New information commissioner and a new external review tribunal in NSW.

And with the GIPA act up for statutory review this year, 2014 could be a big one here.

Information Commissioner
Elizabeth Tydd replaces Deirdre O'Donnell who stood down last July. Ms Tydd was most recently the executive director of the Office of Liquor, Gaming and Racing, a real hot seat in Sydney in recent times. And before that assistant commissioner of the Compliance and Legal Group at the Office of Fair Trading, and deputy chairperson of the Consumer, Trader and Tenancy Tribunal, now part of the newly minted NSW Civil and Administrative Tribunal

It's a big job with much to be done to lead the open government 'revolution' foreshadowed in 2010. How far things have moved in that direction is an open question with plenty of suggestions from users that it's not far and certainly not enough.

But information about agency performance in NSW is patchy, and anecdotal. No reports on the operation of the GIPA act across all agencies required each year of the commissioner by section 37 of the Government Information (Information Commissioner) Act have been published. As to the much mooted 'culture change', ???
 
The commission annual report (pdf) 2012-2013 is as thin as those that have gone before regarding the performance of the commission and the effect and impact of a no doubt busy year.

The basic stats are 46 formal GIPA matters finalised, 237 information access reviews, one investigation, 50 ADT matters, 58 complaints, 388 requests for assistance, and 161 privacy internal reviews.

The measures cited in the report as performance measures provide little insight into what has been achieved or efficiency, effectiveness, or quality in delivering the goods. Timeliness in dealing with GIPA reviews is an acknowledged source of agency and applicant dissatisfaction. 

On this score the restructure referred to in the report, with employee numbers down to 25 from 33 a year ago must have played a role.The financials assign $496, 370 to 'voluntary redundacy'.

However after ploughing through the report this reader is none the wiser about the state of the game. A sample of unanswered questions: the state government agencies, local councils or ministers' offices at the upper end of the scale for GIPA review applications and complaints; the number/% of finalised review decisions or negotiated resolutions that substantially affirmed the agency decision or recommended or flowed from reconsideration; the % of GIPA review matters where the agency accepted the OIC recommendation to undertake further review and the names of agencies that did not act on those recommendations (the IPC is limited to recommendations and does not make determinative decisions-therein lies a problem); the correlation between the OIC view and the ADT where a matter followed that course; the average cost of an IPC review and time taken in resolving review and complaint matters and the duration of matters that make up the backlog.

Tribunal
NCAT commenced operating on 1 January 2014 replacing more than 20 of the State's existing tribunals including the Administrative Decisions Tribunal. (Super tribunals are the Admin law flavour of the decade: the establishment of NCAT, follows the creation of VCAT, QCAT, and (WA) SAT. And SA was thinking about it some years back.)

Mr Robertson Wright SC, the inaugural NCAT President,was sworn in as a Supreme Court Judge before assuming the position. Prior to his appointment Mr Justice Wright was a barrister for 30 years and a part time judicial member of the Administrative Decisions Tribunal since 2007.

The ADT deputy president (full time from commencement of operations in 1998) Magistrate Nancy Hennessy heads the Deputy President of NCAT responsible for management of the internal appeals list. 

Most members of the merged tribunals are probably making the transition but for whatever reason deputy president Higgins isn't listed. Members include experienced FOI/GIPA and privacy hands Steve Montgomery, Peter Molony and Naida Isenberg in addition to Deputy President Hennessy.

In the final ADT annual report Judge O'Connor's reflections include that in 1998, ten years after the FOI act commenced in NSW with the FOI review function allocated to the District Court, there was no body of FOI case law to guide decision making. The ADT in 15 years published around 400 FOI decisions.

In 2012-2013, the ADT had 96 GIPA filings and 43 privacy matters, around the same number as the previous year. Average disposal time 28 weeks. 

The significant appeal cases noted in the report include two GIPA decisions: NSW Office of Liquor Gaming and Racing v Fahey [2012] NSWADTAP 55, and Department of Family and Community Services v Edwards [2013] NSWADTAP 17.

CCTV cameras: Premier dumps on ADT but quick to fix loophole

NSW Premier Barry O'Farrell didn't hold back in Parliament yesterday, describing the Administrative Decisions Tribunal decision concerning privacy and CCTV cameras in Nowra as "ridiculous" (four times) and "terrible" (twice). For good measure, "the tribunal was trying to make policy" and should put the interests of the entire community ahead of the interests of the individual who had argued successfully that there had been breaches of the Privacy and Personal Information Protection Act.

 That was a little difficult to square with the Premier's announcement that the Attorney General "advised me that the decision on Friday exposed a loophole in the State's privacy legislation, and today I can announce that that loophole will be fixed" by 

"a regulation to provide appropriate exemptions under that privacy legislation to allow local councils, including Shoalhaven City Council, to use such cameras without breaching privacy laws. The regulation will allow councils to use closed-circuit television cameras in public places."

Difficult to square also with the role of the Tribunal: to review (Part 5) conduct claimed to be a contravention of an information protection principle and decide (s 53) the correct and preferable decision on the basis of factual material before it and the law as it stands at the time. 

Whether the Tribunal decision was terrible and ridiculous as the Premier asserts presumably won't now be tested at the Appeal Panel. But the loophole (a policy and legislative question) in the law at the time the Tribunal dealt with the matter will be fixed next week. 

