Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Moree Plains Shire Council v Howlett [2022] NSWCATAP 221 Hearing dates: 22 April 2022 Date of orders: 07 July 2022 Decision date: 07 July 2022 Jurisdiction: Appeal Panel Before: N Hennessy ADCJ, Deputy President Dr R Dubler SC, Senior Member Decision: (1) The appeal is allowed. (2) Orders 2, 3 and 4 made by the Tribunal on 25 November 2021 are set aside. (3) In substitution for those orders, the following orders are made: The decision under review is affirmed. Catchwords: APPEAL – access to government information – where agency refused to provide access to names of individuals who had written a letter complaining about a Council project – where content of letter released to applicant – whether there is an overriding public interest against disclosure of the names of the individuals who signed the letter Legislation Cited: Administrative Decision Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2014 (NSW) Government Information (Public Access) Act 2009 (NSW) Health Records and Information Privacy Act 2002 (NSW) Privacy and Personal Information Protection Act 1998 (NSW) Cases Cited: CJU v NSW Ministry of Health [2018] NSWCATAD 181 Commissioner of Police (NSW) v Barrett [2015] NSWCATAP 68 Commissioner of Police, NSW Police Force v Camilleri [2012] NSWADTAP 19 Fahey v NSW Office of Liquor, Gaming and Racing [2012] NSWADT 181 Texts Cited: None cited Category: Principal judgment Parties: Moree Plains Shire Council (Appellant) Allison Howlett (Respondent) Representation: Counsel: C Brain (Appellant) Solicitors: Webb and Boland Lawyers (Appellant) Respondent (self-represented) File Number(s): 2021/00363302 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: Howlett v Moree Plains Shire Council [2021] NSWCATAD 354 Date of Decision: 25 November 2021 Before: P French, Senior Member File Number(s): 2021/00075334 REASONS FOR DECISION 1. The issue in this appeal is whether Ms H should be given access under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) to the names of ten people who signed a document delivered to the Mayor of Moree Plains Shire Council on 10 May 2019. The Council has given Ms H access to the content of the document but not to the names of the signatories. The content of the document is as follows: "To Whom it May Concern, We the undersigned are writing to express our desires about the project scheduled for the Aboriginal section of the Moree Cemetery that is due to go ahead on Wednesday 29th May. We are the descendants and family members of these people and that is what we would like to stress throughout this letter. These are not merely graves to be utilised for projects without consultation, but are the final resting places of our family members – our loved ones. Hence, we have written this letter to express our desires and concerns because the fundamentally sensitive nature inherent to anything involving the resting places of our family has been grossly overlooked. Many of us were unaware of this project before community members brought it to our attention, which is a downright insulting. Not to mention, that we have not given our permission for any alterations to occur to the final resting places of our loved ones. Ultimately, they are buried in a council controlled cemetery and so, this reflects poorly on the council and we believe them to be responsible. The laying of tiles, or anything, on a grave without the consultation or even knowledge of family, is tantamount to desecration. We would appreciate the council's cooperation in this matter as to why projects and individuals are allowed to touch graves without the permission of families. It is extremely hurtful for families to be told of events after they have occurred, discover mistakes on plaques and to not even be consulted. The Aboriginal section, is within the Moree Cemetery and falls within the purview of the Moree Plains Shire Council so we would like to know why you are allowing groups to do as they please without consulting families whose loved ones reside there. Indeed, should this event go ahead we would see both the group and Moree Plains Shire Council as responsible for the desecration of our family's final resting places under the Summary Offences Act 1998 No.25, Section 8 Damaging or Desecrating Protected Places subsection 2 "A person must not wilfully damage or deface any protected place". 1. The Council characterised this document as a "petition" and the Tribunal adopted that terminology. The character of the content of the document is relevant to several issues in dispute on appeal. Until those issues are resolved we will refer to the content of the document as "the document". We will refer to the project discussed in the document as "the painted tile project". 2. The Tribunal decided to give Ms H access to the names of the people who had signed the document. Because the Council has appealed from that decision, the names of the signatories has not yet been given. 3. At [14] the Tribunal wrote that the document had been released "with the names of two petitioners visible but with other names remaining redacted". Both parties agree that that statement is not correct. The Council has never given Ms H access to the document with any of the names of the signatories visible. We note that Ms H contends that some of the signatories' names have become known to her in other contexts, but even if that is the case, access to that information was not given under the GIPA Act in response to her application. 4. The Council has the right to appeal on any question of law and, with the leave of the Appeal Panel, on any other grounds: Civil and Administrative Tribunal Act 2014 (NSW), s 80(2)(b). To the extent that any ground of appeal raises questions of fact, the Council has sought leave to appeal. We have decided that the Tribunal made the errors of law we identify below and that the appeal should be allowed. One option is for us to send the matter back to the Tribunal to re-decide according to law. However, the "just quick and cheap" resolution of the real issues suggests that we should reconsider the GIPA application ourselves without further evidence: NCAT Act, s 81(1)(e). We have relied on the evidence and submissions that were before the Tribunal and also on further oral submissions the parties made at the appeal hearing. After re-hearing the matter, we have decided to affirm the Council's decision. Factual background 1. The Tribunal summarised the background to this dispute at [4] to [10] of the decision. The applicant made this application in her own capacity, but it is clear from the whole history of the dispute that she was motivated to do so to by a grievance about the impact of a decision of the agency to suspend the painted tile project, the proponent of which was her aunt, Aunty Noeline Briggs-Smith OAM (with respect, Aunty Noeline). In this respect, in prosecuting this access application, the applicant has styled herself as Aunty Noeline's representative. It is not contentious that Aunty Noeline has been engaged over several decades in various initiatives to restore the segregated Aboriginal section of Moree Cemetery which had been subject to serious erosion and other neglect. This work over time has included the identification and restoration of graves and the beautification of this section of the cemetery. Aunty Noeline has received several forms of public recognition for this work. Moree Plains Shire Council is the cemetery operator of Moree Cemetery within the meaning given that term in the Cemeteries and Crematoria Act 2013 (NSW) so this work has been carried out with the approval and collaboration of that agency. It is a community led, Council approved project. On or about 10 September 2018 Aunty Noeline applied to the agency for permission to utilise some excess funds that had been received for other works up to that date to install 176 plaques which would identify those remaining unmarked graves of Aboriginal people buried in the cemetery between 1940 and 1968. It was proposed that this project would be undertaken in collaboration with four local schools whose students would participate by painting the plaques. The delegate of the agency granted permission for this project to proceed by letter to Aunty Noeline dated 27 September 2018. Project work was completed over the successive months and sometime in or about April or early May 2019 (the date not being in evidence) it was agreed that there would a public ceremony at Moree Cemetery on 29 May 2019, during Reconciliation Week, where school children involved with the plaque painting and family members of the interred deceased would be involved in laying the tiles to mark the graves. A public advertisement of