Chief Executive Officer, State Rail Authority v Woods (No. 2) (GD)

[2003] NSWADTAP 39

Appeal Panel - Internal

CITATION:	Chief Executive Officer, State Rail Authority v Woods (No. 2) (GD) [2003] NSWADTAP 39
PARTIES:	APPLICANT Chief Executive Officer, State Rail Authority RESPONDENT Lindsay Woods
FILE NUMBER:	029057
HEARING DATES:	14/08/2003
SUBMISSIONS CLOSED:	08/14/2003
DATE OF DECISION:	09/18/2003
DECISION UNDER APPEAL:	Woods v Chief Executive Officer, State Rail Authority [2002] NSWADT 253
BEFORE:	O'Connor K - DCJ (President); Montgomery S - Judicial Member; Bolt M - Member
CATCHWORDS:	access to documents - confidential material - Freedom of Information Act - access to documents - confidential material
MATTER FOR DECISION:	Pricipal
FILE NUMBER UNDER APPEAL:	023048
DATE OF DECISION UNDER APPEAL:	12/03/2002
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Chief Executive Officer, State Rail Authority v Woods (GD) [2003] NSWADTAP 25 Colakovski v Australian Telecommunications Commission (1991) 29 FCR 429 Rouvinetis v Director General, Department of Housing [2001] NSWADT 155 Woods v Chief Executive Officer, State Rail Authority [2002] NSWADT 253
REPRESENTATION:	APPLICANT M Leeming, counsel RESPONDENT K Woods, agent
ORDERS:	Determination under review affirmed

REASONS FOR DECISION

1 This decision deals with an application by the respondent, Lindsay Woods (Mr Woods) for review of a determination by the appellant, the State Rail Authority (SRA) to refuse access to certain documents requested under the Freedom of Information Act 1989 (FOIA).

2 In Chief Executive Officer, State Rail Authority v Woods [GD) [2003] NSWADTAP 25 the Appeal Panel set aside the decision of the General Division in Woods v Chief Executive Officer, State Rail Authority [2002] NSWADT 253 granting access to the documents. Leave was given under s 113(2)(b) of the Administrative Decisions Tribunal Act 1997 for leave to be given to extend the appeal to the merits.

3 This decision deals with the merits appeal.

4 The request was made 18 October 2001 for:

‘ … a complaint submitted by the staff at Wyong depot …

I wish to make application … for a copy of the subject document, referred to by Rebekah Davidson [an officer of the SRA] in her letter postmarked 11 October 2001, and including all written complaints made by the Revenue Protection Officers in which I am named as the person complained of or about …’.

5 Access to the document was refused on 29 November 2001, with the determination on internal review dated 21 December 2001 confirming that decision. On 26 February 2002 Mr Woods filed his application in the Tribunal.

6 We will not recount at length here the background to this application. Essentially the SRA has withheld a long document of several pages containing a statement of grievances of co-workers over the workplace conduct of Mr Woods. (The long document has been referred to in the proceedings to date as ‘the petition’ and this usage will be retained.)

7 The petition belongs to the period around August and September 2001. Several co-workers signed it. Some did not. They all worked in the revenue protection unit at Wyong. The trigger for the document was the commencement of a disciplinary investigation into the two most senior officers at Wyong who were their managers, most importantly a Mr Chapman. The investigation flowed from formal complaints made by Mr Woods and another co-worker Mr Brew. The officers who signed the document complained of various aspects of the conduct of Mr Woods and Mr Brew, and demanded that action be taken against them.

8 On 12 September 2001, shortly after receiving the document, SRA managers made the decision to relocate Mr Woods and Mr Brew, which decision took immediate effect commencing 13 September 2001. They were relocated from Wyong to Sydney Central. Mr Woods saw this as a form of disciplinary sanction taken against him because of acceptance, at least to some degree, of the substance of the allegations.

9 The SRA also withheld a series of short documents signed by the signatories to the petition. Mr Woods’ interest in getting to see the petition is so as to find what allegations were made against him. (The short documents are no longer sought by Mr Woods, see further below.) The SRA's evidence before the original Tribunal was that relocation was seen as an available management discretion to deal with circumstances where there was friction and hostility between workers who needed to work as a team to be effective. Revenue protection officers worked as teams checking tickets and enforcing regulations across the rail system. They are now known as transit officers.

10 The SRA’s position was that it had simply moved Woods and Brew for that reason and because, it said, over concerns in relation to their health. The SRA did not regard this as a form of disciplinary action; no view had been formed as to the substance of the allegations contained in the petition and no formal disciplinary action had been taken. By the time of the present merits hearing, almost two years later, much had changed. The SRA remained of the view that it was not in the interests of the stability of the work environment for the petition to be released. The SRA remained concerned to protect the privacy of the authors.

