Cameron v Commissioner of Police (NSW)

[2014] NSWCATAD 13

NSW Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

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

Hearing dates:

On the papers

Decision date:

14 February 2014

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

P H Molony, Senior Member

Decision:

1. Set aside the decision under review and to remit to the Agency for reconsideration in accordance with these reasons, such reconsideration to be completed within 30 days of the publication of these reasons.

2. Pursuant to sections 64 and 66 of the Administrative Decisions Review Act 1997 paragraphs 60 and 69 of these reasons are not be disclosed to the Applicant or the public and shall not be published.

Catchwords:

Government Information Public Access - personal information - confidential information that facilitates the effective exercise of that agency's functions - 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 - applicant's personal factors

Legislation Cited:

Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Freedom of Information Act 1989
Freedom of Information Act 1982 (Cth)
Government Information (Public Access) Act 2009

Cases Cited:

AEZ v Commissioner of Police NSW Police Force [2013] NSWADT 90
Attorney-General's Department v Cockcroft (1986) 10 FCR 180
Commissioner of Police NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409
Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 28
Hurst v Wagga Wagga City Council [2011] NSWADT 307
McKinnon v Secretary, Department of Treasury [2006] HCA 45
Re JE Waterford and Department of Treasury (No 2) (1984) 5 ALD 588
Williams v Department Industry and Investment [2012] NSWADT
XZ v Commissioner of Police, NSW Police Force [2009] NSWADTAP 2

Texts Cited:

Guideline 4 - Personal information as a public interest consideration under the GIPA Act. (Office of the Information Commissioner)

Category:

Principal judgment

Parties:

Applicant - Jennifer Cameron
Respondent - Commissioner of Police, New South Wales Police Force

Representation:

Applicant in person
Respondent - A Baril, Crown Solicitor's Office

File Number(s):

123229

Publication restriction:

Paragraphs 60, 69 - see order 2

reasons for decision

Introduction

1. Ms Cameron has made an application to the Administrative Decisions Tribunal (the ADT) to review a decision made by the Commissioner of Police, NSW Police Force (the agency) under the Government Information (Public Access) Act 2009 (the GIPA Act) dated 3 May 2012.

1. On 3 January 2012 she applied the following application for access information from the Agency -

The 'time-frame' for all the information that I request would be between 2003 and 2012

1. All reports, complaints, outcomes and other correspondence (including the 'proof of computer sabotage - downloaded by IT Officer) - relating to Incident/Injury 18/09/2003 and 18/04/2005 regarding myself, Nicole SMART (nee CARRICK) and Kristen MURCHIE. SAP INCIDENT NUMBERS = 38195 AND 49246. (All information between years 2003 and 2012)

2. All reports, correspondence and emails relating to formal Complaint lodged by email to Kirsten HORT by myself regarding Jodie BISHOP, Manager Far South Coast LAC. (All information between years 2003 and 2012)

3. All reports, correspondence and emails relating to all the Positions applied for by myself regarding the Far South Coast LAC and Southern Region Office (Including the Chain of Command comments). . (All information between years 2003 and 2012)

4. 4. All Reports, Correspondence, emails relating to my 'Special Circumstance' Reports - relative to the Far South Coast LAC and Southern Region Office. (All information between years 2003 and 2012)

5. All Reports written by the Manager, Far South Coast LAC and Region Manager, Southern Region that relate to myself, including all reports, correspondence and other information relating to my Transfer from the Far South Coast LAC, Applications for positions, Special Circumstances requests. . (All information between years 2003 and 2012)

6. Any reports or correspondence (inclusive of Disciplinary Action) relating to Nicole SMART (nee CARRICK) and Kristen MURCHIE in relation to me. . (All information between years 2003 and 2012)

1. The Agency determined that request on 3 May 2013. It located 50 records, comprising 175 pages, which it considered were captured by Ms Cameron's access application. It released the majority to her under the GIPA Act, but withheld 17 records on the basis that there was an overriding public interest consideration against disclosure of them.

