access) Act 2009 Civil and Administrative Tribunal Act 2013 (NSW) Interpretation Act 1987 (NSW) Local Government Act 1993 (NSW) Privacy and Personal Information Protection Act 1998 (NSW) Cases Cited: Attorney-General's Department v Cockcroft (1986) 10 FCR 180 Australian Vaccination Network v Dept of Finance & Services [2013] NSWADT 60 Brady v Commissioner of Police, NSW Police Force [2013] NSWADT 53 Commissioner of Police v Danis [2017] NSWCATAP 7 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 Forbidden Foods Pty Ltd v Rice Marketing Board of New South Wales [2020] NSWCATAD 18 Hurst v Wagga Wagga City Council [2011] NSWADT 307 Manly v Ministry of Premier and Cabinet (1995) 14 WAR 550 McMillan v Commissioner of Police, NSW Police Force [2013] NSWADT 53 Meacham v Commissioner of Police [2020] NSWCATAP 107 Minister for Immigration & Ethnic Affairs v Pochi (1980) 44 FLR 41 Newcastle City Council v Newcastle East Residents Action group [2018] NSWCATAP 254 NSW Police Force v Cammilleri (GD) [2012] NSWADTAP 19 Page v Commissioner of Police [2020] NSWCATAD 163 Raven v University of Sydney [2015] NSWCATAD 104 Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 Taylor v Office of Destination NSW [2018] NSWCATAD 195 Transport for NSW v Searle [2018] NSWCATAP 93 Category: Principal judgment Parties: Norman Cincotta (Applicant) Council of the City of Ryde (Respondent) Representation: Applicant (Self-represented) Respondent (Self-represented) File Number(s): 2020/00315037 REASONS FOR DECISION Introduction 1. Norman Cincotta ("the applicant") applied to the Tribunal for administrative review of a decision of the Council of the City of Ryde ("the Council" or "the respondent") on 8 October 2020. The respondent's decision was in relation to the applicant's access application under the Government Information (Public Access) Act 2009 (NSW) ("the Act" or "the GIPA Act"). Background 1. The information sought by the applicant concerned alleged complaints made against him in relation to his activities at his property at North Ryde. The complaints generally concerned feeding wild birds, keeping of animals, overgrown vegetation and litter at that address. 2. The applicant's formal access application under the Act, made on 12 August 2020, sought access to the following information: * All complaints received by the City of Ryde Council, against Normal Cincotta, by any person, persons, resident, non-resident, and the identity of the person or persons, resident or non-resident, which includes the complainant's name, address, or postal address. Any name of the complaint which may be an alias, or non-resident stating to be a resident. * Any name or identity used in any format for any complaint from the period 1 January 2020 to processing date. In particular, complaint reference numbers CRM2337876, CRM2339755, CRM2300841. Anonymous complaint made on or about 29 July 2020, or during July 2020. * I request all written complaints by letter or email, and or phone complaints lodged with City of Ryde Council against Norman Cincotta who resides [in] North Ryde. * Please allow access to all the complaints, and any such correspondence and writings, and any communications, writings, emails or by phone between the City of Ryde Officers and the complainants. * Please provide copy of photo taken by City of Ryde Council Officer, Council Position is Environmental Health Officer, name of office is Paula Lee. Paula Lee made a photo of the driveway located [in the street concerned], on the 9 January 2020. This photo was taken to show that there was not any bird droppings on that driveway located [in the street concerned]. * Please provide all the requested information up until time of processing by the City of Ryde Information Access Officer. 1. The respondent conducted an initial assessment of the access application pursuant to section 51 of the Act and decided it was a valid application. The respondent advised Mr Cincotta on 21 August 2020 that the application was a valid application and was due to be completed by 9 September 2020 but noted "this may need to be extended to allow for any consultation with other people (i.e., the authors of any of the complaints)". 2. The respondent undertook electronic searches for the requested information in its record-keeping system and customer relationship management system. The searches located 26 documents containing information that it found to be within the scope of the request. The respondent considered each of the records having regard to the public interest considerations against disclosure listed in the Table to section 14 of the Act ("the Table"). 3. The respondent then wrote to Mr Cincotta on 8 September 2020, advising that some of the information he sought access to contained the personal information of other people, specifically "the names and contact details of the authors" of complaints against him. The respondent advised Mr Cincotta that in accordance with section 54 of the Act, it was required to consult with the authors of the complaints to ascertain whether they had any objection to the disclosure of some or all of their personal information. The respondent advised Mr Cincotta that the application was extended by 10 working days to 23 September 2020 to enable contact to be made with those authors. 4. On 23 September 2020, the respondent sent an email to Mr Cincotta requesting a further two week extension of time, to 8 October 2020, to decide the access application. Mr Cincotta replied on the same day, 23 September 2020, advising that he did not agree to extend the period for "any objections from third party requests". However, Mr Cincotta subsequently confirmed the extension of time via a phone conversation on that same day with Mr Scott Perry, a Council staff member. 5. The respondent's determination of the access application on 8 October 2020 ("decision under review") was emailed to Mr Cincotta on that date. The respondent decided, pursuant to section 58(1)(a) of the Act, to provide access to 26 documents. However, some of the information was redacted as permitted under section 74 of the Act on the grounds that there was an overriding public interest against disclosure of that redacted information. Of the documents released, eight were released in full and eighteen were released in redacted form. 6. The decision under review attached a Schedule of Documents identifying 26 documents that fell within the scope of the access application. Documents numbered 2, 3, 4, 5, 6, 7, 8, and 14 in the Schedule of Documents were released in full. Documents numbered 1, 9, 10, 11, 12, 13, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25 and 26 were released in redacted form. 7. In this application, Mr Cincotta seeks access to the information that was withheld from him ("the withheld information"). Issue to be determined 1. The issue to be decided in these proceedings is whether the correct and preferable decision is that there is an overriding public interest against disclosure of the withheld information. Legislative framework for access to government information 1. The fundamental and primary applicable law is contained in the GIPA Act discussed below and relevant case law. 2. Some relevant provisions in the Privacy and Personal Information Protection Act 1998 ("PPIP Act") will also be considered since the respondent relied upon clause 3(b) of the Table (contravene an information protection principle under the PPIP Act) as a consideration against disclosure. For completeness, because the applicant challenged the status and authority of the respondent, these Reasons will also note some provisions in the Local Government Act 1993 (NSW) ("LG Act") concerning the legal status of the Council and the governance arrangements for staff who are authorised to make decisions including under the GIPA Act. Tribunal's jurisdiction 1. The Council's decision under review is a reviewable decision in accordance with section 80 of the Act. 2. The Tribunal's jurisdiction to review the Council's decision is governed by section 100 of the Act, section 9 of the Administrative Decisions Review Act 1997 (NSW) ("ADR Act") and section 30 of the Civil & Administrative Tribunal Act 2013 (NSW) ("the CAT Act"). 