Ambrosio v Ambulance Service of NSW
[2011] NSWADT 45
•03 March 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Ambrosio v Ambulance Service of NSW [2011] NSWADT 45 Hearing dates: 16 December 2010 Decision date: 03 March 2011 Jurisdiction: General Division Before: N Isenberg, Judicial Member Decision: The decision under review is affirmed
Legislation Cited: Freedom of Information Act 1989 Cases Cited: Commissioner of Police v District Court of New South Wales and Anor (1993) 31 NSWLR 606
Searle Australia Pty Limited v Public Interest Advocacy Centre (1992) 108 ALR 163
McKnight and Australian Archives (1992) 28 ALD 95
Zagami v Waste Service of New South Wales [2005] NSWADT 60
Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VR 37
Re Organon (Australia) Pty Ltd and Department of Community Services and Health (1987) 13 ALD 588
CH Real Estate Pty Limited (t/as Raine & Home Commercial, Penrith) v Penrith City Council [2005] NSWADT 147
Re Pfizer Pty Ltd & anor and Department of Health, Housing and Community Services (1993) 30 ALD 647
Re Cannon and Australian Quality Egg Farms Limited (1994) 1 QAR 491
Neary v State Rail Authority [1999] NSWADT 107
Watt v Forests NSW [2007] NSWADT 197
In Leichhardt Municipal Council v Roads and Traffic Authority [2005] NSWADT 37
Wiseman v Commonwealth (unreported, 24 October 1989) per Sheppard, Beaumont and Pincus JJ and
Re Thwaites and Metropolitan Ambulance Service (1996) 9 VAR 427 at 473
Re Harts Pty Ltd and Tax Agents' Board (Qld) (1994) 36 ALD 403
Director-General, Department of Education and Training v Mullett [2002] NSWADTAP 13
ReMaherandAttorney-General's Department (1986) 13 ALD 98Category: Principal judgment Parties: Guglielmo Ambrosio (Applicant)
Ambulance Service of NSW (1st Respondent)
Australian Institute of Forensic Psychology (2nd Respondent)Representation: Counsel
E Raper (1st Respondent)
G Ambrosio (Applicant in person)
G Hooper (2nd Respondent)
File Number(s): 103213
reasons for decision
Background
Each year approximately 2000 applicants apply for about 250 positions as trainee paramedics with the Ambulance Service of NSW (the Ambulance Service). In 2009 Mr Ambrosio was one of them.
The Ambulance Service entered into a Memorandum of Understanding (MOU) with the Australian Institute of Forensic Psychology (the Institute) for the Institute to administer to potential recruits aptitude tests, to decipher the results of those tests and to provide the Ambulance Service with an understanding of the suitability of potential recruits. There are two components to the tests: the first part assesses an applicant's degree of competence in maths, reading and comprehension; and the second part is a psychological questionnaire.
On 9 November 2009 Mr Ambrosio sat the Institute's tests. Mr Ambrosio was advised on 20 November 2009 by the Ambulance Service that he was 'unsuitable'. Feedback was refused.
On 16 December 2009 Mr Ambrosio made a request under the Freedom of Information Act 1989 (the Act) for "1. results of aptitude & ability testing versus ASNSW pass mark and 2. Results of occupational personality questionnaires (AICFP and profiling "outcome" versus ASNSW behavioural, attitudinal and psychological desired profile".
The Ambulance Service identified 2 documents which were relevant to his request:
Australian Institute of Forensic Psychology, Test event 938 - Summary of Ability Test Results, test date 9 November 2009 ('the ability test'); and
Australian Institute of Forensic Psychology, Test event 10117 - Test Event Summary, test date 9 November 2009 ('the psychological test').
Exemption was claimed in respect of the documents (and the cover sheet) and they were not provided to Mr Ambrosio on the basis that the documents contained trade secrets of the Institute or that the information has a commercial value which would be 'severely diminished, if not destroyed' if released (clause 7); the documents contain confidential material and it would be contrary to public interest to release them (clause 13); and the documents concerned the business operations of the Ambulance Service and it would be contrary to public interest to release them. That decision was affirmed on internal review, where the review officer considered the documents were exempt under clause 7(1)(a),(a1),(b) and (c), clause 13(b) and Clause 16(a)(i)-(v).
