Waite v Hornsby Shire Council [2011] NSWADT 259 (11 November 2011)

Last Updated: 30 January 2012

Administrative Decisions Tribunal New South Wales

Case Title:	Waite v Hornsby Shire Council
Medium Neutral Citation:	[2011] NSWADT 259
Hearing Date(s):	6 April 2011
Decision Date:	11 November 2011
Jurisdiction:	General Division
Before:	S Higgins, Deputy President
Decision:	The decision of the respondent is affirmed.
Catchwords:	Amendment of agency's record - whether information in agency's record for which amendment was sought concerned the personal affairs of the applicant
Legislation Cited:	The Freedom of Information Act 1989 (Repealed) Government Information (Public Access) Act 2009 Government Information (Public Access Consequential Amendments and Repeal Act) Act 2009 Privacy and Government Information Legislation Amendment Act 2010 Privacy and Personal Information Protection Act 1998
Cases Cited:	Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 Waite v Hornsby Shire Council [2010] NSWADT 32 Waite v Hornsby Shire Council [2009] NSWADT117
Texts Cited:
Category:	Principal judgment
Parties:	Peter Waite (Applicant) Hornsby Shire Council (Respondent)
Representation
- Counsel:	Counsel S Epstein (Applicant)
- Solicitors:	B Woolf (Applicant) I Woodward (Respondent )
File number(s):	103307
Publication Restriction:

REASONS FOR DECISION

Introduction

1. GENERAL DIVISION (S Higgins, Deputy President): The applicant, Mr Peter Waite, seeks review of a decision of the respondent, Hornsby Shire Council, refusing to amend three documents for which he sought amendment under Part 6A of the Privacy and Personal Information Protection Act 1998 (PPIP Act) and the Government Information (Public Access) Act 2009 (GIPA Act).

2. The documents for which Mr Waite sought amendment are as follows:

• memorandum GN08/08, dated 30 April 2008, from the general manager of the respondent (Mr Robert Ball) to the Mayor and all Councillors concerning correspondence received from Mr Waite on 14 April 2008. In his letter, Mr Waite had questioned the correctness of the advice Mr Ball had given, on 12 March 2008, during an ordinary meeting of the respondent Council (Document 1 - 30 April Memo). The advice related to whether Councillor Isaac was required to leave the meeting during discussions of Item 2 as he had tabled a pro-forma declaration of interest in regard to that agenda item;
• letter, dated 1 May 2008, from the Mayor to Mr Waite responding to Mr Waite's letter of 14 April 2008 (Document 3 - 1 May letter); and
• letter, dated 1 July 2009, from Mr Ball to Mr Waite responding to Mr Waite's letter dated 24 June 2009 (Document 5 - 1 July 2009 letter).

3. The respondent had determined that the amendments sought by Mr Waite did not concern his 'personal affairs' and for this reason it refused to make the amendments sought. The respondent found that the amendments sought by Mr Waite were matters that concerned the personal affairs of a person other than Mr Waite, or were matters that were no more than matters of personal interest to Mr Waite.

4. While Mr Waite had sought numerous amendments to each of the documents listed above, many were not pursued any further by the time the matter was listed for hearing.

Issues

5. The amendments sought by Mr Waite in regard to Document 1 and 3 relate to that portion of the document which refer to the advice Mr Ball gave to the meeting of Councillors in regard to Councillor Isaac.

6. In regard to Document 1, Mr Waite seeks to have the document amended by adding a further notation to the effect that the advice given by Mr Ball was incorrect. Mr Waite had previously made an application for amendment of Document 1: see Waite v Hornsby Shire Council [2009] NSWADT 117 ( Waite [2009] 117). Following external review to the Tribunal, Document 1 was amended in terms agreed by the parties. Mr Waite now seeks to have a further notation added to Document 1. Accordingly, the issue in regard to the further amendment of Document 1 is whether the amendment sought concerns Mr Waite's personal affairs. In my view there is also an issue as to whether Mr Waite should be permitted to seek such further amendment.

7. For the reasons set out below, in my view, to allow Mr Waite to seeking a further amendment to Document 1 is an abuse of process. In the event I am incorrect, I have found that the additional notation sought by Mr Waite is not of a kind relating to his personal affairs.

