Community Resource Network Inc v Secretary, Department of Communities and Justice

[2023] NSWCATAD 318

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Community Resource Network Inc v Secretary, Department of Communities and Justice [2023] NSWCATAD 318

Hearing dates:

19 September 2022

Date of orders:

12 December 2023

Decision date:

12 December 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Gatland, Senior Member

Decision:

1.         The Respondent’s decision dated 14 March 2022 is set aside to the following extent:

            (a)       the redactions to document 1 are to be removed, save for the addressee’s name and email address.

            (b)       documents 8 and 12 are to be released in full, without redactions.

2.         The Respondent’s decision is otherwise affirmed.

3.         Publication of the confidential evidence filed  by the respondent in these proceedings is prohibited.

4.         Disclosure to the Applicant of the confidential evidence filed by the respondent in these  proceedings is prohibited.

5. Pursuant to Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(c) and s 64(1)(d), the transcript and recording of the hearing of those parts of the hearing which took place in private and in the absence of the Applicant are not to be published or released to the Applicant or the public.

6. Pursuant to Civil and Administrative Tribunal Act 2013, s 64(1)(c) and s 64(1)(d), the contents of all paragraphs in these Reasons marked “[NOT FOR PUBLICATION]” are not to be published or released to the Applicant or the public.

Catchwords:

ADMINISTRATIVE LAW — Government Information (Public Access) — Grounds for refusing access — Balancing competing public interest factors for and against disclosure

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Government Information (Public Access) Act 2009,(NSW) ss 3, 5, 9, 12, 13, 14, 15, 80, 100, 105, 107,

Privacy and Personal Information Protection Act 1998 (NSW), s 18

Cases Cited:

Battin v University of New England [2013] NSWADT 73

Camilleri v Commissioner of Police (NSW) [2013] NSWADT 80

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

Cousins v Ambulance Service (NSW) [2014] NSWCATAD 48

Director General, Department of Education and Training v Mullet and Randazzo (No 2) [2002] NSWADTAP 29

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

Gene Simring v Commissioner of Police, NSW Police Force [2009] NSWSC 270

Hurst v Wagga Wagga City Council [2011] NSWADT 307

Ibrahim v Commissioner of Police (NSW) [2004] NSWADTAP 8

Leech v Sydney Water Corporation [2010] NSWADT 198

Mannix v Department of Education and Communities [2014] NSWCATAD 35

McDonald v Ku-ring-gai Council [2022] NSWCATAD 17

Neary v State Rail Authority [1999] NSWADT 107

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

Raven v The University of Sydney [2015] NSWCATAD 104

Robinson v Department of Health [2022] NSWADT 222

Selby v Commissioner of Police (NSW) [2013] NSWADT 61

Taylor v Destination NSW [2017] NSWCATAD 272

Transport NSW v Searle [2018] NSWCATAP 93

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Community Resource Network Inc (Applicant)
Secretary, Department of Communities and Justice (Respondent)

Representation:

Solicitors:
Applicant (Self-represented) (Chief Executive Officer)
Crown Solicitor (Respondent)

File Number(s):

2022/00141002

Publication restriction:

Pursuant to Civil and Administrative Tribunal Act 2013, s 64(1)(c) and s 64(1)(d), the contents of all paragraphs in these Reasons marked “[NOT FOR PUBLICATION]” are not to be published or released to the Applicant or the public.

REASONS FOR DECISION

Introduction

1. The Applicant, the Community Resource Network Inc is a non-government organisation. It seeks access to documents from the Respondent, the Secretary, Department of Communities and Justice, pursuant to a request made under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act).

2. The Applicant’s request, under the GIPA Act, was originally made to the Respondent on 16 September 2021. The request had been made on behalf of the Applicant by its chief executive officer, Ms Randhawa.

3. The decision under review was made on 14 March 2022. The Applicant, dissatisfied with the extent of the documents produced, sought an internal review of the decision. The outcome of that internal review did not change the original decision. The Applicant then applied to the Tribunal to review the Respondent’s decision on 14 March 2022.

4. The Respondent’s decision, which is the subject of these proceedings, was based principally on the basis that the redacted material should not be released because there is an overwhelming public interest against disclosure on grounds which refer to clauses in a table to the GIPA Act, s 14(2) (the Table). These grounds are addressed below.

