Civil and Administrative Tribunal New South Wales Medium Neutral Citation: McEwan v Port Stephens Council [2017] NSWCATAD 269 Hearing dates: 20 March 2017 Date of orders: 08 September 2017 Decision date: 08 September 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: S Montgomery, Senior Member Decision: The decision under review is affirmed. Catchwords: GOVERNMENT INFORMATION –public interests against disclosure - personal information – risk of harm or serious harassment or serious intimidation - balance of public interest considerations - overriding public interest against disclosure of information Legislation Cited: Government Information (Public Access) Act 2009 Health Records and Information Privacy Act 2002 Privacy and Personal Information Protection Act 1998 Cases Cited: AEZ v Commissioner of Police [2013] NSWADT 90 Attorney-General's Department v Cockcroft (1986) 10 FCR 180 Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 28 Kanak v NSW Department of Education and Communities [2017] NSWCATAD 206 McKinnon v Secretary, Department of Treasury [2006] HCA 45 Nasr v State of New South Wales [2007] NSWCA 101 Category: Principal judgment Parties: Paul McEwan (Applicant) Port Stephens Council (Respondent) Representation: T Webb (Agent for Applicant) Solicitors: L Marshall (Respondent) File Number(s): 2016/00378193 Publication restriction: Section 64 of the Civil and Administrative Tribunal Act 2013 applies to the material filed by the respondents on a confidential basis, to those paragraphs of these reasons identified as [Not for publication], to the evidence given in private before the Tribunal and to the record of that part of the proceedings conducted in private pursuant to section 49. That material is not to be released to either the Applicant or to the public without further order of the Tribunal. reasons for decision 1. Mr McEwan ("the Applicant") applied to Port Stephens Council ("the Council") under the Government Information (Public Access) Act 2009 ("the GIPA Act") for access to information held by the Council. His access application sought: A full and unedited copy of all the objecting submissions and attachments for the DA NO: 483 / 2011, including the original DA and subsequent 82a Requests for Review. 1. The Council's original decision refused access to the requested information. The Applicant was not satisfied with the response that he received from the Council and he sought external review in this Tribunal. 2. It was subsequently agreed between the parties that the Council would undertake a redetermination of the access application. 3. The redetermination was undertaken by Mr Tony Wickham, the Council's Governance Manager and Public Officer. The re-determination was based on the period 28 July 2011 to 11 August 2011 and 29 March 2012 to 12 April 2012. The 28 July 2011 to 11 August 2016 was the first occasion the development application was advertised, and 29 March 2012 to 12 April 2012 was the second occasion where submissions were invited. 4. Mr Wickham identified four documents as falling within the scope of the access application. In the notice of decision he stated: I have applied the public interest test and have determined that there is an overriding public interest against disclosure of the information sought. Pursuant to section 14 Table 3(a), (b) and (f), I have decided that disclosure of this information could reasonably be expected to have one or more of the following effects: reveal an individual's personal information; contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002; and expose a person to a risk of harm or of serious harassment or serious intimidation. Applicable legislation 1. The approach to be taken in applications under the GIPA Act has been considered in numerous cases before this Tribunal. Most recently this was discussed by Senior Member Leal in Kanak v NSW Department of Education and Communities [2017] NSWCATAD 206. 2. The objects of the Act are set out in section 3(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. 1. "Government information" is given a wide meaning under section 4 of the GIPA Act being "information contained in a record held by an agency." 2. The GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (section 5). In accordance with section 9(1) of the GIPA Act, the Applicant has a legally enforceable right to access the information requested, unless there is an overriding public interest against disclosing the information. 3. The general public interest considerations in favour of access to government information set out in section 12 of the GIPA Act mean that the balance is always weighted in favour if disclosure. 4. Section 13 of the GIPA Act provides - 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. 1. Section 13 of the GIPA Act requires decision makers to: * identify relevant public interest considerations in favour of disclosure, * identify relevant public interest considerations against disclosure, * attribute weight to each consideration for and against disclosure, and * determine whether the balance of the public interest lies in favour of or against disclosure of the government information. 1. Section 15 of the GIPA Act sets out the principles that apply to public interest determination 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. Section 14 of the GIPA Act provides: (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 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. 