3. Under section 63 of the ADR Act, the Tribunal is to make the correct and preferable decision having regard to the material before it and any applicable written or unwritten law. The Tribunal re-makes the decision, as if it were the administrator: Commissioner of Police v Danis [2017] NSWCATAP 7 at [31]. It is well established that, in considering an application for review, the Tribunal is not constrained to have regard only to the material that was before the respondent but may have regard to any relevant material before the Tribunal at the time of its review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. In this regard, in undertaking its administrative review, the Tribunal has before it the submissions and evidence from both parties as well as confidential material provided only to the Tribunal Member. Object of the GIPA Act 1. Sections 3(1)(b) and 3(1)(c) of the GIPA Act state that the object of the legislation is to open government information to the public by: "(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." Definitions of "agency" and "government information" 1. Section 4 defines "agency" to include "(e) a local authority". The Council is therefore an agency to which the legislation applies. The term "government information" is defined to mean "information contained in a record held by an agency". Presumption in favour of disclosure of government information 1. The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: section 5 of the Act. Legally enforceable right to information unless there is an overriding public interest against disclosure 1. Under section 9 of the Act, a person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information. Public interest considerations in favour of disclosure 1. Section 12(1) of the Act provides that there is a general public interest in favour of the disclosure of government information. The Act does not limit the range of public interest considerations in favour of disclosure and section 12(2) sets out examples of those public interest considerations in favour of disclosure. Public interest considerations against disclosure 1. Section 14(1) of the Act provides that there is a conclusive presumption of an overriding public interest against disclosure of any of the government information described in Schedule 1 of the Act. 2. In the present case, none of the considerations against disclosure specified in Schedule 1 are relevant. However, in the absence of Schedule 1 having any application, the Tribunal's task is to consider and weigh: 1. the public interest considerations in favour of disclosure (as noted above, these are unlimited and include the general public interest in favour of disclosure in section 12(1) of the Act), against: 2. the public interest considerations against disclosure (these are limited to those in the Table to section 14 of the Act). 1. Relevantly, for the purpose of this review, the Tribunal notes that the respondent relied upon the following public interest considerations against disclosure as listed in the Table at 2(a), 3(a), 3(b), 3(e) and 3(f) which are set out below: "2. Law enforcement and security 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) reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant, … 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) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002, (c) … (d) … (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, (g) …" 1. With respect to Clause 2(a) in the Table, there are two limbs to consider if disclosure of the information could reasonably be expected to: 1. reveal or tend to reveal the identity of an informant ("the first limb"); or 2. prejudice the future supply of information from an informant (whether in a particular case or generally) ("the second limb"). Balancing the competing public interests - Public interest test must be satisfied if there is an overriding public interest against disclosure 1. There can only be an overriding public interest against disclosure of government information for the purposes of the Act when the public interest test in section 13 is satisfied as set out below: "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." 1. How to apply the public interest test under section 13 of the Act was confirmed in Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 ("Flack") at [19]: "Accordingly, in all cases other than those falling under the terms of Sch 1, the public interest test under the GIPA Act involves the following: (a) identifying the public interest in favour of disclosure; (b) identifying the public interest against disclosure; and (c) determine where the balance lies." 1. Further guidance on weighing public interest considerations for and against disclosure was provided in Hurst v Wagga Wagga City Council [2011] NSWADT 307 ("Hurst") at [94]: "Ultimately, the balancing of these competing interests is a question fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation." Principles that apply to determining an overriding public interest against disclosure 1. Under section 15 of the Act, 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." Taking the personal factors of the application into account 1. In deciding an application where it is necessary to balance public interest considerations, an agency and the Tribunal is entitled under section 55 of the Act to take into account the personal factors of the application which are set out below: "(1) the applicant's identity and relationship with any other person; (2) the applicant's motives for making the access application; and (3) any other factors particular to the applicant." 1. These personal factors can be taken into account as factors in favour of disclosure: section 55(2). 2. The personal factors can also be taken into account as factors against disclosure if (and only to the extent that) they are relevant to the Council's and the Tribunal'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 of the Table. In the present case, the Council relied upon clauses 2(a), 3(a), 3(b), 3(e) and 3(f) in the Table. Accordingly, the personal factors of the application may be taken into account as factors against disclosure if they are relevant to consideration of those clauses in the Table that were relied upon by the respondent. 