Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Stalvies v Snowy Monaro Regional Council [2021] NSWCATAP 246 Hearing dates: 28 May 2021 Date of orders: 26 August 2021 Decision date: 26 August 2021 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member M Gracie, Senior Member Decision: (1) Allow the appeal concerning the information not disclosed to the appellant in Documents 1, 2 and 5 (being the documents identified in this manner by the Tribunal). (2) Set aside Order 2 made by the Tribunal on 3 December 2020. (3) The review proceedings brought by the appellant, insofar as they concern the application for disclosure of the contents of Documents 1 and 2 and the one redacted sentence in Document 5 are remitted to a differently constituted Tribunal for redetermination according to law. (4) Otherwise, the appeal is dismissed. Catchwords: APPEALS-- error of law-inadequate reasons-taking account of irrelevant considerations-failing to take account of relevant considerations-redetermination GOVERNMENT INFORMATION- information held by local council-communications with local council and local residents -whether personal information-weighing of competing interests for and against disclosure. Legislation Cited: Civil and Administrative Rules 2014 (NSW) Civil and Administrative Tribunal Act (NSW) (2013) Government Information (Public Access) Act 2009 (NSW) Privacy and Personal Information Protection Act 1998 (NSW) Cases Cited: Cominos v Di Rico [2016] NSWCATAP 5 Donnellan v Ku-ring-gai Council [2013] NSWADT 115 DRP v Orange City Council [2020] NSWCATAD 220 Meacham v Commissioner of Police [2020] NSW CATAP 107 New South Wales Land Housing Corporation v Orr [2019] NSWCA 231 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Category: Principal judgment Parties: Janet Stalvies (Appellant) Snowy Monaro Regional Council (Respondent) Representation: Appellant (Self-Represented) Respondent (Self-Represented) File Number(s): 2021/00075480 Publication restriction: Pursuant to s 64 (1) of the Civil and Administrative Tribunal Act 2013 (NSW) order as follows: (1) no record of the hearing of the appeal conducted on 28 May 2021 in the absence of the appellant is to be released to the appellant or to the public without further order. (2) those parts of these reasons for decision that are marked "Confidential-Not for Publication" are to be kept confidential and are not to be released to the appellant or the public without further order. Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunitiy Division Citation: [2020] NSWCATAD 292 Date of Decision: 03 December 2020 Before: J Lonsdale, Senior Member File Number(s): 2020/00206722 REASONS FOR DECISION Overview 1. Ms Stalvies, the appellant, appeals from a decision of the Tribunal which, in large part, affirmed a decision of the Snowy Monaro Regional Council, the respondent, not to disclose to her various documents. She had sought disclosure under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) and when that was refused made an application for administrative review of the Council's decision under s 100 of the GIPA Act. 2. The appeal came to be concerned with 3 documents only. Two of these documents were letters concerning works undertaken on the appellant's property and certain activities by the appellant on that property. The third document was a file note prepared by an officer of the Council which included a record of communications with one of the authors of the two letters. 3. As to the two letters, the decisions of the Council and Tribunal were that none of the contents were to be disclosed to the appellant because they contained "personal information". As to the file note, the decisions were that one sentence in this document was not to be disclosed to the respondent for the same reason. 4. For the reasons set out below, we have decided that the appeal in respect of the information in issue in these three documents should be allowed and that the review proceedings in respect of this information should be remitted to a differently constituted Tribunal for redetermination. Background 1. It appeared that what was central to the appellant's pursuit of the information was a notice, dated 5 April 2017, issued by the Council to the appellant pursuant to s 121B of the Environmental Planning and Assessment Act 1979. This was a notice of intention to issue an Order 4 requiring the appellant to: 1. replace an existing corrugated iron retaining wall with a retaining wall constructed wholly within the bounds of the appellant's property; and 2. remove all fill away from the boundary with her neighbours 1. For present purposes, it is sufficient to say that the appellant was concerned to discover the background to the issue of the notice and aspects of the conduct of the Council in relation to it, including any involvement of the neighbours concerning these matters. 2. The two letters were a letter dated 29 August 2016 and a letter dated 23 February 2017. The Tribunal referred to these letters as Document 1 and Document 2, respectively. 3. From, at least, the Council's Notice of Decision dated 20 January 2020 in respect of the appellant's request for information held by the Council, as appears below, the identity of the authors of the two letters we have referred to had been revealed to the appellant. 