Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Marchant v Bland Shire Council [2013] NSWADT 303 Hearing dates: On the papers Decision date: 31 December 2013 Jurisdiction: General Division Before: G Walker, Judicial member Decision: Decision under review set aside Catchwords: Access application - code of conduct complaint-whether would prejudice supply of information - personal information Legislation Cited: Administrative Decisions Tribunal Act 1997; Government Information (Public Access) Act 2009; Privacy and Personal Information Protection Act 1998 Cases Cited: Attorney-General's Department v Cockcroft (1986) 10 FCR 180; Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252; Commissioner of Police, NSW Police Force v Camilleri [2012] NSWADTAP 19; Director-General, Department of Education and Training v Mullett & anor [2002] NSWADTAP 13; Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; Hurst v Wagga Wagga City Council [2011] NSWADT 307; Nature Conservation Council of NSW v Department of Trade and Investment [2012] NSWADT 195. Category: Principal judgment Parties: Guy Marchant (Applicant) Bland Shire Council (Respondent) Representation: G Marchant (Applicant in person) Ray Smith, General Manager, Bland Shire Council (Respondent) File Number(s): 133297 reasons for decision Background 1On 9 October 2013 the applicant Mr Guy Marchant applied to this tribunal under s 100 of the Government Information (Public Access) Act 2009 (GIPA Act) for a review of a decision by the respondent Bland Shire Council dated 28 August 2013 to refuse in part access to certain information in the Council's possession. 2The applicant is an employee of the respondent council, which had received a letter of complaint dated 18 June 2013 making certain allegations against him. The council investigated the complaint as a possible breach of its Code of Conduct. The tribunal has not been provided with a copy of the code (although a version of it is reproduced on the council's website), but apparently it lays down certain standards for the conduct of council employees and procedures for handling complaints. The council also apparently has a separate Code of Conduct Procedures, but the tribunal has not been provided with a copy of it, nor does it appear on the council's website. 3In this case the complaint alleged failure by the applicant to comply with standards applicable to the removal of asbestos. Following an investigation, the council dismissed the complaint. 4The access application sought the following information: " Full copy of the complaint letter dated 18 June 2013 in regard to allegation made against myself (Guy Marchant), including full details of name and address of the author/signature of the complaint". As the information requested included information that was personal information of another person, the council had consulted with the writer of the letter under s 54 of the GIPA Act before deciding whether or not to provide access to the information. The person concerned made no objection to the release of the information. 5At a planning meeting by telephone conducted on 10 December 2013, the parties requested that the tribunal should proceed to decide the matter "on the papers", that is, without conducting a hearing, as contemplated by s 76 of the Administrative Decisions Tribunal Act 1997 (ADT Act). They also asked the tribunal to decide the application on the basis of the material already before it, as they preferred not to adduce any further evidence. Applicable legislation 6The objects of the GIPA Act as set out in s 3 (1) are to advance the system of responsible and representative democratic government by authorizing and encouraging public release of government information by agencies, giving the public an enforceable right to access to government information and providing that such access is restricted only when there is an overriding public interest against disclosure. 7The term "government information" is given a wide meaning by s 4, being defined as "information contained in a record held by an agency". "Agency" is also defined in s 4 and includes "(e) a local authority". That phrase is in turn defined in clause 1 of schedule 4 to mean "a council or county council within the meaning of the Local Government Act 1993". Bland Shire Council is such a council and is therefore an agency to which the legislation applies. 8The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 5. Applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure: s 9. The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the "overriding secrecy laws" set out in schedule 1. In the case of those laws it is conclusively presumed that there is an overriding public interest against disclosure: ss 11 and 14. 9With respect to government information not covered by overriding secrecy laws, the Act establishes a principle that there is a public interest in favour of disclosure: s 12 (1). The category of public interest considerations in favour of disclosure is not limited: s 12 (2). That subsection then sets out several examples of public interest considerations in favour of disclosure. 10There can be an overriding public interest against disclosure only when the public interest test in s 13 is satisfied. It provides that "There is an overriding public interest against disclosure of the 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". 