3. The balancing exercise (weighing the public interest considerations for and against disclosure and taking into account the personal factors of the application) requires the Tribunal to make a broad value judgment. However, as noted in Page v Commissioner of Police [2020] NSWCATAD 163 ("Page") at [51]: "that judgment is to be made, not in a vacuum, but instead in a context which has regard to the objects of the legislation, the general presumption in favour of disclosure of government information, and the principles set out in s 15 of the GIPA Act: Transport for NSW v Searle [2018] NSWCATAP 93 at [104]." The meaning of "reveal" 1. The term "reveal" is defined in schedule 4, clause 1 (Definitions) of the Act to mean "disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)." The meaning of "could reasonably be expected to" in the Table 1. Each of the public interest considerations (in the present case those set out in clauses 2(a), 3(a), 3(b), 3(e) and 3(f) in the Table) contains the introductory words "could reasonably be expected to have one or more of the following effects…". The Page case referred to the principles to be applied when considering whether disclosure of information "could reasonably be expected" to have a particular effect, drawing from the Tribunal Appeal Panel's decision in Transport for NSW v Searle [2018] NSWCATAP 93 ("Searle") at [68]: "(1) The appellant bore the onus of establishing the existence of one or more of the relevant public interest considerations against disclosure in cl 1 of the Table in s 14 of the GIPA Act: see s 105. [Note: In the present case, the respondent bears this onus]. (2) The words "could reasonably be expected" are to be given their ordinary meaning. They require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that disclosure would have the relevant effect: Attorney-General's Department v Cockcroft (1986) 10 FCR 180 at 190.5; Raven v University of Sydney [2015] NSWCATAD 104 at 48. (3) In order to discharge the onus, the appellant needed to show more than a mere possibility, risk or chance of prejudice. It must be based on real and substantial grounds: Australian Vaccination Network v Dept of Finance & Services [2013] NSWADT 60 at [22]. (4) It will not be sufficient for the decision-maker to proffer the view. It must be supported in some way: Manly v Ministry of Premier and Cabinet (1995) 14 WAR 550 at 573G; Raven at [53]." Meaning of "prejudice" and how to determine whether the disclosure of information could reasonably be expected to prejudice the future supply of information from an informant 1. The Page case also relied on the decision in Hurst at [60] as affirmed in Searle at [68] to understand the meaning of "prejudice" and how to determine whether the disclosure of information could reasonably be expected to prejudice the future supply of information from an informant: "(5) "Prejudice" is to be given its ordinary meaning, that is, to cause detriment or disadvantage, or to impede or derogate from: Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60]. (6) The question as to prejudice to future supply was not to be determined by reference to the particulars of the instant situation. It was not necessary to show that it could reasonably be expected to occur on every occasion. It was to be determined at a broader operational level. Hence, the fact that in the instant situation the specific individual(s) supplying the information was unlikely to be inhibited even if there was disclosure was not determinative against the agency: NSW Police Force v Cammilleri (GD) [2012] NSWADTAP 19 at [21], [22] and [26]." Meaning of "informant" 1. In written submissions and during the hearing, the applicant argued the meaning of the word "informant" within a criminal code or law enforcement context. He did so by reference to his contention that the Council has no jurisdiction to receive or hear complaints or keep records about bird droppings on a complainant's driveway. On that particular point, the respondent argued that the question as to whether the Council has jurisdiction over matters relating to complaints about birds or bird droppings has no bearing on the issue between the parties that is now before this Tribunal. 2. Under the GIPA Act, the word "informant" is not defined. Legislatively, the word "informant" appears to be used contextually (refer to section 6 of the Interpretation Act 1987 (NSW)). For example, section 4 of the Public Interest Disclosure Act 2018 (SA) defines "informant" to mean a person who makes an appropriate disclosure of public interest information. 3. The respondent relied upon the Cambridge English dictionary meaning of "informant" as someone who gives information to another person or organisation. 4. The Australian Pocket Oxford Dictionary, Fourth Edition, at page 560, defines "informant" as a "giver of information". The Collins online dictionary defines "informant" to be "someone who gives another person a piece of information." 5. Noting that the object of the GIPA Act is to open government information to the public and since the word "informant" is not defined in the GIPA Act, it should be given its ordinary meaning absent any criminal context. Standard of proof (balance of probabilities) and evidentiary requirements 1. The question whether disclosure of information "could reasonably be expected" to have the effect of prejudicing the future supply of information from an informant is to be proved on the balance of probabilities: Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42]; Brady v Commissioner of Police, NSW Police Force [2013] NSWADT 53 at [66]; and affirmed in Page. 2. The evidence required to establish that disclosure of the information "could reasonably be expected to" have a particular effect was considered in Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 ("Newcastle") at [59] (after referring to Searle and the authorities discussed in that decision): "Based on these authorities when considering the evidence on which it is asserted that disclosure "could reasonably be expected" to have a particular effect, the following principles should be kept in mind: (1) a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient; (2) there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect; (3) prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses." 1. The Appeal Panel in Meacham v Commissioner of Police [2020] NSWCATAP 107 ("Meacham") at [54] and [83] summarised the requirements for proof of questions of fact in administrative review proceedings generally: "[54] Despite not being bound by the rules of evidence, the Tribunal is required to base its findings of fact on "logically probative material", and not on "mere suspicion or speculation", as a corollary of its obligation to act reasonably: Minister for Immigration & Ethnic Affairs v Pochi (1980) 44 FLR 41 (Pochi) at 62, 68 (Deane J); [1980] FCA 85 ; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 (Sullivan) at [5]–[8], [15]–[17] (Logan J). It is an error of law for the Tribunal to make a finding of fact with no evidence, or no probative evidence, to support it. … [83] Proof of matters which are asserted is required in a practical sense, and a party asserting a fact is generally required to provide evidence to substantiate it. As noted above, the Tribunal is required to base its findings of fact on "logically probative material": Pochi at 62, 68; Sullivan at [5]–[8], [15]–[17]." Consultation on public interest considerations 1. Clause 54 of the Act requires an agency to take such steps as are reasonably practicable to consult with a person before providing access to information relating to the person in response to an access application if it appears that the information is of a kind that requires consultation. 