Zonnevylle v Department of Education and Communities [2015] NSWCATAD 10

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Zonnevylle v Department of Education and Communities [2015] NSWCATAD 10 Hearing dates: On the papers Date of orders: 22 January 2015 Decision date: 22 January 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: S Montgomery, Senior Member Decision: 1. The Respondents determination in matter No. 1410331 is affirmed. 2. Matter No. 1410329 and matter No. 1410330 are listed for a further planning meeting on Thursday 5 March 2015 at 9.30am Catchwords: Government Information Public Access – reasonableness of charges - legal privilege - conclusive presumption - risk of serious harassment or serious intimidation - balance of public interest considerations - overriding public interest against disclosure of information Legislation Cited: Administrative Decisions Review Act 1997 Government Information (Public Access) Act 2009 Cases Cited: Singh v Legal Aid Commission (No 2) [2015] NSWCATAD 5 Category: Principal judgment Parties: Maxine Zonnevylle (Applicant) Department of Education and Communities (Respondent) Representation: Solicitors: File Number(s): 1410329,141330, 1410331

Judgment 1. The Applicant, Ms Maxine Zonnevylle, applied to the Respondent under the Government Information (Public Access) Act 2009 ("the GIPA Act") seeking access to information held by the Respondent. There are three applications for review before the Tribunal that are interrelated. 2. These reasons primarily concern matter No. 1410331. Matters Nos. 1410329 and 1410330 are dependent on the outcome of matter No. 1410331. If the Applicant is successful, then she will obtain much of the information that is the subject of the other two matters. 3. In matter No. 1410331 the Applicant's access application sought: 1. DEC policy document regarding use and management of DEC servers. This document should detail all cases in which DEC can block or filter access to DEC email system (i.e. incoming & outgoing emails using @det.nsw.edu.au) 2. Any related document to the above which details the circumstances, procedures, guidelines, processes whereby DEC or their representatives may take action such that a party may be filtered/blocked from corresponding with @det.nsw.edu.au users 3. Code of conduct policy for use and management of DEC IT systems and complaints handling & processes (including the details of the unit who is charged with handling complaints) 4. Documents relating to the blocking of all emails related to or associated with: Zonnevylle Industrial & Scientific Supply Co. Pty Ltd ISSCO ISSCOED Science Lab Supplies and any email addresses and websites associated with the above All keywords used in association with the blocking / filtering of the above 1. Documents detailing who in authority were either consulted with the blocking / filtering of the above person/company / keywords / websites / emails and authorized the blocking /filtering of the above person /company / keywords /websites / emails 2. Full list of all emails blocked /filtered to prevent communication between the above person / company / keywords / websites / emails This information to include: date; email of DET user; subject; message content 1. The access application also stated: PUBLIC INTEREST FACTOR REQUESTED. ALLEGED MISCONDUCT AND CORRUPTION ASSOCIATED WITH DEC SENIOR STAFF 1. The Respondent's Acting Principal Information Access Officer, Ms Jenni Pendergast, wrote to the Applicant in response to the access application and indicated that she could not identify the information requested in part 4 of the access application because the request 'was not specific enough'. Ms Pendergast made the following suggestion: Suggested amendment In order for me to identify the information please supply the email addresses of each of the five entities in your request and any relevant website addresses. Under s 55(5) of the GIPA Act the Department requires signed authority from these entities in order to release the above information because, as far as I can tell, it is not your personal information. If you provide a signed authority from these entities it may make it easier to process this part of your application. With no authority the Department is required to consult with each of these entities before releasing the information. As your current application stands I cannot identify the entities in order to contact them. Parts 1 - 3, 5 & 6 of your application are valid. If you remove part 4, seeking documents relating to the blocking of all emails related to or associated with the people or entities listed above, the application will become valid. Alternatively you may want to amend part 4 and provide authority as suggested above. 1. In response to Ms Pendergast's letter the Applicant provided the following information: "Documents relating to the blocking of all emails related to or associated with: a. Peter Zonnevylle and/or Maxine Zonnevylle (it would be very, very (very) unlikely for DET to have any other contacts by this surname) We are proprietors of Industrial & Scientific Supply Co Pty Ltd (as per business register) Payment of the application fee was made with a cheque from Industrial & Scientific Supply Co. Pty Ltd b. Names/websites/emails associated with Industrial & Scientific Supply Co. Pty Ltd include: Related emails: isscosyd@biqpond.com, iind1791@)bigpond.net.au - www.issco.com.au sales@issco.com.au; support@issco.com.au; accounts@issco.com.au www.isscoed.com &www.isscoed.com.au - sales@issco.com.au; support@issco.com.au; accounts@issco.com.au - sales@issco.com; support@issco.com;accounts@issco.com www.sciencelabsupplies.com.au salest@sciencelabsupplies.com.au; support@sciencelabsupplies.com.au; www.sciencesupplies.com.au sales@sciencesupplies.com.au; support@sciencesupplies.com.au All of the above are registered in the name of Peter Zonnevylle (or Industrial & Scientific Supply Co. Pty Ltd at our company address of 329 Concord Rd, Concord West NSW 2138". 