11In considering whether there is an overriding public interest against disclosure, the tribunal is to be guided by s 15 which provides, relevantly for present purposes, that agencies must exercise their functions so as to promote the objects of the GIPA Act and must have regard to any relevant guidelines issued by the Information Commissioner. 12The public interest considerations against disclosure are limited to those set out in the Table to s 14 of the Act. The respondent relies on the consideration in clause 1(d), namely that disclosure of the information "could reasonably be expected" to have the effect of "prejudic[ing] the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions". It also relies on clause 3(a), namely that disclosure "could reasonably be expected" to have the effect of "reveal[ing] an individual's personal information. In that regard the respondent refers to s 18 (1) of the Privacy and Personal Information Protection Act 1998 (PIPA Act), but does not appear to be relying on consideration 3(b), which specifically invokes the PIPA Act. 13In proceedings to review a decision made under the GIPA Act to refuse access to government information in response to an access application, the burden of establishing that the decision is justified lies on the agency, in this case the respondent: s 105. 14The issue in the present application is thus whether the correct and preferable decision is to release the redacted information (the complainant's name and address) to the applicant. Consideration 15The tribunal's function on review under s 63 of the ADT Act is to make the correct and preferable decision having regard to the material before it and any applicable "written or unwritten law" (meaning legislation or common law). It is well established that in considering an application for review the tribunal is not confined to the material that was before the deciding agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. 16The act adopts a structured approach that requires decision-makers to: (i) identify relevant public interest considerations in favour of disclosure, (ii) identify relevant public interest considerations against disclosure, (iii) attribute weight to each consideration for and against disclosure, and (iv) determine whether the balance of the public interest lies in favour of or against disclosure of the government information (Nature Conservation Council of New South Wales v Department of Trade and Investment [2012] NSWADT 195, [29]). 17The public interest test must be applied in accordance with the principles set out in s 12 and s 15 of the GIPA Act. 18The evidence this case falls into a small compass. The tribunal has been supplied with a copy of the decision by Mr Ray Smith, general manager, dated 28 August 2013 together with associated correspondence, and a confidential schedule of non-disclosure documents attaching the complainant's letter of 18 June 2013, which is itself redacted. 19The evidence relied on by the applicant consists of his statement of reasons for seeking a review of the decision, which is attached to his original application, together with an aerial photograph of the part of West Wyalong where his property is located. 20In his statement of reasons the applicant states that he seeks the identification of the author of the complaint letter in order to enable him to undertake the necessary action to help ensure his family's privacy and security. The respondent had supplied him with a copy of the complaint letter but not the name of the complainant. He further states that as the father of two young boys and a husband he is very concerned for his family's privacy and security, particularly as the complainant has both video and photographic evidence and has indicated that he had entered the applicant's property to take "samples" of material. 21Adding to his anxieties is his belief that his premises have potentially been under surveillance for over three years and may still be. That is a matter of great concern both for him and for his wife. His children are of an age that they, too, understand what is happening. 22Further, his work with the Bland Shire Council and with the state Fire and Rescue organization requires him to be away from home, and on occasions their children are at home alone while both parents are at work. Since they have received the complaint, the applicant's wife is afraid to go into their backyard and they have limited their boys' time in the backyard. West Wyalong is a small rural town of fewer than 3000 residents, such that most people know one another. Consequently, he is concerned that the complainant may have access to their child on a social, school or other basis in circumstances in which he cannot protect them. 23As was noted above, the public interest considerations in favour of disclosure are set out in s 12, which makes it clear that those considerations are not limited. In my view the general public interest in favour of the disclosure of government information is the most relevant consideration in favour of disclosing the redacted information. 24The public interest considerations against disclosure are limited to those set out in the s 14 Table. The respondent bears the onus of justifying the decision to refuse access to the redacted information, as well as the burden of establishing that the public interest considerations against disclosure apply. 