Connelly v Chief Executive, Roads and Traffic Authority
[2000] NSWADT 64
•04/28/2000
CITATION: Connelly -v- Chief Executive, Roads and Traffic Authority [2000] NSWADT 64 DIVISION: General Division PARTIES: APPLICANT
RESPONDENT
Kevin Connelly
Chief Executive, Roads and Traffic AuthorityFILE NUMBER: 003020 HEARING DATES: 03/04/2000, 28/04/2000 SUBMISSIONS CLOSED: 04/28/2000 DATE OF DECISION:
04/28/2000BEFORE: Smith MB - Judicial Member APPLICATION: access to documents - Freedom of Information Act - access to documents MATTER FOR DECISION: Principal matter LEGISLATION CITED: Freedom of Information Act 1989 CASES CITED: REPRESENTATION: APPLICANT
In person
RESPONDENT
P YoungmanORDERS: 1. The decision under review is set aside in so far as it concerned the documents which are exhibits 1B, 2, 3B, 4 and 5B, and there is substituted a decision that the applicant be given access to these documents.; 2. The Tribunal’s confidentiality orders made in relation to exhibits 1B, 2, 3B, 4 and 5B are revoked with effect from the date when these exhibits are returned to the respondent under s 140 of the Administrative Decisions Tribunal Act 1997 (NSW).; 3. The Tribunal’s confidentiality orders made in relation to exhibits 6 and 8 and in relation to the hearing and transcript of the confidential sessions on 3 April 2000 and 28 April 2000, which prohibits their disclosure other than to the officers of the Tribunal and of the respondent who are involved in the present proceedings, are to continue indefinitely unless or until revoked or varied by further order of the Tribunal.
1 This is an application by Mr Connelly which was filed in the Tribunal on 25 January 2000 seeking a review of a decision made by the respondent as Principal Officer on behalf of the Roads and Traffic Authority under the Freedom of Information Act 1989 (NSW). The decision responded to a request for access to documents relating to allegations and an investigation leading to disciplinary action being taken against the applicant in relation to his employment in the RTA.
2 No issue arises as to my jurisdiction and the issues before me were narrowed down to whether exemptions have been properly claimed in relation to five documents. The decisions under review decided that four of them should be released with deletions and that one of them should not be released at all.
3 The five documents were identified during the hearing as:
- (i) Fol. 334-3: material deleted from a 5 page report by Mr Clancy to the General Manager, Human Resources, dated 2 July 1998 (Exhibit 1B).
(ii) Fol. 332: statement by a staff member dated 21 May 1998, withheld in entirety (Exhibit 2).
(iii) Fol. 331-329: material deleted from a statement by Mr McCarthy, General Manager Group Audit, dated 24 June 1998 (Exhibit 3B).
(iv) Fol. 323-22: deleted handwritten notations by Mr McCarthy on a letter from the applicant dated 23 May 1998. (Exhibit 4).
(v) Fol. 315-313: material deleted from an investigation plan dated 11 May 1998 (Exhibit 5B).
4 The hearing before me commenced on 3 April 2000 with the applicant representing himself and the respondent being represented by Mr P Youngman, the respondent’s Freedom of Information Coordinator, who made the primary decision. The applicant gave evidence as to the background to his request. In confidential session I explored with Mr Youngman the respondent’s claims for exemptions. Arising out of this discussion the hearing was adjourned to allow Mr Youngman to contact a third-person (whom I shall refer to as “XX”) who is recorded in the disputed material as providing information used to initiate the disciplinary investigation of the applicant, and to consider whether he wished to call any witnesses.
5 On the resumed hearing on 28 April 2000, I heard telephone evidence from XX in the absence of the applicant, and the parties completed their submissions. I then indicated that I had reached the decision which is now set out above, and I gave a brief outline of my reasons. The parties were subsequently served with my decision in writing and informed of their right to request a written statement of reasons under s 89(3) of the ADT Act. The applicant has so requested. What follows is an amplification of my oral reasons.
6 As I indicated when giving oral reasons, s 55(a) of the FOI Act requires that I “ensure that (I do) not, in the reasons for (my) decision or otherwise, disclose any exempt matter”. Where a claim to an exemption is not upheld by the Tribunal, I consider that this obligation should also be followed in relation to contentious material so as not to jeopardise rights of appeal. Statements of reasons in FOI matters are therefore necessarily not as informative as a normal statement of reasons, and can only be properly understood by a person with access to the confidential evidence. Not only must significant factual findings be omitted entirely or referred to obliquely, but reasoning on relevant considerations may also need to be expressed obscurely. This is particularly so in the present case where I must avoid saying anything which could identify XX or the words recorded in the deleted material as having been said by XX. Moreover, the circumstances of the case touch on the concerns of a number of people who have not been called as witnesses, and who I consider should be afforded some anonymity in these reasons.