1. Ms Cameron then sought review in the ADT. There followed four planning meetings at which the issues were discussed and resolved in part. Further searches were undertaken by the Agency which resulted in additional information responsive to Ms Cameron's request being found in November 2012, December 2012, February and March 2013 and in April and May of 2013. The vast majority of that information has also been released to Ms Cameron in accordance with orders agreed by the parties and made by the ADT.

1. At the last planning meeting held in May 2013 it was agreed that the remaining issues in dispute were such that the Tribunal could adequately determine them on the papers without a hearing. Directions were then made for the making of final submissions by the parties, before a determination on the papers. Those submissions closed at the end of July 2013.

1. On 1 January 2014, the NSW Civil and Administrative Tribunal (NCAT) was established. On its establishment the ADT was abolished (see s 7 and cl 3 of Schedule 1 of the Civil and Administrative Tribunal Act 2013 (the CAT Act). By reason of cl 7 of Schedule 1 of the CAT Act, Ms Cameron's application is taken to be an application before the NSW Civil and Administrative Tribunal (NCAT), with the provisions of the GIPA Act continuing to apply.

1. As required by s 50 of the CAT Act I am satisfied that the issues for determination in this case can be adequately determined in the absence of the parties by considering the written submissions, statements and material provided by them.

Material before the Tribunal

1. In making this determination the Tribunal has considered the following material:

• Ms Cameron's ADT application and attachments.
• A folder of submissions and materials provided by Ms Cameron which includes her statement (at Tab 8).
• Bundle of documents faxed by Ms Cameron - including preliminary submissions - dated 3 October 2012.
• The statement of Kristen Holt, Business Manager, Southern Region Command, New South Wales Police Force (NSWPF) dated 27 May 2003.
• Statement of Warren Chan, Paralegal, Crown Solicitors Office, dated 27 May 2013.
• The Agency's schedule of withheld documents.
• The Agency's submission dated 27 May 2013.
• The Agency' submissions in reply dated 4 July 2013.
• Confidential copies of the documents containing the information in issue, provided to the Tribunal alone.

Factual Background

1. Since 2001 Ms Cameron has been a civilian employee of the NSWPF. Initially she was employed at Far South Coast Local Area Command (FSCLAC). Unfortunately, over a period of time she became embroiled in workplace conflict, complaining that she was unfairly treated by others in her workplace. Both Ms Cameron and others involved in that conflict required time off work and made workers compensation claims as a consequence of the dispute. Tensions in the workplace were high. Ms Cameron was also physically unwell at various times.

1. Ms Cameron says that in 2005 she was persuaded to transfer out of that workplace to a civilian position in Sydney. She believes she was "conned" into doing so, being led to wrongly believe that she would receive the transferred officer's award. This was not the case.

1. As a consequence Ms Cameron says that the move has caused her considerable personal and financial difficulties. She has a home on the south coast but has to live in inadequate rented accommodation in Sydney. Her adult son, who she says is reliant on her, is living in her home. She travels down the coast each weekend at considerable cost and difficulty.

1. For a number of years she has been applying for all positions that come up for civilian personnel in the FSCLAC. She says that she is well qualified for a number of these positions, but has been unsuccessful in obtaining one, even one below her present grade. She believes that she has been discriminated against.

1. She indicated that she was seeking information relating to these events with the idea of pursuing whatever remedies might be available to her via the Ombudsman or the Anti-Discrimination Board.

The Government Information (Public Access) Act 2009

1. The GIPA Act commenced operation on 1 July 2010. The objects of the 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.

1. "Government information" is given a wide meaning (s 4) being "information contained in a record held by an agency." The NSWPF is such an agency: see s 4 and the definition of "public authority" in Schedule 4, clause 2.

1. The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5). Applicants for access to government information have a legally enforceable right to be provided with access to that information, unless there is an overriding public interest against disclosure (s 9).

