Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Veall v Department of Planning and Environment [2018] NSWCATAD 47 Hearing dates: 9 October 2017 Date of orders: 23 February 2018 Decision date: 23 February 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: D Dinnen, Senior Member Decision: 1. The Respondent's decision dated 28 June 2017 is set aside. 2. Within 7 days the Respondent is to provide the Applicant with a copy of the information sought, re-redacted to withhold only the information which identifies the informant. Catchwords: ADMINISTRATIVE LAW – Access to government information – informant – personal information – opinion as personal information - correct application of public interest test – correct and preferable decision Legislation Cited: Administrative Decisions Review Act 1997 NSW Civil and Administrative Tribunal Act 2013 NSW Government Information (Information Commissioner) Act 2009 NSW Government Information (Public Access) Act 2009 NSW Information Commissioner Guidelines 4 Cases Cited: Alexander v University of Sydney [2008] NSWADT 214 Applicants v Commissioner of Police (NSW) [2015] NSWCATAD 22 Attorney General's Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180 Battin v University of New England [2013] NSWADT 73 Bourke v Roads and Maritime Services (NSW) [2012] NSWADT 272 Flack v Commissioner of Police, NSW Police Force [2011] NSWADT 286 Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 Leech v Sydney Water Corporation [2010] NSWADT 198 Neary v State Rail Authority [1999] NSWADT 107 New South Wales Office of Liquor, Gaming and Racing v Fahey (GD) [2012] NSWADTAP 55 Public Service Assn v Premier's Department [2002] NSWADT 277 Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98 Roy v Commissioner of Police, NSW Police Force [2012] NSWADT 120 Category: Principal judgment Parties: James Veall (Applicant) Department of Planning and Environment (Respondent) Representation: In person (Applicant) Department of Planning and Environment (Respondent) File Number(s): 2017/206304 Publication restriction: None reasons for decision Background 1. On 18 January 2017 Mr James Veall ("the Applicant") made a request to the Department of Planning and Environment ("the Respondent") for access to information as follows: 1. The information received by the Department of Planning and Environment that initiated the investigation including any complaint; 2. All information relating to the investigation including any work papers and correspondence; 3. The results of the investigation by Department of Planning and Environment including any working paper; and 4. The sources used to obtain data in relation to the number of flights made in any one time period. 1. The Applicant has a contract with Emirates Resorts to provide helicopter flights between Sydney Airport and the Wolgan Valley resort. "The investigation" was an investigation by the Respondent into an allegation that Emirates Resorts breached planning approval in relation to the number of helicopter flights allowed per week to and from its Wolgan Valley Resort. 2. On 28 June 2017 the Respondent issued an internal review decision ("the reviewable decision"), and on 7 July 2017 the Applicant sought administrative review by the Tribunal of the Respondent's reviewable decision. 3. The Respondent produced documents to the Applicant in response to the access application, but initially withheld, and then redacted portions of the following: Doc no. Folio no. Description of record 2 3 – 32 Correspondence – Complaint, various dates 3 33 – 38 File notes, various dates 6 46 – 62 Correspondence, internal & company search, 16/9/16 7 63 – 74 Correspondence internal 18/8/16 14 98 – 106 Photograph & activity log, undated 18 159 - 190 Enforcement checklist and other information, various dates 1. The Respondent withheld and then redacted portions of those documents on the basis that the public interest considerations against disclosure at clause 1(d), (f), 3(a) and 3(b) of the table to section 14 of the Government Information (Information Commissioner) Act 2009 NSW ("the GIPA Act") outweighed those in favour of disclosure. 2. The Applicant seeks access to the redacted and withheld material, specifically that which identifies the complainant whose complaint led to the investigation conducted by the Respondent. Tribunal's jurisdiction and powers 1. The Tribunal's jurisdiction to conduct this review derives from s100 of the GIPA Act read with s 28 of the Civil and Administrative Tribunal Act 2013 (NSW) and s 9 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act). 2. In determining the application, the Tribunal is to decide what the correct and preferable decision is having regard to the material before it: ADR Act, s 63(1). The Respondent bears the onus of satisfying the Tribunal that the decision it has made is the correct and preferable decision: GIPA Act, s 105(1). The Respondent is not limited to defending the matter on the same basis as it made its original decision: Public Service Assn v Premier's Department [2002] NSWADT 277 at [57] and [59]. 3. In determining the application, the Tribunal may affirm the decision, vary the decision, set aside the decision and make another decision in substitution for the decision set aside, or set aside the decision and remit the matter for reconsideration by the Respondent in accordance with any directions or recommendations of the Tribunal: ADR Act, s 63(3). 