Posted on August 18, 2022 by 3

Tribunal affirms council decision not to release names of signatories of a letter to the mayor

The Appeal Panel of the NSW Civil & Administrative Tribunal in Moree Plains Shire Council v Howlett [2022] NSWCATAP 221 has allowed an appeal by the Council against the Tribunal’s decision to release information in a letter to the Council’s Mayor about a community project for the installation of plaques on unmarked Aboriginal graves.

The issue in this case was whether the applicant should be given access under the Government Information (Public Access) Act 2009 (GIPA Act) to the names of the ten people who signed a document delivered to the Mayor of the Council. The Council had released the content of the document but not the names of the signatories. The Tribunal at first instance decided to release the names.

The Appeal Panel allowed the appeal and found the Tribunal made legal errors in releasing the names of the signatories. It conducted a new hearing and decided to affirm the Council’s decision.

We provide an overview of the decision in this blog post.

Background

The document was a letter regarding a project for the Aboriginal section of the Moree Cemetery, for which the Council was the cemetery operator. The applicant in the proceedings was the representative of the project’s proponent.

The project was a community led, Council approved project involving the installation of 176 plaques which would identify the remaining unmarked graves of Aboriginal people buried in the cemetery between 1940 and 1968. The tiles were going to be painted and laid during Reconciliation Week in 2019.

The signatories of the letter said that their family members were buried in that section of the cemetery and that they had not been consulted on the project. The Council then advised the proponent that the project was being suspended with immediate effect.

The project was ultimately approved and completed in November 2020, however the applicant said that the suspension of the project and its aftermath was traumatic for proponent. She contended that the project was undertaken with significant consultation within the Aboriginal community and was well supported. She sought to understand why the suspension occurred, and applied for access to the letter accordingly.

Issues on appeal

The Tribunal at first instance gave significant weight to considerations under section 12 of the GIPA Act of informing the public, promoting discussion, accountability and debate, and revealing improper conduct. Against this it weighed the public interest consideration of revealing an individual’s personal information, but gave that little weight on the basis that the signatories must reasonably have known or ought to have known that their identity would or could become public. The Tribunal at first instance also said that a person’s name and signature was not sensitive personal information and the letter was not obtained in confidence. The Tribunal decided to release the letter in non-redacted form accordingly.

The Council appealed that decision. The grounds of appeal were as follows.

There was no evidence to support the finding that disclosure could reasonably be expected to reveal or substantiate that the agency had engaged in misconduct or negligent or improper conduct.

Section 12(1)(e) of the GIPA Act notes that the disclosure of information which could reasonably be expected to reveal or substantiate that the agency had engaged in misconduct or negligent or improper conduct is an example of a public interest consideration in favour of disclosure.

The Tribunal at first instance found this to be relevant to the matter. The Tribunal had called into question the Council’s decision to immediately suspend the project following receipt of the letter, saying that the disclosure of the signatories’ names ‘had the potential to indicate if the agency’s decision to immediately suspend the project was or was not soundly based in the circumstances‘.

The Appeal Panel disagreed. It held (at [29], [30]):

1. the test was not whether the disclosure would have the ‘potential‘ to have a particular effect;
2. the Tribunal erred by substituting the test of ‘unsound conduct‘ for the statutory test of ‘misconduct or negligent, improper or unlawful conduct‘; and
3. there was no evidence that disclosing the names of signatories could be expected to have the effect stated in s 12(1)(e).

The Appeal Panel thus found the Tribunal erred in applying the law to the facts.

The Tribunal erred in its application of the public interest consideration against disclosure in clause 1(d) of the Table in GIPA Act s 14.

Clause 1(d) to the Table to s 14 provides that there is a public interest consideration against the disclosure of information if the disclosure could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions.

The Council submitted that the Tribunal erred in its application of the consideration relating to this ground through errors of reasoning. The Council said the Tribunal conflated the disclosure of the contents letter with the disclosure of the names of the signatories, ‘and/or‘ took into account events after the point of receipt of the letter in determining whether the document was confidential.

The Appeal Panel agreed that the Tribunal failed to treat the content of the document separately from the signatories: at [41].  It said that instead of the Tribunal confining itself to the consideration in clause 1(d), it had found error in the Council’s decision and (erroneously) reasoned that if the Council did not consider the content to be confidential, then neither were the names of the signatories: at [44].

