Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Holman v Northern Beaches Council [2024] NSWCATAD 336 Hearing dates: 18 April 2024; on the papers Date of orders: 12 November 2024 Decision date: 12 November 2024 Jurisdiction: Administrative and Equal Opportunity Division Before: J D Little, Senior Member Decision: The decision the subject of the review is affirmed. Catchwords: ADMINISTRATIVE LAW – access to government information – access applications – conclusive presumption – overriding public interest considerations against disclosure – legal professional privilege – balancing exercise - public interest considerations in favour of disclosure – public interests considerations against disclosure – whether overriding public interest against disclosure Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Evidence Act 1995 Government Information (Public Access) Act 2009 Privacy and Personal Information Protection Act 1998 Cases Cited: Bailey v Commissioner of Police, NSW Police Force [2023] NSWCATAD 275 Commissioner of Police, NSW Police Force v Barrett (No 2) [2016] NSWCATAP 86 Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 Hurst v Wagga Wagga City Council [2011] NSWADT 307 Jenkinson v Department of Education and Communities [2013] NSWADT 280. Leech v Sydney Water Corporation [2010] NSWADT 298 at [25] Lock the Gate Alliance v Department of Planning and Environment [2019] NSWCATAD 6 Luxford v NSW Department of Education and Communities [2016] NSWADT 118 Neary v State Rail Authority [1999] NSWADT 10 Public Service Assn v Premier's Department [2002] NSWADT 277. Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163 Seven Network Ltd v News Ltd [2005] FCA 142 Williams v Department of Industry and Investment [2012] NSWADT 192 Category: Principal judgment Parties: John Holman (Applicant) Northern Beaches Council (Respondent) Representation: Applicant (Self-Represented) Sparke Helmore Lawyers (Respondent) File Number(s): 2023/00348436 Publication restriction: Orders previously made pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 on 18 April 2024 REASONS FOR DECISION 1. The Applicant seeks administrative review of a decision made by the Respondent on 19 October 2023 in respect of the Applicant's application for access to information (access application) under s 9(1) of the Government Information (Public Access) Act 2009 (the GIPA Act). Background 1. In 2022, the Applicant made other GIPA applications of the Respondent identified in the materials as "GF2022/164494" and "GF2022/391696". According to the documents relied upon by the Applicant he has also lodged the following GIPA applications: 1. GIPA applications with the Rural Fire Services (RFS); 2. GIPA applications with the National Parks and Wildlife Services; and 3. GIPA application with the Department of Planning and Environment. 1. As explained further below, in addition to these proceedings, the Applicant has sought review from this Tribunal with respect to a decision made by the RFS. 2. The impetus for these GIPA applications, according to the Applicant, were bush fire hazard complaints made by him related to a bordering National Park as well as accusations made against the Applicant and his wife of unlawful land use and unapproved clearing on a property owned by the Applicant's wife. 3. The Applicant informs the Tribunal that he is an experienced and qualified Engineering and Environmental Planning holding an honours degree in Engineering, a Master's Degree in Business Administration and a Graduate Certificate in Environmental Planning. The Applicant also informs the Tribunal that he has carried out the following works which, according to him, were all caried out lawfully under existing approvals or as an exempt development: 1. Constructed a car park which holds cars, caravans, motorhomes and boats; and 2. "Vegetation management works" which includes land clearing. 1. In June 2023, the Applicant lodged a further GIPA access application. This application was lodged with the Rural Fire Service (RFS) under the GIPA Act seeking access to (the RFS access request): All correspondence photos and video taken regarding land at 2593 Bundaleer St, Belrose over the past two years from the date of determination of this GIPA request. This should include any correspondence regarding the National Park boundary with the property at 2593 Bundaleer St Belrose. 1. On 11 August 2023, the RFS notified the Applicant of its decision in relation to the RFS access application. In this decision, the RFS determined to release some of the information sought by the Applicant including a redacted version of a document that the RFS refers to as "Document 2022A" which is "Document 67" in these proceedings. 2. Three days later, on 14 August 2023, 1. the Applicant initiated proceedings in this Tribunal with respect to the decision made by the RFS regarding his RFS access application (RFS Proceedings). According to the Applicant: One main issue [in the RFS Proceedings] has been the contention that the RFS has been complicit in misleading …[the] Minister for Environment overseeing the NPWS. 1. the Applicant made an access request of the Respondent (as opposed to the RFS) seeking access to the following information which included information related to 2593 Bundaleer St Belrose being the subject of the RFS access request: All correspondence that makes reference to 2593 Bundaleer St Belrose All correspondence that makes reference to 218 Forest Way Belrose All videos, audio recorded or photos taken on or around 2593 Bundaleer St Belrose All videos, audio recorded or photos taken on or around 218 Forest Way Belrose All correspondence referencing anyone with the name "Holman" Any complaints that