Mangleson v Roads and Traffic Authority [2005] NSWADT 269 (25 November 2005)

Last Updated: 25 November 2005

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Mangleson v Roads and Traffic Authority [2005] NSWADT 269


PARTIES: APPLICANT
James Harry Mangleson
RESPONDENT
Roads and Traffic Authority



FILE NUMBERS: 053190

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 28/10/2005



DECISION DATE: 25/11/2005

BEFORE: Higgins S - Judicial Member





LEGISLATION CITED: Freedom of Information Act 1989

CASES CITED: Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606
Electoral Commissioner, State Electoral Office v McCabe (GD) [2003] NSWADTAP 28
Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 43
Thompson Ardill v Lord Howe Island Board [2003] NSWADT 193

APPLICATION: access to documents - law enforcement & public safety
access to documents - personal affairs
Freedom of Information Act - access to documents - law enforcement & public safety
Freedom of Information Act - access to documents - personal affairs

MATTER FOR DECISION: Principal matter


APPLICANT REPRESENTATIVE: APPLICANT
In person

RESPONDENT REPRESENTATIVE: RESPONDENT
C Ludlow, solicitor

ORDERS: The Tribunal orders that the decision of the RTA to refuse the applicant access to the names and addresses of the persons named in the documents the subject of this application is set aside. In substitution thereof a decision that:
(a) the names of those persons on the list of attendees at the meeting on 11 May 1999 and who are the authors of the documents at attachment "A" and "E" of Mr Youngman’s statement are exempt; and
(b) within 28 days, the applicant be granted access to the whole of the letters dated 26 and 27 May 1999 and a copy of the list of attendees at the meeting on 11 May 1999 with the names of the persons mentioned in(a) above being deleted.


Reasons for Decision:

REASONS FOR DECISION

1 Mr Mangleson ("the applicant") has made an application seeking review of the decision of a delegate of the respondent agency ("the RTA") to refuse him access to an unedited version of the list of names of persons who had attended a meeting at Byron Town Hall on 11 May 1999 and the correspondence received by the RTA following that meeting. The applicant had made a request for access to these documents under the Freedom of Information Act 1989 ("the FOI Act"). The applicant made the FOI request on behalf of the Ocean Shores Community Association, which is a community group that had organised a protest against a 1999 proposal for the upgrade of the Pacific Highway from Brunswick Heads to Yelgun. These protests were organised through a sub-committee of the Association, the Highway Action Coalition ("the HAC"). Other community groups were also involved in lobbying or consulting with the RTA in respect of the proposed upgrade. It would appear that some of these groups held a contrary view to that of the Ocean Shores Community Association as to where the road should be located. It would also appear that the differing views gave rise to considerable animosity between them.

2 The edits that had been made to the documents the applicant had requested were the names and addresses of third parties who had objected to the disclosure of their name and access was refused on the grounds that disclosure of the names could reasonably be expected:

"to endanger the life or physical safety of any person": see cl.4(1)(c) Schedule 1 of the FOI Act.
"to endanger the security of any building, structure or vehicle": see cl.4(1)(g) of Schedule 1 of the FOI Act.

3 At a planning meeting the parties agreed that the Tribunal was to determine the application on the papers. The relevant papers were subsequently filed. The RTA also contacted the Cabinet Office of the Premier’s Department as the exemption claimed gave rise to the documents being a "restricted document" under the FOI Act: see s.6 definition of "restricted document" and s.57 of the FOI Act. The Tribunal was subsequently advised, on 28 October 2005, that the Premier did not wish to make any submissions in respect to the documents.

10 May 1999 meeting

4 There is no dispute that a meeting occurred on 10 May 1999 at the Byron Town Hall. Nor is it disputed that the meeting was attended by members of the RTA and that the purpose of the meeting was to discuss environmental issues regarding the route selection and upgrade of the Pacific Highway from Brunswick Heads to Yelgun. The RTA had initially proposed the upgrade in 1998. That upgrade was approved by the then Minister for Planning, on 19 August 1999 ("the 1999 proposal"). That decision was subsequently followed by community consultation. In 2001 the HAC put forward an alternative route option to the route that was contained in the 1999 proposal. In May 2001, the Minister for Roads asked the RTA to comparatively assess the 1999 proposal and that proposed by the HAC. With the support of an independent review the RTA concluded that the route proposed by the HAC would be more costly and damaging to the environment than the 1999 proposal. The RTA again sought community input on the impact of the 1999 proposal and following numerous submissions and comments, it modified that proposal and construction on the upgrade commenced on 20 July 2005. That upgrade is scheduled to be completed by February 2007. It would appear that the HAC organised community protests against the proposed upgrade in the form of sit-ins on the bridge on the Brunswick River and "slow drives" on the highway where the protestors drive back and forth at 20-30 km/ph to delay. It is also contended that the Ocean Shore Community Association continues to invite members of the community to participate in ongoing protest action.

