Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Australian Vaccination Network v Department of Finance & Services [2013] NSWADT 60 Hearing dates: On the papers Decision date: 13 March 2013 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: The decision under review is affirmed Catchwords: Government information - access application - objection to the disclosure of the information to the access applicant - risk of harm or of serious harassment or serious intimidation Legislation Cited: Administrative Decisions Tribunal Act 1997 Government Information (Public Access) Act 2009 Freedom of Information Act 1982 (Cth) Freedom of Information Act 1989 (NSW repealed) Freedom of Information Act 1982 (Vic) Cases Cited: Centrelink v Dykstra (2002) FCA 1442 Director-General, Department of Education and Training v Mullett [2002] NSWADTAP 13 Electoral Commissioner, State Electoral Office v McCabe (GD) [2003] NSWADTAP 28 Flack v Commissioner of Police [2011] NSWADT 286 Ford v Child Support Registrar (2009) FCA In O'Sullivan v Victoria Police (2005) VCAT 532 Leech v Sydney Water Corporation [2010] NSWADT 298 Macquarie University v Howell (No. 2) [2009] NSWADTAP 19 Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163 Category: Principal judgment Parties: Australian Vaccination Network (Applicant) Department of Finance & Services (Respondent) Representation: E Barrington, James Fuggle Rummery Solicitors (Applicant) S Robosa (Respondent) J Ayres, Office of the Information Commissioner File Number(s): 123128 Publication restriction: Section 75(2) of the Administrative Decisions Tribunal Act 1997 applies to those paragraphs of these reasons identified as [not for publication]. Those paragraphs are to be released to the parties but are not to be released to the public reasons for decision 1GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): This is an application for review of the decision dated 14 February 2012 of the Respondent's delegate made under the Government Information (Public Access) Act 2009 ("the GIPA Act") to release information relating to the Australian Vaccination Network ("AVN"). Background 2In November 2011, Mr Kenneth McLeod lodged an application for formal access to information under the GIPA Act, seeking a copy of all correspondence between AVN and the Respondent since 1 July 2009. 3Mr McLeod subsequently limited the scope of his request to include only documents relating to the holding of AVN's annual general meeting and extension of time to hold those meetings. 4Pursuant to section 54 of the GIPA Act, the Respondent forwarded to AVN copies of documents that it regarded as falling within the scope of Mr McLeod's request and sought submissions regarding any objection against the release of the information. 5AVN raised various objections to the release of the information. 6The Respondent's A/Director, Ministerial & Executive Services determined to release the documents to Mr McLeod but agreed to remove some information from the documents. In the reasons for decision she stated: I have weighed the factors in favour of, and against disclosure and I have determined that on balance, the public interest considerations against disclosure do not outweigh those in favour. In weighing the factors for and against disclosure, I have taken into account a number of matters. The information in the documents you requested contains personal information of individuals and business affairs of the Australian Vaccination Network. The objection received to the release of the documents cited clauses 3(a), 3(c), 3(f) and 4(d) of the table in section 14 of the Act. In relation to the objections, I consider that clauses 3(a) and 3(f) relate to the documents. The Act is designed to protect the privacy of individuals whose personal information is contained in documents to which access is requested. Several individuals are identified in the records and thus individual rights are affected by disclosure of these records under the application. In addition, there is a real concern that disclosure of individuals and their contact details will expose them to risk of harm or serious harassment or intimidation. I am satisfied there is an overriding public interest against disclosure of this information. In this regard, I consider that removing personal information would be sufficient to alleviate this concern. I have considered the objection raised in relation to clause 3(c) on the basis that the release of the documents may prejudice court proceedings. I note that the information was prepared for the purpose of seeking an extension of time to lodge annual statements. While I accept that the documents may be connected in some manner to current or future court proceedings, it is quite clear that the information was not prepared for nor in relation to court proceedings. Further, no evidence has been provided to show how disclosure of the information could prejudice such proceedings. Accordingly I have decided that there is no overriding public interest against disclosure on this basis. In relation to clause 4(d) of the table in section 14 of the Act, the objection received claims that the release of information relating to the association's suppliers and professional advisors would be likely to prejudice the commercial position and interests of these entities, and result in their being harassed. I accept that should this information be released it is likely to significantly prejudice these entities. Again, I consider that removing this information would be sufficient to alleviate this concern. The objection also argued against