this event was issued through various community networks. On 13 May 2019 Aunty Noeline was notified by a delegate of the agency by hand delivery of a letter that the Mayor of Moree Plains Shire Council had received a petition on 10 May 2019 at her place of business which objected to the tiles being laid and that as a result the project was suspended with immediate effect. I have not been able to find a copy of that letter in the documents submitted by either party, but the following excerpt appears as a quotation in the applicant's submissions: "Council wishes to advise you that the Mayor has been in receipt of a petition on Friday afternoon, from members of the Aboriginal community, who have family members buried in the Aboriginal section of the Moree Cemetery. The intent of the petition was to express bitter disappointment in not being consulted on the proposed painted tile project, which has a set day of May 29 for placement of these tiles as part of Reconciliation Week. The petition goes on to say that the signatories are holding Council to blame for this project and that family members were not, in fact consulted regarding this project. Therefore, Council is advising you that this matter must be ceased until the matter has been resolved by undertaking the following: 1. The schools must be advised that the work should cease on the tiles until further notice 2. The event must be postponed until the issue is resolved 3. This resolution must include consultation with concerned family members and community members I have made contact with representatives of the petition who have advised they are more than willing to meet with you and to this end, a meeting has been arranged for Wednesday 5th June 2019." In or about November 2020 the agency gave approval for the painted tile project to be completed and it was. However, the applicant contends that the suspension of the project and its aftermath was traumatic for Aunty Noeline. She contends that the Aboriginal burial ground project generally, and the painted tile project specifically, were undertaken in a context of extensive consultation and collaboration with the local Aboriginal community, were well known, and enjoyed significant community support. She seeks to understand why the suspension occurred. After the suspension of the project on 13 May 2019 the applicant made various informal attempts to obtain a copy of the petition from the agency, each of which were refused. Those refusals led to the access application that ultimately brings the agency's access determination before the Tribunal for administrative review. 1. In summary, the chronology is as follows: 10 May 2020: Signatories write letter "to whom it may concern" and deliver it by hand to the Mayor of the Council. 13 May 2020: Council writes to Aunty Noeline advising that the painted tile project due to be implemented on 29 May 2020, has been suspended pending further consultation. 5 June 2020: Meeting scheduled to take place with Council representatives, the signatories to the letter and Aunty Noeline. Legal principles 1. No grounds of appeal relate to the Tribunal's statements about jurisdiction, the role of the Tribunal or the relevant legal principles in the GIPA Act. The Tribunal summarised those principles at [29]-[34] and [44]: The starting point for analysis of the legislative scheme to be applied in this administrative review is found in the object of the GIPA Act in section 3 which states: 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 an encouraging the proactive release of government information by agencies, and (b) by 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. This object is amplified with a statutory command, contained in section 3(2) which provides: 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 possible cost, access to government information The object of the GIPA Act is operationalized by various 'machinery' provisions of that Act. Section 5 establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. Section 9 provides that applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure. Section 11 provides that the GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the "overriding secrecy laws" set out in Schedule 1, in relation to which it is conclusively presumed that there is an overriding public interest against disclosure of the information. Section 12 of the Act provides that there is a general public interest in favour of the disclosure of government information that is not covered by overriding secrecy laws. Section 12(2) provides that the categories of public interest considerations in favour of disclosure are not limited, but include, relevantly: (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; (d) the information is personal information of the person to whom it is to be disclosed; and (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. Section 13 provides that there is an "overriding public interest against disclosure" of government information for the purposes of the GIPA Act "if (and only if)" there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. Section 14(1) of the Act provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of any government information described in Schedule 1. Section 14(2) provides that the public interest considerations set out in the Table to section 14 are the only other public interest considerations against disclosure that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. The Table sets out 7 categories of public interest considerations against disclosure and 35 sub-categories. . . . The application of the public interest test contained in section 13 the GIPA Act requires a staged approach to determine if there is an overriding public interest against the disclosure of government information. It involves identifying the public interest considerations in favour of disclosure; identifying the public interest considerations against disclosure, attributing weight to each consideration for and against disclosure and then determining where the balance lies between these competing public interests: Fack v Commissioner of Police, NSW Police Force [2011] NSWADT 286; Cer of Police, NSW Police v Camilleri [2012] NSWADTAP 19 at [23] (Camilleri). Balancing the competing public interest considerations is "a question of fact and degree, requiring the weighing of competing matters, and a task that is not amenable to mathematical calculation": Hurst v Wagga City Council [2011] NSWADT 307 at [70]. 1. There is no dispute that the document, including the names of the signatories, is "government information". It is information contained in a record held by an agency: GIPA Act, s 4. 2. We should also refer expressly to s 54 and s 55 of the GIPA Act. Section 54(5) provides that the agency (and, in turn, the Tribunal on review) must take any objection to disclosure of information that the agency receives in the course of consultation into account in the course of determining whether there is an overriding public interest against disclosure of government information. 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, or (b) concerns the person's business, commercial, professional or financial interests, or (c) concerns research that has been, is being, or is intended to be, carried out by or on behalf of the person, or (d) concerns the affairs of a government of the Commonwealth or another State (and the person is that government). Note— The requirement to consult extends to consultation with other agencies and other governments. See the definition of person in Schedule 4. (2A) If the agency considers that information about a person consulted under this section is likely to be included in the agency's disclosure log in relation to the access application, the agency must give a written notice to the person containing the following statements— (a) that information concerning the application is likely to be included in the agency's disclosure log and that the person can object to this, (b) that there is a right of review under Part 5 of a decision by the agency to include information in its disclosure log despite the person's objection. (3) If consultation is required concerning the release of personal information about a deceased person, that consultation is to be done by consultation with a close relative of the deceased. (4) The purpose of consultation under this section is to ascertain whether the person has an objection to disclosure of some or all of the information and the reasons for any such objection. (5) The agency must take any objection to disclosure of information that the agency receives in the course of consultation into account in the course of determining whether there is an overriding public interest against disclosure of government information. (6) If consultation establishes that a person objects to the disclosure of information but the agency decides to provide access to the information in response to the application, access is not to be provided until the agency has first given the objector notice of the agency's decision to provide access to the information and notice of the objector's right to have that decision reviewed, and is not to be provided while review rights on the decision are pending. 