Mr Ambrosio complained to the Ombudsman who recommended release of the documents. A re-consideration was then conducted and the documents were again said to be exempt under cls 7(a) and (b) and cl 13 and were not released. Mr Ambrosio now asks the Tribunal to review the decision by the Ambulance Service of NSW to not release under the Freedom of Information Act 1989 (the Act).
Prior to the hearing the Institute sought to be joined in the proceedings and, on 6 December 2010 I decided to join the Institute pursuant to section 67(2)(d) of the Administrative Decisions Tribunal Act 1997.
Legislation
Section 5 of the Act provides that the objects of the Act are to extend, as far as possible, the rights of the public to obtain access to information held by the Government. Section 16 of the Act provides that a person has a legally enforceable right to be given access to an agency's documents in accordance with the Act. The legally enforceable right to be given access to documents is subject only to such restrictions as are reasonably necessary for the proper administration of the Government. The discretions conferred by the Act shall be exercised, as far as possible, so as to facilitate and encourage the disclosure of information.
Section 24(1) of the Act provides that after considering an application for access to a document, the agency is to determine whether access to the document is to be given or refused, and any charge payable for giving access and/or dealing with the application. Under section 25(1)(a) of the Act, an agency has discretion to refuse access to a document. Grounds on which access may be refused are set out in section 25 and include that a document is 'an exempt document'. An 'exempt document' is defined in section 6 to mean (among other things) a document referred to in any one or more of the provisions of Schedule 1.
Having regard to the submissions of the Ambulance Service and those of the Institute the following clauses of Schedule 1 are relevant:
4 Documents affecting law enforcement and public safety
(1) A document is an exempt document if it contains matter the disclosure of which could reasonably be expected:
...
(c) to endanger the life or physical safety of any person, or
...
7 Documents affecting business affairs
(1) A document is an exempt document:
(a) if it contains matter the disclosure of which would disclose trade secrets of any agency or any other person, or
...
(b) if it contains matter the disclosure of which:
(i) would disclose information (other than trade secrets or commercial-in-confidence provisions) that has a commercial value to any agency or any other person, and
(ii) could reasonably be expected to destroy or diminish the commercial value of the information, or
...
13 Documents containing confidential material
A document is an exempt document:
(a) if it contains matter the disclosure of which would found an action for breach of confidence, or
(b) if it contains matter the disclosure of which:
(i) would otherwise disclose information obtained in confidence, and
(ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and
(iii) would, on balance, be contrary to the public interest.
16 Documents concerning operations of agencies
A document is an exempt document if it contains matter the disclosure of which:
(a) could reasonably be expected:
(i) to prejudice the effectiveness of any method or procedure for the conduct of tests, examinations or audits by an agency, or
(ii) to prejudice the attainment of the objects of any test, examination or audit conducted by an agency, or
(iii) to have a substantial adverse effect on the management or assessment by an agency of the agency's personnel, or
(iv) to have a substantial adverse effect on the effective performance by an agency of the agency's functions, or
... and
(b) would, on balance, be contrary to the public interest.
The Tribunal's powers on review are found in section 63 of the Administrative Decisions Tribunal Act 1997 (the ADT Act). Section 63 of the ADT Act provides that in determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it. The Tribunal may exercise all of the functions that are conferred or imposed on the agency.
The onus of proof is on the agency to justify any decision to withhold documents: section 61. As Kirby P said in Commissioner of Police v District Court of New South Wales and Anor (1993) 31 NSWLR 606 (Perrin) at 625:
Prima facie, the document in its entirety must be disclosed. To withhold disclosure it is for the agency to make out the application for an exemption. Thus the question properly is not why the information should be disclosed but why it should be exempted.