1. With respect to other government information, the Act establishes a principle that there is public interest in favour of disclosure (s 12(1)). Section 12(2) says that public interest considerations in favour of disclosure are not limited. It provides -

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.

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.

1. There will only be an overriding public interest against disclosure when the public interest test in s 13 is satisfied. It 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.

1. In considering whether there is an overriding public interest against disclosure s 16 provides that the following principles apply -

(a) Agencies must exercise their functions so as to promote the object of this Act.

(b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner.

(c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.

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

(e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.

1. The public interest considerations against disclosure are limited to those set out in the Table to s 14. Section 14(2) provides that -

The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

1. Before deciding an access application which, among other things, seeks access to information that includes personal information about a person, s 54 requires that the agency take such steps as are reasonably practicable to consult with that person before providing access. Any objection to disclosure must be taken into account in the course of determining whether there is an overriding public interest against disclosure of government information: s 54(5). In this case the staff of the agency who were the subject of Ms Cameron's complaints object to their personal information being disclosed.

1. Section 55 provides that personal factors relating to an applicant can be taken into account in deciding to grant access. In limited circumstances they may also be taken into account in refusing access. That section provides -

(1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section:

(a) the applicant's identity and relationship with any other person,

(b) the applicant's motives for making the access application,

(c) any other factors particular to the applicant.

(2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information.

(3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14.

(4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for.

(5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information.

(6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person.

Note. An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73.

1. In exercising functions under the Act s 3(2) instructs that -

It is the intention of Parliament:

(a) that this Act be interpreted and applied so as to further the object of this Act, and

(b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.

1. Section 73 requires that access be unconditional. Section 72 is concerned with the form of access. It provides -

(1) Access to government information in response to an access application may be provided in any of the following ways:

(a) by providing a reasonable opportunity to inspect a record containing the information,

(b) by providing a copy of a record containing the information,

(c) by providing access to a record containing the information, together with such facilities as may be necessary to enable the information to be read, viewed or listened to (as appropriate to the kind of record concerned),

(d) by providing a written transcript of the information in the case of information recorded in an audio record or recorded in shorthand or other encoded format.

(2) The agency must provide access in the way requested by the applicant unless:

(a) to do so would interfere unreasonably with the operations of the agency or would result in the agency incurring unreasonable additional costs, or

(b) to do so would be detrimental to the proper preservation of the record, or

(c) to do so would involve an infringement of copyright, or

(d) there is an overriding public interest against disclosure of the information in the way requested by the applicant.

Note. Decisions about how to provide access are reviewable under Part 5.

1. Section 80 sets out a series of decisions that are reviewable decisions under the Act. It relevantly provides -

The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part:

(a) ...

(d) a decision to provide access or to refuse to provide access to information in response to an access application,

(e) a decision that government information is not held by the agency,

...

1. A person aggrieved may seek a review by the Tribunal (s 100). Such applications are to be made within 8 weeks of the decision (s 101(1)) or within 4 weeks of the completion of a review by the Information Commissioner (s 101(2)).

1. Once a decision is subject to review before the Tribunal it cannot be the subject of a review by the Information Commissioner (s 98).

1. In any review of a reviewable decision s 105 places the burden of justifying the decision on the agency concerned. It provides -

(1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section.

(2) If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review.

(3) If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review.

1. The Tribunal's function on review under s 63 of the Administrative Decisions Review Act 1997 is to make the correct and preferable decisions having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.

1. Section 107 sets out the procedure to be followed by the Tribunal in dealing with public interest considerations. It relevantly provides -

(1) In determining an application for ADT review, the ADT 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.

(2) On an ADT review, the ADT 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 ADT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.

...

