Refalo V Penrith City Council [2019] NSWCATAD 263

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Refalo V Penrith City Council [2019] NSWCATAD 263 Hearing dates: On the papers Date of orders: 17 December 2019 Decision date: 17 December 2019 Jurisdiction: Administrative and Equal Opportunity Division Before: Hamilton SC, Senior Member Decision: (1) A hearing is dispensed with under s 50(2) Civil and Administrative Tribunal Act 2013. (2) Respondent's decision is affirmed Catchwords: FREEDOM OF INFORMATION- Government Information (Public Access) Act- disclosure of Council information concerning objections to development applications- prejudice the fair trial of any person, the impartial adjudication of any case or a person's right to procedural fairness- reveal false or unsubstantiated allegations about a person that are defamatory- personal factors Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009 Privacy and Personal Information Protection Act 1998 Cases Cited: Camillieri v Penrith City Council [2012] NSWADT 196 McEwan v Port Stephens Council [2018] NSWCATAP 211 Texts Cited: None cited Category: Principal judgment Parties: Sam Refalo (Applicant) Penrith City Council (Respondent) Representation: Solicitors: Sparke Helmore (Respondent) File Number(s): 2019/0037348 Publication restriction: Nil

REASONS FOR DECISION 1. Mr Refalo applied pursuant to the Government Information (Public Access) Act 2009 (GIPA Act) to the respondent Council (an "agency" – s 4 GIPA Act) for documents concerning complaints and submissions about Development Applications (DA's) which he had submitted to the Council in 2017. 2. The DA's were ultimately approved by Council and the development has been completed on Mr Refalo's property. 3. There was apparently opposition to the DA's by some of Mr Refalo's neighbours which was communicated to Council. 4. Council ultimately refused access to the requested documents. Although the Council's decision may not comply with the form prescribed by s 61 GIPA Act the parties have proceeded on the basis that a refusal has occurred and that the refusal decision is the subject of review. 5. The jurisdiction of the Tribunal is found in s 100 GIPA Act and s 9 Administrative Decisions Review Act 1997. 6. The onus is on the agency to justify its decision (s 105 GIPA Act). 7. The matter was reviewed by the Information and Privacy Commissioner (IPC) whose role in GIPA matters is set out in s 17 GIPA Act, and who has a right to appear in the Tribunal (s 104 GIPA Act) and has filed submissions in this case. 8. I have examined the procedural background in the Tribunal and documentary materials and submissions filed. I consider I can make an order dispensing with a hearing as I am satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions and other documents or material lodged with or provided to the Tribunal (s 50(2) Civil and Administrative Tribunal Act 2013) 9. The Council initially formed the view that it would release the information requested, but received an objection from a third party. It was required to consult with third parties before releasing any personal information. Having considered the objection the Council decided to press on with the grant of access. Following that consultation a third party sought external review of the decision to release information by the IPC. 10. The IPC investigated, and made recommendations. As a result Council decided not to release the information sought. 11. The applicant commenced proceedings for administrative review of the Council's decision. 12. Third party objectors were notified of the review proceedings and were asked whether or not they wished to appear at the hearing. They filed a confidential affidavit. 13. One of the objectors opposed the release of the information on the basis that it "would open old wounds" and "take us both back to a very stressful time in our lives". The objector said "we need to move on from this for everyone's sake". 14. I have been assisted by the helpful submissions of the IPC and those of the respondent. No submissions have been received from the applicant. 15. The process of deciding this case is set out in the GIPA Act. To summarise, s3 contains the objects of the Act which is to open government information to the public and the Act is to be interpreted and applied to further the object. S5 provides that there is a presumption in favour of disclosure unless there is an overriding public interest against such disclosure. S9 provides for a legally enforceable right to information unless there is an overriding public interest against. S 12 provides that there is a general public interest in favour of the disclosure of government information. S 12 (2) provides that nothing in the act limits any other public interest consideration in favour of disclosing government information and that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure. The subsection sets out a number of examples of public interest considerations in favour of disclosure. 16. S6 provides for "open access" information which requires Councils to publish certain information free of charge on their website. This includes information in development applications and associated documents received in relation to a proposed development (s 18(g) and clause 3(1)(a) of Schedule 1 of the G IPA Regulations 2018). It is important to recognise that open access information is a special category which requires particular attention and is an important factor in favour of disclosure additional to other relevant factors, although it is still subject to the test of balancing the factors for and against disclosure set out in S 13 of the GIPA Act (McEwan v Port Stephens Council [2018] NSWCATAP 211). 17. S 13 sets out the test that is to be applied in determining whether there is an overriding public interest against disclosure. It is where the public interest considerations against disclosure on balance outweigh the public interest considerations in favour. 18. S14 contains a Table of the grounds which can be taken into account in considering the public interest against disclosure. Only those items listed in the Table to that section can be taken into account. 