Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Department of Family and Community Services, Housing NSW v Edwards (GD) [2013] NSWADTAP 17 Hearing dates: 26 March 2013 Decision date: 22 April 2013 Before: Judge K P O'Connor, President P Molony, Judicial Member M Bolt, Non-judicial Member Decision: 1. The Tribunal's order is varied to the extent recorded in the consent order set out at para [20] of these reasons. 2. Leave granted to extend the appeal to the merits. 3. The Tribunal's order as it relates to documents 20-22 and 24-26 is set aside. The agency's decision in relation to those documents is affirmed. Catchwords: GOVERNMENT INFORMATION (PUBLIC ACCESS) - Appeal by agency against terms of Tribunal order varying its refusal to disclose information - Whether the redactions directed by the Tribunal consistent with its reasons for decision - Part of appeal settled by consent - As to remainder, leave to extend appeal to merits granted - Tribunal decision set aside in that respect, agency's decision affirmed - Public interest in disclosure to an individual adversely affected by administrative action outweighed, in the circumstances, by public interest in withholding information the disclosure of which could reasonably be expected to expose a person to a risk of harm or of serious harassment or serious intimidation. Government Information (Public Access Act) 2009, ss 12-14; s 14 Table, cl 3(f). PROCEDURE AND PRACTICE - Making of Final Orders by Tribunal - Order varying agency's decision, involving further redactions - Need to have agency consider views as to the consistency of the redactions with the terms of the decision. Legislation Cited: Administrative Decisions Tribunal Act 1997 Government Information (Public Access) Act 2009 Category: Principal judgment Parties: Department of Family and Community Services, Housing NSW (Appellant) Patricia Edwards (Respondent) Representation: Counsel L Karp (Appellant) P Batley (Respondent) M Callen, Department of Family and Community Services, Housing NSW (Appellant) P Latham, Legal Aid NSW (Respondent) File Number(s): 139001 Decision under appeal Jurisdiction: 9108 Citation: Edwards v Department of Family and Community Services, Housing NSW (No 2) [2012] NSWADT 273 Date of Decision: 2012-12-19 00:00:00 Before: General Division reasons for decision 1Ms Edwards, a public housing tenant, had to be relocated to another home due to resumption of her existing home for roadworks. Housing NSW manages public housing. She was invited to indicate a preference as to where she would like to be moved. As a result, she had expected to be allocated a house in a particular location. Ultimately she was allocated a house in another location. She understood that people in the first location had complained to the Department over her becoming their neighbour, and as a result she was relocated to the second address. 2She applied under the Government Information (Public Access) Act 2009 for access to information held by the agency containing - correspondence to the Minister from neighbours of the residence; complaints from neighbours of that property; and why she was declined the property. The Department to which the agency belongs handled the request. It decided to give Ms Edwards some but not all of the information she sought. The Law 3The Act states that there is a general public interest in favour of the disclosure of information held by government (s 12(1)) and states further that there is no limit on the public interest considerations that may favour disclosure (s 12(2)). If material is to be withheld it must be demonstrated first that 'there are public interest considerations against disclosure' and, secondly, 'on balance, those considerations outweigh the public interest considerations in favour of disclosure' (s 13). The public interest considerations against disclosure are confined by the Act (s 14). The s 14 Table lists 35 possible considerations against disclosure. 4This case did not fall within any of the sixteen categories of information that are sealed from disclosure by a 'conclusive presumption' that there is an overriding public interest against disclosure (see Sch 1, cll 1-12; Sch 2, cll 1-4). Accordingly the Department had to examine the information by reference to the balancing test contemplated by ss 12-14, and for any material it withheld demonstrate that one or more of the s 14 Table considerations should prevail. Department's Decision 5The Department withheld the whole or parts of several documents, relying on balance, on one or more of the following s 14 Table considerations: Clause 1(e) of the s 14 Table: 'Reveals a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice the deliberative processes of government or an agency'. - This provision was relied upon in relation to some of the contents of staff memorandums of advice and notes. Clause 3 (a): 'Reveals an individual's personal information'. - This provision was relied upon to protect from disclosure the identity of the complainants. This was a key concern of the Department, reflecting a long standing practice of exercising care in revealing the source and content of complaints to those complained against it. Clause 3 (f): 'Could reasonably be expected to ... expose a person to a risk of harm or of serious harassment or serious intimidation'. - In this instance, the Department saw as relevant the respondent's history as a tenant, and had, it considered, well-founded concerns as to how she and her family might behave towards people who had made complaints. Tribunal's Decision 6Ms Edwards applied to the Tribunal for review of the decision. The Tribunal did not hold an oral hearing. As is permitted by the Administrative Decisions Tribunal Act 1997 (ADT Act), s 76, it proceeded by considering written submissions, and though it is not required by s 76, the parties agreed to that course. 7The Tribunal first considered the question of the public interest considerations that might favour disclosure. It said at [20]: that there is a clear public interest consideration in favour of disclosure in beneficiaries of public housing against whom complaints are made that result in the loss of that housing, being entitled to know the substance of the complaints that have led to, or played a part in, that outcome. 