All Class Training Pty Ltd v Safework NSW

[2025] NSWCATAD 148

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

All Class Training Pty Ltd v Safework NSW [2025] NSWCATAD 148

Hearing dates:

12 May 2025

Date of orders:

19 June 2025

Decision date:

19 June 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Smith, Senior Member

Decision:

(1) The decision under review is set aside.

(2) The Respondent is to give the Applicant an unredacted copy of the draft and final versions of the outcome report within seven (7) days of the publication of this decision.

Catchwords:

ADMINISTRATIVE LAW – administrative review –Government information – outcome report of an investigation into a complaint made by the Applicant against the Respondent - balancing competing public interest factors in favour of and against disclosure

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Privacy and Personal Information Act 1988 (NSW)

Cases Cited:

Commissioner of Police, NSW Police Force v Barrett [2015] NSWCATAP 68

Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19

EHW v Secretary, Department of Education [2022] NSWCATAD 140

Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286

Hau v South Eastern Sydney Local Health District [2024] NSWCATAD 359

Hurst v Wagga City Council [2011] NSWADT 307

McKinnon v Blacktown City Council [2012] NSWADT 44

Newcastle City Council v Newcastle East Residents Action Group Inc [2018] NSWCATAP 254

Rees v Safework NSW [2023] NSWCATAD 325

Ryan v NSW Minister for Planning and Open Spaces [2021] NSWCATAD 22

Ryan v NSW Minister for Planning and Open Spaces [2021] NSWCATAP 221

Taylor v Destination NSW [2017] NSWCATAD 272

Thomson v Commissioner of Police [2021] NSWCATAD 53

Wall v University of Sydney (2008) NSWADT 213

Woolley v Lismore City Council [2013] NSWADT 10

Texts Cited:

None cited

Category:

Principal judgment

Parties:

All Class Training Pty Ltd (Applicant)
Safework NSW (Respondent)

Representation:

Applicant (Self-Represented)
Department of Customer Service (Respondent)

File Number(s):

2024/00472322

Publication restriction:

None

REASONS FOR DECISION

Decision

1. The Applicant, All Class Training Pty Ltd, seeks access under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) to unredacted copies of an outcome report held by the Respondent, Safework NSW, which relates to an investigation of a complaint the Applicant made about one of the Respondent’s employees.

2. Following an internal review, the Respondent provided the Applicant access to the draft and final version of the outcome report, but redacted certain parts of the outcome report on the basis that there was an overriding public interest against disclosure. The Applicant seeks that the Tribunal review this decision.

3. The Tribunal has decided to set aside the decision under review and grant the Applicant access to unredacted copies of the draft and final versions of the outcome report because the public interests in favour of disclosure outweigh the public interests against disclosure.

Background

4. The Applicant is a Registered Training Organisation and offers courses in high risk work activities such as forklift training, rigging, and earth moving, amongst other activities. The Applicant has assessors, accredited by the Respondent, to hold high risk work licence assessor accreditation. Accredited assessors check the competency of a person wishing to obtain a high risk work licence.

5. On 1 July 2023, a State Inspector employed by the Respondent conducted a verification audit of the conditions of accreditation for a high risk work licence of an assessor at the Applicant’s site at Tomago to conduct high risk work licence assessments under the Work Health and Safety Regulation 2017 (NSW).

6. On 22 July 2023, after completing the audit on 1 July 2023, the Respondent issued a Corrective Actions Notice to this assessor due to non-compliance with certain identified areas.

7. This resulted in that assessor’s license being suspended for a period of time, which was the subject of a separate administrative review application to the Tribunal (Rees v SafeworkNSW [2023] NSWCATAD 325).

8. On 25 July 2023, the Applicant lodged a complaint about the conduct of the State Inspector arising from the audit performed on 1 July 2023. The Applicant alleged that the State Inspector had been aggressive, rude and threatening.

9. On 9 January 2024, an outcome report was completed by the Respondent’s Third Party Verification team in response to the complaint made by the Applicant on 25 July 2023.

10. On 8 August 2024, the Applicant lodged an access application under the GIPA Act, seeking access to the following information:

All records, documents, recordings, emails, information on the internal workflow system, training records and training material relating to multiple complaints made against State Inspector […] stemming from a verification audit he conducted on […] at All Class Training’s Tomago site in July 2023.

