Gilling -v- General Manager, Hawkesbury City Council [1999] NSWADT 94

CITATION: Gilling -v- General Manager, Hawkesbury City Council [1999] NSWADT 94

DIVISION: General

APPLICANT: Glenys Gilling

RESPONDENT: General Manager, Hawkesbury City Council

FILE NUMBER: 993165

HEARING DATES: 09/08/1999

SUBMISSIONS CLOSED: 09/08/1999

DATE OF DECISION: 8 October 1999

G Fleming - Judicial Member BEFORE:

PRIMARY LEGISLATION: Freedom of Information Act 1989

APPLICATION: Review of decision to refuse access to documents (or part thereof) -

MATTER FOR DECISION: Principal Matter

Applicant: In person REPRESENTATION: Respondent: J Reilly of Abbott Tout Solicitors

ORDERS: 1. The decision of the Respondent is set aside. 2. The Tribunal substitutes a decision to grant the Applicant access to the File Note of the General Manager, Hawkesbury City Council, dated 1 October 1998, and all attachments in full.

THE APPLICATION 1 This is an application by Glenys Gilling ('the Applicant') for review of a decision by the General Manager, Hawkesbury City Council ('the Respondent'), to refuse a request made pursuant to the Freedom of Information Act 1989 ('the FOI Act'), for full access to certain documents held by the Respondent. 2 The date on which the original application was made to the Respondent is not clear from the documents which have been provided to the Tribunal however a decision refusing to grant access to the documents in full was made on 12 May 1999. The decision was subject to internal review and on 28 May 1999 the decision was affirmed. 3 The documents in dispute in this matter were originally; (1) the file note of the General Manager dated 1 October 1998 in which the name of a person was deleted, (2) an attachment to the file note being a letter from a person to the Respondent dated 1 October 1998 and (3) six pages of attachments to that letter. In the course of the proceedings before the Tribunal the documents in dispute were narrowed to (1) above only in relation to the deletion of a name in that document, and (2) above only in relation to the name and address of the author of the letter. The attachments to the letter were released in full and the letter itself was released with the name and address of the author deleted. 4 The Respondent has claimed that the part of the documents which have been withheld are subject to two exemptions in the FOI Act, namely clause 6 and clause 13 of Schedule 1. THE RELEVANT LAW 5 The Tribunal has jurisdiction to hear this matter pursuant to section 53 of the FOI Act and section 55 of the Administrative Decisions Tribunal Act 1997. 6 The objects of the FOI Act are set out in section 5(1)(a) which states as follows: The objects of this Act are to extend, as far as possible, the rights of the public: (a) to obtain access to information held by the Government; and (b) to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect out of date or misleading. 7 An agency may refuse access to a document if it is an "exempt document" (FOI Act s 25(1)(a)). Pursuant to section 6(1) of the FOI Act an "exempt document" includes a document referred to in Schedule 1. Clause 6(1) of Schedule 1 provides as follows: A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased). 8 Mrs Gilling and the Hawkesbury City Council have previously been in dispute over access to documents under the FOI Act. The Tribunal decided these matters in the case of Gilling v Hawkesbury City Council [1999] NSWADT 43 at [33]. In that case the Deputy President made the following relevant observations; The purpose of the personal affairs exemption is to allow the public interest in personal privacy to be balanced against the public interest in people having open access to information held by government. Privacy is an important right enshrined in various international human rights instruments including the International Covenant on Civil and Political Rights, art 17. Access to information held by government, reflected in the principles of openness, accountability and responsibility of The purpose of the personal affairs exemption is to allow the public interest in personal privacy to be balanced against the public interest in people having open access to information held by government. Privacy is an important right enshrined in various international human rights instruments including the International Covenant on Civil and Political Rights, art 17. Access to information held by government, reflected in the principles of openness, accountability and responsibility of government, is also a fundamental principle which the FOI Act seeks to enshrine. 9 Section 31 requires an agency to consult with any person whose personal affairs may be disclosed by providing access to any document. That section provides as follows: (1)This section applies to a document that contains information concerning the personal affairs of any person (whether living or deceased). (2) An agency shall not give access to a document to which this section applies (otherwise than to the person concerned) unless the agency has taken such steps as are reasonably practicable to obtain the views of the person concerned as to whether or not the document is an exempt document by virtue of clause 6 of Schedule 1. 