The Issue

5. The role of the Tribunal in hearing the application for review is to decide the correct and preferable decision having regard to the material before it, including relevant factual material and the applicable law: Administrative Decisions Review Act 1997 (NSW), s 63(1).

6. In these proceedings, there is a single substantive issue to be determined: is the Applicant entitled to obtain the information it has sought?

7. After considering the relevant facts and applicable law, the answer is that the Applicant is not entitled to access the information because the public interest in favour of disclosure is outweighed, in this instance, by considerations under the GIPA Act that establish, on balance, the public interest considerations against disclosure should predominate.

The Application

8. The Applicant’s request for documents held by the Respondent under the GIPA Act made on 16 September 2021 was in the following terms:

The information is regarding dealings and communications between [the Respondent] and The Community Resource Network Inc (CRN) [the Applicant].

I seek full and comprehensive copies of all records of any type of interactions from:

1 January 2017 to 31 July 2020.

Including but not limited to:

A. Records: All details of meetings, notes, correspondence of any form internally or between external parties.

B. Authority to Act: Details of decisions taken, by whom and by what authority.

C. Departmental Compliance: Policies & Procedures

All correspondence and communications material to include; Internal, External, Third Party or Exclusively between [the Respondent] & CRN.

1 March 2018 – 30 Nov 2018; Recruitment, investigation and resignation of Livingston Chettipally. Including any meetings with Mr Chettipally outside of CRN authority during his period of standdown and or post resignation.

2. All materials relating to the transfer of funding from Blacktown Youth Services Association to Blacktown Areas Community Centres between July 2017 and Jun 2019

I believe the release of this information is very much in the public interest in particular;

Promote transparent and open discussion of public affairs.

Enhance accountability.

Inform the public about the operations of agencies.

Ensure effective oversight of the expenditure of public funds.

Reveal or substantiate misconduct or negligent, improper or unlawful conduct.

9. There was a total of 96 documents comprising 243 pages within the scope of the Applicant’s request. Several of these documents were released to the Applicant in unredacted form; others were released with redactions; while other documents were withheld entirely.

10. At the hearing of this matter, Ms Randhawa, who is the chief executive officer of the Applicant and who represented the Applicant at the hearing, pressed for full access to only a small selection of documents: 1 - 8, 12, 13, 18, 21, 22, 24, 25, 26, 28, 30 and 33.

Evidence and Submissions

11. In addition to making oral and written submissions, the Applicant tendered some documentary evidence. This included an extract of a report prepared by a workplace investigation firm that the Applicant had retained to investigate 26 allegations made by staff of the Applicant against its former executive officer, Livingston Chettipally, whose employment with the Applicant was terminated due to the findings in that report.

12. The extent of the findings capable of being made from the non-confidential evidence tendered by the Applicant is that in 2018 the Applicant was experiencing problems with its senior management. There was no controversy about this and the workplace investigation report concerning Mr Chettipally’s conduct was tendered by the Applicant without objection.

13. The material was tendered to provide some context to the request made by the Applicant under the GIPA Act and to support the Applicant’s submission that it was in the public interest that access be given to the material pressed by it in these proceedings.

14. Ms Randhawa explained that the Applicant has operated as a local peak body since 1981 and that it provided a range of community services at a local level under a contract with the Respondent.

15. It was also uncontroversial that, after the Respondent received a complaint and investigated it, a further process resulted in the Applicant's contracts not being renewed and other service providers being engaged to perform the services the Applicant had provided under its former contract. This fact is relevant to the determination of the present proceedings in so far as it provides context and informs, as the Applicant submitted, the public interest considerations to be assessed below.

16. Ms Randhawa submitted that there were several purposes for the Applicant’s request, including to:

1. identify the origins of the investigation report;

2. understand why the investigation was conducted without giving the Applicant a right of reply or other matters consistent with procedural fairness, or as Ms Randhawa also described it, due process;

3. know from whom the information was received, why it was acted upon, and how it was assessed; and

4. understand whether the investigation conducted by the Respondent was ‘a proper way to act.’

