Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Webb v Port Stephens Council [2019] NSWCATAD 47 Hearing dates: 6 December 2018 Date of orders: 27 March 2019 Decision date: 27 March 2019 Jurisdiction: Administrative and Equal Opportunity Division Before: R.L. Hamilton SC, Senior Member Decision: (1) The order made in the hearing that part of the hearing be conducted in private is confirmed (s 49(2) CAT Act). (2) Pursuant to s 64 CAT Act it is ordered that: (a) the publication of evidence given before the Tribunal in private, and of matters contained in confidential documents received in evidence by the Tribunal, and of the transcript of the private hearing; and (b) the disclosure to applicants in the proceedings of confidential evidence given before the Tribunal, and of the contents of a confidential document received in evidence by the Tribunal, and of the transcript of the private hearing be prohibited. (3) In Mr McEwan's matter (File No. 2016/378193) the decision of the respondent Council is set aside and the documents are remitted back to the respondent for further consideration and redaction in accordance with these reasons (4) In Ms Webb's matter (File No.2016/378165) I (a) the decisions of the respondent Council in relation to those documents to which access has been refused, and (b) the decision to refuse to deal with certain documents are set aside and those documents are remitted back to the respondent for further consideration and redaction in accordance with these reasons. (5) In Ms Webb's matter (File No. 2016/378165) the decisions of the agency in relation to the other documents to which partial access has been granted is affirmed. (6) The respondent is directed to write and advise the persons who objected to the release of the information in the documents about this decision, and if aggrieved of their rights to have the decision reviewed. Catchwords: ADMINISTRATIVE LAW- freedom of information- government information public access-public interest considerations-open access information s6 Government Information (Public Access) Act 2009 (NSW) Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil & Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 (NSW) Government Information (Public Access) Regulation 2018 (NSW) Health Records and Information Privacy Act 2002(NSW) Privacy and Personal Information Protection Act 1998(NSW) Cases Cited: AEZ v Commissioner of Police, NSW Police Force [2013] NSWADT 90 Commissioner of Police (NSW) v Camilleri [2012] NSWADTAP 19 Ermel v Department of Finance and Services [2013] NSWADT 183 Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 Leech v Sydney Water Corporation [2010] NSW ADT 298 Turnbull v Strange [2018] NSWCA 157 Wiskich v Composite Materials Australia Pty Ltd [2016] NSWCATAP 221 Zonnevylle v Department of Education and Communities [2018] NSWCATAD 139 Texts Cited: Nil Category: Principal judgment Parties: T Webb & P McEwan (Applicants) Port Stephens Council (Respondent) Representation: Solicitors: T Webb & P McEwan (Self Represented)(Applicants) Lindsay Taylor Lawyers (Respondent) File Number(s): 2016/378193 & 2016/378165 Publication restriction: The publication of evidence given before the Tribunal in private, and of matters contained in confidential documents received in evidence by the Tribunal, and of the transcript of the private hearing; and The disclosure to applicants in the proceedings of confidential evidence given before the Tribunal, and of the contents of a confidential document received in evidence by the Tribunal, and of the transcript of the private hearing REASONS FOR DECISION 1. This is an application for review of decisions taken under the Government Information (Public Access) Act 2009 (GIPA Act). 2. These matters have been remitted to the Tribunal by the Appeal Panel. 3. The applicants are domestic partners. 4. The matters involve applications for access to documents held by the respondent Council concerning a development application (DA) in relation to residential premises previously owned by the applicants but sold in 2013. 5. Orders have been made for the matters to be heard together and evidence in one to be evidence in the other. Directions were also given that evidence in prior hearings could be used in the present matters. 6. I have decided that: 1. In both matters information in the documents in contention has been justifiably withheld pursuant to s14 table item 3(a) and 3(b) GIPA Act. 2. In both matters that s 14 table item 3(f) is not applicable. 3. In both matters where Council decided to withhold the entirety of a document, or refused to deal with a document, that the decision should be set aside, but those documents should be remitted to the Council to be redacted to remove all material covered by s14 table items 3(a) and 3(b). 4. In Ms Webb's matter where access has been granted to redacted documents that the redaction decisions should be affirmed. Jurisdiction 1. The Tribunal obtains its jurisdiction to review the agency's decision under s100 GIPA Act (which provides that a person who is aggrieved by a reviewable decision of an agency may apply to the Tribunal for administrative review under the Administrative Decisions Review Act 1997(ADR Act)); ss9 and 63 of the ADR Act; read together with s30 of the Civil & Administrative Tribunal Act 2013 (CAT Act). The Tribunal is required to determine what is the correct and preferable decision having regard to the material then before it including any relevant factual material and any applicable written or unwritten law (s63(1) ADR Act). The Tribunal makes its own decision in place of the respondent without any presumption that the agency's decision is correct. 