7 In relation to the present documents, exemptions were claimed under Schedule 1 clauses 6, 13 and 16 of the Act for reasons which essentially overlap all of those exemptions. These clauses describe classes of exempt documents as follows:
- “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.
- A document is an exempt document:
(a) if it contains matter the disclosure of which would found an action for breach of confidence, or
(b) if it contains matter the disclosure of which:
- (i) would otherwise disclose information obtained in confidence, and
(iii) would, on balance, be contrary to the public interest.
- 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
… and
(b) would, on balance, be contrary to the public interest.”
8 It is convenient first to deal with the claim under clause 6, since I do not believe that the respondent puts forward a stronger claim in relation to the other clauses. It is also convenient for me to focus upon the document that was withheld in total (Exhibit 2), since, in my view, my decision on that document means that the claims for exemption for the other documents fall away or must be decided in the same way.
9 Mr Youngman agreed that this documents can be described as a statement by a staff member dated 21 May 1998. As I understood his submissions, it is not contentious to reveal that in the statement the staff member (who I shall call SM) has recorded for use in the disciplinary investigation the circumstances in which SM held a conversation with XX, in which information was conveyed by XX which SM considered material to the initiation of a disciplinary investigation into conduct of the applicant in relation to the promotion of another staff member. The communication of SM’s account of the telephone conversation to the applicant’s superiors gave rise to the whole train of events whose documentation was sought by the applicant. He was given access to all of this except, as indicated above, documents recording the identity of XX, the significant conversation between XX and SM and a subsequent conversation between XX and another staff member. Some, but not all, of the documents have been tendered in evidence before me.
10 The evidence showed that over the days and months ensuing after SM’s conversation with XX, an informal investigation was conducted by the applicant’s superior, Mr McCarthy, and was then more formally continued by other officers of the RTA. This led eventually to a finding of fault on the applicant’s part and his being moved out of his position. The applicant’s position was a most important and sensitive one in the functions of the RTA, since he was Manager of the Corruption Protection and Investigation Section. In this position he managed a unit required to conduct or supervise investigations into allegations of misconduct by all staff members throughout the RTA.
11 I have received evidence today in confidence from XX as to the circumstances of the conversation with SM to an extent not previously undertaken by the officers who handled the Freedom of Information request. I therefore have received more complete evidence than was available at the time of the decisions under review, and am better able to balance the competing considerations involved.
12 Although the document plainly contains information of the applicant’s own personal affairs, cl 6(2) indicates that this does not provide a ground of exemption which can be taken against the applicant. Perhaps the document also contained information concerning the personal affairs of SM, but no claim for exemption was claimed on this ground by Mr Youngman; possibly because SM has raised no objections when consulted. In any event, my reasoning below would lead to the rejection of any such claim.
13 The claim raised by Mr Youngman was that the document contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of XX. I think a reading of the document shows clearly that it does refer to information concerning the personal affairs of XX including, in the particular circumstances, the identity of XX. The critical issue is whether disclosure of that information would be unreasonable.
14 Mr Youngman accepted that, in the course of deciding the question of reasonableness or unreasonableness of disclosure, all the circumstances of the case should be evaluated including the likely harms and benefits to the persons concerned which might result from disclosure and the relevant public interests in relation to disclosure. In the present case, while focusing upon the aspects discussed below, I have taken into account all the material in evidence before me and all the submissions made to me by the parties.
15 I think five elements emerge pointing to the reasonableness of disclosing this document to the applicant under the FOI Act.
16 The first is that the information in the document concerns the applicant’s personal affairs to a more significant extent than those of XX. The information very significantly concerns his relationships with his colleagues, family and XX.
17 Secondly, the applicant has, in my view, an important personal interest in discovering the official record of what triggered or initiated the events leading to his disciplining. I consider that this interest is not diminished because, at the end of the day, the information did not provide the ground for that disciplining nor the evidence on which adverse findings were made. Nor, in my view, is it diminished because the formal disciplining procedure has come to a conclusion.