Unlike other loopholes in NSW privacy legislation, once described as swiss cheese with more holes than cheese, that haven't attracted the same attention. 

Including to mention just three off the top of my head, that the law does not apply to ministers in the handling of personal information; state owned corporations are not subject to this or the Commonwealth Privacy Act; and uniquely, the police in NSW, whose privacy procedures were shown to be lax in the Shoalhaven case, are not subject to this law except (s 27) in connection with the exercise of educative and administrative functions, terms that a member of the Tribunal observed recently should be narrowly interpreted.

Ah dear, back to the current main game:

The New South Wales Government will introduce exemptions to ensure that local councils can continue to use closed-circuit television cameras to prevent crime. In other words, the use of closed-circuit television cameras by councils will be given an exemption through that section of the Privacy Act that was used on Friday to strike out their use in the Shoalhaven. We are drafting urgently a regulation to provide appropriate exemptions under that privacy legislation to allow local councils, including Shoalhaven City Council, to use such cameras without breaching privacy laws. The regulation will allow councils to use closed-circuit television cameras in public places.

The extract from Hansard 7 May (page 12) follows:

CCTV cameras off limits in Nowra-for the moment at least

Rarely has a NSW Administrative Decisions Tribunal decision had the Prime Minister's attention!

However the decision that CCTV cameras in the street installed and operated by a local council breached privacy legislation had the Premier, the Prime Minister and the Federal Opposition all rushing to defend the practice and promising a legislative fix if needed to solve any legal problem.

Judicial Member Montgomery in SF v Shoalhaven City Council [2013] NSWADT 94
found the Council contravened the obligation imposed on it by sections 10, 11(a) and 12(c) of the NSW Privacy and Personal Information Act. 

There is a lot in the decision on the full range of information privacy principles. Judicial Member Montgomery found in favour of the Council on a number. 

The following extracts relate to the findings concerning breach of three principles. They turned on the evidence rather than anything else. Nothing has been said about an appeal so far. Other councils are putting on the thinking hat and the politicians seem ready to roll in any event.

Notice
Section 10 requires that the subject of an information collection is made aware of the implications for their privacy of the collection process, and of any protections that apply prior to or at the time of collection.

149. Section 10 is explicit in regard to the details of which the individual to whom the information relates are to be made aware. In the circumstances of this matter, the Council has collected the Applicant's personal information, and that of other individuals, and provided some signage in an effort to make people aware that images were being collected. I accept that the signage is sufficient to inform a majority of individuals that the cameras are in operation and, by implication, that personal information is being collected. It is not sufficient to inform individuals of the purposes for which the information is being collected.

150. Not all cameras have a sign near them. Increased signage would increase the likelihood that more individuals become aware that the cameras are in operation and that personal information is being collected.

151. I am not satisfied that the signage is sufficient to ensure that individuals are made aware of all of the information addressed by section 10.

An exemption to Section 10 where information is collected for law enforcement purposes did not apply. Police Officers are able to view a live feed of the images collected from the cameras and an arrangement is in place between the Police and the Council whereby an authorised Police Officer may apply for access to particular information.  

Judicial Member Montgomery said [156] a "small proportion of the information is used for law enforcement purposes however that is not the purpose for which it is collected. The information is collected for 'crime prevention' purposes" adding: " In the circumstances it is also doubtful that the Applicant's personal information was collected for 'crime prevention' purposes given that the Applicant was a private citizen going about his private business in a lawful manner." [157]
(Comment: the interpretation of these terms may involve legal argument if the matter goes further.)

Relevant not excessive information
Section 11(a) requires an agency to take such steps as are reasonable in the circumstances (having regard to the purposes for which the information is collected) to ensure that the information collected is relevant to that purpose, is not excessive, and is accurate, up to date and complete.

162. In my opinion, the vast majority of the information collected under the Council's CCTV program is 'collateral information' and is not relevant to the 'crime prevention' purpose. All of the Applicant's personal information is 'collateral information' and is not relevant to the 'crime prevention' purpose. Further, there is no suggestion that Police made any use of the collected information for law enforcement purposes.

163. In my view, the evidence is clear that the images and footage collected in relation to the Applicant are of such poor quality that, in any event, the information would be of little assistance for law enforcement purposes. Because of the poor quality of the footage it cannot be said that the information collected is complete. A high proportion of the frames were omitted giving the false impression that the Applicant was skipping rather than walking.

164. The expert evidence suggests that CCTV does little to prevent crime. The data available for the Nowra CBD suggests supports the Applicant's argument that the Council has not demonstrated that filming people in the Nowra CBD is reasonably necessary to prevent crime. In fact, available data suggests that since the Council's CCTV program was implemented crime has increased in the Nowra CBD in the categories of assaults, break and enters and malicious damage.

165. It seems to me that, at least at the time the Applicant's personal information was collected, the equipment used in the Council's CCTV program was unable to provide any meaningful data that would be able to assist in a general 'law enforcement' context.

166. In my view, the Applicant's personal information that has been collected is not relevant to the purpose of crime prevention, and is excessive, inaccurate and incomplete. In the circumstances, I agree with the Applicant that the Council has not complied with the obligation imposed on it by section 11 of the PPIP Act.

Reasonable security safeguards

Section 12(c) of the PPIP Act provides that an agency holding personal information must ensure that the information is protected by taking reasonable security safeguards against loss, unauthorised access and misuse.

