Gulliver -v- General Manager, Maitland City Council [1999] NSWADT 67

CITATION: Gulliver -v- General Manager, Maitland City Council [1999] NSWADT 67

DIVISION: General

APPLICANT: Robert Gulliver

RESPONDENT: General Manager, Maitland City Council

FILE NUMBER: 993016

HEARING DATES: 08/09/1999

SUBMISSIONS CLOSED: 08/09/1999

DATE OF DECISION: 9 August 1999

N Hennessy - Deputy President 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: George Williams, Thompson Norrie, solicitors

ORDERS: 1. The decisions of the respondent in relation to access to documents requested by the applicant on 19 October 1998 and 1 April 1999 are affirmed. 2. No order as to costs.

Ex-Tempore Decision Background 1 The applicant, Mr Gulliver, made an application under the Freedom of Information Act 1989 (the Act) to the Maitland City Council on 19 October 1998. The application requested access to the following documents: Submission to Commissioner Maitland Public Inquiry signed by David Evans and dated 11th September 1997. Documents are to include full details of legal costs, calculation of average salary costs of employees and calculation of person days/week (720 hrs) with all records to council, staff, solicitors and other agencies. 2 The Submission referred to in the application concerned how much the council had spent in dealing with Mr Gulliver's inquiries. That document itemised $2,967 in legal costs and $24,204 in salary costs. 3 A statement from Ms Catherine Hurst, the Public Officer of Maitland City Council, provides details of the documents provided to Mr Gulliver in relation to his FOI application and a subsequent application dated 1 April 1999. The second application sought access to Calculation of 2 person days/wk, calculation of average salary costs of employees and all documents in possession of Council relating to solicitors costs of $2,967 comprising Inv. 75683, 775343, 80266 and 83005 from Sparke Helmore and all contents of File RE: Gulliver perused on 30 January 1996" by Sparke Helmore and originally reported in Public Enquiry of date 11/9/97." 4 Some documents were provided formally in response to the applications and others were provided informally after further discussion with the applicant. 5 A statement from David Evans, General Manager of Maitland Council, states that he conducted an internal review of Ms Hurst's decision concerning the applicant's 19 October FOI application. The internal review affirmed the original decision. In particular, Mr Evans stated that "I have caused investigations and inquiries to be made and am satisfied that no further documents relating to the Application for Access of 19 October 1998 or the Application for Internal Review of 22 December 1998 can be identified in the council's records." 6 On 12 January 1999 Mr Gulliver lodged an application with the Tribunal for review of this decision. Issues and legislation 7 The two main issues in these proceedings were firstly whether the respondent had documents relating to the application which they were not producing and whether certain documents came within the scope of the application. 8 Under s 16 of the FOI Act a person has a legally enforceable right to be given access to an agency's documents in accordance with the Act. Under s 17 the application must contain "such information as is reasonably necessary to enable the document to be identified. In addition "an agency shall not refuse to accept an application merely because it does not contain sufficient information to enable the document to which it relates to be identified without first taking such steps as are reasonably practicable to assist the applicant to provide such information." Evidence and submissions 9 Mr Gulliver provided a statement to the Tribunal setting out his arguments. The relevant parts of that statement were dealt with in turn at the hearing. 10 Paragraph 11 of the statement said that: I have been supplied with a letter dated 8th March 1996. No documents supporting this letter have been supplied. 11 The letter of the 8 March 1996 was written by the then General Manager to Mr Gulliver and set out the procedures which would apply in future in relation to the contact that Mr Gulliver would have with council staff. The documents identified at the hearing by Mr Gulliver as "supporting this letter" were any evidence of how the amount of staff time in dealing with his inquiries had been calculated. 12 Mr Gulliver accepted the written statements from the respondent's officers that council can find no further records of how the calculations were made. 13 Paragraph 12 of the applicant's statement said that: There are no specific documents supplied to me in respect to the diary sheets totalling 29.75 hours. 14 Again, Mr Gulliver accepted the written statements from the respondent's officers that council can find no further records of how these calculations were made. 15 In paragraphs 13 to 17 of his statement the applicant identified documents such as orders, faxes, and a record of conversation some of which relate to a proposed defamation action against him. Findings of fact and application of law 16 The respondent provided evidence, which the applicant accepted, that they did not have any further documents coming within the scope of the application. Even if the applicant had not accepted the respondent's evidence, the Tribunal has no power to order a search of the respondent's records. 17 The applicant's 19 October application under the FOI Act refers to legal costs and various calculations "with all records to council, staff, solicitors and other agencies." My reading of his application is that the "records" referred to are those relating to the legal costs or calculations. When Mr Gulliver received the solicitor's bill of costs in response to his application, he noted that various faxes, correspondence, phone calls etc were referred to in those bills of cost. He wanted access to some of these documents which may have been on the council's legal file. 18 The documents mentioned in the bills of cost do not fall within the scope of his application. Records relating to legal costs do not include the contents of the file to which those costs relate. Mr Gulliver would need to make a separate application for access to the contents of the legal file. 19 Mr Gulliver also mentioned in his statement that "there have not been any details of the requisite orders given by council or any information supplied under these invoices from the legal advisers who have raised these invoices." In my view, records relating to legal costs do not include orders given by council or any information supplied under these invoices from the legal advisers. What the applicant has asked for are full details of legal costs. These documents have been provided. 