reference 2593 Bundaleer St Belrose Any complaints that reference 218 Forest Way Belrose Any correspondence that references "Yanginanook" Date range for the above is 01/01/2022 to 11/08/2023 1. In September 2023, Ms Parker, the Respondent's Information Access Officer corresponded with the Applicant seeking clarification as to the ambit of the access application. Through that correspondence, the Applicant clarified that: 1. All correspondence referencing anyone with the name "Holman" referred to documents relating to himself and/or his wife; and 2. All documents including any documents already provided to him under previous GIPA applications. The Applicant expressly referenced Document 2022A describing the email chain with RFS as being "missing" and that it is "now becoming critical that this document be found by NBC as it is the subject of legal proceedings". 1. In respect of the latter, the Ms Parker advised the Applicant that she was able to locate the email but that she would have to consult under s 54 of the GIPA Act before a decision was made. Section 54 provides: (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. It was agreed that that the Respondent would produce two decisions – the first dealing with the access request that did not require consultation (First Decision) and a second decision that did require the consultation with other agencies (Second Decision). 2. In her affidavit, Ms Parker describes the searches she undertook: 1. searches of the Respondent's Document Management System, Customer request Management System and the spatial and corporate database cross-referencing mapping system. 2. consultation with the Office of General Counsel and the Building Compliance team. 3. consultation with the RFS, NSW National Parks and Wildlife Service and the Leonis Foundation. The RFS raised objections to the release of part of Document 67 the subject of the RFS Proceedings. The NSW National Parks and Wildlife Service raised objections to the release of certain information on the basis that it was relevant to active investigations. 1. On 27 October 2023, the RFS released a different version of the 2022A Document to the Applicant with reduced redactions (as well as other documents throughout October and November 2023). The RFS maintains its objection to the release of the redacted parts of that document which remains the subject of the RFA Proceedings. The only part of the email chain that remains redacted in an internal email from the Community Safety Officer of Northern Beaches District of the RFS to another employee of RFS. That email, with the redactions (but excluding the employee details at the end) reads: Hi Lloyd We have a hazard complaint [redacted to end of line]. Mr Holman has acquired numerous parcels in the district over the years and [redacted for approximately three lines] Currently he has lodge a hazard concern for his recent land purchase, [redacted to end of sentence]. He has refurbished an old shed on the site into an office or something similar. [sentence redacted]. The refurbished shed is not completed The hazard concern is based on the shed/office and is seeking an APZ on NPWS lands and the consequent boundary of the entire block. MY query, [redacted for approximately three lines] [redacted for one line] 1. The RFA Proceedings were heard on 29 January 2024 and the decision, as at the time of the hearing of this matter, was reserved. First Decision 1. On 29 September 2023, the first decision was released to the Applicant and about 180 documents were released to him in full and unredacted form. Second Decision 1. On 19 October 2023, the second decision was released to the Applicant. It is this decision that is the subject of these proceedings. 2. In summary, the second decision found that considerations in favour of disclosure included promoting open discussion (s 12(2)(a) of the GIPA Act); informing the public of operations of agencies (s 12(2)(b) of the GIPA Act) and the information under review contains personal information of the Applicant (s 12(2)(d) of the GIPA Act). The latter was also considered to be a factor pursuant to s 55(2) of the GIPA Act. Despite these considerations, the Respondent found that public interest considerations against disclosure outweighed the considerations in favour of disclosure with respect to some of the information requested. In this respect, the second decision resulted in the following as provided in the schedule of documents attached to the decision: 1. Documents were released in full. These documents are identified in these proceedings as Part A, Document 1 to 9; 11 to 21; 23 to 25; 27; 29 to 30; 32 to 60, 62. In this respect the schedule lists Part A Document 10 as being released in full but this appears to be an error. 2. Documents that had previously been provided to the Applicant pursuant to previous GIPA applications were provided again where that was possible. In this respect: 1. Ms Parker was able to access the decision and documents for GIPA GF2002/164494 which she shared with the Applicant by way of a sharepoint link. 2. Ms Parker was unable to access the decision and documents for GIPA GF2022/391696 as the officer who created te file was no longer employed by the Council and the "zip'd file of documents" created by him could not be opened. In respect of these documents, the decision was a refusal to provide the documents pursuant to s 60(1)(b1) of the GIPA Act which provides that an agency may refuse to deal with an access application where the applicant has previously been provided with access to the information under this Act or the Freedom of Information Act 1989. 