Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mann v Harness Racing NSW [2021] NSWCATAD 330 Hearing dates: On the papers Date of orders: 10 November 2021 Decision date: 10 November 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: S Goodman SC, Senior Member Decision: (1) The decision of the respondent made on 23 October 2020 to provide information to the access applicant is varied as follows: (a) access to the letter dated 31 August 2020 is to be provided to the access applicant after the redaction of: (i) all text between (but not including) "31 August 2020" and the first sentence of the letter; (ii) the first two full sentences on the second page; (b) access to the email chain dated 22 May 2018 is to be provided to the access applicant after the redaction of: (1) the name, email address, position and telephone number of the applicant; (2) the subject line of the email chain (3); the name of the person mentioned in the subject line of the email chain, wherever that name appears in the email chain; and (4) the date of disqualification; (c) access is not to be provided to the minutes of the meeting of the directors of NSW Harness Racing Standardbred Re-Homing Company Limited held on 24 August 2020; (2) The decision of the respondent made on 23 October 2020 to provide information to the access applicant is otherwise affirmed; (3) Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013, the disclosure or publication of: (a) the confidential statement of the applicant dated 27 April 2021; (b) the parts of these Reasons marked "NOT FOR PUBLICATION", to any person, other than the applicant or the applicant's legal representatives is prohibited. Catchwords: ADMINISTRATIVE LAW – access to government information – access application – public interests in favour of disclosure – public interests against disclosure – whether overriding public interest against disclosure Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 (NSW) Cases Cited: Commissioner of Police v Danis [2017] NSWCATAP 7 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 Frugtniet v Administrative Decisions Tribunal (Appeal Panel) [2005] NSWCA 257 Hurst v Wagga Wagga City Council [2011] NSWADT 307 McMillan v Commissioner of Police, NSW Police Force; Brady v Commissioner of Police, NSW Police Force [2013] NSWADT 53 Meacham v Commissioner of Police [2020] NSWCATAP 107 Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 Taylor v Office of Destination NSW [2018] NSWCATAD 195 Transport for NSW v Searle [2018] NSWCATAP 93 YG v Minister for Community Services [2002] NSWCA 247 Category: Principal judgment Parties: Kingsley Wallace Mann (Applicant) Harness Racing NSW (Respondent) Also heard: Information Commissioner (see s 104(1) Government Information (Public Access) Act 2009 (NSW)) Representation: Solicitors: Hammond Nguyen Turnbull (Applicant) Cockburn & Co (Respondent) File Number(s): 2020/00362857 Publication restriction: As per Order 3 above REASONS FOR DECISION Background 1. Mr Alex Smith ("the access applicant") made an access application under the Government Information (Public Access) Act 2009 (NSW) ("GIPA Act") to the respondent, for various items of information. Some of those items related to the applicant in this proceeding ("applicant"). 2. On 21 September 2020, the respondent notified the applicant of the items in the access application which related to him and on 5 October 2020, the applicant notified the respondent of his objections to the release of particular information. 3. On 23 October 2020, the respondent notified the applicant of its decision to provide to the access applicant 10 items of information which it considered were responsive to the access application ("Decision"). 4. On 17 December 2020, the applicant applied to the Tribunal for administrative review of the Decision. 5. On 3 February 2021, the respondent provided the applicant with copies of the documents it proposed to provide to the access applicant. 6. On 9 March 2021: 1. the Tribunal directed that the respondent advise the access applicant of these proceedings and request that he advise the Tribunal by 19 March 2021 whether he wished to participate in these proceeding; and 2. the respondent indicated that it proposed to submit to any orders that the Tribunal might make. 1. On 23 March 2021, the Tribunal made further directions and in doing so noted that: 1. the parties agreed that the matter could be determined on the papers and a hearing dispensed with under s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act"); 2. the access applicant had advised the respondent that he did not wish to participate in this proceeding; and 3. the respondent did not intend to take any active role in the proceeding and would abide by the Tribunal's decision. 