1. Section 55 allows an agency (and, in turn, the Tribunal on review) to take into account "the personal factors of the application" as factors for or against disclosure: 55 Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section— (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2–5 (but not clause 1, 6 or 7) of the Table to section 14. (4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for. (5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to take reasonable steps to provide proof of his or her identity. (6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person. Tribunal's decision 1. The Tribunal identified the following public interest considerations in favour of disclosing the names of the ten signatories to the document: 1. inform the public: "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": GIPA Act, s 12(2)(b); 2. promote discussion, accountability and debate: "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": GIPA Act, s 12(2)(a); and 3. reveal improper conduct: "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": GIPA Act, s 12(2)(e). 1. The Tribunal gave each of these considerations significant weight. We will use the italicised terms as a shorthand reference to the relevant provisions of the GIPA Act. 2. The Tribunal identified the following public interest consideration against disclosure: 1. reveal an individual's personal information: "disclosure of the information could reasonably be expected to . . . reveal an individual's personal information", in this case, their identity: GIPA Act, cl 3(a) to the Table to s 14 1. For the following reason provided at [73], the Tribunal gave this consideration little weight: However, I am not satisfied in this context that this consideration deserves other than little weight. From an objective point of view those persons who signed the petition must reasonably have known, or ought to have known, that their identity could or would be public, or at least not confidential, information. That is usually why people sign petitions: to publicly declare support for a particular cause. In any event a person's name and signature is not sensitive personal information. 1. The Tribunal did not accept the Council's submission that full disclosure of the document could reasonably be expected to prejudice the supply of confidential information: GIPA Act, cl 1(d) to the Table to s 14. The Tribunal's reason for rejecting that consideration was that the document had not been obtained in confidence. Clause 1(d) to the Table to s 14 provides that: ". . .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": GIPA Act 1. The Tribunal did not consider that cl 3(b) of the Table to s 14 should be taken into account. There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (NSW) or a Health Privacy Principle under the Health Records and Information Privacy Act 2002 (NSW). We will refer to this consideration as "contravene an information protection principle". The reason the Tribunal gave for not taking that consideration into account was that Council did not "collect" the letter. 2. At [51], the Tribunal also took into account the following "personal factors" in accordance with s 55 of the GIPA Act: In her access determination the delegate also considered, pursuant to section 55(2) of the GIPA Act, that there were personal factors of the application that weighed in favour of the disclosure of the petition in un-redacted form. In my view she was correct in doing so for the reasons she stated. That being said, I consider the personal factors of the application were understated by the delegate. Aunty Noeline was the painted tile project proponent. Certainly, she had been "involved" in it, but, in fact, she had a (or the) leading role. The objections made in the petition therefore concerned her conduct of the project very directly and specifically. Clearly, Aunty Noeline had a strong personal interest in knowing who it was who believed that they had not been consulted or informed, and who it was who did not want a painted tile to mark their deceased family member's grave. Although Aunty Noeline was not the access applicant, the agency knew and accepted, as the delegate acknowledges, that the access application had been made in an attempt to ascertain this information for Aunty Noeline. 1. At [65], when determining whether the letter was provided to the Council in confidence, the Tribunal considered the extent to which the Council had consulted the ten signatories to the letter and their responses: In section 4.4 of her access determination the delegate records that the agency received a written and verbal objection from one signatory of the petition to "their information being made public". It is stated that the person advised the agency that they would not have "included their information on the document" had they known it would be released. No reasons are recorded for these views. It is therefore not possible to know how the person came to be of the understanding that the petition or their identity or both would be confidential. For example, it is not recorded that the petition organiser or the Mayor said so. It may thus be the case that it was the person's own mistake or misconception. In any event, as I have noted, the whole of the petition has been disclosed, only the names of the petitioners are redacted. I therefore cannot see any basis upon which the delegate ought to have given this objection significant weight. 1. At [74] and [75], the Tribunal came to the following conclusion: Where does the balance lie? There are compelling considerations in favour of disclosure of the petition and associated documents without redaction which are not displaced by the one relatively weak consideration against disclosure. The balance therefore lies with the disclosure of the petition and associated documents without redaction. Conclusion For the foregoing reasons I conclude that the correct and preferable decision in this case is that the petition and associated documents be released to the applicant in non-redacted form. The delegate's access determination is set aside. The agency must provide access the applicant with access to the non-redacted documents with 28 days of the date of these orders. Grounds of Appeal Ground 1 - No evidence to support finding that disclosure could reasonably be expected to reveal or substantiate that the agency had engaged in misconduct or negligent or improper conduct 1. This ground of appeal is that: The Tribunal erred in finding that disclosure by the appellant of the relevant document "could reasonably be expected to reveal or substantiate that the agency had engaged in misconduct or negligent or improper conduct" where there was no evidence to support that finding. 1. The Tribunal found that one public interest consideration in favour of disclosure was the consideration in s 12(1)(e) of the GIPA Act which we have referred to by the short hand term "reveal improper conduct": 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. 1. The Council submits that there was no evidence to support the Tribunal's finding that disclosure of the names of the signatories to the document could reasonably be expected to have that effect. 2. Section 12 provides that there is a general interest in favour of the disclosure of government information and then gives examples of five public interest considerations in favour of disclosure. At [48] of the decision, the Tribunal identified two examples that were not identified by the Council when making the reviewable decision. The example relevant to this ground of appeal is where 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. In these appeal proceedings, Ms H was initially represented by lawyers who made a written submission. In that submission, it was contended that the Tribunal did not specifically find that disclosure could reasonably be expected to have the effect set out in the example under Note (e) to s 12 of the GIPA Act. In our view, it is clear from [47] - [48] of the decision that the Tribunal did make such a finding: In her decision of 30 August 2021 the delegate of the agency identified one public interest consideration in favour of disclosure, which was that disclosure of the names of the signatories to the petition could reasonably be expected to inform the public about the operations of council (the section 12(2)(a) consideration). The delegate was clearly correct in identifying this public interest consideration in favour of disclosure for the reasons she stated. However, I also consider that there were additional public interest considerations in favour of disclosure that were not considered by the delegate. Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance government accountability and contribute to positive and informed debate on issues of public importance (the section 12(2)(a) consideration) and disclosure could reasonably be expected to reveal or substantiate that the agency (or a member of the agency) had engaged in misconduct or negligent or improper conduct (the section 12(2)(e) consideration). (Emphasis added.) 1. Having made that finding, the Tribunal went on to explain at [49] and [50] why disclosure of the names of the signatories to the document could reasonably be expected to have the effects set out in the examples under both s 12(2)(a) (promote discussion, accountability and debate) and (e) (reveal improper conduct): 49. In these respects the applicant had explained in her access application that she could not understand how a decision could be made to immediately suspend the painted tiles project at such an advanced stage of implementation without consulting first with Aunty Noeline, the proponent of the project and ascertaining her response to the objections made in the petition, in a context in which she asserted consultation and engagement with the Aboriginal community about the Aboriginal burial ground project over many years. The painted tile project and its suspension were clearly public affairs and matters of public importance. Disclosure of the identity of the petitioners had the potential to contribute to informed public debate about these matters and enhance the agency's accountability to the community it serves. 50. The allegation that there had been inadequate consultation with family and community members about the project could only really be understood by reference to the specific individuals who claimed not to have been consulted or communicated with. The disclosure of the specific identities of the objectors had the potential to indicate if the agency's decision to immediately suspend the project was or was not soundly based in the circumstances. It would provide transparency as to the basis upon which the agency acted. It was therefore in the public interest in these respects. I consider the situation analogous to that considered by Judicial Member N Isenberg in Fahey v NSW Office of Liquor, Gaming and Racing [2012] NSWADT 181 where it was held that there is a public interest in disclosing the identity of persons who make false complaints. I must make it clear that I do not suggest that the contents of the petition did contain false complaints; simply, that disclosure of the signatories of the petition would serve the public interest of enabling that to be ascertained. 1. At [71], the Tribunal undertook the balancing exercise to determine whether any public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure. It was at that point that the Tribunal gave significant weight to each of the considerations it had identified as public interest considerations in favour of disclosure. Those considerations included the considerations identified at [47]-[48] of the decision. 2. At [50], the Tribunal identified the conduct which it apparently considered relevant to the "reveal improper conduct" consideration. That conduct was the Council's decision to immediately suspend the project. The Tribunal considered that the disclosure of the names of the signatories to the document "had the potential to indicate if the agency's decision to immediately suspend the project was or was not soundly based in the circumstances." The Tribunal correctly identified the meaning of the phrase "could reasonably be expected" at [68] of the reasons for decision: The first question the Tribunal must ask itself in relation to relation to these items is could the disclosure of the information reasonably be expected to have the relevant effect. In Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 after reviewing the relevant authorities an Appeal Panel of the Tribunal considered the quality of evidence required to establish that disclosure of the information could reasonably be expected to have the relevant effect. It held 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. However, when it came to applying those principles, the Tribunal indicated merely that disclosure of the names of the signatories "had the potential to indicate if the agency's decision to immediately suspend the project was or was not soundly based in the circumstances." (Emphasis added.) The test is not whether disclosure would have the potential to have a particular effect. In that respect, the Tribunal erred when applying the law to the facts. The Tribunal also made an error when by substituting the test of "unsound conduct" for the statutory test "misconduct or negligent, improper or unlawful conduct". The third error, and the one on which the Council relied, was to make a finding without evidence. In Commissioner of Police (NSW) v Barrett [2015] NSWCATAP 68 at [136], the Tribunal explained that any finding that disclosure could reasonably be expected to reveal or substantiate that an agency had engaged in misconduct or negligent, improper or unlawful conduct would need to be supported by some evidence: It is a very serious matter for a Tribunal to accept as relevant to its determination as a public interest favouring disclosure that "disclosure … 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." As expressed, this consideration carries an imputation in relation to the agency's conduct that would need to have some reasonable basis in the material presented by the access applicant or in the material seen by the Tribunal in confidence. There is nothing in the Tribunal's reasons to indicate that it had any material that "could reasonably be expected to reveal" the types of improper conduct to which the above formulation refers. 1. There was no evidence to support the Tribunal's ultimate finding. 2. At [50], quoted above, the Tribunal drew an analogy between this case and the Tribunal's first instance decision in Fahey v NSW Office of Liquor, Gaming and Racing [2012] NSWADT 181. In Fahey, complaints were made to an agency about the way in which the applicant was operating two charities. The applicant sought access under the GIPA Act to the identity of the complainant, but the agency withheld that information. The Tribunal set aside that decision and gave the applicant access to the information. On appeal, the Appeal Panel held that the Tribunal was wrong to have characterised the complaint as false and found that there were no public interest factors in favour of disclosure of the information. At [52]-[55] the Appeal Panel held that: We do not rule out the possibility that there may be circumstances of deep community controversy, where a stilling of the controversy may be assisted by a disclosure that ordinarily would be seen as going to a systemic interest of government given protection by the s 14 Table considerations in issue in this case. But in our view these circumstances fall well short of any situation of that kind. An individual raised concerns with the appropriate branch of government in relation to the way the two charities were managed. The complaint it is said caused anger to those affected by it, and gave rise to division in the community. This is a common consequence of the lodgement of complaints. In our view, little turns on that. 1. The Tribunal in the present case agreed with the principle expressed in the first instance decision of Fahey, that there is a public interest in disclosing the identity of individuals who make false complaints. Without suggesting that the complaints in this case were false, the Tribunal then concluded that disclosure of the names of the signatories would serve the public interest of finding out whether the complaints were false. That is an expansion of the principle stated by the Appeal Panel in Fahey. In any case, as the Tribunal correctly pointed out, there was no evidence that the complaints were false. 2. For the reasons we have given, there was no evidentiary basis for the Tribunal taking into account the "reveal improper conduct" consideration as a public interest consideration in favour of disclosure. 