1. Ms Pendergast accepted that the supplied information made the access application valid. She requested an extension of time to determine the application due to public service holidays but the Applicant declined that request. Ms Pendergast then requested that the Applicant pay an advanced deposit calculated at 50% of the estimated total processing charges. Ms Pendergast's request was in the following terms: Processing charge required Where the cost of dealing with an application is likely to exceed the amount of the application fee, an agency may impose a processing charge under section 64 of the GIPA Act. The time required to process your application includes identifying relevant information, searching for records, weighing up the balance of public interest factors and making a decision about access. It may also include work to consult with third parties or to delete parts of the records, if required. The prescribed rate is $30 per hour. The following table sets out the processing charges for work already undertaken to deal with your application and estimates of work and time still required for the Department to process your application, to the nearest 15 minutes. I I request you to pay an advance deposit of $285, calculated at 50% of the estimated total processing charges, as set out above. The $30 application fee you have already paid counts as a payment towards the processing charges. Although every effort has been made to prepare a reasonably accurate estimate, sometimes the tasks take a longer or shorter time than estimated. The balance of the processing charges, based on the actual time taken to process and including any adjustments, will be requested once a decision is made and prior to release of any material. 1. Ms Pendergast also noted that the Applicant had requested a reduction in the processing charges based on 'special benefit to the public'. Ms Pendergast stated: In certain circumstances applicants are entitled to a reduction in processing charges in accordance with section 66(1) of the GIPA Act, which states: 66 Discounted processing charge - special public benefit (1) An applicant is entitled to a 50% reduction in a processing charge imposed by an agency if the agency is satisfied that the information applied for is of special benefit to the public generally." (emphasis added) The test has three components: (1) The release of the information must benefit the public; (2) It has to be a "special benefit"; and (3) It is benefit to "the public generally". You have asserted that the information holds relevance to a special public benefit, namely 'alleged misconduct and corruption associated with DEC senior staff'. There is no evidence that there has been misconduct and corruption by senior DEC staff and in fact the matter was not pursued by the Independent Commission Against Corruption in 2012. The Department needs to consider whether the information requested will identify or contribute to the resolution of issues of genuine public concern. A mere public interest in favour of disclosure is not sufficient; the information must either be of special value to the public, or its disclosure would be reasonably expected to have a real and significant impact on a matter of public importance. My understanding of the wording of the GIPA Act is that the issues of concern would be likely to affect a large section of the public. In my opinion you have not identified what specific 'special benefit' will flow from the release of the information. I am of the view that information about alleged misconduct and corruption associated with DEC senior staff has no merit. Having regard to the above, I have decided to refuse your request for the 50% reduction in processing charges on the grounds that your claim for "special benefit to the public" lacks particulars and has not been substantiated. 1. It appears that the Applicant paid the advance deposit of $285 and the Respondent's Deputy Director-General Corporate Services, Peter Riordan, determined the access application. Searches were undertaken to locate information that fell within the scope of the access application. A total of 307 pages of information were located. Mr Riordan determined to grant the Applicant access, in part, to that information. He also decided that the Respondent does not hold some of the information sought and that some of it is publicly available. 2. However, Mr Riordan also decided that the information would not be released until have the Applicant paid the remainder of the processing charge. He stated that the balance owing was $1095 for an additional 36.5 hours work. 3. Mr Riordan stated that the searches had not located any documents regarding the use and management of the Respondent's servers. Nor were there located any related documents which detail the circumstances, procedures or guidelines regarding action taken to block or filter users. He stated that the blocking or filtering of emails is done on a case by case basis and therefore there are no policy or guideline documents held. 4. Mr Riordan stated that the Respondent's Code of Conduct and Complaints handling policies are available on its website and therefore the information is publicly available. 5. In relation to the request for information concerning blocking/filtering specific email addresses, Mr Riordan stated: I am satisfied that the Department holds 307 pages of information relevant to points 4, 5 and 6 of your access application. I have decided to grant you access to most of the information and to refuse access to a small part of the information under section 58(d) of the GIPA Act. I have examined all of the records, deleted information only where there is an overriding public interest against disclosure or legal privilege applies, as discussed below, and released the remainder to you. ... Access refused to information subject to legal professional privilege ... In the schedule of information not released is listed information which is considered to be subject to legal professional privilege. ... I have decided to refuse access to the legally privileged information contained in the records under section 14 (1) and section 58(d) of the GIPA Act. A copy is provided with the privileged information deleted, in accordance with section 74 of the GIPA Act. Access refused to names of some staff members The information captured by your application contains the names of a large number of staff members. The