Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Leda Developments Pty Ltd v Tweed Shire Council [2013] NSWADT 121 Hearing dates: On the papers Decision date: 30 May 2013 Jurisdiction: General Division Before: S Higgins, Deputy President Decision: 1. The decision of the respondent in regard to the deleted information in the emails that are item 1 is affirmed. 2. With the exception of the deletions that are the names and email addresses of employees of the respondent, the decision of the respondent in regard to the deleted information in the email that is item 2 is affirmed. 3. The decision of the respondent in regard to the names and email addresses of employees of the respondent as listed in the addressees of the email that is item 2 is set aside and in substitution thereof a decision that the applicant be granted access to this information. 4. With the exception of the deletion of the name of person C and the deletions under the heading 'At' and 'observed by' on page one of the attachment to the submission of the letter that is item 3, the decision of the respondent is affirmed. 5. The decision of the respondent in regard to the deletion of the name of person C and the deletions under the heading 'At' and 'observed by' on page one of the attachment to the submission of the letter that is item 3 is set aside and in substitution thereof a decision that the applicant be granted access to this information. 6. The decision of the respondent in regard to the deletion of person D's email address in item 4 is affirmed. The decision of the respondent in regard to the remaining deletions to item 4 is set aside and in substitution thereof a decision that the applicant be granted access to this deleted information. Catchwords: Government information - public access - names and email addresses of individuals corresponding with the respondent agency Legislation Cited: Administrative Decisions Tribunal Act 1997 Environmental Planning and Assessment Act 1979 Freedom of Information Act 1989 (NSW repealed) Freedom of Information Act 1982 (Cth) Government Information (Public Access) Act 2009 Government Information (Public Access) Regulation 2009 Privacy and Personal Information Protection Act 1998 Cases Cited: Attorney-General's Department v Cockcroft (1986) 10 FCR180 McKinnon v Secretary, Department of Treasury [2006] HCA 45 Category: Principal judgment Parties: Leda Developments Pty Ltd (Applicant) Tweed Shire Council (Respondent) Representation: R van Rij (Agent for Applicant) Marsdens Law Group (Respondent) File Number(s): 123221 REASONS FOR DECISION Introduction 1The applicant, Leda Developments Pty Ltd, seeks review of a decision of the respondent, Tweed Shire Council, made pursuant to the Government Information (Public Access) Act 2009 (GIPA Act), in regard to its application for access to government information held by the respondent. 2On 20 October 2011, the applicant, through its solicitor, sought access to the following documents: 'As contained in Annexure A, items 1 to 17, and in particular pertaining to Kings Forest and Cobaki Lakes developments.' 3I understand the applicant is the developer of the Kings Forest and Cobaki developments and the information for which access was sought related to communications (reports, applications, correspondence and other information) between the respondent and specified groups of people, or people with specified expertise, in relation to these developments. 4The respondent determined the applicant's application, on 28 February 2012. In that determination, the respondent identified 4 items as falling within the terms of the applicant's access request. These were: (a) item 1 - a chain of emails, sent during January 2010, between a person (unnamed) and Mr Vince Connell, Director Planning and Regulation of the respondent, (b) item 2 - a chain of emails dated 30 January 2011 between a person (unnamed) and Mr Connell and Councillor Dot Holdom, (c) item 3 - a letter dated 4 April 2011, to Mr Connell, from a person (unnamed), and (d) item 4 - an email dated 22 September 2011 from a person (un named) to Ms Rowena Michael, Development Assessment Co-ordinator of the respondent. That email forwarded an email the person (unnamed) had received on 23 August 2011 from another person (unnamed). 5The respondent determined that the identity of the unnamed persons (i.e. their name and email address) was 'personal information' and a disclosure of that information could reasonably be expected to reveal that information: see item 3(a) of the table to section 14 of the GIPA Act. The respondent noted that it had consulted in accordance with s 54 of the GIPA Act and that one of the unnamed persons had objected to the disclosure of his/her name or information that might identify him/her. Notwithstanding this objection, the respondent said it had decided to 'provide access even though an objection has been made.' The respondent went on to inform the applicant that it was not permitted to provide access to the information sought while the review rights of the unnamed persons was pending. 6On 11 April 2012, Mr van Rij, the applicant's Residential Manager - Regional, made an application for internal review. The respondent determined the internal review application on 21 May 2012. In that determination, the respondent determined that access to the personal information in the abovementioned documents would be withheld 'in accordance with the Public Interest(s) against disclosure' as set out in item 3(a) of the table to subs 14(2) of the GIPA Act. It is this decision, which is the subject of review in this application. 