2. The role of the Tribunal is to review the merits of the refusal decision of the agency on the access request, taking account of the scope of information that falls within the access application and has been considered for access, the information which has been provided to the applicant, and any further relevant material. It is not a review of the decision of the agency on any internal review of the original access decision requested by the applicant. 3. The process for deciding whether to grant access to information is to identify the applicable factors in favour of granting access; then to identify the applicable public interest factors against such disclosure (which can only be from those items set out in the Table in s14 of the GIPA Act). Then it is necessary to allocate weight to each of the positive and negative factors. This is followed by a process of weighing in the balance the positive and negative elements to reach a decision as to whether access should be granted or not (where the negatives override the positives) (Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286) 4. In summary the GIPA Act relevantly provides that there is a presumption in favour of disclosure of government information unless there is an overriding public interest against such disclosure (s5 GIPA Act). Relevantly in this case some of the documents contain "open access information" that an agency must mandatorily and proactively release unless there is an overriding public interest against disclosure (s6 GIPA Act). A person who makes an application to access government information has a legally enforceable right to be provided with such access unless there is an overriding public interest against disclosure (s9 GIPA Act). The public interest considerations in favour of disclosure are set out in s12 GIPA Act. 5. There is an overriding public interest against disclosure if and only if there are public interest considerations against disclosure which on balance outweigh the public interest considerations in favour of disclosure (s13 GIPA Act). The public interest considerations against disclosure are set out exhaustively in s14 in a Table. Section 15 of the GIPA Act provides for certain principles that apply to the determination of whether there is an overriding public interest against disclosure. 6. There are obligations on the agency to conduct reasonable searches to consider the information (s53 GIPA Act); and it may consult with the access applicant to determine the precise scope of the access request. The agency must consult with persons who may have relevant concerns about the release of information (s54 GIPA Act). A person consulted can object to disclosure of all or part of information and if aggrieved can have the agency decision reviewed (s56 GIPA Act). Agency decisions should be made in conformity with s58 GIPA Act, and notice of a refusal decision and reasons are to be given under s61. The agency can either delete or withhold information on the basis that deleted information is either not relevant or because the agency has decided to refuse access to it (s74 GIPA Act). Finally it is noted that the agency has the burden of establishing to the Tribunal that the decision to withhold is justified (see s105 GIPA Act). Background Facts 1. In 2011 the applicants commenced to construct a 'privacy screen' in the backyard of their property. The council received a complaint. Council required the applicants to submit a DA. The DA was advertised and objections and other submissions were received. The DA was refused by the council. The council issued an order for partial demolition of the screen. The applicants took the matter to the Land & Environment Court but entered into a settlement agreement involving approval of the DA and a reduced height of the privacy screen. The applicants sold the property in 2013 and moved elsewhere. The Applications for Access 1. Mr McEwan sought access to: "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. Ms Webb's access application sought: "Complete and unedited copies of all letters and/or documents, telephone transcripts and/or Council's notes on telephone conversations, Council's notes on personal conversation, all of which relate to third party consultations – DA No: 483/2011 as outlined within Council's letter of 15 February 2016 Ref No: PSC2016-00217. A full and unedited copy of the records of letters, notes, transcripts and dialogues between Council and all third parties concerning consultations undertaken by Council with objectors to the DA No: 483/2011, as per the document list by Council under cover of its letter dated 15 February 2016 (copy attached)." 1. Council determined to grant partial access to some documents, refuse access to some documents and to refuse to deal with the application in relation to some documents. 2. The applicants lodged applications with the Tribunal. Mediation occurred. Following the mediation the application was re-determined by council. The redetermination decisions are the subject of these proceedings. 3. In the case of Mr McEwan Council has refused access to four complete documents. 