8. In regard to Document 3, the issue is:

(a) whether the amendments sought by Mr Waite are amendments of information that concern his personal affairs; and

(b) if they are found to concern Mr Waite's personal affairs whether the information is incomplete, incorrect, out-of-date or misleading.

9. For the reasons set out below, I have found that the amendments sought for Document 3 do not concern Mr Waite's personal affairs and even if they did I am not persuaded that the information is incomplete, incorrect, out-of-date or misleading in the relevant sense.

10. The issues in regard to Document 5 are the same as above. The difference is that what is sought to be amended is Mr Ball's remarks about the decision of the Tribunal in Waite [2009] 117. Again I have found that this information does not concern Mr Waite's personal affairs.

Relevant legislation

11. On 1 July 2010, when the provisions of the GIPA Act came into force, the Freedom of Information Act 1989 (FOI Act) was repealed under section 3 of the Government Information (Public Access) (Consequential Amendments and Repeal) Act 2009 (repealed) (Consequential Amendments and Repeal Act). However, clause 1 of Schedule 1 of the Consequential Amendments and Repeal Act, transferred Part 4 of the FOI Act to the PPIP Act. This Part became Part 6A of the PPIP Act and the sections were re-numbered consecutively starting with section 59A. Schedule 1 of the Consequential Amendments and Repeal Act also contained some amendments to the provisions contained in Part 4 of the repealed FOI Act. This included the insertion of a new section 47 in regard to a person's right of review. That section relevantly provided as follows:

47 Right of review under GIPA Act

A person who is aggrieved by a determination of an agency under this Part is entitled to a review of the determination under Part 5 of the GIPA Act as if the determination were a reviewable decision under that Part.

12. It is noted that Part 6A of the PPIP Act as inserted by clause 1 of Schedule 1 to the Consequential Amendments and Repeal Act were repealed by clause 10 of Schedule 1 of the Privacy and Government Information Legislation Amendment Act 2010. These provisions came into force on 1 January 2011 and the Act was repealed by section 30C of the Interpretation Act 1987 on 2 January 2011. Section 30C of the Interpretation Act 1987 makes provision for the automatic appeal of amending Acts the day after the provisions in that amending Act have come into force. Section 30 of the Interpretation Act 1987 also sets out the effect of amendment or repeal of Acts and statutory rules. In particular it provides that the amendment or repeal of an Act does not affect the previous operation of the Act or anything duly suffered, done or commenced under the Act, or any right, privilege, obligation or liability acquired accrued or incurs under that Act: see paragraph 30(1)(b) and (c).

13. It is not disputed that Mr Waite made his request for amendment at the time Part 6A of the PPIP Act was in force. Nor is it disputed that he made his application for review prior to that Part being repealed.

14. Accordingly for the purposes of this application the relevant provisions are those contained in section 59B, section 9J of the PPIP Act and section 100 of the GIP Act.

15. Section 59D of the PPIP Act provided as follows:

59B Right to apply for amendment of agency records

A person to whom accessed a record held by an agency has been made may apply for the amendment of the agency's records:

(a) if a record contains information concerning the person's personal affairs, and

(b) if the information is available for use by the agency in connection with its administrative functions:, and

(c) if the information is, in the person's opinion, incomplete, incorrect, out of date or misleading.

16. Section 59J of the PPIP Act is in effect Section 47 as contained in the Schedule 1 of the Consequential Amendment and Repeal Act.

17. Section100 of the GIPA Act provides that a person who is aggrieved by a reviewable decision of an agency may apply to the Tribunal for a review of the decision.

Evidence

18. In support of his application, Mr Waite tendered into evidence a bundle of documents. Some if not all were marked as exhibits in these proceedings. Mr Waite also tendered into evidence a letter, dated 28 February 2011, from his solicitor, Mr Woolf of Woolf Associates Solicitors. This letter sets out the specific amendments that are being pressed by Mr Waite in these proceedings.

19. The respondent tendered into evidence its letter in response to the letter from Mr Waite's solicitor. Attached to the respondent's response was a copy of the respondent's internal review determination, which is comprehensive and some 35 pages in length. In addition to this the respondent filed an affidavit sworn, on 25 March 2011, by Mr Robert Ball. Mr Ball was also made available at the hearing for cross-examination.