1. The table to section 14 sets out the relevant public interest considerations against disclosure. In this matter, the Respondent has identified three public interest considerations against disclosure as relevant. These are: 1. Clause 3(a) - that disclosure of the information could reasonably be expected to reveal an individual's personal information; 2. Clause 3(b) - that disclosure of the information could reasonably be expected to contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002; and Clause 3(f) - that disclosure of the information could reasonably be expected to expose a person to a risk of harm or of serious harassment or serious intimidation. 1. Section 105 of the GIPA Act provides that the onus is on the agency to justify its decision. In relation to each of the asserted section 14 table factors the agency must establish that the disclosure of the information could reasonably be expected to have the effect outlined in the table. 2. The words "could reasonably be expected to" are to be given their ordinary meaning: see Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 28 and Attorney-General's Department v Cockcroft (1986) 10 FCR 180. In Cockcroft, Bowen CJ and Beaumont J explained, at 190, that the words ...require 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. 1. In McKinnon v Secretary, Department of Treasury [2006] HCA 45 at paragraph [61] Hayne J pointed out that it is necessary for the Agency to demonstrate, with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect. 1. 'Personal information' is defined in clause 4 of Schedule 4 to 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. 1. Clause 1 in Schedule 4 to the GIPA Act provides that to 'reveal' information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure). Where an applicant is already aware of information, the release of the information could not 'disclose' or 'reveal' that information. The "essence of disclosure" is "making known to a person information that the person to whom the disclosure is made did not previously know": Nasr v State of New South Wales [2007] NSWCA 101 at paragraph [127]. 2. The mere fact that disclosure of the withheld information could reasonably be expected to lead to the identified outcome is not sufficient to allow the consideration against disclosure to override the presumption in favour of disclosure. It is necessary to determine what weight should be given to the various criteria having regard to the general terms of the GIPA Act, and the presumption in favour of disclosure." 3. Section 54 of the GIPA Act sets out the obligations to consult with third parties in certain circumstances before providing access to information relating to the person. It provides as follows 54 Consultation on public interest considerations (1) An agency must take such steps (if any) as are reasonably practicable to consult with a person before providing access to information relating to the person in response to an access application if it appears that: (a) the information is of a kind that requires consultation under this section, and (b) the person may reasonably be expected to have concerns about the disclosure of the information, and (c) 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. (2) Information relating to a person is of a kind that requires consultation under this section if the information: (a) includes personal information about the person, or (b) concerns the person's business, commercial, professional or financial interests, or (c) concerns research that has been, is being, or is intended to be, carried out by or on behalf of the person, or (d) concerns the affairs of a government of the Commonwealth or another State (and the person is that government). … The Issues for determination 1. The Applicant has sought access to information held by the Council. The Council has declined to release that material on the basis that there are overriding public interest considerations against disclosure of the information sought. The question for determination is whether that is the correct and preferable decision. The material before the Tribunal 1. The Council relies on the evidence of Mr Wickham. Ms Marshall also provided submissions on behalf of the Council. 2. The Applicant relies on his own evidence and submissions in support of his case. The Council's case 1. As noted, the Council determined to refuse to release any of the information that it identified as relevant to the access application on the basis there was an overriding public interest against disclosure. 2. The decision to refuse access was in accordance with the responses received to third party consultation with the authors of the submissions that the Applicant has sought. The Council submits that the information that has been withheld is personal information. It also submits that some of the documents contain details about the health of an individual. 3. The Council also submits that disclosure may expose a person to a risk of harm or of serious harassment or serious intimidation. It relies on the evidence of Mr Wickham in that regard, to demonstrate that the risk of harm or of serious harassment or intimidation is neither trifling nor transient. Mr Wickham provided confidential evidence in regard to these concerns. 