11. On 19 September 2024, the Respondent gave the Applicant access to 111 pages of records in response to the access application. The Respondent withheld, in full, pages 42 to 45 and pages 66 to 69 of the documents, which contained the draft and final versions of the outcome report. The letter to the Applicant, explaining the decision stated:

I have thoroughly reviewed the report which summarises some of the complaints made and the agency response, the assessment and verification process undertaken on the day, commentary and opinions around interactions between individuals and discussions around specific Safework NSW policies and procedures.

I consider the information contained within it could be used to reveal the deliberative process that is undertaken by Third Party Verification when assessing an assessor as part of the verification process, and also the team’s complaint-handling process. Disclosure of this report is likely to reveal information that would be detrimental to this agency’s decision-making process.

12. On 1 October 2024, the Applicant applied for an internal review of the decision to refuse access to the draft and final version of the outcome report.

13. On 6 November 2024, a Senior Coordinator of the Respondent (Internal Reviewer) completed an internal review. The Internal Reviewer decided to release the draft and final versions of the outcome reports with personal information and information that would prejudice a deliberative process of the Respondent redacted.

14. On 16 December 2024, the Applicant filed an administrative review application, seeking access to the unredacted copies of the draft and final versions of the outcome report.

15. On 12 May 2025, with the Tribunal satisfied that it had jurisdiction in the matter, a hearing was held. During the hearing, the Applicant and Internal Reviewer gave oral evidence. Both parties made oral submissions.

Relevant law

Object and principles

16. Section 3(1) of the GIPA Act states that 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:

1. authorising and encouraging the proactive public release of government information by agencies, and

2. giving members of the public an enforceable right to access government information, and

3. providing that access to government information is restricted only when there is an overriding public interest against disclosure.

17. Section 5 of the GIPA Act states that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.

18. Section 9(1) of the GIPA Act provides that a person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.

Public interest considerations in favour of disclosure

19. Section 12(1) of the GIPA Act provides that there is a general public interest in favour of the disclosure of government information. The Note to s 12 provides examples of public interest considerations in favour of disclosure of information:

1. 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.

2. 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.

3. Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.

4. The information is personal information of the person to whom it is to be disclosed.

5. 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.

20. Section 55 of the GIPA Act provides for consideration of personal factors of the access application when determining whether there is an overriding public interest against disclosure or alternatively as factors in favour of providing the applicant with access to the information:

1. the applicant’s identity and relationship with any other person,

2. the applicant’s motives for making the access application,

3. any other factors particular to the applicant.

21. Personal factors cannot be used as factors against providing access on the basis of considerations referred to in clauses 1 (Responsible and effective government), 6 (Secrecy provisions) or 7 (Exempt documents under interstate Freedom of Information legislation) of the Table in s 14 of the GIPA Act (GIPA Act, s 55(3)).

Public interest considerations against disclosure

22. Section 14 of the GIPA Act contains a Table (s 14 Table) which includes the only considerations (apart from the conclusive presumptions that there is an overriding public interest against disclosure included in Schedule 1 of the GIPA Act) that may be taken into account under the GIPA Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

23. The s 14 Table includes the seven categories of considerations. The considerations that the Respondent relies on from the s 14 Table are as follows:

Responsible and effective government

1. Clause 1(e) - reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency.

2. Clause 1(f) - prejudice the effective exercise by an agency of the agency’s functions.

3. Clause 1(h) - prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).

Individual rights, judicial processes and natural justice

1. Clause 3(a) - reveal an individual’s personal information.

2. Clause 3(b) - contravene an information protection principle under the Privacy and Personal Information Act 1988 (NSW) (PIPPA) or a Health Privacy Principle under the Health and Records Information Privacy Act 2002 (NSW).

24. Section 13 of the GIPA Act states that there is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

25. Section 15 of the GIPA Act provides that 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:

1. Agencies must exercise their functions so as to promote the object of the GIPA Act.

2. Agencies must have regard to any relevant guidelines issued by the Information Commissioner.

3. 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.

4. The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.

5. 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.

Tribunal’s approach to determination

26. The burden of establishing that the decision to refuse access is justified lies on the Respondent as the agency (GIPA Act, s 105(1)).

27. The task of the Tribunal is to decide what the correct and preferable decision is, having regard to any relevant factual material and any applicable law (s 63 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act)).