Applicant’s FOI request

5 The applicant made his FOI request on 16 August 2004. That request was made at the suggestion of the Ombudsman who had investigated a complaint from the applicant. While no details of that complaint have been provided to the Tribunal, it is apparent that it related to the manner in which the RTA had consulted the community when making its decision on the proposed upgrade. In his FOI request, the applicant sought access to the following documents:

"1. A list of attendees at a meeting at Byron Town Hall on 10 May 1999.
2. Any follow up correspondence that may have resulted from that meeting.

6 On 6 September 2004, Phillip Youngman, Manager RTA Records Access Unit ("Mr Youngman") wrote to the applicant advising him that the documents for which he had sought access contained matters concerning the "personal affairs" of individuals, that consultation was required with the individuals concerned and that the period allowed for determining the applicant’s application had been extended to 35 days pursuant to s.59E of the FOI Act. Mr Youngman did not identify how documents the RTA held that came within the applicant’s FOI request.

7 It would appear that as a result of the consultation process with the individuals concerned, some of these individuals, objected to their names being disclosed. Notwithstanding these objections, on 30 September 2004, Annette Minenko ("Ms Minenko"), on behalf of Mr Youngman, wrote to the applicant and advised him that Mr Youngman had determined to grant him access to the requested documents, subject to him paying a further processing fee of $30. Ms Minenko, also advised the applicant that the documents would not be released until the expiration of the period within which the persons who had objected (i.e. the third parties) could lodge an appeal. The Tribunal has assumed that the appeal mechanism referred to by Ms Minenko was that provided for in s.34 of the FOI Act ("an internal review application").

8 On 22 October 2004, Mr Youngman advised the applicant that the RTA had received internal review applications from third parties. These parties had objected to the disclosure of their names on the basis of being concerned that they would be harassed and victimised by members of the Ocean Shores Community Association if their names were released. Their concerns they said arose from past experiences.

9 On 9 November 2004, M.J. Najem, General Manager, Legal Branch of the RTA ("Mr Najem"), having considered the objections received by the RTA, made an internal review determination in respect of the applicant’s FOI request. In that internal review determination, Mr Najem determined that the names of the third parties in the documents for which the applicant had sought access did not come within the description of being information relating to the "personal affairs" of the persons named. However, he determined that in respect of those persons who had objected to the disclosure of their names, that this information was exempt under cl.4(1) of the FOI Act. In particular under paragraphs 4(1)(c) and (g) of Schedule 1 of the FOI Act. In his letter to the applicant advising him of his determination, Mr Najem informed the applicant that if he was dissatisfied with his determination he was entitled to appeal to the Ombudsman. While this was an avenue of appeal, the applicant also had a right to make an application to the Tribunal and seek review of the internal review decision: see s.53(3) FOI Act. He should have been advised of that right.

10 The applicant then wrote to the Ombudsman, on 17 November 2004. On 9 May 2005, Mr Youngman again wrote to the applicant, following a request from the Ombudsman that the RTA reconsider its determination. Mr Graham Read, Corporate Counsel of the RTA ("Mr Read") reconsidered the internal review determination, on 6 May 2005. Mr Read, after having made further enquiries with the third parties affirmed the internal review decision of Mr Najem. However, he determined that the applicant should be given a copy of the documents with the names of the third parties who had objected being deleted: see s.25(4) of the FOI Act.

11 Being dissatisfied with the determination of Mr Read, the applicant made an application for review to the Tribunal and in his submissions, dated 23 August 2005, the applicant gave the following reasons as to why he continued to seek access to all the names:

"The purpose of our request for identification of the persons attending a non public meeting was to expose the lack of genuine community consultation by the RTA with the affected community.
Disclosure of the identity of the persons attending the select non advertised meeting apparently at which no record of the meeting was kept no agenda was recorded, is to establish beyond doubt that the much heralded community consultation process contained in the 1998 Roads and Traffic Authority Environment Report was incorrect as is all of the documentation purporting to support the allegation by the RTA of community involvement.
There is no intention to harass the attendees nor is there anything to be gained by doing so, the purpose of the disclosure of the identity of the persons that have had privileged input to the chosen route is to prove our case of no genuine involvement of the affected community i.e. Ocean Shores Residents.
We note that Mr Borrelli’s statement contains confirmation of the only community meeting with the affected community took place on December 2002, several months after the route was Gazetted by the Minister by the Minister (sic) 10 August 2002. This may well account for the understandable hostility encountered at that meeting.
..."