The hearing
Mr Ambrosio provided a significant amount of material relating to his application to join the Ambulance Service. In essence, Mr Ambrosio's complaint was to the effect that the recruitment process had been mismanaged. He recounted that in the application materials with which he had been provided he was led to believe that he would get feedback in relation to his performance in the application process. However, on the day of the testing he was asked to sign a 'waiver' acknowledging that no feedback would be provided. He felt he had no option but to comply and considered that to amount to bullying.
Within a few days of sitting the test Mr Ambrosio received a letter dated 18 November 2009 from Ms M Griffiths, Manager Operational Recruitment, Workforce Unit, of the Ambulance Service informing him, he said, that he was considered 'unsuitable' for the role. The letter, Exhibit R4, informed Mr Ambrosio that it was not recommended that he advance to the next stage because there were others who were 'more closely matched to the job requirements'.
Mr Ambrosio made enquiries of Ms Griffiths, who, he said, told him he had met 'part one' of the test in relation to aptitude and ability, but had failed to meet 'part two' which was the 'personality questions'. She told him that only a psychologist could provide feedback and that the recruitment unit did not have a psychologist. He said she told him though that a possible interpretation of the results was that he had 'lied' or 'played the game' in his response, especially in the area of working with indigenous people, women, and ethnic minorities. He was also told, he said, that he possibly also did not 'follow instructions'.
He offered to pay for a psychologist of the Ambulance Service's choice to provide the feedback, but apparently the offer was declined. Mr Ambrosio asked the Tribunal to note that he had passed aptitude tests of the AFP, NSW Police, and the ARES as an officer cadet.
Mr Ambrosio made a number of further attempts to obtain feedback, to no avail.
In these proceedings the Ambulance Service filed and served affidavits from 2 staff members: Ms L Robinson, Manager Executive Support Services and Right to Information Officer, and Ms Griffiths and also a copy of Ms Griffiths' letter to Mr Ambrosio dated 18 November 2009.
Ms Griffiths wrote that there are 2 components to the aptitude testing regime: one which tests the applicant's maths, reading and comprehension abilities, and the other is a psychological questionnaire. She wrote that for the psychological testing the ranking ranges from 'outstanding' to 'very poor' or 'invalid'. The test results are not determinative but are used as part of the process of assessing applications. Ms Griffiths made no comment about the conversation which Mr Ambrosio said occurred after he had received her letter.
Ms Robinson wrote that she believed that if the Institute's tests and/or their results were available to members of the public any future testing of that individual or others would be potentially compromised. Because an unsuccessful candidate is not precluded from reapplying they could potentially obtain an advantage from having access to previous test results.
Ms Robinson and Ms Griffiths both wrote to the effect that frank and comprehensive preparation of psychological reports is essential to the paramedic recruitment process and that if the process were impeded it would have a substantial effect on the performance of the Ambulance Service in terms of its ability to make an informed decision about candidates. Both also wrote to the effect that release of the documents would contravene the MOU with regard to release of confidential information.
A copy of the MOU was attached to Ms Griffith's affidavit and contains the following clause:
[The Ambulance Service] agrees to keep confidential all information about [the Institute] selection methodology, including tests which are used, samples of test reports, all interview methodology and pricing structure. ... [The Ambulance Service] agrees to take all reasonable precautions to protect the confidentiality of all [the Institute's] material....
The Institute filed and served a statement by its Director, Dr K Byrne, who also gave evidence. Some of Mr Byrne's evidence was given in the absence of the applicant, as parts of his evidence related to the detail of the confidential nature of the documents over which exemption was sought. While that evidence was useful background, I did not rely on that evidence in making my decision.
In his affidavit Dr Byrne wrote of a number of features of the Institute's profiling system which he considered were unique: for example, tests were designed to measure personality traits directly relevant to the requirements of the job; the Institute has developed normative data over a large sample of Australian applicants applying for the same role; reports have been developed that allow the Institute's clients to identify applicants early in the screening process who may become a 'high risk' if recruited; some flag areas of potential concern for an interview committee; another test has a scale to determine what extent an applicant has tried to "beat" the test by presenting himself in an overly favourable light. He said that there were a number of research studies which had shown that a group of job applicants engaged following the Institute's testing, when compared to a similar size group otherwise engaged, had been significantly better on-the-job performers.