20. There is no dispute as to the sequence of events giving rise to the creation of the three documents in issue. As I have already indicated, Document 1 is a memorandum prepared by Mr Ball, for the Mayor and the Council members of the respondent, in response to Mr Waite's complaint of 14 April 2008.

21. In his letter of complaint, Mr Waite asserted that the advice Mr Ball had given the Mayor and members of Council in regard to Councillor Isaac being required to leave the meeting during the discussions of item 2 of the agenda was incorrect. Item 2 concerned a claim, by Councillor Isaac, that the respondent to pay the invoice he had received for legal expenses. In completing his pro-forma declaration of interest, Councillor Isaac identified the nature of the interest as being that the matter to be discussed related to himself. Mr Ball, on becoming aware of this declaration of interest, provided advice to the Mayor, who was chairing the meeting, that Councillor Isaac was required not to be present at, or in sight of the meeting whilst Item 2 was being discussed. In his evidence Mr Ball said that this was his opinion at the time and that he remained of this view. I understand the advice was given orally during the course of the meeting. I note that the minutes of this meeting record Councillor Isaac's declaration of interest and the fact that he was not present at, or in sight of the meeting when Item 2 was being debated or voted on. I also note that Mr Waite addressed the meeting on this particular item.

22. In his letter of complaint (i.e. 14 April 2008 letter), Mr Waite asserted that Mr Ball had misled Councillor Isaac, the Council and the members of the public who were present at that time in that the provision relied on by Mr Ball did not require Councillor Isaac to leave the meeting. It was Mr Waite's assertion that Councillor Isaac had been denied natural justice and that the Council, in ignoring comments made by himself and others was clearly 'apprehended bias'.

23. Document 3, is the response of the Mayor to Mr Waite in regard to his 14 April 2008 letter of complaint. That response was prepared on the basis of Mr Ball's memorandum that is Document 1.

24. On 24 June 2009, Mr Waite wrote to Mr Ball raising a number of matters under the heading 'Personal information'. The matters raised, included a request of a copy of Document 1, as amended in accordance with the decision of the Tribunal in Waite [2009] 117. In that application, the parties had agreed to a form of amendment to 2 sentences in that memorandum, which related to Mr Waite (see at [5]). That agreement was subject to the Tribunal finding that the matters in these paragraphs concerned the 'personal affairs' of Mr Waite. The Tribunal found that they did concern his personal affairs: see at [23]. Mr Ball's response to Mr Waite's letter is Document 5.

Consideration

25. In Waite [2010] 32 at [13] to [14] and Waite [2009] at [12] to [22], I set out in some detail the relevant legal principles that apply to the issue of whether particular information in a document, held by a government agency, concerns an individual's 'personal affairs'. I will not repeat these other than to cite the general principle that was set out by Lockhart J in Colakovski v Australian Telecom Communications Corp [1991] FCA 152; (1991) 29 FCR 429: 100 ALR 111 at 118-119:

'For myself I prefer the view that the "personal affairs" of a person ... connotes information which concerns or affects the person as an individual whether it is known to other persons or not. For example, a document may contain a statement about a person's private life in the sense of his personal life which is widely known in various sections of the community. ... in my opinion a person's affairs may be personal to him notwithstanding that they are not separate to him.'

26. Document 1- As I have indicated the amendment sought to Document 1 is the addition of a further notation. This Document has already been the subject of litigation before the Tribunal in Waite [2009] 117. In that application Mr Waite sought amendment of the third and last paragraphs of the Memorandum. These were in the following terms:

Unfortunately, Mr Waite once again has reached conclusions without having all the facts available and what facts are available to him he has misinterpreted.

...

Once again, time is wasted responding to serious allegations by Mr Waite which are without foundation.

27. The only matter in issue in Waite [2009] 117 was whether the information in these paragraphs concerned Mr Waite's personal affairs: see Waite [2009] 117 at [9]. It had been agreed between the parties that if the Tribunal were to find that the information concerned Mr Waite's personal affairs then the respondent would amend these paragraphs by striking a line through these paragraphs and adding a notation in the agreed terms. The agreed notation was:

'at the Administrative Decisions Tribunal hearing on 10 December 2008 in respect of proceedings being No. 083261 ( Waite -v- Hornsby Council ) the parties agreed that the third and final paragraph of this Memo is struck through and this annotation be added.'