1. In Ms Cameron's case because it will be necessary to discuss the nature of some of the information that is said to be the subject of an overriding public interest consideration against disclosure, which s 107 prohibits me disclosing, I will make orders prohibiting the disclosure of those parts of my reasons for decision to Ms Cameron and to the public. My power to make such orders is found in sections 64 and 66 of the Administrative Decisions Review Act 1997 combined with s 107(2) of the GIPA Act. Those suppressed parts of my decision will be available to the Respondent and to an Appeal Panel, in the event of an appeal.

Issues requiring determination

1. The public interest considerations against disclosure relied on by the agency in this case are to be found under the categories of "Responsible and effective government" and "Individual rights, judicial processes and natural justice" in the Table to s 14. They are -

1 Responsible and effective government

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally):

...

(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.

...

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

...

3 Individual rights, judicial processes and natural justice

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects:

(a) reveal an individual's personal information,

...

1. The Agency claims that one or more of these public interest considerations against disclosure applies to each piece on information in issue.

1. In addition, Ms Cameron has in the past raised issues concerning whether or not the Agency has now conducted an adequate search for information falling within the scope of her initial request. The Agency has addressed that issue in evidence and submissions. Ms Cameron has not. I note that the Agency says it has now searched all available resources for information responsive to Ms Cameron's request. It is clear that the original search was insufficient as a significant amount of information has since been found and disclosed. On the material available to me I am satisfied that the search has now been sufficient and thorough.

1. With respect to the information withheld, I have read the confidential copies of the documents carefully.

1. The Tribunal's task is to determine whether there is an overriding public interest against disclosure of the information in those documents in accordance with the Act, paying due regard to the principles in s 16. This requires that the public interest consideration both in favour and against disclosure be identified, so that the question of whether, on balance, the public interest considerations against disclosure outweigh those in favour of disclosure can be determined. Unless there is an overriding public interest against disclosure the presumption in favour of disclosure applies (s 5).

Public interest considerations in favour of disclosure

1. Public interest considerations in favour of disclosure are set out in s 12. The section makes it clear that those considerations are not limited.

1. In my view the following public interest considerations in favour of disclosure apply when considering the documents in issue -

• The general public interest in favour of disclosure of government information.
• The information is personal information of the person to whom it is to be disclosed.
• Disclosure of the information could reasonably be expected to enhance government accountability in the management of its human resources, and in particular provide transparency and accountability with respect to employee selection procedures.
• Disclosure of the information could reasonably be expected to inform the public about the operations of the Agency, particularly its efficient and fair management of employee discipline, of issues relating to bullying at work, and of interpersonal relations between employees of the Agency that affect the efficiency of its operations.

1. Ms Cameron also submitted that 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. Having considered all the information in issue I am not persuaded that this public interest consideration in favour of disclosure applies.

Public interest considerations against disclosure

1. The public interest considerations against disclosure are limited to those set out in the Table to s 14. Because the agency bears the onus of justifying its decision to refuse Ms Cameron access to the documents, it has the burden of establishing that the public interest considerations against disclosure it relies on apply. It also bears the burden of establishing that, on balance, they outweigh the public interest considerations in favour of disclosure.

1. In submissions the agency identified three public interest considerations against disclosure upon which it relied. It is necessary to consider each of those public interest considerations against disclosure separately and then to consider whether they could reasonably be expected to exist with respect to each piece of information in issue.

Could reasonably be expected

1. Mention must be made of the requirement, common to all the public interest considerations against disclosure in the Table to s 14, that disclosure "could reasonably be expected to" have the nominated effect. The words "could reasonably be expected to" have been the subject of considerable judicial consideration with respect to their use in the Freedom of Information Act 1989 and the Freedom of Information Act 1982 (Cth). They are to be given their ordinary meaning: see Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 28 and Attorney-General's Department v Cockcroft (1986) 10 FCR 180. In that case, Bowen CJ and Beaumont J explained, at 190, that the words -

... require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like.