4. In determining the application, the Tribunal is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure: s 107(1) of the GIPA Act. The GIPA Act 1. Section 3(1) of the GIPA Act provides: 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. 1. Section 3(2)(a) of the GIPA Act requires that the Act be interpreted and applied so as to further that object. 2. Section 5 of the GIPA Act establishes a presumption in favour of disclosure of government information. An access applicant has a legally enforceable right to access the information requested unless there is an overriding public interest against disclosing the information: section 9(1) of the GIPA Act. 3. Section 12 of the GIPA Act sets out the general public interest consideration in favour of access to government information. Section 12(1) of the GIPA Act sets out a general public interest in favour of disclosing government information. Section 12(2) provides that the agency may take into account any other considerations in favour of disclosure which may be relevant. 4. Section 13 of the GIPA Act sets out the public interest balancing test for determining whether there is an overriding public interest against disclosure. The balance is always weighted in favour of disclosure. Before deciding whether to release or withhold information, an agency must apply the public interest test and decide whether or not an overriding public interest against disclosure exists in regard to the information sought. Section 13 requires the decision maker to: 1. identify relevant public interest considerations in favour of disclosure, 2. identify relevant public interest considerations against disclosure, 3. attribute weight to each consideration for and against disclosure, and 4. determine whether the balance of the public interest lies in favour of or against disclosure of the government information. 1. The only public interest considerations against disclosure that can be considered are those identified in section 14 of the GIPA Act. This includes considerations set out in schedule 1 to the GIPA Act. Considerations against disclosure will only be relevant if it is established that the disclosure of the information could reasonably be expected to have the effect outlined in the table to section 14 of the GIPA Act. In these proceedings, the Respondent relied on the considerations at 1(d), 1(f), 3(a), and 3(b) as the relevant public interest considerations against disclosure, which are: 1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally): … (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, … (f) prejudice the effective exercise by an agency of the agency's functions, … 3 Individual rights, judicial processes and natural justice There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects: (a) reveal an individual's personal information, (b) 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. Pursuant to section 105 of the GIPA Act the burden of establishing that the decision is justified lies on the Respondent. 2. The Tribunal is to determine where the balance lies between the public interest considerations for and against disclosure. The balancing exercise "is a question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation": Battin v University of New England [2013] NSWADT 73 at paragraph [74]. In undertaking this exercise the Tribunal is to be guided by section 15 of the GIPA Act. 3. Section 54 of the GIPA Act requires an agency to 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. 4. Under section 55 of the GIPA Act, the Tribunal is entitled to consider the Applicant's motives for making the application to the extent that it is relevant to whether disclosure could reasonably be expected to have any of the effects referred to in clauses 2 - 5 of the Table to section 14. The personal factors of the application can also be taken into account as factors in favour of providing the Applicant with access to the information. "Could reasonably be expected…" 1. The words "could reasonably be expected to" have been held to require "something which is more than a mere risk or chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived": Leech v Sydney Water Corporation [2010] NSWADT 198 at [28], adopted in Flack v Commissioner of Police, NSW Police Force [2011] NSWADT 286 at [41]-[42] and cited in Roy v Commissioner of Police, NSW Police Force [2012] NSWADT 120 at [28]. While it must be a "real" risk, the chance of it materialising need not be more probable than not: Neary v State Rail Authority [1999] NSWADT 107 at [35]-[36] and the cases there cited. The phrase "'simply calls for an "objective assessment', on the evidence before the Tribunal, as to whether the claimed effects could be expected to arise, from the standpoint of a reasonable administrator. Ultimately, it is of course a question of fact": Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. 