11 Claims for Exemption: The SRA claimed that the document was exempt on three grounds: one, unreasonable disclosure of personal affairs (cl 6 to Schedule 1 of FOIA); two, disclosure of information received in confidence contrary to the public interest (cl 13); and three, substantial adverse effect on the personnel management interests of the agency contrary to the public interest (cl 16).

12 Privacy Exemption: Clause 6 provides:

‘ 6 Documents affecting personal affairs

(1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).

(2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made.’

13 The Tribunal considered at [47] that the relevant case-law did not confer protection where the personal opinions in a document and the document is one where ‘a person's opinion about the work performance of another arises as a result of the position, office or public activity which the person occupies, it primarily concerns their business or professional relationship, rather than any private or personal relationship between them. Similarly, while the opinion may arise from incidents they have witnessed at work, that does not mean that the information concerns their personal affairs.’ The Appeal Panel disagreed with this proposition, at least as it was applied in this case. The Appeal Panel ruled that:
‘31 While we accept that ultimately the question of whether the contents of a document involve a matter of ‘personal affairs’ is one of fact (see the Tribunal's reasons at [37]), in this instance we are satisfied that the Tribunal erred in the approach that it took the question of the construction of what type of information could possibly fall within the scope of those words. It did not, we consider, adequately differentiate between reports that are in the nature of the expression of privately-held concerns about workplace performance; and those that are made in the course of the exercise of official responsibilities.

32 As noted earlier, the Tribunal did not go on to consider the question of whether the disclosure of such information would be unreasonable. That is an issue going to the merits. We indicated to the parties at hearing that we would first form a view as to the legal issues, before giving any consideration of extension of the appeal to the merits. This matter is returned to later in the reasons.’

14 The Appeal Panel is satisfied that the documents in issue in this case are ones of a kind to which the above exemption can be applied. They are expressions by co-workers of privately held concerns about workplace performance of two colleagues who are at the same level as them (with one exception). They are not expressions of concern communicated by a manager. It will be seen therefore that the Appeal Panel now must assess whether it would be ‘unreasonable’ to disclose the contents of the petition.

15 The Appeal Panel’s second concern in relation to the Tribunal’s decision related to its finding as to the procedure laid down by the SRA’s Grievance Resolution Policy. This matter was important as it went to the significance or otherwise of any operational prejudice that might be suffered by the SRA if it released the documents. Both of these exemptions call, if other preconditions are met in relation to the document, for questions of prejudice to government interests to be examined.

16 Confidential Material Exemption: Clause 13, as relevant, provides:

‘ 13 Documents containing confidential material

A document is an exempt document:

…

(b) if it contains matter the disclosure of which:

(i) would otherwise disclose information obtained in confidence, and

(ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and

(iii) would, on balance, be contrary to the public interest.’

17 Operations of Agencies Exemption : Clause 16, as relevant, provides:
‘ 16 Documents concerning operations of agencies

A document is an exempt document if it contains matter the disclosure of which:

(a) could reasonably be expected:

…

(iii) to have a substantial adverse effect on the management or assessment by an agency of the agency's personnel, or

(iv) to have a substantial adverse effect on the effective performance by an agency of the agency's functions, …

(b) would, on balance, be contrary to the public interest.’

18 The Tribunal had in each case accepted that the document satisfied the preconditions of each of these exemptions but it was not satisfied that release would, on balance, be contrary to the public interest. As noted earlier, its primary reason for reaching that conclusion related to natural justice.

19 It construed the Grievance Resolution Policy as conferring a right on subjects of allegations to see the allegations made against them. It referred to a particular clause in the policy in support of that interpretation. The SRA had submitted to the Appeal Panel that the interpretation involved a misconstruction of the policy. There was a distinction drawn in the SRA’s grievance resolution procedures between those that are the subject of an administrative response by management and those that give rise to some form of disciplinary action. The degree to which allegations were disclosed related to the extent that was required by procedural fairness. The Tribunal said:

‘66 The three major concerns of management are that release of the petition would:
· lead to industrial action;

· increase the level of harassment and intimidation and thus exacerbate the existing conflict; and

· make employees less likely to complain or co-operate with an investigation because of concerns about confidentiality.

…

69 The agency has gone to significant lengths to address the conflict that has arisen in the workplace. Even if release of the petition does exacerbate the existing conflict in the short term, it is likely, given the steps already taken by management, that the underlying concerns fuelling the conflict can be addressed and resolved. In my view any short term exacerbation of the conflict can be effectively addressed and will not have a substantial adverse effect on the management or assessment of personnel or on the effective performance of the agency's functions.

70 The agency's concern that employees will be less likely to complain or co-operate with an investigation because of concerns about confidentiality, has been addressed above. Since December 2001, the agency has had a Grievance Resolution Policy which sets out the relevant principles of confidentiality in relation to grievances. That policy provides that confidentiality is essential, but also envisages that a respondent to a grievance will be provided with full details of any grievance prior to any action being taken. Given this policy and the provisions of the FOI Act, in particular the exemptions afforded to "protected disclosures" under Clause 20(d) of Schedule 1, release of the petition would not have a substantial adverse effect on the management or assessment by an agency of the agency's personnel or on the effective performance of the agency's functions.’

