Bryant v Secretary, Department of Communities and Justice

[2021] NSWCATAD 73

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Bryant v Secretary, Department of Communities and Justice [2021] NSWCATAD 73

Hearing dates:

On the Papers

Date of orders:

24 March 2021

Decision date:

24 March 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

D Dinnen, Senior Member

Decision:

(1) The Tribunal sets aside the Respondent’s reviewable decision and substitutes this decision in its place.

(2) The Respondent is to provide the Applicant with access to the information in accordance with these reasons for decision within 28 days.

Catchwords:

ADMINISTRATIVE LAW – Freedom of information — Access to information – GIPA – public interest considerations in favour of disclosure – public interest considerations against disclosure – balancing exercise

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Government Information (Public Access) Act 2009

Government Information (Public Access) Regulation 2009

Government Sector Employment Act 2013

Privacy and Personal Information Protection 1998 Work Health and Safety Act 2011

Cases Cited:

Cameron v Commissioner of Police, New South Wales Police Force (2014] NSWCATAD 13

Commissioner of Police, NSW Police Force v Barrett (No 2) [2016] NSWCATAP 86

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

Hurst v Wagga Wagga City Council [2011] NSWADT 307

Leech v Sydney Water Corporation [2010] NSWADT 298

Neary v State Rail Authority [1999] NSWADT 107

Public Service Assn v Premier’s Department [2002] NSWADT 277

Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163

Taylor v Destination NSW [2017] NSWCATAD 272

Taylor v Office of Destination NSW [2018] NSWCATAD 195

Williams v Department of Industry and Investment [2012] NSWADT 192

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Lizbeth Bryant (Applicant)
Secretary, Department of Communities and Justice (Respondent)

Representation:

Counsel:
R Notley (Applicant)

Solicitors:
Legal, Department of Communities and Justice (Respondent)

File Number(s):

2020/00179212

Publication restriction:

None

reasons for decision

Background

1. By application filed 17 June 2020 the Applicant sought review of the Respondent’s determination dated 13 February 2020 under the Government Information (Public Access) Act 2009 (GIPA Act) to withhold information on grounds of an overriding public interest against its disclosure.

2. The Applicant’s original application dated 1 October 2019 sought the production of certain emails to or from two employees, Glen Scholes and Brad Peebles, which contained the name “Lizbeth Bryant” or “Libby Bryant”. The scope of the application was the subject of discussions between the Applicant and Respondent. On 16 December 2019 the Respondent’s Information Access and Privacy Officer, Giancarlo Nalapo, refused access to all of the information falling within the scope of the access application. The Applicant sought Internal Review and on 13 February 2020 a Reviewable Decision was made to provide access to some information under s 58(1)(a), and to refuse access to some information under s 58(1)(d) of the GIPA Act because of an overriding public interest against its disclosure having regard to clauses 1(d), 1(e), 1(f), 1(g), 3(a) and 3(b) of the table to s 14 of the GIPA Act.

3. Ultimately consent orders were made on 20 November 2020 to limit the application to:

Emails between Mr Brad Peebles and Mr Glen Scholes, between the dates 11 November 2016 and 31 December 2016 in which the Applicant, Lizbeth Bryant’s workers compensation claim was mentioned or referred to and which was not released in the Respondent’s internal review decision dated 13 February 2020.

4. On 10 December 2020 the Respondent filed an amended version of its Legal Contentions which maintained reliance on clauses 1(e), 1(f), 3(a), 3(b) and 4(d) of the Table to s 14 of the GIPA Act, with respect to a confidential bundle of 15 pages identifying the exact information in dispute (the Confidential Bundle). Each piece of withheld information identified in the Confidential bundle included an identification of the public interest considerations against disclosure which were relied on by the Respondent.