10 Clause 13 of Schedule 1 of the FOI Act is the second exemption claimed by the Respondent and provides as follows; A document is an exempt document: (b) if it contains matter the disclosure of which: (i) would otherwise disclose information obtained in confidence; and (ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency; and (iii) would, on balance, be contrary to the public interest. EVIDENCE 11 The Tribunal had before it the documents which were the subject of the dispute, copies of the primary and internal review decisions and written submissions lodged by the Applicant. A hearing was held on 8 September 1999 at which Geoff Banting, an officer of the Respondent gave evidence. Mrs Gilling attended and chose not to give oral evidence. She was assisted by her friend, Mr Hooker, who presented submissions to the Tribunal. 12 At the hearing both parties agreed that the evidence which was set out in the decision of Deputy President Hennessy of 22 June 1999 was an accurate account of the context in which this current application arose and, to the extent to which it was relevant to the current application, could be considered as evidence before the Tribunal in this matter. That 'context' is that in 1998 a number of persons had lodged formal objections with Council concerning proposed development of Mrs Gilling's property and had later stated that they felt harassed and intimidated by Mrs Gilling because of their objections. Mrs Gilling denied that she harassed or intimidated any persons and stated that she sought information on the identity of objectors in order that she might discuss their objections with them and put arguments in relation to the objections to the Council. 13 The solicitor for the Respondent submitted that the exemptions contained in Clause 6 and Clause 13 of Schedule 1 are claimed in relation to disclosure of the name and address of the person who wrote the letter to Council which appears on that letter and in the file note of the General Manager. 14 The Tribunal heard evidence in support of the Respondents position from Mr Banting who is employed by the Respondent as the Director of Community and Corporate Services. He is the officer who conducted internal review of the decision under appeal. He told the Tribunal that the decision to refuse access was made only on the ground of Clause 13 of Schedule 1 of the FOI Act. 15 Mr Banting told the Tribunal that Mrs Gilling had a number of matters under consideration by Council at different times. However the documents in dispute did not relate to a particular development application before Council- which was the case in the previous matter before the Tribunal. The documents in dispute concern a complaint to the Council by a ratepayer. During the hearing Mr Banting disclosed that Council had a 'Complaints Policy' which had been adopted as of 9 March 1999. A copy of that policy was provided. The complaints policy states, among other things, that the identity of a complainant will not be revealed, however, in the 'interest of resolving issues, the substance or nature of the complaint against an individual or organisation' may be provided if 'it is considered appropriate'. The complaints policy further states that 'Complaints made under Freedom of Information legislation will be dealt with as per the legislation'. 16 The complaint, which concerned Mrs Gilling, was not initially dealt with pursuant to the complaints policy because of Mrs Gilling's application for access to the documents under the FOI Act. Ultimately however the substance of the complaint has been disclosed to the Applicant, minus the identity and address of the complainant. The Applicant told the Tribunal that she now wanted the Council to remove the documents from the Council file. 17 Mr Banting told the Tribunal that the Respondent was concerned that the release of the documents in full would lead to the identification of the complainant and the disclosure of the complainant's address. The author had been consulted concerning disclosure, as required by section 31 of the FOI Act, and had affirmed the express wish that it remain confidential. Mr Banting told the Tribunal that the Respondent was concerned that disclosure of the personal details of the complainant may lead to ratepayers being reluctant to come forward and identify themselves in complaints to Council. FINDINGS Claimed Exemption Under Clause 13 of Schedule 1 –"Documents Containing Confidential Material" 18 The Tribunal has first considered the Respondent's claim to the exemption in Clause 13 of Schedule 1 of the FOI Act. The Respondent has claimed that to disclose the name and address of the author of the letter of complaint would disclose information 'obtained in confidence' and would 'reasonably be expected to prejudice the future supply of such information' to the Council and would be 'contrary to the public interest'. The Respondent cites the wishes of the author for the information to remain confidential and the effect disclosure may have on dissuading other persons from providing information to Council. 