Cousins v Ambulance Service (NSW)
[2014] NSWCATAD 48
•23 April 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Cousins v Ambulance Service of New South Wales [2014] NSWCATAD 48 Hearing dates: 12 December 2013 Decision date: 23 April 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: S Higgins, Principal Member Decision: The decision of the respondent is varied in accordance with paragraph 86 of these reasons for decision.
Catchwords: Government information - form of access - proper construction of s 72(2)(d) - whether there is an overriding public interest in the disclosure of the information in the way requested by the applicant - whether access to the requested information, in the form requested, would interfere unreasonably with the operations of the agency - whether listening to the recording of the information at the offices of the respondent is an alternative form of access Legislation Cited: Administrative and Civil Tribunal Act 2013
Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Freedom of Information Act 1989 (repealed)
Government Information (Public Access) Act 2009
Health Services Act 1997Cases Cited: Attorney-General's Department v Cockcroft (1986) 10 FCR180
Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19
McKinnon v Secretary, Department of Treasury [2006] HCA 45
Turner v Corrective Services NSW (no 2) [2013] NSWADT 232
Warren v NSW Trustee and Guardian [2013] NSWADT 178Category: Principal judgment Parties: Christopher John Cousins (applicant)
Ambulance Service of New South Wales (respondent)Representation: C Cousins (Applicant in person)
M Bragg (Respondent)
File Number(s): 133256
reasons for decision
The applicant (Christopher John Cousins) seeks review of a decision of the respondent (Ambulance Service of New South Wales), made in regard to his application for access to specified information held by the respondent.
The applicant's application was made, in March 2013, pursuant to the Government Information (Public Access) Act 2009 (GIPA Act) and he requested a copy of the recordings of the communications (telephone and radio) between himself and the respondent's Northern Control Centre that were made late in the afternoon of 20 September 2012. The communications related to an urgent dispatch allocation, by the Manager of the Northern Control Centre, to the ambulance the applicant was driving at that time. The allocation was made in response to a triple zero request received by the Control Centre. The allocation came towards the end of the applicant's shift and the applicant appears to have had some concerns about being able to complete all his tasks before his shift was due to end.
Subsequent to these communications, on 29 September 2012, the applicant was advised that a written complaint had been made about his 'attitude and reluctance to carry out emergency work as requested' in regard to the allocation on the afternoon of 20 September. The applicant was given a copy of the written complaint and he was asked to provide a response to the complaint. I understand the applicant has not responded and has pursued access to a copy of the recordings for this purpose.
In his March 2013 access request, the applicant said he required access to copies of the recorded communications to assist him 'in determining whether or not to commence proceedings against a prospective defendant.'
On 22 May 2013, the respondent determined the applicant's access request. It identified, in a schedule, the relevant communications falling within the applicant's access request (i.e. 17 separate communications, 14 of which were less than 30 seconds in duration and the longest being for 3:25 minutes) and found that there was no overriding public interest consideration against the disclosure of the information, as it was accepted that the applicant had a 'personal involvement in [the] matter and the associated information generated.' However, the respondent refused to give the applicant a copy of the recordings on the ground that to do so 'would interfere unreasonably with the operations of [the respondent], specifically the Ambulance Control Division policy governing the use of recorded communications between Ambulance employees.' The respondent went on to state that, in accordance with para 72(1)(c) of the GIPA Act, it was determined that he be permitted to listen to the recordings in the presence of two named senior managers of the respondent.
The applicant, being dissatisfied with the determination of the respondent, sought external review by the Information and Privacy Commission (IPC): see s 89 of the GIPA Act. On 9 August 2013, the IPC completed its review and wrote to the parties informing them of its findings and recommendation. The IPC found that it was not satisfied that the respondent had correctly applied ss 72 and 73 of the GIPA Act and recommended that the respondent reconsider its decision.