4. This is because the Council's Notice of Decision identified these letters as being amongst "Records of ongoing matters of complaints from owners at [a specific address was given] between September 15 to April 17". 5. The file note was dated 19 December 2018. The un-redacted part of this file note recorded matters concerning several meetings and inspections undertaken of the appellant's property and conversations with the neighbours by the relevant council officer over the period 25 October 2016 to 28 February 2017. The Tribunal referred to this file note as Document 5. The redacted part of this file note concerned a telephone call to the Council from a person whose identity and address was apparent from the un-redacted part of the file note. 6. In respect of each of the two letters, the following decision was set out in the Notice of Decision: Private information of third party-Objection received. Access refused because there is an overriding public interest against disclosure. (s 58 (1) (d)). 1. In respect of the file note, the decision set out in the Notice of Decision was: General presumption in favour. Personal information of the applicant is a consideration against disclosure. A normal weighting has been applied to the general presumption in favour and a heavy weight to the request not to release the information. The document can be provided without the personal information being provided and meet the objectives of the legislation. Access to the information provided (s 58 (1) (a)) with the exception of the personal information of a third-party (S 58 (1) (d)). The Tribunal's decision 1. Before the Tribunal the Council sought to have their decision affirmed in respect of these three documents on the basis that the considerations against disclosure in cll 3 (a) and (b) of the Table in s 14 overrode the considerations in favour of disclosure. (The Tribunal identified the information in seven documents as being the information in dispute and decided that the redacted information in two of the documents was to be disclosed and that redacted information in two other documents, which it identified as Document 3 and Document 4, did not fall within the scope of the request for information, leaving the information in these three documents in issue). 2. The considerations against disclosure in cll 3 (a) and (b) are as follows: 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, ….. 1. The Tribunal noted the submissions of the parties, including the Council's submission (at [40 (3)]) that it had determined that the information in issue in the three documents we are concerned with "was personal information collected by the respondent (in the form of the views and opinions of the third parties)". 2. On the subject of "personal information" in the three documents with which we are concerned the Tribunal concluded: [46] I have reviewed Documents 1,2 and 5 and confirm that the information that has not been disclosed to the applicant is "personal information" for the purposes of the GIPA Act. 1. The Tribunal concluded that it was clear that "personal information" would be revealed for the purposes of cll 3 (a) and 3 (b) of the GIPA Act. Subsequently, the Tribunal said it was "the personal information of third parties": at [55 (1)]. 2. The Tribunal did not explain the basis for these conclusions. 3. Having referred to the balancing exercise required by s 13 of the GIPA Act, including relevant aspects of the law, the central conclusion of the Tribunal was as follows: [55] In my view and given all of the circumstances of this matter, greater weight should be given to the public interests against disclosure of the personal information on the basis that: (1) The personal information of third parties has not been revealed or disclosed. (2) Significant amounts of information identified as within the scope of the access application have been disclosed to the applicant. (3) The respondent has received objections in respect of the disclosure of the information. (4) The respondent's stated processes are to keep the information confidential and not disclose it. (5) The respondent has a regulatory function and, as is clear from the documents provided in this matter, accepts correspondence from all persons in its jurisdiction regarding local government matters and obligations not to disclose personal information obtained in this manner. 1. The matters in (4) and (5) in paragraph 55 of the reasons are not expanded upon. The Tribunal referred to the statement on the Council's website about privacy of "customers" with respect to information collected from "customers" on their visits to the website but this was not applicable to the circumstances in issue: see at [41] of the reasons. 2. On appeal, Mr Rawlings from the Council disavowed any suggestion that there were any relevant written policies or procedures of the Council or communications from the Council referable to keeping the information in issue confidential. 