1. Hayne J pointed out in McKinnon v Secretary, Department of Treasury [2006] HCA 45 that, at [61] -

... when their Honours said, as they did, that the words required a "judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous," to expect certain consequences, they are not to be understood as having used the latter expression as a paraphrase of the former. Rather, they are to be understood, and have since been understood, as doing no more than drawing an emphatic comparison. To do more would have been, as their Honours correctly said, "to place an unwarranted gloss upon the relatively plain words of the Act". And the same approach should be taken to the expression "reasonable grounds" when it is used in s 58(5) of the Act.

See also XZ v Commissioner of Police, NSW Police Force [2009] NSWADTAP 2.

1. It is necessary for the Agency to demonstrate, with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect.

To reveal an individual's personal information

1. Personal information is defined in clause 4 of Schedule 4 -

(1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.

(2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics.

(3) Personal information does not include any of the following:

(a) information about an individual who has been dead for more than 30 years,

(b) information about an individual (comprising the individual's name and non-personal contact details) that reveals nothing more than the fact that the person was engaged in the exercise of public functions,

(c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause.

1. 'Reveal' is defined in Clause 1 of Schedule 4 -

reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).

1. The Information Commissioner may issue guidelines about public interest considerations against disclosure, to assist agencies, but may not add to the list of considerations (s 14(3)). The Office of the Information Commissioner has issued Guideline 4 - Personal information as a public interest consideration under the GIPA Act. Section 15(b) requires that decision makers have regard to guidelines.

1. In the present case the Agency claims that this public interest consideration against disclosure applies to all the information in issue.

1. First document 108 is an internal email dated March 2010 with respect to an application received by two candidates - one of whom was Ms Cameron - for a position with the FSCLAC dated 2 March 2010. Ms Cameron has been given access to the document but the name of the other applicant for the position has been deleted. There can be no doubt that the individual's name is personal information. Its release would reveal that individual's application for and participation in the selection process. One could reasonably expect release to reveal that personal information.

1. In a similar vein, pages 123 to 128 contain a chain of internal emails and an attached report concerning the consideration of applications by two unsuccessful candidates for appointment to a temporary position of Executive Officer within the FSCLAC - one of whom was Ms Cameron. Once again Ms Cameron has been given access to the emails and report, with the exception that the name of the other candidate for the position has been redacted. That individual's name is personal information. Its release would reveal that individual's application for and participation in the selection process, and the lack of success.

1. The documents at 129 to 131 constitute the cull sheet prepared by the selection panel for the executive officer position. It contains statements as to the knowledge members of the panel had of each of the applicants, and then records the Panel's views with respect to each candidate and their ability to fulfil each of six specified selection criteria. It concludes by saying that neither candidate satisfied the selection criteria. Ms Cameron has been given access to the majority of this document, subject to redaction of:

• Identifying information with respect to the other candidate.
• The Panel's views with respect to whether or not the other candidate met the selection criteria and why.

1. Once again the name of the other candidate is undoubtedly personal information. Its release would reveal that other individual's application for and participation in the selection process, and opinions expressed by the panel that resulted in a lack of success. One could reasonably expect release to reveal that personal information.

1. With respect to the Panel's views a number of the comments refer to the other candidate specifically by name. If all identifying information relating to the other candidate were removed from the pages, I consider that the remaining comments would not lead to the identity of the other candidate being identifiable, with the result that the comments would not then contain personal information relating to an identified individual. While the other candidate is identified they have the character of personal information.

1. Page 162 is a note of a conversation with an employee. It is marked confidential and includes the name and contact details of a mediator and of Ms Cameron. These have been redacted. One could reasonably expect release to reveal that personal information.

1. Pages 172 to 174 contain a discussion from a local area manager of interpersonal issues affecting the relationships between three members of staff, including Ms Cameron, and discussing how resulting performance concerns were to be addressed. Identifying information relating to the other staff members has been redacted, as has certain information regarding their health, whereabouts, and details of actions taken to address their performance issues. I accept that all of this is personal information relating to those individuals. One could reasonably expect release to reveal that personal information.

