AFW v WorkCover Authority of NSW
[2013] NSWADT 51
•05 March 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: AFW v WorkCover Authority of New South Wales [2013] NSWADT 51 Hearing dates: On the papers Decision date: 05 March 2013 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: 1. The information withheld from the Key Personnel Register is to be released.
2. The decision under review is otherwise affirmed
Catchwords: Disclosure of information provided to an agency in confidence - could reasonably be expected - personal information Legislation Cited: Government information (Public Access) Act 2009 Cases Cited: Commissioner of Police v Camilleri [2012] NSWADTAP 19
Flack v Commissioner of Police [2011] NSWADT 286
Leech v Sydney Water Corporation [2010] NSWADT 298
Zhu v Treasurer of the State of New South Wales (2004) 218 CLR 530Category: Principal judgment Parties: AFW (Applicant)
WorkCover Authority of New South Wales (Respondent)Representation: AFW - Applicant in person
S Kelly, Solicitor WorkCover Legal Group
J McAteer, Office of the Privacy Commissioner
File Number(s): 113332
reasons for decision
GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): AFW has applied for a review of the determination made by the WorkCover Authority of New South Wales ("WorkCover") on behalf of the Nominal Insurer to refuse a request for access to documents under the Government Information (Public Access) Act 2000 ("the GIPA Act").
In the access application dated 19 October 2011 AFW noted:
WorkCover, acting for the Workers Compensation Nominal Insurer ("Nominal Insurer") has issued contracts to various private organisations who act as agents for the Nominal Insurer. These contracts are known as the 2010 Scheme Agent Deed ("2010 Deed"). Preceding the 2010 Deed was the 2005 Deed.
WorkCover had previously made available via its website a list of all parts of the 2005 Deed and for each of those parts information as to whether each it was released to the public or whether it was deemed to be confidential and unavailable for download.
AFW requested:
1. Information (a schedule) of all parts of the 2010 Deed and their status: that is, whether they are released on the WorkCover website, considered to be confidential and thus unavailable, or other.
2. All parts of the 2010 Deed which are currently unavailable from the WorkCover website; including ones considered to be confidential and those which relate to specific scheme agents, or other.
All information should be provided in electronic form (native format) wherever possible. ...
In response to AFW's request WorkCover advised that all confidential parts of the 2010 Deed were defined in the Glossary to the Deed which was published on WorkCover's website and that all non-confidential sections of the 2010 Deed are available on the WorkCover Website.
The WorkCover decision maker also advised:
In making my decision, I applied the public interest test under section 13 and determined that there is an overriding public interest against disclosure of some of the information sought. I note your request seeks scheme agent specific / confidential information as set out in Schedule 2 (2) of your application. This information is not publicly available as it pertains to the commercial in-confidence sections of the Deed which contain commercially sensitive information specific to each agent's operations, processes and intellectual property and is withheld pursuant to sub-clause 4 (b) of the Table to Section 14, which states:
4 Business interests of agencies and other persons
There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects:
(a) undermine competitive neutrality in connection with any functions of an agency in respect of which it competes with any person or otherwise place an agency at a competitive advantage or disadvantage in any market,
(b) reveal commercial-in-confidence provisions of a government contract,
(c) diminish the competitive commercial value of any information to any person,
(d) prejudice any person's legitimate business, commercial, professional or financial interests.
(e) prejudice the conduct, effectiveness or integrity of any research by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).
WorkCover has not been required to consult with any third persons in relation to the information sought.
AFW has applied to the Tribunal for external review of WorkCover's determination. He has not filed any material in support of his application but noted that he does not accept that the WorkCover decision maker has correctly applied the public interest test.
WorkCover relies on the statement, dated 13 March 2012, of Ms Geniere Aplin, WorkCover's Operational General Manager. Ms Aplin identified the documents that were said to fall within the scope of AFW's request and provided an overview of the scheme to which those documents relate.
She stated that the Nominal Insurer has entered into contracts ("the Scheme Agent Contract") with seven scheme agents.
The contracts were entered following the completion of a tender process coordinated by the Department of Commerce. The Scheme Agent Contract 2010 is essentially the same for all scheme agents. The only differences were in agent specific content in the Schedules to the Deeds.