1. On 25 March 2021, the applicant provided to the Tribunal a list of the documents to which he objected. Those documents are: 1. a letter from Harness Racing Australia dated 31 August 2020 ("Letter"); 2. an email chain dated 22 May 2018, 4:31pm ("Email"); 3. Minutes of a Meeting of the directors of NSW Harness Racing Standardbred Re-Homing Company Limited ("Re-Homing Company") held on 22 June 2020 ("22 June 2020 Minutes") ; and 4. Minutes of a Meeting of the directors of the Re-Homing Company held on 24 August 2020 ("24 August 2020 Minutes"). Jurisdiction and the Tribunal's task Jurisdiction 1. The Decision, being a decision to provide to information to the access applicant in response to his access application, is a decision which is reviewable by the Tribunal: s 80(d) of the GIPA Act. The Tribunal's jurisdiction to conduct this review derives from s 100 of the GIPA Act, read with ss 28 and 30 of the NCAT Act and s 9 of the Administrative Decisions Review Act 1997 (NSW) ("ADR Act"). The applicant bears the burden of establishing that there is an overriding public interest against disclosure of the information: s 105(2) of the GIPA Act. The Tribunal's task 1. The Tribunal's task, briefly stated, is to decide what the correct and preferable decision is as to whether access should be provided to the access applicant to the information in question, having regard to the material before it, including relevant factual material and any applicable written or unwritten law. The Tribunal re-makes the decision, as if it were the administrator. The material before the Tribunal may include material not before the original decision-maker and the Tribunal's decision is focused on the present position, not the position at the time of the original decision: s 63 of the ADR Act; YG v Minister for Community Services [2002] NSWCA 247 at [25]; Frugtniet v Administrative Decisions Tribunal (Appeal Panel) [2005] NSWCA 257 at [45]; Commissioner of Police v Danis [2017] NSWCATAP 7 at [31]. Materials before the Tribunal 1. The material before the Tribunal on this application includes: 1. the application for review and documents attached thereto; 2. a statement of the applicant dated 27 April 2021; 3. a confidential statement of the applicant of the same date; 4. an outline of written submissions on behalf of the applicant; and 5. written submissions on behalf of the Information Commissioner. 1. The Tribunal is satisfied that it is desirable to make an order protecting the confidentiality of the applicant's confidential statement. Accordingly, parts of these Reasons are marked "[NOT FOR PUBLICATION]". 2. As noted above, the access applicant did not wish to participate in the proceedings and the respondent has filed a submitting appearance. In these circumstances, the evidence of the applicant before the Tribunal is unchallenged. That evidence is discussed below, with respect to the particular information to which that evidence relates. The applicable law 1. The applicable law includes the GIPA Act and legal principles applying to the provisions of that Act. Interpretation of the GIPA Act is governed by s 3 of that Act which provides: 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. 1. Section 9 (1) of the GIPA Act provides: 9 Access applications (1) A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information. … 1. As noted above, the applicant bears the onus of establishing that that there is an overriding public interest against disclosure of particular information: s 105(2) of the GIPA Act. That means that he must identify the information which he contends should be withheld from the access applicant because the public interest considerations against disclosure of that information outweigh those in favour of disclosure; and prove that the information should be withheld on this basis through submissions and evidence, sufficient to satisfy the Tribunal: cf Taylor v Office of Destination NSW [2018] NSWCATAD 195 at [20]; Forbidden Foods Pty Ltd v Rice Marketing Board of New South Wales [2020] NSWCATAD 18 at [52]. 2. In considering whether there is an overriding public interest against disclosure of particular information, the following sections of the GIPA Act (together with ss 3, 9 and 105) are germane: 5 Presumption in favour of disclosure of government information There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. … 12 Public interest considerations in favour of disclosure (1) There is a general public interest in favour of the disclosure of government information. (2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. 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. (3) The Information Commissioner can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies. … 13 Public interest test There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. … 14 Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 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. … Table 3 Individual rights, judicial processes and natural justice There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects— (a) reveal an individual's personal information, … (e) reveal false or unsubstantiated allegations about a person that are defamatory, (f) expose a person to a risk of harm or of serious harassment or serious intimidation … 4 Business interests of agencies and other persons 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— … (d) prejudice any person's legitimate business, commercial, professional or financial interests 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. 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. ... 