17. Ms Randhawa submitted that, though none of the allegations against the Applicant were sustained, it appeared that, as a consequence of the investigation, the Applicant lost its contract to provide services to the community.

18. The Applicant’s submissions, as far as they were directed to the public interest considerations, focused on the lack of transparency, procedural fairness and scrutiny of the investigation conducted by the Respondent.

19. In its reply submissions, the Respondent was critical of the Applicant’s stance in the proceedings submitting that the Applicant was “conflating its contract dispute with the Respondent with its application for administrative review”.

20. While Ms Randhawa submitted that the above were matters that strongly favoured the release of the information for which the Applicant continued to press, after considering the evidence, the Tribunal could find no evidence that the Respondent’s employees in fact acted outside their areas of delegation in conducting the investigation or receiving the complaint. There was also no basis for the submission that an investigation process necessarily provides a right of reply to the subject of the investigation.

21. The Respondent’s non-confidential evidence was limited, and it is unnecessary to set it out further in open reasons. As I noted above, the effect of its confidential and non-confidential evidence was reflected and summarised as far as possible in the Respondent’s open submissions.

22. The Tribunal is concerned, in this case, with the nature and context of the information provided to the Respondent and whether, because of the context or manner in which it was imparted, there exists an overwhelming public interest against disclosure. It is, therefore, the confidential evidence of the Respondent which must be interrogated in the context of the above finding. That material is addressed in those parts of the reasons the subject of non-publication orders.

23. In the private session of the hearing, the Respondent tendered a confidential affidavit of David Whyte, employed by the Respondent as Manager, Prudential Oversight, Partnerships, Strategy, Policy and Commissioning. Only that part of Mr Whyte’s affidavit relevant to the 20 documents to which the Applicant pressed access was read.

24. In its open submissions, the Respondent referred to Mr Whyte’s confidential affidavit in terms of the effect of that evidence. The Respondent submitted that Mr Whyte’s evidence provided a basis for the Respondent’s submissions in two primary respects:

1. first, that the material sought by the Applicant could compromise future investigations conducted by the Applicant; and

2. second, that, as some of the information had been obtained in confidence for the purposes of investigation, there were important considerations for the Respondent in ensuring that members of the public who complained to it about a non-government organisation who received government funding (such as the Applicant) were not discouraged from making reports that would allow for investigations to be performed in a targeted manner.

25. Mr Whyte’s confidential evidence was that:

1. [NOT FOR PUBLICATION]

2. [NOT FOR PUBLICATION]

3. [NOT FOR PUBLICATION]

4. [NOT FOR PUBLICATION]

5. [NOT FOR PUBLICATION]

6. [NOT FOR PUBLICATION]

26. Unless expressly recorded in these reasons, I have not accepted as evidence the many opinions stated in Mr Whyte’s affidavit. I have accepted these matters as submissions capable of being made based on the observed facts. In particular, I accept those portions of Mr Whyte’s affidavit as a submission or evidence of his understanding where he deposes that:

1. [NOT FOR PUBLICATION]

Law

Parties, Review and Onus

27. The Respondent’s decision of 14 March 2022 is a reviewable decision; GIPA Act, s 80(d), and the Applicant seeks administrative review of that decision pursuant to the GIPA Act, s 100.

28. As the decision-making agency, the Respondent bears the onus of establishing that its decision to refuse access to the information it has withheld is justified; GIPA Act, s 105(1).

29. As noted in paragraph 5 above, the Tribunal is to determine the correct and preferable decision having regard to the material before it, including relevant factual material and the applicable law. The Tribunal’s task is to re-make the decision as if it were the administrator; McDonald v Ku-ring-gai Council [2022] NSWCATAD 17.

30. In so doing, the Tribunal is required to ensure that it does not, within its reasons for decision or otherwise, disclose any information in respect of which there is an overriding public interest against disclosure; GIPA Act, s 107. To that end, the Tribunal;

1. received into evidence in a confidential hearing, including an unredacted copy of the documents that the Applicant seeks; and

2. heard from the Commissioner in a confidential session regarding those documents;

3. will not refer in any detail to the subject matter of the documents unless such detailed discussion is made subject to orders for non-publication and non-disclosure; Ibrahim v Commissioner of Police (NSW) [2004] NSWADTAP 8 at [28].