20 The Appeal Panel said:
‘56 The SRA says that the Tribunal misconstrued the way the policy applied to this case in reaching the conclusion that the policy ‘envisages that a respondent to a grievance will be provided with full details of any grievance prior to any action being taken’. The SRA submits that the policy properly construed only provides for the grievance to be disclosed to the subject of the grievance in so far as it is necessary to resolve the grievance and to afford the subject natural justice. This would only become necessary, the SRA claims, where it determines to investigate or take action in relation to the substance of the complaint (i.e. move down the track that may give rise to disciplinary charges).

57 It is clear we consider, especially from the evidence of Ms Davidson, that there is a two stage approach adopted by the SRA in relation to the handling of grievances and a graduated approach taken to the question of whether the confidentiality of the communication as between the author and the SRA will be varied. At the first stage the grievance is treated as confidential as between the maker (or author) of the grievance and the recipient(s) in management of the grievance. There is a point at which a decision is taken to treat the grievance as involving either, one, a relatively minor issue that can be addressed (by what is described in the Grievance Resolution Policy as) 'management intervention' or, two, a more serious type of misconduct that should be the subject of disciplinary action. It is clear that this case was treated as falling into the first category and what was seen as 'management intervention' was taken. Disciplinary action was not taken. This clearly has implications as to the degree to which the contents of the grievance are made known to the subject of the grievance (here Mr Woods and Mr Brew).

58 We are satisfied that the SRA's submission is established. Moreover, it is doubtful on the evidence that the document in issue was ever treated as constituting a 'grievance' of a kind that would trigger the procedures under the policy.

59 We are satisfied that this misconstruction of the policy affected significantly the Tribunal's reasoning both in relation to the cl 13(b) question, prejudice, and the cl 16 question, 'substantial adverse effect'. This misconstruction went to a critical matter which in the circumstances gives rise to an error of law.

60 This conclusion should not be seen as endorsing the SRA's submission that the term in the policy on which the Tribunal focused does not 'override the essential principle of confidentiality of the grievant'. We are not satisfied that the evidence placed before the Tribunal identified any such 'essential principle'. In a staged approach to the handling of workplace complaints, we accept that there will be an early stage during which the complaint is treated with complete confidentiality. It may be necessary to further investigate it, check its substance with other employees, conduct a series of interviews (as occurred in the Victorian case, Hutchinson). At some point a decision will need to be taken as to whether to proceed to disclose the substance of the complaint to the employee and get his or her reaction. There may be choices made at that point, as to what is disclosed (and thereby relied upon), and what is not. There may come a point where fairness demands that all the material collected in the course of the examination of the complaint is made known. We accept that the Grievance Resolution Policy does not conflict with these conventions in relation to the conduct of investigations into complaints.

61 Nor should our finding of error be taken as indicating any view as to whether the so-called 'essential principle' should have been applied in this case so as to prevent Mr Woods seeing what was said about him. Mr Woods has, as we see it, an understandable sense of injustice. It looks to him as if he was shifted away from Wyong at the behest of those who wrote the confidential memorandum to management. Management says that was not the reason. Mr Woods sees the management action as detrimental action in the way in which that term is used in whistleblower laws. Management appears to have seen relocation as an available way of seeking to temper a difficult workplace situation where a split had occurred between workers who need to work as a team; and so as to protect the 'health and safety' of those complained against. The sense of injustice felt by Mr Woods is compounded by the fact that management took the decision to relocate Mr Woods (and Mr Brew) executively and without consulting them. These are issues that can be further explored when the case resumes.’

The Resumed Hearing
21 The hearing was held on 14 August 2003. The SRA acknowledged that the task for the Appeal Panel required it to look at circumstances as they now existed, which were quite different to those that had been applicable at the time of the original hearing before the General Division in July 2002.

22 Mr Leeming of counsel appeared for the SRA and Mr Kevin Woods, a retired police prosecutor and father of the applicant, Mr Woods, appeared for his son.

23 We agree with Mr Leeming, and Mr Kevin Woods agreed, that the issues that now need to be addressed were the ‘reasonableness’ question (cl 6) and the ‘public interest’ questions (cll 13 and 16).

24 Mr Leeming referred to a letter dated 6 August 2003 from the SRA (Ex J) to Mr Woods referring to the question of what matters remained in issue, and the results of that correspondence.

25 As a result there was now agreement that Mr Woods no longer sought access to the individual memorandums, the short documents. His interest is confined solely to the petition. If access is given to the petition, Mr Woods has foreshadowed that he will seek to exercise his right to have the document amended if it is incomplete, incorrect, out of date or misleading (FOIA s 39).