169.... It is common ground that the collected data is only available to Council staff and Police Officers. In my view, the Council has developed sufficient safeguards, as are reasonable in the circumstances, to protect the personal information collected and are therefore sufficient to meet the requirements of section 12(c). The system as designed requires that the (Police) duty officer enter a user name and password at the commencement of their shift, to log into the 'live feed' monitor. However, the evidence suggests that this process has not been followed.

170. I agree with the Applicant that the use of a generic password rather than an individual user name and password for each authorised user means that there is no way of checking who is and isn't using the live monitor at the Nowra Police Station. There is no way of knowing whether those who are accessing the monitor have been appropriately trained. Section 12(c) provides that the agency 'must ensure' adequate protection of the collected information. While the system design would achieve this objective, the Council has not monitored compliance with the safeguards that are in place. As a consequence, the Council's CCTV program is open to unauthorised access and misuse and therefore fails to comply with section 12(c) of the PPIP Act. At a minimum, compliance would require appropriate training and monitoring of the use of individual user names and passwords to provide an audit trail of users of the system.

The orders are:

1. The Council is to refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice;

2. The Council is to render a written apology to the Applicant for the breaches, and advise him of the steps to be taken by the Council to remove the possibility of similar breaches in the future.

Tribunal rules against council’s bid to keep the lid on manager’s performance.

(Sorry about the formatting-something went haywire here.)

In a decision that is sure to attract attention in the local government sector and perhaps beyond, NSW Administrative Decisions Tribunal Deputy President Higgins in Clarke v Blacktown City Council [2013] NSWADT 36 found there was no overriding public interest that prevented disclosure of most of a council report on the performance assessment of the council's general manager. 

 The council tried at every step for over two years to withhold what it argued was sensitive information in the report submitted to the full council in September 2010.

 I represented Mr Clarke in the later stages of the ADT review including with written submissions and appeared for him in the hearing before Deputy President Higgins. With his permission this commentary draws more broadly on the applicant's experience than is the case with usual observations about court, tribunal and commissioner decisions.

Deputy President Higgins ordered disclosure of withheld information consisting of 

• two paragraphs in the report containing the assessment and overall rating of the general manager's performance by the review panel;

•  the strategic objectives against which the general manager was assessed; 

•  and the general manager's self assessment of performance against each of these previously confidential objectives.

The council has 28 days to appeal the decision and has not yet released the documents.

It remains to be seen what if anything was worth the effort and expense.
 
The Tribunal decided in favour of the council on only one category of information in dispute:  the review panel's assessment of the general manager's performance against each of the objectives. Deputy President Higgins said there was a strong public interest in disclosure of this information [80] but decided disclosure on balance was contrary to the public interest on personal information and "provided in confidence" grounds.

Significance
The decision is not a precedent that marks the end of confidentiality as a necessary element in the performance review process, or for the disclosure of information of a highly personal nature about a public servant.  

Deputy President Higgins and along the way, the Office of Information Commissioner NSW, decided the public interest required disclosure of information about the performance of the general manager in carrying out the public duties set out in the Local Government Act and in acting to deliver on the council's priorities, goals and plans that should also be disclosed. Despite council claims that withheld information was all personal information, and other harms to the public interest would result from disclosure including at one stage a risk to someone of harm or serious harassment or intimidation


Background
The applicant, Mr Clarke is a former councillor, and an activist, advocate and self-described altruist in his endeavours for greater accountability and transparency in the local area. He is 85 years of age.

Mr Clarke's application under the NSW GIPA act in November 2010 sought access to the report submitted to the council by the councillors that had conducted the review, and for documents concerning the way the review had been conducted. His interest was sparked when two months before the required review of performance took place, the council renewed the general manager's contract for five years. The report had been submitted to a closed session of the council. Little detail was reported publicly. 

Delay
Apart from obfuscation, Mr Clarke endured delay at every step of the way.
 
It took eight months for the Office of Information Commissioner NSW to issue a ruling in his favour after he took the matter there in January 2011. The council then made a new decision basically maintaining its previous position. When Mr Clarke took that decision to the ADT, another eight months passed before a hearing, with council dragging things out whenever the chance arose.  After the matter was heard in July 2012, the decision was reserved for seven months. 

This is not the promised and necessary speedy access to independent review. 
  
The time line illustrates the persistence needed when an applicant is faced with agency resistance to disclosure, particularly when the information in question is information the boss doesn't want disclosed, and where it has available funds to employ lawyers who can argue the toss about GIPA in this case, Sparke Helmore.

The council stared down the Office of Information Commissioner. 

Inconsequential parts of the report and attachments were released at various points.

Eighteen months in, on the morning of the first day of the ADT hearing, 11 pages of information from the report were put on the table. The information was similar to information contained in the council's 2009 and 2010 annual reports. 

Deputy President Higgins' decision two years and three months since it all began now requires more.

Cost
According to Mr Clarke, Blacktown City Council has spent something of the order of $40,000 on this so far and hundreds of hours of staff time seeking to protect information about the performance review from disclosure. The Local Government and Shires Associations also sprung into action to assist, inviting other NSW councils to contribute to the cost of defending Blacktown's decision in the Tribunal. One example from Leichhardt Municipal Council (pdf) although the $162 on the line there wouldn't help defray costs much at all. Ratepayers in Blacktown and elsewhere should be asking questions.