1. Thus it may be seen that the GIPA Act creates a presumption in favour of disclosure of government information unless there is an overriding public interest against disclosure of that information (s 5 of the GIPA Act), and the access applicant has a legally enforceable right to the government information he seeks, subject (again) to there not being an overriding public interest against disclosure (s 9 of the GIPA Act). 2. There will be an overriding public interest against disclosure for the purposes of the GIPA Act if and only if there are public interest considerations against disclosure which outweigh the public interest considerations in favour of disclosure (s 13 GIPA Act). 3. The presence of particular considerations against disclosure, being those set out in Sch 1 of the GIPA Act, is sufficient to compel the conclusion that there is an overriding public interest against disclosure such that the information is not to be disclosed (s 14(1) of the GIPA Act). However, when as in the present case, there is no Sch 1 consideration against disclosure, the Tribunal's task is to consider and weigh in the balance: 1. the public interest considerations in favour of disclosure, which are unlimited and include: 1. the general public interest in favour of disclosure (s 12(1) of the GIPA Act); 2. the examples listed in the note to s 12(2) of the GIPA Act; and 1. the public interest considerations against disclosure, which are limited to those in the table in s 14 of the GIPA Act. 1. In undertaking this balancing task the Tribunal is entitled to take into account the "personal factors of the application" as described in s 55 of the GIPA Act. However, there is no evidence before the Tribunal of these factors. 2. The balancing exercise requires the Tribunal to make a broad value judgment. However, 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]. Considerations in favour of disclosure 1. As noted above, the public interest considerations in favour of disclosure are unlimited and include the general public interest in favour of disclosure (s 12(1) of the GIPA Act). In the present case the public interest considerations identified by the respondent in its Decision, namely: 1. the public interest in transparency in the operations of agencies; 2. the public interest in how the respondent addresses industry concerns; and 3. the strong public interest in the welfare of horses, also arise. 1. The Tribunal takes into account all of these considerations as public interest considerations in favour of disclosure. 2. The Tribunal does not accept the applicant's submission that because no person including the access applicant has provided a reason in favour of disclosure it must be assumed that there are none. The Tribunal's determination of public interest considerations is not limited to those suggested by parties to the proceeding and, in any event, the Tribunal is obliged to take into account the general public interest in favour of disclosure described in s 12(1) of the GIPA Act. Further and as noted above, it is clear that the respondent identified factors in favour of disclosure in its Decision. Consideration against disclosure 1. As noted above, the public interest considerations against disclosure are limited to those identified in the table to s 14 of the GIPA Act. 2. The public interest considerations against disclosure upon which the applicant relies are: 1. cl 3(a), which provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have the effect of revealing an individual's personal information; 2. cl 3(e), which provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have the effect of revealing false or unsubstantiated allegations about a person that are defamatory; 3. cl 3(f), which provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have the effect of exposing a person to a risk of harm or of serious harassment or serious intimidation; and 4. cl 4(d), which provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have the effect of prejudicing any person's legitimate business, commercial, professional or financial interests. 1. Each of these clauses uses the expression "could reasonably be expected to have the effect". The principles to be applied in considering whether disclosure of information "could reasonably be expected" to have a particular effect were summarised in Transport for NSW v Searle at [68] as follows: "68. There was no dispute between the parties that: … (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 The University of Sydney [2015] NSWCATAD 104 at 48. As was made clear by Hayne J in McKinnon v Secretary, Department of Treasury [2006] HCA 45 at [61] – ... when their Honours said, as they did, that the words required 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 certain consequences, they are not to be understood as having used the latter expression as a paraphrase of the former. Rather, they are to be understood, and have since been understood, as doing no more than drawing an emphatic comparison. To do more would have been, as their Honours correctly said, "to place an unwarranted gloss upon the relatively plain words of the Act." (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 Department 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]. (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: Camilleri at [21], [22] and [26]." 