release of the documents as a whole on the basis that it would prejudice the association's business and financial interests. While I accept that an association is entitled to some business privacy, its financial position is publicly available through a register administered by Fair Trading. I also note that an association is required to submit certain documents, such as an annual summary of financial affairs or requests for extensions to hold annual meetings and/or lodge annual summaries, which are also publicly available. I consider that the release of any documents that relate to lodgement of these documents is in the public interest. In summary, I have applied the public interest test to all of the documents contained within the file. I have determined that, on balance, with the removal of certain information, there is no overriding public interest consideration of the information sought. 7AVN requested an internal review of the decision made on 29 December 2011 and maintained its objections against the release of some specified information ("the excerpts"). 8[Not for publication] 9The Director Compliance, NSW Industrial Relations, undertook the internal review. He concluded: Following a comprehensive review of the original access application lodged by Mr McLeod and the detail of the objections raised by you during the third party consultations and reaffirmed in your application for a review, I have determined that there is no overriding public interest against disclosure of the information sought. However, I have further determined that it would be appropriate to modify the material prior to its release with redactions as an effective means of addressing some of the concerns outlined in your objections, specifically the release of personal details of individuals directly or indirectly named in the documents as well as the names of AVN's suppliers and professional advisors. 10AVN has applied to the Tribunal for external review of the internal review determination. AVN's Objection 11Ms Barrington provided written submissions in relation to AVN's objection. 12[Not for publication] 13The other grounds upon which AVN relies are AVN's alleged exposure to ongoing harassment and potentially an escalation in the levels of harassment behaviour from an organisation called Stop the AVN ("SAVN") and its members; and prejudice on AVN's business and financial interests. Applicable Legislation 14Section 5 of the GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. 15Pursuant to section 9(1) of the GIPA Act, a person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 of the GIPA Act, unless there is an overriding public interest against disclosure. 16Section 12 of the GIPA Act provides: 12 Public interest considerations in favour of disclosure (1) There is a general public interest in favour of the disclosure of government information. (2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Note. The following are examples of public interest considerations in favour of disclosure of information: (a) 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. (b) 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. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) 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. 17Section 13 of the GIPA Act provides: 13 Public interest test 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. 18Section 14 of the GIPA Act provides: 14 Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. (3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section. (4) The Information Commissioner must consult with the Privacy Commissioner before issuing any guideline about a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to this section). 19Clause 3 of the Table to section 14 provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have, among other effects, the following: ... (f) expose a person to a risk of harm or of serious harassment or serious intimidation, ... 20Clause 4 of the Table to section 14 provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects: ... (d) prejudice any person's legitimate business, commercial, professional or financial interests, ... 21The relevant public interest considerations against disclosure in Clauses 3(f) and 4(d) of the table to section 14 of the GIPA Act involve a finding that the disclosure "could reasonably be expected to" have the stated effect. The proper construction of the phrase "could reasonably be expected to" in the GIPA Act is to give the words "their ordinary meaning. 22The principles for the interpretation of "could reasonably be expected" were discussed in Flack v Commissioner of Police [2011] NSWADT 286 at paragraphs [40] - [41]), adopting the approach that I took in Leech v Sydney Water Corporation [2010] NSWADT 298 where I stated at paragraph [25]: 25 The term 'could reasonably be expected' has been considered in a number of cases. The words have their ordinary meaning: Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163. The test to be applied is an objective one, approached from the view point of the 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]. 23In Searle it was held that the reasonable expectation must be based on real and substantive grounds and not mere speculation. 