In addition, NSW taxpayers have also footed a sizeable but unquantified bill for the hours, days, weeks and months spent on the case by the Office of Information Commissioner and the ADT. As for Mr Clarke's time, he's an altruist.

Broader concerns 
Mr Clarke's doubts about the thoroughness of the review process were confirmed when council was unable to locate any relevant documents that guided the councillors involved in undertaking the review other than the pro-forma, a questionnaire provided by a consultant engaged to assist and Mr Moore's self assessment. The Division of Local Government recommends training for this task, and along with the ICAC publishes guidance regarding managing performance and corruption and other risks. The council apparently provided none of this to the councillors involved.

Public interest 
Two relevant extracts from the decisions concerning the public interest in disclosure are worthy of wide dissemination: 
 

The Office of Information Commissioner 7 September 2011:

54.....Mr Moore is engaged in the exercise of public functions and is a representative of the agency. He has been reappointed to the position of General Manager for a further five-year term, which strengthens the public interest in favour of the release of information that accounts for that decision and demonstrates that he is performing at the required standard.
55. While there are considerations against disclosure that apply to the information requested by the applicant, the Information Commissioner is not satisfied that they are strong enough to outweigh the presumption and further considerations in favour of disclosure. The Information Commissioner recommends that there is no overriding public interest against disclosure of this information and that the information should be disclosed to the applicant.

Deputy President Higgins [71] 12 February 2013:

“In my view, there is a ..public interest in having sufficient information to scrutinise the statutory functions being performed by a general manager of a local government, as that position is one of considerable power and influence in the manner in which a local government operates and exercises its functions (for example, its service, regulatory, administrative and revenue functions). That is, information about the statutory functions being performed by the general manager and what methods and processes are used by the elected Council Members to monitor and assess those functions will enhance local government accountability.”

In passing, Blacktown City Council engaged in another expensive but largely unsuccessful effort leading to this Tribunal decision in 2011 to prevent disclosure of a lengthy confidential report into irregularities involving an employee and a contractor. Michael McKinnon of the Seven Network pursued that one.

Aspects of the decision in his case rankle with Mr Clarke particularly the Tribunal's interpretation of his application and the reasonableness finding regarding the council's search for relevant information. Not surprisingly, he is moving on with another cause.

Blacktown needs more like him.


Timeline:

Centrelink not subject to NSW privacy laws

Deputy President Magistrate Hennessy in AGU v Commonwealth of Australia [2013] NSWADTAP 3 reached the unsurprising conclusion that Centrelink, part of the Commonwealth Department of Human Services is not a public sector agency for the purposes of the NSW Privacy and Personal Information Protection Act, and as a result is not subject to the NSW Health Records and Information Privacy Act. 

While it clearly did not come within the statutory definition of a (NSW) agency, the appellant's unsuccessful arguments revolved around provisions in the legislation that seek to bind the Crown in all capacities. The Appeal Panel said these provisions were for the purpose of overriding the common law presumption that the Crown is immune from civil suits, not to extend the act's privacy principles to Commonwealth agencies.

Not mentioned in the decision is that the Department and Centrelink are subject to the Commonwealth Privacy Act.

Privacy law, Commonwealth or state is confusing and messy, and the combination even more so. It is not surprising that citizens such as AGU can get off on the wrong foot. Surry Hills Legal Centre representing AGU perhaps should have picked up that arguing obscure points while pursuing remedy through NSW law to an ADT review and an appeal was always something of a lost cause.

Tribunal delay, Henry George and other hopeless causes

I'm sure there are plenty of examples of clutching at straws or voids in space with resultant costs to the taxpayer and delay to others.

However those waiting patiently for a Government Information (Public Access) Act review decision from the NSW Administrative Decisions Tribunal (in a matter that I'm involved in, since a hearing in July) won't be amused that part of the long delay results from the tribunal having to deal with cases such as NSW Henry George Foundation v Director General Department of Attorney General and Justice decided by Deputy President Higgins last week. The application for review came before the tribunal member in February and April last year.

Everyone is and should be entitled to their review of course, but it should have been made clear along the way in this case that virtually everything being put on behalf of the third party, a charitable trust objecting to disclosure of three years of filed financial accounts, was fanciful and had no prospect of success. The case was decided on the papers, without a hearing.

But Deputy President Higgins took (seven months and) 72 paragraphs to reject claims regarding various public interest considerations against disclosure that did not arise (one), were not relevant (two) or were not established (three). On one, that disclosure of its annual financial statements could reasonably be expected to prejudice the future supply of information from an informant, Deputy President Higgins said the applicant "clearly has little understanding of the application of this ground of public interest consideration against disclosure." Other public interest arguments in my view, were slightly higher grade.

One claim was remitted to the agency for determination, although Deputy President Higgins seemed dubious, with good reason: whether disclosure of the names of trustees, acknowledged as personal information, could reasonably be expected to 'reveal' their names, in light of the fact they appear on the trust's letterhead used in correspondence, and some in other court proceedings.

None of these arguments appear to have been submitted to the tribunal by a hapless group innocently caught up in a GIPA application and doing its best to deal with unfamiliar legal issues. Dwyer Lawyers, experts in tax, wills, estates etc acted for the trust. You have to wonder whether they opined beforehand that there were reasonable prospects of success.

Henry George is turning in his grave at the cost to the taxpayer of agency and tribunal time spent on this. 