20 The applicant said in his statement that: "A letter dated 16 October 1995 from Sparke Helmore on behalf of Maitland City Council to me states 'We have considered a record of conversation you had with a member of council's staff at the counter of the Development and Environmental Services division at 2.30 pm on 12 October 1995.'" The applicant submitted that this "record of conversation" has not been provided. 21 The letter of 16 October 1995 accused Mr Gulliver of making untrue and defamatory statements in relation to Mr Evans, the General Manager. Mr Williams, solicitor for the respondent, indicated that his instructions were that the council could not find any such record. Furthermore, a document fitting that description would not fall within the scope of Mr Gulliver's application. It does not relate to the amount of legal costs or the calculation of any of the figures mentioned in his application. 22 For these reasons I affirm the respondent's decisions in relation to access to documents requested by Mr Gulliver in his FOI applications dated 19 October 1998 and 1 April 1999. 23 At the beginning of the hearing, as Mr Gulliver was unrepresented, I asked both parties whether they were aware of the impact of s 126 of the ADT Act which makes it an offence to publish or broadcast the names of persons involved in the proceedings. Mr Gulliver indicated that he sought the Tribunal's consent to the publication of the names. The respondent did not seek the Tribunal's consent to publication and argued that the Tribunal could not give blanket consent to publish or broadcast the names of any person involved in any proceeding before the Tribunal. 24 I rejected this submission from the respondent. It is not the intention of the legislation to require each and every person or media organisation to separately apply for consent under s 126 in order to avoid the penalties provided for in that section. If the Tribunal is persuaded that consent should be granted in general terms then it has the power to do so. Naturally it would also be open to the Tribunal to confine its consent to a specific person or organisation. 25 As Judicial member, Matthew Smith noted in Lloyd -v- TCN Channel Nine Pty Ltd and Another [1999] NSWADTAP 3 the Tribunal accepts that: " . . . publicity of the identities of parties, witnesses and others involved in Tribunal proceedings may cause harm to those persons, and is designed to protect them from that harm. Its protective effect arises regardless of whether this assists or detracts from the interests of the administration of justice by the Tribunal, either in the particular case or generally. However, it confers on the Tribunal a power to lift the protection. 26 Section 75 of the ADT Act is also relevant. That section provides that the proceedings of the Tribunal shall be conducted in public unless a suppression order is made under subsection (2). Section 75 reflects the usual position that hearings are open to the public. As the Appeal Panel pointed out in Lloyd -v- TCN Channel Nine Pty Ltd and Another [1999] NSWADTAP 3 [138] ". . . there is no necessary inconsistency or conflict between the two provisions. In their terms, s 75(1) requires hearings to be open to all members of public, but s 126(1) prevents broadcast publication of anything happening at the hearing which would identify a person involved. However, this point merely emphasises that by enacting s 126 the legislature has significantly modified for this Tribunal's proceedings the effect of the principles in relation to the making of non-publication orders which are applied in the courts. 27 Judicial member Matthew Smith went on to say in that case that: The legal consequences of this for the proper exercise of the discretion in s 126 (1) to consent to a publication include, in my opinion, that: · the privacy interests protected by the criminal offence provide the starting point for assessing the competing considerations when deciding whether to give a consent, · in any proceeding in which consent is sought it is essential to examine the likely publication and the harm which may result to the particular individuals concerned, so as to decide whether a dispensation from the statutory protection would be justified, and · a decision on giving consent cannot be arrived at by application of the common law principles of open justice which give no protection to privacy, although a public interest in publication may, in appropriate circumstances, be given weight as a consideration competing with privacy values. (Lloyd -v- TCN Channel Nine Pty Ltd and Another [1999] NSWADTAP 3 [144]) 28 Applying these principles to the present case, neither party identified any privacy interests which would justify non-publication of names. In particular, the applicant, who sought access to files involving information about himself, did not have any privacy concerns. Publication in the circumstances of this case would not be likely to harm any person and is likely to promote a better understanding in the community of the Tribunal's processes. 29 For these reasons, consent was granted pursuant to s 126. 30 The respondent made an application for costs under s 88 of the Administrative Decisions Tribunal Act 1997 arguing that there were "special circumstances" warranting an award of costs. The circumstances allegedly included the fact that the respondent had been provided with all the documents in the council's possession in response to the applicant's applications under the FOI Act and that the respondent had written to the applicant requesting that he withdraw his application to the Tribunal. 31 The applicant is not represented and has brought these proceedings in good faith. He had no legal advice about the prospects of success of his application. In these circumstances he should not be liable for costs. However, in view of the considerable costs the respondent has had to bear, I did urge the applicant to seek legal advice, which he may be able to obtain free of charge through a community legal centre, before making further applications to the Tribunal.