The Presumptions in Favour and Against Disclosure

31. There exists a presumption in favour of disclosure of government information unless there is an overriding public interest against disclosure: GIPA Act, s 5.

32. A person who makes a valid application for access to government information has a legally enforceable right to be provided with access to that information unless there is an overriding public interest against disclosure: GIPA Act, s 9(1).

33. The presumption in GIPA Act, s 5 and the right created in GIPA Act, s 9 give effect to the object stated in GIPA Act, s 3(1)(c), which provides that access to government information should only be restricted where there is an overriding public interest against disclosure.

34. The finding of an “overriding public interest against disclosure” requires a balancing between considerations in favour and against disclosure: GIPA Act, s 13; Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [19]; Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [47].

35. GIPA Act, s 5 and s 12 recognise the significance of the presumption in favour of disclosure, which applies without limitation in every case. Such consideration should be accorded, therefore, “significant weight” when determining whether access to information should be granted: Selby v Commissioner of Police (NSW) [2013] NSWADT 61 at [89]; Camilleri v Commissioner of Police (NSW) [2013] NSWADT 80 at [48].

36. The balancing of those considerations should favour disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17]. The process is one of mechanical tabulation; rather, the balancing of competing interests "is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation”: Hurst v Wagga Wagga City Council at [94]; Battin v University of New England [2013] NSWADT 73 at [74]. The process requires a broad value judgment to be made, having regard to the objects of the legislation, the general presumption in favour of disclosure of government information, and the principles set out in the GIPA Act, s 15: Transport NSW v Searle [2018] NSWCATAP 93 at [104].

37. GIPA Act, s 14 sets out the considerations against disclosure. The only material to which a conclusive overriding public interest against disclosure arises is described in the GIPA Act, Sch 1. There is no material in these proceedings to which a conclusive overriding public interest against disclosure applies. This case concerns the so-called other considerations that may be taken into account as set out in the Table in s 14 (the Table).

38. Determining whether an overriding public interest exists against disclosure also requires considering the matters set out in the GIPA Act, s 15. Those principles are clear, and do not require further elucidation.

39. The Tribunal is called upon to examine whether the effect, set out in a relevant clause of the Table, is established and then to ask whether the disclosure “could reasonably be expected” to have the specified effect: Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [30]. That phrase is to have its ordinary meaning and requires the decision-maker to determine whether it is reasonable to expect that disclosure would have the relevant effect. In that context, the word reasonable means something that is not irrational, absurd or ridiculous: Searle at [68]. Something more than a mere risk or chance is required; there must be real or substantial grounds that are more probable than not: Leech v Sydney Water Corporation [2010] NSWADT 198 at [28]; Neary v State Rail Authority [1999] NSWADT 107 at [35]-[36] and the cases there cited.

40. Meeting the clauses in the Table does not lead conclusively to a determination that an overriding public disclosure exists. The chapeau to clause 1 of the Table contained within the GIPA Act, s 14 is illustrative:

“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):”

41. As to the evidentiary standard required, in Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 at [59], the Appeal Panel stated, after considering Searle and other authorities, that:

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

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

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

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

The balancing of matters required under the GIPA Act

42. The Tribunal is required, in conducting the balancing analysis under GIPA Act, s 13, to have regard to the following matters:

1. the objects of the legislation contained in GIPA Act, s 3;

2. the presumption in favour of disclosure of government information as provided by, in particular, GIPA Act, s 5 and s 12 – those considerations to be given significant weight;

3. the considerations in s 14; and

4. to the principles set out in section 15 of the GIPA Act,

to determine whether there is an overriding public interest against disclosure or whether the presumption in favour of disclosure prevails.

43. In determining the present application, I have adopted the approach outlined in Searle [2018] NSWCATAP 93 at [104] in setting out the competing public interest considerations for and against disclosure, attributing weight to each consideration and determining the balance in the light of such weighting. Such an approach is consistent with the objects and principles of the GIPA Act and summarised above in paragraphs 31 to 42 above, and also in Mannix v Department of Education and Communities [2014] NSWCATAD 35 at [7]-[10].