2. Section 54(2)(a) of the Act then sets out what information is of a kind that requires consultation, and includes personal information, as set out below: "54 Consultation on public interest considerations (1) An agency must take such steps (if any) as are reasonably practicable to consult with a person before providing access to information relating to the person in response to an access application if it appears that— (a) the information is of a kind that requires consultation under this section, and (b) the person may reasonably be expected to have concerns about the disclosure of the information, and (c) 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. (2) Information relating to a person is of a kind that requires consultation under this section if the information— (a) includes personal information about the person" The respondent has the burden of establishing that its decision is justified 1. Under section 105(1) of the GIPA Act, in an administrative review of a decision made by an agency, the burden of establishing that its decision is justified lies on the agency, in this case, the Council. This requires the Council to identify the information contained in each document which it contends should be withheld from the applicant because the public interest considerations against disclosure of the information contained in the document outweigh those in favour. The Council is then obliged to justify its decision through submissions and evidence, sufficient to satisfy the Tribunal: Taylor v Office of Destination NSW [2018] NSWCATAD 195 ("Taylor") at [20]; Forbidden Foods Pty Ltd v Rice Marketing Board of New South Wales [2020] NSWCATAD 18 ("Forbidden Foods") at [52]. Powers of the Tribunal in determining an application for administrative review 1. Under section 63 of the ADR Act, the Tribunal may decide: 1. to affirm the administratively reviewable decision, or 2. to vary the administratively reviewable decision, or 3. to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or 4. 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. Other relevant legislation Application of the Privacy and Personal Information Protection Act 1998 1. The respondent relied upon clause 3(b) of the Table as a consideration against disclosure. In relying on clause 3(b), the Council must demonstrate a reasonable expectation that an information privacy principle under the PPIP Act would be contravened by disclosure of the information. 2. The PPIP Act is described as an Act to provide for the protection of personal information and for the protection of the privacy of individuals generally. [Note: In this case, it is not necessary to consider the Health Records and Information Privacy Act 2002.] 3. "Personal information" is defined in s 4(1) of the PPIP Act to mean: "information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion." Information Protection Principles (IPPs) 1. Part 2, Division 1 of the PIPP Act identifies 12 information protection principles ("IPPs") that apply to the conduct of public sector agencies when handling an individual's personal information. Section 21, Division 2 of the PPIP Act states that: "(1) A public sector agency must not do any thing, or engage in any practice, that contravenes an information protection principle applying to the agency. (2) The contravention by a public sector agency of an information protection principle that applies to the agency is conduct to which Part 5 applies." 1. In this case, the respondent considered and relied upon IPP 10 and IPP 11, since they concern limits on the use and disclosure of personal information. IPP 10 – Section 17 of the PPIP Act – Limits on use of personal information 1. In essence, IPP 10 provides that personal information can only be used with a person's consent or if the purpose for which it is used is directly related to the purpose for which it was collected. Section 17 of the PPIP Act (IPP 10) provides: "17 Limits on use of personal information A public sector agency that holds personal information must not use the information for a purpose other than that for which it was collected unless— (a) the individual to whom the information relates has consented to the use of the information for that other purpose, or (b) the other purpose for which the information is used is directly related to the purpose for which the information was collected, or (c) the use of the information for that other purpose is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual to whom the information relates or of another person." IPP 11 – Section 18 – Limits on use of personal information 1. IPP 11 provides that personal information can only be disclosed if it is directly related to the purpose for which the information was collected and there is no reason to believe the person would object. Section 18 of the PPIP Act (IPP 11) is set out below: "18 Limits on disclosure of personal information (1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless— (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person." Council's status and authority under the Local Government Act 1993 (NSW) to deal with and decide access applications under the GIPA Act 1. Since the applicant made a number of submissions challenging the authority of the Council and its staff to make decisions under the GIPA Act, it is appropriate to note the relevant provisions in the Local Government Act 1993 (NSW) (LG Act) which determine the governance arrangements within the respondent. These matters are pertinent, to understand the legal status of the respondent and its decision-making authority exercised through relevant Council staff appointed to make decisions on access applications under the GIPA Act. 2. A Council is constituted by and under the LG Act for its particular geographic area (section 219 of the Act). Its legal status is that of a body politic of the State with perpetual succession and the legal capacity and powers of an individual, both in and outside the State (section 220 of the Act). 3. The governing body of a council, comprised of elected representatives (Councillors) including the Mayor, sets the Council's strategic direction: section 222 and section 223(1) of the LG Act. 4. One of the roles of the governing body is to direct and control the affairs of the Council: section 223(1)(a) of the LG Act. Additionally, section 223(2) of the LG Act expressly requires a council's governing body to consult with its general manager in directing and controlling the affairs of the council. 5. It is the general manager's responsibility to conduct the day-to-day management of the council in accordance with the strategic direction and plans of the council's governing body: section 335 of the LG Act. The governing body determines the council's organisational structure, senior staff positions, roles and reporting lines and the resources to be allocated towards the employment of staff: section 332(1). The general manager then determines the positions (other than senior staff positions) within the council structure: section 332(1A). The governing body and the general manager consult with each other in relation to these responsibilities. The General Manager delegates responsibilities under the GIPA Act to staff employed in relevant positions. 