26 As an alternative to full access to that document, Mr Woods seeks access to an expurgated version of the document. The SRA’s position is that an expurgated copy of the petition can not be provided having regard to its obligations of confidentiality, and that it is not practical to sub-divide the document, as the material is so intertwined.

27 The SRA accepted that Mr Woods has a justifiable concern to respond to any allegations that have been made against him. Mr Leeming said that the SRA accepted that natural justice would generally entitle him to an opportunity to respond. Mr Leeming noted the SRA’s official advice (letter 6 August 2003, Exhibit L) that

‘The fact is that no disciplinary action has been taken against you and State Rail has repeatedly assured you that the matters raised in the Petition have not and will not be investigated. No disciplinary action has or will be taken against you in respect of any matter raised in the Petition.’
28 The SRA has given the following assurance:
‘I give you an assurance that a copy of the Petition is not in your personnel file and I invite you to arrange a time to inspect the file to confirm it for yourself. I give a further assurance to you that a copy of the Petition will not be placed on your personnel file in future.’
29 These assurances were given by the Deputy Chief Executive, Workforce Strategy and Development.

The New Material Relied Upon by SRA

Affidavit of Ronald David Owens (Mr Owens) filed 5 August 2003

30 Mr Owens is the Manager, Security Operations for the SRA in which capacity he manages the transit officers (formerly revenue protection officers) of the SRA. He is a relatively new appointment to the position, having commenced in September 2002, a year or more after the events at Wyong that lie at the heart of this application. The annexures to the affidavit are voluminous and include hundreds of pages of correspondence between the SRA and Mr Woods and Mr Brew or their associates or representatives. The affidavit includes evidence as to the reorganisation within the SRA relating to transit officers. The affidavit deals at some length with the reasons why the petition should continue to be withheld.
New Material relied upon by Mr Woods
31 Mr Kevin Woods placed in evidence a statutory declaration sworn by his son Mr Woods dated 10 February 2003; statutory declaration with annexures of Mr Brew dated 10 February 2003; further statutory declaration of Mr Brew dated 12 February 2003; statutory declaration of Mr Woods dated 14 February 2003; statutory declaration of Mr Woods dated 2 August 2003; statutory declaration of Mr Woods dated 11 August 2003.
Written Submissions
32 There were also written submissions filed 12 August 2003 from the SRA and from Mr Woods filed 12 August 2003. The submissions filed for the earlier appeal hearing (as to errors of law) were also received: SRA’s filed 4 February 2003, and those of Mr Woods.

33 Mr Woods’ commented on the material filed by the SRA. As a result he had filed further evidence relating to his son’s workers compensation claim and in relation to his son’s complaint about Mr Abel. He said this was to balance the picture given by the material filed by the SRA.

34 It can be seen simply by looking at the vast amount of additional material placed before the Tribunal by both parties that the question of access to the petition remains a source of intense conflict between Mr Woods and the SRA and belongs to a wider environment of intense conflict.

The Onus
35 The onus lies on the agency to justify non-disclosure of a document: FOIA s 61.
The SRA Case
36 Mr Owens acknowledged that there were now two units rather than five, with the result that officers now called transit officers were spread out through the system to a greater extent and did not work in such tight knit teams.

37 There are only four transit officers now based at Wyong as distinct from the twelve that were there when the petition was written. They include Mr Woods and Mr Brew. Mr Woods returned to Wyong around June 2002. Although most of the officers who signed the petition continue to work for the SRA none of them are now at Wyong. Mr Owens acknowledged that concerns about interpersonal conflict in the immediate workplace arising from release had lessened. On the other hand the SRA contended that there remained a risk of conflict as officers who had been aggrieved over the conduct of Woods and Brew encountered them in the course of their work on the train network. Mr Owens said that it was his opinion that there was a real possibility of intimidation if the document was released.

38 Reiterating the position of the managers who had given evidence at the earlier hearing, Mr Owens referred to the SRA’s practice and policy of affording a high degree of confidentiality to records of grievances, and the policy as it relates to disclosure to the subject of the report. His affidavit notes that all of those who complained on the last occasion have said that if release occurs they would not be prepared to make a similar report again, supporting the SRA’s contention that release would prejudice the future supply of such information. This point is directly relevant to the cl 13 exemption, and the cl 16 exemption.

39 Mr Owens acknowledged that with the passage of time the petition was something of a historical document. There is, for example, no present conflict in the workplace at Wyong.

40 Mr Owens referred to the degree of activity that Mr Woods and Mr Brew had engaged in to have what they see as the injustices done to them rectified. He noted that there had been a very large amount of correspondence to all levels of the SRA, to the highest levels of government: to the Minister; Mr Scully; to the Independent Commission Against Corruption; to the Ombudsman; and to the Director-General of the Department of Transport. A vast amount of correspondence in support of this evidence is annexed to Mr Owens’ affidavit.