8The Tribunal considered that the agency had been too restrictive in its balancing of the competing interests. It did acknowledge in its reasons that there was a need to avoid revealing various individuals' personal information and that the agency's concern in relation to persons being exposed to the risk of harm or serious harassment or serious intimidation was well-founded. At [67] it said: 67 The consequences of the complaints appear at least to have contributed to the applicant's loss of tenancy of what seems to have been, from her viewpoint, desirable premises. 9The Tribunal concluded its decision as follows: 70 From the documents, the complainants have actively sought the intervention of the respondent [i.e. the Department], and others such as the local police and Member of Parliament. I find that in the circumstances of the present matter, the complainants may not have had a reasonable expectation that the substance of their complaints would never be disclosed to the applicant. I find that the applicant's entitlement to know the substance of the complaints made against her should be given significant weight. 71 However, I consider that disclosure of that information to the extent that it would reveal an individual's personal information is to be given greater weight, especially as I have found that disclosure of some of the information could expose a person to a risk of harm or of serious harassment or serious intimidation. 72 I find there to be an overriding public interest in favour of providing the applicant with information that she might know the substance of the complaints against her, while not identifying the personal information of the complainants. Conclusion 73 In weighing up the public interest considerations for and against disclosure outlined above, I find the respondent's submissions are not sufficiently persuasive for it to have discharged its onus under s. 105 of the GIPA Act in respect of every claimed redaction and I find that the public interest considerations against disclosure, on balance, outweigh the public interest considerations in favour of disclosure in relation to only some, but not all of the claimed redactions. 74 I have attached to the Tribunal file a redacted version of the documents in accordance with the above findings. For completeness, a full set of the respondent's documents (folios 1-57), redacted in accordance with the Tribunal's findings, is provided to the respondent. Orders 75 The decision under review is varied and the respondent is directed to provide to the applicant a copy of the documents referred to in paragraph 74 of this decision within 30 days of publication of these reasons. 10It will be seen that the Tribunal marked up the documents in dispute without hearing from the Department in relation to the consistency of the Tribunal's proposed redactions with its reasoning. The Appeal 11The Department now appeals. The decision of the Tribunal has been stayed pending its resolution. The ADT Act, s113(2), permits an appeal in relation to a question of law without leave, but requires leave for any appeal that relates to the merits of a decision. 12The Department's notice of appeal as originally filed did not raise any question of law. It did not put in issue the broad thrust of the Tribunal's reasoning. Its concern was in essence that the Tribunal had made redactions which, in its opinion, were not consistent with its own reasoning. 13At hearing the Department presented an amended notice of appeal which did include a purported question of law. Leave was given for the filing of the amended notice. The question of law was expressed as: Whether the Tribunal ... acted in breach of s 107(1) of the Government Information (Public Access) Act 2009 by ordering disclosure of documents to the Respondent in circumstances where there was an overriding public interest against disclosure. 14Section 107(1) provides: 107 Procedure for dealing with public interest considerations (1) In determining an application for ADT review, the ADT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. 15This question went, in effect, to the same area as the objections raised in support of the application for extension to the merits. The point being made, as we understand it, is that through its orders as spelt out by its redactions it had disclosed information which in the body of its reasons it had treated as protected. 16Prior to the hearing of the appeal, the Appeal Panel inspected the unexpurgated documents and the documents as redacted by the Tribunal. Our preliminary view was that there seemed to be inconsistencies in the way the redactions dealt with the suppression of the identity of some individuals, and that in some instances where redactions of names had occurred, surrounding information that remained might reveal their identity. 17The Department filed with its appeal a confidential folder that presented its view as to what redactions should have been made so as properly to reflect the orders of the Tribunal. 18The Appeal Panel raised with the respective legal representatives whether they would be prepared to consider resolving the case on the basis of the Department's proposed redactions. 19The legal representatives for the respondent gave undertakings to protect the confidentiality of any disputed material that might be revealed in the course of their discussion and any inspection of the documents. 20The result was that the parties reached agreement as to release of many of the documents in dispute with redactions that went further than those made by the Tribunal. This outcome is recorded in the following consent order: Order by consent to: 1. Leave being granted to extend the appeal to the merits. 2. Further to the Tribunal's order, additional redaction of all of the documents in relation to the parts the subject of yellow highlighting by the appellant, other than: - Document 46 - Documents 20-22, and - Documents 24-26. 3. The redaction of Document 46 so as to protect the name and position held by the affected person. 