5. The issues for determination are whether the information withheld from the Applicant contained in the Confidential Bundle satisfies the public interest considerations against disclosure set out in clauses 1(e), 1(f), 3(a), 3(b) and/or 4(d) of the Table to section 14(2) of the GIPA Act, and whether those considerations weigh more heavily than the public interest considerations in favour of their disclosure.

Applicable legislation

6. The Tribunal’s jurisdiction to conduct this review derives from s100 of the GIPA Act read with s 28 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) and s 9 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act).

7. In determining the application, the Tribunal is to decide what the correct and preferable decision is having regard to the material before it: ADR Act, s 63(1). The Respondent is not limited to defending the matter on the same basis as it made its original decision: Public Service Assn v Premier’s Department [2002] NSWADT 277 at [57] and [59].

8. In determining the application, the Tribunal may affirm the decision, vary the decision, set aside the decision and make another decision in substitution for the decision set aside, or set aside the decision and remit the matter for reconsideration by the Respondent in accordance with any directions or recommendations of the Tribunal: ADR Act, s 63(3).

9. The approach to be taken in applications under the GIPA Act has been considered in numerous cases before this Tribunal. The objects of the GIPA Act are set out in s 3(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.

10. “Government information" is given a wide meaning under section 4 of the GIPA Act being "information contained in a record held by an agency."

11. The GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 5. In accordance with s 9(1) of the GIPA Act, the Applicant has a legally enforceable right to access the information requested, unless there is an overriding public interest against disclosing the information.

12. The general public interest considerations in favour of access to government information set out in s 12 of the GIPA Act mean that the balance is always weighted in favour of disclosure. In addition to the general public interest, the following examples are identified:

Note : The following are examples of public interest considerations in favour of disclosure of information--

(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.

13. Section 13 of the GIPA Act provides -

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.

14. Section 14 of the GIPA Act deals with the issue of what public interest considerations are permissible to be relied upon. The only relevant public interest considerations against disclosure that may be taken into account in these proceedings are those listed in the Table to s 14(2) of the GIPA Act. Relevantly, the Respondent relies on the following public interest considerations against disclosure:

1. Clause 1(e) - disclosure of the information could reasonably be expected to 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) - disclosure of the information could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions;

3. Clause 3(a)- disclosure of the information could reasonably be expected to reveal an individual's personal information;

4. Clause 3(b) - disclosure of the information could reasonably be expected to contravene an information protection principle under the Privacy and Personal Information Protection 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002; and

5. Clause 4(d) - disclosure of the information could reasonably be expected to prejudice any person's legitimate business, commercial, professional or financial interests.

15. The evidence of the Respondent must satisfy the threshold for each of those clauses, being that it "could reasonably be expected to have one or more of the following effects (whether in a particular case or generally)". In this regard, the test to be applied is an objective one, approached from the viewpoint of a reasonable decision-maker: Neary v State Rail Authority [1999] NSWADT 107. 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 (1992) 108 ALR 163, followed in Commissioner of Police, NSW Police Force v Barrett (No 2) [2016] NSWCATAP 86 (Barrett) at [40], Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 (Flack) at [40] to [41], Leech v Sydney Water Corporation [2010] NSWADT 298 at [25].

16. The meaning of the word prejudice is to “cause detriment or disadvantage’ or to ‘impede or derogate from”: Hurst v Wagga Wagga City Council [2011] NSWADT 307 at paragraph [60].

17. Ultimately, it is a question of fact as to whether the disclosure of the information in issue could reasonably be expected to have the prescribed effect if disclosed. That fact being established to the relevant standard of proof, on the balance of probabilities: Barrett, at [42].

18. The approach to determining the balance referred to in s 13 was summarised in Williams v Department of Industry and Investment [2012] NSWADT 192 at [20] to [22], following Flack and Hurst v Wagga Wagga City Council [2011] NSWADT 307 as requiring decision-makers to:

1. identify relevant public interest considerations in favour of disclosure,

2. identify relevant public interest considerations against disclosure,

3. attribute weight to each consideration for and against disclosure, and

4. determine whether the balance of the public interest lies in favour of or against disclosure of the government information.