3. The Council also submitted that in considering public interest considerations in favour of disclosure, the Tribunal treated the example in the note to s 12 as statutorily prescribed considerations rather than simply examples. We do not agree. This was not a ground of appeal and, in any case, there is no error in taking into account the public interest considerations in favour of disclosure listed in the note to s 12. 4. Ground 1 is upheld. Ground 2, 6(b) and 8(a) –erred in the application of Cl 1(d) of the Table in s 14 1. Under cl 1(d) of the Table in s 14, there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions. An issue before the Tribunal was whether the information sought is "confidential information", or, as the Tribunal put it at [53] "the information was obtained in confidence". The Tribunal found at [59], that ". . . the document as a whole is not confidential information that attracts the operation of section 14 of the GIPA Act." 2. Ground 2 alleges errors in the process of reasoning by which the Tribunal came to this conclusion. When determining this issue, Council submitted that the Tribunal erred in its application of the consideration relating to prejudicing the supply of confidential information by: 1. conflating disclosure of the letter itself with disclosure of the signatories, and/or 2. taking into account events after the point of receipt of the letter by the appellant in determining whether the document was confidential. 1. Ground 6(b) is that the Tribunal erred by finding at [61], that the words "to whom it may concern" in the document meant that it was addressed "'to all persons whom its contents concern" and not just the Council. Ground 8(a) is that the Tribunal erred in its application of s 13 of the GIPA act by failing to consider different information in the same document separately. 2. Before considering these grounds, we summarise the relevant parts of the Tribunal's reasoning process: 1. The document itself has been provided to the applicant. Only the names and signatures of the individuals had been withheld. It can be inferred from that decision, that Council did not consider the body of the document to have been provided in confidence; at [58]. 2. The principles to be applied are as follows (at [55] and [56]: The confidential quality of the communications is a question of fact. To establish its confidential quality, information must have been supplied under an express or implied pledge of confidentiality. The confidential quality of the information may be inferred from the nature of the relationship between the informer and the person informed. The confidential quality of the information must be determined in the light of all the circumstances of the particular case. The inquiry should focus on the point of receipt, and the administrative standards and community understandings which surround it. 3. There is no evidentiary basis for the inference drawn by the delegate that the names of signatories, but not the document itself, were provided to the agency under an implied pledge of confidentiality: at [59]. 4. Although the document is not marked as a petition it is clear that the agency characterised it as such from the outset. It was signed by 10 people: at [60] 5. The conclusion that the information was not obtained in confidence is reinforced by the fact that the document is addressed "to whom it may concern": at [61] 6. The petition was presented to the Mayor of the agency at her place of business (which is a takeaway food shop) in a public street: at [62] 7. The words 'confidential' don't appear on the document: at [63] 8. The substance of the petition was disclosed to Aunty Noeline in the agency's letter of 13 May 2019. The letter indicated an intention to discuss the petitioner's objections at a public meeting: at [64] 9. The agency received a verbal objection from one signatory of the petition to their information being made public: at [65]. 1. The Tribunal's findings that the document was a "petition" and a "public statement" are findings of fact about the character of the document. Leave is required to appeal on grounds other than a question of law: NCAT Act, s 80(2)(b). As we have identified errors on questions of law, there is no need to determine whether or not to grant leave. 2. The Council's first submission is that the Tribunal failed to treat the content of the document separately from the signatories to the document. (See point 3 above). According to the Council, it does not necessarily follow from the disclosure of the content of the letter that the names of the people who signed the document is not confidential. We agree. The Tribunal' reasoning is at [58] and [59]: In conducting this administrative review it is important to bear firmly in mind that the document in question, which the agency itself characterised as a petition, although that word does not appear in the document, has been released to the applicant without any of its contents redacted other than the names and signatures of those persons who signed it. The delegate thus appears to have concluded that there was a public interest in the disclosure of the document but a public interest against disclosure of the identities of those persons who brought the document into existence and/or endorsed it. However, her reasoning does not distinguish between the two so it is not apparent how or why that distinction is drawn. I can see no satisfactory evidentiary basis for the inference drawn by delegate that the names of the signatories, but not the document itself, were provided to the agency under an implied pledge of confidentiality. I am satisfied the document as a whole is not confidential information that attracts the operation of section 14 of the GIPA Act. 1. As the Tribunal pointed out at [27] of the decision: In determining an application for administrative review under the ADR Act (Administrative Decisions Review Act 1997 (NSW)) of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it including any relevant factual material and any applicable written or unwritten law: s 63(1). For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision: s 63(2). (Words in brackets added.) 1. The Tribunal's role is to examine the material before it, including any factual material and any applicable written or unwritten law, and to make the "correct and preferable" decision: Administrative Decision Review Act 1997 (NSW), s 63(1). While the Tribunal will have the administrator's decision before it, the Tribunal must reach its own decision. One basis for the Tribunal's conclusion at [59] was that having found that the content of the letter was not confidential, "there was no satisfactory evidentiary basis for the inference drawn by [the] delegate that the names of the signatories, but not the document itself, were provided to the agency under an implied pledge of confidentiality." 2. The Tribunal has identified what it sees as an error in the Council's reasoning. That alleged error was that it was not open for the Council to draw an inference that the names of the signatories, but not the document itself, were provided to the agency under an implied pledge of confidentiality. However, it is not the Tribunal's role to identify what it sees as errors in the Council's reasoning. The Tribunal's role is to conduct a merits review of the Council's decision in accordance with the provisions of the Administrative Decisions Review Act. What the Tribunal should have asked itself is whether, on the basis of the material before it and the relevant law, ". . .disclosure of the names of the signatories could reasonably be expected to . . . prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions". Instead of confining itself to that task, the Tribunal found error in the Council's decision and reasoned that if Council did not consider the content to be confidential, then neither were the names of the signatories. 3. Secondly, the Council submitted that the Tribunal had misapplied the law by taking into account events after the signatories had provided the information in the letter to the Council. The Tribunal found, at [64], that: Additionally, the substance of the petition was disclosed to Aunty Noeline in the agency's letter of 13 May 2019, and in that letter the delegate of the agency expresses an intention to bring the petitioners and Aunty Noeline together to discuss the petitioner's objections at a "public meeting" to be held on 5 June 2019. If the petitioners attended that meeting their identities would clearly be apparent to any other person who attended. This does not support an inference being drawn that the petitioners wanted their identities to remain confidential. 