1. Whether disclosure of particular information "could reasonably be expected to" have a particular effect is a question of fact to be established to the relevant standard of proof, on the balance of probabilities: Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42]; McMillan v Commissioner of Police, NSW Police Force; Brady v Commissioner of Police, NSW Police Force [2013] NSWADT 53 at [66]. 2. The requirements for proof of questions of fact in administrative review proceedings generally were summarised by an Appeal Panel in Meacham v Commissioner of Police [2020] NSWCATAP 107 at [54] and [83]: "[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 and 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]." 1. In Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 an Appeal Panel considered the evidence required to establish that disclosure of the information could reasonably be expected to have a particular effect. After referring to Searle and the authorities discussed in that decision, the Appeal Panel said at [59]: "Based on these authorities when considering the evidence on which it is asserted that disclosure "could reasonably be expected" to have a particular effect, the following principles should be kept in mind: (1) a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient; (2) there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect; (3) prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses." 1. Each of the public interest considerations upon which the applicant relies and the evidence relevant to them is considered in more detail below. The Letter 1. The applicant relies upon cll 3(a) and (f) and 4(d). Clause 3(a) Evidence and submissions 1. The applicant's evidence is that the Letter contains his personal information, and he does not want it to be released because he is fearful of his safety and security if that were to happen. He submitted that there is a public interest consideration against the release of his personal information by reason of cl 3(a). Consideration 1. Clause 3(a) operates where disclosure of the information could reasonably be expected to have the effect of revealing an individual's personal information. 2. "Personal information" is defined in cl 4 of Sch 4 to the GIPA Act in the following way: 4 Personal information (1) In this Act, "personal information" means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion. (2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics. (3) Personal information does not include any of the following: (a) information about an individual who has been dead for more than 30 years, (b) information about an individual (comprising the individual's name and non-personal contact details, including the individual's position title, public functions and the agency in which the individual works) that reveals nothing more than the fact that the person was engaged in the exercise of public functions, (c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause. 1. The Letter contains personal information of the applicant. This is a powerful consideration against disclosure of that information. Clause 3(f) Evidence and submissions 1. The applicant's evidence concerning cl 3(f) is as follows. 2. [NOT FOR PUBLICATION] 3. [NOT FOR PUBLICATION] 4. The applicant submitted that there was a real risk that he would be exposed to serious harassment. Consideration 1. Clause 3(f) operates where disclosure of the information could reasonably be expected to have the effect of exposing a person to a risk of harm or of serious harassment or serious intimidation. Whilst the applicant has submitted that there is a real risk that he would be exposed to serious harassment, that submission is not supported by evidence. As noted above, the applicant bears the onus of satisfying the Tribunal that disclosure of information would have a particular effect and there must be logically probative material from which such a conclusion may be drawn. 2. The only evidence which is potentially relevant is the applicant's evidence that "…I am not comfortable with having my personal information released to the public and I am fearful that if this information is made public, my security may be compromised". This falls well short of proving a reasonable expectation of exposure to harassment. 