4. In the case of Ms Webb Council determined to grant access to 23 redacted documents, to refuse access to 44 complete documents, and to refuse to deal with 6 documents (73 documents in total). 5. In both cases Council determined that there is an overriding public interest against disclosure of the information and relies on s14 GIPA Act table items 3(a), 3(b) and 3(f). 6. Those provisions state as follows: "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 [PPIP Act] or a Health Privacy Principle under the Health Records and Information Privacy Act 2002 [HRIP Act], … (f) Expose a person to a risk of harm or of serious harassment or serious intimidation," 1. So far as table item 3(b) is concerned Council relies first on the Health Privacy Principle in s11 of the HRIP Act which states: "An organisation that holds health information must not disclose the information for a purpose (a secondary purpose) other than the purpose (the primary purpose) for which it was collected unless: (a) Consent The individual to whom the information relates has consented to the disclosure of the information for that secondary purpose or…" 1. Health information is defined in s6 of the HRIP Act relevantly to mean "personal information that is information or an opinion about… the physical or mental health or a disability (at any time) of an individual". 2. The council also relies on s18 of the PPIP Act for the Information Protection Principle mentioned in s14 table item3(b). The section relevantly provides: "(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 s10, that information of that kind is usually disclosed to that other person or body, or…" The Evidence 1. A council officer, Mr Wickham, gave evidence both in open hearing and in a confidential session of the Tribunal. 2. I have also been supplied with redacted documents released to Ms Webb, and unredacted versions of the documents withheld and other confidential health related exhibits. Council relies on open and confidential evidence in the earlier Tribunal proceedings and before the Appeal Panel involving the parties. I make confidentiality orders in relation to these documents as required below. Council said it relied on its open written submissions, and notices of decision and redetermination. 3. Mrs Webb by letter of 13 November 2018 stated that the applicants rely on the following 'evidence': 1. respondent's submissions; 2. confidential statement of Mr Wickham of 20 March 2017; 3. copy of all written submissions; 4. further amended statement of Mr Wickham, 25 January 2017; 5. amended statement of Mr Wickham, 7 March 2017; 6. the notices of decision by the council; 7. the notices of redetermination by the Council 8. the transcript of hearing on 20 March 2017 (the original Tribunal hearing in these matters). 1. Mrs Webb also sought to rely on the following new material: 1. transcript of hearing, 23 August 2017 (being another GIPA matter between Ms Webb and the Council about matters connected with the same DA dispute); 2. transcript of hearing, 2 March 2018 (being the hearing of the Appeal Panel in these instant matters); 3. the applicants' submissions of 13 November 2018. 1. Clearly submissions are not evidence and stating that they are relied upon as such does not make them so. The items which do qualify as evidence are the statements of Mr Wickham, the notices of decision and redetermination, and the transcripts of hearings. I have however looked at the material that the parties say they rely on, even though the applicants have not seen all of it themselves. McEwan Matter 1. The evidence of the Council in this matter consisted of a statement by Mr Wickham of 7 March 2017 (open evidence) and a confidential statement by him dated 9 September 2016 and the documents referred to earlier. Further correspondence with a family member of one of the objectors was also tendered in the confidential hearing. 2. For the applicant four volumes of material concerning the property the subject of this access application, and numerous other (apparently unrelated) properties as well; plus correspondence with council concerning other GIPA applications and transcripts of other hearings was tendered. Reliance was also placed on other materials mentioned above. 3. The council filed and served written submissions dated 24 October 2018 which were open submissions, and council also made confidential oral submissions about which I make orders. 4. The applicant objected to the holding of a confidential hearing which excluded them and the receipt of confidential evidence. 5. Although open justice is an ideal to be striven for it is not always possible, and the Tribunal is able to hold confidential hearings and receive confidential evidence and make orders regarding confidentiality (ss49 and 64 CAT Act). 6. In the present case it is my view that the council's request so far as confidentiality is concerned was justified by the material contained in the documentary evidence and the further confidential evidence from Mr Wickham. I consider it desirable that part of the proceedings be held in private, and that orders be made pursuant to s 64 CAT Act. Some of the material the subject of confidentiality orders may be revealed to the applicant after the Council makes redactions upon remittal of the documents to it, and to that extent the orders will dissolve. 7. The details of the confidentiality orders are set out at the end of this decision. 