41 Most importantly Mr Owens felt that release would seriously compromise the future ability of SRA to deal with workplace issues where workers had seen fit to make formal complaint to the SRA. They would be inhibited if they thought that their complaint would be released.

42 At para 33 of his affidavit Mr Owens said:

‘In my opinion, if the petition is released SRA’s ability to manage and assess its employees and/or carry out its functions will be adversely affected:

(a) for the reasons set out in the preceding paragraphs, employees would lack trust in SRA. This may lead to further people resigning from the SRA which would be destabilising and deprive the SRA of experienced staff;

(b) if employees are reluctant to report grievances and misconduct then this will significantly compromise the SRA’s ability to identify:

(i) whether misconduct and corruption is occurring;

(ii) grievances or issues which are otherwise of concern to management since they impact on the operations of the SRA or relate to the SRA’s duties as an employer to provide a workplace free of harassment and intimidation.

The SRA will find it extremely difficult to investigate staff conflicts and misconduct if an employee fears that confidentiality will be breached. Investigations would be compromised which would restrict SRA’s ability to resolve staff conflict and assess whether disciplinary action is required.

(c) I believe that Mr Woods and Mr Brew would attempt to use the petition to intimidate, harass and take action against the signatories. The basis for this belief is set out in paragraph 17 above. As a result of this potential for harassment those employees may require counselling and will need to be managed so that they avoid workplace contact with Mr Woods and Mr Brew. Having regard to the different duties that the signatories now perform this may be operationally impossible for the SRA to manage; and

(d) I am concerned that if the petition is released it will effectively ‘add fuel to the fire’. I believe that the SRA would need to manage its operations so as to avoid potential confrontation between Mr Woods and the signatories. As stated, this may be impossible to manage operationally.’

43 Mr Owens concluded at [41]:
‘The SRA’s resources will be diverted to managing issues which will undoubtedly arise from the consequences of the release of the petition …’.
44 Wishes of Signatories . The seven signatories gave affidavits reiterating their previous objections to release. Some went further and referred to further alleged incidents of behaviour on the part of Mr Woods that they see as demonstrating the concerns that they have already expressed. The difficulty for the Panel in giving any weight to this additional material is, of course, that Mr Wood does not know what is being alleged and does not have any ability to put countervailing views. This mirrors the situation that presently exists around the petition. The Panel has not taken those additional allegations into account.

45 Mr Leeming submitted that the real question to be addressed by the Tribunal was the genuineness of the fears expressed by the deponents to the seven confidential affidavits. We accept that submission.

46 Other Material. There were extensive non-confidential exhibits to Mr Owens’ affidavit. The material included the Code of Workplace Standards - June 2000; the Grievance Resolution Policy; the Discipline Policy. As noted it also included a large volume of correspondence that has passed between Mr Woods and Mr Brew on the one hand and the various public sector agencies and officials to whom they have complained. The correspondence includes demands that a superior officer, Mr Abel, should be investigated because of improper actions on 15 March 2003 arising from a change of the roster. Mr Leeming referred to other correspondence initiated by Mr Woods which he described as being of a ‘disputatious’ manner. He referred also to complaints made by Mr Woods that Mr Owens and Ms Davidson (see the earlier decisions) had given false and misleading evidence to this Tribunal. Mr Leeming also drew attention to Mr Woods’ practice of giving stories to newspapers in relation to the problems at Wyong and his success in the General Division.

Cross Examination of Mr Owens by Mr Kevin Woods
47 Mr Owens referred to his concerns from a management point of view in relation to possible disclosure. They are referred to further below in the course of dealing with the submissions of Mr Leeming on behalf of the SRA.

48 Mr Kevin Woods questioned Mr Owens in relation to the following matters:

(1) the reasons for his departure from his previous position of Commander, Security and Investigations Branch of the Department of Corrective Services, which, it was suggested, was under a cloud due to allegations of misconduct, thereby affecting his credibility in these proceedings; and in particular that he did not hold the position of Commander at the point of his retirement from Corrective Services in September 2000

(2) his statement that Mr Woods had not been the subject of disciplinary proceedings (referring to letter of the Executive Director, Human Resources dated 13 November 2001)

(3) whether a transfer is a form of discipline – Mr Owens said that in the SRA it was not, but advised (without prompting) that transfer had been seen as a form of discipline in Corrective Services

(4) what the significance was of a statement said by Mr Woods to have been made to him on 13 September 2001 by manager, Doug Clarke, “You are under investigation, as a result of the petition - subject of these proceedings.”