28. The approach to be adopted by the Tribunal in this task is the two-step process set out in Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [24] – [25]. Unless a conclusive presumption is relied on (which is not so in this matter), the Tribunal in Camilleri stated that the GIPA Act envisages a two-step approach to the question of whether information has been properly refused:

The agency case for refusal must rely on one or more of the section 14 Table considerations. The Tribunal’s task is then to weigh that case against the factors favouring disclosure (s 13), mindful of the injunctions that appear in both ss 12 and 15. It is important, in our view, that the Tribunal proceed in the structured way reflected by these provisions. The Table considerations are concerned with systemic features of the operation of government.

29. That is, the Tribunal is to consider the public interest considerations in favour of disclosure and the public interest considerations against disclosure and determine where the balance lies between these competing public interests.

30. In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 and Hurst v Wagga Wagga City Council [2011] NSWADT 307, the Tribunal confirmed that the “public interest test” in s 13 of the GIPA Act requires agencies to:

1. Identify the public interest considerations in favour of disclosure,

2. Consider whether the information in issue, if released, would give rise to a public interest against disclosure on the grounds that release of the information could reasonably be expected to have the effect as contended, and

3. If so satisfied, consider where the balance lies between the public interest considerations in favour of disclosure and those against disclosure, having attributed weight to each consideration, and taking into account the personal factors identified under s 55 of the GIPA Act.

31. In Newcastle City Council v Newcastle East Residents Action Group Inc [2018] NSWCATAP 254, the Appeal Panel stated at [59]:

... when considering the evidence on which it is asserted that disclosure “could reasonably be expected” to have a particular effect, the following principles should be kept in mind:

(1) a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient;

(2) there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect;

(3) prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses.

32. The Tribunal must attribute the appropriate weight to each relevant consideration for or against disclosure but the balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17].

33. Balancing the competing public interest considerations is “a question of fact and degree, requiring the weighing of competing matters, and a task that is not amenable to mathematical calculation” (Hurst at [70]).

Material before the Tribunal

Open hearing

34. The followed documents were before the Tribunal in the open hearing:

1. Administrative review application filed by the Applicant on 18 December 2024, attaching the Internal Review decision of 6 November 2024 and the redacted versions of the draft and final outcome report of 9 January 2024 that were provided to the Applicant (Exhibit A1).

2. Bundle of documents filed by the Respondent on 4 February 2025 in accordance with s 58 of the ADR Act (Exhibit R1).

3. Statement of the Internal Reviewer filed by the Respondent on 19 March 2025 (Exhibit R2).

4. Written submissions of the Respondent filed on 19 March 2025 (Exhibit R3).

Confidential hearing

35. A confidential hearing was held in the absence of the Applicant, in which the Tribunal had the opportunity to consider the unredacted draft and final versions of the outcome report in the presence of the Respondent. This is a process provided for by s 107 of the GIPA Act.

36. Section 107(1) of the GIPA Act provides that in determining an application for administrative review, the Tribunal is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. Section 107(2) of the GIPA Act provides that on an administrative review, the Tribunal must receive evidence and hear argument in the absence of the public, the review applicant and the applicant’s representative if in the opinion of the Tribunal it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.

37. The unredacted draft and final versions of the outcome report were tendered during the confidential hearing as Exhibits R4 and R5 respectively.

38. There no real substantive difference in content between the draft and final version of the outcome report. For this reason, the reference to ‘outcome report’, in the rest of this decision is a reference to both the draft and final version of the outcome report.

Consideration

Public interests in favour of disclosure

39. The outcome report relates to a complaint the Applicant made against the State Inspector that conducted the verification audit on the Applicant’s Tomago site on 1 July 2023. During the hearing, the Respondent confirmed that there was a current complaint that the Applicant had made, and the Applicant sought access to the unredacted outcome report to see if anything else needs to be added to the current complaint. The Respondent submitted that the public interest in favour of disclosure, in this regard, was not in dispute, however significant weight should be afforded to the public interest considerations against disclosure.

40. The Applicant alleges that the investigation of the complaint carried out by the State Inspector’s manager was done improperly and the Applicant wishes to have the unredacted copy of the outcome report to assist with the Applicant’s preparation of a further complaint. The Applicant confirmed that they wanted to see the full outcome report as they did not know whether the redacted information was going to support their allegations or not. The Applicant submitted that the redacted outcome report that they had received had “a lot of inaccuracies and untruths” which had caused the Applicant to suspect that there may be more content that was not true in the unredacted parts of the outcome report. The Applicant submitted that they did not understand why some of the redactions had been made or why full paragraphs had been redacted. The Applicant submitted that this does not sit with an “open system”.