19. Section 15 of the GIPA Act sets out the principles that apply to public interest determination as follows:

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

20. Section 105 of the GIPA Act provides that the onus is on the Respondent agency to justify its decision.

Consideration

21. The Confidential Bundle provided by the Respondent identifies specifically exactly which pieces of information are withheld from the Applicant, and the considerations from the Table to s14 of the GIPA Act which apply to each piece of information. However, the Respondent’s submissions have addressed the balancing exercise required by the Tribunal in relation to the information collectively. This is a fundamentally flawed approach, as discussed in Taylor v Destination NSW [2017] NSWCATAD 272 at [38] and Taylor v Office of Destination NSW [2018] NSWCATAD 195 at [20] – the balancing exercise cannot be conducted collectively, but needs to be conducted in relation to each piece of information identified as falling within the scope of the Applicant’s application.

22. After addressing the collective submissions, I will therefore be applying the balancing exercise required by s 13 of the GIPA Act to each piece of information, taking into account the submissions in relation to each relevant consideration by the parties.

Public Interest considerations in favour of disclosure

23. The Applicant submitted:

…the Applicant is seeking emails between Mr Brad Peebles and Mr Glen Scholes between 11 November 2016 and 31 December 2016 in which the Applicant's workers compensation claim was mentioned or referred to. Mr Peebles is the Governor of the Wellington Correctional Centre. Mr Scholes is the Director of Custodial Corrections North and the supervisor of Mr Peebles. The Applicant was an employee of the Respondent and worked at the Wellington Correction Centre. The Applicant is seeking these documents for a specific purpose. The Applicant expects that these emails contain admissions by the Respondent that will assist the Applicant in her workers compensation claim.

24. The Applicant submitted that the public interest considerations in favour of disclosure included the general public interest at s12(1); that the information is personal information of the Applicant pursuant to cl 4 of Schedule 4 of the GIPA Act; that disclosure of the information could reveal or substantiate that an employee of the Respondent has engaged in negligent conduct; that the information could enhance, or could reasonably be expected to enhance, government accountability in the management of its human resources and provide transparency and accountability; and that the information could inform the public, or could reasonably be expected to inform the public, about the operations of the Respondent, particularly its policies and practices for dealing with its employees. The Applicant submitted that her motives for making the access application, being to obtain access to information to assist in her workers compensation claim against the Respondent, were also a relevant consideration pursuant to s 55 of the GIPA Act.

25. The Respondent’s submissions did not address any of the public interest considerations in favour of disclosure other than acknowledging the statutory presumption (s 5), general right to access (s 9(1)) and general public interest (s 12(1)). With respect to the Applicant’s personal considerations under s 55 of the GIPA Act, the Respondent submitted that these would contribute to the weight the Tribunal attributed to the considerations against disclosure, rather than in favour of their disclosure. The Reviewable Decision acknowledged that the public interest factors in favour of disclosure included the statutory presumption (s 5), the general right to access (s 9(1)), that the information contained the Applicant’s personal information, and it related to the Applicant’s performance management, that the information could reasonably be expected to inform the Applicant and public about the operations of the Department in relation to complaint management and misconduct investigations, and that it could reasonably be expected to reveal or substantiate that the Department (or a member thereof) had engaged in misconduct or negligent, improper or unlawful conduct. The reviewable decision noted that:

While some of the public interest factors in favour of release are compelling, the public interest has already been largely met by the partial release of information.

26. The Respondent’s reliance in its Reviewable Decision on a “partial release” satisfying the public interest erroneously applies the public interest collectively to the information in question, rather than considering the public interest in relation to each piece of information identified. For each piece of information withheld, either the public interest considerations in favour outweigh those against, in which case the information is released to the Applicant; or they don’t, in which case that information is withheld. There is no basis under the GIPA Act to engage in a “partial release of information” in the circumstances.