Dr Byrne also wrote that there is a considerable degree of competition for the contracts offered by public safety agencies. To his knowledge there was no other provider in Australia who could offer the Institute's combination of unique services and reporting regime. The personality variables measured in the Institute's testing, which are described in its reports, as well as the form and contents of the reports, provides the Institute, he said, with a significant advantage over competitors. In his evidence he said that his target market is organisations that especially make decisions about safety and therefore there are a limited number of potential customers. He wrote that the content of all the Institute's psychological tests, the nature of the test themselves, their reliance upon the test in the nature and content of the test reports, represent intellectual property which is extremely valuable to the Institute which has taken many years to develop and very large sums of money have been invested in research and development. In his evidence he said that there were a number of "off-the-shelf" tests but none was designed for screening people for public safety roles. He said that his competitors use the "off-the-shelf" tests. He said that the Institute is the market leader in a limited field. While some of the Institute's competitors have "something similar", many do not.
Dr Byrne wrote of ethical responsibilities of a psychologist to respond only to patients and that a person undertaking such testing was not properly regarded as a patient, but became so if feedback in any form were provided. He also argued that even the provision of brief feedback was inappropriate and may prove harmful to an applicant and cited an instance where brief feedback had been detrimental to an applicant's health. He had received advice from the Australian Psychological Society (Annexure C to his affidavit) to the effect that the feedback is an "all or none" exercise and that it would be unethical and inappropriate to offer summarised feedback.
Consideration
Mr Ambrosio seeks the documents because he would like feedback on his performance in the Ambulance Service recruitment tests. Until the day of the tests he understood he would receive feedback. When, after the tests, the Ambulance Service refused his job application, he especially wanted feedback. He was annoyed, especially as he had successfully undertaken testing for other quasi-comparable organizations and had been found, on the basis of that testing, to be suitable. As it transpires he has re-applied to the Ambulance Service. Much of the evidence, it seemed to me, had been distractingly focused on the issue of feedback. The matter however, is not about Mr Ambrosio's entitlement to feedback; it is about whether there is any reason why Mr Ambrosio should not have access to the test result documents.
It was agreed at the outset that the documents contain information about the test results of other candidates. Mr Ambrosio does not seek any information in that regard, and indeed, that information would be subject to exemption under clause 6 because it relates to the personal affairs of those other candidates.
The Ambulance Service and the Institute claim that the documents should not be released on a number of bases. In order for either document to be exempt, it is only necessary to establish that the document falls within one of the claimed separate bases for exemption.
The reasonableness of an expectation of particular effects of disclosure is to be considered rather than the reasonableness of the claim for exemption. This has been referred to as the 'mosaic approach', such that disclosure is precluded even when disclosure of specific pieces of information, which are not necessarily themselves sensitive, but may, when put together with other separate information, cumulatively disclose information of a sensitive character: Searle, and McKnight and Australian Archives (1992) 28 ALD 95.
The main provision of the Act relied upon was cl 7 Clause 7 which is modelled on the earlier equivalent provision in the Commonwealth Act, s 43, though there are some slight differences. While some caution must be exercised referring to cases dealing with other legislation, the approach taken in that jurisdiction to comparable claims, is of considerable guidance, in addition to the approach taken by the ADT and the NSW Courts to the particular terms of cl 7. In addition to the need to focus closely on the terms of the specific legislation under review, it is also clear from the case law that ultimately, a question of whether an exemption provision such as clause 7 applies is heavily dependent on the particular facts and circumstances: Searle Australia Pty Limited v Public Interest Advocacy Centre (1992) 108 ALR 163 (Searle).
Clause 7(1)(a)
Does the document contain matter which would disclose the Institute's trade secrets?