8. There are a number of factors in favour of disclosure of government information for the public benefit set out in ss5, 9 and 12 of the GIPA Act. In the present case examples (a) and (e) in s12(2) GIPA Act are perhaps most relevant: (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance… (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. 1. In this particular matter the documents sought by the applicant contain "open access information" dealt with in s6 of the GIPA Act. In relevant part s6 provides: 6 MANDATORY PROACTIVE RELEASE OF CERTAIN GOVERNMENT INFORMATION (1) An agency must make the government information that is its "open access information" publicly available unless there is an overriding public interest against disclosure of the information… Note : Part 3 lists the information that is open access information. (4) An agency must facilitate public access to open access information contained in a record by deleting matter from a copy of the record to be made publicly available if inclusion of the matter would otherwise result in there being an overriding public interest against disclosure of the record and it is practicable to delete the matter… 1. Section 18 GIPA Act relevantly defines open access information: 18 WHAT CONSTITUTES OPEN ACCESS INFORMATION The following government information held by an agency is the agency's "open access information" that is required to be made publicly available by the agency under section 6 (Mandatory proactive release of certain government information):… (g) such other government information as may be prescribed by the regulations as open access information. 1. The relevant regulation provides: GOVERNMENT INFORMATION (PUBLIC ACCESS) REGULATION 2018 - SCHEDULE 1 – ADDITIONAL OPEN ACCESS INFORMATION--LOCAL AUTHORITIES (Clause 4) 1 INFORMATION ABOUT LOCAL AUTHORITY 3 INFORMATION ABOUT DEVELOPMENT APPLICATIONS (1) Information contained in the following records (whenever created) is prescribed as open access information: (a) development applications (within the meaning of the Environmental Planning and Assessment Act 1979 ) and any associated documents received in relation to a proposed development including the following:… (b) records of decisions made on or after 1 July 2010 on development applications (including decisions made on appeal), 1. Further I note that Council's form of notification of the DA in this case specifically states that any submissions are open access information under the GIPA Act and that means that persons submitting comments or objections on the DA application were warned that they could be revealed. I was referred to the Information Commissioner's guidelines (Guideline 3) concerning DA material of a personal nature which should not be put on Council websites. These Guidelines are for the assistance of agencies, and the Information Commissioner has an important role as a champion of open government (s14(3) and s17 GIPA Act). The Guideline gives examples of personal information at par 1.7, but notes that the aim of the open access provisions is to make Council decision making more transparent, not to reveal personal information. It notes the various considerations which may be weighed up in favour and against disclosure of DA related information. At par 2.12 there is a caution against disclosure of 'scurrilous, inflammatory or irrelevant material' having in mind the purpose of the GIPA Act in promoting open and accountable decision making. 1. At par 3.2 the Information Commissioner set out her view that it is not in the public interest to reveal a range of personal details on Council websites including names, contact details, financial and health information, and photographs of people, although she notes in par 1.7 that photos of property can be personal information. The Information Commissioner's Guideline is taken into account in reaching a decision. 2. Council also tendered an advice from the Privacy Commissioner concerning the Information Commissioner's Guideline 3 and its obligations under the GIPA Act. I treat it as useful but not determinative. The Privacy Commissioner concludes that the better option appears to be not to upload 'information identifying a submitter either directly or in combination with other reasonably available information'. 3. Although the advices relate to personal/financial/health etc information regarding DAs on Council websites, it seems to me that very similar considerations apply to disclosure of that sort of information in response to GIPA applications. Information on a website is open to the world. Information disclosed in response to a GIPA request cannot be controlled. 4. The general public interest considerations in favour of providing access to the information are strong and when the further element of open access information is added that makes the factors favouring disclosure carry heavy weight. 5. However even though DA documents might contain open access information, both s6(1) and (4) GIPA Act recognise that access is liable to be refused access if public interest grounds against disclosure override those in favour. 