1. In Commissioner of Police, NSW Police Force v Camilleri [2012] NSWADTAP 19 at [25], the Appeal Panel of the former Administrative Decisions Tribunal found that the Tribunal should "not have introduced factors relating to the later history of the information or document" and that the enquiry "so far as cl 1(d) is concerned should focus on the point of receipt, and the administrative standards and community understandings which surrounded it." 2. We agree that the time for assessing whether the information was provided under an express or implied pledge of confidentiality is the time when the information is supplied. However, later events may cast light on the signatories' intention at that time. 3. Ground 2 is upheld. Grounds 6(b) and 8(a) are dismissed. Ground 3 – Erred in the construction and application of Cl 3(b) of the Table in s 14 – 1. Ground 3 is that: The Tribunal erred in its construction and application of cl 3(b) of the Table in s 14 of the GIPA Act and/or its construction and application of the Privacy and Personal Information Protection Act 1998 by finding that the relevant information needed to have been 'collected' by the Council for Cl 3(b) to apply. 1. This ground of appeal concerns the public interest against disclosure of information which could reasonably be expected to contravene an information protection principle or a health privacy principle. 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) prejudice any court proceedings by revealing matter prepared for the purposes of or in relation to current or future proceedings, (d) prejudice the fair trial of any person, the impartial adjudication of any case or a person's right to procedural fairness, (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) in the case of the disclosure of personal information about a child—the disclosure of information that it would not be in the best interests of the child to have disclosed. 1. The relevant Information Protection Principles in this case is set out in s 18(1)(a) of the Privacy and Personal Information Protection Act 1998: 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 . . . 1. As can be seen from the terms of this provision, an agency will be contravening an information protection principle under the Privacy and Personal Information Protection Act 1998 if the agency discloses personal information that it "holds" unless "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". 2. The Tribunal made the following finding at [70]: Clause 3(b) of the Table to section 14 of the GIPA Act applies to information that has been "collected" by an agency. While there is no doubt that the petition is "held" by the agency within the meaning of section 4(4) of the PPIP Act, it was not "collected" by it within the meaning of section 4(5) of that Act because its receipt by the agency was not solicited (that is, requested). It is thus not personal information to which sections 17 and 18 of the PPIP Act and Information Protection Principles 10 and 11 apply. The disclosure of the petition is therefore not capable of having the effect contravening an Information Protection Principle and the delegate was wrong to conclude otherwise. 1. The Tribunal is under a misapprehension that clause 3(b) only applies to information that has been "collected" by an agency. As we have identified, s 18(1)(a) applies to any personal information held by an agency. Furthermore, in CJU v NSW Ministry of Health [2018] NSWCATAD 181 at [70], the Tribunal held that once unsolicited information is "taken under the control of the agency for one of its administrative purposes" it should be treated as having been "collected for the purposes of ss 17(a) and 18(1)(a) of the PPIP Act." The Tribunal erred by finding that the PPIP Act and Information Protection Principles did not apply because the letter was unsolicited. The question the Tribunal should have asked was whether it could reasonably be expected that s 18(1)(a) would be breached by disclosure of the signatories to the letter. 2. Ground 3 is upheld. Grounds 4 and Ground 8(b) – failure to apply s 54 of the GIPA Act 1. Grounds 4 and 8(b) are that the Tribunal failed to take into account the mandatory consideration in s 54(5) to "take any objection to disclosure of information that the agency receives in the course of consultation into account in the course of determining whether there is an overriding public interest against disclosure of government information". 2. Section 54 of the GIPA Act sets out the circumstances in which an agency should consult with a person before giving access to information relating to that person. 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, or (b) concerns the person's business, commercial, professional or financial interests, or (c) concerns research that has been, is being, or is intended to be, carried out by or on behalf of the person, or (d) concerns the affairs of a government of the Commonwealth or another State (and the person is that government). Note— The requirement to consult extends to consultation with other agencies and other governments. See the definition of person in Schedule 4. (2A) If the agency considers that information about a person consulted under this section is likely to be included in the agency's disclosure log in relation to the access application, the agency must give a written notice to the person containing the following statements— (a) that information concerning the application is likely to be included in the agency's disclosure log and that the person can object to this, (b) that there is a right of review under Part 5 of a decision by the agency to include information in its disclosure log despite the person's objection. (3) If consultation is required concerning the release of personal information about a deceased person, that consultation is to be done by consultation with a close relative of the deceased. (4) The purpose of consultation under this section is to ascertain whether the person has an objection to disclosure of some or all of the information and the reasons for any such objection. (5) The agency must take any objection to disclosure of information that the agency receives in the course of consultation into account in the course of determining whether there is an overriding public interest against disclosure of government information. (6) If consultation establishes that a person objects to the disclosure of information but the agency decides to provide access to the information in response to the application, access is not to be provided until the agency has first given the objector notice of the agency's decision to provide access to the information and notice of the objector's right to have that decision reviewed, and is not to be provided while review rights on the decision are pending. (7) Review rights on a decision are pending while the objector is entitled to apply for a review of the decision under Part 5 (ignoring any period that may be available by way of extension of time to apply for review), or any review duly applied for is pending. 1. We agree with Council's submission that s 54(5) means that it is mandatory for an agency to take into account any objection to disclosure when determining whether there is an overriding public interest against disclosure. 2. In its decision the Council described the consultation process in the following way: Third party consultation was undertaken with five of the ten individuals whose personal information was contained within the document. The contact information for those able to be consulted with were able to be obtained from other documents that pertained to this matter. Contact details for the balance of individuals was not available and therefore no consultation with them was able to be carried out. Council did not receive express consent from anyone contacted during the third-party consultation. Of particular note, one individual contacted Council in writing and by telephone to strongly object to their information being made public. The individual explained that had they known this was a possibility, they could not have included their information on the document. This further informed my consideration of Clause 1(d) of the table at section 14 of the GIPA Act. 1. At [54] the Tribunal held that: In section 4.4 of her access determination the delegate records that the agency received a written and verbal objection from one signatory of the petition to "their information being made public". It is stated that the person advised the agency that they would not have "included their information on the document" had they known it would be released. No reasons are recorded for these views. It is therefore not possible to know how the person came to be of the understanding that the petition or their identity or both would be confidential. For example, it is not recorded that the petition organiser or the Mayor said so. It may thus be the case that it was the person's own mistake or misconception. In any event, as I have noted, the whole of the petition has been disclosed, only the names of the petitioners are redacted. I therefore cannot see any basis upon which the delegate ought to have given this objection significant weight. 