CITATION: Waite v Hornsby Shire Council [2009] NSWADT 117 DIVISION: General Division APPLICANT Peter Andrew Waite PARTIES: RESPONDENT Hornsby Shire Council FILE NUMBER: 083261 HEARING DATES: 10 December 2008 SUBMISSIONS CLOSED: 10 December 2008 DATE OF DECISION: 22 May 2009 BEFORE: Higgins S - Judicial Member CATCHWORDS: Freedom of Information – request for amendment of documents – where the information sought to be amended by applicant was information concerning his personal affairs LEGISLATION CITED : Freedom of Information Act 1982 (Cth) Freedom of Information Act 1989 Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606 (Perrin's case) Department of Social Security v Dyrenfurth (1988) 80 ALR 533 Morgan v Director-General, Department of Education and Training [2000] NSWADTAP 3 CASES CITED: Morgan v Director-General, Department of Education and Training [1999] NSWADT 91 Re Terrence Corbett and Australia Federal Police [1986] AATA143 (30 May 1986) Re WF Toomer and Department of Primary Industries and Energy (1990) 20 ALD 275; [1990] AATA 85Z R v Director General, New South Wales Department of Education and Training [2008] NSWADT 28 APPLICANT J Johnson, barrister REPRESENTATION: RESPONDENT I Woodward, solicitor ORDERS: By consent the decision of the Council the subject of review is set aside and in substitution thereof a decision that the third and final paragraphs of the Memorandum be struck through with an annotation in the terms of the agreement of the parties, dated 10 December 2008, being added. REASONS FOR DECISION 1 The applicant, Mr Waite, has applied to the Tribunal for review of a decision of the respondent, Hornsby Shire Council ('the Council'), to refuse to amend an internal Council Memorandum, dated 30 April 2008, which had been provided to him under the Freedom of Information Act 1989 (the FOI Act). The Memorandum was written by the General Manager of the Council and it was addressed to the Mayor and All Councillors. The Memorandum concerned a letter, dated 14 April 2008, written by Mr Waite to the Mayor. In his letter, Mr Waite asserted that the General Manager had, on 12 March 2008, during the discussion of Item 2 at the Ordinary Meeting of Council, incorrectly advised or misled Councillor Isaac, the Council and those members of the public who were present. The advice of which Mr Waite complained was that which the General Manager had given about Councillor Isaacs' ability to remain during the course of the discussions of this Item after he had made a declaration of his pecuniary interest therein. 2 Section 39 of the FOI Act confers a right on any person, to whom access to an agency's document has been given, to apply for the amendment of the document where: '(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.' 3 Section 43(1) of the FOI Act provides that an agency must determine an application for amendment by either amending the document in accordance with the application or by refusing to amend the document. 4 The grounds on which an agency can refuse to amend its documents are set out in section 44, which relevantly provides: '44 Refusal to amend records An agency may refuse to amend its records in accordance with an application: (a) if it is satisfied that its records are not incomplete, incorrect, out of date or misleading in a material respect, or (b) if it is satisfied that the application contains matter that is correct or misleading in a material respect, or (c) if the procedures for amending its records are prescribed by or under the provisions of a legislative instrument other than this Act, whether or not amendment of those records is subject to a fee or charge.' 5 Mr Waite sought amendment of two sentences in the Memorandum of the General Manager. These were found in the third paragraph and the last paragraph and they were in the following terms: '[Attached] … [Councillors] … Unfortunately, Mr Waite once again has reached conclusions without having all the facts available and what facts are available to him he has misinterpreted. The [Circular] … Once again, time is wasted responding to serious allegations by Mr Waite which are without foundation.' 6 The Council determined to refused to make the amendment requested by Mr Waite on the grounds that the Memorandum did not contain 'information concerning [his] personal affairs.' That is, it found that the information in the document was not such that it fell within the terms of section 39 of the FOI Act. The Council nevertheless went on to consider whether the information in the Memorandum was 'incomplete, incorrect, out of date or misleading in a material respect' in the event its findings as to whether the information about Mr Waite was not information concerning his personal affairs were incorrect. It found that the information recorded the opinion of the General Manager and was not otherwise 'incomplete, incorrect, out of date or misleading in a material respect'. Other issues were addressed, such as the correctness of the advice given by the General Manager and the large number of pieces of correspondence from Mr Waite that the Council had had to deal with. 7 For the purpose of the hearing, the Council relied on an affidavit of Garry Bensley, the Council's Executive Manager, Corporate and Community Division. 8 Mr Waite relied on a folder of documents which he had filed. 