Miller v NSW Roads and Maritime Services [2014] NSWCATAD 224

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Miller v NSW Roads and Maritime Services [2014] NSWCATAD 224 Hearing dates: On the papers Decision date: 18 December 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: S Montgomery, Senior Member Decision: 1. The decision to refuse to release the photograph is set aside. 2. In its place the decision is made that the photograph is to be released in a form which removes the possibility of the children's identity being either apparent or reasonably ascertainable. Catchwords: Government Information (Public Access) - reveal an individual's personal information - whether there is an overriding public interest against disclosure of the information in the form requested by the applicant Legislation Cited: Civil and Administrative Tribunal Act 2013 Administrative Decisions Review Act 1997 Government Information (Public Access) Act 2009 Cases Cited: Black v Hunter New England Local Health District (No 2) [2012] NSWADT 235 Category: Principal judgment Parties: Peter Miller (Applicant) NSW Roads and Maritime Services (Respondent Representation: P Miller (Applicant in person) Henry Davis York Lawyers (Respondent) File Number(s): 1410004

reasons for decision 1The Applicant, Mr Peter Miller, applied to the Roads and Maritime Services ("RMS") under the Government Information (Public Access) Act 2009 ("the GIPA Act"). His access application sought access to the following information: The entire file MA12/2637 relating to Mr John Edward Garnett with DOB 05/07/1940 and concerning an alleged offence committed on 17/3/12 including any ensuing or related correspondence to that matter. 2The Applicant's request related to an incident which occurred on 17 March 2012 ("the Incident"). On that date the Applicant, in his capacity as a Boating Safety Officer employed by RMS, issued a member of the public with a Penalty Infringement Notice for a breach of boating safety regulations. The alleged offence was the operation of a vessel without carrying the required safety equipment. 3The member of the public subsequently lodged a complaint regarding the Applicant's conduct during the Incident. RMS commenced a disciplinary investigation into the Applicant's conduct and the circumstances in which the Infringement Notice was issued. In September 2012, RMS notified the complainant of its decision to withdraw the Infringement Notice. 4RMS identified a total of 78 pages of information as falling within the scope of the Applicant's request. The decision was taken to grant the Applicant access to the majority of the requested information. However, access was refused in relation to some of the information, on the basis that the release could reasonably be expected to either: * reveal an individual's personal information; and/or * prejudice the conduct, effectiveness or integrity of an investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results; and/or * information which was identified as subject to legal professional privilege. 5RMS decided that there is an overriding public interest against disclosure of that information. It decided not to waive legal professional privilege in respect of the information that was withheld on that basis. 6The Applicant requested an internal review of the RMS determination. On review, RMS determined to release several additional documents. However, RMS affirmed its decision to withhold several documents, stating: I find that there is an overriding public interest against disclosure of the following information for the reasons given above: - All personal information on pages 4, 33, 40 and 42; - NSW Government Licensing System printouts dated 18 May 2012 at page 35; - NSW Government Licensing System printouts dated 11 May 2012 at page 45; - File note at page 51; - File note dated 14 September 2012 at page 52; - Email dated 23 August 2012 at page 73; - Email dated 20 August 2012 at page 74; - Email dated 19 August 2012 at page 75; and - Email - Subject External Complain dated 16 August 2012 at page 76. 7The Applicant applied to this Tribunal for external review of the RMS determination pursuant to section 100 of the GIPA Act. He noted that of the 78 documents identified as falling within the scope of his access application, thirty pages were withheld in full and the remaining forty eight pages were heavily redacted. 8At a planning meeting before the Tribunal the Applicant subsequently further narrowed the scope of the request. However, he maintains that the RMS disciplinary investigation file pertaining to the Applicant's alleged conduct in the course of the Incident is within the scope of the access application. He contends that his access application was broadly worded to include the prosecution file as well as any ensuing or related correspondence. He contends that this included the ensuing and related disciplinary investigation file. 9RMS contends that the disciplinary investigation file is outside the scope of the Applicant's access application. However, RMS is willing to treat the Applicant's request for the disciplinary investigation file as an informal request for documents pursuant to section 8 of the GIPA Act. 10Copies of the Requested Documents and the Disciplinary Investigation File were provided to the Tribunal. 11As a result of negotiations between the parties, the Applicant agreed to the redaction of personal information and information which is subject to a claim for legal professional privilege and RMS agreed to release each of the requested documents to the Applicant. RMS also agreed to release the disciplinary investigation file, subject to one exception. RMS did not agree to release a photograph ("the photograph") contained in the disciplinary investigation file, on the basis that it is personal information in accordance with item 3(a) of the table to section 14 of the GIPA Act. 12The parties have therefore reached agreement in relation to each issue, with the exception of the photograph.