1. Documents were provided in a redacted form. These documents are identified in these proceedings as Part A, Document 10; 22, 26, 28, 31, 61, 63, 64, 65, 66 and 67. In this respect: 1. Part A, Document 67 is document "Document 2022A" in the RFS Proceedings the disclosure of which could reasonably be expected to: 1. reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency: s 14 Table, clause 1(e); and 2. prejudice the effective exercise by an agency of the agency's functions: s 14, clause 1(f) 1. The other documents provided in a redacted form the disclosure of which could reasonably be expected to: 1. reveal an individual's personal information: s 14, clause 3(a); and 2. contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (NSW) and specifically principles 17 and 18 which specify that an agency cannot use personal information for a purpose other than that for which it was collected: s 14, clause 3(b) 1. Documents were refused. These documents are identified in these proceedings as Part B, Document 1 to 92. In this respect: 1. Part B Documents 1 to 42, 75 to 83, 85, 86, 88 to 92 were refused on the basis that they would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege). Pursuant to clause 5(1) of Schedule 1, it is to be conclusively presumed that there is an overriding public interest against disclosure of such information unless the privilege has been waived. 2. The other Part B Documents were refused on the basis that they reveal the deliberative and consultative processes that the Respondent, the RFS and the NSW National Parks and Wildlife Services have undertaken in respect of investigations. In this respect, the schedule of documents attached to the decision provides the following: 1. Part B Documents 43 to 74, 84, 87 were refused on the basis that the disclosure of which could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions: s14, clause 1(f). 2. In respect of Part B, Document 84, an additional consideration was listed which was that disclosure of which could reasonably be expected to reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency: s14, clause 1(e). 1. The Applicant's position is that the correct and preferable decision is that all documents covered by the GIPA application be released in full. The proceedings 1. The application was part-heard on 18 April 2024. The hearing was conducted partly in the open and partly closed so as to maintain any confidentiality in the documents the subject of this application. During the closed portion, the Respondent's representative contended that the basis for the claims for privilege were self-evident from the documents. The Tribunal indicated that even if that is correct, given the number of documents, the Tribunal would be assisted by clarification as to the type of legal professional privilege claimed and the basis of those claims. In consideration of this a further timetable was set to deal with that issue. The timetable allowed the Applicant a right of response. 2. The timetable also provided that the parties were to specify whether they wished to be heard further orally or whether the additional submissions and evidence could be accepted as part of the written submissions and evidence and the application be decided based on the oral hearing conducted on 18 April 2024 as well as the written material (the latter course alleviating a further hearing date). Neither party made application for a further hearing date and the matter has been determined based on the oral hearing and the written materials. Legal principles 1. The Tribunal's jurisdiction to conduct this review derives from s100 of the GIPA Act read with s 28 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) and s 9 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act). Section 100(1) of the GIPA Act gives a person who is aggrieved by a "reviewable decision" of an agency the right to seek administrative review of that decision by the Tribunal. The term "reviewable decision" is defined in s 80 of the GIPA Act. 2. In determining the application, the Tribunal is to decide what the correct and preferable decision is having regard to the material before it: ADR Act, s 63(1). The Respondent is not limited to defending the matter on the same basis as it made its original decision: Public Service Assn v Premier's Department [2002] NSWADT 277 at [57] and [59]. 3. In determining the application, the Tribunal may affirm the decision, vary the decision, set aside the decision and make another decision in substitution for the decision set aside, or set aside the decision and remit the matter for reconsideration by the Respondent in accordance with any directions or recommendations of the Tribunal: ADR Act, s 63(3). 4. The approach to be taken in applications under the GIPA Act has been considered in numerous cases before this Tribunal. The objects of the GIPA Act are set out in s 3(1): 5. 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: 1. authorising and encouraging the proactive public release of government information by agencies, and 2. giving members of the public an enforceable right to access government information, and 3. providing that access to government information is restricted only when there is an overriding public interest against disclosure. 1. "Government information" is given a wide meaning under section 4 of the GIPA Act being "information contained in a record held by an agency." 2. The GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 5. In accordance with s 9(1) of the GIPA Act, the Applicant has a legally enforceable right to access the information requested, unless there is an overriding public interest against disclosing the information. 