Under the Scheme Agent Contract, the scheme agents are engaged to perform the Scheme Services on behalf of the Nominal Insurer. The Scheme Agent Contract is the means by which the scheme agents are engaged to provide comprehensive workers compensation policy and claim services for the Nominal Insurer.
Ms Aplin stated that a high degree of confidentiality has always been given to the Scheme Agent Contracts and to the negotiation of these contracts. The Nominal Insurer recognises the commercial in confidence nature of the relationship with each individual Scheme Agent, although the Contract itself is essentially the same for all Scheme Agents. The confidential sections of the Scheme Agent Contract are generally unique to each scheme agent and are not available to other scheme agents or to any third party.
AFW was subsequently given a copy of Attachment E to Schedule 4 to the Scheme Agent Contract - Key Personnel ("the Key Personnel Register") with the names of Agent Key Personnel omitted.
In Ms Aplin's opinion the disclosure of Key Personnel information could potentially make those individuals vulnerable to contact from members of the public, including disgruntled claimants. This in turn could negatively impact on the performance of the important roles these personnel play in a scheme agent's workers compensation business. She stated that it is of serious concern that employees may be exposed to harassment or intimidation. Further, disclosure increases the potential for poaching of key staff contrary to the commercial interests of a scheme agent.
Subsequent to AFW making this application, WorkCover consulted with the Scheme Agents regarding their attitude to AFW's request. Ms Aplin provided a schedule containing details of the general and particular concerns of the scheme agents in releasing the confidential sections of the Scheme Agent Contract.
She stated that advice received from scheme agents was that in entering into the Scheme Agent Contract, they provided commercially sensitive information in good faith and were relying on the provisions of the Contract in the belief that this information would not be disclosed to the public. Some scheme agents have noted that to release the information covered by the confidentiality provisions of the Contract would make the disclosing party liable to an action to restrain the breach or to claim damages. She stated that some scheme agents expressly identified possible release of information as giving rise to an action for breach of confidence or for the disclosure of information provided in confidence.
In response to consultation, some scheme agents have expressed their views as to the applicability of the public interest consideration against revealing commercial-in-confidence provisions of a government contract and the applicability of the public interest tests against disclosure permitted under clauses 4(d) and 3(a) and (f) to Table 14 of the GIPA Act.
Ms Aplin noted that while the essential elements of the Scheme Agent Contract are the same for each scheme agent, there are individual variations in the confidential material that has not been publicly released. The scheme agents are business competitors, and in negotiating the Scheme Agent Contract 2010 have identified those parts that should remain confidential in order to protect their commercial interests.
In her opinion, it is important for New South Wales government agencies to be able to contract with the private sector, and for the private sector to rely on the integrity of those contractual arrangements. She considers that this contractual certainty should extend to protecting the confidentiality of information that affects the contractor's legitimate business, or commercial interests.
She stated that the integrity and operation of the workers compensation scheme depends on the performance of the Scheme Services by scheme agents under the Scheme Agent Contract. In her opinion, there are considerable risks to the scheme should information be released contrary to the contractual obligations contained in the Contract in terms of relationships with the scheme agents and the risk of legal action arising from disclosure. Should a release of the confidential information take place, there is a strong likelihood that this would cause considerable disruption among Scheme Agents, and distract them from the main task of managing claims and policies on behalf of the Nominal Insurer. It would also prejudice the negotiation and performance of any future contracts of this nature.
She considers that there is an overriding public interest against disclosure of the information sought by AFW, with the exception of that material that has been released.
Relevant Legislation
The objects of the GIPA Act are set out in section 3, which provides:
3 Object of Act
(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:
a) authorising and encouraging the proactive public release of government information by agencies, and
b) giving members of the public an enforceable right to access government information, and
c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
(2) It is the intention of Parliament:
a) that this Act be interpreted and applied so as to further the object of this Act, and
b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
Clause 4 of Schedule 4 to the GIPA Act defines 'personal information'. Clause 4 states:
" 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.."
It was not disputed that the information the subject of this application is government information that is held by an agency: section 4(1) of the GIPA Act.
There is a presumption in favour of the disclosure of government information unless there is an 'overriding public interest against disclosure': section 5 of the GIPA Act.
Section 12 of the GIPA Act reiterates the general presumption in favour of disclosure of government information, and lists examples of public interest considerations that favour disclosure.
