Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Durie v Wollongong City Council [2016] NSWCATAD 288 Hearing dates: 20 June 2016 Date of orders: 08 December 2016 Decision date: 08 December 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: R Perrignon, Senior Member Decision: The decision under review is affirmed. Catchwords: ADMINISTRATIVE LAW – access to government information - application for access to completed Animal Seizure, Surrender and Release form – whether overriding public interest against disclosure of personal information of person who signed form – whether information protection principle would be breached Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009 Privacy and Personal Information Act 1998 Cases Cited: Commissioner of Police, NSW Police Force v Barrett (No 2) [2016] NSWCATAP 86 Salmon v Corrective Services NSW [2016] NSWCATAD 257 Category: Principal judgment Parties: Janeen Marise Durie (Applicant) Wollongong City Council (Respondent) Representation: Counsel: Z Hager (Respondent) Solicitors: J Durie (Applicant in person) File Number(s): 1510809 Publication restriction: 1) The disclosure, publication or broadcast of paragraphs 51, 52, 53, 54 of the reasons for decision is prohibited, except to the Respondent.2) The disclosure, publication or broadcast of any oral or written evidence or submissions lodged with, or given to, the Tribunal in confidence is prohibited, except to the Respondent. reasons for decision 1. The applicant, Ms Durie, was one of a number of persons who cared for a local cat. The cat was called different names by different people. The applicant called her, "Balla". On 30 July 2014 a person delivered the cat to an animal shelter operated on behalf of the Wollongong City Council. That person completed and signed an Animal Seizure, Surrender and Release form ('the form'), as required by the Council. 2. On 22 September 2015, Ms Durie applied to the Council for access to documents concerning the cat. The Council identified the form as being a relevant document. On 29 September 2015, Council decided to grant access to the form, but not to the personal details of the person who delivered 'Balla' to the shelter. It redacted those details from the form, including their name and signature. It gave written reasons for its decision. 3. On 19 October 2015, Ms Durie asked the Council to conduct an internal review of its decision. In the course of its review, the Council complied with its obligations under section 54 of the Government Information (Public Access) Act 2009 by consulting the person who had completed and signed the form. That person objected to the release of that person's personal information. 4. On 9 November 2015, the Council affirmed its original decision, with written reasons. 5. On 12 November 2015, Ms Durie applied to the Information Commissioner for review of the Council's decision of 29 September 2015. On 9 December 2015, the Commissioner issued a report, analysing the decision, and declining to make any recommendation against it. 6. Ms Durie seeks review by the Tribunal of the Council's decision of 29 September 2015. She asks the Tribunal to set aside the decision and to replace it with a decision to grant her access to the form, without redaction of the details of the person who completed the form. She submits that she has a legal right to access, as there is no overriding public interest against disclosure: section 9(1), Government Information (Public Access) Act 2009. 7. The Council says there is an overriding public interest against disclosure, because the public interest considerations in favour of disclosure are outweighed by those against: section 13. It accepts that there is a general presumption in favour of disclosing government information (section 5), and a general public interest in favour of disclosure: section 12. It also accepts that personal factors can be taken into account in favour of disclosure, including the fact that the Applicant cared for the cat, and collected it from the animal shelter: section 55. 8. However, it says these factors are outweighed by the following public interest considerations against disclosure, which are found in the Table to section 4: Disclosure of the information could reasonably be expected to reveal a person's personal information: clause 3(a). Disclosure of the information could reasonably be expected to contravene the information protection principle set forth in section 18 of the Privacy and Personal Information Protection Act 1998: clause 3(b). 1. It is uncontroversial that disclosure would reveal personal information of the person who delivered the cat to the shelter. The applicant told the Tribunal that she would be content with release of the person's name, but does not deny that this is personal information. 2. Section 18(1) of the Privacy and Personal Information Protection Act 1998 provides as follows: (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. 1. The Council says, and the Tribunal accepts, that the relevant individual objected to disclosure. There is no evidence to suggest that either paragraph (b) or (c) is applicable in this case. 2. In its decision of 29 September 2015, the Council also took into account the prospect that, if it released personal details of persons delivering animals to council shelters, they would be discouraged from doing so, which would jeopardise the procedure of delivering lost or stray animals to shelters to be being reunited with their owners. This was referred to in Council's written submissions. This consideration falls under clause 5(e) of section 12(2), which applies to disclosures which could reasonably be expected to 'prejudice any system or procedure for protecting, the life, health or safety of any animal'. For the reasons which follow, it has been unnecessary to consider this factor. 