27. The Applicant submitted that the standard to be met in identifying the public interest considerations in favour of disclosure was not the same as the standard in relation to the public interest considerations against disclosure, because the considerations identified at s 12 were provided as examples only, and subject to s 12(2), which states:

Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.

28. The Applicant submitted that because there was no statutory requirement that the information "could reasonably be expected' to have the stated effect in favour, it would be sufficient that there is a "mere possibility, risk or a chance". I disagree that s 12(2) has the effect submitted, as it refers to any ‘other’ public interest considerations, not the standard by which those already identified would be applicable.

29. Nevertheless, in addition to the statutory presumption, general right to access and general public interest, I accept the Applicant’s submissions that the relevant public interest considerations in favour of disclosure of the information sought include:

1. that the information could reasonably be expected to reveal or substantiate that an employee of the Respondent has engaged in negligent conduct;

2. that the information could enhance, or could reasonably be expected to enhance, government accountability in the management of its human resources and provide transparency and accountability; and

3. that the information could inform the public, or could reasonably be expected to inform the public, about the operations of the Respondent, particularly its policies and practices for dealing with its employees.

30. I accept the Applicant submission that where the information contains the Applicant’s personal information, this is a factor deserving considerable weight: Cameron v Commissioner of Police, New South Wales Police Force (2014] NSWCATAD 13 at [77].

Public interest considerations against disclosure

31. In relation to the relevant public interest considerations against disclosure the Respondent submitted:

The information requested by the applicant is email correspondence between Brad Peebles, Governor, Wellington Correctional Centre and his supervisor, Glen Scholes, Director, Custodial Corrections North which contains information relating to the management of employee Lizbeth Bryant.

The nature of the email correspondence consists mainly of discussions of concerns raised by Mr Peebles in relation to the conduct and performance of the applicant who directly reported to Mr Peebles and the related human resources issues relating to her management.

The information includes instances where advice has been sought by Mr Peebles from Mr Scholes and other departmental employees within HR regarding human resource issues and performance management issues relating to the applicant. It also reveals the advice and internal input provided by senior officers regarding the Applicant.

…there is no evidence that the email correspondence has been revealed either to the applicant or publicly. A search on the internet by the respondent confirms this.

32. As referred to at 21 above, the Respondent has made collective submissions on each of the identified public interest considerations against disclosure in relation to the withheld material as a whole, rather than provide submissions on their application to the information individually. The reviewable decision contains the same approach. This leaves the Tribunal with two practical options: either the Tribunal can remit the matter for reconsideration by the Respondent, for the purpose of requiring the Respondent to provide individualised reasons for why each of the relevant public interest considerations applied to each piece of withheld information separately and what weight should be afforded to it in the circumstances, or the Tribunal can determine the matter on the material currently before it, if the material is sufficient. Because the Respondent has clearly identified in the withheld material which of the considerations in the table to s 14 apply to which piece of information, and the Tribunal has to conduct its own balancing exercise under s 13 regardless, I consider there is sufficient material currently before the Tribunal to determine the matter by applying the Respondent’s collective submissions to each piece of information withheld.

Consideration 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

33. The Respondent submitted that the documents (including email chains) containing the withheld information were made with the expectation that they would not be subject to public scrutiny as they were internal in nature. Releasing the withheld information and any similar information in future in similar circumstances could reasonably be expected to reveal the deliberative process between Mr Peebles and senior officers whom he sought advice from. This would have the practical effect of undermining the ability for managers to communicate to their immediate supervisors in a frank and fearless manner and also to seek confidential and frank advice and counselling in relation to how to appropriately manage staff conduct and performance.

34. The Respondent submitted that significant weight should be apportioned to this public interest consideration against disclosure because of the size and breadth of locations of the Department, which meant that the prejudice caused by inhibiting such discussions via internal email would be significant.