Considerations in Favour of Disclosure

44. In addition to the objectives set out in the GIPA Act, s 3 and the matters identified by the parties, I consider the public interest considerations in favour of disclosure in this case are:

45. These considerations in favour of disclosure in this case are:

1. the statutory presumption pursuant to the GIPA Act, s 5;

2. a general public interest in favour of disclosure under the GIPA Act, s 12(1);

3. the disclosure of information could reasonably be expected to advance the fair treatment of individuals in accordance with the law in their dealings with agencies;

4. disclosing the information could reasonably be expected to enhance government accountability; and

5. the disclosure of the information could reasonably be expected to contribute to a positive and informed debate on issues of public importance, namely the manner and extent to which the Respondents deal with and investigate contracted service providers who receive government funds and how it handles complaints received from members of the public.

Considerations Against Disclosure

46. The Respondent relied on specific public interest considerations against disclosure regarding each document. These are now considered below.

Clause 1(d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions

47. The Respondent submits that this consideration arises and prevails over the presumptions in favour of disclosure to exclude from release documents 1, 2, 4, 6, 7, 22, 24, 26, 30 and 33 of its Schedule.

48. With regard to documents 3, 5, 21 and 28, considerations under clauses 3(a) and 3(b) of the Table were also said to apply.

49. In all cases where the Respondent relied on this consideration, it was in conjunction with the consideration under clauses 1(f) and 1(g) of the Table.

50. The Respondent’s submissions focused on the obvious and practical need for investigators to be able to receive information from the public and other sources confidentially and that the disclosure of these communications could impact upon the willingness of members of the public to communicate with it, in particular the Prudential Oversight unit. The thrust of the Respondent’s submission was that the risk of disclosure of the identity of a complainant would hamper Respondent’s ability to effectively investigate and scrutinise contractors receiving funds from the government for the delivery of services. I agree that this is a likely outcome of disclosure.

51. [NOT FOR PUBLICATION]

52. I have inferred from the evidence before the Tribunal that it could be expected that the disclosure of information the applicant seeks would impede the provision of confidential information to the Respondent in the future: Raven v The University of Sydney [2015] NSWCATAD 104 at [65].

53. In similar terms to the findings made by the predecessor tribunal in Robinson v Department of Health [2022] NSW ADT 222 at [71], the Respondent’s investigative function relies on the cooperation of those who have relevant information and the disclosure of the source of that information could be reasonably expected to have an adverse effect on the performance of the Respondent’s investigative functions.

54. I accept that such a consideration arises concerning these documents and that this consideration must then be weighed against the considerations in favour of disclosure: Gene Simring v Commissioner of Police, NSW Police Force [2009] NSWSC 270 at [69]. In this case, I give this consideration significant weight having regard to the fact that, as practical matter, the Respondent must rely on all source so information available to scrutinise the proper use of government funds and to ensure services are being delivered to the public by funded contractors in the manner intended.

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

55. The public interest consideration against disclosure set out in clause 1(f) of the Table to GIPA Act, s 14 applies where an agency can establish that releasing the information could cause prejudice to the effective exercise of one or more of its functions. This may apply even where the information has not been provided to the agency in confidence; Cousins v Ambulance Service (NSW) [2014] NSWCATAD 48.

56. Mr Whyte’s evidence, as described in the Respondent’s open submissions, strongly supported this consideration. I consider it reasonable to infer that revealing information that would allow the identity of a person making a complaint to be ascertained would likely have a chilling effect on the willingness of persons to register complaints with the Respondent or bring other important matters to its attention. I conclude that this would impact an agency's ability to carry out its oversight functions.

57. As the Respondent noted in submissions, the relevant inquiry is whether, as a result of the release of information of this kind, the agency would be able to obtain information of this kind in the future; Camilleri v Commissioner of Police (NSW) [2013] NSWADT 80 at [38]. Accordingly, I attribute significant weight to this consideration.

Clause 1(g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to the agency in confidence

58. The Respondent submits that giving information to investigators was in the context of implied or inferred confidentiality. In this regard, the Respondent relied extensively on Mr Whyte's affidavit.