3. In its original decision, the Council also suggested that disclosure could reasonably be expected to 'expose a person to a risk of harm or of serious harassment or serious intimidation' in terms of section 12(2), clause 3(e). As this ground was not pressed at hearing, it is not considered here. 4. In reply, the applicant says that there is a further public interest in favour of disclosure of which the Council has not taken account, namely that disclosure 'could reasonably be expected to reveal or substantiate that the Council has engaged in misconduct or negligent, improper or unlawful conduct': section 12(2)(e), Government Information (Public Access) Act 2009. She says: 1. the act of the third party in presenting the cat to the shelter was misconduct, 2. the failure to indicate the person's reasons for delivering the cat was negligent, and 3. the Council was negligent in not contacting the person at the address disclosed as the possible home of the cat, or its then current carer. 1. These factors, she says, together with the public interests in favour of disclosure referred to above, tip the balance in favour of disclosure. Issues for determination 1. The sole issue for determination is whether there is an overriding public interest against disclosure of the personal details of the person who delivered the cat to the animal shelter. That depends on whether 'there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure': section 13, Government Information (Public Access) Act 2009. Legislation 1. The Government Information (Public Access) Act 2009 empowers the Tribunal to review decisions of an agency in respect of an access application, including decisions to refuse to provide access to information: sections 80 and 100. 2. The function of the Tribunal on review is to decide the correct and preferable decision, having regard to the material then before it: section 63, Administrative Decisions Act 1997. 3. Where access has been refused, the burden of establishing that the decision under review is justified lies on the agency: section 105, Government Information (Public Access) Act 2009. 4. The objects of the Act are set forth in section 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. 1. There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: section 5. 2. A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information: section 9. 3. There is a general public interest in favour of the disclosure of government information: section 12(1). 4. Public interest considerations in favour of disclosure include, but are not limited, to, the factors listed in subsection 12(2). Of these, the applicant relies on clause (e), which is extracted above. 5. There is an overriding public interest against disclosure of government information 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: section 13. 6. In effect, on review by the Tribunal, the Act requires that the agency prove that the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure. This has been referred to by the Appeal Panel as the 'weighing of the balance required by section 13': Commissioner of Police, NSW Police Force v Barrett (No 2) [2016] NSWCATAP 86 [at paragraph 22]. 7. Except where the decision is of a kind listed in Schedule 1 to the Act, which is not the case here, in weighing the balance required by section 13, the only public interest considerations against disclosure which may be taken into account are those set out in the Table to section 14: section 14(2). The only such considerations that Council relies on are those described above, namely that disclosure could reasonably be expected to reveal personal information, contravene an information protection principle, and prejudice the procedure by which members of the general public who seize stray animals deliver them to shelters to be reunited with their owners. 8. The words, 'could reasonably be expected' in section 14 are to be given their ordinary meaning, and require something more than a possibility, risk or chance of the relevant event occurring, assessed objectively: see Salmon v Corrective Services NSW [2016] NSWCATAD 257 [at paragraphs 22 – 30] and the cases there cited. 9. A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the principles set forth in section 15, which are as follows: "(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." 1. In determining whether there is an overriding public interest against disclosure, an agency is entitled to take the 'personal factors of the application' into account: section 55(1). These are: (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." 1. Those factors may only be taken into account as factors against providing access to the extent that they relate to whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2–5 of the Table to section 14: section 55(2). As indicated, the Council relied on the effects in clause 3(a) and (b) of that Table, and on prejudice to the procedure for the delivery of stray animals to shelters, which falls within clause 3(e). Applicant's evidence 1. The Applicant did not provide a formal written statement, but gave evidence by way of written submissions and a number of email communications and other documents attached to them. The history she gave is not in dispute. 2. She said that in 2008, the cat was found in a very poor physical condition, locked in a garage. It was discovered by occupants who were about to move into the property on which the garage was situated. The previous tenants had vacated two weeks earlier. The new occupants placed an advertisement on their employer's noticeboard that the cat needed a home. A fellow employee, who shall be described in these reasons by her first name, Vicki, responded to the advertisement and took the cat to live with her. 3. Vicki lived on a street near the Applicant's villa complex, and took the cat into her home. The cat tended to run away. In 2009, Vicki was told that it had made a home with a family at another address in her street. Vicki gave the cat to that family. 4. In July 2014, Vicki moved to Victoria for the purposes of her employment. Until she left her street, she would see the cat in her street from time to time, appearing healthy and cared for, and occasionally ducking into the nearby complex in which the applicant lived. 