Livermore v Tumbarumba Shire Council [2008] NSWADT 125

CITATION: Livermore v Tumbarumba Shire Council [2008] NSWADT 125

DIVISION: General Division

APPLICANT Brent Stephen Livermore PARTIES: RESPONDENT Tumbarumba Shire Council

FILE NUMBER: 073327

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 4 April 2008

DATE OF DECISION: 28 April 2008

BEFORE: Handley R - Judicial Member

CATCHWORDS: Jurisdiction - amendment of documents

MATTER FOR DECISION: Preliminary matter

LEGISLATION CITED : Freedom of Information Act 1989

Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606 Department of Education & Training v Mullett & anor (GD) [2002] NSWADTAP 13 CASES CITED: Department of Social Security v Dyrenfurth (1988) 80 ALR 533 Ferns v NSW Department of Corrective Services [2007] NSWADT 296 Martin v Commissioner of Police [2005] NSWADT 23 Young v Wicks (1986) 13 FCR 89 ZR v Director-General, NSW Department of Education and Training [2008] NSWADT 28

APPLICANT In person REPRESENTATION: RESPONDENT M Rogers, solicitor

ORDERS: The Tribunal has jurisdiction to hear Mr Livermore's application.

REASONS FOR DECISION 1 This matter involves an application by Brent Livermore for a review of a decision of Tumbarumba Shire Council ('the Council') dated 29 August 2007 in relation to Mr Livermore's application for amendment of the Council's records pursuant to the Freedom of Information 1989 ('the FOI Act'). Background 2 Mr Livermore was employed by the Council for a period of eight years until 3 January 2007. By letter dated 22 January 2007, he applied to the Council for access to documents: "The documents sought include: any report to Tumbarumba Shire Council and contained within the Committee of Whole section of the Business Paper and Agenda for the Meeting of Council to be held on 25 January 2007, that in any way refers to the expiration of the contract of Brent Livermore." 3 It appears that the Council responded by supplying Mr Livermore with a copy of a Report (hereafter referred to as 'the Report') to the Committee of the Whole (for the Council meeting held on 25 January 2007), by the General Manager of the Council, Brian Pearson, entitled "Staff Matter", concerning the expiry of Mr Livermore's contract of employment with the Council as Manager of Environmental Services. 4 By letter dated 2 March 2007, Mr Livermore applied to the Council for the amendment of information concerning his personal affairs contained in this Report on the ground that the information has been and may be used by the Council in connection with its administrative functions and contains information that is misleading. Mr Livermore identified seven paragraphs of the Report that he sought to have amended. Mr Pearson replied by letter dated 22 March 2007, advising that the Council, having sought advice from the Office of the New South Wales Ombudsman, was unable to conduct the necessary review of the Report because of perceived conflicts of interest. Mr Pearson suggested as a compromise that Mr Livermore's letter of 2 March 2007 be attached to his employee file to record his recollection of events concerning the cessation of his employment. 5 Mr Livermore responded by letter dated 26 March 2007 refuting the position stated by Mr Pearson, rejecting the proposed compromise, and stating that Mr Pearson's response was: "not within the provisions of the legislation and as such you should now provide the Council with the opportunity to have the matter dealt with in a proper manner, prior to the need to refer the matter to the Ombudsman's Office." 6 Mr Pearson replied on 18 April 2007. It appears that Mr Livermore subsequently complained to the New South Wales Ombudsman about the Council's handling of his application for amendment of the Council's records. As a result, an Investigations Officer of the Ombudsman's Office entered into correspondence with the parties and, on 6 August 2007, made a written suggestion pursuant to section 52A of the FOI Act that the Council review its determination in this matter and make two suggested amendments to the Report. By letter dated 29 August 2007, Mr Pearson notified Mr Livermore that following correspondence with the Ombudsman's Office, he had reviewed the Council's determination in this matter and amended the Council's records (it appears in accordance with the suggested amendments), and had also attached Mr Livermore's correspondence as part of the Council's records. 7 On 4 September 2007, the Investigations Officer notified the parties that following, the acceptance of his suggestion, he had closed his file. He notified Mr Livermore of his right to apply to the Tribunal within 60 days of the date of his letter (section 53 and section 54(b)(i) of the FOI Act). On 15 October 2007, Mr Livermore wrote to the Council's FOI Officer requesting written confirmation that the actions outlined by Mr Pearson were completed on 29 August 2007. 8 On 31 October 2007, Mr Livermore's application for a review was filed in the Tribunal. He stated as the reasons for his application that Mr Pearson's decision of 29 August 2007 "has not addressed the issues raised in my original application for amendment of Council records, as well Mr Pearson has tried to include other matters that were not recommended by or I believe discussed with the Ombudsman's Office". Mr Livermore also noted that he had not received a response to his letter to the Council's FOI Officer dated 15 October 2007. 9 I held a planning meeting with the parties on 11 December 2007 and set a timetable for the exchange of submissions. In submissions filed on 21 February 2008, the Council submitted that the Tribunal does not have jurisdiction to hear Mr Livermore's application because the Report to the Council does not contain information concerning his personal affairs: a person may only apply for an amendment of an agency's records under section 39(a) of the FOI Act "if the document contains information concerning the person's personal affairs". 