25The considerations against disclosure relied on by the respondent are found in clause 1(d) and clause 3(a). It must therefore be shown that disclosure of the redacted information "could reasonably be expected" to have one or more of the effects set out in those clauses. 26The full Federal Court pointed out in Attorney-General's Department v Cockcroft (1986) 10 FCR 180 at 190 that the phrase requires -- "a judgment 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 that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like". 27See also Nature Conservation Council at [146]; Hurst v Wagga Wagga City Council [2011] NSWADT 307, [56]-[57]. Thus the enquiry is not whether the occurrence of the prescribed effect is likely, possible or probable. It is whether the expectation of the claimed effect is reasonably based: Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252, [61]. 28The operation of clause 1(d) of the s 14 Table was considered by this tribunal's appeal panel in Commissioner of Police, New South Wales Police Force v Camilleri [2012] NSWADTAP 19, [27] -- [33]. It adopted the appeal panel's approach in Director-General, Department of Education and Training v Mullett and anor. [2002] NSWADTAP 13, [58], that (the equivalent in the earlier legislation of) clause1(d) required the tribunal to engage in a relatively abstract analysis. It was to ask whether material of the kind sought to be protected would, if released, prejudice the supply of similar material to government in the future, as a matter of reasonable expectation. That required the tribunal to characterize the nature of the material sought to be protected on the present occasion; to identify the extent to which material of that kind could only reasonably be obtained by confidential communication; and the extent to which guarantees of confidentiality might be necessary. Further, the information not only must be "confidential information", but it must also be information that facilitates the effective exercise of the agency's functions (Australians for Sustainable Development, [64]. 29The question therefore was whether disclosure of the information sought would impair (damage) the agency's ability to obtain similar information in the future. 30The paragraph was not concerned with the question whether the particular complainant whose information was disclosed would give similar information in future, but whether the agency would be able to obtain such information [ibid]. That approach was adopted in Australians for Sustainable Development and has been endorsed in many subsequent tribunal and appeal panel decisions. 31In this case the information sought to be protected is the name and address of the complainant who alleged a Code of Conduct breach by the applicant. The Council's decision notes at para 4.5 that the Code of Conduct Procedures (part 13) states that information about code of conduct complaints and the management and investigation of such complaints " is to be treated as confidential and not publicly disclosed except as may be specifically required or permitted under the procedures". The decision also declares at para 4.3 the Council's opinion that releasing the information would impair the effectiveness of future Code of Conduct investigations on the basis that it would discourage the candid and voluntary provision of information by the general public. 32The respondent identifies circumstances that could constitute a consideration against disclosure of information in terms of clause 1(d): that disclosure could reasonably be expected to prejudice the supply to the agency of confidential information that facilitates the effective exercise of its functions. 33The next step is to attribute the appropriate weight to the clause 1(d) consideration. That is difficult to do as the respondent's case consists entirely of assertion or opinion unsupported by any factual material. In particular, it states that the relevant information could only be obtained from the public by offering a guarantee of confidentiality. But it refers, for example, to no instances in the experience of the council or other agencies that would support that assertion. 34The problem is illustrated by the Hurst case, which also concerned information relevant to a council code of conduct investigation. A council officer had given evidence that the protection of information encouraged the provision of candid information to the general manager, and as a matter of practice such information was kept confidential. The officer did not depose, however, to having any experience of code of conduct investigations where confidentiality was not maintained. Molony JM considered that her evidence did not identify any basis for a comparison between investigations where confidentiality had been maintained, and those where it had not. It failed to disclose a rational or underlying factual basis for the conclusion that the information could only be obtained by guaranteeing confidentiality or how disclosure could reasonably be expected to prejudice the effective operation of the council. It was held that clause 1(d) did not outweigh the general public interest in favour of disclosure (Hurst at [63] -- [71]). 35When weighing the considerations for and against disclosure, the tribunal is entitled to take certain personal factors into account (s 55). In this case they would include such matters as set out in the applicant's letter, including his family structure and circumstances, and the anxieties he and his wife felt over the presumed long-term surveillance of their property. The tribunal is under no obligation to inquire into, or verify, such claims: s 55(6). 