35. The Applicant accepted that the disclosure of the emails could reasonably be expected to have the effect of revealing a deliberation, consultation, opinion or recommendation.

36. The Applicant submitted that:

… the onus is on the Respondent to establish, on the balance of probabilities, that there are real and substantial grounds to expect that the disclosure of the limited email correspondence sought by the Applicant will cause detriment or disadvantage, or impede or derogate from, the effective exercise (not just the ordinary exercise) by the Respondent of its function to manage allegations of unsatisfactory conduct and misconduct.

The Respondent has not done so. It is no more than a mere possibility, risk or chance based on speculation and mere assertion.

37. The Applicant submitted that this was because there was no evidence to support a finding that the disclosure of emails between two specific employees of the Respondent, limited to a specific period of 11 November 2016 and 31 December 2016 and by content to those mentioning or referring to the Applicant's workers compensation claim, would have such a prejudicial impact on the Respondent.

Consideration 1(f) - prejudice the effective exercise by an agency of the agency's functions

38. The Respondent submitted that its core functions included the humane management of inmate custody and the effective facilitation of the security, discipline and good order of correctional centres. Effective exercise of these core functions relied on managers being aware of any employee performance, conduct, availability or welfare issues, to ensure that Correctional Officers were able to function effectively in their role, and that their actions and behaviour were beyond reproach. The ability for senior management to conduct frank and candid discussions relating to the management of employee performance, welfare and availability issues relating to Correctional Officers, and for conduct issues to be robustly considered, investigated and acted upon appropriately, was therefore essential to ensure the security, discipline and good order of correctional centres. The management of employee conduct and welfare were also functions of the Respondent pursuant to the Government Sector Employment Act 2013 and the Work Health and Safety Act 2011.

39. The Respondent submitted that release of such internal discussions to the world at large through the GIPA access application process could reasonably be expected to inhibit or prevent employees from providing frank and candid information in the context of such investigations and management, or to deter managers from being able to seek advice from the relevant business units in relation to the management of their subordinates, and this could affect the security, discipline and good order of any relevant correctional centre. Significant weight should be given to this consideration in the context of the size of the Department and given the various locations of Departmental offices that need to be serviced by the relevant business units.

40. The Applicant accepted that one of the Respondent's functions was to manage its employees’ performance and conduct, which included managing allegations of unsatisfactory conduct and misconduct. The Applicant submitted that the limited nature of the information sought could not reasonably be expected to prejudice the effective exercise by the Respondent of its function to manage allegations of unsatisfactory conduct and misconduct, for the same reasons expressed at 36 and 37 above.

Consideration 3(a) – reveal an individual’s personal information

41. The Respondent identified the personal information withheld as the name and other identifying information of persons other than the Applicant, such as their contact email address. The Respondent noted that:

…even if the names, contact details and positions of the relevant persons were deleted, given the context of the information they have provided as relates to the applicant, their identities are likely to be known to the applicant given the surrounding circumstances in which the information was provided.

42. The Respondent submitted that the information was ‘personal information’ because it revealed more than the fact that a person was engaged in the exercise of public functions, the information was not known to the Applicant and had not been made publicly available. The Respondent submitted that significant weight should be given to this consideration because it “could potentially have a significant impact on the employees if that information was released to the applicant”, but did not provide any specific evidence of what that impact would be to those employees.

43. The Applicant submitted:

…insofar as there is personal information contained in the email correspondence, that is not personal information of the Applicant and that does not concern the Applicant's workers compensation claim, there is no reason why it could not be deleted from the copy of the email correspondence provided to the Applicant: section 74 of the GIPA Act.

44. I understand that submission to mean that the Applicant does not seek disclosure of personal information which is not personal information of the Applicant and does not concern the Applicant’s workers compensation claim.