It was submitted that the evidence of Dr Byrne clearly establishes that the use of the rankings and ratings on the face of the documents is itself a trade secret, being the result of considerable time, review and analysis and associated cost to the Institute. Those categories of rankings and ratings and the format of the report were said not to be used by the Institute's competitors, thereby providing the Institute with a significant market advantage. In essence, the Institute's concern, as I understand it, is to protect the intellectual processes it applies to its testing and reporting regime.
In its review following the Ombudsman's report the Ambulance Service wrote:
While these reports do not indicate the combination and structure of the tests, or any assessment and analysis, the selection and use of specific categories of the rankings and ratings displayed on the face of the results reports is itself a trade secret .... The release of a results report containing those tests, rankings and ratings would most likely lead to the trade secret contained in them being disclosed to other persons, potentially competitors of [the Institute].
I was referred to the Tribunal's decision in Zagami v Waste Service of New South Wales [2005] NSWADT 60 at 41 where the Tribunal said that the expression "trade secret" in clause 7(1)(a) does not have a technical legal meaning, and that what is a trade secret is primarily a question of fact. This is consistent with the approach in Searle. In Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VR 37, Gowans J found assistance in the American "Restatement of the Law of Torts" (1939; Volume 4, paragraph 757) which refers to a trade secret as "any formula, pattern or device or compilation of information which gives an advantage over competitors who do not know or use it".
The Administrative Appeals Tribunal in respect of the Commonwealth counterpart clause set out, as a guide, in Re Organon (Australia) Pty Ltd and Department of Community Services and Health (1987) 13 ALD 588 at 593-4, 7 indicia of what may amount to a trade secret (the Organon indicia):
(a) whether the information is of a technical character,
(b) the extent which the information is known outside the business of the owner of that information,
(c) the extent to which the information is known by persons engaged in the owner's business,
(d) measures taken by the owner to guard the secrecy of the information,
(e) the value of the information to the owner and to his competitors,
(f) the effort and money spent by the owner in developing the information,
(g) the ease or difficulty with which others might acquire or duplicate the secret.
It was submitted that the disclosure of the documents in this matter would reveal: the format by which the Institute provides test summaries; the manner in which the Institute ranks candidates; the fact that the Institute provides an IQ score, a raw score, a ranking and level of suitability; and, that responsible disclosure would require the Institute and/or the Ambulance Service to explain to an applicant in detail the score results, testing procedure and method, thus disclosing further information which is a trade secret.
As in CH Real Estate Pty Limited (t/as Raine & Home Commercial, Penrith) v Penrith City Council [2005] NSWADT 147 (CH Real Estate), in this matter there was some evidence going to the Organan indicia (e) and, to a lesser extent, (f). The position is more problematic as to the other indicia. In particular, I have reservations as to the "ease or difficulty" with which others might be able to replicate the Institute's processes from the information provided in the reports. In my view, based on the relatively limited material before me, there is insufficient material in the documents for a competitor to formulate a testing regime. I did not understand Dr Byrne's evidence to suggest that it was possible to 'reverse engineer' the rankings so as to formulate tests that would provide results as reliable as those which the Institute professes. This is not an area of intellectual analysis of the same complexity as the development of rubber glove making technology to inserting flock inside the gloves (Ansell Rubber), the creation of safe intra-uterine contraceptive devices (Re Organon) or pharmaceutical products in Re Pfizer Pty Ltd & anor and Department of Health, Housing and Community Services (1993) 30 ALD 647.
I am satisfied that the claim for exemption under clause 7(1)(a) is not established.
Clause 7(1)(b)
A document is an exempt document under clause 7(1)(b) if it contains matter, the disclosure of which would disclose information that has a commercial value to any agency or any other person, and could reasonably be expected to destroy or diminish the commercial value of the information.
Does the information have "commercial value"?
As noted in Watt v Forests NSW [2007] NSWADT 197 "[t]he first arm of this clause requires a positive finding that the relevant information has a commercial value. Only after that finding is made is it necessary to consider whether disclosure could reasonably be expected to destroy or diminish the commercial value of the information" (at [104]).