6. In the present case, the following Council staff are authorised under delegation approved by the Council's General Manager to undertake responsibilities with respect to access applications under the GIPA Act: 1. Toni Anderson, Council's Information and Records Manager, authorised to lead the Information and Records Management ("IRM") team at the Council, including providing access to information services under the GIPA Act (paragraphs 1 to 4 of R3); 2. Tim Herridge, Council's Senior Information Access Officer and a member of the Council's IRM team, authorised to exercise any function under the GIPA Act including deciding access applications (paragraphs 1 to 3 of R2); 3. Scott Perry, a member of Council's IRM team (paragraph 8 of R3). Confidential material 1. The Council provided to the Tribunal on a confidential basis a copy of the documents numbered 1, 9, 10, 11, 12, 13, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25 and 26 in the Schedule of Documents in unredacted form. 2. Section 64(1)(d) of the CAT Act applies to that material as set out below: "64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders— … (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings." 1. Further, section 107(1) of the GIPA Act sets out a procedure for dealing with public interest considerations. The procedure requires the Tribunal 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, as set out below: "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." 1. No evidence was taken, and no submissions were made, in relation to the confidential material during the hearing. It was read by the Tribunal Member and was not provided to the applicant or the public. There was, accordingly, no necessity to consider any issues by way of confidential session. 2. The Council also provided to the Tribunal a Third Party Consultation Table in unredacted form as an attachment to its Submissions and Statement in Reply (noted below). The Third Party Consultation Table in unredacted form was not provided to the applicant or the public. The Council provided a redacted copy of the Third Party Consultation Table to the applicant. The hearing and other material before the Tribunal 1. In addition to the confidential material noted above, in determining this matter, I have taken into account the following material: Written material filed on behalf of the applicant 1. Application for administrative review filed on 4 November 2020 (marked "Exhibit A1"); 2. Statement and submissions of Mr Cincotta dated 11 February 2021 (marked "Exhibit A2"). Written material filed on behalf of the respondent 1. the respondent's letter dated 23 November 2020 attaching its decision of 8 October 2020 (marked "Exhibit R1"); 2. Statement dated 15 January 2021 of Tim Herridge, Senior Information Access Officer with the Council (marked "Exhibit R2"); 3. Statement dated 15 January 2021 of Toni Anderson, Information and Records Manager with the Council (marked "Exhibit R3"); 4. Submission of the respondent dated 15 January 2021 attaching Annexures A (chronology and referenced documents), B (covering letter, Notice of Decision and Schedule of documents), and C (copies of documents as released to the applicant) (marked "Exhibit R4") together with Annexure D being the confidential material referred to above; 5. Submission and Statement in Reply of the respondent dated 25 February 2021 comprising a further Statement of Tim Herridge dated 11 February 2021 (marked "Exhibit R5") to which is attached an unredacted copy of the Third Party Consultation Table (provided only to the Tribunal Member), with a redacted copy provided to Mr Cincotta. Oral evidence 1. Oral evidence was given by Mr Cincotta, Ms Anderson and Mr Herridge during the hearing on 12 March, 2021. Oral submissions 1. Closing oral submissions were made by both parties during the hearing. Contention over third party consultation 1. The decision under review confirmed that the Council consulted with the authors of complaints where their personal information was included in the information sought by the applicant. The Council considered that some of the authors of the records would have concerns about the disclosure of their personal information. Additionally, the Council was of the view that relevant public interest considerations against disclosure under clauses 2(a), 3(a), 3(b), 3(e) and 3(f) in the Table applied, requiring consultation to be undertaken. 2. The purpose of the consultation was to establish whether the authors of the information found had any objection to, or supported, disclosure of their personal information. Responses from authors could be taken into account when conducting the public interest test by adding weight to the decision for or against disclosure of the information. 3. The applicant contended in his written and oral submissions that the Council had falsified complaints, and he believed there was only one complainant. Mr Cincotta had been led to believe, after discussing the matter with Mr Perry on 23 September 2020, that consultation letters were sent to seven complainants. Mr Cincotta's personal opinion was that these seven people did not exist. Mr Cincotta also referred to the case conference between the parties on 1 December 2020 during which the respondent advised that there were in fact five third party consultations. 4. When taking the Tribunal through the Council's process for considering and deciding the applicant's access application, Ms Anderson's oral evidence was that Mr Perry had looked at the records of third party consultations and had made an error when speaking with Mr Cincotta about the number of complainants. Ms Anderson explained that the Council maintained two systems, a Customer Relationship Management (CRM) system used to record contacts with people (in the community) and a record-keeping system, and said that there was some content duplication between the two systems. 5. Having regard to Mr Cincotta's submissions that, in his view, there was only one complainant, and in light of Ms Anderson's evidence about the potential for duplication between the CRM and record-keeping systems, the Tribunal probed the respondent further on the number of complaints it had received. 6. Mr Herridge's evidence was that the advice provided to Mr Cincotta by Mr Perry by telephone and email on 23 September 2020 that seven people had been consulted, was an inadvertent misinterpretation of the information in Council's record-keeping system where records were held in two different formats. He explained that errors in the Council's recordkeeping system resulted from consultation records being held in different formats (such as Word documents or emails or pdf documents) and that the number of people actually consulted was five and not seven. 7. Further, Mr Herridge explained the Council's electronic CRM, record-keeping and email systems: 1. The CRM system is used primarily to record telephone calls to customer service officers who enter information relating to those calls into that system. The system can be used to initiate a request for a matter to be 'actioned' by a Council staff member and to monitor workflow. The CRM and record-keeping systems are not automatically integrated but I understand that CRM entries may include a reference to a number allocated to a matter in the record-keeping system. 