7During the planning meetings before me, the parties agreed that the applicant's review application should be determined on the papers pursuant to s 76 of the Administrative Decisions Tribunal Act 1997 (ADT Act). 8In support of its case the respondent filed and served an affidavit, sworn on 24 October 2012, by Peter Brack, the respondent's Corporate Compliance and Information Officer, Technology and Corporate Services. In addition to this, the respondent provided the tribunal, in confidence, with a full copy of the emails and letters the subject of this application: see s 107 of the GIPA Act. Included in that confidential material were the objections, sent by email, of the unnamed persons. In the main, these objections related to a disclosure of their name or any other information that may identify them. 9I note that the applicant has already been provided with a copy of the relevant emails and letter, with the deletion of the names of the unnamed persons and some additional information in item 3 and 4. 10Both parties also filed and served written submissions. In its submission, the respondent contends that the public interest consideration in item 3(a) and (b) of the table to subs 14(2) of the GIPA Act applies to the information in issue (the dispute/deleted information). Issue 11The issue in this application is: (a) whether the deleted information is 'personal information', (b) if it is 'personal information', whether the public interest consideration against disclosure in item 3(a) and (b) of the table to subs 14(2) of the GIPA Act applies, and (c) if this public interest consideration against disclosure does apply, whether, on balance, it overrides the public interest consideration in favour of disclosure. 12For the reasons set out below, I have found that the deleted information in so far as it relates to the name and email address of persons other than employees of the respondent is 'personal information' and that the public interest consideration against disclosure applies to that information. In regard to the names and email address of persons in item 1 and 2, for which I have found there is public interest consideration against disclosure, I have also found, on balance, that this public interest consideration against disclosure overrides the public interest consideration in favour of disclosure. In regard to the remaining deleted information, I have found that the public interest consideration against disclosure does not override the public interest consideration in favour of disclosure. Relevant legislation 13The applicable law is that set out in the GIPA Act, the objects of which are set out in s 3 as follows: 3 Object of Act (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. (2) It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information. 14The term 'government information' is defined in section 4 of the GIPA Act to mean 'information contained in a record held by an agency'. Government information 'held' by an agency is defined in clause 12 of Schedule 4 of the GIPA Act. 15Section 5 of the GIPA Act contains a presumption in favour of the disclosure of that information, unless there is an 'overriding public interest against disclosure'. The test to be applied in determining whether there is an overriding public interest against disclosure is set out in s 13. That test is in the following terms: 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. 16Section 12(1) of the GIPA Act provides that there is a general public interest in favour of disclosure of government information. Subs 12(2) provides that public interest considerations in favour of disclosure are not limited. The section goes on to provide some examples of public interest considerations in favour of disclosure of government information. These include: 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. 17The public interest considerations against disclosure are limited. These are set out in section 14 of the GIPA Act. Subsection 14(1) provides that government information described in Schedule 1 of the GIPA Act is to be conclusively presumed to give rise to a public interest consideration against disclosure. This provision does not apply to this application. 18Subs 14(2) sets out the only other public interest considerations against disclosure. For the purpose of this application, the relevant public interest considerations against disclosure are as follows: 14 Public interest considerations against disclosure (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) ... (4) ... Table 3 Individual rights, judicial processes and natural justice 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: (a) reveal an individual's personal information, (b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 ..., (c) ... 19The relevant information protection principle relied on by the respondent is that contained in section 18 of the Privacy and Personal Information Protection Act 1989 (PPIP Act), which is in the following terms: 18 Limits on disclosure of personal information (1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless: (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person. (2) ... 