2. In Attorney General's Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180 at 190, Bowen CJ and Beaumont JJ interpreted the term in the following way: In our opinion, in the present context, the words "could reasonably be expected to prejudice the future supply of information" were intended to receive their ordinary meaning. That is to say, they 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 Commonwealth or any 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. The word "expected" is not to be given too wide a meaning in light of the objectives of the statute: Cockcroft per Sheppard J at 112. The occurrence of the prejudice does not have to be established on the balance of probabilities but there must be something more than a possibility, risk or chance of the event occurring: Cockcroft per Bowen CJ and Beaumont J at [106]. Consideration 1. The Respondent submitted that there were no public interest considerations in favour of disclosing the information that would reveal the identity of the Informant, other than the general public interest in favour of disclosure found in section 12, which should be given little weight. It stated further that the public interest was served when the Respondent released information about the investigation in response to the Applicant's information access application, and that the identity of the Informant was not necessary to understand the context and outcome of the investigation. 2. The Applicant raised four public interest considerations in favour of disclosure of the information, namely that disclosure of the information could reasonably be expected to: 1. inform the public about the operations of agencies, and, in particular, their policies and practices for dealing with members of the public; 2. reveal the reason for a government decision and any background or contextual information that informed that decision; 3. reveal whether a complaint to an agency about members of the public was bona fide; 4. reveal whether a complaint to an agency about members of the public was motivated by potentially improper or malicious considerations (e.g. harassment, commercial advantage). 1. I disagree that the only public interest consideration in favour of disclosure was the general public interest consideration at s 12(1) of the GIPA Act. On the evidence, the disclosure of information regarding the Respondent's investigation could reasonably be expected to inform the public about the Respondent's operations, policies and practices for dealing with members of the public, including those who have complained anonymously. Similarly, that information regarding the Respondent's investigation could reasonably be expected to reveal the reason, background and context for a decision regarding the subject of the complaint, which is what occurred. It could also reasonably be expected to promote or inform discussion or debate on issues of public importance such as the role of the Respondent in enforcing and regulating flight restrictions. 2. I do agree, however, with the Respondent's submissions that the considerations identified by the Applicant must be viewed in the context of the information the Applicant is seeking access to, and that the public interest was served when the Respondent released information about the investigation in response to the Applicant's information access application. On my review of the evidence, disclosure of the identity of the Informant is not necessary to understand the context and outcome of the investigation, and does not alter the significance of any of the public interest considerations in favour of disclosure. Whilst I would ascribe reasonable weight to those public interest considerations in disclosing the information sought by the access application, these are of minimal to no weight if the disclosure sought is to the identification of the informant only. 3. The Applicant submitted that public interest considerations in favour of disclosure included those outlined at paragraphs 25(3) and 25(4) above. Whilst the considerations identified at s 12(2) of the GIPA Act are not an exhaustive list, they are fundamentally distinguishable from those considerations posed by the Applicant in that (with the exception of s 12(2)(d) which deals with disclosing personal information to the object of that information) they concern the conduct of the agency in fulfilling its public role and obligations, and conduct of the agency's officers. There is no identifiable public interest in the bona fides or intent behind complaints made by a member of the public to an agency, because anyone can make a complaint to an agency, for any reason. The public interest only arises when the agency deaIs – or doesn't deal – with the complaint, in the manner that it engages its resources, functions and processes to consider, investigate, determine, and react to the complaint and any consequences for the agency or for the public as a result of those processes. 4. In these circumstances, I find that there is no public interest in disclosing information to reveal whether a complaint made to an agency by a member of the public was bona fide or was motivated by potentially improper or malicious considerations, such as harassment or commercial advantage. Those are matters for the applicant's private interest, not the public interest. 5. The Respondent relied on the considerations at 1(d), 1(f), 3(a) and 3(b) of the Table to s 14 of the GIPA Act as the relevant public interest considerations against disclosure of the information sought. In relation to the considerations at 1(d) and 1(f), the Applicant submitted that, first, the Respondent had not adduced evidence on which the Tribunal could be satisfied that the documents (or parts of documents) to which access was sought "would be expected to prejudice the supply of confidential information or even contain confidential information"; second, that the types of documents sought would not contain confidential information; and third, that the information, including the identity of the complainant, had already been disclosed. 