28. In accordance with that agreement, on the publication of the decision of the Tribunal, the respondent made the agreed amendment and notation.

29. It is the contention of Mr Waite that Document 1, in its amended form, gives the impression that Mr Waite's complaint is 'totally incorrect'. That is, a reader of Document 1 would conclude 'that Mr Waite has raised an allegation and a claim that has no substance.' As I have indicated, the additional notation, which is sought by Mr Waite is in effect reflects his views of the advice given a statement which says that the advice given by Mr Ball was incorrect and why it was incorrect.

30. The respondent contends that this additional notation is no more than an attempt by Mr Waite to inappropriately use the amending provisions in an attempt to determine disputed opinions.

31. I agree with the submissions of the respondent. I would also go further and say that this aspect of Mr Waite's application is arguably an abuse of process. He has already litigated the amendment of this Document and as a result of those proceedings Document 1 was amended in terms that were agreed by him. He should not in my view be allowed to re-agitate further amendments to that Document, particularly as he was legally represented in these earlier proceedings.

32. In any event, I agree that the further notation sought by Mr Waite is not appropriate. Whether Mr Ball's advice was correct or incorrect is not a matter for the Tribunal to determine: see Waite v Hornsby Shire Council [2010] 32 at [27], which cites Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 at [24]. On the basis of Mr Ball's evidence, Document 1 is a correct record of the opinion he held at that time and which he continues to hold. More importantly, the correctness of Mr Ball's advice in regard to the question of whether Councillor Isaac had to leave the meeting is not a matter concerning the personal affairs of Mr Waite.

33. As I have indicted, in Waite [2009] 117, at [23], I found that the paragraphs for which Mr Waite sought amendment concerned his personal affairs as they referred to complaints, other than the complaint of 14 April 2008, he had made as a private citizen. At issue were the remarks in these paragraphs concerning complaints that are made by Mr Waite generally. As pointed out by the respondent, no findings were made to the effect that the information in the entire document concerned Mr Waite's personal affairs.

34. Document 3 - In my view, the amendments sought by Mr Waite in regards to Document 3 are misconceived in that they are not amendments of information contained in that document which concern his personal affairs. Each amendment seeks to strike out those parts of the document that refer to the advice given by Mr Ball to Councillors on 12 March 2008. This, with respect, is not information that concerns the personal affairs of Mr Waite. That is, the information for which Mr Waite seeks amendment does not concern or affect him as an individual. The information is no more than the Mayor's explanation to Mr Waite about what had happened at the meeting on 12 March 2008 and why it happened the way it did. The fact that Mr Waite had a contrary view as to what should have happened does not mean the information concerned his personal affairs.

35. Once again I agree with the submissions of the respondent that Mr Waite is merely seeking to have the record altered so as to reflect his opinion that Mr Ball was incorrect and that his opinion was correct. As I have already stated this does not fall within the amendment provisions of section 58B of the PPIP Act.

36. Document 5 - In my view the amendment sought by Mr Waite in Document 5 has no merit. As I have indicated, Mr Waite seeks amendment of the paragraph in which Mr Ball makes a comment about the Tribunal's findings in Waite [2009] 117. It is Mr Waite's contention that:

'Whilst Mr Ball is entitled to his opinion, unless he has grounds to successfully appeal the ADT decision, and does so, the decision is binding on Mr Ball, the General Manager.'

37. I find it difficult to see how Mr Ball's comment can be construed in the manner suggested. Nevertheless, Mr Waite suggests that a line be struck through this paragraph and notation be added in the same terms as the additional notation that was sought in regard to Document 1.

38. Once again, I find that the information, which Mr Waite seeks to have struck out does not affect his personal affairs. Even if I were to make a finding to this effect, for the reasons I have already stated, it cannot be said that the information is incorrect, out of date or misleading in the relevant sense.

Conclusions and Order

39. For the reasons set out above, I find that the decision of the respondent to refuse to amend the documents for which Mr Waite sought amendment is the correct and preferred decision. On the basis of my findings, the appropriate order is to affirm the decision of the respondent.

**********