20Personal information is defined in cl 4 of Schedule 4 of the GIPA Act as follows: 4 Personal information (1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion. (2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics. (3) Personal information does not include any of the following: (a) information about an individual who has been dead for more than 30 years, (b) information about an individual (comprising the individual's name and non-personal contact details) that reveals nothing more than the fact that the person was engaged in the exercise of public functions, (c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause. 21Personal information is defined in subs 4(1) and (2) of the PPIP Act in the same terms as that contained in cl 4(1) and (2) of Schedule 4 of the GIPA Act. However, s 4 of the PPIP Act does not contain an equivalent provision to subcl 4(3)(b) of Schedule 4 of the GIPA Act. As the parties have not based their arguments on this distinction, I have not considered it any further other than to note that s 5 of the PPIP Act provides that nothing in that Act affects the operation of the GIPA Act and in particular, the PPIP Act does not operate to lessen any obligation of a public sector agency under the GIPA Act. 22The term 'reveal information' is defined in cl 1 of Schedule 4 to mean 'to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)'. 23Section 15 sets out the principles that are to be applied when determining whether there is an overriding public interest against disclosure. That section provides as follows: 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. 24Where the information for which access is sought contains 'personal information' about a person (other than the access applicant), or concerns the person's business, commercial, professional or financial interests, section 54 of the GIPA Act requires an agency to consult with that person before providing access where (a) the person may reasonably be expected to have concerns about the disclosure of the information, and (b) those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information. As I have explained, it is as a result of consultation under this section, by the respondent, which has led to the authors of the emails and letters to object to the disclosure of their names or any information, which would identify them. 25Section 55 provides for personal factors to be taken into account in determining where the public interest lies. That section is in the following terms: 55 Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section: (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14. (4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for. (5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to provide proof of his or her identity. (6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person. Note. An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73. 26The onus is on the respondent to establish that disclosure of the information in issue could reasonably be expected to have the effect, as asserted, in accordance with the terms of the items relied on in the table to subs 14(2) of the GIPA Act and that these public interest against disclosure of the information in dispute, on balance, override the public interest in favour of disclosure: see subs 105(1) of the GIPA Act. 27Section 107 of the GIPA Act sets out the procedure to be used, by the tribunal, in regard to information for which there is, or claimed to be an overriding public interest consideration against disclosure, when reviewing a reviewable decision made under that Act. In essence that provision requires the tribunal to ensure that it does not disclose such information in the course of the hearing or in its reasons for decision. Background to the information in dispute 28In his affidavit, Mr Brack explained that Kings Forest is a suburb within the Local Government Area of the respondent. He said that a 'Concept Plan' for carrying out future development in that suburb was approved by the Minister, on 19 August 2010, pursuant to Part 3A of the Environmental Planning and Assessment Act 1979 (EPA Act - now repealed). Since that approval, the Concept Plan for Kings Forest has been modified and a further modification is currently before the NSW Department of Planning for consideration. 29Mr Brack explained that he has been informed that, prior to the Minister's determination in August 2010, the respondent had made a submission to the Minister in respect to the Kings Forest Concept Plan. He said that since August 2010, the respondent has not invited any public submissions in relation to the development associated with the Concept Plan. 30Mr Brack explained that Cobaki Lakes is also a suburb within the Local Government Area of the respondent. He went on to say that, on 6 December 2010, the Minister had approved a 'Concept Plan' for the future development of the Cobaki Lakes suburb. Mr Brack said, on 28 February 2011, the Deputy Director of Planning granted 'Project Approval' for the carrying out the subdivision of the entire Cobaki Estate, which included 'bulk earthworks to create open space, riparian corridor and future stormwater drainage, road forming works and culverts, revegetation and rehabilitation of environmental protection areas and the establishment of fresh water wetland and fauna corridors.' 31Mr Brack said that he had been informed that the respondent had made submissions to the Minister in regard to the Concept Plan and the Deputy Director General in regard to the Project Approval. He also said that he had been informed that since making those submissions, the respondent has not invited any further public submissions in relation the Cobaki Lakes development. Nor has the respondent sought public submissions from the public for the purposes of determinations to be made by the Joint Regional Planning Panel. 32As I have explained, the applicant appears to be the developer of the Kings Forrest and Cobaki Lakes developments. 