1. Finally, pages 51 to 55 contain a statement made by the same local area manager with respect to a worker's compensation claim made by one of Ms Cameron co-workers. All but the formal parts of that statement have been redacted. I have read it carefully. It contains comments relating to the work history, work performance duties and well-being of that employee. While there are passing references to Ms Cameron they are all in the context of the provision of information relating to the other employee, and cannot be readily separated from the whole. I accept that all of this is personal information relating to the other individual. One could reasonably expect release to reveal that personal information.

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

1. This is found at point 1(d) of the Table to s 14.

1. In Commissioner of Police NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [33] the Appeal Panel outlined the general approach to be adopted in determining whether or not information was confidential information -

In our view, the question of whether the information supplied is 'confidential information' must be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received. The agency's case is that all information received by the triple zero service at the point of receipt is treated as confidential. The agency's case is that members of the community expected the triple zero service to be a confidential service.

1. The Agency claims that some of the information in page 162 is protected by this public interest. Page 162 is a note of a conversation that occurred in July 2004 with an employee about employment related issues concerning Ms Cameron and that employee, and means of addressing them. It is marked confidential. Relying on this public interest the Agency has deleted from it the names of other employees of the Agency, and a record of a discussion she had with one of them regarding proposed means of addressing the problem. In her statement Ms Hort said -

27. I see that the document is marked "Confidential". I see from the document that this is a record of what is now called a "professional discussion" within NSWPF human resources. A "professional discussion" is commonly a discussion about someone's performance and/or conduct and how he or she might better assist the agency on a performance related issue. It is my unvarying practice, when I have a "professional discussion" with a member of NSWPF staff, to assure the person with whom I have the discussion that the conversation will remain confidential. This is why I mark "Confidential" on any notes I take as a result of a "professional discussion".

28 This information was provided to me in confidence in the course of an attempt by me to informally assist, in my role as Business Manager, in resolving the dispute and personality issues between [.....] and Ms Cameron.

1. Subject to suppression order

1. In my view the redacted portions of the note are more focussed on the resolution of issues, than direct performance issues.

1. Importantly Ms Hort's evidence regarding the confidentiality of this discussion refers to her own practice and makes no reference to any policies or procedures of the Agency that require that confidentiality attach to such conversations. The importance of this is that in establishing confidentiality the decided cases often look at the policies and practices of the Agency, rather than that of individual employees: see the discussion in Williams v Department Industry and Investment [2012] NSWADT 192. Another factor commonly found in the decided cases is a promise of confidentiality made by the Agency: e.g. AEZ v Commissioner of Police NSW Police Force [2013] NSWADT 90. In this case Ms Hort relied on her practice of assuring persons in such discussions that the information they communicate will remain confidential, rather than on any express recollection, aside from the fact that the note of the conversation is marked confidential.

1. Because I have characterised the redacted notes as being concerned with dispute resolution processes, rather than directly with performance issues, I am inclined to the view that in the circumstances of this case the discussion was intended to be confidential. I would not necessarily reach the same conclusion had I concluded that the discussion concerned performance issues.

1. I accept Ms Hort's evidence that release of the redacted information could reasonably be expected to prejudice the future supply to the agency of similar confidential information that facilitates the effective exercise of that agency's functions.

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

1. This is found at point 1(e) of the Table to s 14.

1. The deliberative processes of an agency are its thinking processes - including those by which it seeks internal input and discussions as to possible courses of action, evaluates the wisdom of them, and the relative benefits and detriments of them: see the discussion in Re JE Waterford and Department of Treasury (No 2) (1984) 5 ALD 588.

1. The Agency claims that this public interest consideration against disclosure applies to the redacted information in pages 154 to 159. This is comprised of -

• A précis of events relating to Ms Cameron from which the names of two individuals have been redacted.
• A chain of emails written in June 2009 between a number of officers of the Agency from which the vast majority of the information has been redacted.