Consideration 3(b) - contravene an information protection privacy principle

45. The Respondent submitted that the disclosure of personal information under the GIPA Act is not the purpose for which the information was collected, or the kind of disclosure that the individual would have been aware of when the information was collected. The Respondent submitted that this consideration was particularly pertinent when considering that specific requests were made by witnesses that personal information not be disclosed to a third party by the respondent, that the individuals whose personal information had been withheld did not consent to the disclosure of their personal information and that given the circumstances, the individuals are unlikely to provide consent to its disclosure. The Respondent submitted that disclosure would amount to a breach of section 18 of the Privacy and Personal Information Protection 1998 (PPIP Act) by the Respondent.

46. The Applicant submitted that even if disclosure of the information could reasonably be expected to breach of section 18 of the PPIP Act, this was only one part of the balancing exercise required by section 13 of the GIPA Act, because s 5 of the PPIP Act specifies that nothing in the Privacy Act operates to lessen any obligations under the GIPA Act in respect of a public sector agency. The Applicant also submitted:

…insofar as there is personal information contained in the email correspondence, that is not personal information of the Applicant and that does not concern the Applicant's workers compensation claim, there is no reason why it could not be deleted from the copy of the email correspondence provided to the Applicant section 74 of the GIPA Act.

47. Again, I understand that submission to mean that the Applicant does not seek disclosure of personal information which is not personal information of the Applicant and does not concern the Applicant’s workers compensation claim.

Consideration 4(d) - prejudice any person’s legitimate business, commercial, professional or financial interests

48. The Respondent submitted that the Information on page 135 of the withheld records contained the information of QBE Insurance. The Respondent referred to the third party consultation it conducted pursuant to s 54 of the GIPA Act, stating that:

On 12 February 2020 the respondent received objections from QBE Insurance regarding the release of their information contained on page 135 of the records.

…

QBE Insurance has objected to the release of their information on the basis that the release of the information could reasonably prejudice their business interests as well as their deliberative processes in relation to the management of claims.

49. The Respondent submitted that the relevant records contained information which, if released, could prejudice QBE’s business, as it:

…reveals information pertinent to their business practice as relates to their deliberative processes in considering claims.

50. The Applicant submitted that the Respondent had not established this on the evidence.

51. There was no evidence of the third party consultations the Respondent had conducted or the responses provided by QBE available to the Tribunal. Even if the Tribunal accepted the Respondent’s assertions as evidence (which it does not), there is insufficient evidence on which the Tribunal could accept that disclosure of an email chain within the narrow scope of this access application would prejudice QBE’s legitimate business interests. I agree with the Applicant’s submission that it has not demonstrated this consideration on the balance of probabilities and therefore do not take this consideration against disclosure into account. Even if I am wrong in rejecting this consideration, there would be extremely minimal weight afforded to it in the circumstances if it was taken into consideration in the balancing exercise to be conducted under s 13 of the GIPA Act.

Balancing exercise

52. I address the withheld information contained within 15 pages supplied by the Respondent to the Tribunal in the following manner:

Page 1 of 15 / 67 of 448

53. The first redacted section of page 1 of 15 / 67 of 448 of the withheld material contains an email from Megan Crockford to Brad Peebles, which is captured by the access application because Brad Peebles forwarded it to Glen Scholes on 25 November 2016.

54. In circumstances where the redacted section is an email from an external investigator, I cannot see how the Respondent’s submissions on 1(e) and 1(f) could be applied. I agree with the Applicant’s submission that the Respondent has not demonstrated that the disclosure of this information would or could reasonably be expected to prejudice a deliberative process of the Respondent agency, or prejudice the Respondent agency’s functions. In the context of the released information, with the exception of Megan Crockford’s email address, I also do not agree that the redacted information falls within the consideration of cl 3(a) or 3(b) of the Table to s 14. However, even if those public interest considerations did apply, I consider that the weight to be afforded to each of those considerations would be minimal in the circumstances of the narrow scope of the application.