5. The applicant said that she cared for the cat for 5 years until its disappearance in July 2014. She said the cat would wander into the complex in which her villa was situated, and sleep on her bed at night. It was also cared for in other ways by the occupants of some other villas in the complex. In her application to the Tribunal, the applicant wrote [as written, save for the material in brackets]: '[Vicki] had rehomed the beloved puss to [another address in the same street] and she also found her way to me and 3 other villas in my complex. She was a very special friendly beautiful soul – a neighbourhood puss. She was kidnapped in an enclosed place and taken to Pound on 30/7/14 knowing her real owner and out of great MALICE TO ME!" 1. The Tribunal accepts that the applicant was fond of the cat and provided it with care, in addition to the care provided by others in the same villa complex. 2. On 30 July 2014, the applicant said, the cat disappeared. As indicated, it was delivered to the animal shelter on that day. The Animal Seizure, Surrender and Release Form was signed by the person delivering the cat. Under the heading, "Owner's details", is written "? [address]". That was the former address of Vicki. 3. The notes of the receiving officer were before the Tribunal. They reveal that on the next day, the Council officer made enquiries of the Dapto Veterinary Clinic about the microchip which was found on the cat. The clinic could not provide any details of the owner. 4. The officer's notes record that on 2 August 2014 the cat was identified by the applicant, who claimed that the cat was owned by the complex in which she lived and the complex was happy to have the cat there. The officer pointed out that only one person, not a whole complex, could be the owner of a cat. The applicant went away to raise the fee for the cat's release, and obtained the release that day. 5. At a later date, the applicant said, the committee of the Body Corporate of the applicant's complex issued a notice for the cat's removal from the complex. A mediation followed. At some point, the applicant thought she heard a loud screech coming from a backyard of another villa in her complex, occupied by the people with whom the mediation was being conducted. 6. By 16 June 2015, two days after the mediation, the cat had been missing for four days. On that day, the applicant discovered its body in a rubbish bin in the complex. Police were called. The applicant retained a veterinary surgeon to conduct an autopsy. The surgeon offered an opinion that the cat was killed by an acute high force blunt trauma to the head. The applicant believes that the cat did not meet with a car accident, but was bludgeoned to death. 7. She told the tribunal that she suspects that the person who took it to the pound killed her cat, thought she could not prove it. She believes that scream was uttered by the cat as it was being killed. In short, she believes the people who objected to the cat being in the complex, delivered it to the shelter on 30 July 2015, and killed it. 8. Her written submissions contained the following [as written, except for material in brackets]: She also found her way to [the applicant's] complex as she was a cat that luved to visit many people – A NEIGHBOURHOOD CAT WITH A BEAUTIFUL FRIENDLY SOUL! Not a nuisance cat! But I am aware of one person who intensely hates cats and LIKES TO GIVE ORDERS AS TO HOW OTHER PEOPLE SHOULD LIVE AND I WAS TOLD THAT IT WAS HIGHLY LIKELY THAT HE TRAPPED AND TOOK HER TO THE POUND IN GREAT MALICE TO HER CARER! NOT BECAUSE HE WAS CONCERNED FOR HER WELFARE WALKING DOWN [Vicki's street] WHICH WAS TOLD TO THE POUND! ….. The meanness and cruelty inflicted on my cat and myself prior to and post her death has me in a state of depression for which i have sought professional help. I believe the release of the information i seek would bring some justice for myself and the cat which is ALL I am trying to obtain. 1. On 22 September 2015, the applicant lodged an access application with the Council, seeking documents relating to the surrender of the cat on 30 July 2014. The decisions which followed are detailed above. 2. On 3 November 2015, she wrote to the Council in support of her application for internal review in the following terms [as written, except for material in brackets]: This is my beluved puss of 5 years and I have every right to find out who captured her and took her there on 30/7/14 when the person knew her real owner at [Vicki's former address] and my home of 5 years for the much luved BABYDOLL! She was luved by alot of people in [Vicki's street] as [she] was the neighbourhood puss of 6 years! She was rescued by [Vicki's address] as a baby trapped in a garage in [suburb] no food or water skin n bone – SHE WAS A SURVIVOR! WE SO LUVED HER! 1. Following the internal review decision of 9 November 2015, the applicant wrote to the Council as follows: Thanks but I would just like to let you know that this is now submitted to the IPC and then will go Consumer TRIBUNAL until I get the information as the Police told me that I could access it under freedom of information – I will be letting them know your decision because it is relevant to the case as per the third party objection! The whole matter is also going to the Strata Tribunal and then FACEBOOK – Justice for Balla! 1. The evidence of the applicant is uncontradicted, and I accept it as true, except so far as it expresses opinions about how her cat was killed and by whom. Her opinion as to the cause of the cat's death rests on the veterinary surgeon's report, which was read to the Tribunal though not tendered, and the fact that the cat's claws were intact. The applicant says that cats tend to grip the road when about to be hit by a car, and their claws are shaven off by the force of impact. Is unnecessary for the purposes of this decision to make any findings on the likely cause of death. Respondent's evidence 1. The respondent relied on two affidavits from Ms Lazarus, who made the internal review decision. One of those affidavits was a confidential affidavit. Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013, the Tribunal prohibits publication of the affidavit and the confidential documents tendered by the Council. The Council's evidence is not inconsistent with the version of events given by the applicant, save for her opinions. 