1. In her evidence Ms Hort described this as follows -

34. IAU 157-159 (produced in part) is an email from Ms Liz Hepburn, Local Area Manager, to me, dated 17 June 2009. In this email, Ms Hepburn seeks policy and human resources guidance from me (in my role overseeing human resources-related issues) about the correct procedures for the creation and use of employment eligibility lists and, particularly, the application of the "Guidelines for use of Eligibility Lists in the Administrative Officer recruitment process". It is common for Local Area Managers to "funnel" such queries through the Business Manager, as Business Managers are best placed to know who within NSWPF has the correct kind of expertise to respond effectively to these queries. Also, it allows Business Managers to keep abreast of significant industrial issues as they arise.

35. IAU 156-157 (produced in part) is an email from me to Mr Joseph Vass, Manager, Industrial Relations Unit and Ms Hazel Vergos, Industrial Officer, dated 18 June 2009. In this email, I request urgent advice in relation to the issues raised by Ms Hepburn in her email (IAU 157-159). In my email, I set out a detailed summary of the specific issues which arose in respect of this human resources matter.

36. IAU 155-156 (produced in part) is an email from me to Ms Hepburn and Superintendent Gersbach dated 19 June 2009 in which I relay the information received from Ms Vergos.

37. As a Business Manager, in the course of making a variety of decisions in connection with my role, I am frequently required to seek policy and Industrial advice (for myself and for Local Area Managers and others working under me) from officers within NSWPF with specialised knowledge of such policy and Industrial matters.

38. Even though the human resources issue the subject of these emails has concluded, I am concerned that the disclosure of information about this consultative process, and the giving of policy (particularly, human resources and industrial) advice by experts within NSWPF, might prejudice the deliberative processes in which I, other Business Managers and others in the NSWPF human resources area have to engage as part of our role within NSWPF.

1. Subject to suppression order

1. I accept that the information in issue was exchanged as part of a deliberative process within the Agency.

1. Ms Hort gave evidence that this exchange of communication was given in the expectation that it would not be the subject of public scrutiny. She said that if access were granted to such advice she would be inclined to seek it orally and avoid noting it so that it could not subsequently be disclosed. This she said would inhibit her ability when making similar decisions in the future. That evidence has not been disputed by Ms Cameron. I accept that it could reasonably be expected that disclosure of the email chain could prejudice a deliberative process of the agency.

1. With respect to page 154 I am inclined to the view - given that only names have been redacted from it - that those names should properly be subject to the personal information public interest consideration against disclosure.

Personal factors to be taken into account

1. Section 55 relevantly provides that I can take into account defined personal factors of Ms Cameron when considering whether there is an overriding public interest consideration against disclosure to the extent that they are relevant to the consideration of the public interest considerations against disclosure in clause 3(a) the Table to s 14. Those factors are -

• the applicant's identity and relationship with any other person
• the applicant's motives for making the access application
• any other factors particular to the applicant.

1. Those personal factors can also be taken into account as factors favouring granting access to Ms Cameron.

1. In Ms Cameron's case I think these factors are somewhat of a two-edged sword. Her central motivation in trying to understand why she cannot gain employment in the FSCLAC is a factor favouring access. The fact that the information involves access to the personal information of others with whom she has previously worked and with whom she was in dispute, is a countervailing factor, which I consider deserves equal weight.

Balancing the public interests

1. It is convenient to balance the public interests with respect to the information in pages 154 to 159 first. There is only one public interest consideration against disclosure with respect to those pages, namely that release would reveal a deliberation or consultation in a way that would prejudice the deliberative processes of the Agency. I accept that this is a public interest consideration deserving of some weight. Despite Ms Hort's arguments to the contrary, the fact that more than four years have passed since the consultation in issue took place, in my view, reduces the weight that should be given to this public interest.