6. The public interest considerations against disclosure can only consist of those items (or grounds) set out in the clauses in the Table in s14 GIPA Act. These are the only considerations that may be taken into account (see s14(2) GIPA Act). Section 14 requires consideration of whether the disclosure could reasonably be expected to have the effects referred to in the various provisions of the Table in s14. It was held in Leech v Sydney Water Corporation [2010] NSW ADT 298 that the test to be applied is an objective one approached from the viewpoint of a reasonable decision maker. Something which could be reasonably expected is something more than a mere possibility or risk, and must be based on real and substantial grounds not purely those which are speculative or hypothetical. 7. The Council (which has the burden of defending its access decision s105 of the GIPA Act) relies on table items 3(a), 3(b) and 3(f). Their terms have been set out earlier. 8. The principles of interpretation to be considered are as follows: Clause 3(a) -Reveal an individual's personal information 1. "Personal information" is defined in Schedule 4 clause 4(1) of to the GIPA Act to mean "information or an opinion (including information or an opinion forming part of a database 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 " (emphasis added) 2. The Information Commissioner has published Guidelines 4 - Personal Information as a public interest consideration under the GIPA Act (Guidelines), which are relevant when determining whether there is an overriding public interest against disclosure (ss 14(3) and 17 GIPA Act) The Guidelines set out what is meant by 'personal information' in the GIPA Act, and at clause 17 states Whether the identity of a person can "reasonably be ascertained" will depend on the type of information and the context in which it is being used. It is not necessary that the identity of the person be widely known, it will be sufficient to satisfy the definition of personal information if the information is communicated to someone who is able to identify the person. 1. The kind of information withheld under clause 3(a) includes parts of statements containing personal information, a person's name, employment information and personal opinions. This kind of information meets the definition of personal information found under clause 4 of Schedule 4 to the GIPA Act because it is information or an opinion about an individual whose identity is apparent or can be reasonably ascertained from the information, and when held by an agency such as the respondent, is generally only disclosed to the person to which the information directly relates. Clause 3(b) -Contravene an information protection principle under the Privacy and Personal Information Protection [PPIP] Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy [HRIP] Act 2002 1. Clause 4 of Schedule 4 of the GIPA Act uses the same definition of "personal information" as section 4(1) of the PPIP Act. In Turnbull v Strange [2018] NSWCA 157 at [5] it was said recently: "statements by the relevant individual will not constitute opinions about himself or herself, in most circumstances. On the other hand, statements made by the individual may identify "information" about that individual, in that they may reveal that he or she held a particular opinion or knew certain things at a particular time." 1. Section 18 of the PPIP Act provides 18 Limits on disclosure of personal information (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 (2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it (emphasis added) 1. It was submitted that to provide access to the information under the GIPA Act would not appear to be in keeping with the purpose for which the information was collected, and none of the exceptions under section 18 of the PIPP Act apply to the applicants. 2. As the disclosure of the personal information could reasonably be expected to contravene an information protection principle, it is submitted that this public interest consideration outweighs any public interest considerations in favour of disclosure Clause 3(f) -Expose a person to a risk of harm or of serious harassment or serious intimidation 1. The Tribunal in Zonnevylle v Department of Education and Communities [2018] NSWCATAD 139 noted at [49] that: The issue for determination is whether release of the redacted names of departmental officers would expose them to a 'risk of harm or of serious harassment or serious intimidation' It is not necessary to decide whether such harm is likely. It is sufficient that there is a risk of it. (emphasis added) 1. The definition of the words "harm", "harassment" and "intimidation" received extensive judicial consideration by the Tribunal in AEZ v Commissioner of Police, NSW Police Force [2013] NSWADT 90. Each is to be seen as a separate matter to be considered (AEZ at [89]). 2. After considering the concept of "harm" in criminal, defamation and child protection cases, the Tribunal found that [85]: In the context of s 14 of the GIPA Act I am inclined to the view that 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 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 (emphasis added) 1. After considering the concept of "harassment" in anti-discrimination law the Tribunal found that [87]: a consideration of those laws reveals that a common element is that the person harassed would be offended, humiliated or intimidated by the conduct in the circumstances see Sex Discrimination Act 1984 (Cth), s28A(1), Anti-Discrimination Act 1977 (NSW), s 22A, and Equal Opportunity Act 1984 (SA), s 87(9) 1. The Tribunal concluded that [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. 