55. The public interest considerations in favour of disclosure, in addition to the statutory presumption, general right to access and general public interest, are the considerations expressed at 29(1), 29(2), and 29(3) above. I give each of the considerations in favour of disclosure reasonable weight, and find therefore that the considerations against disclosure are outweighed by the public interest considerations in favour of disclosure. The information should therefore be released.

56. The second redacted section on this page contains Megan Crockford’s email address, with the Respondent relying on 3(a) and 3(b) of the public interest considerations against disclosure. It is my understanding of the Applicant’s submissions, as expressed at 43 and 44 above, that the disclosure of this information is not pressed, and this information can therefore remain redacted when the page is otherwise released.

Page 2 of 15/ 68 of 448

57. The three redacted sections at page 2 of 15 / page 68 of 448 of the withheld material contain the email address and mobile phone number of Megan Crockford, with the Respondent relying on 3(a) and 3(b) of the public interest considerations against disclosure. It is my understanding of the Applicant’s submissions, as expressed at 43 and 44 above, that the disclosure of this information is not pressed, and this information can therefore remain redacted when the page is otherwise released.

Page 3 of 15 / 69 of 448

58. The two redacted sections at page 3 of 15 / page 69 of 448 of the withheld material contain the email address and mobile phone number of Megan Crockford, with the Respondent relying on 3(a) and 3(b) of the public interest considerations against disclosure. It is my understanding of the Applicant’s submissions, as expressed at 43 and 44 above, that the disclosure of this information is not pressed, and this information can therefore remain redacted when the page is otherwise released.

Page 4 of 15 / 70 of 448

59. The redacted section at page 4 of 15 / page 70 of 448 of the withheld material contain the email address of Megan Crockford, with the Respondent relying on 3(a) and 3(b) of the public interest considerations against disclosure. It is my understanding of the Applicant’s submissions, as expressed at 43 and 44 above, that the disclosure of this information is not pressed, and this can information can therefore remain redacted when the page is otherwise released.

Page 6 of 15 / 72 of 448

60. There is no redacted information at page 6 of 15 / page 72 of 448 of the withheld material. This page can therefore be released.

Page 7 of 15 / 89 of 448 and page 8 of 15/ 90 of 448

61. The redacted section at page 7 of 15 / page 89 of 448 of the withheld material contain an email from Brad Peebles which is captured by the access application because Brad Peebles copied it to Glen Scholes on 16 November 2016. The redacted section at page 8 of 15 / page 90 of 448 is a continuation of that email. The Respondent relies on 1(e) and 1(f) of the Table to s 14 of the GIPA Act to withhold this information.

62. On my review of the information I am not convinced that the public interest consideration relied on by the Respondent apply, and I agree with the Applicant’s submission that the Respondent has not demonstrated that the disclosure of this information would or could reasonably be expected to prejudice a deliberative process of the Respondent agency, or prejudice the Respondent agency’s functions under cl 1(e) or 1(f) of the Table to s 14 of the GIPA Act. If, however, the information could cause prejudice to the Respondent’s deliberative processes or functions, I consider the weight to be afforded to these considerations to be minimal in the circumstances of the narrow scope of the application.

63. The public interest considerations in favour of disclosure are those identified by the Applicant at 24, 29, and 30 above. Even giving each of those considerations minimal weight, I find that the public interest considerations in favour of disclosure far outweigh those against, and so the information should be released.

Page 9 of 15 / 135 of 448 and page 10 of 15/ 136 of 448

64. The redacted section at page 9 of 15 / page 135 of 448 of the withheld material contain an email chain which is captured by the access application because Brad Peebles forwarded it to Glen Scholes on 1 December 2016. The redacted section at page 10 of 15 / page 136 of 448 is a continuation of that email chain. The Respondent relies on 1(e) and 1(f) of the Table to s 14 of the GIPA Act to withhold this information.