33The subject matter of the emails and letter can conveniently be described as follows: (a) item 1 - this is a series of 6 emails, sent in January 2010, concerning Kings Forrest. It is evident from the content of these emails that they were initiated by the unnamed person (person A) seeking information, from the respondent, about the then proposed development of Kings Forest. Mr Connell appears to have provided person A with relevant material. Having received the material, person A sought clarification from Mr Connell about the process to be used under Part 3A of the EPA Act. In response to questions asked by person A, Mr Connell provided explanations of the process and what the respondent had done to ensure that there was consultation with the local community in regard to the proposed development, (b) item 2 - this is an email received by Dot Holdom, on 30 January 2011, from another unnamed person (person B) concerning a report from consultants regarding the 'first 2 Cobaki subdivision DAs'. The subject heading of the email is 'Really-Truly Affordable Housing for Tweed Shire.' Again, the email appears to have been generated following inquiries made by person B of Mr Connell as to whether the report was public and a quotable source. Person B sent his/her email to a number of persons, including Ms Holdom of the respondent. The names of the other recipients have also been deleted. In the body of his/her email, person B sets out Mr Connell's response, a summary of the consultant's report and then calls on those to whom he/she has sent the email 'to consider how we react to applications for developments for the much smaller lots required for denser and lower cost housing types that will start to appear in our communities.' (c) item 3 - this is a one page letter, dated 4 April 2011, concerning the Cobaki Lakes Residential Development. The letter is addressed to Mr Connell and was sent by an unnamed person (person C). In the letter person C states that he/she is 'enclosing a copy of my submission under the EPBC Act' on the Cobaki Lakes Residential Development. Person C goes on to state 'to insure compliance with conditions of approval, Management Plans and the proponents Statement of commitments it is important Construction Compliance Reports and Environmental Impact Audit Reports are provided and overseen by an independent Environmental Management Representative.' The submission attached to the letter is 7 pages in length and it has attached to it a 5 page 'Bird Species List for the Cobaki Area.' Page one of the attachment contains information about Bird observations and recordings. The information on this page as to the place where recordings were made and by whom they were made has not been disclosed. (d) item 4 - this is an email to Rowena Michael, sent on 22 September 2011, from an unnamed person (person D) concerning the Cobaki Estate Residential Development. In his/her email to Ms Michael, person D states that he/she had been advised that the Department would accept comment on the 'FPD' before a final decision was made. Person D explained that he/she was forwarding the comments he/she had made, on 23 August 2011, in an email to the Commonwealth on this issue. That email deals with issues such as the Long-Nosed Potoroo, Acid Sulfate Soils, Flora/Communities/Habitats and Listed Migratory Species. In addition to the deletion of person D's name, the respondent has determined not to disclose (i.e. deleted) part of the information in the body of the email to Rowena Michael and the name of the person to whom person D sent his/her email of 23 August 2011. Public Interest consideration against disclosure 34The public interest considerations against disclosure, as listed in the table to section 14 of the GIPA Act, only apply where the 'disclosure' of the information in issue 'could reasonably be expected' to have the nominated effect as prescribed in one or more of the paragraphs in the items in that table. 35The term 'disclose information' is defined in clause 1 of Schedule 4 of the GIPA Act to include 'make information available and release or provide access to information.' 36The phrase 'could reasonably be expected to' has been the subject of considerable judicial consideration with respect to its use in the context of exempt documents under the repealed Freedom of Information Act 1989 (NSW)(FOI Act repealed) and also the Freedom of Information Act 1982 of the Commonwealth. The same meaning has been applied to this phrase as it appears in the table to section 14 of the GIPA Act. That is, the words in the phrase are to be given their ordinary meaning and ' require a judgement to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous' to expect to have the prescribed consequences: see McKinnon v Secretary, Department of Treasury [2006] HCA 45, at [61] and Attorney-General's Department v Cockcroft (1986) 10 FCR180, at 190. Accordingly, it is an enquiry of a general and abstract nature. 37Personal Information - As I have explained above, the first issue to be determined is whether the disputed information in each of the 4 items is personal information as defined in cl 4 of Schedule 4 of the GIPA Act and s 4 of the PPIP Act. 38I accept that the name of person A, person B, person C and person D is personal information as there is no evidence of these persons being an employee of a government agency (see cl 4(3)(b) of Schedule 4 of the GIPA Act). I also accept that the email addresses of person A, person B, person C and person D is personal information about these persons. 39With three exceptions, I am also satisfied that the deleted names and email address, in the list of addressees, in the email that is item 2, is personal information about these people. The exceptions are the additional three persons named in that list who appear to be recipients of the email on the basis of being employees of the respondent. That is, the additional three persons with the same generic email address of the respondent. 