1. In that paragraph the Tribunal was considering whether clause 1(d) of the Table to s 14 applied, and specifically to whether the letter was confidential. The Tribunal did not refer to any of the requirements in s 54 of the GIPA Act in the reasons for decision. Of particular note is that the Tribunal did not refer to the requirement in s 54(5) to take any objections into account as a mandatory relevant consideration in the course of determining whether there is an overriding public interest against disclosure of government information. The Tribunal failed to take that objection into account when undertaking the balancing exercise under s 13 of the GIPA Act. 2. Grounds 4 and 8(b) are upheld. Ground 7 – characterising the letter as a 'petition' 1. This ground of appeal is that the Tribunal erred by drawing inferences from the characterisation of the letter as a "petition" which were not otherwise supported by the evidence. We note that in correspondence with Aunty Noeline, the Council characterised the letter as a "petition" even though that word was not used in the letter. We also note that the signatories characterised the communication as a "letter". The Tribunal's decision refers to the letter as a "petition". 2. One inference which the Tribunal drew from its characterisation of the document as a petition, was that the document was a "public statement" and that the signatories must have reasonably known or out to have known that their identities would be made public. At [60], the Tribunal held that: Although the document is not marked as a petition it is clear that the agency characterised it as such from the outset. It was reasonable for it to do so. The ordinary meaning of the word "petition" is a 'written request, typically signed by many people, appealing to authority in respect of a particular cause'. The document has this character. It is a public statement in protest against the painted tile project. I consider the fact that a petition is signed by more than one person, in this case 10, strongly indicative of the absence of any expectation that it was confidential. In this case the petition was passed between 10 people who did sign it and potentially amongst others who declined to do so. Anyone into whose hands it passed had the opportunity to read it and discuss its contents. It could not be considered a confidential document in these circumstances. 1. At [73] when undertaking the balancing exercise, the Tribunal said: However, I am not satisfied in this context that this consideration deserves other than little weight. From an objective point of view those persons who signed the petition must reasonably have known, or ought to have known, that their identity could or would be public, or at least not confidential, information. That is usually why people sign petitions: to publicly declare support for a particular cause. In any event a person's name and signature is not sensitive personal information. 1. According to the Council, the document cannot be characterised as either "a public statement in protest against the painted tile project" or a public declaration of support for a particular cause. In the Council's view, the purpose of the document is to express a grievance as to a perceived lack of consultation over the painted tile project. 2. Inferences which can be drawn from the content of the document and the way in which it was delivered, are questions of fact for which leave to appeal is required: NCAT Act, s 80(2)(b). As we have found that the Tribunal made errors in relation to questions of law, there is no need for us to determine whether or not to grant leave. New hearing Decision to conduct a new hearing 1. We have identified a number of errors of law in the way the Tribunal identified various public interest considerations for and against disclosure. Those errors materially affected the ultimate balancing exercise required by s 13 of the GIPA Act. Rather than remit the matter to the Tribunal to re-decide according to law, we have decided to conduct a new hearing without further evidence: NCAT Act, s 81(1)(e) We have relied on the evidence and submissions that were before the Tribunal and also on further oral submissions the parties made at the appeal hearing. Legal principles 1. When considering the appeal, we quoted the legal principles on which the Tribunal relied and added some observations of our own. In summary, there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. There is an overriding public interest against disclosure if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. A mandatory consideration when determining whether there is an overriding public interest against disclosure is any objection to disclosure of information that the agency receives in the course of consultation. We can also take into account the "personal factors" which are: the applicant's identity and relationship with any other person; the applicant's motives for making the access application; and any other factors particular to the applicant). Those matters can be taken into account as factors in favour of providing access or, in limited circumstances, against providing access. The burden of establishing that the decision is justified lies on the agency: GIPA Act, s 97(1). Considerations against disclosure 1. There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to reveal an individual's personal information or 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. Personal information is defined Personal information is defined in Schedule 4, clause 4(1) to the GIPA Act as: …information or an opinion (including information or an opinion forming part of a database and whether or not recorded in material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion. 1. The term 'reveal' is defined in Schedule 4, clause 1 of the GIPA Act to mean: To disclose information that has not already been publicly disclosed (otherwise by lawful means). Disclosing the names of the ten signatories to the document, would reveal their personal information because of the content of the document, that is, their names in connection with the information about them contained in the document. Their names have not been publicly disclosed in connection with the information. The information includes that the signatories are descendants and family members of Aboriginal people buried in the Aboriginal section of the Moree Cemetery. Those individuals feel aggrieved in various ways by the manner in which the Council has managed the painted tiles project. 2. As well as revealing the signatories' personal information, disclosure could reasonably be expected to contravene the information protection principle in s 18(1)(a) of the Privacy and Personal Information Protection Act 1998: 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 . . . 1. In CJU v NSW Ministry of Health [2018] NSWCATAD 181 at [70], the Tribunal held that once unsolicited information is "taken under the control of the agency for one of its administrative purposes" it should be treated as having been "collected for the purposes of ss 17(a) and 18(1)(a) of the PPIP Act." In this case disclosure to Ms H is not "directly related to the purpose for which the information was collected". Although unsolicited, the document (which includes the names of the signatories) was "collected" for the purpose of recording the complaint made in the document. 2. The second question is whether the Council had no reason to believe that the individuals concerned would object to disclosure. That question requires us to make findings about the character of the document. The document was hand delivered to the Mayor. Twice in the document the signatories describe the communication as "this letter". It can readily be inferred that their intention was to write a letter to Council complaining about the manner in which it had managed the painted tiles project. Letters are generally private communications between one person and another. The fact that the document began with the adulation "to whom it may concern" does not change its fundamental character as a letter intended for the eyes of the Mayor in her capacity as head of the Council and/or of those at Council with responsibility for dealing with the person's complaint . We accept that the Council referred to the document as a 'petition,' perhaps because there were several signatories. However, in our view, it was more in the nature of a grievance or a complaint. In this case Council would have reason to believe that the individuals concerned would object to the disclosure. 