3. Section 105 of the GIPA Act provides that the onus is on the Respondent agency to justify its decision. Public Interest Considerations 1. The general public interest considerations in favour of access to government information set out in s 12 of the GIPA Act mean that the balance is always weighted in favour of disclosure. In addition to the general public interest, the following examples are identified: 1. 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. 2. 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. 3. Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. 4. The information is personal information of the person to whom it is to be disclosed. 5. 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. Section 13 of the GIPA Act provides that 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. 2. Section 14 of the GIPA Act deals with public interest considerations against disclosure. In these proceedings the Respondent is relying on a conclusive presumption (s 14(1)) that there is an overriding public interest against disclosure in relation to certain information withheld, specifically that some information is subject to legal professional privilege (Clause 5 of Schedule 1 to the GIPA Act). If the Tribunal finds that the information withheld pursuant to the conclusive presumption in s14(1) of the GIPA Act is, in fact, information of the nature described in Schedule 1 to the GIPA Act, then information will remain withheld. 3. The Respondent also relied on the public interest considerations against disclosure described in the Table to Section 14 of the GIPA Act in relation to some information it has withheld. That information is subject to the balancing exercise required by section 13 of the GIPA Act, with reference to the principles expressed at section 15 of the GIPA Act. Relevantly, the Respondent relies on the following public interest considerations against disclosure: 1. (1)(e) - disclosure of information could reasonably be expected to reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency 2. (1)(f) - disclosure of information could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions; 3. 2(a) - disclosure of information could reasonably be expected to reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant, 4. (3)(a) - disclosure of information could reasonably be expected to reveal the personal information of other individuals; and 5. (3)(b) - disclosure of information could reasonably be expected to contravene Information Protection Principle 18 under the Privacy and Personal Information Protection Act 1998 (PPIP Act) 1. The evidence of the Respondent must satisfy the threshold for each of those clauses, being that it "could reasonably be expected to have one or more of the following effects (whether in a particular case or generally)". In this regard, the test to be applied is an objective one, approached from the viewpoint of a reasonable decision-maker: Neary v State Rail Authority [1999] NSWADT 107. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163, followed in Commissioner of Police, NSW Police Force v Barrett (No 2) [2016] NSWCATAP 86 (Barrett) at [40], Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 (Flack) at [40] to [41], Leech v Sydney Water Corporation [2010] NSWADT 298 at [25]. 2. The meaning of the word prejudice is to "cause detriment or disadvantage' or to 'impede or derogate from": Hurst v Wagga Wagga City Council [2011] NSWADT 307 at paragraph [60]. 3. Ultimately, it is a question of fact as to whether the disclosure of the information in issue could reasonably be expected to have the prescribed effect if disclosed. That fact being established to the relevant standard of proof, on the balance of probabilities: Barrett, at [42]. 4. The approach to determining the balance referred to in s 13 was summarised in Williams v Department of Industry and Investment [2012] NSWADT 192 at [20] to [22], following Flack and Hurst v Wagga Wagga City Council [2011] NSWADT 307 as requiring decision-makers to: 1. identify relevant public interest considerations in favour of disclosure, 2. identify relevant public interest considerations against disclosure, 3. attribute weight to each consideration for and against disclosure, and 4. determine whether the balance of the public interest lies in favour of or against disclosure of the government information. Legal professional privilege 1. The conclusive presumption at s 14(1) of the GIPA Act in relation to information which is the subject of legal professional privilege has been discussed in numerous decisions. In Lock the Gate Alliance v Department of Planning and Environment [2019] NSWCATAD 6 the Tribunal held: The Tribunal has considered cl 5 of Schedule 1 in numerous matters. Client legal privilege protects confidential communications between a lawyer and a client made for the dominant purpose of the lawyer providing legal advice or professional legal services to the client or for use in current or anticipated litigation. 1. In order for client legal privilege to attach to information, each element of client legal privilege must be satisfied. The essential elements of client legal privilege are: 1. the existence of a client and lawyer relationship; and 2. the confidential nature of the communication or document; and 3. the communication or document was brought into existence for the dominant purpose of either: 1. enabling the client to obtain, or the lawyer to give legal advice or provide legal services, or 2. for use in existing or anticipated litigation. 1. These considerations are embodied within sections 118 and 119 of the Evidence Act 1995. 