40I also accept that the deleted names under the heading 'observed by' on the first page of the attachment to the submission attached to the letter that is item 3, is personal information as defined cl 4 of Schedule 4 of the GIPA Act and s 4 of the PPIP Act. However, the deleted information under the heading 'At' on this page does not fall within this category. 41This leaves the deleted information, in item 4, which is not the name or email address of person D. I note, that person D has objected to the disclosure of this information on grounds of relevance, which I note is not a public interest consideration against disclosure. In any event, to the extent the deleted information is the name and email address of the person to whom person D sent his/her email of 23 August 2011, I find that this is not personal information falling within cl 4 of Schedule 4 of the GIPA Act in that the person named is a Commonwealth employee. 42Accordingly, in summary I have found that the following deleted information is personal information: * the name and email address of person A, person B, person C and person D as identified on item 1, item 2, item 3 and item 4 respectively, * the names and email addresses of those persons (other than those who are employees of the respondent) in the list of addressees in the email that is item 2, and * the names of the persons under the heading 'observed by' on the first page of the attachment to the submission to the letter that is item 3. 43In summary I have found that the respondent has failed to establish that the following deleted information is personal information: * the names and email addresses of its employees who were also recipients of the email that is item 2, * the information under the heading 'At' on the first page of the attachment to the submission to the letter that is item 3, and * the information, other than the name and email address of person D, in the email that is item 4. 44Disclosure could reasonably be expected to reveal personal information - To the extent I have found the disputed (deleted) information to be personal information (see paragraph 42 above), I find that a disclosure of that information could reasonably be expected to reveal that information. 45Disclosure could reasonably be expected to contravene an information protection principle (i.e. disclosure) - I also find that the abovementioned information, if disclosed could reasonably be expected to contravene the disclosure information protection principle in section 18 of the PPIP Act. 46In making this finding I accept that the information is 'held' by the respondent in that it is in the possession and control of the respondent: see subs 4(4)(a) of the PPIP Act. However, on the basis of the affidavit evidence of Mr Brack, I note it is 'unsolicited information' and not information 'collected' by the respondent: see subs 4(5) and ss 8 -10 of the PPIP Act. Public interest consideration in favour of disclosure 47The respondent has not identified, in accordance with the test in s 13 of the GIPA Act what the public interest considerations in favour of disclosure are. Instead it has approached the issue by asking the question as to whether disclosure of the disputed information would advance any public interest consideration in favour of disclosure. 48On the other hand, the applicant had previously identified the following public interest considerations in favour of disclosure: * promote open discussion of public affairs, * enhance Government accountability, or contribute to positive and informed debate on issues of public importance, * inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. 49In my view, the abovementioned approach of the applicant is the correct approach and I would add the considerable general public interest in favour of disclosure of government information concerning development, applications and approvals and the monitoring of such developments to ensure compliance. 50As I have explained, in this application, the respondent appears to have accepted this strong public interest by disclosing the substance of the information in all four items, which in my view is correct. Where does the balance lie? 51In light of my findings, it is only necessary to consider where the balance lies in regard to the information for which the respondent has established that there is a public interest consideration against disclosure. That information is identified in paragraph 42 above. 52In this regard, the respondent appears to have only considered the objections of person A, person B, person C and person D to the disclosure of their name and address and the names of the individuals on page one of the attachment of the submission to the letter at item 3. 53Again, in my view, this approach is incorrect when determining where the balance lies between the public interest consideration against disclosure and the public interest in favour of disclosure. Although the views of person A, person B, person C and person D are relevant, they are not conclusive. Regard must also be had to the nature of the information in issue, the context in which it came to be held by the government agency and the reasons given by the third party objector as to why the information should not be disclosed. 54In this application, person A, person B, person C and person D have not marked their communication with the respondent to be confidential. 