21Consequently the only area of dispute that remained between the parties related to the disclosure of two documents, each made up of three pages, which we will refer to as folios 20-22 and folios 24-26. The Appeal Panel granted leave to extend to the merits, and heard the parties. Folios 20-22; 24-26 22The documents have common features as to their contents and have one author. They give an account of events from the author's perspective that relates to the behaviour of the respondent. 23The Department noted that the Tribunal had accepted the relevance to a number of documents of two considerations against disclosure, cl 3(a) and cl 3(f), in particular the latter. 24The Tribunal did not give an itemised account of how it applied the considerations to each of the documents including the two that remain under notice. The Department's submission is that the Tribunal should, given its general conclusions, have applied them to the documents under notice by withholding them entirely or substantially redacting them. 25The Department asked the Appeal Panel to take into account the contents of those communications, and consider them in conjunction with the statements made in the memorandums of the Departmental officer, Mr Byrne, that appear at various places in the documents under notice, in particular at folios 55-57. The Byrne communications have been disclosed to the respondent, with some redactions of names of individuals referred to therein. 26Assessment: There is clearly a public interest in persons who are the subject of complaints, especially complaints that may lead to administrative action adverse to their interests, being given an opportunity to see the text or the substance of those complaints so that they can respond to them. 27Applied to the GIPA context, it was reasonable of the Tribunal to identify a similar public interest that counted as a public interest in favour of disclosure for the purposes of s 12. 28But as the Tribunal's case law reflects, both under the predecessor law and the present Act, agencies with an interest in acquiring information relevant to the performance of their functions often have systems or practices in place that allow for the protection of the substance and the sources of information. 29In the present case the Department referred specifically to its concern that revelation of the identity of the correspondent and of the substance of the complaint might expose that individual to serious harassment and intimidation. The Tribunal did acknowledge in its decision that the Department's concern that revelation of some of the documents could reasonably be expected to expose a person to a risk of harm or of serious harassment or serious intimidation. It referred to this in general terms as a factor that had influenced its decisions in relation to redaction. As previously noted, the Department's submission is that its redactions did not go far enough. The Department submitted that because of the details they contained, effective application of this consideration could only be achieved by complete refusal of the entirety of these documents. 30We are satisfied from a review of all of the material, in particular Mr Byrne's assessments, that the Department's concern is a reasonably held one in this instance. In our view the public interest against disclosure outweighs the public interest in favour of disclosure. We agree with its further submission that effective protection can only be achieved by refusal in full of these documents. Other Matters 31The Order-Making Stage of Proceedings. The Tribunal's usual practice is to make orders reflecting its conclusions without seeking any input from the parties. It is normally sufficient to canvass any questions as to the order sought in the hearing proper. 32However, this approach may not be suited to cases where orders are of a relatively complex type that require further administrative steps to be taken; or necessarily involve detailed action, as in an access-to-documents case of the present kind. 33This case points up the difficulty that can arise if the Tribunal makes its own decision as to items of administrative detail (the redactions) giving effect to a general order (order under review varied), without involving the adversely affected party (here the agency). 34While the Member's deliberations had, with the agreement of the parties, taken place 'on the papers' (see ADT Act, s 76), in a case like the present that does not mean that the redactions are to be done without consultation. The reasons might better have been published with a direction for a hearing to be held to hear submissions on the Tribunal's proposed redactions. The Tribunal could then hear from the adversely affected party (the agency) as to the extent of any participation by the review applicant in that process. Any input from the applicant would need to be limited, having regard to the prohibition in s 107 against disclosure of the protected material. 35Alternatively, the Tribunal could have proceeded as it did, and made a preliminary decision as to the redactions, and then put its proposals to the agency for reply. If the agency took advantage of that opportunity, the Tribunal could then have heard from or invited submissions from the parties as necessary. 36The Prohibition on Exposing Protected Material (s 107). As a Divisional decision of the Tribunal does not bring an end to proceedings in the sense that it is open to be appealed to the Appeal Panel or exposed to judicial review by the Supreme Court, it remains incumbent on the Tribunal to exercise care in how it expresses its reasons for decision and refers to the disputed material. 37The Tribunal's reasons in this case were orthodox in the sense that there is nothing in their text that involves disclosure of material for which the agency claimed exemption. In our view, s 107 was not infringed. As already noted, the problem here lay in the consistency of the Tribunal's redactions with its substantive reasons, and, in particular, the omission to provide the Department with an opportunity to be heard before finalising the redactions. Order 1. The Tribunal's order is varied to the extent recorded in the consent order set out at para [20] of these reasons. 2. Leave granted to extend the appeal to the merits. 3. The Tribunal's order as it relates to documents 20-22 and 24-26 is set aside. The agency's decision in relation to those documents 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: 22 April 2013