2. In cases where privilege is claimed over documents created by a lawyer employed "in-house", the case law requires that the lawyer have a degree of independence in respect of the advice given: Seven Network Ltd v News Ltd [2005] FCA 142. Submissions and evidence 1. The Respondent while accepting that there were public interest considerations in favour of disclosure in that disclosure would promote open discussion (s12(2)(a) of the GIPA Act) and inform the public about the operations of agencies (s 12(2)(b)), the Respondent submitted that they were outweighed by the considerations against disclosure. In this respect it was submitted: 1. With respect to the documents provided in a redacted form (i.e. Part A, Document 10; 22, 26, 28, 31, 61, 63, 64, 65, 66 and 67). The Respondent largely reiterated the reasoning made in the original decision, in that: 1. With respect to Part A, Document 67 ("Document 2022A" in the RFS Proceedings) it was contended that the disclosure of the redacted information could reasonably be expected to reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency (s 14 Table, clause 1(e)) and prejudice the effective exercise by an agency of the agency's functions (s 14, clause 1(f)). 1. To support this contention, the Respondent adopted the submissions and drew the Tribunal's attention to the evidence of Ms Lauren Smith, Manager, Legal of the RFS which supports that disclosure of the information would reveal internal deliberations conducted, and opinions and advice sought and exchanged between the RFS staff in relation to the investigation and assessment of the Applicant's bush fire hazard complaint. 2. It was submitted that release of this information, the release could reasonably prejudice investigations as RFS officers would be unwilling to freely seek and share information internally as well as key NSW government stakeholders as well as obtaining information from third parties. This is also in the context that the investigations of the Respondent and the NPWS are on-going. 3. The Tribunal was also informed of the fact that the information that was redacted in Document 67 was the subject of an earlier GIPA application for which the decision is reserved. It was submitted that it would be inappropriate to release the information in those circumstances. 1. With respect to the other documents provided in a redacted form in Part A, the Respondent submitted that the disclosure of which could reasonably be expected to reveal an individual's personal information (s 14, clause 3(a)) and contravene an information protection principle under the PIP Act (s 14, clause 3(b); principles 17 and 18). The Respondent also submitted that revealing the information would reveal the identity of an informant or prejudice the future supply of information (s 14 clause 2(a)). To support this, the Respondent submitted that: 1. The Respondent relies on members of the public and other agencies providing information. 2. The information sought by the Applicant captures the names of members of the public who have provided information to the Council. 3. The disclosure of that information will undermine the flow of that information would is necessary for the effective exercise of the agency's function. 1. With respect to the Part B Documents for which no claim of privilege being Document 43 to 74, 84 and 87, the Respondent contended that such documents would either prejudice the effective exercise of the NPWS and the Respondent's functions because it would be prejudicial to those agencies investigations (s14, clause 1(f)) and/or reveal a deliberation or consultation of those agencies that might reasonably prejudice that process (s 14, clause 1(e)). 1. Otherwise, 1. the Respondent maintained that the refusal to provide documents to the Applicant which had already been provided as part of previous GIPA application was a permissible exercise of discretion pursuant to s 60 of the GIPA Act; and 2. Apart from Part B, Documents 2 to 4, 7, 10, 80, 81 (which were not pressed), the Respondent contended that the other information in the documents in Part B being Documents 1, 5 to 9, 11 to 42, 75 to 79, 82 to 92 were privileged and subject to a conclusive presumption as described above (the Privileged Information). In this respect, the Respondent filed additional material pursuant to the orders made at the hearing specifying in each case: 1. the type of privilege said to arise; 2. the basis for that allegation; and 3. the parties to the communications and, where relevant, their qualifications. 1. In addition to the oral submissions of the parties, the Respondent relied upon the following documents: 1. Email from NPWS dated 26 February 2024 expressing that their investigation is still underway and requesting that the information shared with the Respondent by them not be disclosed marked "R1". 2. Statement of Ms Parker filed 23 February 2024 marked "R2". 3. Respondent's written submissions filed 23 February 2024 marked "R3". 1. The Respondent also relied upon confidential documents including: 1. Bundle of documents disclosing the documents marked Part A and Part B in full. 2. Further confidential evidence the subject of the Tribunal's orders made on 18 April 2024. 1. Additionally, the RFS also filed evidence and submissions upon which the Respondent relied. This was filed pursuant to orders made by Senior Member Perrignon on 11 December 2023 whereby RFS was given leave to appear and to file and serve evidence and submissions but was not joined as a party. There was no objection for RFS to rely upon these written submissions and statement at the final hearing. 1. Statement of Lauren Smith filed 20 February 2024 marked "R4". 2. Written submissions of the RFS filed 20 February 2024 marked "R5" 1. NPWS was also informed of the proceedings had been advised but did not wish to be joined or provide submissions. 