41. The Applicant submitted that it was in the public interest to have the full outcome report available for scrutiny. The Applicant submitted that they should have the opportunity to scrutinise what the Respondent has said, as the Respondent acts in a public capacity. The Applicant submitted that the public interest would be served in terms of people’s safety as the Respondent’s inspectors visit sites and investigate fatalities and if they do that in a dishonest way, the Respondent cannot perform its role. The Applicant submitted that the Respondent’s job is to regulate and be open and honest.

39. The Applicant submitted that the complaint had been investigated by the State Inspector’s manager and that there was a “lack of rigour” put into the investigation.

40. The Tribunal agrees that these are applicable considerations in favour of disclosure of the unredacted outcome report. The Tribunal agrees with the importance of openness and transparency in matters that were the subject of the Applicant’s complaint and of the conduct of the Respondent in its investigative processes. Disclosure of the unredacted outcome report could reasonably be expected to inform the Applicant about the operations of the Respondent as a regulator and the Respondent’s policies and practices for dealing with members of the public.

41. The Tribunal is not in a position to make a positive finding that disclosure of the unredacted outcome report could reasonably be expected to reveal or substantiate that the Respondent has engaged in misconduct or negligent, improper or unlawful conduct as alleged by the Applicant. In Commissioner of Police, NSW Police Force v Barrett [2015] NSWCATAP 68 at [136], the Appeal Panel stated that it is a very serious matter for a Tribunal to accept as relevant to its determination as a public interest favouring disclosure that disclosure 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. The Appeal stated that, as expressed, this consideration carries an imputation in relation to the agency’s conduct that would need to have some reasonable basis in the material presented by the access applicant or in the material seen by the Tribunal in confidence.

42. The Tribunal accepts that disclosing the unredacted copies of the outcome report would, however, shed further light on the investigation of the Applicant’s complaint, and allow the Applicant to understand the process that was followed, what information the Respondent took into account during the investigation (of which members of the Applicant had been involved and concerning allegations that the Applicant had made) and how the Respondent came to its conclusion. Enhancing Government accountability is a recognised public interest in favour of disclosure.

Public interests against disclosure

Clause 1(e)

46. The Respondent submitted that the information in the redacted passages in the outcome report involves or contains a deliberation, opinions, recommendations and advice by a manager of the Respondent. It was also submitted that the information involves or contains consultations with third parties and the Respondent’s staff member (the State Inspector) who is the subject of the Applicant’s complaints.

47. The Respondent submitted that the prejudice of the release of the redacted information must be considered at a broad operational level and referred to what the Appeal Panel stated in Ryan v NSW Minister for Planning and Open Spaces [2021] NSWCATAP 221 at [34].

48. In Ryan, the Appeal Panel was not persuaded with the applicant’s contention that the Tribunal in Ryan v NSW Minister for Planning and Open Spaces [2021] NSWCATAD 22 had erred in its interpretation of cl 1(e), when the Tribunal stated at [33] and [34]:

In relation to table item 1(e) there are two elements. First one must look to see whether information involves or contains a deliberation, consultation, opinion, advice or recommendation. Then the second element is that one looks to see whether the revelation of such information could be reasonably expected to prejudice a deliberative process of government or an agency. Use of the expression “in such a way” in the item leaves open the possibility that there may be some way of disclosing information which would not be prejudicial e.g. by appropriately redacting the document.

Also, there must be an appropriate connection established between the information in the deliberation, consultation etc and the prejudice to the deliberative process: Wall v University of Sydney (2008) NSWADT 213 at [36].

49. In summary, the Respondent submitted that the release of the redacted information would prejudice the conduct of future investigations as staff would be less forthcoming in providing full and frank responses during an investigation process if they were aware that the information that they supplied, could be disclosed to the person concerned, as well as third parties.

50. During the hearing, the Internal Reviewer confirmed that in conducting the internal review, the Internal Reviewer did not look at any of the other documents that had been initially disclosed to the Applicant (111 pages) and only looked at the documents that the Applicant was seeking access to – the outcome report. The Internal Reviewer therefore did not see the other documents in which the State Inspector’s personal information had been released to the Applicant as well as information which identifies the State Inspector as the subject of the Applicant’s complaint.