1. The concept of "intimidation" was held by the Tribunal to be closely related to the concept of "harassment" and was "to make timid, or inspire with fear, overawe, cow" [at 90-93]. 2. The Tribunal elaborated at [94] that Importantly the intimidation or harassment referred to in point 4(f) [sic] is required to be serious intimidation or serious harassment, requiring that the decision maker 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 (emphasis added) 1. Mere discomfort or tension is not ordinarily enough (Ermel v Department of Finance and Services [2013] NSWADT 183). Consideration 1. Bearing the above interpretational principles in mind, the first question the Tribunal asks itself in relation to each item is 'could the disclosure of information reasonably be expected to have one or more of the relevant effects?' If not then the particular item does not apply. If it does apply, then the Tribunal determines the weight it carries and conducts the balancing exercise against the weight of factors in favour of disclosure (Commissioner of Police (NSW) v Camilleri [2012] NSWADTAP 19). 2. Could disclosure of the information here be reasonably expected to "(a) reveal an individual's personal information." Looking at the evidence, including the unredacted documents, and bearing in mind the guidance above, I consider the ground to have been made out. The parties making submissions on the DA in the documents the subject of this application have included a considerable amount of identifying information as well as other personal information including that related to the welfare of individuals. There is the ability for their identities to be ascertained by the applicant from material in the documents. The parties making the DA submissions have been consulted at an earlier point in relation to substantially identical applications from Mrs Webb and have expressed their objections to disclosure of the DA submission documents. Notwithstanding that the Council's call for submissions noted that there was potential for disclosure under the GIPA Act it is my view that item 3(a) is a very strong ground against disclosure of information. However it may be possible that the documents can be appropriately redacted by council so that item 3(a) in the s14 Table is not offended. 3. Could disclosure be reasonably expected to have the effects referred to in table item 3(b) of s14 GIPA Act? - I consider this ground to have been made out, taking account of the same material as referred to above. The Information Protection Principle (s18 PPIP Act) is to some extent correlated to the personal information referred to in item 3(a). 4. The PPIP Act is read subject to the terms of the GIPA Act. Section 5 of the PPIP Act provides: 5 GOVERNMENT INFORMATION (PUBLIC ACCESS) ACT 2009 NOT AFFECTED (1) Nothing in this Act affects the operation of the Government Information (Public Access) Act 2009 . (2) In particular, this Act does not operate to lessen any obligations under the Government Information (Public Access) Act 2009 in respect of a public sector agency. 1. To address the three factors in the Principle directly, it is my view that disclosure of personal information in response to this application would not be for the purpose for which it was collected, which was to inform Council of the views of persons affected by the proposed development covered by the DA. Those persons have specifically objected to release of the information. Even though they can be taken to have been aware that information in submissions may be subject to GIPA Act access applications, this does not outweigh the other two factors. This is a very strong ground against disclosure. Redaction of this information may be possible. 2. Furthermore some of the documents contain material which falls under Health Privacy Principle number 11, the terms of which are set out above. The ground against disclosure of this information is in my view also very strong but it may be possible for the agency to appropriately redact this information from those documents. 3. Could disclosure be reasonably expected to have the effects set out in table Item 3(f)? As the Tribunal now stands in the shoes of the decision maker it is correct that I make a decision on the question of whether disclosure could reasonably be expected to have the effect set out in 3(f) at the date of this decision. 4. The events which led to this unfortunate set of circumstances occurred 7 to 8 years ago. The applicants sold the subject property and moved away in 2013. 5. I note that the third parties have been consulted some short time ago and have expressed concerns respecting the matters referred to in item 3(f), but it is hard, objectively, to see a current basis for that concern. It seems the third parties just want to put this chapter of their lives behind them, never to be mentioned again. 6. While this ground may have been relevant in the past, in my view the evidence does not at this moment convince me that it is reasonably likely that the effect required by item 3(f) in the table of s14 of the GIPA Act will occur. Thus I consider the ground inapplicable and so it carries no weight. 7. Balancing the positive and negative public interest considerations, it is my view that the very strong considerations against disclosure of personal information under either item 3(a) or 3(b) and of health information under item 3(b), in the end outweigh the very strong factors in favour of disclosure of these documents. 