19 Clause 13 refers to information 'obtained' in confidence. There is no evidence to suggest that the letter in question was 'obtained' by the Respondent in the sense that the Respondent requested or sought the information ( as compared for example to information solicited by Council or other agencies in the course of investigations or legal proceedings). However the Macquarie Dictionary, Third Edition, 1997 defines 'obtain/ed' as, among other things, 'to come into possession of', and in this sense the information was 'obtained' by the Respondent. The Respondent told the Tribunal that the letter was personally given to the General Manager at a meeting with certain residents who wished to complain about Mrs Gilling. The letter itself, which has now been released in substance to the Applicant, states that the author feels 'compelled to advise Council' of certain matters. The General Managers file note evidences that the information was obtained 'in confidence'. Clause 13(b) (i) is satisfied. 20 Disclosure, in Clause 13(b)(ii), must also reasonably be expected to prejudice the future supply of 'such' information to the Council. The Respondent has submitted that this generally includes future complaints to Council. The 'matter' for which exemption is claimed is the name and address of the complainant. The issue is whether disclosure could be reasonably expected to prejudice the future supply of the names and addresses of complainants, to the Respondent. The Tribunal notes that this particular information was provided in a context of ongoing conflict and community division over Mrs Gilling's specific development proposals for her property. 21 The Respondent referred the Tribunal to the cases of Re Maher and the Attorney General's Department (No2) (1986) 4 AAR266 and Re Saxon (Unreported, Administrative Appeals Tribunal (C'th) 19 June 1995. In Re Maher the Commonwealth Administrative Appeals Tribunal found that 'prejudice' should be given its common, dictionary, meaning namely 'to cause detriment or disadvantage'. In Re Saxon it was held that a finding of prejudice requires a judgement as to whether persons who might supply information to the agency concerned might not do so, if that information is to be disclosed. 22 The Respondent has not provided any evidence, other than the views of Mr Banting, to substantiate its claim of 'prejudice' should the information be disclosed. It has not, for example, provided details of the number of complaints received by the Council, the extent to which these complainants are anonymous or wish their name and address to remain confidential, nor why the disclosure in this instance would have a wider impact. However, in the context of this application the Tribunal accepts that it might reasonably be expected that the provision of the name and address of future complainants, specifically in relation to Mrs Gilling, might be discouraged. Although the Land and Environment Court has now approved the development proposals that were the context of the complaint, it appears that Mrs Gilling regularly has matters before the Council. 23 The Tribunal is of the view that, if it could reasonably be expected that disclosure would result in fewer ratepayers of the Respondent Council being prepared, in the future, to supply their names and addresses when lodging complaints with Council then this would amount to 'prejudice' to the Council (Re Maher and Re Saxon above). On the limited evidence before the Tribunal it is accepted that, on balance, the disclosures of the name and address of the complainant would dissuade other persons from supplying their name and address to Council in the context of a complaint. Disclosure may thus be said to 'prejudice' the supply of this type of information to the Council in the future. Clause 13(b)(ii) is satisfied. 24 The Respondent claims that disclosure is not in the public interest. In determining the public interest regard must be had to section 59A of the FOI Act, which provides that certain matters are irrelevant, such as, the fact that the release of the documents may cause embarrassment to the Government. Matters that are relevant to the 'public interest' have been the subject of much consideration in the caselaw and a useful summary may be found in the Annotated Freedom of Information Act NSW 1997 by Anne Cossins. The Tribunal must consider the purpose and object of the FOI Act and the presumption in favour of disclosure (See Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606). Having found that Clause 13(b)(i) and (ii) have been made out the Tribunal has considered whether disclosure would 'on balance' be contrary to the public interest. 