24In Electoral Commissioner, State Electoral Office v McCabe (GD) [2003] NSWADTAP 28, in respect of the exemption under clause 4(1)(c) or (g) of Schedule 1 of the repealed Freedom of Information Act 1989, the Appeal Panel stated at paragraph [36]: "We simply note that it is a very serious matter for an agency to invoke an exemption based on 'endangerment'. In our view, agency opinions making such a grave assessment must be closely scrutinised and not easily accepted. The Tribunal is, we consider, obliged to bring some scepticism to the task of assessing what are necessarily self-serving statements by agencies as to the availability of grounds for exemption which involve matters of judgment. The question is always whether the material, statements of opinion and submissions put forward by the agency justifies reliance on the exemption (see s 61, burden of proof). Often the access applicant will be in no position, or a weak position, to produce any evidence in reply to the agency's opinion. The Tribunal must not simply adopt the agency's opinion; ... It does not follow that approaches that are found in traditional adversarial litigation (i.e. in the absence of any evidence to the contrary, the trier of fact should ordinarily make findings in terms of the uncontested relevant evidence) should be adopted in a merits review." 25Whether the disclosure of information could reasonably be expected to have one of the effects outlined in the Table to section 14 of the GIPA Act is ultimately a question of fact. 26Section 15 of the GIPA Act provides: 15 Principles that apply to public interest determination A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles: (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information. 27Section 58(1)(d) of the GIPA Act provides that an agency may decide an access application by refusing to provide access because there is an overriding public interest against disclosure. 28Section 80(d) provides that the Tribunal may review such a decision. In this application, by reason of subsection 105(2) of the GIPA Act, the onus is on the applicant, and not the respondent, to establish that there is an overriding public interest against disclosure of the information in issue. 29Section 107 of the GIPA Act sets out how the Tribunal is to deal with information for which there is, or is claimed to be, an overriding public interest against disclosure. In essence that section provides that the Tribunal is to prevent the disclosure of such information to the public, GIPA applicant and the applicant's legal representative. In accordance with the nondisclosure requirements I have indicated that some parts of these reasons are not to be disclosed to the public. 30In making its decision, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision: section 63(2) of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"). AVN's case 31Ms Barrington provided written submissions in support of AVN's position. She submits that the excerpts are unrelated to the lodging of the AVN's Annual Financial Statement and their removal would not in any way hinder the purpose for which they are being obtained. 32AVN also relies on two statements by its President Ms Meryl Dorey. The statements, dated 1 August 2012 and 25 September 2012, are relied upon to establish the likelihood that the release the information in the excerpts will be likely to expose a person to a risk of harm or of serious harassment or serious intimidation. She contends that release of the information is likely to encourage ongoing harassment of AVN and Ms Dorey and is likely to result in an escalation in the levels of harassment. 33AVN also contends that if ongoing harassment or an increase in harassing behaviour were to occur, AVN's business and financial interests may be prejudiced or hampered as a consequence. 34Ms Dorey stated Since approximately 2009, the AVN and its members have been subject to ongoing serious harassment from [SAVN] and its members. The harassment from the SAVN and its members happens on an almost daily basis. Some of the harassing behaviour from the SAVN and its members include, but is not limited to: members of the AVN being sent violent pornography by post or over Facebook; threats made over Facebook to myself including comments such as, "we're coming for you, baby killer"; publishing my home address and that of my brothers in law on the internet; publishing the names and contact details of everyone who is a known supporter of the AVN on the 'Hall of Shame' on one of the websites managed by SAVN members (http://www.antivaxxers.com); making complaints to countless government bodies and organisations, including hundreds of Facebook complaints; and lobbying the Attorney General to force the AVN to change their name. The harassing behaviour of the SAVN and its members has been reported to police on numerous occasions. I am fearful that ... this harassing behaviour will continue and is likely to increase. 35Ms Dorey provided evidence of the conduct to which she referred. She claims that she has received threatening, harassing or intimidating messages on an almost daily basis; that the behaviour has been reported to the police on numerous occasions; and that she had filed applications for Apprehended Personal Violence Orders ("AVOs") against certain members of the SAVN. Ms Dorey provided copies of the messages she had received, applications for AVOs, and a CD containing messages, which she claimed were left on her answering machine on 12 August 2012. 36Ms Dorey also provided evidence that the documents that have already been released by the Respondent, excluding the excerpts, have been published on a website, along with a derogatory commentary. The Respondent's case 37Ms Robosa, Solicitor for the Respondent, provided written submissions in support of the Respondent's position. 