1. It is to be weighed against a number of competing public interest considerations in favour of disclosure. The first of these is that the information in issue contains information and opinion relating to Ms Cameron; i.e. it contains her personal information. In my view this is a factor deserving considerable weight. Secondly, release could reasonably be expected to enhance government accountability in the management of its human resources, and in particular provide transparency and accountability with respect to employee selection procedures. Given that selection processes within the Agency are intended to be based on merit and its selection procedures transparent, I think that significant weight also attaches to this public interest.

1. The task of weighing these competing public interests is not a simple one and is not a matter capable of mathematical calculation: Hurst v Wagga Wagga City Council [2011] NSWADT 307. In my opinion, when the factors in favour of and against disclosure are weighed and then considered, those in favour of disclosure outweigh those against. As a consequence pages 154 to 159 should be released to Ms Cameron with only the name of the individual that appears in the third row of page 154 deleted. This is so because there is a public interest in preventing the disclosure of identifying personal information, especially when, as here, the individual whose information has been redacted have been in significant conflict with Ms Cameron in the past.

1. Next I wish to turn my attention to page 162. This contains information that the Agency has redacted on the basis that it contains personal information of a person other than Ms Cameron and confidential information provided by that person relating to a dispute resolution process. In my view both these are factors deserving considerable weight. In favour of disclosure is that release could reasonably be expected to reveal how the Agency manages issues relating to bullying at work, and interpersonal relations between employees of the Agency that affect the efficiency of its operations. The weight attracted by this factor is lessened by the fact that it concerns matters that are 10 years past, thereby casting its relevance to current management practices into doubt. As a consequence I do not consider that this factor merits significant weight.

1. As a result I consider that the public interest consideration against disclosure of the redacted information outweighs that in favour of disclosure.

1. There is one small exception to this. Three entries at the bottom of page 162 contain contact information relating to Ms Cameron. It is her personal information not that of any one else. It should be released.

1. Finally, it is necessary to consider the balance of the redacted information all of which is subject to a public interest consideration against disclosure on the basis that disclosure would reveal the personal information of other employees of the Agency. I have already indicated that I consider the protection of personal information from disclosure to be a factor meriting considerable weight. (It is I think important to note that the Agency has been assiduous in releasing to Ms Cameron personal information that relates to her, whenever possible.)

1. The public interest considerations in favour of disclosure that I can identify with respect to this information are that some of it contains (a) information concerning how the Agency managed interpersonal conflicts between staff some nine or more years ago, and (b) with respect to positions Ms Cameron applied for, that release could reasonably be expected to enhance government accountability in the management of its human resources, and in particular provide transparency and accountability with respect to employee selection procedures. The former is particularly applicable to pages 172 to 175 and 51 to 55, while the later applies to the balance of the redacted information in issue. Both of these public interest considerations merit some weight, although the fact that they relate to matters some years past reduces the public interest in their disclosure, and lessens their relative weight.

1. On balance I conclude that the public interest consideration against disclosure of this redacted personal information outweighs the public interest considerations in favour of disclosure.

Conclusion

1. In summary I have accepted the Agency's arguments with respect to the public interest consideration against disclosure of personal information and of confidential information that facilitates the exercise of the Agency's functions. I have not accepted that the other public interest consideration against disclosure relied on by the Agency outweighs the public interest considerations in favour of disclosure.

1. I will remit the decision to the Agency for consideration in accordance with these reasons, such reconsideration to be completed within 30 days of their publication.

Orders

The Tribunal makes the following orders -

1. Set aside the decision under review and to remit to the Agency for reconsideration in accordance with these reasons, such reconsideration to be completed within 30 days of the publication of these reasons.

2. Pursuant to sections 64 and 66 of the Administrative Decisions Review Act 1997 paragraphs 60 and 69 of these reasons are not be disclosed to the Applicant or the public and shall not be published.

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

14 May 2014 - typographical error, reference to s.78 to be s.72

Amended paragraphs: Paragraph 24

Decision last updated: 14 May 2014