(5) number of voluntary redundancies taken by staff connected to this dispute

(6) a complaint made against him by Mr Woods and Mr Brew in February 2002

(7) apparent inconsistency of practice in SRA in that the complaint against him made to a superior officer was given to him to respond to (further material put in on that, without objection, by the SRA after cross examination explaining nature of Mr Owens’ rights at the relevant stage of the process)

(8) extent of potential contact with Mr Woods and Mr Brew in day to day operations by the signatories to the petition

(9) a document, referred to as the second petition, involving (presumably) the same group of signatories which has been made known, and whether there had been any conduct by Mr Woods or Mr Brew that could be detrimental to the signatories (admitted into evidence, Internal Memorandum dated 12 June 2002)

(10) extent of his direct discussions with signatories to the first petition (answer, some)

(11) extent of his discussions with Mr Woods and Mr Brew before forming the negative view of their potential conduct put in his affidavit (answer, none)

(12) extent of harassment that has occurred since disclosure of the second petition (acknowledged none)

(13) proceedings before the Transport Appeals Board (relating to Mr Chapman) and its view of evidence given by a Ms Kelly, and material referring to threats made against Mr Woods (said to be by a Mr Johnson) – this cross examination was directed to the possibility that these two people were potential signatories and any statements by them as to potential intimidation should not be given great weight

(14) a meeting on 9 August 2002 between SRA officers and Mr Woods and Mr Brew at Gosford in which it was suggested they were told they were vindicated in relation to their course of action in relation to the complaint against a Mr Chapman that formed the background to the first petition (the document in issue)

(15) that Mr Woods and Mr Brew have more to fear by way of retaliation because of their stand in reporting perceived misconduct to the SRA

(16) the fairness of the use of transfers as it affected Mr Woods and Mr Brew, and whether that kind of administrative response will have an adverse effect on reporting misconduct in future

(17) whether the petition had the status of a protected disclosure

(18) the nature of the right to see the complaint given by the Grievance Resolution Policy

(19) extent of disclosure of the petition to senior staff within SRA (evidence is six staff)

(20) why there is a ‘lack of transparency’ in management over the first petition

(21) the differences in significance from a management stability viewpoint of voluntary redundancies versus resignations

(22) the effect on SRA if Mr Woods is shown the petition is exaggerated – if they play up, they can be the subject of complaints (acknowledged)

(23) point of time at which documents are served on the subject in the conduct of grievance procedures

(24) whether a transfer to Sydney is an ‘adverse effect’ (acknowledged)

(25) the nature of the process followed in March 2001 in relation to the investigation of March 2001 and the adequacy of SRA’s witness interview transcription process especially in relation to Mr Woods (for the Transport Appeals Board proceedings)

(26) extent of recent complaints by Mr Woods, said to be one (Mr Owens saw the complaint against him and Mr Abel as more than one, in any case Mr Owens referred to several more items, in relation to the treatment of revenue protection officers, handled by Ms McPherson and one against him from Mr Brew)

(27) alleged lack of transparency by SRA in handling the complaints against him and Mr Abel

(28) internal processes used at SRA for the handling of complaint correspondence and role of internal legal counsel, Ms Vickers

(29) complaints made by Mr Brew, a Mr McKenna and a Mrs Jones about screws being placed in their cars’ tyres parked near the station on 17 occasions

(30) the response of SRA to these complaints.

Re-Examination of Mr Owens
49 Mr Leeming referred to the following matters:
(1) that there was also a history of oral complaints from Mr Brew

(2) extent of duties of transit officers and the possibilities of continued contact between the old Wyong officers hostile to Mr Woods and Mr Brew with them.

Submissions
50 Mr Leeming submitted that the evidence of the SRA established that there remained a potential for interpersonal conflict between Mr Woods and the signatories, though the likelihood of it occurring had been reduced by the new deployment arrangements affecting transit officers. Similarly he acknowledged that some of the 2001 group of workers at Wyong had moved on.

51 Further, it remained important to the day to day personnel operations of the SRA that there be procedures which afforded absolute confidentiality, at least until the initiation of a formal disciplinary investigation and action, to grievances brought to the attention of management.

52 Mr Leeming submitted that to disclose the material would now open old wounds, and some account should be taken of the promises made by SRA not to place the petition on any personnel or operational file.

53 Mr Leeming referred to para [39] of Mr Owens’ affidavit which referred to the degree of activity that Mr Woods and Mr Brew had engaged in to have what they see as the injustices done to them rectified; and the voluminous correspondence, and the range of complaints being made by Mr Woods. He noted Mr Owens’ evidence as to Mr Woods’ proclivity to launch complaints.

54 Mr Leeming referred to the wishes of the signatories to maintain confidentiality.

55 Mr Leeming noted the SRA assurance that the matter was closed, and would not be the subject of any disciplinary action.

56 As noted the SRA tabled a large volume of correspondence with Mr Woods and Mr Brew. As we understand its submissions, the SRA was putting that Mr Woods is an inveterate complainer, and releasing the petition would be likely to pursue a further round of similar activity by him.

57 Mr Leeming referred to the cross examination conducted by Mr Kevin Woods. He submitted that it reinforced the SRA’s case that disclosure in the circumstances would be unreasonable in terms of cl 6 and be contrary to the public interest both within the meaning of cl 13 and cl 16.