9 At the hearing, the Council only pressed the first issue (i.e. whether the Memorandum contained information concerning Mr Waite's personal affairs). The parties had otherwise agreed that in event the Tribunal were to make a finding that the sentences for which Mr Waite had sought amendment did concern his personal affairs the sentences should be amended with a line drawn through them. 10 Mr Woodward, on behalf of the Council, submitted that the circumstances in which the Memorandum had come into existence meant that the information in the Memorandum concerning Mr Waite could not be described as containing information that was 'the composite collection of activities personal' to Mr Waite. That is, the information in the Memorandum was not a matter of 'private concern to him'. He went on to contend that the Memorandum did not make any assessment of Mr Waite's private behaviour, reputation, or his personality. That is, it was unlike the information in the document that was the subject of the decision of the Administrative Appeals Tribunal in Re WF Toomer and Department of Primary Industries and Energy (1990) 20 ALD 275; [1990] AATA 85. 11 Mr Johnson, on behalf of Mr Waite, contended that the Memorandum left 'the reader with the impression that Mr Waite has raised an allegation which has no basis and that he has wasted the Council's time in doing so'. It was also contended that the Memorandum contains an imputation with respect to Mr Waite's personality in that the allegations made in Mr Waite's letter was 'another example in a regular practice of him raising serious allegations without basis and wasting time.' Consideration 12 The term 'personal affairs' is not defined in the FOI Act, but it has long been accepted that it should be given its ordinary meaning and should not be narrowly construed. 13 Prior to 1991 the equivalent section of the Commonwealth Freedom of Information Act 1982, also contained the expression 'personal affairs' as did the personal privacy exemption that is contained in section 41 of that Act. The expression has now been amended and the expression 'personal information' is used. The term 'personal affairs' however had received considerable judicial interpretation. 14 In Re Terrence Corbett and Australia Federal Police [1986] AATA143 (30 May 1986), the Administrative Appeals Tribunal held that the expression was 'inherently incapable of precise or exhaustive definition' and that its meaning and application were 'best left to be worked out as fact situations arise': see at [21] citing Re Anderson and Department of Immigration and Ethnic Affairs (No. N84/130; decided 21 March 1986; unreported). 15 In Young v Wicks (1986) 11 ALN 176, Beaumont J said that the expression 'personal affairs' 'refer[s] to matters of private concern to an individual'. The documents at issue in that appeal were documents for which a journalist had sought access under the Commonwealth FOI Act. These documents concerned the applicant/appellant, Ms Young, who was a commercial pilot. Ms Young objected to the disclosure of the documents for which the journalist had sought access and relied on a number of grounds of exemption contained in the Commonwealth FOI Act. One such ground was the 'personal affairs' exemption. Beaumont J found that although Ms Young was the subject of the documents in question, 'the documents are concerned exclusively with public regulation of air navigation. The result is that the documents have a public, rather than a private character.' 16 In Department of Social Security v Dyrenfurth (1988) 80 ALR 533 at 538-9, in a joint decision, Sweeney, Keely and Ryan JJ, said the following: 'In our view, it cannot be laid down by way of definition that an assessment of the capacity or previous work performance of an employee or prospective employee necessarily contains "information relating to the personal affairs" of that person. Equally, however, it is not permissible to construe the phrase, as the tribunal appears to have done, as being incapable of application to information contained in an assessment of capacity or work performance. We do not understand Beaumont J to have adopted, in Young v Wicks or Re Williams, supra, any such rigidly exclusionary interpretation of the phrase. In the former case, his Honour, on an examination of the documents held by the Department of Aviation, found, as a matter of fact, that none of them contained information "referring to matters of private concern to the applicant as an individual". That he found it necessary to undertake such an examination at all argues strongly against the view that his Honour considered that the departmental documents in that case were, by definition, incapable of containing "information relating to the personal affairs of the applicant". 17 In Toomer the applicant, Mr Toomer, a senior Quarantine Inspector, sought amendment of two documents that had arisen out of a complaint he had made about interference of his technical duties by an officer of another agency. The complaint was investigated and the outcome of the investigation was the subject of the two internal minutes that were the subject of Mr Toomer's application for amendment under the Commonwealth FOI Act. Each document contained attacks on Mr Toomer's competence. One document stated that his complaint had been 'completely unjustified'. The other document made comments about Mr Toomer's personality, competence, address, appearance and his attitude to work. In its decision, the Tribunal, following the decision in Dyrenfurth, found that the documents in question did contain information relating to the 'personal affairs' of Mr Toomer as they discussed his personality. 