65. On my review of the information I agree that its disclosure could reasonably be expected to have the effects referred to at 1(e) and 1(f) of the Table to section 14 of the GIPA Act, and I give those factors reasonable weight. However I consider the public interest considerations in favour of disclosure as expressed at 24, 29, and 30 above should be afforded significant weight in relation to this information, and take into consideration s 15(c) and 15(d) of the GIPA Act. I find that the public interest considerations in favour of disclosure therefore outweigh those against.

Page 11 of 15 / 252 of 448 and page 12 of 15/ 253 of 448

66. The redacted sections at page 11 of 15 / page 252 of 448 of the withheld material include an email “subject” line and the contents of an email, captured by the access application because Brad Peebles and Glen Scholes forwarded the email to each other on 25 November 2016, and the email contents contains a reference to the Applicant’s workers compensation claim. The redacted section at page 12 of 15 / page 253 of 448 is a continuation of that email. The Respondent relies on 1(d), (e), (f), (g), 3(a) and 3(b) of the Table to s 14 of the GIPA Act to withhold this information.

67. The Respondent’s submissions did not refer to 1(d) or 1(g) of the Table to s 14 of the GIPA Act which refer to the information reasonably being expected to:

(d)   prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions

…

(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,

68. There is no evidence before the Tribunal to support a finding that those considerations do or could apply to the information. It is possible that the information could reasonably be expected to have the effect of the consideration at cl 1(e) in circumstances where they reveal an opinion, advice or recommendation but I can’t understand, on the material before me, how they would prejudice a deliberative process of the Respondent agency, or prejudice the effective exercise of the agency’s functions under cl 1(f). However I do agree that the information which is redacted constitutes personal information within cl 3(a) of the public interest considerations against disclosure and in my view, in relation to this information, this consideration should carry significant weight.

69. There is very little in the withheld information that has any relevance to the Applicant or her application. In my view there are no public interest considerations in favour of the disclosure in relation to the email “subject” line, other than the general public interest considerations in accessing information. To the extent that the other public interest considerations in favour of disclosure as submitted by the Applicant apply to the contents of the email, in the circumstances I give them minimal weight. Accordingly I find in relation to this information that the public interest considerations against disclosure outweigh those in favour, and the information should be withheld.

Page 13 of 15 / 297 of 448 to page 15 of 15/ 299 of 448

70. The redacted section at pages 13 to 15 of 15 / pages 297 to 299 of 448 of the withheld material contain an email chain which is captured by the access application because the most recent email in the chain was sent by Brad Peebles and copied by him to Glen Scholes on 16 November 2016. The Respondent relies on 1(e) and 1(f) of the Table to s 14 of the GIPA Act to withhold this information.

71. On my review of the information I agree that its disclosure could reasonably be expected to have the effects referred to at 1(e) and 1(f) of the Table to section 14 of the GIPA Act, and I give those factors reasonable weight. However I consider the public interest considerations in favour of disclosure as relied on by the Applicant, expressed at 24, 29, and 30 above should be afforded significant weight in relation to this information, and take into consideration s 15(c) and 15(d) of the GIPA Act. I therefore find that the public interest considerations in favour of disclosure outweigh those against, and the information should be released.

Conclusion

72. The outcome of the Tribunal’s application of the GIPA Act is to withhold from the Applicant Megan Crockford’s email address and mobile phone number from the Confidential Bundle, and withhold the information redacted at pages 11 and 12 of the Confidential Bundle filed by the Respondent on 10 December 2020. The Respondent should otherwise release the information to the Applicant.

73. The correct and preferable decision is therefore to set aside the Respondent’s reviewable decision and substitute it with this decision.

Orders

1. The Tribunal sets aside the Respondent’s reviewable decision and substitutes this decision in its place.

2. The Respondent is to provide the Applicant with access to the information in accordance with these reasons for decision within 28 days.

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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

Amendments

24 March 2021 - Representatives updated

Decision last updated: 24 March 2021