4. [Not for publication] 5. [Not for publication] 6. [Not for publication] 7. [Not for publication] The Applicant's case 1. The Applicant's case is essentially that the considerations in favour of release of the information that he has requested outweigh the factors against release and that the Council has not established its case. 2. The Applicant submits that any personal information could be redacted from the documents. He contends that there is no basis for concerns regarding harassment or intimidation is unfounded. He says that he has not committed any offences since leaving his former address and that if his conduct had been as alleged there would have been action by the police. Discussion Clause 3(a) - that disclosure of the information could reasonably be expected to reveal an individual's personal information 1. On the basis of the totality of the material before me I am satisfied that the withheld information contains information about individuals that is 'Personal information' is defined in clause 4 of Schedule 4 to the GIPA Act. It is the opinions of the individuals and information from which their identities is apparent or can reasonably be ascertained. 2. It follows that the disclosure of the information could reasonably be expected to reveal an individual's personal information. I am satisfied that this is a factor that can be taken into account. 3. In the circumstances of this matter it is my view that clause 3(a) of the table to section 14 of the GIPA Act should be given reasonable weight. 4. I do not accept that it is feasible to redact any personal information from the withheld documents. Clause 3(b) - that disclosure of the information could reasonably be expected to contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002 1. On the basis of the material before me I am satisfied that there is information that has been withheld that relates to the health of an individual. The disclosure of that information to the Applicant could reasonably be expected to contravene a Health Privacy Principle under the Health Records and Information Privacy Act 2002. I am satisfied that this is a factor that can be taken into account. 2. In the circumstances of this matter it is my view that clause 3(b) of the table to section 14 of the GIPA Act should be given reasonable weight. Clause 3(f) - that disclosure of the information could reasonably be expected to expose a person to a risk of harm or of serious harassment or serious intimidation. 1. Clause 3(f) of the table to section 14 of the GIPA Act provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to expose a person to a risk of harm or of serious harassment or serious intimidation. 2. Judicial Member Molony considered clause 3(f) in his decision in AEZ v Commissioner of Police [2013] NSWADT 90 at paragraphs [83] – [94]. He stated: 83 The GIPA Act does not contain a definition of harm, serious harassment or serious intimidation. It is to be noted that harm is not qualified by the adjective serious. The Macquarie Dictionary online defines harm thus – noun 1. injury; damage; hurt: to do someone bodily harm. 2. moral injury; evil; wrong. –verb (t) 3. to do harm to; injure; damage; hurt. –phrase 4. in harm's way, in danger. 5. out of harm's way, out of danger. [Middle English; Old English hearm] 84 Harm is a concept frequently used by the law. The criminal law prohibits assaults occasioning bodily harm. This has been interpreted in its ordinary meaning to "include any hurt or injury calculated to interfere with the health or comfort of [the injured person]": see R v Donovan [1934] 2KB 498. "Serious harm" is a concept used in criminal defamation, which requires proof of an intent to cause serious harms. Section 40 of the Civil Law (Wrongs) Act 2002 (ACT) on the other hand defines "harm" to be harm of any kind, including personal injury, damage to property and economic loss. Harm is also a concept in child protection: in section 9 of the Child Protection Act 1999 (Qld) it is defined as "as any detrimental effect of a significant nature on the child's physical, psychological or emotional wellbeing." 85 In the context of s 14 of the GIPA Act I am inclined to the view the meaning of harm should be confined to a real and substantial detrimental effect on a person, rather than on their business interests. This is so given the juxtaposition of the word "harm" with the concepts of serious harm and intimidation, and the fact that economic and business interests are the subject of public interest consideration against disclosure in part 4 of the section 14 Table. A detrimental effect may be to a person's physical, psychological or emotional wellbeing. 86 Serious harassment is a separate and distinct concept. The Macquarie Dictionary online defines harass – verb (t) 1. to trouble by repeated attacks, incursions, etc., as in war or hostilities; harry; raid. 2. to disturb persistently; torment. [French harasser, from Old French harer set a dog on] 87 The concept of harassment is one familiar to anti-discrimination law, with sexual harassment being prohibited and subject to remedies. A consideration of those laws reveals that a common element in most jurisdictions is that the person harassed would be offended, humiliated or intimidated by the conduct in the circumstances: see Sex Discrimination Act 1984 (Cth), s 28A(1); Anti-Discrimination Act 1977 (NSW), s 22A; and Equal Opportunity Act 1984 (SA), s 87(9). 