2. Any letter received in hard copy is digitised and stored, along with email correspondence, in the record-keeping system. If a member of the public makes a request by email or hard copy correspondence, that correspondence goes to the records department where it is digitised and stored, and then 'actioned' to an officer to deal with the correspondence. If correspondence is a request under the GIPA Act, it is actioned electronically to Mr Herridge's team where it is triaged and allocated. 3. Email correspondence is also stored in the record-keeping system and, as required, emails are entered into the CRM to initiate actions and workflow functionality. Typically, a Council officer will receive an email, with a link to the CRM to open up (or access) the requested action. 1. Mr Herridge took the Tribunal through one of the redacted documents, to demonstrate the allocation of various record numbers in the Council's electronic systems (reference pages 82 and 110 of R4). Page 82 of R4 appears as a letter of complaint received by the respondent on 9 March 2020. It is marked as being document 12 in the respondent's Schedule of Documents released to the applicant. The letter bears the reference number "D20 36442" which is the number allocated to it in the record-keeping system when the records team first entered the complaint. The details of this complaint were then recorded in the CRM system with the reference number "CRM 2331232" as follows: "BIRD FEEDING – ON A DAILY BASIS THE RESIDENT OF [address in the street concerned] IS DISTRIBUTING BUCKETS OF BREAD AND FOOD SCRAPS UPON THE COUNCIL NATURE STRIP TO FEED LOCAL WILDLIFE WHICH RESULTS IN COPIOUS AMOUNTS OF DROPPINGS OVER RESIDENTS CARDS, (sic) WASHING, HOUSING AND FACILITIES. THE FOOD SCRAP IS ALSO ATTRACTING VERMIN". 1. The document numbered 25 in the respondent's Schedule of Documents and released to the applicant (page 110 of R4) is in fact a screen print of what was stored in the CRM system, with details of the complainant redacted. Because the document was redacted before being released to the applicant, it was given a new record number "D20 162714" for the purpose of the access application. 2. Mr Herridge's written evidence (R5) is that there were five different people who made complaints, four of those were consulted by mail or email and one person who had previously been consulted by phone made it clear they wanted no further contact from the Council with respect to the subject matter of the complaints. Mr Herridge's evidence is that Council received one objection in response to the consultation and this was taken into account when balancing the public interest test. He also said that a second objection was identified after the GIPA application had been determined, but was not on file and accordingly was not considered in undertaking the public interest test. Mr Herridge's evidence was also that no responses from third parties supported the disclosure of personal information to the applicant. 3. The Third Party Consultation Table provided to the Tribunal in unredacted form identifies five complainants. It also notes that the Council received one objection by phone and two objections by mail. The applicant's arguments 1. The applicant's submissions and evidence of relevance relied upon to argue why he should be provided the withheld information are summarised as follows: 1. that the word "Council" has no meaning and there is no evidence of any proper process on how the decision under review was made; 2. that the Council is not a law enforcement agency and is therefore not entitled to assert an argument within clause 2(a) of the Table; 3. that complaints about bird droppings are not within any criminal code, and the Council has no jurisdiction to hear complaints about or keep records about birds or native animals; 4. that the complaint about bird droppings on a driveway in front of land in the street concerned is a complaint about land that is situated on Council land and, as such, cannot create a cause of complaint about Mr Cincotta; 5. that the complaint about bird droppings on the driveway in front of the land in the street concerned is false and mischievous as no bird droppings were on the driveway as evidenced by photographs taken on 9 January 2020 by the Council Officer, Paula Lee (pages 72 and 74 of R4); 6. that complaints received by the Council were written to falsely put a bad image in the mind of the person reading the material, so as to amplify the complaint and that this is false and mischievous (the Tribunal understands that this submission relates to the Council's reliance upon clauses 3(e) and 3(f) in the Table, and the applicant's stated view that the author of the material knew exactly what they were doing); 7. that complaint numbers identified as being CRM 2337876, CRM 2339755 and CRM 2300841 in the Council's documents relate to only one complainant in the street concerned and do not represent complaints from three people; 8. that in undertaking consultation with third parties the Council only received one objection to the release of their personal information to the applicant and that the there was only one reply because there was only one 'real' complaint made; 9. that he does not believe the number of complaints as asserted by Council have been made, and that Council staff have created records of complaints without the consent of complainants and created alias identities of complainants and, further, that there can be no disclosure of personal information of persons who do not exist; 10. that Council staff should verify the identity of complainants, to establish that they exist and are not using alias identities. 1. Mr Cincotta said during the hearing that he wanted access to the withheld information because of defamation, in the sense that he was concerned about his reputation. The respondent's case 1. I now turn to the submissions and evidence relied upon by the respondent to justify its decision to withhold information from the applicant because of overriding public interest considerations against disclosure. 2. The respondent argued that whether it had jurisdiction over matters relating to complaints about birds or bird droppings is not relevant to an access application under the Act. 3. Likewise, the respondent argued that whether a person can make a complaint about a part of their driveway which is situated on Council land is also not relevant to considering an access application under the Act. 4. With respect to the applicant's assertions that complaints about bird droppings on the driveway in front of land in the street concerned are false and mischievous or have been falsely lodged, the respondent argued that these matters are not required to be considered by it under the Act. 5. With respect to the applicant's assertions about the number of complainants by making reference to CRM numbers, the respondent contended that reference numbers relate to each complaint received, and is not indicative of the number of complainants (who may have made more than one complaint). Clause 2(a) in the Table 1. As to the first limb of clause 2(a) in the Table, the respondent's argument was plainly that disclosure of the names or contact details of people who made complaints in relation to the applicant's property would reveal the identity of an informant. The Council considered this ground to be a relevant and heavily weighted public interest consideration against disclosure. 