Section 13 of the GIPA Act sets out the test that is to be applied in determining whether there is an overriding public interest against disclosure. That test is in the following terms:
13 Public interest test
There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interests considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure
The public interest considerations against disclosure are set out in section 14 of the GIPA Act. The Table to section 14 provides:
14 Public interest considerations against disclosure
1 Responsible and effective government
There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally):
...
(g)
found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence,
...
3 Individual rights, judicial processes and natural justice
There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects:
(a) reveal an individual's personal information,
...
(f) expose a person to a risk of harm or of serious harassment or serious intimidation,
...
4 Business interests of agencies and other persons
There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects:
...
(b) reveal commercial-in-confidence provisions of a government contract,
...
(d) prejudice any person's legitimate business, commercial, professional or financial interests,
In Commissioner of Police NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 ("Camilleri") the Appeal Panel (at paragraphs [25] - [26]) considered that the section 14 considerations "are concerned with systemic features of the operation of government" and need to be examined at a broad operational level.
Section 15 sets out the principles that are to be applied when determining whether there is an overriding public interest against disclosure. It provides:
15 Principles that apply to public interest determination
A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles:
a) Agencies must exercise their functions so as to promote the object of this Act.
b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner.
c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.
d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.
e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
On an application for review to the Tribunal, the onus is on the agency to establish that the decision the subject of review is justified: section 105(1) GIPA Act.
Consideration
In deciding whether to release information, the Tribunal must decide whether or not an overriding public interest against disclosure applies to the information. As noted above, section 13 of the GIPA Act requires the Tribunal to undertake the following steps:
identify the relevant public interest considerations in favour of disclosure
identify the relevant public interest considerations against disclosure.
determine the weight of the public interest considerations in favour of and against disclosure and where the balance between those interests lies.
Public interest considerations in favour of disclosure
Section 12 of the GIPA Act sets out a number of examples of public interest considerations in favour of disclosure:
(a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.
(b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.
(c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.
(d) The information is personal information of the person to whom it is to be disclosed.
(e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.
Neither AFW nor WorkCover has identified any other public interest considerations in favour of disclosure.
Public interest considerations against disclosure
WorkCover relies on several considerations set out in the Table to section 14 of the GIPA Act.
Clause 1(g) - found an action for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence
For this public interest consideration against disclosure to apply, it must be established that the information was provided in confidence. This is ultimately a question of fact. That requires examination by reference to the evidence concerning the conditions under which the information in issue was obtained.
WorkCover submits that each scheme agent has entered into the Scheme Agent Contract with the Nominal Insurer. The information that is unique to each scheme agent will be sensitive from a commercial perspective and/or, in the case of the Nominal insurer, a policy perspective.
The Nominal Insurer and the scheme agents have agreed as to those parts of the Scheme Agent Contract that are regarded as confidential and those that are not. In conformity with that agreement, the non-confidential sections of the Scheme Agent Contract have been published on WorkCover's website.
It further contends that disclosure of the information could reasonably be expected to found an action for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence.
WorkCover must establish that the disclosure of the information could reasonably be expected to have that effect. The principles for the interpretation of "could reasonably be expected" were discussed in Flack v Commissioner of Police [2011] NSWADT 286 (at [40] - [41]), adopting the approach that I took in Leech v Sydney Water Corporation [2010] NSWADT 298where I stated at paragraph [25]:
25 The term 'could reasonably be expected' has been considered in a number of cases. The words have their ordinary meaning: Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163. The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC.
Because WorkCover bears the onus of justifying its decision to refuse AFW access to the information, it has the burden of establishing that the public interest considerations against disclosure it relies on apply. It also bears the burden of establishing that, on balance, they outweigh the public interest considerations in favour of disclosure.
Clause 19 of the Scheme Agent Contract provides:
19. Confidentiality
19.1 Duty of Confidentiality
Each party must:
(a) hold the other party's Confidential Information in strict confidence;
(b) not allow any persons to have unauthorised access to the other party's Confidential Information; and
(c) not disclose any of the other party's Confidential Information to any person, except:
(i) in accordance with this Clause 19; or
(ii) after receiving the written consent or Approval of the other party.
19.2 Use of Nominal Insurer's Confidential Information
The Scheme Agent must not make any use of the Nominal Insurer's Confidential Information or any part of it except for performing its obligations or exercising its rights under this Deed. Subject to Subclause 19.5, prior to disclosing any of the Nominal Insurer's Confidential Information to any third party the Scheme Agent must provide written notice to the Nominal Insurer and obtain its Approval for the disclosure and use of the Confidential Information, which may be denied or granted in the Nominal Insurer's absolute discretion.