38In relation to the question of whether the information in the excerpts was within the scope of Mr McLeod's request Ms Robosa submitted: The scope of Mr McLeod's GIPA application includes documents required to be submitted by the Applicant to the Respondent to comply with its financial reporting obligation under Part 5 of the Associations Incorporation Act 2009. The scope specifically included "information relating to the holding of meetings" ... The Minutes fall within the scope, and it was clearly one of the documents submitted to the Respondent for purposes of reporting, as indicated in paragraph 5 of the Minutes ... 39She further submitted: Section 3 of the GIPA Act articulates its object "to open government information to the public", "in order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective". In line with this objective, it is in the public interest to release the Minutes. Any risk anticipated by the Applicant had been addressed by removing the names and other identifiers from the documents 40In relation to the application of Clause 3(f) of the Table to section 14, Ms Robosa noted that clause 3(f) requires that disclosure of the information "could reasonably be expected to expose a person to a risk of harm or of serious harassment or serious intimidation". She submits that there is insufficient evidence to support a finding that the release of the excerpts could reasonably be expected to expose the Applicant's members to that risk. 41Ms Robosa referred to the statements by Ms Dorey in which Ms Dorey referred to ongoing serious harassment from SAVN and the examples of "the harassing behaviour from the SAVN and its members". 42Ms Robosa also referred to Mr McLeod's claims that these allegations had been made many times in the press and to government instrumentalities and that the allegations are untrue and baseless. Ms Robosa also referred to Mr McLeod's claims that Ms Dorey had admitted on radio and on Facebook that this allegation was untrue. 43In regard to content of the excerpts, Ms Robosa referred to information that is available on websites that Ms Dorey identified and to AVN's financial statements in the Public Register maintained by the NSW Registry of Co-operatives and Associations. Ms Robosa submitted the substance of what information is contained in the excerpts could be inferred from the content of the websites and the Public Register. 44Ms Robosa noted that it is apparent that there is an ongoing significant acrimony between AVN and SAVN. She submitted that it is highly unlikely that disclosure of the excerpts will exacerbate whatever ongoing acrimony now occurring. She argues that therefore the release of the excerpts is unlikely to expose the Applicant's members to "a risk of harm or of serious harassment or serious intimidation". In any event, she submitted that any risk had been addressed by the removal of the names and other identifiers from the relevant documents. 45In relation to the application of Clause 4(d) of the Table to section 14, Ms Robosa submitted that there is no evidence to establish a reasonable expectation that the release of the information would expose the Applicant's members to "harassment or an increase in harassing behaviour". As this ground is the basis of the expectation of prejudice on the Applicant's financial interests, the argument under clause (d) Table 4 could not be established. 46It is Respondent's position that there is no overriding public interest against disclosure of the information contained in the excerpts. 47Ms Robosa referred to the overwhelming presumption in favour of disclosing government information under section 5 of the GIPA Act. She also identified other considerations in favour of disclosure including: (i)the general public interest in favour of the disclosure of government information: section 12(1); (ii)to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance: section 12(2)(a); (iii)to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public: section 12(2)(b); and (iv)to enhance the transparency and accountability of government operations, policies and practices. 48In the Respondent's submission that as there is no overriding public interest against disclosure of the information contained in the excerpts, the decision of the Respondent's delegate should be affirmed. Information Commissioner's Submissions 49The Information Commissioner may appear and be heard in any application to the Tribunal made pursuant to Part 5 Division 4 of the GIPA Act: section 104(1). Mr Ayers appeared on behalf of the Information Commissioner in these proceedings and provided written submissions in regard to the interpretation and application of the GIPA Act. 50In relation to the application of Clause 3(f) of the Table to section 14, Mr Ayers submitted that the expression "risk of harm" incorporates and will in practice likely subsume the higher requirements of "serious harassment" and "serious intimidation". The weight carried by this consideration will depend on the type and degree of harm to which a person could reasonably be expected to be exposed by disclosure of information. Similarly, if it is established that serious intimidation or harassment could reasonably be expected to be exposed by disclosure of information, this consideration would carry more weight than mere "risk of harm". 51Harm, for the purposes of this consideration, comprises "injury, damage, hurt" (Macquarie Dictionary). Mr Ayers submitted that this means more than mere irritation, annoyance, unease or discomfort. Risk, for the purposes of this consideration, means "exposure to the chance of injury or loss; a hazard or dangerous chance" (Macquarie Dictionary). These definitions set a low bar under the threshold test for establishing the relevance of this consideration. 