There is no reference in the decision to the agency raising the issue of costs but one ground for an order is the relative strength of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law.

Agencies that concede as soon as a matter hits the ADT - as the Department of Education  and Communities did in this recent case that has been cluttering Deputy President Higgins' decision pending tray - should have done better first time round, and by failing to do so also contribute to delay in the tribunal for others, and unnecessarily to ADT costs. Not to mention the administrative cost in this case that may arise from stuffing up in releasing unrelated personal information about others to the applicant.

It's my second day back. Excuse the grumpiness.

Public interest in disclosure of source of patently false allegations

In situations where access is sought under FOI type laws to the name of a complainant and some assurance of confidentiality has been given to the confider, relevant exemptions or considerations against disclosure of identity based on protection of the source usually prevail. However in a recent GIPA act case, NSW Administrative Decisions Tribunal Judicial Member Isenberg (Fahey v NSW Office of Liquor, Gaming and Racing [2012] NSWADT 181)) decided the allegations of the complainant "which were very serious and alleged gross impropriety" by the applicant in running two local charities, were, on the whole, patently false [31], found in addition to other public interests in favour of disclosure that there is a general public interest in disclosing the identity of a complainant who makes false complaints [32], and decided that disclosure of the name in this case on balance was not contrary to the public interest [82]. The Office of Information Commissioner in an earlier review considered that releasing identifying information would reveal personal information and that, in the circumstances, this public interest consideration against overrode the public interest considerations in favour of disclosure. Judicial Member Isenberg [30] made a distinction between allegations which, while based on genuinely-held beliefs are found to be erroneous, and allegations which are malicious or which are made with disregard to basic facts.

Gunns down, NSW wood price out

Despite objections by the two companies involved, the NSW Administrative Decisions Tribunal (Nature Conservation Council of NSW v Department of Trade and Investment, Regional Infrastructure and Services [2012] NSWADT 195) has ruled in favour of disclosure of information under the GIPA act concerning current wood supply agreements with Forests NSW. The information included the sustainable yield,  resource price and allocation of hardwood

In evidence a senior executive of one of the timber companies said he was not aware of any publicly available information of this kind. Evidence on behalf of the applicant from an economist and an environmental consultant cast doubt on this and on the claimed adverse effects of disclosure on business and commercial affairs. Judicial Member Montgomery balanced the considerations as follows:

197. I consider that there is a strong public interest consideration favouring disclosure of the redacted information in order to increasing (sic) the financial accountability of the First Respondent. I agree with the Applicant that there is a clear public interest in an agency that is dealing with public assets being accountable for the manner in which it contracts to sell those assets. This interest is strengthened by the fact that the Agreements were entered under a system that did not involve an open tender.

198. I also consider that there is a strong public interest consideration favouring disclosure of the redacted information in order to further public policy development around the management of the publicly owned hardwood forest estate in NSW.

199. I also consider that there is a strong public interest consideration favouring disclosure of the redacted information in order to encourage community engagement with government about sustainability.

200. I consider that there is a public interest consideration against disclosure of the redacted information because there is some risk that the Second and Third Respondents could be placed at a commercial disadvantage in relation to other contractors or potential contractors if the redacted material is disclosed.

201. I consider that there is a public interest consideration against disclosure of the redacted information because there is some risk that the commercial value of some aspects of the redacted information could be diminished if the redacted material were disclosed.

202. I consider that there is a public interest consideration against disclosure of the redacted information because there is some risk that the Second and Third Respondents' business, commercial or financial interests might be prejudiced if the information has not been released already were disclosed.

203. As I have indicated above, it is my view that there is considerable doubt in regard to the extent of those risks.

204. In my view, the public interest considerations in favour of disclosure outweigh those against disclosure.

205. It follows, in my view, that the determination should be set aside insofar as it relates to the Agreements. In its place the decision should be made that the redacted information in the Agreements is to be released to the Applicant. That information should be released within 30 days of the publication of this decision.

Judicial Member Montgomery in this 2007 Freedom of Information case had ruled that information about the royalty rate then more than 3 years old but still commercially valuable, was not exempt on the basis of evidence that another state had released information regarding rates without any apparent impact on commercial viability. 

Opinion not always the basis for a reasonable expectation

The phrase "could reasonably be expected" features in Australia's freedom of information laws in provisions available to justify a refusal of access. It describes the degree of confidence required in assessing the likelihood of potential harms to the public interest that could arise from disclosure. While the law is reasonably settled, recent decisions in the NSW Administrative Decisions Tribunal illustrate that opinion of an official won't necessarily constitute evidence sufficient to justify such a conclusion.

Tribunals not courts, but if it looks like....

You may have been thinking I got to 2500 posts and dropped by the wayside. 

Or off the perch. Not quite.

I've been busy with other things including representing an applicant in a Government Information (Public Access) Act review in the NSW Administrative Decisions Tribunal. That  involved a few visits to John Maddison Tower in Goulburn St where the Tribunal has been located since moving south from long time digs in Elizabeth St in October last year. The former home was in an office block near Sydney's heavyweight legal precinct. The John Maddison Tower and the Downing Centre next door are court buildings in the next tier, with John Maddison home to the District Court including the civil registry and several floors of courtrooms, the Federal Magistrates Court and the Chief Industrial Magistrates Court. These days with the ADT, the Dust Diseases Tribunal, and the Medical Tribunal for company making it a mix of parts of both the executive and judicial branches of government.