36When performing the balancing process required by the public interest test in s 13, Higgins DP's remarks in Australians for Sustainable Development at [55] will be found apposite: "Ultimately, in determining where the balance lies between the competing interests, this 'is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation'". 37For the reasons set out above, the present case presents a weaker claim under clause 1(d) than Hurst. The respondent, after all, bears the burden of proof in such proceedings and is unlikely to be able to discharge it unless it adduces evidence of facts and circumstances such as might support its opinion. Even though the respondent's view is a quite plausible one, this tribunal is not at liberty to draw inferences at large. Further, the respondent's s 54 consultations revealed that the complainant had no objection to disclosure of the information. Even without taking into account the personal factors, therefore, I find that there is no overriding public interest against disclosure and that the general public interest in the disclosure of the government information outweighs the respondent's claim to protect the information under clause 1(d). 38The other ground on which the respondent relies is that disclosure could reasonably be expected to reveal an individual's personal information, within the meaning of clause 3(a) of the s 14 Table, the information in question being the name of the complainant. 39Personal information is defined in clause 4 of schedule 4 to mean information or an opinion about an individual, living or dead, whose identity is apparent or can reasonably be ascertained from the information or opinion. The clause also sets out some examples and certain exemptions, none of which apply in the present case. "Reveal" is defined in clause 1 of schedule 4 to mean "to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)". The tribunal is required by s 15(b) to have regard to any relevant guidelines issued by the Information Commissioner. IPC Guideline 4, para 1.2, states that a person's name and address constitute personal information but notes (para 3.17) that such information can still be released after application of the GIPA Act balancing test. 40In support of its argument under clause 3(a), the respondent refers to privacy principle 18 under the PIPA Act. That consideration is really an argument under clause 3(b), however, and will be dealt with separately below. 41The factor weighing in favour of disclosure on this count is the general public interest in favour of disclosure of government information, as in the case of the clause 1(d) argument. The fact that disclosure could reasonably be expected to have the effect of revealing personal information relating to the complainant is a consideration against disclosure. Given that in the present case the evidence shows that the complainant has no objection to disclosure of that information, it is difficult to attribute significant weight to that consideration. Further, the personal factors that the tribunal may take into account under s 55(1) are to be given due weight. In particular, "the applicant's motives for making the access application" (s 55(1)(b)) include his desire to protect his privacy and that of his family from what he regards as surveillance, and that constitutes a matter tending to favour disclosure. On balance I therefore find that there is no overriding public interest against the disclosure of the information. 42The respondent's other line of argument amounts to a case under clause 3(b) of the s 14 Table, on the basis that disclosure could reasonably be expected to contravene an information protection principle under the PIPA Act, specifically s 18(1) of that Act. 43That section provides that 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 person or body is a public sector agency", but that language is immediately followed by a set of exceptions, of which the first one reads: "(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 person concerned would object to the disclosure". 44While there is no reason to believe that the person concerned would object to disclosure, there is no evidence or other material before the tribunal to suggest that the disclosure would be directly related to the purpose for which the information was collected. Accordingly the exception does not apply and the privacy principle in question must be regarded as a public interest consideration against disclosure. 45Here again, it is difficult to attribute weight to this consideration as the respondent has provided no evidence or other material to support the claim beyond partially quoting s 18 itself. The s 54 consultations showed that the complainant in fact had no objection to disclosure of his or her identity. In addition, as in the case of the clause 3(a) ground, the personal factors, specifically the applicant's motives for making the access application, tend to favour disclosure. 46On balance, on weighing the various factors, I conclude that the considerations against disclosure, whether taken individually or together, do not outweigh the general public interest in favour of disclosure of the information. 47The decision under review is therefore set aside. ********** 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: 24 December 2014