3. [NOT FOR PUBLICATION] 4. The Tribunal is not satisfied that cl 3(f) applies. Clause 4(d) Evidence and submissions 1. The applicant's evidence is that: 1. he has been involved in the harness racing industry for over 50 years; 2. he cares deeply about the welfare of trainers, drivers, owners and horses; 3. he has owned approximately 30 standardbred horses over 40 years and has rehomed numerous horses, taking great care in finding them new homes. He has always advocated the re-homing aspect of harness racing and his views are widely known in racing circles; 4. he was the President of the New South Wales Standardbred Racing Owners Association in the mid - 1990s; 5. he became a board member of the respondent in 1999 and Chairman of the Harness Racing Industry Participant Committee; 6. he is presently the Secretary of the United Harness Racing Association ("UHRA"), a position he has held since 2017, having previously held it between 2008 and 2014; 7. the UHRA is accredited by the respondent to act on behalf of licensees in the harness racing industry, being trainers, drivers and stablehands. It represents the interests of members and raises concerns relating to harness racing rules and regulations; 8. as Secretary of the UHRA, he looks after the interests of about 300 members and represents the UHRA at meetings including meetings convened by the respondent in relation to licensee issues; 9. he represents the UHRA on: 1. the Harness Racing Industry Consultation Group; 2. the respondent's Educational and Welfare Committee, which deals with the educational and occupational health and safety of its members; 1. he is the Secretary of the National Trainers and Drivers Association; 2. he has held a trainer's licence for 20 years; 3. he has been a member of the Standardbred Performance and Pleasure Association for about 20 years; 4. in 2012, the respondent presented him with an award for services to the racing industry; 5. he considers himself to be: 1. a well-known and influential person with integrity in the racing industry upon whom numerous people rely for advice on diverse subjects, such as owning and re-homing horses, the treatment and welfare of horses, breeding horses and administrative matters; 2. a person with prominent standing in the Australian racing industry; and 3. a valued and highly respected member of the United States Trotting Association. In that regard he travels annually to the United States of America for races, sales and meeting with controlling bodies and industry groups. 1. [NOT FOR PUBLICATION] 2. [NOT FOR PUBLICATION] 3. The applicant submitted that in view of his stature, the release of this information could cause serious detriment and harm to him, including his safety, security and business. Consideration 1. Clause 4(d) requires "prejudice" to a person's legitimate business, commercial, professional or financial interests. As noted above, "prejudice" bears its ordinary meaning, that is, "to cause detriment or disadvantage" or "to impede or derogate from". 2. The evidence establishes that the applicant is a person of considerable standing in the racing industry (including re-homing). However, with one exception, the evidence falls short of establishing that disclosure of the Letter could reasonably be expected to prejudice a business, commercial, professional or financial interest of the applicant. 3. [NOT FOR PUBLICATION] Conclusion 1. Taking into account the factors in favour of disclosure set out at [23] above and the fact that the operation of cll 3(a) and 4(d), the Letter should be made available to the access applicant with the redaction of (1) all text between (but not including) "31 August 2020" and the first sentence of the letter; (2) the first two full sentences on the second page. Email 1. The applicant relies upon cll 3(a) and (f) and 4(d). Clause 3(a) Evidence and submissions 1. [NOT FOR PUBLICATION] Consideration 1. The Email contains personal information of the applicant and another person. This is a powerful consideration against disclosure of that information. Clause 3(f) Evidence and submissions 1. The applicant submitted that there was a real risk that he would be exposed to serious harassment if this information were to be disclosed. 2. The applicant also submitted that he was concerned about the detrimental effect upon the other person named in the Email and the potential risk of harm to that person if the information in the Email were to be released. Consideration 1. The evidence before the Tribunal does not support a conclusion that disclosure of the information in the Email could reasonably be expected to expose the applicant to serious harassment. 2. Similarly, the evidence before the Tribunal does not support a conclusion that disclosure of the information could reasonably be expected to expose the other person named in the Email to harm. 3. The Tribunal is not satisfied that cl 3(f) applies. Clause 4(d) 1. The applicant submitted that in view of his stature, the release of this information could cause serious detriment and harm to him, including his safety, security and business. However, the evidence falls short of establishing that the information in the Email could reasonably be expected to prejudice a person's legitimate business, commercial, professional or financial interests. The Tribunal is not satisfied that cl 4(d) applies. Conclusion 1. Taking into account the factors in favour of disclosure set out at [23] above and the fact that the Email includes the personal information of the applicant and another person, the Email should be made available to the access applicant after the redaction of: (1) the name, email address, position and telephone number of the applicant; (2) the subject line of the email chain (3); the name of the person mentioned in the subject line of the email chain, wherever that name appears in the email chain; and (4) the date of disqualification. 