10 At a second planning meeting on 13 March 2008, I set a timetable for the filing of any further submissions on the issue of the Tribunal's jurisdiction raised by the Council. The parties have agreed that I will decide this preliminary issue on the basis of the parties' written submissions. The Relevant Legislation 11 Section 39(a) of the FOI Act states: "A person to whom access to an agency's document has been given may apply for the amendment of the agency's records: (a) if the document contains information concerning the person's personal affairs, and (b) if the information is available for use by the agency in connection with its administrative functions, and (c) if the information is, in the person's opinion, incomplete, incorrect, out of date or misleading." The Council's Submissions filed on 21 February 2008 12 In its submissions filed on 21 February 2008, the Council submits, amongst other matters, that the Report to the Council does not contain information concerning Mr Livermore's "personal affairs" and he has not therefore met the pre-condition for making an application pursuant to section 39(a) of the FOI Act. The Council contends that the Report sets out Mr Pearson's understanding of the circumstances relating to the cessation of Mr Livermore's employment as Manager of Environmental Services, and relates to Mr Livermore's capacity as an employee of the Council and not to his personal affairs. The Council refers to authorities on the meaning of the term "personal affairs", including Ferns v NSW Department of Corrective Services [2007] NSWADT 296 ('Ferns'), at paragraph 11 to paragraph 12, and ZR v Director-General, NSW Department of Education and Training [2008] NSWADT 28 ('ZR'). The Council submits that the Report: "contains information concerning the conduct and duties of Mr Livermore as a public sector employee of Council and refers to circumstances surrounding the expiration of Mr Livermore's contract of employment, negotiations and discussions of possible further employment contracts of a part-time nature and other issues surrounding the employment duties of Mr Livermore. All of which are matters that are the affairs of the Council and not the personal affairs of Mr Livermore." Mr Livermore's Submissions filed on 6 March 2008 13 In his submissions filed on 6 March 2008, Mr Livermore submits, in relation to the issue of jurisdiction, that the Report does relate to his personal affairs and not just to his capacity as an employee. In support of this contention, he refers to (1) the first paragraph of the Report where it states that it is "his intention to carry out similar type activities on a consultancy basis with other Councils", (2) to the third and fourth paragraphs which deal primarily with contract negotiations for a further contract and do not relate to his capacity as an employee at that time, (3) to the fifth paragraph which refers to his request "due to family and developments with his health", and (4) to references in the remainder of the Report to issues surrounding contract negotiations and to his "exploring avenues in relation to carrying out consulting work with Local Government Councils in the future". 14 With regard to the authorities cited by the Council, Mr Livermore refers to Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606 ('Perrin's Case'), where Kirby P held that the words "personal affairs" in the context of the FOI Act means "the composite collection of activities personal to the individual concerned". Mr Livermore also refers to Young v Wicks (1986) 13 FCR 85, where Beaumont J said that the term "personal affairs" refers to matters of private concern to a person. Mr Livermore noted that in ZR, at paragraph 11, the Tribunal stated that section 39(a) does not require that all the information contained in a document concerns an applicant's personal affairs, and is satisfied if the document contains some information that can be so described. The Council's Further Submissions filed on 27 March 2008 15 In its further submissions, the Council comments on the four examples of alleged references to his personal affairs in the Report cited by Mr Livermore and referred to in paragraph 13, above, and submits that these do not constitute his personal affairs. Rather, they relate to his professional life and to his conduct and duties as a public sector employee. The Council notes that the first example is an observation taken directly from the letter sent by Mr Livermore to Mr Pearson dated 8 January 2007. Mr Livermore had released this information to staff and others in the local community prior to the preparation of the Report. With regard to the second example, the Council contends that this refers only to contractual negotiations and the professional relationship between the parties. The third example is a direct paraphrase from Mr Livermore's memorandum dated 6 December 2006 to Mr Pearson about the expiry of his contract of employment, and discloses nothing not already known to staff and other members of the community. The fourth example is a repetition of the statement in the first example. 16 The Council submits that for relevant information to constitute personal affairs it must have the necessary level of confidence and must not be something that is in the public domain. Mr Livermore had revealed his health concerns to various staff and others as early as November 2006. Upon release of this information to other individuals and into the public domain, he lost the private integrity of that information. Similarly, his intention to operate, as a consultant was known within the Tumbarumba community and beyond prior to preparation of the Report. The generalised statements concerning Mr Livermore in the Report were necessary to put the Report in context and confirm the reasons for the cessation of his employment. 