59. Regarding this consideration, the Respondent submitted that:

1. the Tribunal should regard the context in which the Respondent received the information as a complaint. I disagree with the Respondent’s characterisation of the circumstances in this case as “giving rise to an obligation of confidentiality” since the agency volunteered it. However, I accept that the Respondent received information in confidence once confidentiality had been volunteered by it. This approach is consistent with the findings in Director General, Department of Education and Training v Mullet and Randazzo (No 2) [2002] NSWADTAP 29 at [46] considering similar provisions in the former legislation that the GIPA Act now regulates, that is; in line with the usual practice of the agency, the information received as a complaint would be handled in confidence.

2. the Tribunal should regard the terms on which the Respondent obtains and treats information from complainants. In that regard, in its non-confidential reply submissions, the Respondent referred to its Procedure, which states that complaints are investigated confidentially, taking care not to disclose the complainant's identifying details unless the service provider is required to respond directly to them. There was no evidence before the Tribunal suggested this policy was not followed in this case.

60. There are two elements to the consideration at cl 1(g) of the Table: exposure to an action for breach of confidence, and the disclosure of information provided in confidence. The Respondent made submissions concerning the first element, that disclosure of the information to the Applicant may found an action against it for breach of confidence, which I do not accept. No actionable breach would arise from the disclosure. Instead, it is the second element of clause 1(g), on which the Respondent principally relied, that release to the Applicant would result in disclosure of information provided to the agency in confidence, which had greater force as a consideration in this instance.

61. The disclosure under cl 1(g) of the Table must be of information provided to the agency in confidence. This clause does not capture information provided by the agency unless that information includes material that was provided confidentially at an earlier stage.

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

Clause 3(b) contravene an information protection principle under the Privacy and Personal Information Act 1998

62. Relevant to the interpretation of cll 3(a) and 3(b) of the Table, the definition of personal information under the GIPA Act, Sch 4, s 4(1) is broad: it includes information about an individual whose identity is apparent or can be reasonably obtained from the information.

63. [NOT FOR PUBLICATION]

64. The Privacy and Personal Information Protection Act 1998 (NSW), s 18(1) prevents the Respondent from disclosing personal information unless that disclosure is directly for the purpose for which the information was collected. No relevant exception applies in this case to the Respondent’s obligations concerning personal information contained in documents in this case. Accordingly, where it arises, this consideration has been given significant weight.

65. The Respondent submits that these considerations apply to exclude documents 8, 12, 13, 18, and 25 from release or further release. Additionally, the Respondent submits that these considerations apply in addition to clauses 1(d), 1(f) and 1(g) of the Table with regard to documents 3, 5, 21 and 28.

Findings

66. Document 1 is a letter from the Respondent’s Executive Director, Partnerships:

1. [NOT FOR PUBLICATION]

2. [NOT FOR PUBLICATION]

3. [NOT FOR PUBLICATION]

67. I consider that public interest considerations against disclosure as described in the cll 1(d), 1(f) and 1(g) of the Table arise with respect to identifying the name and contact details of the person to whom the letter is addressed. I give significant weight to these considerations with regard to that material. However, the redactions made by the Respondent go further than this and the substantive body of the letter, to which these considerations do not arise, has also been redacted.

68. Document 2 is the Respondent’s initial summary of the complaint it received and is an enclosure to Document 1. The public interest considerations against disclosure as described in cll 1(d), 1(f), and 1(g) of the Table arise with respect to all aspects of this document and, having regard to Mr Whyte’s evidence, I ascribe significant weight to those considerations.

69. Documents 3 and 4 should be considered together as they are, in fact, a single chain of emails received by the Respondent. Document 5 is the same kind of correspondence, though its subject matter is different. With regard to documents 3, 4 and 5, I consider that public interest considerations against disclosure as described in the cll 1(d), 1(f) and 1(g) of the Table arise with respect to all aspects of redactions made to these documents and I give significant weight to those considerations as they apply to these documents. Further, public interest considerations against disclosure arise under cll 3(a) and 3(b) of the Table for documents 3 and 5, and I have given these considerations considerable weight also.