6. The Respondent submitted that the withheld documents established the confidential nature of the information sought, and that the importance of agencies being able to provide confidentiality in the context of investigations is supported by the findings in Alexander v University of Sydney [2008] NSWADT 214 and Bourke v Roads and Maritime Services (NSW) [2012] NSWADT 272. I agree with those submissions, but whilst the withheld documents demonstrate that confidentiality was sought by the informant prior to providing information to the Respondent, there is no evidence to suggest that the informant would have withheld that information if confidentiality was not provided. The assurance given by the Respondent to the informant is limited to confidentiality of the informant's "personal details". 7. There is also no evidence adduced demonstrating why disclosure of the information as a whole would prejudice the supply of confidential information to the Respondent, or prejudice the effective exercise of the Respondent's functions. I accept that, on the evidence and in accordance with the Respondent's submissions, naming an informant could reasonably be expected to prejudice the supply of information to the Respondent. On my review of the withheld documents and the submissions I also accept the Applicant is speculating as to the identity of the informant, and that this has not, in fact, been disclosed so as to no longer be considered "confidential" information. 8. In Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98 at [40], Molony JM referred to s 105(1) of the GIPA Act and commented that, "[w]here there is material indicating that the information has already been publicly disclosed, that burden requires the agency to establish that it was not." The Applicant squarely raised in submissions and in evidence that publicly available documents would likely be included in the information sought, specifically the flight times and flight paths of all aircraft in New South Wales, including helicopters, which is publicly available online at websites such as www.flightaware.com, and the Respondent has withheld such documents on the basis that they were supplied either directly or indirectly by the Informant. The Respondent has not established that any such information was not already publicly disclosed. 9. I therefore afford the considerations at 1(d) and 1(f) to the Table at s14 of the GIPA Act little weight in relation to the documents containing information identified by the Respondent to answer the access application, with the exception that I afford reasonable weight to the consideration at 1(d) in relation to the informant's "personal details" and identity. 10. The Applicant did not challenge the Respondent's submission that the Informant's name and contact information was personal information within the meaning of the consideration at 3(a) of the Table to s14, and I accept this on the evidence and afford this consideration significant weight. Instead, the Applicant submitted that the opinions of the Informant, which are contained in the withheld information, are not personal information of the Informant. The Applicant stated that 'an opinion is personal information when it is about an individual and that individual's identity can be ascertained from that opinion. An individual's own opinion… is not personal information'. The Respondent submitted that this view had been explicitly rejected by the Tribunal in Applicants v Commissioner of Police (NSW) [2015] NSWCATAD 22, where the Tribunal held that the opinions of Police officers recorded in interviews was their personal information. Whilst that principle is correct, it is based on the Information Commissioner's Guideline 4 at 1.3 and 1.4, which states: 1.3 The definition of personal information specifically includes opinions about individuals. Opinions would be considered "personal information" under the GIPA Act where that opinion is about an individual whose identity is apparent or can "reasonably be ascertained" from that opinion or from other accompanying information. Examples of where an opinion could amount to personal information include: * the report of a referee about an applicant for public sector employment; * comments recorded by a supervisor about an employee during achievement planning; * notes made by staff of a public hospital about a patient or an employee; * views expressed about a member of the public during a local council meeting; * witness statements taken during the course of a disciplinary investigation; or * a file note made by a public servant expressing views about a colleague or a member of the public. 1.4 The definition refers to opinions being "about" individuals. This suggests that the personal information conveyed by the opinion is that of the subject rather than the person who gives the opinion. For example, in an opinion given in a referee report, the personal information is that of the person being refereed, rather than of the referee. However, in offering an opinion about someone else, personal information about the giver of the opinion may also be revealed. To take the example of a witness making a statement during a disciplinary investigation, the following personal information about the witness may be included: * name, address, and contact details; * employment information such as where the witness works, how long they have been employed, and any qualifications that may be relevant to the context of the statement; and * information about the relationship between the witness and the person being investigated. 