1. In response, the Applicant: 1. Provided details of his interactions with the Respondent, the RFS, the NPWS and Local Member of Parliament and Minister for the Environment and the circumstances supporting the Applicant's interest in the information the subject of the access application. 2. Contended that the work carried out on the properties was lawfully carried out. 3. Referred to an issue to be determined in the RFA Proceedings being the alleged misleading of a Minister. 4. With respect to the claim of a conclusive presumption based on legal professional privilege, the Applicant submitted that the Tribunal would not be satisfied of this given the: 1. Failure to provide in evidence practising certificates of the alleged lawyer. 2. Failure to provide details of the alleged lawyer's legal role. 3. The fact that there were no factors in support of the claim that privilege had not been waived. 1. The Applicant also draw the Tribunal's attention to the failure of NPWS to seek to be joined or otherwise be heard and that there is no information provided by a legal representative of NPWS other than the email that is marked "R1". In this, the Applicant appears to be submitting that this prejudicial or otherwise, the Tribunal ought to ignore the responses from other government agencies that were the product of the Respondent's conferral with them. 1. The Applicant relied upon: 1. The Applicant's administrative review application filed 2 November 2023 marked "A1". 2. Bundle of documents including the Applicant's overview and submissions and attaching 19 documents related the Applicant's interactions with the Respondent, the RFS, the NPWS and Local Member of Parliament and Minister for the Environment and the circumstances supporting the Applicant's interest in the information the subject of the access application. Consideration Refusal to deal 1. I accept the submissions of the Respondent with respect to the refusal to deal with the Applicant's application to the extent that it would be the provision of documents already provided as part of previous GIPA application. Section 60 of the GIPA Act expressly provides that such a decision is a permissible exercise of the Respondent's discretion. The Privileged Information 1. In relation to the Privileged Information, the Respondent submitted that it was plain from the face of those documents that they comprised requests for, or the provision of, legal advice or were bought into existence for use in existing or anticipated litigation. It was also submitted that the individuals named in those communications were external lawyers engaged to act for the Respondent as well as officers employed in the Office of General Counsel. The Respondent also filed further submissions in support of those allegations. 2. The Respondent expressed that it had decided not to waive privilege in relation to any of the information withheld subject to Clause 5 of Schedule 1 of the GIPA Act. 3. On my review of the Privileged Information filed by the Respondent, I agree that the conclusive presumption arises pursuant to Clause 5 to Schedule 1 of the GIPA Act as the information contained in the documents would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege). Accordingly, the information is properly withheld pursuant as there is a conclusive presumption that there is an overriding public interest against its disclosure. Accordingly, I do not accept the submission made by the Applicant that the information before this Tribunal is insufficient to draw this conclusion. Other information that has been redacted or refused: Public interest considerations in favour of disclosure 1. The Tribunal is tasked with balancing the public interest considerations against disclosure with those in favour of disclosure in determining whether the Applicant should be granted access. 2. The Respondent identified the following public interest considerations in favour of disclosure: 1. 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 (s 12(1)(a)); and 2. 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 (s 12(2)(b)). 1. A further consideration in favour of disclosure is the Applicant's motives for seeking the information, pursuant to s 55(2) of the GIPA Act. These have been discussed above. 2. While I place some weight on these considerations when balancing the public interest for the purposes of s 13 of the GIPA Act, it is limited given the volume of information already provided to the Applicant in answer to the access application. In these circumstances, it is questionable whether the release of the remaining withheld information would further promote the public interest. This is especially evident with respect to documents in Part A where it is only the personal details of members of the public that have been redacted. It is also evident in the Applicant's request that documents that have already been provided to him be provided again. In respect of the latter, these requests cannot be seen as promoting these goals as the information has already been made public. 3. In these circumstances, while I have placed some weight on these considerations, it is limited when balancing the public interest for the purposes of s 13 of the GIPA Act. Other information that has been redacted or refused: Public interest considerations against disclosure Part A Documents 1. With respect to the Part A documents (with the exception of Document 67), having reviewed the unredacted version of those documents, I accept that the redactions are to ensure that the identity and personal details of people that have provided information to the Respondent is not revealed. The functions of the Respondent (as well as the NSW Police, the EPA and the NPWS) relies upon this information being given by members of the public and there is a strong public interest in protecting the identity of those that have provided information to an enforcement agency. It is well accepted that the provision of information in those circumstances attracts an expectation of confidentiality: Bailey v Commissioner of Police, NSW Police Force [2023] NSWCATAD 275 at [84]. 