3. It is also notable that before the Tribunal and on appeal the Council did not seek to rely upon the considerations against disclosure in cll 1 (d), (f) or (g). Those considerations are: 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)— …… (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, …… (f) prejudice the effective exercise by an agency of the agency's functions, (g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information of information provided to an agency in confidence, The limited appeal right 1. Under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), a party may appeal as of right to the Appeal Panel in an internal appeal on any question of law: s 80 (2) (b). In respect of any other grounds, in the case of an appeal from the Administrative and Equal Opportunity Division of the Tribunal, the appellant requires leave to appeal. Extension of time for appeal 1. It appears as though the appellant requires an extension of time in which to appeal. We say this in circumstances where it is not precisely clear when her appeal was lodged. However, in her Notice of Appeal she says that she received notice of the decision on 21 January 2021. However, it was not until a letter from the Tribunal dated 19 March 2021 that the respondent was sent the Notice of Appeal and the Notice of Appeal has a date of signing by the appellant with 22 February 2021 crossed out and the new date inserted of "/3/21". 2. Under r 25 (4) (c) of the Civil and Administrative Rules 2014 (NSW) the time period to file an internal appeal in the circumstances of this matter is 28 days from the date the appellant was "notified" of the decision or given reasons for the decision (whichever is the later). 3. The respondent does not object to the grant of an extension of time. Given the lack of objection, the merits of the appeal (see further below) and the length of the extension required, which is not particularly long, we consider that the appellant should have the necessary extension of time. The Notice of Appeal 1. The appellant was self-represented. In Cominos v Di Rico [2016] NSWCATAP 5 ("Cominos") at [13], the Appeal Panel stated that it may be difficult for self-represented appellants to clearly express their grounds of appeal and that in such circumstances it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. We have approached the appeal in this manner. 2. As to the scope of the appeal, we mention two matters. First, there was no challenge by the appellant to the Tribunal's decision that the redacted information in Documents 3 and 4 fell outside the scope of the access application because it related to persons, properties and issues other than the applicant's property, the neighbouring property or any of the issues identified in the scope of the access application: at [60] of the Tribunal's reasons. 3. Secondly, as we explained to the appellant at the hearing of the appeal, her appeal was misconceived to the extent that it sought access to information in documents that had not been the subject of the review proceedings before the Tribunal. Consideration-errors of law 1. As already intimated, we consider that the Tribunal's lack of reasons for its conclusions that the relevant information was "personal information" and "personal information of third parties" means that it provided inadequate reasons for its decision. There was an absence of presentation of the reasoning process for these important conclusions and for that reason, in our opinion, the reasons did not comply with the minimum characteristics that reasons must possess: see per Bell P in New South Wales Land Housing Corporation v Orr [2019] NSWCA 231 at [71]; Meacham v Commissioner of Police [2020] NSW CATAP 107 at [31]-[35]. In our opinion, it follows from this matter alone that the decision should be set aside. 2. We expand upon these matters below. 3. "Personal information" is, relevantly, defined in cl 4 (2) of Schedule 4 of the GIPA Act as follows: 4 Personal information (1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion. (2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics. 1. Importantly, for present purposes, the information or opinion must be "about an individual". 2. Leaving aside the names of the makers of the communications which, as we already said, were revealed to the appellant, the two letters and the one redacted sentence in the file note contain a variety of material as follows: 1. Document 1 consists, largely, of expressions of concern about apparent aspects of the appellant's property and her activities on that property followed by a series of questions asked of the Council. 2. Document 2 consists, largely, of a statement as to the authors' understanding about steps that have occurred concerning features of the appellant's property accompanied by an apparent request of the Council. 3. The redacted sentence in Document 5 concerns a statement about the state of mind of one of the neighbours. 1. Apart from the redacted sentence in Document 5, none of this material appears to be about the makers of the communications. In large part, the communications are about the appellant's property and, to some extent, about the appellant. 2. We note that there have been decisions of the Tribunal in related circumstances to the present to the effect that information in communications about a person's property or an issue affecting that property is not "personal information": see Donnellan v Ku-ring-gai Council [2013] NSWADT 115; DRP v Orange City Council [2020] NSWCATAD 220. 