25 The determination of this question involves weighing up of factors for and against disclosure in the context of the presumption favouring disclosure. Whether or not disclosure is contrary to the public interest will be a matter for determination in the context of the facts of each case. It is for the Respondent to establish that disclosure would be contrary to the public interest. The view of the person to be identified, the nature and extent of the information involved, the circumstances in which the information was obtained and any prejudice to be suffered by them if the information is disclosed are relevant to this issue. Also relevant is whether disclosure is consistent with the public interest purposes of the FOI Act. 26 The Tribunal notes the difference in the context of this application and Mrs Gilling's previous FOI matter in this Tribunal, Gilling v Hawkesbury City Council [1999] NSWADT 43. This application is not linked to the formal process of the approval of development applications by Council and the associated avenues by which negotiation and discussion can occur between developers and objectors. This application concerns a complaint to Council. The Tribunal accepts Mr Banting's evidence that there are many such complaints and it is for this reason that a 'complaints policy' has been developed. This policy consists of three short paragraphs and distinguishes between objections lodged with Council in relation to development applications, where confidentiality will not be available (and where the Council has concurrent obligations under the Local Government Act 1993), and 'routine' complaints, where the confidentiality of the complainant will be preserved. It also distinguishes FOI Act matters. 27 The nature of the information to be disclosed is the name and address of the complainant. While this is 'personal information' (as discussed later) it is not information which is highly sensitive to the complainant. It is not, for example, information that concerns their private financial, medical or domestic affairs. The nature of the information in this case is such that it is common for that type of information, to be available to the public. Names and addresses are found in the telephone book. The Tribunal is of the view that the nature of the information in this case is not of a kind which would favour non-disclosure in the public interest. 28 The Tribunal accepts the evidence of Mr Banting that the author wishes to remain anonymous. The File Note of the General Manager dated 1 October 1998 clearly sets out the circumstances in which the information was obtained. A number of residents had, through their local Councillor, requested a meeting with the General Manager 'regarding alleged harassment by Mrs Gilling following release of their names and addresses on documents where they had made representations to Council about development matters and their concern that the intensity was increasing'. This memo further, and relevantly as to the context of this application, states that 'Four residents and Councillor Paine were at the meeting where I indicated that it was Council's Policy to advise the name of persons that made representations about developments and that in the past ten years this had only been a problem on one occasion where concern for individual safety had been expressed. I also indicated that it had been the Council's Policy for more than the same number of years to hold all meetings, including Committee Meetings, in the open." The Memo then details the concerns of the complainants for their safety and notes acceptance of the attached letter. 29 The Respondent claims that the complainant's fears of harassment and threats to safety are genuine and realistic. The Tribunal notes that these matters were canvassed extensively in the previous decision of Deputy President Hennessy (the record of which both parties accept as accurately setting out the evidence). Mrs Gilling has stated that she does not intend to approach persons who have complained about her to the Council. There is no evidence before this Tribunal to suggest that Mrs Gilling will harass or intimidate the author of this complaint if that person's name and address is disclosed. Mrs Gilling told the Tribunal that the outcome she most desires is for the complaint to be removed from the Council file and no further action to be taken. The Tribunal notes the General Managers comments, set out above, which indicate that it is rare for a person who had been identified to cause concerns for individual safety. It is also clear from this Memo that Council favours accountability and openness in its business. The Tribunal does not accept that harassment or intimidation would result to the author of the complaint if the information is disclosed. 30 The Respondent claims that the release of this information would affect the willingness of other complainants to approach council on a confidential basis. This has been referred to in relation to 'prejudice' above and the Tribunal accepts that, on balance, this will result. However whether this is detrimental to the 'public interest is a different issue. Is it in the 'public interest' that local government authorities keep confidential the name and address of complainants? Clearly it is important that Council be open to hearing concerns from ratepayers. At the same time, keeping the name and address of complainants confidential the Council could be seen to be encouraging complaints which may ultimately be malicious or vexatious. The full and frank disclosure of the details of complaints made to Council may be said to both discourage vexatious complaints and facilitate the resolution of genuine complaints by allowing the Council to properly investigate the complaint and to bring the parties together openly to resolve it. The public interest in non-disclosure will be greater in certain circumstances, for example, where there is a real risk to the safety of persons who have complained. However