51. The Internal Reviewer consulted with four people about the release of their personal information in the outcome report to the Applicant. Three of the four people were members of the Applicant who consented to the release of their personal information. The person who did not consent was the State Inspector who was the subject of the complaint of the Applicant that was investigated.

52. The name of the State Inspector has not been completely redacted from the outcome report. There is content in the redacted outcome report that refers to what the State Inspector did on 1 July 2023 during the verification audit. The information that has been redacted from the outcome report provided to the Applicant primarily relates to any content that confirms that the complaint that was investigated was against the State Inspector, and otherwise what the author of the outcome report concluded about the information given by the three members of the Applicant who consented to the release of their personal information.

53. The Respondent has already provided the Applicant with a copy of the outcome report that has a significant amount of unredacted information. The other 111 pages that were initially provided to the Applicant in response to the access application include information about the complaint that the Applicant has made about the State Inspector, including the particulars of the complaint. The Applicant knows what the document is – an outcome report in respect of the complaint that the Applicant made about the Respondent’s State Inspector. Further and as noted above, three of the four persons consulted by the Internal Reviewer about the release of their personal information in the outcome report, consented to release.

54. The investigation of the Applicant’s complaint of 25 July 2023 has concluded, so there is no current deliberative process that would be prejudiced.

55. The Tribunal does not accept that in the circumstances of this case, the disclosure of the redacted information reveals a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency. The Respondent has not demonstrated an appropriate connection between information in the deliberation or consultation in this matter and the prejudice to the deliberative process at a broader operational level. That is, the Respondent has not demonstrated how the release of the unredacted outcome report in this matter would prejudice future investigation reports in circumstances where the outcome report has already been released with redactions, where three of the four persons consulted have consented to the release of their personal information, and where the only person who has not consented is the subject of the complaint that was investigated and information about that fact has already been released to the Applicant.

56. It follows that the Tribunal does not agree with the Respondent’s submission that cl 1(e) is an applicable public interest consideration against disclosure of the outcome report.

Clause 1(f)

57. The Respondent submitted that the functions of the Respondent as a regulator are set out in s 152 of the WHS Act and include monitoring and enforcing compliance with this Act, and providing advice and information on work, health and safety to duty holders under this Act and to the community. The Respondent submitted that these functions are carried out through the Respondent’s staff including inspectors.

58. The Respondent submitted that the disclosure of the redacted information in the outcome report would prejudice the effective exercise of the Respondent’s functions under s 152 of the WHS Act. The Respondent submitted that the disclosure of the redacted information would reveal opinions from management about how resources should be deployed and internal policies are met.

59. Having considered the redacted information in the outcome report, the Tribunal does not agree that the redacted information reveals opinions about how resources should be deployed and internal policies met. The only content in the outcome report that relates to the use of the Respondent’s resources, is the use of body worn cameras and the requirement for two Inspectors to be deployed to the Applicant’s site for any assessor where there have been ongoing performance related issues. This content, however, was not redacted and has been disclosed in the copies of the outcome report provided to the Applicant.

60. The Tribunal is not satisfied that the Respondent has demonstrated that the disclosure of the redacted information would prejudice the effective exercise of the Respondent’s functions under s 152 of the WHS Act. The Tribunal therefore does not accept the Respondent’s submission that cl 1(f) is an applicable public interest consideration against disclosure of the outcome report.

Clause 1(h)

61. The Respondent submitted that the disclosure of the unredacted information would reveal aspects of the investigation or review conducted by the Respondent.

62. The Respondent submits that cl 1(h) also applies to the unredacted information, in terms of the prejudice to the conduct, effectiveness or integrity of any investigation or review for the same reasons relied on by the Respondent for cl 1(e) and cl 1(f).

63. The Tribunal has not accepted the Respondent’s submissions in respect of cl 1(e) and cl 1 (f).

64. The Tribunal is not satisfied that the disclosure of the unredacted outcome report would prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of the Respondent by revealing its purpose, conduct or results (whether or not commenced and whether or not completed). The Respondent has not demonstrated a causal nexus between the disclosure of the unredacted outcome report in this matter and the prejudice that is expected to any current or future process. The Tribunal therefore does not agree with the Respondent’s submission that cl 1(f) is an applicable public interest consideration against disclosure of the outcome report.