Evidence

12 S.61 of the FOI Act provides that the onus is on the agency to satisfy the Tribunal that the document for which access has been refused is in fact exempt.

13 In this application, the RTA relies on a statement of Mr Youngman dated 17 July 2005 and a statement of Peter Borrelli, Senior Project Manager, Strategic Projects of Pacific Highway, Brunswick Heads ("Mr Borrelli"), dated 4 August 2005. Attached to the statement of Mr Youngman were copies of letters of objection from the third parties. These letters were provided to the Tribunal on a confidential basis. In his statement Mr Borrelli set out the history of the proposals for the upgrade of the Pacific Highway and when community consultation occurred. His statement also had attached to it a print out entitled "Previous Action" from the website of the HAC. Paragraph 10 of his statement was provided to the Tribunal on a confidential basis.

14 A copy of the documents that are the subject of this application were not provided to the Tribunal. However, Ms Ludlow, who appeared on behalf of the RTA, forwarded a copy of these, following a request from the Registry of the Tribunal.

15 There are 3 documents in dispute. The first document is the list of names that came within para. 1 of the applicant’s FOI request.

16 The other two documents are letters dated 26 and 27 May 1999 to Mr Ken Oldfield, Project Manager with the RTA. The contents of these letters have been released to the applicant in full, the only deletions are the names and addresses of the author of the document.

Consideration

17 The relevant legislation is that contained in the FOI Act. That Act gives every person a legally enforceable right to be given access to an agency’s documents: see s.16(1) FOI Act. That right however is subject to the provisions of the FOI Act. An agency is able to refuse access to a document that has been requested pursuant to the FOI Act if it is an exempt document: see s.25(1)(a) of the FOI Act. Those exemptions are contained in Schedule 1 of the FOI Act. These exemptions include documents affecting law enforcement and public safety (see cl.4 of Schedule 1 of the FOI Act) and documents affecting personal affairs (see cl.6 of Schedule 1 of the FOI Act).

18 As mentioned above the law enforcement and public safety exemption that is relied on is that contained in cl.4(1)(c) (endanger the life or physical safety of any person) and (g) (endanger the security of any building, structure or vehicle) of Schedule 1 of the FOI Act.

19 The "personal affairs" exemption applies where the document in question "... contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased": see cl.6(1) of Schedule 1 of the FOI Act. However, it is not exempt if it contains information concerning the applicant: see cl.6(2) of Schedule 1 of the FOI Act.

20 I have considered all the material that has been put before the Tribunal and for the reasons set out below, in my opinion, with one exception, the RTA has failed to satisfy the Tribunal that either of the abovementioned exemptions apply to the names that have been deleted from the documents in question.

Personal Affairs Exemption

21 Although Mr Read and Mr Najem in their determinations found that the names of the third parties who had objected to disclosure was not "information concerning the personal affairs" of the persons named, Ms Ludlow, in her written submissions contended to the contrary.

22 The first issue for determination under the "personal affairs" exemption is whether the names are in fact "information concerning the personal affairs" of the third parties who have objected to the disclosure of their names.

23 As a general rule the name and address of a person is not "information concerning the personal affairs" of that person (see Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606 at 638 per Mahoney JA). However, I agree with Ms Ludlow that each case must be considered in its context and there are circumstances in which the name and address of a person will, as a matter of fact, be information concerning the personal affairs of a person (Commissioner of Police (supra) per Kirby P at 620 and Clarke JA at 644). As pointed out by Ms Ludlow this has been held to be the case in respect of the names and addresses of complainants and private objectors to a development proposal: see Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 43 and Thompson and Ardill v Lord Howe Island Board [2003] NSWADT 193. However, with one exception, that is not the context in which the names appear in the documents the subject of this application.

24 It is clear from the documents that the third parties, other than two persons, attended the meeting as representatives of known local organisations or specialist groups, which also had an interest in the upgrade of the Pacific Highway. This is how these persons are identified on the list. They are not identified in their personal capacity.

25 Accordingly, in my opinion, the names and addresses of the persons deleted from the documents in question (other than the names of those persons who are authors of the documents at attachment "A" and "E" of Mr Youngman’s statement) are not in the context they have been given information that concerns the personal affairs of those persons. On this basis alone the RTA has failed to satisfy the Tribunal that the names and addresses of these third paries are exempt under cl.6 of Schedule 1 of the FOI Act.