52Mr Ayers further submitted that this should be determined on an objective basis in the light of all of the circumstances of the application, although the subjective evidence of the person apprehending harm is relevant to deciding whether the clause applies. He relies on a number of authorities. 53In O'Sullivan v Victoria Police (2005) VCAT 532 at paragraphs [16] - [19], the Victorian Civil and Administrative Tribunal (VCAT), considered section 31(1)(e) of the Freedom of Information Act 1982 (Vic), which is similar to clause 3(f) and includes the words "would, or would be reasonably likely to, endanger the physical safely of person". The VCAT decided in that case that evidence of verbal threats by the applicant could attract the operation of the provision. 54Similarly, in the Commonwealth Freedom of Information Act 1982 cases of Ford v Child Support Registrar (2009) FCA 328 at paragraphs [13] - [14] and Centrelink v Dykstra (2002) FCA 1442, the Federal Court decided that the Commonwealth provision would apply where there was evidence of a history of violence by the applicant and violent, extreme verbal threats have been made, by the applicant. 55In relation to the weighing and balancing the relevant public interest considerations Mr Ayers submitted that all considerations should be systematically evaluated and the weight to be attributed to them determined objectively on the basis of probative evidence: Director-General, Department of Education and Training v Mullett [2002] NSWADTAP 13 at paragraphs [94], [99]; Macquarie University v Howell (No. 2) [2009] NSWADTAP 19 at paragraph [10]. The question of weight may generally be characterised as a question of fact and degree. 56In relation to the weight of the relevant considerations in favour of disclosure, the Information Commissioner makes the following submissions: The general consideration in favour in section 12 must always be weighed in the application of the public interest test and should always be accorded significant weight. It is not necessary or desirable to give this consideration particular content. Rather, in accordance with its "general" nature, it does not have any specific content or meaning. It should be considered separately from other relevant considerations in favour. It should not be treated as a repository for those other considerations in favour and does not need to be adapted to the circumstances of a particular application. 57In relation to the weight of the relevant considerations against disclosure, if 3(f) is found to apply, the Information Commissioner submits that it should be given significant weight. Discussion 58The role of the Tribunal in reviewing the decision of the Respondent is to decide what is the correct and preferable decision having regard to the material before it, including (a) any relevant factual material and (b) any applicable written or unwritten law: see subsection 63(1) of the ADT Act. 59I have considered the information in the excerpts and the arguments presented by each of the parties. In my view, the information in the excerpts falls within the scope of Mr McLeod's request. 60As noted above, Mr McLeod's request was for documents relating to AVN holding the annual general meetings and extension of time to hold those meetings. I am satisfied that The Minutes fall within the scope of that request as they relate to the holding of the meeting. I also accept the Respondent's submission that it was clearly one of the documents submitted to the Respondent for purposes of reporting. 61In relation to the application of Clause 3(f) of the Table to section 14 I accept that there is a long history of animosity between AVN and SAVN. That is clearly demonstrated by the material that Ms Dorey has provided. In my opinion, there is no reason to believe that the animosity will not continue. That is likely to be the case regardless of the outcome of this matter. 62However, the question to be determined is whether the disclosure of the information in the excerpts could reasonably be expected to expose a person to a risk of harm or of serious harassment or serious intimidation. In considering that question, I have taken account of the material that AVN has put forward. I accept that it is likely that any further information that is released will probably also be published on a website. I have also considered that actual content of the excerpts. In my view, the release of the information will not expose Ms Dorey or other persons associated with AVN to any greater risk than already exists. I agree with the Respondent that it is highly unlikely that disclosure of the excerpts will exacerbate whatever ongoing acrimony now occurring. 63Similarly, I am not satisfied that the disclosure of the information in the excerpts could reasonably be expected to prejudice any person's legitimate business, commercial, professional or financial interests. 64I find as a fact that the disclosure of the information in the excerpts could not reasonably be expected to have those consequences. 65In the circumstances, given the statutory presumption in favour of disclosure of government information, it is my view that the considerations in favour of disclosure outweigh those against. The Respondent has made the correct and preferable decision and therefore the decision should be affirmed. Order The decision under review is affirmed. ********** 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: 14 March 2013