58 He acknowledged the natural justice considerations that favour disclosure to Mr Woods and Mr Brew. He said that in the particular circumstances of this case the weight that the Tribunal should attach to that right is diminished because no action will be taken against Mr Woods.

59 Mr Leeming referred to the case of Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 at 441 per Heerey J in relation to the question of what type of unfairness may be enough to render the disclosure of personal affairs information ‘unreasonable’ for the purposes of cl 6. Heerey J noted that it did not need to be some particular unfairness, embarrassment or hardship which would inure to a person by reason of the disclosure. It is a matter of assessing the circumstances overall.

60 Mr Kevin Woods referred to his detailed written submissions. Those submissions refer in turn to the other events that formed part of the subject of his cross examination. He contended that there at least in the period 11-18 September 2001 the allegations made in the petition were under investigation with a view, as he saw it, to disciplinary action.

61 Even if that was so (on which we make no findings) we do not regard it as significant.

62 The point that the SRA has continually made remains, there was no decision ultimately to proceed along the disciplinary track, and its evidence has been consistent that the initial transfer was motivated by broader management considerations.

63 Mr Kevin Woods noted that there was no longer any tension at the Wyong office.

64 Mr Kevin Woods referred to the alleged basis for the transfer of his son (health, safety and welfare) and contrasted that with the way a Mr McKenna and a Ms Jones were later treated in what he saw as similar circumstances when they had reported harassment of them. He raised the question of the propriety of the transfer in terms of occupational health and safety laws. He contended that those laws placed certain obligations on employers when transferring staff.

65 While we have not researched the occupational health and safety point, in general terms we are sympathetic to this submission. It seems strange, as we intimated in our earlier decision, that peremptory transfer occurred on grounds personal to Mr Woods and Mr Brew which were not canvassed with them or the subject of any notice.

66 We have examined the written submissions filed on behalf of Mr Woods in particular the material relating to the second petition. Mr Woods sees the fact of disclosure of the second petition as bearing on the question of what should happen in relation to the first petition (the document in dispute). He submitted that the disclosure of the second petition ‘makes a mockery of these confidential affidavits and these fears.’

67 He referred to the serious and grave nature of the allegations in the petition. It is evident that he and his son have some knowledge of its contents. Three of the other ten officers at Wyong at the time refused to sign it, and there are statutory declarations from them, including that one of them (Mr McKenna) refused on four occasions to sign it. He expressed concern that six copies of the petition had gone into circulation in senior management including one with Mr Chapman, the subject of the complaint that triggered the petition (since resulting in adverse findings by the Transport Appeals Board).

68 The submissions refer to the serious adverse effects that are said to have befallen the Brew family in particular as a result of these complaints.

69 In conclusion Mr Kevin Woods submitted that his son would accept the petition without the signatures shown and with expurgation of those parts that it is thought should not be released.

70 He again referred to the second petition, which had very wide circulation including to politicians and unions, and that the signatories had thereby virtually identified themselves.

71 He saw as significant in terms of the Grievance Resolution Policy as to the way the second petition was actioned. He considered that it had been dealt with consistently with the policy. He submitted that the public interest dictated that the serious allegations made favoured disclosure of the document (racist and gender comments, and fraud) and treatment as a formal grievance.

72 Similar comments he said were found in the document in dispute, and it should be made available so that its contents could be corrected.

73 In the later part of the written submissions the findings of the Transport Appeals Board are referred to (negative as to Ms Kelly an opponent of Mr Woods, and positive as to Mr McKenna, a supporter of Mr Woods).

In reply
74 Mr Leeming noted that the second petition was never presented in confidential circumstances. He said that they were very different documents. The first was presented in circumstances of confidence, while the second does not deal with particular incidents and was not given in confidential circumstances. We agree with that submission.

75 He also noted that the circumstances surrounding the period of the transfer (ultimately nine months) were more complicated than has been suggested. Mr Leeming referred us to parts of the volume of correspondence relating to Mr Woods and Mr Brew. It is apparent that Mr Woods was unwell and did not attend interviews arranged with him to discuss his situation. It is also apparent that Mr Woods had an interest at the time in being the subject of disciplinary proceedings in that he might then be stood down on full pay. We make no findings on these matters, but the material supports Mr Leeming’s contention that the position during the period of transfer was more complicated than might have been conveyed by Mr Kevin Woods.

76 He referred finally to what he saw as the lesser significance of the right of reply given the steps taken by the SRA to remove the petition from its personnel system.

Assessment
77 The same body of material is relied on by the SRA in relation to each of the discretionary issues raised by the three exemptions.