Citizens jostling with barristers and solicitors passing through the security check as they enter on the ground floor, and who consult the day's tribunal listings in the foyer affixed to a notice board headed "District Court" may find this a somewhat intimidating, heavily legal environment.

Sydney Olympic deals still commercially significant

 Ah remember the days..revisited recently in a Government Information (Public Access) Act case in the NSW Administrative Decisions Tribunal concerning the relatively rare issue of access to cabinet information ten or more years old. The decision involved something not quite as rare, a win (mostly) for the Sydney Swans (8-3, midway through the season).

The conclusive presumption that there is an overriding public interest against disclosure of cabinet information ( GIPA Schedule 1 Clause 2) does not apply if (a)  public disclosure of the document has been approved by the Premier or Cabinet, or (b)  10 years have passed since the end of the calendar year in which the document came into existence.

Nevertheless, depending on content, context and the effect of disclosure, there is scope on other grounds to claim an overriding public interest against disclosure. 

Deputy President Higgins in Hall v Department of Premier and Cabinet [2012] NSWADT 46 decided some withheld parts of a 1999 cabinet minute prepared in the lead up to the 2000 Olympics should be released, affirmed the decision (with a confidentiality order attached to the reasons) to refuse access to other parts that had continuing commercial significance to the Swans and the Stadium Australia Management Limited (SAG), and referred other disputed parts of  the document back to Premier's for reconsideration. (The document as released is yet to appear on the department's disclosure log.)

Few points of law arose in the case. The order that some information withheld by the department should be disclosed resulted primarily from the failure to satisfy the tribunal that disclosure would have the adverse effects claimed. For information of this kind it was unnecessary to consider whether the public interest considerations against disclosure, on balance, outweigh the public interest considerations for disclosure. However with regard to some, Deputy President Higgins commented "there are a number of public interest considerations in favour of disclosure of the information in the disputed paragraphs. The stadium is an important public asset and disclosure of the disputed information (now 13 years old) could reasonably be expected to enhance Government accountability and ensure effective oversight of the expenditure of public funds" [52]. Other information of this kind "appears to be purely factual and uncontroversial" [72]

Information Commissioner NSW and Administrative Decisions Tribunal differ over "right to appear and be heard"

A significant difference emerged late last and earlier this year between the Information Commissioner NSW and the NSW Administrative Decisions Tribunal concerning the commissioner's role in cases before the tribunal. It's not known whether the Commissioner is sticking to her guns that her rights are broader than two tribunal members envisage, and resolution of the issue by the courts is problematic. But applicants may find themselves without the same level of support than hitherto particularly in those cases where the Commissioner prior to ADT consideration undertook a review, and would bring that knowledge and a view about the merits of the case to the table.


The GIPA act (s 104) provides that the Information Commissioner (and the Privacy Commissioner in review cases that concern a privacy-related public interest consideration) "has a right to appear and be heard" in matters before the tribunal. (Unique I think in Australian FOI schemes, as are other aspects of the NSW review model.)  The act and the Administrative Decisions Tribunal Act do not mention the commissioners in listing those who are parties to proceedings, although the tribunal (ADTA s 67) may make any person a party in certain circumstances. 

The issue is whether the "right to appear and be heard" is subject to implied limitations. In separate decisions the tribunal has said the Commissioner's right does not extend to making submissions in relation to the merits or contentions of a review application. Or to be given access when evidence is given in the absence of the applicant, the applicant's legal representative and the public. The tribunal in both cases ruled the commissioner's role is limited to submissions in relation to the applicable law and policy to assist the tribunal in the conduct of a review.

 In neither however did it undertake detailed analysis or cite precedents to support its interpretation.The Information Commissioner in a submission in a later case argued the right goes further than making submissions relating to questions of law and extends to adducing evidence relevant to the application. The published decision in that case contains no mention of the the issue although the points raised certainly deserve consideration. The Commissioner hasn't said anything publicly about the matter as far as I'm aware.

The commissioners had a couple of hours on Monday with parliament's Ombudsman and Police Integrity Commission Committee so interesting to see, when the transcript emerges, what came up there.

NSWADT in first GIPA decision notes important FOI changes

The NSW Administrative Decisions Tribunal has published the first decision on a review application lodged under the Government Information (Public Access) Act that commenced on 1 July last year. Judicial Member Molony in Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98 overruled the Department's decision, finding the public interest favoured disclosure to the applicant of the Queensland Police Service Court Brief for charges against him that had been provided to the agency by its Queensland counterpart.

The information that had been deleted from the brief partially released to the applicant, and in dispute before the Tribunal, was names of the individual complainants and their roles in public office, and details of what they told Queensland Police about Mr Richards' harassment of them- a mixture of personal information about the complainants and Mr Richards.

The only public interest consideration referred to in the decision was disclosure would reveal an individual's personal information- the complainants' details and what they told the police- a public interest consideration against disclosure listed in the GIPA act (3(a) in the Table to s 14, to be weighed against any public interests that favoured disclosure. This is of no relevance when the information concerns the applicant, only when information of this kind concerning another or others is sought.