the Tribunal does not accept that this is the case here and the File Note of the General Manager suggests that it is rarely the case. 31 Information provided to the Council in the form of complaints is different to that provided in the context of a law enforcement agency or in the context of the Council's other regulatory roles. A complaint on its own does not affect the determination of any rights or entitlements nor, in this case, was it relevant to any decision of the Council that was pending. However the fact that a complaint has been lodged and remains on the Council's files is of concern to Mrs Gilling. Clearly where a person is the subject of a complaint to Council that person might reasonably be concerned that there is a risk of an unfavourable impression being formed about them. This concern extends to the risk that this unfavourable impression may influence decisions of Council in relation to that persons future rights or entitlements. It may be precisely the name and address of the complainant which is the key to a person responding to allegations made in a complaint. The complainant may, for example, be a business rival or a person with whom there has been a longstanding dispute as neighbours. 32 The Tribunal has also taken into account the fact that this information was provided some twelve months ago and at the time when Mrs Gilling was in heated dispute with certain other residents concerning her development application. 33 The Tribunal is of the view that, in this case, disclosure of the name of the complainant cited in the General Manager's file note and the name and address appearing on the letter of complaint is not, on balance, contrary to the public interest. Thus Clause 13 (b) (iii) is not made out. Claimed Exemption Under Clause 6(1) of Schedule 1 –"Documents Affecting Personal Affairs" 34 The Tribunal turns now to the exemption for documents affecting personal affairs claimed pursuant to Clause 6 of Schedule 1 of the FOI Act. The determination of this exemption is a two step process. Firstly the matter to be exempted from disclosure must concern the 'personal affairs' of a person. Secondly, disclosure must be 'unreasonable'. 35 The Tribunal refers to the decision of Deputy President Hennessy in Gilling v Hawkesbury City Council [1999] NSWADT 43 in relation to a discussion of the authorities on the determination of what constitutes 'personal affairs'. This is not a case where the name and address of the person is associated with their employment or the performance of any public duty. The name and address of the complainant was provided in the context of a meeting with the Council to discuss resident concerns. This must be understood in the context of a small community where development matters and the role of Council have been highly contentious. The Tribunal finds that the name and address of the complainant is information concerning that persons 'personal affairs'. 36 The next question is whether disclosure would be 'unreasonable'. The test of 'unreasonableness' concerns a weighing up of the public interest factors outlined above and is a question of 'fact and degree' in each case (Re Colakovski above). The contents of the letter of complaint to Council, which has now been disclosed, concerns allegations that Mrs Gilling was responsible for a chain of events which included harassment and intimidation of local residents who objected to her development application. The Tribunal accepts that disclosure of the information, if it is granted, would not be to Mrs Gilling only but would be to the 'world at large' and this will be relevant to a consideration of reasonableness (Re Colakovski (1991) 29 FCR 429). Identification of persons who complain, or formally object, to Council about development projects is at the heart of the complainants concerns. The Tribunal accepts that this is a genuine concern of the complainant but is of the view that this is not sufficient, on balance, to override other factors (outlined above) which favour disclosure as 'reasonable'. The Tribunal accepts that Mrs Gillings purpose in seeking disclosure of the name and address of the complainant is to better understand the complaint and to be able to respond to it. This is not an unreasonable purpose. 37 The disclosure of the information is consistent with the objects of the FOI Act in terms of openness in government in its dealings with the ordinary citizens. The Respondent submitted to the Tribunal that it is committed to these objectives. 38 The Tribunal has weighed these matters and is of the view that disclosure of the name and address of the complainant is not 'unreasonable' in the context of this particular case. The Tribunal therefore finds that Clause 6 is not made out. In this case this will result in the disclosure of documents requested in full. DECISION 39 The Tribunal sets aside the decision of Hawkesbury City Council to refuse the Applicant access in full to the File Note of the General Manager dated 1 October 1998 and the letter to Council dated 1 October 1998 and attachments. The Tribunal substitutes a decision to grant access to the File Note of the General Manager of Hawkesbury City Council dated 1 October 1998 and to the attached letter in full.