The meaning of "commercial value" was considered in Re Cannon and Australian Quality Egg Farms Limited (1994) 1 QAR 491 (at [54-[55]]) (Re Cannon):
The first [interpretation] (and what I think is the meaning that was primarily intended) is that information has commercial value to an agency or another person if it is valuable for the purposes of carrying on the commercial activity in which that agency or other person is engaged. The information may be valuable because it is important or essential to the profitability or viability of a continuing business operation, or a pending, "one-off' commercial transaction.
The second interpretation of "commercial value" which is reasonably open is that information has commercial value to an agency or another person if a genuine, arms-length buyer is prepared to pay to obtain that information from that agency or person. It would follow that the market value of that information would be destroyed or diminished if it could be obtained from a government agency that has come into possession of it, through disclosure under the FOI Act. The fact that there is a genuine market for information used by an agency or another person in carrying on commercial activity could also be regarded as a strong indication that the information is valuable for the purpose of carrying on that commercial activity; i.e. that the primary meaning referred to above is satisfied. I do consider, however, that information can be capable of having a commercial value to an agency or another person even though it could not be demonstrated that an arms-length buyer would be prepared to pay to obtain that information. The difficulties of proof of the material facts which would bring information within the ambit of the second meaning of "commercial value" to which I have referred will probably mean that it is not relied upon on many occasions.
There is a body of case law from which it could be inferred that something more than just commercial information is required. For example, in Neary v State Rail Authority [1999] NSWADT 107 at [42] O'Connor J described the case law on the equivalent of Clause 7(1)(b) as involving "product or similar information that resulted from the investment of significant research and time and effort by a business organization". In Re Cannon however the Information Commissioner was not prepared to accept that the investment of time and money is a sufficient indicator in itself that information has a commercial value, because most, if not all, documents produced by a business will have some commercial value because resources were invested in their production. That resources have been expended in producing information is a factor that may be relevant to take into account in determining whether information has a commercial value.
In the present case, it is useful to differentiate between the ability test and the psychological test, reports. The ability test was readily identified by all parties as relating to reading, number and writing skills. The report lists each candidate and their scores in each of the tested areas. The information relates to the candidate's score out of a maximum achievable. There is no evaluation of whether such a score is 'pass' or 'fail', although one may undertake a simple comparison of the candidate's score against the maximum achievable; this assumes though that 50% of the maximum score constitutes 'a pass', in everyday understanding. However, there is no indication whatever as to what 'ability' level the Ambulance Service may require in its recruits in relation to the score achieved, nor as to what the Institute may have recommended, or indeed, if it makes a recommendation on the basis of the ability test at all. There is no indication whatever of how the tests were formulated, any detail as to what the tests entailed, or information as to the basis upon which the scores were reached. I do not consider the ability test to contain information of a commercial value.
The psychological test report is arranged somewhat differently to the ability test report, in that it divides the candidates into categories which reflect the Institute's recommendations, according to the candidates' test performance. The report is accompanied by an explanatory coversheet.
Information is considered to have a commercial value if it is valuable for the purposes of carrying on the commercial activity in which that person is engaged and may be valuable because it is important to an organisation's profitability: Re Cannon.
It was submitted in relation to both tests, but more particularly in relation to the psychological test, that there is commercial value to the Institute in the information because, after considerable review and analysis, the Institute had selected those tests and those categories of candidate and those rankings and ratings. This combination was said to be unique to the Institute in that it is not used by its competitors.
I do not accept that the there is necessarily commercial value in the categories identified by the Institute in its psychological report, or in relation to the headings in its report as to ranking and ratings. The Institute had contracted with the Ambulance Service to provide psychological profiling for candidates, and this is precisely what has occurred. Presumably any organization providing psychological testing services would, following testing, in some fashion, identify categories of candidates and rank and rate those candidates accordingly. Commercial value may attach to how those categories, rankings and ratings are reached, but that is not in issue here.