26 In respect of the names of those persons who are the authors of the documents at attachment "A" and "E" of Mr Youngman’s statement, in my opinion, their names appear in a different context. Their attendance was not recorded as being from a particular organization or specialist group, nor is there any evidence that they come from such an organization or group. Indeed the evidence is that they had been invited to the meeting in their personal capacity and to attend as observers. Accordingly, I find that the names of these persons is information that concerns their personal affairs and the question is whether a disclosure of their names would be unreasonable. Having regard to the content of their letter of objection, the fact that they attended the meeting in their personal capacity as observers and the reasons for which the applicant seeks access to the deleted names, in my opinion the disclosure of their names would be unreasonable: see Humane Society International Inc v National Parks and Wildlife Service [2000] NSWADT 133 at [21] to [28].

27 Accordingly, I find that the RTA has satisfied the Tribunal that names of those persons on the list of attendees at the meeting of 11 May 1999 and who are the authors of the documents at attachment "A" and "E" of the statement of Mr Youngman are exempt under cl.6 of the FOI Act. On this basis it is unnecessary for me to consider whether their names are exempt under cl.4(1)(c) or (d) of Schedule 1 of the FOI Act.

Endanger the life or physical safety of any person and endanger the security of any building, structure or vehicle

28 In order for the names and addresses to be exempt under cl.4(1)(c) or (g) of Schedule 1 of the FOI Act, the RTA must establish that the disclosures of these "could reasonable be expected" to either endanger the life or physical safety of a person or endanger the security of any building, structure or vehicle. That is, it is an objective test and while subjective views of those names is relevant, these must be considered objectively in the light of all the circumstances. As pointed out by Ms Ludlow, in Electoral Commissioner, State Electoral Office v McCabe (GD) [2003] NSWADTAP 28 at [36] the Appeal Panel said the following in respect of this exemption:

"We simply note that it is a very serious matter for an agency to invoke an exemption based on ‘endangerment’. In our view, agency opinions making such a grave assessment must be closely scrutinised and not easily accepted. The Tribunal is, we consider, obliged to bring some scepticism to the task of assessing what are necessarily self-serving statements by agencies as to the availability of grounds for exemption which involve matters of judgment. The question is always whether the material, statements of opinion and submissions put forward by the agency justifies reliance on the exemption (see s 61, burden of proof). Often the access applicant will be in no position, or a weak position, to produce any evidence in reply to the agency’s opinion. The Tribunal must not simply adopt the agency’s opinion; ...It does not follow that approaches that are found in traditional adversarial litigation (i.e. in the absence of any evidence to the contrary, the trier of fact should ordinarily make findings in terms of the uncontested relevant evidence) should be adopted in a merits review."

29 In this application the RTA has relied primarily on what is contained in the letters of objection and para 10 of the statement of Mr Borrelli. I have read these letters and the content of para 10 carefully. They all make reference to the issue of the route of the upgrade having been very a contentious issue on which the community was divided. The third party objectors also state that they have been the subject of personal verbal attacks and threats to their person and property by members of the applicant’s organisation. The third party objectors have not given any specific details of when and by which particular person these attacks and threats were made. But what is clear is that they occurred some time ago and that the third party objectors are fearful that this will occur again if their names are released.

30 In my opinion, while the concerns of the third party objectors is understandable, they do not suffice to make a finding that disclosure of their names could reasonably be expected to endanger the life or physical safety of these persons or any other person, or endanger their property. In this regard it is noted that the RTA sent the applicant an edited version of the documents on 11 May 2005. That edited version contained the names of some of those persons who attended the meeting on 11 May 1999 and yet there are no reports of those persons being the subject of any attacks or threats by the applicant or a member of his organization since the edited version of the document was released.

31 It is also noted that the applicant has denied that there has been any attacks or threats and that this is the purpose for which access is sought. In this regard it is also noted that the HAC’s website makes reference to protests that had been arranged in 2003, the last being 16 November 2003, which was 10 days before the Minister approved the modified design. Furthermore, the website does not make reference to supports acting violently towards those who have supported a view different to theirs.

32 Accordingly, I find that the RTA has failed to satisfy the Tribunal that the names and addresses that have been deleted are exempt under cl.4(1)(c) or (g) of Schedule 1 of the FOI Act.

Orders

33 The Tribunal orders that the decision of the RTA to refuse the applicant access to the names and addresses of the persons named in the documents the subject of this application is set aside. In substitution thereof a decision that:

(a) the names of those persons on the list of attendees at the meeting on 11 May 1999 and who are the authors of the documents at attachment "A" and "E" of Mr Youngman’s statement are exempt; and
(b) within 28 days, the applicant be granted access to the whole of the letters dated 26 and 27 May 1999 and a copy of the list of attendees at the meeting on 11 May 1999 with the names of the persons mentioned in(a) above being deleted.