The respondent did reconsider its decision. On 26 August 2013, the respondent advised the applicant that it had found that the public interest consideration against disclosure in cl 1(f) of the table in subs 14(2) of the GIPA Act, on balance, outweighed the public interest consideration in favour of disclosure of the information in 'the form requested' by the applicant. The respondent went on to say that the Director of the Control Division had nevertheless agreed, in accordance with para 72(1)(c) and 72(2)(d) of the GIPA Act, to permit the applicant access to the communications by being able to listen to them, in the presence of relevant managers.
The applicant has not listen to, or asked permission to listen to the recordings, as determined by the respondent. He said he believed he was entitled to receive a copy and was otherwise not prepared to listen to the recordings in the presence of and under the supervision of the relevant managers, as their conduct was the subject of his concerns.
The applicant's application was heard on 12 December 2013. At the conclusion of the hearing I reserved my decision.
As anticipated, on 1 January 2014, the NSW Civil and Administrative Tribunal was established and on its establishment the Administrative Decisions Tribunal was abolished (see s 7 and cl 3 of Schedule 1 of the Civil and Administrative Tribunal Act 2013). By reason of cl 7(2) and (3) of Schedule 1 of the Civil and Administrative Tribunal Act 2013, this application is taken to be an application before the NSW Civil and Administrative Tribunal (NCAT), with NCAT (the Tribunal) being vested with all the relevant functions of the Administrative Decisions Tribunal immediately before its abolition and the provisions of GIPA Act continuing to apply.
Issues
There is no dispute that the Tribunal has jurisdiction to hear and determine this application and that the onus is on the respondent to establish that its decision is justified (see subs 105(1) of the GIPA Act).
As pointed out by the respondent, the decision the subject of review is the respondent's decision of 26 August 2013. The respondent contended that the decision only involved the 'form' of access and not as to whether access should or should not be granted. That is, the application was a review of a decision made pursuant to subs 72(2) of the GIPA Act and not a decision pursuant to s 58 of that Act.
Subs 72(1) of the GIPA Act, prescribes the various forms in which access to government information can be granted. However, this is subject to subs 72(2), which provides an agency must provide access 'in the way requested' by the access applicant, unless one of the prescribed circumstances in para (a) to (d) applies.
It is the contention of the respondent that para 72(2)(d) applies, in that there is an overriding public interest against the disclosure of the information in the way requested by the applicant.
In the alternative, the respondent contends that para 72(2)(a) applies, in that in providing the applicant with access in the form requested would interfere unreasonably with the operations of the respondent.
The applicant contends that the decision of the respondent is not the correct and preferred decision.
The GIPA Act
There is no dispute that the information, the subject of this application, is government information that is held by the respondent.
Part 2 of the GIPA Act contains general principles in regard to access to government information. For the purpose of this application, the relevant provisions are in ss 5, 9, 12, 13, 14 and 15.
S 5 contains a presumption in favour of the disclosure of government information, unless there is an 'overriding public interest against disclosure'. Subs 9(1) gives every person who makes an access request for government information a legally enforceable right to be provided with access to the information in accordance with Part 4 of the Act unless there is 'an overriding public interest against disclosure of the information.'
The test to be applied in determining whether there is an 'overriding public interest against disclosure' is set out in s 13. That test is in the following terms:
13 Public interest test
There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
Subs 12(1) of the GIPA Act, provides that there is a general public interest in favour of disclosure of government information. Subs 12(2), provides that public interest considerations in favour of disclosure are not limited. The section goes on to provide some examples of public interest considerations in favour of disclosure of government information. These include:
Note. The following are examples of public interest considerations in favour of disclosure of information:
(a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.
(b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.
(c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.
(d) The information is personal information of the person to whom it is to be disclosed.
(e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.
The public interest considerations against disclosure are limited. These are set out in s 14 of the GIPA Act. Subs 14(1), provides that government information described in Schedule 1 of the GIPA Act is to be conclusively presumed to give rise to a public interest consideration against disclosure. This provision does not apply to this application.