2. Consistent with that finding, I accept that the disclosure of the redacted information in these documents could reasonably be expected to reveal an individual's personal information (s 14, clause 3(a)) and contravene an information protection principle under the PIP Act (s 14, clause 3(b); principles 17 and 18). I also accept that revealing the information would reveal the identity of an informant or prejudice the future supply of information (s 14 clause 2(a)). I give these considerations significant weight. 3. With respect to Part A, Document 67 ("Document 2022A" in the RFS Proceedings) I accept that a relevant consideration is that disclosure of the redacted information could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions (s 14, clause 1(f)). However, as explained below, I find that the "agency" for the purposes of this consideration is both the RFS and this Tribunal and the prejudice arises because Document 67 is the subject of a pending decision in this Tribunal. 4. The definition of "agency" is s 4 includes a "court". The meaning of "court" includes a tribunal. Accordingly, for the purposes of considering the considerations as provided in the table at s 14, this Tribunal's functions and any prejudice to them is a relevant consideration. 5. Document 67 is correspondence as between the RFS and the Respondent. The Applicant made the access application of the Respondent on the same day as initiating the RFS Proceedings. An issue is dispute in the RFS Proceedings being access to Document 67. Subsequent to this, the Applicant then expressly requested from the Respondent the very document that had been refused by the RFS and the subject of yet to be determined proceedings in this Tribunal. This conduct had the potential to undermine the decision of the RFS, to undermine and potentially made otiose the RFS Proceedings and make redundant the exercise of this Tribunal's function with respect to those proceedings. The conduct also had the potential to have the Tribunal fall into error as explained below. 6. The prejudice that the access request causes in the context of yet-to-be determined proceedings for the same information is reflected in s 66 of the CAT Act. Section 66 states: 66 Effect of Government Information (Public Access) Act 2009 (1) General rule - Except as provided by this section, nothing in this Act requires or authorises any person or body to disclose information to another person or body if there is an overriding public interest against the disclosure of the information under the Government Information (Public Access) Act 2009. (2) Disclosure to person or body other than Tribunal - The provisions of the Government Information (Public Access) Act 2009 continue to apply to the disclosure of information to any person or body other than to the Tribunal as if this Act had not been enacted. (3) Disclosure to Tribunal - If a provision of this Act requires or authorises any person or body to disclose information to the Tribunal in relation to any proceedings before it and there is an overriding public interest against the disclosure of the information under the Government Information (Public Access) Act 2009 -- (a) the Government Information (Public Access) Act 2009 does not prevent the disclosure of the information to the Tribunal, and (b) the Tribunal is to do all things necessary to ensure that the information is not disclosed to any person other than a member of the Tribunal as constituted for the purpose of the proceedings unless the person or body disclosing the information to the Tribunal consents to the further disclosure. (4) Certificates by Secretary or General Counsel of the Cabinet Office concerning Cabinet information - The Secretary or General Counsel of the Cabinet Office may certify that information is Cabinet information. Any such certificate-- (a) is conclusive of that fact, and (b) authorises any person who would otherwise be required under this Act to lodge a document containing that information with (or disclose the information to) the Tribunal to refuse to lodge the document with (or disclose the information to) the Tribunal. (5) Definitions In this section-- "Cabinet information" means information that is Cabinet information under the Government Information (Public Access) Act 2009. "disclose" has the same meaning as in the Government Information (Public Access) Act 2009. 1. To the extent that it is held in the RFS Proceedings, which were initiated before these proceedings, that there is an overriding public interest against the disclosure of an unredacted version of Document 67, s 66(3) provides that this Tribunal, as constituted for these proceedings, is obligated to ensure it does all things necessary to ensure that the information is not disclosed to any person other than a member of the Tribunal except where there is consent. To do otherwise, would have the Tribunal act in contravention of this provision. 