19.3 Obligations upon Disclosure
(a) Upon disclosure of the Nominal Insurer's Confidential Information (except where the disclosure is made in accordance with paragraph 19.4(a)), the Scheme Agent must require the party to which the Confidential Information was disclosed to sign and execute the Information and IP Deed.
(b) The Scheme Agent must ensure that any person to whom it is authorised to disclose the Nominal Insurer's Confidential Information:
(i) is aware of, and ensures that its employees and professional advisers are aware of, the confidential nature of the Nominal Insurer's Confidential Information; and
(ii) holds the Nominal Insurer's Confidential Information in confidence on no less onerous terms than those set out in this Deed.
19.4 Permitted Disclosure
A party is permitted to disclose the other's Confidential Information in the following circumstances:
(a) a party may disclose Confidential Information to its legal, financial or other professional advisers, and only to the extent reasonably necessary for the sole purpose of seeking advice from such advisors;
(b) the Nominal Insurer may disclose any information provided by the Scheme Agent to:
(i) WorkCover (in its role as regulator) and its Personnel; or
(ii) any other Agency and its Personnel;
provided that if the information is Confidential Information the Nominal Insurer must take all reasonable steps to ensure that such information is treated as confidential by WorkCover and other such Agencies;
(c) the Nominal Insurer may disclose the Scheme Agent's Confidential Information:
(i) to any Minister, Parliamentary Committee or, Parliament: and
(ii) to any Agency to carry out any of its functions, powers or discretions,
but not to any Other Scheme Agent other than as permitted under this Subclause 19.4;
(d) where Confidential Information is also the Intellectual Property Rights of a party, then the receiving party may disclose that Confidential Information to the extent that it is granted a licence under Clause 20;
(e) a party may disclose any Confidential Information to the auditor for the purposes or conducting an audit, inspection or test in accordance with Clause 28;
(f) where required by Law.
19.5 Disclosures Relating to Claims and Policies
The Scheme Agent may disclose the Nominal Insurer's Confidential Information relating to Claims and Policies to Workers, Employers or Third Party Service Providers only to the extent necessary to ensure the efficient provision of the Services, and such disclosure does not require the Scheme Agent to obtain an Information and IP Deed from the Worker, Employer or Third Party Service Provider (as applicable).
19.6 Freedom of information
(a) The Scheme Agent acknowledges that the Nominal Insurer intends to comply with section 15A of the Freedom of Information Act 1989 (NSW) and may at any time, during or after the Period of Scheme Services, publish or otherwise make available copies of parts of this 2010 Deed, except for the parts of the Deed that comprise Confidential Information pursuant to paragraph (b) of the definition of Confidential Information.
(b) The Scheme Agent agrees to notify the Nominal Insurer immediately of any request received from any person which relates to or arises out of the Freedom of Information Act 1989 (NSW).
Clause 19.1 therefore obliges both the Nominal Insurer and the scheme agent to hold the other's Confidential Information "in strict confidence". While disclosure is permitted in accordance with Clause 19, the remaining sub-clauses limit the scope of such disclosure, with conditions imposed on the purpose, manner and extent to which disclosure can occur.
WorkCover submits that the series of permissive disclosures in clause 19.4 are limited in their terms and the phrase should not be construed as permitting disclosure on any lesser basis. WorkCover submits that a request of the type under consideration here is not of that standard.
WorkCover submits that not only would a literal construction of clause 19(f) be inconsistent with the contractual context, it would defeat the purpose of the confidentiality regime established under the Scheme Agent Contract. It would mean that any person who wanted to access a scheme agent's Confidential Information could simply make a request of the Nominal Insurer under the GIPA Act. A scheme agent's competitor, for example, could make such an application and thereby circumvent the confidentiality regime. A contract should be construed so as to avoid it making commercial nonsense: Zhu v Treasurer of the State of New South Wales (2004) 218 CLR 530 at [82] per Gleeson CJ, Gummow, Kirby, Callinan & Heydon J.J. It is submitted that a literal construction would have that result.