18 In my opinion, the decision in Young v Wicks, Dyrenfurth and Toomer are of little assistance to this application as the documents the subject of these decisions were documents containing information relating to the employment of the FOI applicant. As pointed out by Judicial Member Pearson in ZR v Director General, New South Wales Department of Education and Training [2008] NSWADT 28 at [10]; '… the limitation on the concept of "personal affairs' has tended to arise in the context of information concerning a public employee in their capacity as an employee, rather than as an individual …'(see also Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606 (Perrin's case), Kirby P held that the words 'personal affairs' in the context of the FOI Act meant 'the composite collection of activities personal to the individual concerned'). 19 In this application, the applicant, Mr Waite is not, nor was he at the relevant time, an employee of the Council. He was at all times a private citizen who resides within the jurisdiction of the Council. 20 The decision in Dyrenfurth, however does demonstrate the general principle that the expression should be construed in the context of the documents for which amendment is sought or for which an exemption is claimed. This general principle was highlighted by Lockhart J in Colakovski v Australian Telecommunications Corp (1991) 29 FCR 429; 100 ALR 111 at 118-119 when he said: 'For myself I prefer the view that the "personal affairs" of a person ...connotes information which concerns or affects the person as an individual whether it is known to other persons or not. For example, a document may contain statements about a person's private life in the sense of his personal life which is widely known in various sections of the community. ... In my opinion a person's affairs may be personal to him notwithstanding that they are not secret to him.' 21 In Morgan v Director-General, Department of Education and Training [1999] NSWADT 91, the documents for which amendment was sought were documents that contained information about the applicant, a parent of a child enrolled in one of the respondent Department Schools. In that application, no issue was taken by the parties as to whether the information sought to be amended was information relating to the applicant's 'personal affairs'. However, at [21] the President considered the question and said as follows: 'As to the issue whether the documents relate to the applicant's personal affairs, I am inclined to consider that in general they do, in that they have their origins in representations by her to the school as to issues of concern to her as a parent. The position may be more arguable as to documents that relate to representations and conduct when it became more public in character…' 22 Although this decision was set aside on appeal, the abovementioned approach of the President was not questioned: see Morgan v Director-General, Department of Education and Training [2000] NSWADTAP 3. 23 In my opinion, having regard to the circumstances in which the Memorandum, the subject of this application came into existence, the sentences for which Mr Waite seeks amendment is information that concerns his personal affairs. As mentioned above, the Memorandum came into existence as a result of Mr Waite's letter of complaint dated 14 April 2008. On the material before the Tribunal, this complaint was made by Mr Waite in his capacity as a concerned private citizen. That is, it was a matter of private concern to him. The fact that he had previously corresponded with the Council on a number of matters does not, in my opinion, alter the character of the information in this particular document. It may of course be relevant to the issue as to whether the information is 'incomplete, incorrect, out of date, or misleading in a material respect'. 24 The Council does not appear to contend that the information in question is of a public nature. Instead it appears to have applied the more narrow interpretation of what constitutes information concerning the personal affairs of a government employee. 25 In light of my findings that the information in the sentences for which Mr Waite seeks amendment is information concerning the 'personal affairs' of Mr Waite and the agreement between the parties it is unnecessary for me to consider the remaining requirements of section 39 and 44 of the FOI Act. It is however noted that the agreement between the parties is an agreement by way of settlement so as to resolve the differences between the parties in regard to this application. 26 Accordingly, the appropriate order to be made is an order, by consent, that the decision of the Council the subject of review is set aside and in substitution thereof a decision that the third and final paragraphs of the Memorandum be struck through with an annotation in the terms of the agreement of the parties, dated 10 December 2008, being added. 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.