The Appeal Panel disagreed with the Council in the second respect. It said that while the time for assessing confidentiality is when the information is supplied, later events may cast light on the signatories’ intention at the time: at [47].

The Tribunal erred in its construction and application of clause 3(b) of the Table in GIPA Act s 14.

Clause 3(b) to the Table to s 14 provides that there is a public interest consideration against the disclosure of information if the disclosure could reasonably be expected to contravene an information protection principle (IPP) under the Privacy and Personal Information Protection Act 1998 (PPIP Act) or a health privacy principle (HPP) under the Health Records and Information Privacy Act 2002.

The Council contended that the Tribunal had erred by finding that the relevant information needed to have been ‘collected‘ for this clause to apply.

The Appeal Panel agreed. It found that that the Tribunal misapprehended that clause 3(b) only applied to information ‘collected‘ by an agency, instead of applying to any personal information held by the agency: at [54]. It found an error of law and said that the question the Tribunal should have asked is whether it could reasonably be expected that s 18(1)(a) of the PPIP Act would be breached by disclosure of the signatories to the letter: at [54].

The Tribunal failed to apply s 54 of the GIPA Act.

The Council submitted that the Tribunal failed to take into account the mandatory consideration in s 54(5) of the GIPA Act, namely to ‘take any objection to disclosure of information that the agency receives in the course of consultation into account in the course of determining whether there is an overriding public interest against disclosure of government information‘.

The Appeal Panel upheld this ground. It found the Tribunal did not refer to s 54(5) or indeed any of the requirements in s 54 of the GIPA Act in its reasons for decision, including when it was considering whether clause 1(d) of the Table to s 14 applied: at [61].

Decision following new hearing

The Appeal Panel decided that it would facilitate the just, quick and cheap resolution of the real issues in the proceedings to reconsider the application without further evidence.

The Appeal Panel’s consideration is summarised in the following paragraphs from the decision:

‘83.  Aunty Noeline was the proponent of the painted tile project and had spent many decades participating in initiatives to restore the segregated Aboriginal section of Moree Cemetery. Her motivation, in part, was to find out who had complained so that she could make her own assessment as to whether the complaints were justified. The suspension of the project and its aftermath was understandably traumatic because, her perception was that there had been extensive consultation and collaboration with the local Aboriginal community. Given that context, she does not understand why Council suspended the project. She queried whether the signatories had a legitimate right to be consulted. …

85.   The public interest considerations against disclosure are that disclosure could reasonably be expected to reveal an individual’s personal information and contravene an information protection principle. We also take into account that one signatory has objected to the disclosure of his name. One public interest consideration in favour of disclosure is that disclosure could reasonably be expected to promote open discussion of public affairs, enhance Government accountability and contribute to positive and informed debate on issues of public importance. Similarly, we are satisfied that disclosure of the information could reasonably be expected to inform the public about the operations of Council and, in particular, their policies and practices when dealing with members of the public in connection with the painted tiles project. Those factors are strengthened by the personal factors to which we have referred.

86.   In our view, the factors against disclosure outweigh the public interest consideration in favour of disclosure. If the information is disclosed, Council could be in breach of the information privacy principle in s 18(1)(a) of the Privacy and Personal Information Protection Act 1998. One person has strongly objected to the disclosure. That factor outweighs the more general considerations in favour of disclosure and the personal factors.‘

The Appeal Panel therefore set aside the decision at first instance and affirmed the Council’s decision.

Key points from decision

This case provides useful authority for the following points:

1. When considering the public interest consideration against disclosure which relates to confidentiality (Table cl 1(d)), the time for assessing confidentiality is when the information is supplied, not afterwards. However, later evidence may help ascertain the person’s intention at the time of supplying the information.
2. When considering the public interest consideration against disclosure in relation to IPPs and HPPs (Table cl 3(b)), it should be remembered that this consideration applies to any personal information held by an agency, not just information which is ‘collected‘ by it.
3. It is imperative for decision-makers to apply the statutory tests in the GIPA Act (and indeed other Acts) as they are worded, not tests which they may consider to be similar to or a shorthand of those statutory tests. Applying the wrong test will expose a decision-maker to a challenge on the basis that they made a legal error. If there is any doubt by a decision-maker as to the meaning or requirements of a particular test, then they should seek independent legal advice.

You can read the full text of the decision here.

If you would like to discuss this blog post, please contact Carlo Zoppo on (02) 8235 9705 or Lachlan Penninkilampi on (02) 8235 9719.