1. The guidelines demonstrate the distinction to be drawn between the principle expressed in Applicants v Commissioner of Police (NSW) [2015] NSWCATAD 22 at [62], and these circumstances. There, the opinion of police officers was held to be "personal information" because the opinion identified or could identify an individual the police officer was talking about. Here, the opinion of the informant could only be "personal information" if the opinion the informant was giving, was about an individual. In these circumstances, I find that the informant's opinion is not "personal information". 2. The Applicant did not challenge the Respondent's submissions regarding the application of consideration 3(b) and I accept on the evidence that disclosure of the informant's personal details could reasonably be expected to contravene an information protection principle under the Privacy and Personal Information Protection Act 1998. I afford this consideration significant weight. 3. Curiously, the Respondent did not rely on the considerations at 2(a) or 2(b) of the Table to s14 which provide: There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally): (a) reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant, (b) prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law, 1. The Appeal Panel in New South Wales Office of Liquor, Gaming and Racing v Fahey (GD) [2012] NSWADTAP 55 discussed these public interest considerations against disclosure and said, at [47 - 49] - 47... For reasons given in Appeal Panel and Tribunal decisions made under the FOI Act in relation to a like provision, we do not think that the term 'informant' is restricted to 'police informers' or people who might be seen as themselves involved in the conduct of interest and are ready to 'inform' on their comrades. In our view, the word 'informant' bears a wider connotation of the kind submitted by the agency, that is, a person who gives information. 48 The interests listed in the Table are ones intended, as we see it, to be applied across the wide range of government functions. The 'Law enforcement and security' (the heading to clause 2) functions of government extend well beyond the prevention and detection of the crimes that engage the attention of police forces. The word 'informant' should not be so read as only to apply to persons who give information in that particular context. 49 In our view, revelation of the identity of a complainant in circumstances of the present kind could reasonably be expected to prejudice the future supply of information from that informant or other informants. 1. In that decision the Appeal Panel found that the informant's identity could be protected by reliance on the public interest consideration now expressed at 2(a) of the Table to s 14 of the GIPA Act, and that related to the maintenance of confidentiality expressed in consideration 1(d) of the Table to section 14 of the GIPA Act. Whilst I have disagreed that the opinions of the informant in these proceedings are "personal information" within the meaning of the GIPA Act, some of those opinions could potentially fall within the parameters of consideration 2(a) in that they identify the informant. However, I have no evidence on which to make any findings in this respect. 2. In considering the Respondent's submission regarding consultation pursuant to s 54 of the GIPA Act, I note that the only evidence available of any consultation with the relevant third party is referred to at paragraph 31 above, and there is no evidence of consultation following the applicant's access application to the respondent, despite being referred to in the reviewable decision. In the circumstances, I consider the consultation to have a neutral effect. 3. It was undisputed that the Applicant's personal motivation stemmed from his involvement in a business providing the helicopter flights subject to the Respondent's investigation. However, neither party made specific submissions regarding the Applicant's personal interest in the information sought pursuant to s 55 of the GIPA Act. I therefore consider that any effect of that interest on the public interest considerations for or against disclosure to be neutral. 4. On balance, the public interest considerations against disclosure outweigh those in favour of disclosure in relation to the identification and contact details of the informant. The public interest considerations in favour of disclosure outweigh those against disclosure in relation to the information supplied to the Respondent by the Informant, with the exception of that information or opinion which could reasonably be expected to identify the informant. Conclusion 1. The correct and preferable decision is for the Tribunal to set aside the reviewable decision and substitute its reasons above in its place. On that basis and because the Respondent has failed to distinguish in its withheld documents the information which would identify the informant, from the whole of the information provided by the informant or otherwise publicly available, the following orders are made: 1. The Respondent's decision dated 28 June 2017 is set aside. 2. Within 7 days the Respondent is to provide the Applicant with a copy of the information sought, re-redacted to withhold only the information which identifies the informant. ********** 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: 23 February 2018