The evidence before the Tribunal was that the applicant had sought and been granted access to a copy of the full brief including those parts redacted, by Queensland Corrective Services under the Information Privacy Act. A significant factor in the Queensland decision had been that the brief had been relied on by the Queensland Police and the content revealed at the Southport Magistrates Court, on 13 May 2010 when Mr Richards was charged with two counts of using a carriage service to menace, harass or cause offence. In deciding to release the brief in full, QCS concluded that Mr Richards was already aware of the information "as it has been put to you by police and the court" [36].

Judicial Member Molony [37] decided that as the information already had been disclosed in open court, release under the GIPA Act could not be reasonably expected to reveal the complainant's personal information (as per 3(a)) because "reveal information" was defined (Schedule 4, Clause 1) to mean "to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)."

Judicial Member Molony [40] noted important changes introduced by the GIPA act where the definitions of 'government information', 'personal information', and 'reveal'  "operate on information alone, not, as was the case under the Freedom of Information Act 1989, with respect to documents. The issue for consideration is not whether the document has been publicly disclosed, but whether the information .. has been publicly disclosed."

Judicial Member Molony made no reference to 3(b) in the Table to s 14, that disclosure would 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, presumably because the agency didn't rely on this provision or argue it in the case. On the basis of the reasoning regarding 3(a), such an argument might fail because the personal information was available in a publicly available publication (PPIPA s 4(3)(b)) -the Queensland court transcript or decision. 

The effect of the GIPA act 3(b) public interest consideration against disclosure is to import  into that act the disclosure principle from the PPIPA act. It's something of a mystery in the light of the fact that the PPIPA act s 5 states:

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.

The circularity is evident. 3(b) was included at a late stage in the drafting of the act at the initiative of the then Privacy Commissioner and Acting Information Commissioner Judge Taylor, and not subject to any public discussion as far as I am aware.

NSW ADT rules maximum $40000 for damage from serious privacy breach

The decision by Judicial Member Montgomery of the NSW Administrative Decisions Tribunal to award a privacy complainant $40,000 as compensation for loss or damage is the first instance since the commencement of privacy legislation in NSW in 2000 where the maximum amount has been awarded.( NK v Northern Sydney Central Coast Area Health Service (No 2) [2011] NSWADT 81.) The legislation provides for such an order up to the maximum "by way of compensation for any loss or damage suffered because of conduct" contrary to the relevant privacy principles.

The previous highest award  was $7500, although in another case in which it found it had no jurisdiction, the Tribunal said an award of $15000 would have been justified. Judicial Member Montgomery [52] distinguished other cases by reference to the significant number of breaches in the matter before him, and the seriousness of the damage suffered by the complainant as a consequence, involving as it did a suicide attempt. The decision includes discussion [32-45] of the law concerning compensatory and exemplary or aggravated damages. Judicial Montgomery left open the question of the full extent of Tribunal powers commenting that the maximum amount specified was lower than what might have otherwise been awarded [63].

Rider in FOI determination doesn't give rise to review or amendment rights

Throwing in a few words in a notice of determination that have little to do with the decision to release or not release the requested documents did not render the decision void, voidable or otherwise invalid, and was not a matter within Tribunal jurisdiction ruled Judicial Member Malony of the NSW Administrative Decisions Tribunal in GA v University of Sydney [2010] NSWADT 76, a matter that clearly has plenty of history.

The issue argued by the FOI applicant was the inclusion of the words "The University does not admit any assumption made or implied in your FOI application" in the original decision and internal review determination. Senior Member Malony said:

"The issue for the Tribunal on external review is whether or not GA should have access to the documents requested, not whether or not the rider is or is not authorised by the Act."[38]

Another aspect of the matter concerned a decision by the Tribunal Registrar to refuse to amend the record by redacting the same words from documents lodged in proceedings. Judicial Member Malony said the decision was correct  because the sentence in a document containing the applicant' name was not information about GA’s personal affairs for the purpose of the amendment provisions of the FOI act [58].

Finally the Tribunal had no jurisdiction to consider a claim for review under the Privacy and Personal Information Protection Act concerning the inclusion of these words in documents held by the University because the sentence did not contain personal information about GA - that is, information or opinion about him [71].

Focus on information not documents a NSW step in the right direction

www.archives-doc.com

One of the positive aspects of the NSW Government Information (Public Access ) Act (yet to commence) is that it moves into the modern world by providing a right of access to information. It's a significant move away from the Freedom of Information Act 1989 focus on "documents", evoking as that term does, images of piles of paper, manila folders, and large repositories to store them (not that all these aren't still important in the accountability context.) 

The reality is that these days just about everything created or held by a government agency is rendered into a digital format with the bits and bytes stored electronically. Those within the system have sophisticated technology available to identify, retrieve and consolidate that information, as and when the need arises, for agency purposes. The new act will require an agency to use these resources to locate and provide requested information for applicants. And it limits charges to time necessarily spent in efficiently dealing with the request, so paper hunting or shuffling won't be necessary in many instances.

It also means the end of puzzling about what Section 23 of the Freedom of Information Act means. The section headed "Information stored in computer systems etc" requires a search of computer systems only when an agency doesn't hold a written document containing information of the kind requested. 

In a recent decision different interpretations of the provision by Administrative Decisions Tribunal members surfaced. The new act contains no equivalent, simply requiring a reasonable search for information using equipment available for retrieving information stored electronically, limited only by an out where a request would involve substantial and unreasonable diversion of resources. The agency can put all that it finds into a new record where this seems sensible. All a very good step forward in my opinion.