18 Thirdly, I think that the interest in disclosure of the document to the person directly affected can be characterised as a public interest, and not just one personal to the applicant. I think it is in the interests of an open society such as ours that a person should be able fully to discover and understand the process by which he or she has been seriously disadvantaged in their employment. This is particularly so in a case such as the present where the applicant has lost a senior managerial position in a large public authority: a position which had been attained after what, on the evidence before me, had been a long and illustrious career.
19 Fourthly, I think that in the peculiar circumstances in which the record of the conversation between SM and XX was brought into existence, there is a significant public interest which favours disclosure based on considerations of good administration of the RTA. The continuing secrecy of this record has fuelled in the applicant rational suspicions of impropriety in relation to the procedure followed in the preliminary investigation of his conduct, and has led him even to conjecture a serious abuse of personnel management in relation to the critically sensitive position which he had held. These suspicions may be without any substance at all, but I consider that there is a clear public interest in their being put to rest - or given substance - by disclosure to him of the full record of the investigation.
20 In this respect, I consider that there is an obvious public interest in accountability of the procedures followed where the personnel of an anti-corruption unit of an agency themselves initiate and conduct (if only in the preliminary stages) an investigation into one of their own managers. The fact that normal RTA personnel investigation procedures may not have been able to be followed means that there is a greater, not lesser, need for accountability of what happened under measures such as the FOI Act.
21 Moreover, I also note evidence before me that staff morale in the Corruption Protection and Investigation Section has been affected by the proceedings against the applicant. The evidence suggests to me that disclosure of the full record of how the proceedings commenced would assist the on-going management of the section by relieving festering disquiet among staff members. Certainly, Mr Youngman led no evidence of the contrary, despite being given ample opportunity to do so. His case for secrecy in the interests of personnel management – and indeed in the interests of the general administration of the RTA - was based entirely on a desire to uphold what was perceived to be an undertaking of confidentiality to XX. I will address this consideration below.
22 Fifthly, in relation to the interests of the administration of the RTA in the particular circumstances of the present case, I consider that it is important that the staff member (SM) who decided to take official notice of information given in a private conversation with XX and to promote it as a cause of an investigation into the applicant’s conduct, should be accountable for his actions by disclosure under the FOI Act. My particular reasons for saying this can be found in evidence of the relationship of SM and the applicant.
23 In saying the above, I want to make it absolutely clear that I make no finding and offer no opinions as to whether the disclosure of the document under the FOI Act should lead to approval or disapproval of the actions of SM or of any other RTA officer as revealed in the contentious documents. On such documents as I have seen, including the ones in contention, different interpretations may be open and different judgments made on the decision to use XX’s information to initiate an inquiry into the applicant, and the procedure under which it was used. These are not judgments which I need to make. It is enough for me to indicate that I think the interests of accountability under the FOI Act are promoted clearly, in my opinion, in this case by exhibit 2 being disclosed to the applicant.
24 Against the above elements, pointing in my view to a clear reasonableness in disclosing this document, there are three matters that I have taken particularly into account.
25 Firstly, I find that at the time that XX gave any information subsequently used and recorded by SM, XX believed that he or she was conducting a private and personal conversation with SM, without any implications for the applicant’s employment. I make that finding on all the evidence, and in particular on the confidential evidence that is before me. This fact renders unfortunate the disclosure of the information that was recorded, but that is the inevitable consequence of a private communication being used for official purposes. XX has already suffered substantial damage to his or her privacy resulting from a private conversation being put to official use. In my judgment, the damage is not significantly worsened by now revealing the record to the applicant. In any event, I do not consider that it outweighs the public interests favouring disclosure which are discussed above.
26 The second element, which is the one principally relied on by the respondent, is that the third person was promised confidentiality by officers of the RTA, in particular by SM and then by another officer in a subsequent conversation. On the evidence, I have considerable reservations as to whether SM ever gave XX an unqualified undertaking of confidentiality. However, assuming that such was given, on the evidence of XX it seems clear that it was given after XX gave the information to SM, so that the critical communication was not made under an undertaking of confidentiality. If so, the cat was out of the bag before confidentiality was promised, and although one can understand why an assurance of confidentiality was subsequently maintained, XX cannot complain of being mislead by that assurance into revealing the information which was recorded and acted upon.