Subs 14(2) sets out the only other public interest considerations against disclosure. For the purpose of this application, the relevant public interest considerations against disclosure are as follows:
14 Public interest considerations against disclosure
(1) ...
(2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.
(3) ...
(4) ...
Table
1 Responsible and effective government
There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally):
(a)
...,
(b)
...,
(c)
...,
(d)
prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions,
(e)
...,
(f)
prejudice the effective exercise by an agency of the agency's functions,
...,
2 Law enforcement and security
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):
(a)
...,
(b)
...,
(c)
...,
(d)
endanger, or prejudice any system or procedure for protecting, the life, health or safety of any person,
(e)
...
Section 15 sets out the principles that are to be applied when determining whether there is an overriding public interest against disclosure. That section provides as follows:
15 Principles that apply to public interest determination
A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles:
(a) Agencies must exercise their functions so as to promote the object of this Act.
(b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner.
(c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.
(d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.
(e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
Part 4 of the GIPA Act contains provisions in regard to how an access request/application is to be made (Division 1), how it is to be dealt with (Division 3), how it is to be decided (Division 4), how and when a processing charge or advance deposit can be imposed (Division 5) and the form in which access is to be provided (Division 6).
For the purpose of this application, the relevant provisions are ss 55 (in Division 3) and 58 (in Division 4) and ss 72, 73 and 74 (in Division 6) of the GIPA Act.
S 55 makes provision for personal factors to be taken into account in determining where the public interest lies. That section is in the following terms:
55Consideration of personal factors of application
(1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section:
(a) the applicant's identity and relationship with any other person,
(b) the applicant's motives for making the access application,
(c) any other factors particular to the applicant.
(2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information.
(3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14.
(4)...
(5)...
(6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person.
Note. An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73.
S 58 sets out how an access request/application is to be decided. It is in the following terms:
58How applications are decided
(1) An agency decides an access application for government information by:
(a) deciding to provide access to the information, or
(b) deciding that the information is not held by the agency, or
(c) deciding that the information is already available to the applicant (see section 59), or
(d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or
(e) deciding to refuse to deal with the application (see section 60), or
(f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact.
Note.These decisions are reviewable under Part 5.
(2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for.
(3) If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired.
S 72 makes provision for the form in which access can be provided. That section is in the following terms:
72 Forms of access
(1) Access to government information in response to an access application may be provided in any of the following ways:
(a) by providing a reasonable opportunity to inspect a record containing the information,
(b) by providing a copy of a record containing the information,
(c) by providing access to a record containing the information, together with such facilities as may be necessary to enable the information to be read, viewed or listened to (as appropriate to the kind of record concerned),
(d) by providing a written transcript of the information in the case of information recorded in an audio record or recorded in shorthand or other encoded format.
(2) The agency must provide access in the way requested by the applicant unless:
(a) to do so would interfere unreasonably with the operations of the agency or would result in the agency incurring unreasonable additional costs, or
(b) to do so would be detrimental to the proper preservation of the record, or
(c) to do so would involve an infringement of copyright, or
(d) there is an overriding public interest against disclosure of the information in the way requested by the applicant.
Note. Decisions about how to provide access are reviewable under Part 5.
S 73 provides that where a decision is made to grant access to government information, subject to the prescribed exceptions, that access is unconditional. That section is in the following terms:
73 Access to be unconditional
(1) An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application.
(2) A condition may be imposed as to how a right of access may be exercised (such as a condition that prevents an applicant making notes from or taking a copy of a record that is made available for inspection) but only to avoid there being an overriding public interest against disclosure of the information.
(3) A condition may be imposed that access to medical or psychiatric information will only be provided to a medical practitioner nominated by the applicant and not to the applicant personally.
Note. Access can also be made conditional on the payment of processing charges (s 64) and on the provision of evidence of identity or other personal factors relevant to the agency's decision to provide access (s 55).