78 As to the matters put to us, we have concluded as follows:

(a) there remains a high level of disputation between Mr Woods and the SRA on a range of matters

(b) it is likely that if the petition is released, there will be further disputation surrounding the contents of the petition

(c) it is difficult to see how that could not involve the signatories in having to involve themselves in the giving of explanations and proofs for what they alleged about Mr Woods and Mr Brew in the petition

(d) it may be that Mr Woods would not behave in a directly confrontational way towards any of the signatories, but given the history of contention with the SRA it is impossible to accept that he would do nothing

(e) accordingly, there is merit in the fears expressed by the signatories to the petition, and substance, we consider, to the SRA's claim that workers in future might be deterred from making complaints

(f) we accept Mr Owens’ evidence as to the desirability of absolute confidentiality at the first stage of the grievance resolution process

(g) this has been a volatile industrial situation, and we consider remains so, even though most if not all of the signatories are no longer at Wyong and some have left the SRA.

79 Standing against these considerations are the following:
(a) the peremptory nature of Mr Woods’ and Mr Brew’s removal from Wyong on 12 and 13 September 2001

(b) the gravity of the contents of the allegations

(c) the seeming unfairness of co-workers being able to make grave complaints, and ‘get away’ with not having to face up to the people that they have criticised.

80 We also see as relevant:
(a) the assurances given by SRA as to the removal of the petition from personnel files

(b) the assurance that no disciplinary action will be taken.

81 As to the clause 6 exemption, our view is that the petition did contain information about the personal affairs of the co-workers, and that it would be unreasonable in the circumstances not to abide by their wishes. Their fears are, we consider, genuinely held. While we doubt that Mr Woods would engage in any direct personal reprisals (we accept that there have been no problems in relation to the release of the second petition), there is we consider a high likelihood of further action involving the contents of the petition directed to the SRA which would inevitably lead to the SRA having to re-engage with the signatories over the contents.

82 As to the confidentiality exemption, for broader systemic reasons it would in this case be contrary to the public interest for the petition to be released. There would be a prejudicial effect on the individuals who signed the petition, and more importantly there would be an undermining of confidence in the confidentiality assurances given by management. The personnel management interests would for the same reason suffer a ‘substantial adverse effect’ and it would be contrary to the public interest in maintenance of those practices for the document to be released.

83 We are also influenced in forming these views by the evidence as to the practices in place at the SRA at the time the co-workers came forward with their grievances. Management had in place a system which only ‘lifted the veil’ on allegations at a certain point in the process. There can, of course, be no absolute guarantee of confidentiality given as to the entirety of the process that might unfold following lodgment of a complaint. The SRA acknowledges that if formal interviews with those criticised were to be conducted they would need to be informed precisely or in general terms of the nature of the allegations and given an opportunity to respond.

84 While the issue of procedural fairness is one to be taken into account in assessing the public interest it is not a determinant. There was, on any reasonable view, a detriment done to Mr Woods and Mr Brew in peremptorily relocating them. The SRA did not give them an opportunity to reply. As we see it, the SRA was entitled to form a management judgment that the petition denoted intense conflict at Wyong which made the effective working of the team impossible without forming any view on the substance of the allegations. If that was its thinking it may have been better had it been exposed.

85 For similar reasons the claim in the case in relation to cl 16(a)(iii) is made out.

86 In Rouvinetis v Director General, Department of Housing [2001] NSWADT 155 a public housing tenant had sought access to manager records of complaints made against him by his neighbours in relation to various incidents of nuisance and provocative conduct, some of which had been found established by an independent tribunal. The agency refused to release the details of complaints that had not become known in that way. These remarks were made in commenting on the agency’s contention that non-disclosure was justified relying on the internal working document exemption. They are apt, we consider to the present dispute, though the public interest claim relates to personnel management. In Rouvenitis there was also an agency policy bearing on the matter:

‘19 The Good Neighbour Policy is indicative of the sensitivities that can be involved in managing tenants who cause annoyance, damage and disruption in public housing. I have taken account of the Policy in forming a view as to public interest considerations relevant to this application for review. …

21 …I consider that the public interest in the public housing context may include the need not to promote further tension or conflict between neighbours by disclosing the identity of complainants until such point as that may become unavoidable in order to obtain resolution.’

87 In our view the same factor is a significant one in this case, on this occasion as between the applicant and the SRA management more than as between the applicant and co-workers. But, as indicated earlier it seems to us that the tension that has developed between the applicant and SRA management will embrace any released material, and inevitably bring the co-workers back into the circle – even though their base for operations is not Wyong.

88 While we uphold the SRA’s determination, we recommend to the SRA that it formally act on the assurances that it has given as to any further use of the petition, and also respond to Mr Woods’ concern that the six copies that went into circulation be recovered. Accordingly we recommend to the SRA that it confirm in writing to Mr Woods the following:

(a) that the petition has been removed from the personnel file and placed in a secure location, and what the protocol is to any rights of access to that document

(b) that no disciplinary action will ever be taken in relation to the contents of the petition.

89 Further it should seek to recover and destroy the six copies that went into circulation among senior management, and clearly explain the access restrictions that apply to the copy or copies of the petition that are retained.
Order

Determination under review affirmed.