names of the senior officers who made various decisions about blocking or filtering email addresses mentioned at point 4 of your application are released under this decision. However I have decided to refuse access to the names of other staff members who were not involved in those decisions. In making this decision I have applied the public interest test under sections 12 to 15 of the GIPA Act. Public interest considerations in favour of disclosure: There is a general public interest in favour of disclosure (s. 12(1)); 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 (s.12(2)(b)); Disclosure of the information could reasonably be expected to reveal or substantiate that an agency has engaged in misconduct or improper conduct. Public Interest considerations against disclosure are contained in the table at section 14 of the GIPA Act and the following item is relevant: Item 3(f) - Disclosure of such information could reasonably be expected to expose a person to a risk of harm or of serious harassment or serious intimidation. Section 55 of the GIPA Act allows an agency to take into account certain personal factors particular to an applicant when deciding whether there is an overriding factor in favour of or against disclosing information. The personal factors may include: a) Your motives for making the application b) Your identity and relationship with any other person; c) Any other factors particular to you I am entitled to have regard to information provided by you or any other person. Your application indicates the reason for your request as "alleged misconduct and corruption associated with senior DEC staff*. However you have not provided any evidence. I am aware that Mr Peter Zonnevylle has made many complaints over a two-year period about alleged corrupt conduct by senior officers of the Department, in particular, officers working in the Procurement Solutions Directorate. Mr Zonnevylle has published the names of officers whom he believes to be corrupt. He sends facsimile messages on a regular basis alleging misconduct and naming officers whom he considers are responsible. Mr Zonnevylle alleges that there has been misconduct and corruption by senior DEC staff. There is no evidence of this alleged misconduct and Mr Zonnevylle's complaint to the Independent Commission Against Corruption in 2012 was not pursued by the ICAC. The Department has also afforded Mr Zonnevylle the opportunity to take his grievances to the NSW Ombudsman. On my examination of the records relevant to your access application, and taking into account the outcome of Mr Zonnevylle's complaint to the ICAC, there appears to be no evidence to substantiate your suggestion that the information could reveal misconduct by officers of the Department. Some staff members who were not involved in the decisions concerning the blocking or filtering of the email addresses have particularly asked for their names to be redacted from the records because they genuinely fear that their names may be published on websites operated by Mr Peter Zonnevylle as being corrupt officers. They fear that they will be harassed by receiving unsolicited facsimile messages on a daily basis, as currently occurs with some senior officers of the Department. Disclosing the names and telephone numbers of these staff members has no bearing on your application which seeks information about staff that had authority to block emails from the listed email addresses. Disclosing these details does not inform the public about the operations of agencies. After weighing up the public interest considerations in favour of and against disclosure, I find that the public interest in protecting the names and telephone numbers of the staff members who did not make decisions about blocking or filtering your listed email addresses considerably outweighs the public interest in disclosing the information. I find that there is an overriding public interest against disclosure of those names and have decided to refuse to release this information to you under section 14(2), table item 3(f) and section 58(d) of the GIPA Act. A copy is provided with the names of officers deleted, in accordance with section 74 of the GIPA Act. The schedule sets out the pages from which information has been deleted under this provision. … GIPA-13-252 Processing charges ... Due to the large volume of information that Mr Peter Zonnevylle has sent to the Department, the time actually taken by Procurement Solutions Directorate to search through hundreds of emails and faxes in electronic records system (TRIM) has taken an extra 10 hours work. Procurement had to examine, extract and copy the relevant pages relating to your access application from 1431 record items. It has taken an extra seven hours to review and redact over 1300 names and contact numbers from the records. At the time the work estimates were made on 19 December 2013, the directorates had not identified the information to be redacted and so it was not included in the original estimate. The total actual time taken to process your application was 47 hours and the total processing charge is $1410.00. You have paid the application fee of $30 and the deposit of $285.00, which covers 10.5 hours of processing time. Therefore the outstanding balance is $1095.00 for the remaining 36.5 hours of work already undertaken. The records for release and the schedule of information not released will be provided when the balance of the processing fee of $1095.00 is received by the Information Access Unit. I am aware that you are seeking a review by the Information Commissioner of the decision to refuse your request for a 50% reduction in the processing charge, made on 19 December 2013. 1. The Applicant requested the Information Commissioner review the Respondent's decision. The Information Commissioner did not make any recommendations in relation to the decision. 2. The Tribunal's function on review under section 63 of the Administrative Decisions Review Act 1997 is to make the correct and preferable decision having regard to the material before it before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the 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] AATA 179; (1979) 46 FLR 409.