8. This is, however, not the end of the matter. 9. The agency has relied on the grounds on grounds 3(a) and 3(b) to withhold from disclosure the whole of all four documents. 10. In my view this approach of withholding the whole of the documents cannot be justified on these two grounds. The unredacted documents provided confidentially to the Tribunal appear to be able to be suitably redacted to mask the 'personal information' as it has been discussed above (including matters concerning welfare) together with the health information. I therefore refer the documents back to the agency for reconsideration so that they may be suitably redacted in accordance with these reasons. The Webb Matter 1. In Ms Webb's matter the redetermination by Council dated 10 November 2016 (a) granted partial access to 23 redacted documents, (b) refused access to 44 documents and (c) refused to deal with 6 documents. The grounds relied on by Council were also items 3(a), 3(b) and 3(f) in the table of s14 GIPA Act. 2. Some of those documents are the same documents (DA submissions) which were dealt with above in relation to Mr McEwan's matter. They fall into the class of open access documents as discussed in relation to Mr McEwan's matter. 3. Some of the documents in Ms Webb's case are what appear to be "records of decisions on DAs" see clause 4(3)(b) of the GIPA Regulations which provides: Information contained in the following records (whenever created) is prescribed as open access information:… (b) records of decisions made on or after 1 July 2010 on development applications (including decisions made on appeal), which are also open access documents as defined. 1. For the same reasons as discussed above in relation to the Mr McEwan's matter the general considerations in favour of disclosure, fortified by the fact that these documents are open access documents provide very strong considerations in favour of disclosure. 2. However as noted earlier the positive considerations must be balanced against the negative considerations concerning disclosure contained in the table in s14 of the GIPA Act. 3. For the same reasons as I gave earlier I consider that it could reasonably be expected that disclosure of the information could reveal personal information or contravene the Information Protection or Health Privacy Principles and that therefore Council was correct in relying on items 3(a) and 3(b). Further for the reasons discussed in relation to the Mr McEwan's application I would accord these considerations very strong weight. I consider that the public interest considerations against disclosure of information outweigh the public interest considerations in favour of disclosure even though both are very strong. 4. For the reasons discussed in relation to the McEwan matter it is my view that item 3(f) in the s14 GIPA Act table is not applicable at this point in time, i.e. as I make this decision. 5. For the same reasons as I gave in relation to the McEwan matter the two applicable table items do not justify withholding the entire document. It is appropriate in my view that these open access documents be referred back to the agency for suitable redaction. 6. As for the other documents which do not contain "open access information" (so s6 GIPA Act does not apply) where access has been either refused or granted in part, the public interest considerations in favour of disclosure are the general considerations contained in ss5,9 and 12 of the GIPA Act. I regard the considerations in favour of disclosure as having strong weight. 7. Having examined the unredacted versions of these documents I note that they contain personal information (which includes personal information relating to matters concerning the welfare of individuals) and also to health-related information. I regard these factors as having a very strong weight against disclosure. 8. In my view the considerations against disclosure outweigh those in favour. 9. However the Council is not justified in refusing to disclose the entirety of the documents. In the case of those documents to which access has been completely refused I refer these back to the agency to be suitably redacted to mask all personal information as mentioned above and all health-related information as mentioned above. 10. In the case of those documents to which access has been granted in part (i.e. those documents where certain personal details have been redacted – documents 1, 2, 28-30, 32, 38-43, 46-48, 64, 65, 67, 68, 70-73) I have examined the unredacted version of those documents and consider items 3(a) and 3(b) in relation to Information Protection Principle are applicable; that the factors against disclosure outweigh those in favour; and that the redactions comply with the tests provided in these items. Therefore the decision of the agency in relation to these documents is affirmed. 11. In the case of the documents where the Council has refused to deal with the access application (documents 18, 20, 31, 33, 44, 45) submissions were made that document 31 was the subject of the application by Ms Webb to which access was refused by the agency and was also document 4 in the McEwan Tribunal proceedings. 12. I have already decided that this document is an open access document but the public interest considerations against disclosure outweigh those in favour of disclosure, but that the document should be referred back to the agency for suitable redaction. 