Clause 3(a)

65. The Respondent submits that the redacted information constitutes personal information about the State Inspector whose identity is apparent or can reasonably be ascertained from the redacted information.

66. The Respondent submits that some of the redacted passages of the outcome report contain allegations, opinions concerning and other information about the State Inspector. The Respondent referred to McKinnon v Blacktown City Council [2012] NSWADT 44 at [73] (cited in Hau v South Eastern Sydney Local Health District [2024] NSWCATAD 359 at [61]) as authority that personal information includes information and opinions about the conduct of employees of an agency in the course of conducting their duties.

67. The McKinnon case involved a journalist seeking access to a report about an investigation of allegations of maladministration and misconduct by an employee of the agency in the purchase of Chinese interpreter services. The Tribunal identified three categories of personal information that the report would reveal:

1. Personal information relating to performance of an employee and a contractor of the Agency with respect to the conduct of their respective duties.

2. Personal information relating to the private relationship between that employee and contractor.

3. Personal information relating to other individual private affairs of the employee and contractor and their families

68. At [102] - [103], the Tribunal in McKinnon stated:

On balance, the public interests considerations in favour of disclosure outweigh the public interest against disclosure of personal information concerning the conduct of the employee and contractor and concerning the private relationship between them, which provides context to the former.

I am not persuaded, however, that the public interests considerations in favour of disclosure outweigh the public interest against disclosure of personal information relating to other individual private affairs of the employee and contractor, and their families. That personal information was provided incidentally and does not add to, and is not relevant to, the substance of the report.

69. The personal information about the State Inspector in the outcome report relates to performance of the State Inspector as an employee of the Respondent with respect to the conduct of the State Inspector’s public duties. There is no personal information in the outcome report that relates to the State Inspector’s private affairs or private relationships.

70. The Respondent submits that there has not been personal information in the redacted passages disclosed to the general public. The Respondent submits that the words “publicly disclosed” in the context of “reveal information” requires there to have been a prior disclosure to the general public. The Respondent referred to the cases of Thomson v Commissioner of Police [2021] NSWCATAD 53 at [146] and EHW v Secretary, Department of Education [2022] NSWCATAD 140 as authority for this proposition.

71. In Thomson at [53], the Tribunal referred to the case of Woolley v Lismore City Council [2013] NSWADT 10 at [88] in which the Tribunal held that where the applicant knew the name of a person their personal information had not been revealed where there was no evidence that the information had already been publicly disclosed. In Woolley, the Tribunal found that it could be implied from the circumstances in which the information was provided (during an investigation of the conduct of police officers, including the applicant), that the information was obtained in confidence and that those who provided the information would expect that their communications would be treated confidentially.

72. The full name, position and the duties of the State Inspector, however, has already been disclosed in the redacted version of the outcome report that has been provided to the Applicant. As noted above, the personal information that has been redacted about the State Inspector is any information that confirms that the State Inspector is the subject of the Applicant’s complaint. This information, however, was already disclosed within the other 111 pages that was provided to the Applicant in response to the access application.

73. While the redacted information does reveal the State Inspector’s personal information, this personal information has already been disclosed in the redacted outcome report and within the 111 pages of records that the Applicant has otherwise been given access to.

74. The outcome report was completed because of the Applicant’s complaint. This is not a matter where the identity of the complainant is confidential. Similarly, it is known to the Applicant who the complaint has been made about, who investigated the complaint, and who provided information during the investigation. The Applicant and three of the four people involved in the investigation who are members of the Applicant, who were consulted by the Internal Reviewer about the disclosure of the information in the outcome report to the Applicant, have consented to the release of their personal information to the Applicant. The person who did not consent to the release of their personal information is the State Investigator, who was subject of the complaint. There is a public interest in members of the Applicant being able to access their own personal information, and members of the Applicant have a relevant personal interest in the information.

Clause 3(b)

75. The Respondent submits that disclosure of the redacted information would reveal the State Inspector’s personal information and would reasonably be expected to contravene s 18 of PIPPA. The Respondent further submitted the information does not fall within any of the permitted exceptions under s 18(1) of PIPPA and the State Inspector does not consent to the release of the information.

76. Section 18(1) of PIPPA provides that a public sector agency that holds personal information must not disclose information to a person (other than the individual to whom the information relates) or other body, whether or not the person or body is a public sector agency, unless the:

1. the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or

2. the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or

3. the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.