More problematic still is the accompanying coversheet to the psychological tests. There the categories and the Institute's recommendations in respect of each category of candidate are discussed in general terms, albeit without reference to individual candidates. Methods of evaluating some types of candidates are suggested, and observations are made about one type of ranking and rating. Because the coversheet contains information about the nature of the product which the Institute provides to the Ambulance Service, namely details of its analysis of the psychological test results and its recommendations, I accept that the coversheet contains commercial information.
Could disclosure reasonably be expected to diminish the commercial value?
Having come to the view that only the coversheet contains commercial information, it is only in respect of that part of the documents which I turned to consider this second limb of clause 7(1)(b) (per Watt v Forests NSW).
It was submitted that the release of information about the Institute's system of categorization could lead to that information being disclosed to other persons, and possibly to competitors. If revealed to future or repeat applicants they would be able to identify what is important in the tests and practice in order to prepare for future testing. Further, this would compromise the integrity of the testing and consequently devalue its commercial value to the Institute's clients and would also necessitate the Institute investing very significant resources to redesign a new test and report.
The expression 'could reasonably be expected to destroy or diminish' was examined in Searle (when considering the Commonwealth equivalent provision). There the Court said that the words "could reasonably be expected to" take their ordinary meaning in applying this exemption, "there would ordinarily be material before the decision-maker which would show whether or not the commercial value of the information would be or could be expected to be destroyed" if disclosed [at 176] The Court emphasised that the question is not whether the claim for exemption is reasonable, but whether the expectation that the commercial value could be destroyed or diminished if disclosed was reasonable.
Whether release of the information "could reasonably be expected" to destroy or diminish the commercial value of the coversheet's information must be based on real and substantial grounds and must not be purely speculative, fanciful, imaginary or contrived: Searle (at 175). Decision-makers cannot simply assume the worst theoretical or imaginable possibility: Leichhardt Municipal Council v Roads and Traffic Authority [2005] NSWADT 37.
In this case, I accept Dr Byrne's evidence that it had taken 'many years', at great expense, to create the Institute's methodology and reporting format. Dr Byrne's evidence was that there was considerable competition for public safety agencies contracts. He also said that the significant advantage the Institute currently holds over its competitors, as to the personality variables provided in their testing and described in their reports, would be lost if known.
I agree with the Institute and the Ambulance Service's submissions that the coversheet reveals factors considered by the Institute in evaluating candidates for the Ambulance Service and accept that disclosure of that information may result in a diminution of its commercial value. The Institute's competitors could copy and produce a similar categorization system. While there is insufficient information for them to reproduce the testing regime such that identical results would be achieved, the information highlights the manner in which the Ambulance Service has been provided with an assessment of its applicants.
On that basis the coversheet is exempt from production to Mr Ambrosio under Clause 7(1)(b).
Having come to my view in relation to the coversheet to the psychological test, it was necessary to consider the ability and the psychological test documents in relation to other claims for exemption.
Clause 13(a): Would disclosure of the test documents found an action for breach of confidence?
and
Clause 13(b): Would disclosure of the test documents disclose information obtained in confidence, which could reasonably be expected to prejudice the future supply of such information to the Ambulance Service?
The Institute and the Ambulance Service entered into the MOU under which Ambulance Service and its staff must keep confidential all information relating to the Institute's selection methodology, the tests and test reports. The Institute and the Ambulance Service regard the MOU as binding upon them but Mr Ambrosio submitted that the MOU is not a contract and is therefore not binding. However, for clause 13 to apply there is no need for a binding contract or even a commercial relationship, it is only necessary that it be understood by both parties that information is being supplied on the understanding that it will be kept confidential: Wiseman v Commonwealth (unreported, 24 October 1989) per Sheppard, Beaumont and Pincus JJ and Re Thwaites and Metropolitan Ambulance Service (1996) 9 VAR 427 at 473. Documents will be exempt from production if information was not only said to be confidential but was given in circumstances where it was understood that the agency had an obligation of confidence unless agreement was given to disclosure: Re Harts Pty Ltd and Tax Agents' Board (Qld) (1994) 36 ALD 403.