17 The Council submits that the word 'personal' in 'personal affairs' should be given its ordinary meaning, and contends that the Chambers Combined Dictionary meaning of "relating to one's private concerns: details of private life" and Thesaurus reference to "private, confidential, intimate" should be adopted. Mr Livermore's Submissions filed on 2 April 2008 18 Mr Livermore noted that Council's consideration of the issue of his employment was in the 'closed' part of the meeting. The Council's submissions suggest that the information in the Report was in the public domain and that the report should have been considered in 'open' session. Mr Livermore strongly disagreed with the Council's contention that issues concerning his health and future work activities were in the public domain and no longer "personal affairs". He said that, "[t]he issues relating to my health were advised to a few colleagues in confidence as a courtesy, as the decisions I was making would have both a direct and indirect affect on some people in the organisation." When he informed Mr Pearson of his health concerns in about mid-November 2007, Mr Livermore requested that this remain confidential. Similarly, his future work decisions were made known to a few close work and personal acquaintances. He made no announcements in any public forum. Discussion 19 The preliminary issue to be determined is whether the Tribunal has jurisdiction to hear Mr Livermore's application. The Council contends that the Report does not contain information concerning his personal affairs: a person may only apply for an amendment of an agency's records under section 39(a) of the FOI Act "if the document contains information concerning the person's personal affairs". 20 A leading authority on what constitutes the "personal affairs" of a person is the New South Wales Court of Appeal decision Perrin's case where, at 625, Kirby P described "personal affairs" as meaning "the composite collection of activities personal to the individual concerned". In that case, he said that "the disclosure of the names of police officers and employees involved in the preparation of reports within the New South Wales police" could not be classified as disclosing information concerning their personal affairs. Perrin's case is discussed in Ferns at paragraph 11 to paragraph 13, and in ZR at paragraph 9. In ZR, at paragraph 11, the Tribunal noted: "Section 39(a) does not require that all the information contained in a document concern the applicant's "personal affairs", and is satisfied if the document contains some information that can be so described. I am satisfied that parts of the documents contain information relating to the applicant's "personal affairs", and section 39(a) is met." 21 In Young v Wicks (1986) 13 FCR 89, at paragraph 17, Beaumont J said that the phrase "personal affairs" was "intended to have its ordinary dictionary meaning, that is to say, to refer to matters of private concern to an individual". However, this does not mean that the information must be secret or confidential. Even if the information is widely known, this does not affect its status as information concerning a person's personal affairs: Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 (' Colakovski '), at paragraph 24 to paragraph 25; Martin v Commissioner of Police [2005] NSWADT 23, at paragraph 31. 22 Information relating to a person's health and employment has been held to amount to information relating to "personal affairs: see, for example, Department of Social Security v Dyrenfurth (1988) 80 ALR 533. However, in Department of Education & Training v Mullett & anor (GD) [2002] NSWADTAP 13 (see, especially paragraph 49), the Appeal Panel held that disclosure of information of an "official character" contained in an audit report would not unreasonably intrude on a person's personal affairs. 23 In the present case, the relevant document Mr Livermore has applied to have amended is the Report to Tumbarumba Shire Council made by Mr Pearson entitled "Staff Matter". This refers to the expiry of Mr Livermore's contract of employment as the Council's Manager of Environmental Services and to discussions between Mr Pearson and Mr Livermore over his continuing employment, plans for the future and leave entitlements. 24 In my view, the fact of a person's employment in a relatively high level governmental position such as the Manager of Environmental Services with a Council and the term of the person's employment is information of an "official character". However, details of remuneration and leave entitlements, and of discussions concerning the renewal of the person's contract beyond the mere fact that such discussions had taken place, including references to the person's health and future plans, are matters of private concern. The fact that Mr Livermore may have discussed such matters with the other staff in the Council and with others in the community, does not affect the status of the information as that concerning his personal affairs, as was recognised by the Full Federal Court in Colakovski. 25 Thus, I am satisfied that the report does contain information concerning Mr Livermore's personal affairs and, consequently, the Tribunal has jurisdiction to hear his application for review of the decision of 29 August 2007 made pursuant to section 53(1) of the FOI Act. Order The Tribunal has jurisdiction to hear Mr Livermore's application.