77. If personal information is disclosed in accordance with s 18(1) of PIPPA to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.

78. The purpose of the obtaining information that is contained in the outcome report, was to investigate the complaint made by the Applicant against the State Inspector. It is reasonable to assume that information contained in the outcome report, or obtained during the investigation, may be provided to the person who made the complaint. The Respondent’s manager who conducted the investigation of the complaint and authored the outcome report had written to the Applicant on 1 August 2025, stating “Please note that Safework NSW and the Department of Customer Services have strict policies and procedures in how complaints are managed and handled. Let me reassure you that this matter will be looked into, investigated, and you will be informed of the process and its updates as it proceeds”.

79. As noted in relation to the application of clause 3(a), the full name, position and the duties of the State Inspector, have already been disclosed in the redacted version of the outcome report that has been provided to the Applicant. The personal information that has been redacted about the State Inspector as the subject of the complaint has already been disclosed within the other 111 pages of records provided to the Applicant.

Balancing exercise

80. The Tribunal has not identified clauses 1(e), 1(f) or 1(f) as applicable public interest considerations against disclosure.

81. In terms of clauses 3(a) and 3(b), while personal information about the State Inspector, the only person who did not consent the disclosure of personal information, is contained in the redacted information, this personal information has already been disclosed to the Applicant. The Tribunal places no weight on these factors in weighing against the disclosure of information.

82. The Tribunal places significant weight on the public interests in favour of disclosure of the redacted information, including:

1. The importance of openness and transparency in matters that were the subject of the Applicant’s complaint and of the conduct of the Respondent in its investigative processes.

1. Informing the Applicant about the operations of the Respondent as a regulator and, in particular, the Respondent’s policies and practices for dealing with members of the public in its verification audits and complaint handling process.

2. Shedding light on the investigation of the Applicant’s complaint and allowing the Applicant to understand the process that was followed and what information the Respondent took into account during the investigation, thereby possibly enhancing Government accountability.

3. The Applicant being able to access their own personal information.

4. Members of the Applicant having a relevant personal interest in the information.

83. In McKinnon, the Tribunal held at [101]:

Given that the report is concerned with maladministration and misconduct by an employee of the Agency and has been the subject of considerable public discussion and media attention, I think that the public interest considerations in favour of disclosure deserve significant weight. Release of the report would inform the public about what has actually occurred, and at what public cost. It could be reasonably expected to focus attention on accountability mechanisms with the Agency, improve the transparency of its operations, and expose evidence of maladministration and misconduct within the Agency.

84. In Hurst at [115], the Tribunal held that the public interest in complainants to agencies being informed of how complaints are investigated is a factor in favour of disclosure:

Dissemination of the audit report is not a factor “particular” to the applicant. The applicant made a complaint to the agency that was subsequently investigated and found to be unsubstantiated. His motivation, in wishing to find out and understand why his complaint was dismissed, is not one that I consider should be given any weight in determining if the release of the personal information in the audit report is against the public interest. Indeed, the public interest in complainants to agencies of government being informed of how complaints are investigated and decided, is a factor pointing to a public interest in favour of disclosure. This is so as it will enhance the accountability of agencies for their decisions, and the transparency of their processes.

85. The Tribunal is of the view that the disclosure of the redacted information in the outcome report, which is information related to investigation of the Applicant’s complaint arising from the verification audit of 1 July 2023, is consistent with the object of the GIPA Act to facilitate responsible and representative democratic government by opening government information to the public. This is even more so in the case of documents which relate to allegations of misconduct in public office. While the Tribunal has not made any findings of misconduct by the Respondent, the applicant has made allegations that amount to misconduct and seeks access to the redacted information in the outcome report to assess whether there is further information that needs to be added to the Applicant’s current complaint made to the Respondent. In the Tribunal’s view, the weight to be given to these considerations in favour of the release of the outcome report to the Applicant without redactions, significantly outweighs the identified limited considerations against disclosure, which came down to disclosure of personal information of the State Inspector.

Conclusion

86. It follows that, the Tribunal is satisfied that the correct and preferable decision is to set aside the decision under review and to give the Applicant access to the unredacted draft and final versions of the outcome report to the Applicant.

Order

1. The decision under review is set aside.

2. The Respondent is to give the Applicant an unredacted copy of the draft and final versions of the outcome report within seven (7) days of the publication of this decision.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 19 June 2025