13. The Council concedes that each applicant has a separate right to seek access to information, and a decision by the agency (or the Tribunal) must be made in respect of the particular application of the person. It is not enough for the agency to say it refuses to deal with an application because another person has applied for access to the same information and been refused. 14. Section 60(1)(b) GIPA Act provides relevantly : 60 DECISION TO REFUSE TO DEAL WITH APPLICATION An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason)… (b) the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision on the application, (emphasis added) 1. It will be noted that s60(1)(b) GIPA Act refers to the previous application made by the applicant. 2. As document 31 is the same as document 4 in Mr McEwan's matter; and in my view that document contains personal information (including information regarding welfare which may be appropriately redacted) as well as health-related information, I consider it should also be referred back to the agency so it may be suitably redacted in accordance with these reasons in the Webb case, for reasons parallel to those given in relation to the McEwan case. 3. As for the other documents with which the agency refused to deal – documents 45, 44 and 33 are documents 1, 2 and 3 in the McEwan decision above. Council has refused to deal with them (and with documents 18 and 20) on the basis that Ms Webb had previously applied for access to them and on the 13 February 2013 Council had determined her applications and that there was nothing to suggest that a different decision is likely. 4. Council tendered the 2013 s58 GIPA Act Notices of Decision related to these five documents. In those Notices of Decision reliance was placed on items 3(a), 3(b) and 3(f) as well as personal factors (s55 GIPA Act) concerning matters to do with relationships with neighbours. 5. In this application of Ms Webb reliance is not explicitly placed on s55 of the GIPA Act in the 2016 redetermination. Earlier I found that at this time item 3(f) is not applicable because I do not consider it reasonably likely that persons will now be exposed in the way that the item provides. 6. In these circumstances there is the possibility of a different decision involving redaction of the documents to remove the information within them covered by items 3(a) and 3(b). Council cannot refuse to deal with them in relation to the application. 7. In these circumstances I refer the five documents which the Council has refused to deal with back to the agency for reconsideration of its decision; it may see fit to redact the documents. 8. After the hearing was complete, and with no direction that further submissions be filed and served, the applicants filed further unsolicited submissions. The respondent was asked to make written submissions. The respondent made the point that the applicants were effectively seeking to reopen their case, and for this leave was required (s38 CAT Act). This is a discretionary matter for the Tribunal, which considers the interests of justice in deciding whether to permit or deny the application (Wiskich v Composite Materials Australia Pty Ltd [2016] NSWCATAP 221). The applicants have not explained why the material was not introduced earlier, and its relevance to the Tribunal's task. The respondent says that it would be prejudiced as it would need to respond in detail. It also submits that to permit the applicants to reopen would be inconsistent with the just, cheap and quick resolution of the real issues in the proceeding, being the Tribunal's guiding principle (s36 CAT Act). 9. I agree with the respondent's submission and therefore have not taken the further submissions of the applicants into account in these reasons. Orders 1. The order made in the hearing that part of the hearing be conducted in private is confirmed (s 49(2) CAT Act). 2. Pursuant to s 64 CAT Act it is ordered that: 1. the publication of evidence given before the Tribunal in private, and of matters contained in confidential documents received in evidence by the Tribunal, and of the transcript of the private hearing; and 2. the disclosure to applicants in the proceedings of confidential evidence given before the Tribunal, and of the contents of a confidential document received in evidence by the Tribunal, and of the transcript of the private hearing be prohibited. 1. In Mr McEwan's matter (File No. 2016/378193) the decision of the respondent Council is set aside and the documents are remitted back to the respondent for further consideration and redaction in accordance with these reasons 2. In Ms Webb's matter (File No.2016/378165) I 1. the decisions of the respondent Council in relation to those documents to which access has been refused, and 2. the decision to refuse to deal with certain documents are set aside and those documents are remitted back to the respondent for further consideration and redaction in accordance with these reasons. 1. In Ms Webb's matter (File No. 2016/378165) the decisions of the agency in relation to the other documents to which partial access has been granted is affirmed. 2. The respondent is directed to write and advise the persons who objected to the release of the information in the documents about this decision, and if aggrieved of their rights to have the decision reviewed. ********** 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: 27 March 2019