88 In Henderson v McKenzie [2009] ACTSC 39 Higgins CJ was considering a charge of stalking with intent to harass contrary to s 35(1)(c) of the Crimes Act 1900 (ACT). His Honour said, at [6-8] – 6. Harassment is not defined in the Crimes Act, nor, indeed, in the Criminal Code 2002 (ACT) (Criminal Code). However, it does seem in context to bear its usual meaning, ie "to trouble by repeated attacks; harry; (1) to worry or unnerve (an enemy) by continuous small attacks; (2) to disturb, worry, torment, distress with annoying labour, care or misfortune" (World Book Dictionary); "Vex by repeated attacks; trouble, worry" (Concise Oxford Dictionary). 89 All of the definitions of harassment require a consideration of how the conduct complained of is experienced by the person alleged to be harassed, and are concerned with whether that person was offended, worried, tormented, distressed or harassed by the conduct. In the context of the GIPA Act where the decision maker has to be satisfied that, if the information is disclosed, it could reasonably be expected that the disclosure would expose a person to serious harassment, the assessment of the impact of the conduct on the individual concerned is an objective one, although particular circumstances and vulnerabilities relating to that individual may be taken into account when making that assessment. 90 The GIPA Act makes specific mention of serious intimidation as another element of the public interest consideration against disclosure in point 3(f) of the Table to s 14, despite the fact that the two concepts of intimidation and harassment are clearly related. 91 Intimidation is defined by The Macquarie Dictionary online as – verb (t) (intimidated, intimidating) 1. to make timid, or inspire with fear; overawe; cow. 2. to force into or deter from some action by inducing fear: to intimidate a voter. [Medieval Latin intimidātus, past participle, made afraid. See TIMID] 92 Intimidation is defined in s 7 of the Crimes, Domestic and Personal Violence Act 2007 (NSW) thus – (1) For the purposes of this Act, intimidation of a person means: (a) conduct amounting to harassment or molestation of the person, or (b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or (c) any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property. 93 In PE V MU [2010] NSWDC 2 William DCJ referred to that definition and said - 15. Intimidatory conduct … is conduct amounting to harassment or molestation or contact by one person with another such as would cause the other person to fear for their safety. 16 Harassment is not defined in the Act but in its legal sense refers to ongoing behaviours that are found to be threatening or disturbing. … 1. At paragraph [94] of AEZ v Commissioner of Police, the Judicial Member noted that the intimidation or harassment is to be serious intimidation or serious harassment. He stated that the decision maker must be satisfied that release of the information could reasonably expose a person to intimidation or harassment that is heavy, weighty or grave, and not trifling or transient. 2. I agree with that view. 3. As noted above, section 55 of the GIPA Act provides that 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 personal factors of the application into account. These factors include the Applicant's identity and relationship with any other person, the Applicant's motives for making the access application, and any other factors particular to the Applicant. 4. [Not for publication] 5. The Council has provided confidential evidence in regard to its assertion that disclosure of the information could reasonably be expected to expose a person to a risk of harm or of serious harassment or serious intimidation. 6. In the circumstances I accept that this is a factor to be taken into account. 7. [Not for publication] 8. In the circumstances of this matter it is my view that clause 3(f) of the table to section 14 of the GIPA Act should be given significant weight. Public interest considerations in favour of disclosure 1. As I have noted above, there are a number of public interest considerations in favour of disclosure. These include the considerations set out in section 12 of the GIPA Act. There is a presumption in favour of release of the information. 2. The Applicant has raised numerous allegations of impropriety against Council officers. In my view there may be significant public interest considerations in "clearing the air" and/or ensuring transparency. Conclusion 1. I have considered the withheld information and the arguments relating to that information. The GIPA Act requires that the public interest considerations against disclosure be weighed against the public interest considerations in favour of disclosure. 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 out in section 15. 2. I have indicated that I consider that significant weight should be given to the factors relevant to clause 3(f) of the table to section 14 of the GIPA Act. I also consider that significant weight should be given to considerations pursuant to section 55 of the GIPA Act. 3. In the circumstances of this matter, it is my view that these factors are sufficient to outweigh the considerations in favour of release of the information. Accordingly, I am satisfied that the Council has satisfied the burden placed on it by section 105. 4. Accordingly, it is my view that the Council's decision to refuse access to that information is the correct and preferable decision. The decision should therefore be affirmed. Order 1. 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 September 2017