55As I have explained above, the information in item 1 is essentially a request, by person A, for information from the respondent. On the basis of information received by the respondent in the course of its consultation under s 54, I accept that the public interest consideration against disclosure of the name and email address of person A is very strong. And I also find, on balance, that the public interest consideration against the disclosure of person A's name and email address outweighs the public interest consideration in favour of disclosure. 56Person B, I note, objected to the disclosure of the entirety of the email on the grounds it was a private and confidential communication. As I have explained, the email was not marked as being sent in confidence. However, as the email is in essence a dissemination of the information person B received from the respondent, I accept that item 2 is a private communication by B and that the public interest consideration against the disclosure of his/her name and email address is strong. With the exception of the names and addresses of employees of the respondent, I make a similar finding in regard to the names and email addresses of the other individuals in the list of addressees. Finally, as the content of the email has been disclosed, I find, on balance, that the public interest consideration against the disclosure of person B's name and email address and the names and email address in the list of addressees (other than employees of the respondent) outweighs the public interest consideration in favour of disclosure. 57I note, person C and person D did not object to the substance of the information in their respective communication being disclosed (i.e. item 3 and item 4). However, they objected to their name and contact details being disclosed. Person C and person D did not give any reason for their objection. As I have explained, the names of individuals on page one of the attachment to the submission of the letter that is item 1 has also been deleted. However, the respondent has not provided any additional evidence about these names. 58In my view, given the context of the information in item 3 and item 4, the balance as to where the public interest lies in regard to the names of person C, person D and the other named persons differs to my findings above. 59Although person C and person D provided the information to the respondent after the respondent had made its submissions to the Minister and the Department on the Cobaki Lakes developments, in my view, they are nevertheless submissions in regard to that development, which I note will be ongoing for some time. Person C and person D describe the information they have provided to the respondent as being such. Furthermore, the content of each submission appears to be based on person C and person D's specific professional knowledge and expertise on environmental issues. That is, the communications are of a professional nature and not private. In my view, as the substance of the submissions have been disclosed the public interest in the disclosure of the name of the person who prepared those submissions is very strong. Accordingly, I find that the public interest consideration against the disclosure of the name of person C and person D, on balance, does not outweigh the public interest consideration in favour of disclosure of these names. 60In the absence of any evidence of objection to disclosure, I make a similar finding in regard to the deleted names of the persons on page one of the attachment to the submission that is item 3. 61This leaves the deleted address of person C and the deleted email address of person D. In my view, as these appear to be personal and private to person C and person D, the public interest consideration against disclosure, on balance, outweighs the public interest consideration in favour of disclosure. Conclusion and orders 62For the reasons set out above, I have found that the decision of the respondent, in part, is the correct and preferred decision. In other respects I have found that it is not the correct and preferred decision. Accordingly, the appropriate order is to affirm the respondent's decision, in part, and also set aside the decision in other respects. 63Accordingly I order: 1. The decision of the respondent in regard to the deleted information in the emails that are item 1 is affirmed. 2. With the exception of the deletions that are the names and email addresses of employees of the respondent, the decision of the respondent in regard to the deleted information in the email that is item 2 is affirmed. 3. The decision of the respondent in regard to the names and email addresses of employees of the respondent, as listed in the addressees of the email that is item 2, is set aside and in substitution thereof a decision that the applicant be granted access to this information. 4. With the exception of the deletion of the name of person C and the deletions under the heading 'At' and 'observed by' on page one of the attachment to the submission of the letter that is item 3, the decision of the respondent is affirmed. 5. The decision of the respondent in regard to the deletion of the name of person C and the deletions under the heading 'At' and 'observed by' on page one of the attachment to the submission of the letter that is item 3 is set aside and in substitution thereof a decision that the applicant be granted access to this information. 6. The decision of the respondent in regard to the deletion of person D's email address in item 4 is affirmed. The decision of the respondent in regard to the remaining deletions to item 4 is set aside and in substitution thereof a decision that the applicant be granted access to this deleted information. ********** 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: 30 May 2013