WorkCover contends that the information withheld from AFW meets the definition of "Confidential Information" in the Scheme Agent Contract, as well as being "information provided to an agency in confidence". The information is not trivial, and by its nature is confidential. Further, it says that release of parts of the Deed other than those already released has the potential to detrimentally impact the ability of Scheme Agents to compete with each other for workers compensation insurance business.
In Camilleri (in regard to information received in the course of the 000 service) the Appeal Panel said at paragraph [33] that the question as to whether information is 'confidential information' is to be examined, primarily at least, by reference to the agency's evidence and the conditions under which it conducts the service (i.e. function) in which the information in issue was obtained. At [34], the Appeal Panel said that, the enquiry under this clause 'should focus on the point of receipt, and the administrative standards and community understandings which surrounded it.'
WorkCover argues that there is a public interest in the ability of the government sector to retain entities in the private sector to undertake the provision of services required to be performed under State laws, such as the services provided by scheme agents under the Scheme Agent Contract. Disclosure of information contrary to the contractual obligations of the Nominal Insurer would create difficulties in managing the contractual relationship with scheme agents, distract scheme agents from the main task of managing claims and polices, and prejudice the negotiation and performance of any future contracts of this nature.
As noted above, the views of scheme agents were obtained during the consultation process in applying the public interest test. It is submitted that significant weight should be given to the public interest against disclosure on the grounds that release of the confidential information in the Scheme Agent Contract could reasonably be expected to found an action for breach of confidence or result in the disclosure of information provided to an agency in confidence. It is further submitted that this is sufficient to override the public interest in disclosure of that information.
On the evidence before me I am satisfied that the information in the Scheme Agent Contract that has been withheld from AFW meets the definition of "Confidential Information".
Except as to the extent to which I will refer below, I agree with WorkCover's submission.
In my view, disclosure of the information could reasonably be expected to found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence. It is also my view that the Clause 1(g) consideration is sufficient to override the public interest in favour of disclosure of that information.
I do not need to consider the other public interest considerations against disclosure that WorkCover has raised. However, for completeness I note that I agree with the arguments that release of the requested information would reveal commercial-in-confidence provisions of a government contract (Clause 4(b) in the Table to section 14 of the GIPA Act) and might prejudice any person's legitimate business, commercial, professional or financial interests (Clause 4(d) in the Table to section 14 of the GIPA Act).
The Key Personnel Register
The Key Personnel Register has been released with redactions of some of the names of the individual officers in the scheme agents who hold the functions described in the Schedule as Scheme Agent Principal, Scheme Agent Account Manager, Scheme Agent Contract Manager and Scheme Agent Operations Manager.
WorkCover contends that the information withheld from AFW is omitted on the basis that release would reveal an individual's personal information (Clause 3(a) in the Table to section 14 of the GIPA Act) and could expose a person to a risk of harm or of serious harassment or serious intimidation (Clause 3(f) in the Table to section 14 of the GIPA Act).
WorkCover submits that the name of a person in circumstances where it reveals something about that individual will be personal formation as defined. It contends that a concern raised in consultation with the scheme agents was that disclosure of this information could expose employees to the risk of unwanted communications and has the potential to result in harassment or intimidation by disgruntled workers. Another concern was that revealing the identity of these persons increases the potential for poaching of staff between scheme agents.
WorkCover further submits that the concern was raised of possible serious harassment or intimidation. It is submitted that this public interest consideration follows on from the privacy concerns, and that there is an overriding public interest against disclosing the names of the relevant scheme agent personnel.
It is further submitted that there is very little public interest in the names of these individuals (which will change from time to time) being disclosed. Having regard to the concerns expressed during consultation, WorkCover submits that there is an overriding public interest against disclosure of the names of the scheme agent representatives in the Key Personnel Register.
I do not agree with this submission. There is no evidence to support the view that there is a real cause for concern apart from the assertion by Ms Aplin that I have referred to above. I note that the definition of 'personal information' specifically provides that personal information does not include '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'. In my view, the information that has been withheld does no more than reveal the individual's name and the fact that the person was engaged in the exercise of public functions.
I do not agree that there is an overriding public interest against disclosing the names of the relevant scheme agent personnel. In my view, the information withheld from the Key Personnel Register should be released.
Orders
1. The information withheld from the Key Personnel Register is to be released.
2. The decision under review is otherwise affirmed
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Decision last updated: 05 March 2013
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