70. Document 8 is described by the Respondent as an email to Ms Randhawa regarding performance review and providing various documents. The email is dated 1 February 2017. There is no confidentiality attached to it, and from the material already released to the Applicant, it is clear that the email was sent in the course of the usual operations of the Applicant. The Respondent has made redactions to the document on the basis that the redacted material reveals personal information. However, that conclusion is untenable in circumstances where the email was actually sent, in full, to Ms Randhawa. I find that there is no public interest consideration that arises with regard to document 8.

71. Document 12 comprises three pages that are:

1. [NOT FOR PUBLICATION]

2. [NOT FOR PUBLICATION]

3. [NOT FOR PUBLICATION]

72. Accordingly, I find that there is no public interest consideration that arises with regard to document 12.

73. Document 13 comprises a chain of emails; the last and most heavily redacted message is:

1. [NOT FOR PUBLICATION]

2. and, therefore, does contain personal information.

74. The redactions to document 13 are made on the basis that the information may reveal personal information. Having regarded the document in full, that conclusion is sustained, and I attribute significant weight to that consideration.

75. Document 18 is:

1. [NOT FOR PUBLICATION]

2. [NOT FOR PUBLICATION]

76. The Respondent has withheld document 18 on the basis that it tends to reveal personal information. Having regard to the document in full, I consider that considerations under cll 3(a) and 3(b) of the Table arise, and I give substantial weight to those considerations.

77. Document 21 is a redacted email chain, and document 22 is an email. The Respondent submits, and I so find, having reviewed each document, that public interest considerations against disclosure as described in the cll 1(d), 1(f) and 1(g) of the Table arise in respect to all aspects of redactions made to these documents. Public interest considerations against disclosure arise under cll 3(a) and 3(b) of the Table for document 21 and I have given these considerations considerable weight also.

78. Document 24 comprises:

1. [NOT FOR PUBLICATION]

79. [NOT FOR PUBLICATION]

80. Having reviewed document 24 and read its contents, I find, consistent with the Respondent’s submission, that the public interest considerations against disclosure as described in the cll 1(d), 1(f), and 1(g) of the Table arise in respect all aspects of redactions made to document 24 and I give significant weight to those considerations.

81. Document 25 is:

1. [NOT FOR PUBLICATION]

82. The Respondent submits that the document should be withheld on the basis that the information may reveal personal information. While that submission has been correctly made, I also consider that the public interest considerations against disclosure as described in the cll 1(d), 1(f) and 1(g) of the Table arise with respect to all aspects of redactions made to this document and I attribute significant weight to both each of these considerations.

83. Document 26 is:

1. [NOT FOR PUBLICATION]

2. [NOT FOR PUBLICATION]

84. The Respondent submits, and I so find, that the public interest considerations against disclosure as described in the cll 1(d), 1(f) and 1(g) of the Table arise with respect to all aspects of the redactions made to this document.

85. Document 28 is:

1. [NOT FOR PUBLICATION]

86. [NOT FOR PUBLICATION]

87. Having reviewed document 28 I agree with the Respondent’s submission that public interest considerations against disclosure as described in the cll 1(d), 1(f) and 1(g) of the Table arise in respect all aspects of redactions made to this document. I attribute significant weight to those considerations with regard to document 28. The Respondent further submits, and I agree, that public interest considerations against disclosure arise under cll 3(a) and 3(b) of the Table for documents 28, and I have given these considerations considerable weight also.

88. Document 30 comprises:

1. [NOT FOR PUBLICATION]

89. [NOT FOR PUBLICATION]

90. The Respondent submits, and I so find that public interest considerations against disclosure as described in the cll 1(d), 1(f) and 1(g) of the Table arise in respect to all aspects of redactions made to this document. I attribute significant weight to those considerations with regard to document 30.

91. Document 33 comprises material of a similar ilk to document 30.

92. Respondent submits, and I so find that public interest considerations against disclosure as described in the cll 1(d), 1(f) and 1(g) of the Table arise with respect to all aspects of redactions made to this document. I attribute significant weight to those considerations with regard to document 33.

Is there an overriding public interest for or against disclosure?

93. I have set out in paragraphs 44 and 45 above, those considerations in favour of disclosure, which I consider are relevant to the application.