3. In our opinion, the reasons needed to refer to these issues and explain the basis of the conclusions about them. 4. It may be that the Tribunal did not ask itself the right question as to how the information in issue could be regarded as personal information within the meaning of the GIPA Act. Either way, whether a lack of reasons or failing to ask the right question, or both, the Tribunal erred in law. 5. Furthermore, in our opinion, the Tribunal erred in law in its weighing of the competing considerations (in the manner we have referred to in paragraph 19 above) because it took into account irrelevant considerations and failed to take into account relevant considerations. These are errors of law: see Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at (5) and (6). 6. As to this: 1. The information in issue was not information that revealed anything particularly personal about the providers of the information. This feature needed to be factored into the weighing exercise. 2. The fact that, expressed generally, the appellant had received significant amounts of information under the access application was irrelevant to the question of the disclosure of the particular information the subject of this appeal. 3. As we have already identified, the Tribunal was mistaken as to the existence of any relevant "stated processes" of the Council as referred to in paragraph [55 (4)] and, apparently, in [55 (5)] of the reasons. 1. In our opinion, these errors in respect of the weighing exercise also mean that the decision should be set aside. 2. We should also mention that it seems to us that the mere fact of a third parties' objection to disclosure, without an assessment of the nature of the objection, is, at best, of marginal relevance to the weighing exercise. If necessary such an assessment could be subject of reasons for decision that are not for publication, including not for publication to the appellant. Redetermination on the merits 1. At the hearing of the appeal, we proceeded to hear from the respondent about the merits of the application in the event that we decided to dispose of the appeal by a rehearing of the merits pursuant to s 80 (3) (a) of the NCAT Act. 2. In doing so, we conducted a confidential hearing in the absence of the appellant in order to pursue an examination of the information in issue with the respondent and in light of the requirement in s107 (1) of the GIPA Act that NCAT, in determining an application for administrative review, not disclose information for which there is an overriding public interest against disclosure. We made a confidentiality order under s 64 (1) of the NCAT Act in relation to this part of the hearing. 3. In reasons that include reasons that are not for publication, including not for publication to the appellant, we now address an issue as to the right of the objectors to the release of the information to be heard pursuant to s104 of the GIPA Act. That section, relevantly, provides: 104 Right of appearance before NCAT …… (3) Any person who could be aggrieved by a decision of NCAT on a review under this Division has a right to appear and be heard in any proceedings before NCAT in relation to the review. 1. [NOT FOR PUBLICATION] 2. We note that the Tribunal referred to objections received in respect of the disclosure of the information in issue (and also to consultation by the Council with relevant third parties) without being specific about the objections. 3. [NOT FOR PUBLICATION] 4. However, that is not the end of the matter so far as the objection is concerned because of the relevance of s104 of the GIPA Act. 5. [NOT FOR PUBLICATION] . 6. We have inspected the file of the proceedings below to ascertain whether the objectors to the release of the information were given notice of the appellant's application to review the Council's decision and provided with an opportunity to be heard, with the consequence that because they did not appear they can be regarded as having chosen not to exercise their right under s 104 to appear and be heard. . As far as we have been able to ascertain, the procedural orders made during the case management by the Tribunal did not make any relevant direction with respect to this matter. 7. Accordingly, because we consider that the objectors have a right to appear and be heard concerning disclosure of the information in issue in Documents 1, 2 and 5, we have decided that the appropriate course to follow in disposing of this appeal is for the review proceedings concerning this information to be remitted to a differently constituted Tribunal for redetermination. 8. In arriving at our conclusion that the neighbours concerned have a right to appear we do not intend to convey any view about the merits of their objection to disclosure of the information in issue. Orders 1. For the above reasons we make the following orders: 1. Allow the appeal concerning the information not disclosed to the appellant in Documents 1, 2 and 5 (being the documents identified in this manner by the Tribunal). 2. Set aside Order 2 made by the Tribunal on 3 December 2020. 3. The review proceedings brought by the appellant, insofar as they concern the application for disclosure of the contents of Documents 1 and 2 and the one redacted sentence in Document 5 are remitted to a differently constituted Tribunal for redetermination according to law. 4. Otherwise, the appeal is dismissed. ********** 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: 26 August 2021