2. In these circumstances, at the very least, disclosure of the redacted information in Document 67 could reasonably be expected to prejudice the effective exercise by this Tribunal of this Tribunal's functions. At worst, the initiation of these proceedings to the extent the Applicant seeks access to Document 67 in the context of the RFS Proceedings might be considered an abuse of process. I otherwise do not make any findings with respect to the substance of the redacted information in Document 67 which is left to be determined in the RFS Proceedings. To the extent that the Applicant is given access to that information by reason of the RFS Proceedings the Applicant's application for access to the same information from the Respondent is redundant as the information would be considered to be within the public domain. To the extent that the Applicant is not given access to that information, this decision has ensured the effectiveness of that finding. 3. In respect of Document 67, I give these considerations significant weight. Part B Documents other than the Privileged Documents. 1. With respect to the Part B Documents for which there is no claim of privilege, the Respondent contended that such documents would either prejudice the effective exercise of the NPWS and the Respondent's functions because it would be prejudicial to those agencies investigations (s14, clause 1(f)) and/or reveal a deliberation or consultation of those agencies that might reasonably prejudice that process (s 14, clause 1(e)). 2. A function of both the Council and the NPWS is the investigation of contraventions which involves the collection and recording of evidence. In this case, the evidence supports that the Respondent and the NPWS are currently involved in investigating contraventions of environmental laws which are on-going. 3. The Respondent submitted, and I accept having reviewed the material, that the release of the information while the investigation is being undertaken could reasonably be expected to prejudice the ability of Council and NPWS to effectively investigate the manner as any person involved in the contravention could take steps to interfere with the investigation. In Ainscough v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 47, in the context of an application for orders under s59 of the Administrative Decisions Review Act, the Commissioner led the following evidence that was accepted by the Tribunal to justify the Commissioner relying on information in the proceedings without disclosing it to the Applicant: Disclosure of the material would allow a picture to emerge showing what matters are known to NSWPF about the activities of the persons of interest known to police and from which inferences could be drawn by the applicant as to what matters are therefore not known to the police. While it is possible that the applicant might suspect or know some of the information held by NSWPF, disclosure of the confidential material could confirm any such suspicions. 1. With respect to s 14 clause 1(e), I also accept that a consideration in the balancing exercise is that disclosure would reveal a deliberation or consultation of those agencies that might reasonably prejudice that process consistent with the decisions of Luxford v NSW Department of Education and Communities [2016] NSWADT 118 and Jenkinson v Department of Education and Communities [2013] NSWADT 280. 2. In Luxford, the disputed information related to the investigation of a complaint of bullying and harassment. The Tribunal decided that the capacity of the respondent to exercise its responsibilities were relevant considerations. The Tribunal accepted that disclosure of the information could be reasonably expected to prejudice the effective exercise of the respondent's functions at [124] and [125]. At [107] of Luxford the Tribunal considered that officers should be able freely to do in written form what they could otherwise do orally, in circumstances where any oral communication would remain confidential. Such written communications relating to decision-making and policy formulation processes ensure that a proper record is maintained of the considerations taken into account. If they were to be released for public scrutiny, officers may in the future feel reluctant to make a written record, to the detriment of these processes and the public record: McKinnon v Department of Treasury [2006] HCA 45. Callinan and Heydon JJ. Stated at paragraph [121]: "121. The second ground, which speaks of jeopardy to candour, and the desirability of written communications, obviously cannot readily be dismissed ..." 1. In Jenkinson, the Tribunal accepted that disclosure of the information in question could reasonably be expected to prejudice the effective exercise by the respondent of its functions, 2. I give these considerations significant weight. Other information that has been redacted or refused: Conclusion 1. Section 5 of the GIPA Act establishes a presumption in favour of disclosure of government information unless there is an overriding public interest against disclosure. Therefore, the requested information must be released unless there is an overriding public interest against disclosure. 2. I accept, for the reasons above, that the considerations against disclosure outweigh or override the public interest in favour of disclosure. The Respondent has overcome the presumption in favour of disclosure. 3. In the final analysis, having considered the evidence and the submissions, including reading the confidential material and having applied the principles in s 15 of the Act, I have concluded that on balance, the considerations against disclosure significantly outweigh those in favour of disclosure. 4. It follows that the Tribunal finds that the Respondent has justified its decisions in relation the access applications. The correct and preferable decision is therefore to affirm the Respondent's decision in accordance with these reasons for decision. Orders 1. The decision the subject of the 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 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 November 2024