Administrative Decisions Tribunal New South Wales

• Medium Neutral Citation: Leda Developments Pty Ltd v Tweed Shire Council [2013] NSWADTAP 50
• Hearing dates: 22 October 2013
• Decision date: 22 October 2013
• Jurisdiction: Appeal Panel - Internal
• Before: Judge K P O'Connor, President; P Molony, Judicial Member; P Smith, Non-judicial Member

Decision

1. Appeal allowed.

2. Decision under appeal varied, as per para [16] of these reasons.

• Catchwords: GOVERNMENT INFORMATION (PUBLIC ACCESS) - Application for disclosure of communications with council officer - refusal to disclose name of correspondent, and name of correspondent's organisation - Upheld by Tribunal - Appeal - Appeal allowed in respect of name of organisation - Not shown that disclosure of name of organisation would be likely to reveal identity of correspondent: Government Information (Public Access) Act 2009
• Legislation Cited: Government Information (Public Access) Act 2009
• Category: Principal judgment
• Parties: Leda Developments Pty Ltd (Appellant); Tweed Shire Council (Respondent)
• Representation: M White, agent, by leave (Appellant)
• File Number(s): 139023

Decision under appeal

• Citation: Leda Developments Pty Ltd v Tweed Shire Council [2013] NSWADT 121
• Date of Decision: 2013-05-30 00:00:00
• Before: General Division
• File Number(s): 123221

reasons for decision

1 The appellant is a company undertaking two major residential development projects in the Tweed Heads area. It applied under the Government Information (Public Access) Act 2009 (GIPA) to the respondent council for access to correspondence between council officers and people concerned about the development projects, and their impact on the area.

2 The council refused to disclose some of the information sought. The appellant applied to the Tribunal for review. The Tribunal upheld the council's objections in certain respects. The appellant now appeals in relation to one only of the Tribunal's rulings, being the following:

1. The decision of the respondent in regard to the deleted information in the emails that are item 1 is affirmed.

3 The council filed a notice in reply to the appeal stating that it wished to make no further submissions, and would submit to the outcome. We have reviewed the submissions it made to the Tribunal at first instance in relation to the deleted information.

4 Mr White, group adviser to the group of companies of which the appellant company is part, appeared by leave for the appellant. He had with him the project manager, Mr van Rij.

5 Item 1 contains email correspondence in the period 17 - 21 January 2010 between a person whose name and related particulars has been deleted and the council's director of planning, Mr Vince Connell. The subject matter of item 1 is described by the Tribunal at [33](a) of its reasons. As at January 2010 the development had yet to clear the primary planning approval stage. That has now occurred and the development is in the implementation phase (we were told that 10,000 houses were to be built, and the time frame was around 20 years).

6 The Tribunal referred to the relevant provisions of GIPA and engaged in the required balancing exercise, and we will not repeat the detail of its approach here. At [55] the Tribunal said:

55 As I have explained above, the information in item 1 is essentially a request, by person A, for information from the respondent. On the basis of information received by the respondent in the course of its consultation under s 54, I accept that the public interest consideration against disclosure of the name and email address of person A is very strong. And I also find, on balance, that the public interest consideration against the disclosure of person A's name and email address outweighs the public interest consideration in favour of disclosure.

7 In response to the council's letter of consultation under s 54, the writer had referred to a family circumstance that the writer saw as justifying non-disclosure.

8 In its submissions the appellant drew attention to internal references in the texts released that suggested that the writer had made enquiries of Mr Connell on behalf of an 'association'.

9 As to the balance to be struck between the public interest in disclosure and the public interest against disclosure, the appellant reiterated the case it had made to the Tribunal below that it was entitled to know who precisely had communicated with council officers expressing concern over the development.

10 The appellant also submitted that if, as it surmised, the writer was writing on behalf of a community organisation the writer's claim to privacy of identity was weakened if not lost. The appellant disputed that any reference to an organisation could be treated as 'personal information' within the meaning of the Act. 'Personal information' is defined as:

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) that reveals nothing more than the fact that the person was engaged in the exercise of public functions,

(c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause.

11 The appellant drew attention to a statement in the writer's email that indicated interest in pursuing a public media campaign against the development. The appellant submitted that this was not consistent with the privacy interest to which the Tribunal had given weight.

12 The appellant also referred to the exclusion from the meaning of personal information seen in cl 4(3)(b), and, argued that this exclusion might apply to the present case. While we doubt that the words "engaged in the exercise of public functions" is intended to apply to persons engaged in public activity on behalf of a private organisation of citizens, there is, as we see it, some merit in the general point that a person who makes enquiries as a representative of a community organisation is in a different position to a person who makes an enquiry simply on their own behalf.

13 The Tribunal did not in its reasons separate the issue of the name of the writer from the issue of the name of the organisation. In our view, the Tribunal erred in deciding not to disclose the name of the organisation.

14 The Tribunal proceeded on the basis, as we read the reasons, that both pieces of information fell within the meaning of 'personal information'. For the name of the organisation to be protected as personal information, it would need to be shown that the revelation of the name of the organisation would have the result that the identity of the writer would be 'apparent or can reasonably be ascertained from the information'. There was no such finding. In these circumstances we can not be satisfied that the name of the organisation should have been treated as covered by the meaning of 'personal information'. This information could not, therefore, be protected by reference to any public interest that has as its focus the reasonableness of the non-disclosure of personal information.

15 As previously noted, the writer had raised a personal circumstance with the council in opposing disclosure of identity. The Tribunal's reference to a 'strong' public interest case against disclosure we take to be a reference to this matter. We informed the appellant of our understanding.

16 We indicated that we would uphold the appeal and permit disclosure of the name of the organisation wherever it appears in the emails in item 1. The appellant was satisfied with that outcome. It is unnecessary therefore to consider further the Tribunal's decision as it related to the name of the writer of the email.

Order

1. Appeal allowed.

2. Decision under appeal varied, as per [16] of these reasons.

Decision last updated: 30 October 2013