3. Coupled with these considerations against disclosure, we take into account that Council received an objection to disclosure in the course of consultation. As the Council stated, it only consulted five of the signatories because it did not have contact details for the other five. One individual contacted Council in writing and by telephone to strongly object to their information being made public. The individual explained that had they known this was a possibility, they could not have included their information on the document. None of the remaining signatories who were contacted consented to the disclosure. 4. For the following reasons, disclosure of the information could reasonably be expected to prejudice the supply of confidential information that facilitates the effective exercise of that agency's functions: GIPA Act, cl 1(d) to the Table to s 14. In Commissioner of Police, NSW Police v Camilleri [2012] NSWADTAP 19 at [33] and [34], the Tribunal held that: In our view, the question of whether the information supplied is 'confidential information' must be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received. . . . We also agree with the agency that the Tribunal should not have introduced factors relating to the later history of the information or document. The enquiry, so far as cl 1(d) is concerned, should focus on the point of receipt, and the administrative standards and community understandings which surrounded it. 1. Council did not identify the "service within which the information was received". But Councils routinely receive letters of complaint and would ordinarily receive them in confidence. That is what happened in this case. Council did not disclose the content of the document until an application was made under the GIPA Act. The names of the signatories have not yet been disclosed. It is apparent that the Council considers the content of the document, when coupled with the names of the signatories, to be confidential information. At least one signatory objected to the information being disclosed and advised the agency that they would not have "included their information on the document" had they known it would be released. In those circumstances we are satisfied that disclosure could reasonably be expected to prejudice the supply of confidential information that facilitates the effective exercise of the Council's functions. Considerations in favour of disclosure 1. Under the GIPA Act, a public interest consideration in favour of disclosure is that 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. Disclosure of the content of the document could reasonably be expected to achieve those aims. Disclosure of the names of the signatories in connection with the information in the document could also promote positive and informed debate. The debate will be more informed if the identity of the signatories is known because arguments could then be put as to whether the Council has indeed failed to consult with the signatories or mis-managed the painted tile project in relation to the signatories. This is a public interest consideration in favour of disclosure. Similarly, we are satisfied that disclosure of the information could reasonably be expected to inform the public about the operations of Council and, in particular, their policies and practices when dealing with members of the public in connection with the painted tiles project. 2. The steps Council says they have taken by immediately suspending the project, holding a public meeting and consulting with everyone concerned does not weaken these factors. 3. We are not satisfied that disclosure of the information could reasonably be expected to reveal or substantiate that the Council has engaged in misconduct or negligent, improper or unlawful conduct. In Commissioner of Police (NSW) v Barrett [2015] NSWCATAP 68 at [136], the Tribunal explained that any finding that disclosure could reasonably be expected to reveal or substantiate that an agency had engaged in misconduct or negligent, improper or unlawful conduct would need to be supported by some evidence: It is a very serious matter for a Tribunal to accept as relevant to its determination as a public interest favouring disclosure that "disclosure … 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." As expressed, this consideration carries an imputation in relation to the agency's conduct that would need to have some reasonable basis in the material presented by the access applicant or in the material seen by the Tribunal in confidence. There is nothing in the Tribunal's reasons to indicate that it had any material that "could reasonably be expected to reveal" the types of improper conduct to which the above formulation refers. 1. There is no evidence in this case to support a finding that disclosure of the information could reasonably be expected to reveal or substantiate that the Council has engaged in misconduct or negligent, improper or unlawful conduct. 2. We can also take into account the "personal factors" which are: the applicant's identity and relationship with any other person; the applicant's motives for making the access application; and any other factors particular to the applicant). We adopt the Tribunal summarised of the background to this dispute at [4] to [10] of the decision which is re-produced above. 3. Aunty Noeline was the proponent of the painted tile project and had spent many decades participating in initiatives to restore the segregated Aboriginal section of Moree Cemetery. Her motivation, in part, was to find out who had complained so that she could make her own assessment as to whether the complaints were justified. The suspension of the project and its aftermath was understandably traumatic because, her perception was that there had been extensive consultation and collaboration with the local Aboriginal community. Given that context, she does not understand why Council suspended the project. She queried whether the signatories had a legitimate right to be consulted. Ms H stated in her submission to the Tribunal that: The issue is now before NCAT because MPSC (Moree Plains Shire Council) approved the suspension in less than one business day without any knowledge, input or consultation with Aunty Noeline as Project Co-Ordinator or any Aboriginal person or organisation except for ten (10) unnamed persons. While these names remain redacted and anonymous; Aboriginal people have no proof or confidence that the ten (10) "petitioners" are Aboriginal person/s with a legitimate right to raise matters regarding the burial place of over 200 Aboriginal people belonging to many families. 1. These personal factors are factors in favour of disclosure. 2. The public interest considerations against disclosure are that disclosure could reasonably be expected to reveal an individual's personal information and contravene an information protection principle. We also take into account that one signatory has objected to the disclosure of his name. One public interest consideration in favour of disclosure is that disclosure could reasonably be expected to promote open discussion of public affairs, enhance Government accountability and contribute to positive and informed debate on issues of public importance. Similarly, we are satisfied that disclosure of the information could reasonably be expected to inform the public about the operations of Council and, in particular, their policies and practices when dealing with members of the public in connection with the painted tiles project. Those factors are strengthened by the personal factors to which we have referred. 3. In our view, the factors against disclosure outweigh the public interest consideration in favour of disclosure. If the information is disclosed, Council could be in breach of the information privacy principle in s 18(1)(a) of the Privacy and Personal Information Protection Act 1998. One person has strongly objected to the disclosure. That factor outweighs the more general considerations in favour of disclosure and the personal factors. Orders 1. The appeal is allowed. 2. Orders 2, 3 and 4 made by the Tribunal on 25 November 2021 are set aside. 3. In substitution for those orders, the following orders are made: The decision under review 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 Amendments 12 July 2022 - Pursuant to s 63 of the Civil and Administrative Tribunal Act 2013 (NSW), the name of Counsel appearing for the appellant was corrected to 'C Brain'. 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: 12 July 2022