27 Certainly, as I have indicated, the third person did not at the time of relating the information to SM, and I am quite sure about this, intend the conversation to be taken up officially by the applicant’s colleagues and by his employer. However, XX took an obvious risk that SM might feel compelled, once the information was communicated, to take official note of the information. It was therefore unfortunate and regrettable from XX’s perspective that the information was officially acted upon, but this does not on balance provide an overriding circumstances that causes disclosure of the document to become unreasonable under cl 6 of the FOI Act, taking into account the other considerations.
28 The third element pointing against disclosure, which I find the most weighty one, flows from what I have just said. This is that XX maintains an opposition to disclosure of the record of conversation to the applicant, and fears the consequence of the applicant having the document. I cannot elaborate on the circumstances of XX in relation to this.
29 I have given most serious weight to XX’s concerns, but I am not persuaded that the consequences feared by XX, or seriously harmful consequences of any sort, are likely to eventuate from disclosure to the applicant. Indeed it seems to me that there is an equal prospect that openness will enhance rather than diminish the circumstances of XX, and that XX’s relationship with the applicant’s colleagues and with the applicant will be assisted. In particular, the applicant has become almost certain as to the identity of XX, and I consider that his being given access to the contentious material will assist him to put his worst suspicions to rest and to build a more positive relationship with XX.
30 In reaching this conclusion, I have had to form an impression of the personalities of XX, of the applicant’s relevant colleagues and of the applicant. The applicant has given an assurance that he is not a vindictive person and does not intend to use the information in a vindictive way or in a harmful way against XX, and I accept that assurance. He is a man long accustomed to dispassionate consideration of evidence, and shows considerable insight into his personal relationships. I believe that the applicant will act rationally and understandingly as to what he discovers. On this assessment, although I accept that XX has the fears expressed to me, they are unlikely to eventuate. On balance, I have decided that the risk that they will eventuate may reasonably be taken, and that the fears do not render disclosure unreasonable in the face of the factors discussed above which strongly point towards disclosure of the record.
31 On balance therefore I consider there would not be a disclosure of information concerning the personal affairs of the third person, which, in all the circumstances, would be unreasonable if exhibit 2 were released to the applicant. No exemption has therefore been made out under cl 6.
32 As Mr Youngman accepted, this conclusion and the consequent release of Exhibit 2, means that the same judgment as to the claims for exemption under clause 6 would be made in relation to the deleted passages in the other four documents.
33 My findings and discussion above also, in my opinion, allows me to deal shortly with the other claims for exemption.
34 In relation to cl 13(b), I am not satisfied that the information recorded in Exhibit 2, which was communicated by XX to SM before an undertaking of confidentiality was requested and given, would disclose material “obtained in confidence”. Further, I do not believe that its disclosure in the present case would prejudice the future supply of such information to the government or an agency in other cases, if only because the supply for official use was involuntary and by someone who thought that they were engaging in a personal conversation. I consider that it is unlikely that disclosure in the present case would affect ability of the RTA – or any other agency – to use for official disciplinary purposes information given by persons such as XX in the circumstances in which XX was speaking to SM. Finally, even if I am wrong on these conclusions, the public interest considerations discussed above in relation to “unreasonableness” are far from satisfying me that disclosure would “on balance, be contrary to the public interest”.
35 No substantial submission was put to me under cl 13(b) that disclosure of matter contained in Exhibit 2 would found an action for breach of confidence, and I don't believe such a claim has been made out.
36 Mr Youngman relied on cl 16(a)(iii) on the basis that it would be detrimental to the RTA’s personnel management for it to fail to observe the promises of confidentiality given to XX. In effect, this relied on an argument that disclosure of XX’s information would impede the flow of similar information and its use in disciplinary investigations.
37 It is apparent from my above discussion that I do not consider that such an effect is likely. I am not satisfied that disclosure of Exhibit 2 would be reasonably expected to have “a substantial adverse effect on the management or assessment by an agency of the agency’s personnel”. Indeed, in my opinion, disclosure of the present record to the applicant is more likely to assist the management of the RTA’s personnel. As indicated above, I am hopeful that it will clear the air of festering suspicions in the present and former staff of the Corruption Protection and Investigation Section, and thereby improve morale in that important unit. Furthermore, I would hope that its disclosure in cases such as the present would encourage consideration of the ethics and procedures to be followed when information with official significance is given unwittingly to a staff member in a very personal conversation in which the informant has plainly not sought any official response to the giving of the information. For this exemption, too, I would find the balance of public interest to favour disclosure.
38 On the same reasoning, I reject the claims for exemption under cl 13 and 16 in relation to the deleted material in the other four documents.
39 I therefore make the decisions recorded above.
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