19. S 15 and sets out the principles be applied when determining whether there is an overriding public interest against disclosure and some of the matters that are not taken into account. 20. S 54 contains a requirement that agencies take steps to consult with specified persons before providing access to certain information. 21. S 55 deals with personal factors involved in the application which are relevant to a determination where the public interest lies when balancing factors for and against disclosure. Personal factors can be taken into account in deciding to refuse access only to the extent that those factors are relevant to the agency's consideration of whether disclosure of information could be reasonably expected to have any of the effects referred to in clauses 2 – 5 of the section 14 Table – S 55(3). 22. The public interest in favour of disclosure must first be identified. It is able to be readily seen that the objects of the GIPA Act, the presumption in favour of disclosure, and that development application documents are open access information are factors in favour of disclosure. 23. I have looked at the provisions of S 12(2) but cannot identify that any of those examples of considerations set out in the subsection are relevant here. 24. I have also considered the personal factors in favour of disclosure but am unable to see anything of substance. The development application has been approved and the development has been completed. The applicant seems to want to revisit past issues so that he can 'mediate' any dispute. However he has not given any evidence of a current problem. 25. Then the Tribunal must identify relevant public interest considerations against disclosure. 26. The Council has submitted that the identity of the objector is known to the applicant that item 3 (a) ('Personal Information") of Table in s14 is not relevant. Council's submissions are that having regard to the provisions of S 55(1)(b) and (c) that there is no purpose to be served in providing applicant with the documents he seeks because to do so would only likely exacerbate the already poor relations between the 3rd party and the applicant. It relies on the personal factors in s 55 as the public interest against disclosure. 27. S 14 Item 3 states relevantly: 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, … (d) prejudice the fair trial of any person, the impartial adjudication of any case or a person's right to procedural fairness, (e) reveal false or unsubstantiated allegations about a person that are defamatory, 1. "Personal information" is defined in Sch 4 cl 4 GIPA Act (in similar terms in s4 Privacy and Personal Information Protection Act 1998 ) 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, including the individual's position title, public functions and the agency in which the individual works) that reveals nothing more than the fact that the person was engaged in the exercise of public functions, 1. The Privacy and Personal Information Protection Act 1998 states the following information protection principle: 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. 1. I agree that as the objectors names are known to the applicant that Items 3(a) and (b) in the Table are not pertinent. 2. Although the Council does not rely upon them it seems to me that items 3 (d) and (e) in Table to section 14 GIPA Act may be applicable. 3. The applicant says that the objectors have made false claims in communications with Council. I have not investigated this allegation. Without deciding the matter there may be defamatory imputations in such a statement. There may also be defamatory matters contained within any alleged false claims. It seems to me that by releasing this information under the GIPA Act rather than the individuals using the usual processes of a Court, there is the potential to prejudice the impartial adjudication of a case in which defamatory imputations are alleged or to prejudice a person's rights to procedural fairness. Alternatively false or unsubstantiated allegations which may be defamatory could be revealed. 4. Turning now to the question of whether there are personal factors involved to be taken into consideration it does appear that there may be some animosity between neighbours and that the applicant may wish to use material disclosed to continue the neighbourhood dispute. It seems slightly disingenuous to say that he wishes to mediate a dispute with a neighbour. The neighbour wishes to put the dispute behind and move on. No firm evidence of any current dispute has been produced. 5. S55(1) states: 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 the following factors (the personal factors of the application) into account as provided by this section: (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. 1. The Council has drawn attention to the somewhat analogous case of Camillieri v Penrith City Council [2012] NSWADT 196 where the Council there was described as being the "meat in the sandwich" (at [75]). 2. Although there appears to be lingering animosity between neighbours particularly the applicant, there is no present open dispute so far as I can tell. It seems that there is no purpose to be served by ordering the disclosure of the documents so as to reignite the old dispute. 3. This does not appear to be a matter involving a real dispute between a citizen and an agency but rather an attempt to use the provisions of the GIPA Act to advance the case in a citizen versus citizen matter. 4. It appears to me that this may be akin to an abuse of process. The provisions of the GIPA Act would not appear to be designed to be used as a mechanism for the settling of scores between neighbours. If there is a genuine dispute then the parties can proceed appropriately to obtain information using conventional methods of litigation. If the parties want to take the matter any further there is a process established and the use of the GIPA Act does not appear to be designed to deal with this. 5. Taking account of the factors in items 3(d) and (e) in the s 14 Table, and the personal factors, in my opinion the public interest considerations against disclosure outweigh those in favour which were discussed above.