94. Based on my findings above concerning the individual documents and having regard to objects of the GIPA Act and the public interest considerations in favour of disclosure;

1. Public interest considerations under cll 1(d), 1(f) and (g) of the Table against the disclosure of some of the information in document 1. Having regard to the considerations in favour and against disclosure, I have concluded that the information to which public interest considerations against disclosure arise should not be released as those considerations outweigh the presumption in favour of disclosure. However, the redactions made to the version of document 1 released to the Applicant exceed that necessary to effect the intention of the GIPA Act, s 3. Accordingly, I have determined that this letter should be released in a less redacted form, removing the name of the addressee and their contact email only.

2. Public interest considerations under cll 1(d), 1(f) and (g) of the Table against the disclosure of the information contained in documents 2, 3, 4, 5, 6, 7, 21, 22, 24, 26, 28, 30 and 33. I have attributed significant weight to those matters having regard to the Respondent’s evidence before the Tribunal concerning its investigative process, the likelihood that disclosure would impede that process in the future and the disclosure of information given in confidence by a complainant. Having regard to the considerations both for and against disclosure as set out above and the principles set out in the GIPA Act, s 15, I have concluded that, on balance, the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure, and applying s 13 of the GIPA Act, there is an overriding public interest in against disclosure of the information contained in those documents should not be released.

3. I have concluded that there is no public interest consideration that arises with regard to the information contained in documents 8 and 12, for which the Respondent relied on cll 3(a) and 3(b) of the Table. Accordingly, documents 8 and 12 should be released to the Applicant in full, unredacted form.

4. There is a public interest consideration against disclosure of the information in documents 3, 5, 21 and 28 on the basis of clauses 3(a) and 3(b) of the Table, in addition to the considerations under clauses 1(d), 1(f) and (1)(g) of the Table. I have given those considerations significant weight having regard to the Respondent’s evidence before the Tribunal and the nature and extent of the personal information in those documents. Having regard to the considerations both for and against disclosure as set out above and the principles set out in the GIPA Act, s 15, I have concluded that, on balance, the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure, and applying s 13 of the GIPA Act, there is an overriding public interest in against disclosure of the information contained in those documents and, consequently, that material should not be released.

1. As to documents 13 and 18, for which redactions had been made on the basis that the information disclosed personal information; for the reasons set out above, I have concluded that the redactions and withholding of information are necessary to protect the personal information of others and that these factors prevail over the public interest considerations in favour of disclosure in this case. Having regard to the considerations both for and against disclosure as set out above and the principles set out in the GIPA Act, s 15, I have concluded that, on balance, the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure, and applying s 13 of the GIPA Act, there is an overriding public interest in against disclosure of the information contained in the documents should not be released.

Conclusion

95. Accordingly, and for the reasons set out above, I find that the decision of the Respondent dated 14 March 2022 should be set aside to the following extent:

1. Document 1 should be provided to the Applicant with the names and email addresses of the recipient of that letter, only redacted.

2. Documents 8 and 12 are to be released in full to the Applicant without any redactions.

96. These documents are to be provided to the Applicant without the disputed redactions no later than 28 days from the date of this decision. Such period of delay is consistent with GIPA Act, s 107.

Orders

97. Accordingly, I make the following orders:

1. The Respondent’s decision dated 14 March 2022 is set aside to the following extent:

1. the redactions to document 1 are to be removed, save for the addressee’s name and email address.

2. documents 8 and 12 are to be released in full, without redactions.

2. The Respondent’s decision is otherwise affirmed.

3. Publication of the confidential evidence filed by the respondent in these proceedings is prohibited.

4. Disclosure to the Applicant of the confidential evidence filed by the respondent in these proceedings is prohibited.

5. Pursuant to Civil and Administrative Tribunal Act2013 (NSW), s 64(1)(c) and s 64(1)(d), the transcript and recording of the hearing of those parts of the hearing which took place in private and in the absence of the Applicant are not to be published or released to the Applicant or the public.

6. Pursuant to Civil and Administrative Tribunal Act 2013, s 64(1)(c) and s 64(1)(d), the contents of all paragraphs in these Reasons marked “[NOT FOR PUBLICATION]” are not to be published or released to the Applicant or the public.

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

Registrar

Decision last updated: 12 December 2023