2. The Council provided the Tribunal with a copy of the decision under review. It included the following observation: In verbal advice from the [shelter operator] the person who surrendered the cat thought the animal came from [Vicki's address] but couldn't confirm that with the property owner at the time. 1. [Not for publication] 2. [Not for publication] 3. [Not for publication] 4. [Not for publication] 5. For all those reasons, I am satisfied that the person who delivered the cat to the shelter did not live in the applicant's suburb, and did not know of the applicant's relationship to the cat. There is no evidence to suggest that the person knew of the applicant at all, or that the person had any prior dealings with the cat. I am satisfied that the person was concerned for the wellbeing of the cat. The person's decision to deliver the cat to the shelter was not motivated by malice of any kind. There is no evidence that the person was involved in the cat's death. On the evidence, that is highly unlikely. 6. I am satisfied that the Council had reason to believe that contacting the occupants of Vicki's former address would not reveal the identity of its current owner, and no reason to believe it would reveal the identity of others caring for it. Consideration and findings 1. Unless there is an overriding interest against disclosure, there is a presumption in favour of disclosure and the applicant has an enforceable right to it: sections 5 and 9. 2. The central issue is whether there is an overriding public interest against disclosure. Such an interest exists only if the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure: section 13. 3. There is a general public interest in favour of disclosure: section 12. 4. In favour of disclosure, the Tribunal may also take into account factors personal to the applicant, namely her identity, her motives for making the access application and any other factors personal to the applicant. In the circumstances of this case, the applicant's identity alone does not weigh in favour of disclosure. Her motives appear to be to gain redress pr revenge against the person whose identity is sought. That does not weigh in favour of disclosure. I do not take account of these factors as factors weighing against disclosure. 5. Other factors particular to the applicant are that she provided care to the cat together with others, and arranged for its release from the shelter. These factors weigh in favour of disclosure. 6. The applicant says that disclosure could reasonably be expected to reveal negligence, improper or unlawful conduct on the part of the Council. She says the act of delivering the cat to the shelter was misconduct, the failure to disclose the reasons for it was negligent, and Council's failure to make inquiries at Vicki's former address was negligent. 7. The act of delivering the cat to the shelter was not the act of Council. There is no basis for suggesting that it was improper. This does not weigh in favour of disclosure. 8. There is no evidence as to what reasons, if any, the person delivering the cat to the shelter gave to the receiving officer. I cannot be satisfied that reasons were not given, as the applicant suggests. Even if they were not given, any failure to give reasons for delivering the cat was not the act of Council, and there is no evidence to suggest that it was negligent. This factor does not weigh in favour of disclosure. 9. As indicated, it is likely that the receiving officer had reason to believe that enquiries at Vicki's former address would not reveal the identity of the cat's owner or carers. She had no reason to believe that such inquiries would reveal the identity of the cat's other carers, if any. It was not negligent for the Council to refrain from making inquiries of those occupants, and to concentrate its resources on making inquiries of another source. This factor weighs neither for nor against disclosure. 10. It is not disputed that disclosure could reasonably be expected to reveal the personal details of the third party, in terms of clause 3(a) of section 14. This factor weighs against disclosure. 11. I am satisfied that disclosure could reasonably be expected to contravene the information privacy principle set forth in section 18 of Privacy and Personal Information Act 1998, because the third party has objected to disclosure, and there is no evidence which would attract the remaining exceptions in section 18. This factor weighs strongly against disclosure. 12. It is necessary to weigh the general public interest in favour of disclosure, together with the applicant's care and affection for the cat and arranging for its release, against the fact that disclosure could reasonably be expected to reveal the third party's personal information and breach an information privacy principle. Having regards to the objects of the Act, and to the principles in section 15, I give weight to the factors in favour of disclosure. I also give weight to the fact that the disclosure could reasonably be expected to reveal personal information, and breach an information protection principle. The relevant principle is extracted above. As the parliament considered it sufficiently important to proscribe the breach of this principle specifically by legislation, I give greater weight to that factor. 13. Weighing the factors together, I find that the factors against disclosure outweigh the factors in favour of disclosure. 14. It has not been necessary to consider the potential for disclosure to discourage members of the public from surrendering stray animals to shelters so they may be cared for and reunited with their owners or carers. If taken into account, this factor would further tip the balance against disclosure. 15. For these reasons, I find that the correct and preferable decision was to decline access to the personal information of the third party, including the person's name, address and signature. 16. Pursuant to section 63(3) of the Administrative Decisions Review Act 1997, the decision under review is affirmed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 08 December 2016