2. As to the second limb, the respondent contended that it is reasonably likely that disclosure of a complainant's details could reduce the prospect of them reporting on such matters in the future. Mr Herridge submitted that the Council depends upon the community to provide information to it about such things as damaged footpaths, or unlawful development. He referred to his 10 years of experience in saying that the general public is reluctant to contact the Council and provide information about various matters of concern if there is a risk that their personal information will be disclosed. Clause 3(a) of the Table 1. The respondent relied upon clause 3(a) of the Table, arguing that because some of the records contained the names, personal contact details and information, it follows that disclosure of the records in full would result in the personal information of other people being revealed. 2. The Council regarded this as a relevant and heavily weighted public interest consideration against disclosure. Clause 3(b) of the Table 1. The Council relied upon clause 3(b) of Table as a consideration against disclosure, arguing that because some of the applied for information contained the personal information of other people, disclosure of that information would result in contraventions of IPP 10 and IPP 11 under the PPIP Act. 2. The Council argued that the personal information of other people was obtained during, and for the purpose of, record-keeping activities and to enable future correspondence between the Council and the authors on matters related to their complaints. The Council contended that the personal information was not collected for the purpose of its disclosure to other parties and that disclosure to other parties without consent would breach the IPPs. The Council further contended that the exceptions within sections 17 and 18 of the PPIP Act do not apply with respect to a formal access application under the GIPA Act. Mr Herridge submitted that the absence of a response from a third party would not, in Council's opinion, be taken to support the disclosure of their personal information to an applicant under an access application. 3. The Council regarded this as a relevant and very heavily weighted public interest consideration against disclosure. Clause 3(e) of the Table 1. The Council also relied upon clause 3(e) of the Table, asserting that some of the records that responded to the access application included comments that are unsubstantiated allegations about a reputation. 2. The Council regarded this as a relevant and very heavily weighted public interest consideration against disclosure. Clause 3(f) of the Table 1. Finally, the Council relied upon clause 3(f) of the Table, arguing that some of the content of the records that responded to the access application contained information that, if disclosed, could reasonably be expected to expose people to a risk of harm, serious harassment or intimidation. 2. The Council regarded this as a relevant and very heavily weighted public interest consideration against disclosure. Public interest considerations in favour of disclosure 1. The respondent's decision under review found the following factors in favour of disclosure: 1. release of the information would assist Mr Cincotta with understanding the background to the correspondence he has received from the Council; 2. disclosure of the withheld information would reveal the steps taken by Council in relation to the complaints; 3. disclosure of the information would reveal to the applicant that Council's actions were prompted in response to public requests from other people; 4. disclosure of the information would reveal what mechanisms are available to Council to record interactions and correspondence with the public; 5. the Council's Code of Conduct Policy records the Council's duty to be as open as possible about decisions and actions. Personal factors of the application 1. The respondent took into account the personal factors of Mr Cincotta's application as required under section 55 of the GIPA Act, namely, that the information applied for specifically related to complaints about the alleged actions of the applicant. 2. The respondent considered that Mr Cincotta did not provide any other personal reasons or motives to be taken into account when balancing the public interest test. Balancing the public interest test 1. The Council submitted that the following points were taken into account when balancing the public interest test: 1. relevant public interest considerations in favour of disclosure as noted in the decision under review; 2. identified public interest considerations against disclosure; 3. the objection to disclosure of personal information raised by the third party; 4. personal factors of the application. Consideration 1. I accept the evidence of Ms Anderson and Mr Herridge on the integrity of the Council's systems for accurately recording complaints and actioning them. Mr Herridge's explanation of the reference numbering used to record and action complaints in the Council's systems reflected his experience with the Council's systems. His oral evidence was precise and persuasive in supporting the information set out in the (unredacted) Third Party Consultation Table. 2. No objective evidence was provided to challenge the information put before me about the number of complainants concerned. It is clear from the material filed with the Tribunal on a confidential basis that some complainants contacted the Council on more than one occasion to voice their complaints. I am therefore satisfied that the unredacted Third Party Consultation Table and the Council's evidence represent an accurate record of the number of complainants consulted and the objections received. 3. I have already addressed in these Reasons the legal status and governance arrangements within the Council and I consider that this information answers the applicant's submissions about the authority of Council staff to consider and decide access applications under the GIPA Act. 4. I have already addressed in these Reasons the meaning of "informant" and consider that it is not necessary to further address the applicant's contention that the complainants are not informants. The applicant's argument about the meaning of "informant" within a criminal code or law enforcement context and the attempt to link that argument to a jurisdictional issue about the Council's authority to look into bird droppings, are not relevant to the issue before me. 5. I agree with the respondent's argument that, in any event, the issue as to whether the Council has jurisdiction over matters relating to complaints about birds or bird droppings is not relevant to the issue before me. The salient points are these: The information applied for was "government information" as defined under the GIPA Act; it was held by the Council at the time of Mr Cincotta's access application; and the Council decided to withhold certain information on the grounds set out in clauses 2(a), 3(a), 3(b), 3(e) and 3(f) of the Table. The only issue before me is whether the decision to withhold information was justified. It is not to deliberate upon the Council's jurisdiction to receive complaints about birds or bird droppings or other matters the subject of the access application. 