Further and in the alternative, pursuant to clause 13(b), it was submitted that the information was obtained in confidence and a disclosure of the information, could potentially prejudice the future supply of such information to the Ambulance Service from the Institute. The Tribunal must ask itself whether material of the kind sought to be protected would, if released, prejudice the supply of similar material to the agency in the future, as a matter of reasonable expectation: Director-General, Department of Education and Training v Mullett [2002] NSWADTAP 13 at [58].
In Re Maher and Attorney-General's Department (1986) 13 ALD 98 at 109 the Administrative Appeals Tribunal identified the following three elements to be considered in a "breach of confidence" under the (then current) Commonwealth provision: whether the information is confidential, whether the information was communicated in confidence or in such a way that there was an obligation of confidence; and whether disclosure would be an authorised use by the confidant although not necessarily with a prejudicial or detrimental effect.
I accept that, pursuant to the MOU the Ambulance Service is required to keep confidential the documents which disclose information about a broad range of information relating to the Institute, including its methodology. I consider that the information in the coversheet would fall into this category, even if I had not already decided that it is exempt under cl 7(b). I also accept that to disclose the information in the test results may found an action for breach of confidence. Paragraph 4 of the MOU relates to the Ambulance Service keeping confidential samples of test reports and the results for Mr Ambrosio and his cohort would be such a 'sample'.
Further, I accept that disclosure of the test documents would be likely to disclose information obtained in confidence, which could reasonably be expected to prejudice the future supply of such information to the Ambulance Service by the Institute.
Would disclosure be contrary to the public interest?
The remaining issue is whether or not the release of the documents would, on balance, be contrary to the public interest. In determining this issue it is necessary to take into account public interest considerations that favour disclosure, and balance these against those which tend against disclosure.
It was unclear as to any contentions by Mr Ambrosio in this regard, as his overall contentions were about his own interests. I accept the Ambulance Service submission that the public interest is served by the Ambulance Service having access to frank and detailed assessments of candidates given the nature of the public functions the candidates are to perform if successful and the high level of public investment in candidates in the form of training before a candidate commences employment. I accept the submission that the Ambulance Service needs to ensure as part of its efficient human resources management that there a level of trust between the Ambulance Service and the Institute. I agree with the arguments advanced by the Ambulance Service. In the circumstances of this matter it is my view that the public interest in disclosure is outweighed by the considerations that tend against disclosure.
It follows, in my view, that the correct and preferable decision is that the identified documents not be released. Accordingly, the Ambulance Service's determination should be affirmed.
Having come to the view that test result documents and the coversheet are exempt from release it was not necessary for me to consider the remaining bases. Suffice to say though, that in my view, the documents would also be exempt under cl 16(a)(i) in that it could reasonably be expected that their release may prejudice the effectiveness of the method for the conduct of the Ambulance Service tests conducted on its behalf by the Institute. I accept that frank and comprehensive reporting is essential to the paramedic recruitment process. I also accept that disclosure could prejudice the attainment of the objects of the tests, namely accurate and detailed profile testing for the Ambulance Service's recruitment processes: Clause 16(a)(ii). Furthermore, I note that the term "management or assessment by an agency of the agency's personnel', as contained in Cl 16(a)(iii) includes the activities of an agency connected with human resource management, its selection processes and their effective operation: Mullett. There has been long recognition by the courts that requests for access by unsuccessful job applicants could reasonably be expected to throw well-considered and long-adopted procedures for personnel assessment into confusion and disorder: Re Dyrenfurth and Department of Social Security (1987) 12 ALD 577 (affirmed in Department of Social Security v Dyrenfurth (1988) 15 ALD 232); Chief Executive Officer, State Rail Authority v Woods (No. 2) (GD) [2003] NSWADTAP 39. The documents also fall within this category of exemption.
I do not consider Cl 4(1)(c) to have any application.
Orders:
The decision under review is affirmed.
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Decision last updated: 08 March 2011
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