22 June 2020 Minutes 1. The applicant relies upon cll 3(f) and 4(d). Clause 3(f) 1. The applicant submitted that there was a real risk that he would be exposed to serious harassment. This submission is not supported by the evidence, and the Tribunal is not satisfied that cl 3(f) applies. Clause 4(d) 1. The applicant again submitted that in view of his stature, the release of this information could cause serious detriment and harm to him, including his safety, security and business. However, the evidence falls short of establishing that the information in the 22 June 2020 Minutes could reasonably be expected to prejudice his legitimate business, commercial, professional or financial interests; and the Tribunal is not satisfied that cl 4(d) applies. Conclusion 1. The applicant has not established any public interest consideration against disclosure. It follows that the 22 June 2020 Minutes should be made available to the access applicant. 24 August 2020 Minutes 1. The applicant relies upon cll 3(e) and (f) and 4(d). Clause 3(e) Evidence and submissions 1. The applicant's evidence is as follows. 2. [NOT FOR PUBLICATION] 3. The 24 August 2020 Minutes are not accurate as they do not reflect the conversations between the applicant and Mr Nugent. 4. [NOT FOR PUBLICATION] 5. [NOT FOR PUBLICATION] 6. The applicant submitted that the release of the 24 August 2020 Minutes would reveal false information that is defamatory of him. Consideration 1. Clause 3(e) operates where disclosure of the information could reasonably be expected to have the effect of revealing false or unsubstantiated allegations about a person that are defamatory. 2. The 24 August 2020 Minutes contain information that is false. 3. [NOT FOR PUBLICATION] 4. A defamatory publication is one which tends, in the minds of ordinary reasonable people, to injure a person's reputation either by disparagement; causing others to shun him or her, or subjecting him or her to hatred, ridicule or contempt: Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [83]. 5. The evidence before the Tribunal is sufficient to establish that the 24 August 2020 Minutes would tend to injure the applicant's reputation. 6. The Tribunal is satisfied that cl 3(e) applies. Clause 3(f) 1. The applicant submitted that there was a real risk that he would be exposed to serious harassment. However, that submission is not made good by the evidence and the Tribunal is not satisfied that cl 3(f) applies. Clause 4(d) 1. The applicant submitted that in view of his stature, the release of this information could cause serious detriment and harm to him, including his safety, security and business. The applicant also submitted that the defamatory nature of this information would have the effect of destroying his reputation within the racing and re-homing industry, which the applicant had built over several decades. The Tribunal is satisfied that the information in the 24 August 2020 Minutes could reasonably be expected to prejudice the applicant's legitimate business, commercial, professional or financial interests. The Tribunal is satisfied that cl 4(d) applies. Conclusion 1. Taking into account the factors in favour of disclosure set out at [23] above and the operation of cll 3(e) and 4(d), the Tribunal finds that the considerations in favour of disclosure are outweighed by those against disclosure. This is principally because providing the information could reasonably be expected to have the effect of releasing false and defamatory information concerning the applicant. 2. [NOT FOR PUBLICATION] 3. Thus, the 24 August 2020 Minutes should not be released to the access applicant. Orders 1. For the reasons set out above, the Tribunal orders: 1. The decision of the respondent made on 23 October 2020 to provide information to the access applicant is varied as follows: 1. access to the letter dated 31 August 2020 is to be provided to the access applicant after the redaction of: 1. all text between (but not including) "31 August 2020" and the first sentence of the letter; 2. the first two full sentences on the second page; 1. access to the email chain dated 22 May 2018 is to be provided to the access applicant after the redaction of: (1) the name, email address, position and telephone number of the applicant; (2) the subject line of the email chain (3); the name of the person mentioned in the subject line of the email chain, wherever that name appears in the email chain; and (4) the date of disqualification; 2. access is not to be provided to the minutes of the meeting of the directors of NSW Harness Racing Standardbred Re-Homing Company Limited held on 24 August 2020; 1. The decision of the respondent made on 23 October 2020 to provide information to the access applicant is otherwise affirmed; 2. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013, the disclosure or publication of: 1. the confidential statement of the applicant dated 27 April 2021; 2. the parts of these Reasons marked "NOT FOR PUBLICATION", to any person, other than the applicant or the applicant's legal representatives is prohibited. ********** 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: 10 November 2021