6. For the same reasoning as set out above, it is not relevant to delineate between an owner's land and Council land in order to establish the Council's jurisdiction to receive complaints in the nature of those received in this case. 7. The question whether information held by the Council is false or mischievous is also not relevant since the information sought in the Council's records is "government information" for the purpose of the Act and can be subject to an application for access under that Act. The GIPA Act does not impose an obligation on an agency to 'look behind' or otherwise scrutinise information that responds to an access application. The Council is entitled to accept complaints on their 'face value'. 8. I am of the view that the five public interest considerations in favour of disclosure identified by the respondent are relevant and appropriate considerations in deciding this application. 9. The respondent identified and took into account as a personal factor the fact that the information applied for relates specifically to complaints about the alleged actions of the applicant. No other personal factors were identified by the respondent, however I have taken into account the applicant's statement during the hearing that he wanted access to the withheld information because of the concerns he had about defamation. This is noted below. Clause 2(a) – reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant 1. The first limb of clause 2(a) has been met since the information applied for includes the names, contact details and information from persons who have made complaints in relation to the applicant's property. It is self-evident that disclosure of the records in full would reveal an informant's identity and requires no further substantiation. 2. The second limb is more complex and the evidentiary requirements are summarised in the relevant caselaw above. In its decision under review, the Council reasoned that "it is reasonably likely that the disclosure of complainant's details could reduce the prospect of them reporting on such matters in the future." The Council added that it relies upon the support of the community to notify it about such matters as public health, maintenance issues on public land, and alleged illegal or unauthorised works. 3. Mr Herridge's submissions about his experience of the general public being reluctant to provide information to the Council if their personal information (in doing so) is at risk of being disclosed, addresses the issue at a broad operational level in keeping with the decision in Hurst. The strong objection received from one complainant and the previous notification by another complainant to Council about not being contacted about the matter does lead to an inference (in line with the decision in the Newcastle case), that the Council might not receive future notifications from the community and Council would be disadvantaged if it could no longer rely upon that type of community support. 4. In order to satisfy the second limb, it is necessary to provide proof in a practical sense, as found in the Meacham case. I am satisfied, having read the material filed with the Tribunal on a confidential basis, that the informants wanted to remain anonymous to the applicant and that they expected their personal information would not be disclosed. It can also be implied from the circumstances in which the complaints were made to the Council that the authors' personal information was provided in confidence. I am satisfied that it is reasonable (in the sense that it is not "irrational, absurd or ridiculous" as discussed in Meacham) for the Council to expect the disclosures would have the effect of prejudicing or impeding the future flow of information to it from the community. 5. Accordingly, I find that the Council has established both limbs to show that clause 2(a) is a relevant consideration against disclosure. Clause 3(a) – reveal an individual's personal information 1. As some of the records contain the names, personal contact details and opinions of other individuals, the disclosure of that information to the applicant would have the effect of revealing the personal information of those other individuals. 2. I am satisfied that it would be reasonable for those individuals who provided the information to expect that their personal information would not be revealed. Clause 3(b) – contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 1. I find that the Council has correctly assessed that IPP10 and IPP11 would be contravened if the withheld information was provided to the applicant because there is no evidence that the complainants have consented to the disclosure of their personal information. In addition, personal information can only be used for the purpose for which it was collected and can only be disclosed for a directly related purpose or if the owner has been made aware that their personal information is of a type that is normally disclosed. 2. The Council's efforts to consult with the five identified complainants demonstrate its compliance with clause 54 of the GIPA Act in recognition that personal information is information of a kind that requires consultation. Clause 3(e) – reveal false or unsubstantiated allegations about a person that are defamatory 1. I am satisfied, having read the material provided in confidence to the Tribunal, that the withheld information could reasonably be expected to reveal false or unsubstantiated allegations about a person that are defamatory. 2. The applicant's interest in receiving the withheld information because of his concern about defamation is understandable. However, the allegations are unsubstantiated and the respondent is entitled to rely upon clause 3(e) to justify its decision. I have taken the applicant's motive for making the access application into account as a factor against providing access. Clause 3(f) – expose a person to a risk of harm or of serious harassment or serious intimidation 1. I am satisfied, having read the material provided in confidence to the Tribunal and noting the circumstances in which the complaints in issue were made to the Council, that disclosure of the withheld information could reasonably be expected to expose a person to a risk of harm or of serious harassment or serious intimidation. Conclusion 1. I am satisfied that the respondent has justified its decision under review through its evidence and submissions, in line with the test in the Taylor and Forbidden Foods cases. On balance, I find the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure of the withheld information. 2. It follows that the Council's decision to refuse to provide access to the withheld information was the correct and preferable decision and therefore it should be affirmed. Orders Accordingly, I make the following order: 1. The decision of the respondent dated 8 October 2020 is affirmed. ********** 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 May 2021