NSWADT override discretion limited where legal privilege applies

The background and complex detail of a five year battle (and numerous Tribunal and court decisions) arising from a Freedom of Information application for access to legal advice about responsibilities of the University Council provided to the University of NSW will only be of interest to those very serious about their NSW FOI. The culmination, in the Court of Appeal in McGuirk v University of NSW [2009] NSWCA321 involved a draw for the parties on legal points as the two issues for consideration went one each way but Mr McGuirk will end up with his document if this is the end of the ride, and with a limited order for costs for part of the proceedings.

Of broader significance however was that in the course of the decision the Court unanimously declared [92] the NSW Administrative Decisions Tribunal has no power under s 63(2) of the Administrative Decisions Tribunal Act 1987 to grant access to a document which is found to be exempt by virtue of Schedule 1, cl 10 ( the legal professional privilege exemption) of the Freedom of Information Act 1989 (NSW). As explained below (with all due respect etc) the reasoning for the decision seems questionable.Mr McGuirk gets to prevail for reasons that are too complicated to explain here [41-87 if interested].

There is nothing in the relevant NSW laws (unlike Federal legislation) that states the Tribunal cannot order the release of an otherwise exempt document. But no provision (unlike Victoria) either that confers an override discretion. The issue of the Tribunal's powers on review of Freedom of Information decisions has been long contested.The Supreme Court (Nicholas J) in another case involving the same parties, University of New South Wales v McGuirk [2006] NSWSC 1362 at [102] ended years of uncertainty and differing decisions by tribunal members when it decided that the Tribunal had the same discretion as the original decision-maker where a document has been found to be exempt: that is to consider whether disclosure or non disclosure was the correct and preferable decision, consistent with the objects of the Act. The reasoning was that Section 25 of the NSW FOI Act provides that in determining an application an agency may (not shall) refuse access to an exempt document. Section 63 of the Administrative Decisions Tribunal Act provides:

(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.”

Justice Nicholas cited the following passage from the Tribunal decision in Mangoplah as correctly stating the position:

“85 Consistent with this jurisprudence, absent any special limitation on the Tribunal’s review function in applications under the FOI Act, it has the function by reason of s 63 of the ADT Act – indeed the duty – when reviewing a determination under ss 24 and 25 of the FOI Act to consider all issues arising in the case in relation to whether a document should be released. As indicated above, once a ground for refusal of access arises under s 25(1)(a) the issue arises whether to exercise the discretion to release an exempt document which is not a restricted document the subject of a Ministerial certificate. The decision under review must have, or must be taken to have, addressed this discretion before determining to refuse access on the ground of an exemption. The Tribunal must also address it”.

In the Court of Appeal, the only ground of appeal by the University against a decision of the Tribunal Appeal Panel considered [26] was that the Panel had erred in proceeding on the basis that it had power to grant access to a document exempt by operation of legal professional privilege. The University submitted [31] that any power a relevant officer of the University may have had to grant access to a document subject to legal professional privilege arose under the general law and not under any enactment. Justice Basten (with whom Justices Ipp and Macfarlan agreed) said:

32 Because s 63(2) is limited to the exercise of functions conferred or imposed “by any relevant enactment” the power to waive legal professional privilege is not a power enjoyed by the Tribunal..... A relevant enactment must be an Act, regulation, by-law, rule or ordinance.. Where the University obtains advice from lawyers, its rights with respect to that advice will depend upon the general law, even if it is obtained for the exercise of its statutory functions....

33 In the present case, there was no relevant grant of statutory authority. The power to waive privilege did not arise under any enactment. Accordingly, at least in respect of the exempt document in question, no power was conferred on the Tribunal by s 63(2) of the ADT Act to waive any legal professional privilege as might remain extant.

The problem with this is that while there is strong legal precedent for the general proposition, the FOI Act contains a clear additional statutory provision regarding release of documents, including any containing legal advice.The decision completely ignores the FOI Act- clearly an enactment for the purposes of Section 63(2) of the ADT Act- and Section 25 which contains a provision of the kind contemplated by Section 63(2): the exercise of functions by the administrator who made the decision, that is to release an otherwise exempt document.This isn't waiver but a statutory discretion. Parliament didn't put legal privilege documents outside the scope of the discretion. Section 25 formed a key element in Justice Nicholas' reasoning, but doesn't get a mention anywhere in Justice Basten's consideration [29-40] of the relevance of other provisions of the ADT and FOI acts. Section 63(2) provides the Tribunal with the same functions as were available to the determining officer.

Justice Nicholas' decision about ADT powers had for different (and more understandable) reasons been qualified by the Appeal Panel in IPART v Services Sydney [2008] NSWADTAP 79. Although not the central point in the case, the Appeal Panel decided [46] that the discretion did not extend to documents found to be exempt under clauses 1, 2 and 4- "restricted documents" in the language of the NSW Act.

This issue of ADT override discretion will not be relevant when the NSW FOI Act is replaced by the Government Information (Public Access) Act early in 2010. The issue in any ADT review of refusal of access under GIPA (except those concerning Cabinet and Executive Council documents where review is to be limited to whether there are reasonable grounds for the claim) will be whether there is an overriding public interest against disclosure of the information. Those with FOI cases before the Tribunal concerning legal professional privilege claims however can forget arguing that the Tribunal should exercise its discretion to grant access- unless there are any takers for another Court of Appeal challenge?