S 74 makes provision for deletions of information from a copy of a record. That section is in the following terms:
74 Deletion of information from copy of record to be accessed
An agency can delete information from a copy of a record to which access is to be provided in response to an access application (so as to provide access only to the other information that the record contains) either because the deleted information is not relevant to the information applied for or because (if the deleted information was applied for) the agency has decided to refuse to provide access to that information.
S 107 of the GIPA Act sets out the procedure to be used, by the Tribunal, in regard to information for which there is, or claimed to be an overriding public interest consideration against disclosure, when reviewing a decision of an agency. The provision essentially requires the Tribunal to ensure that it does not disclose, in its decision or during the course of the hearing, such information to the applicant, the applicant's legal representative, or the public.
Evidence
In support of its case, the respondent relied on the evidence of Peter Elliott, the Northern Control Centre Manager of the respondent, as set out in his statement dated 25 October 2013. Mr Elliott was not required for cross-examination. However, he was present during the hearing and was able to provide responses to questions that arose.
The respondent also provided the Tribunal with a CD copy of the relevant recordings.
The applicant relied on an affidavit sworn by him, on 20 November 2013. He also relied on a statement of Wayne Flint and Peter Rumball. Mr Flint and Mr Rumball are also employees of the respondent. The essence of their evidence is that they have never regarded the day-to-day work related recorded telephone and radio communications between officers of the Control Room and ambulance officers to be confidential.
The applicant also raised a number of concerns he had about the manner in which the respondent's managers have treated him and his colleagues. He asserted they engaged in bullying and intimidation behaviour and corrupt conduct. I explained to the applicant a number of time that these were not matters the Tribunal could deal with, but his concerns were noted to the extent they were relevant to the issues in this application.
Mr Elliott gave a detailed explanation of the structure of the respondent, its functions and its communications system. In this regard he said that the respondent provided clinical and health related transport services to persons located in New South Wales (the State). These are provided under the Health Services Act 1977 and Part 3A of the Health Services Regulation 2008. He said it is one of the largest ambulance services in the world serving a population in excess of seven million. It employs about 4,500 people, at over 300 locations within the State, and has a fleet of around 1,500 ambulances.
As part of its functions the respondent provides, operates and maintains emergency health transport, rescue and patient transport system for the State. Mr Elliott said that in this regard the respondent responds to a call for assistance about every 27 seconds.
Mr Elliott explained that within the State, the respondent has four Control Centres, each having its own defined geographical area or jurisdiction. These Centres are located in in Sydney, Newcastle, Wollongong and Dubbo. The function of each Centre is to receive requests for ambulance services and coordinate the deployment of ambulance vehicles and other resources in response to such requests.
Mr Elliott said the respondent operated an integrated computer aided medical call and dispatch system (i.e. the Computer Aided Dispatch (CAD system)) across the four Centres. The triple zero emergency line and the booking line for priority medical calls are integrated into this system so that these calls present to the first emergency call operator at any one of the four Centres. On receiving such a call, the emergency call operator enters the relevant information into the CAD system. At the same time, the CAD system, on identifying the location of the patient, automatically presents the information from the call to the 'dispatch board' of the relevant Control Centre for allocation/assignment, by the of Manager of the Centre. That Manager then allocates/assigns an ambulance, within the geographical area where the patient is located, to attend to the call. Each allocation/assignment is given a specific number.
Mr Elliott explained that the information entered into the CAD system are also automatically transferred to an ambulance Mobile Data Terminal (MDT) for the responding (allocated) paramedics to read as a message and also to use in the course of their response. These responses are also recorded in the CAD system.
Mr Elliott explained that in addition to the CAD system, Managers of the Control Centre, supervisors and paramedics communicate through the respondent's Government Radio Network and Private Radio Network. He said that each Centre is subject to the same policies, protocols and procedures in regard to that system. He said, in the Newcastle area, radio transmissions from the Control Centre to the ambulance occur on the Government Radio Network.
Each Control Centre communications workstation has a DX64, which enables the operator to access all connected radio networks and telephone system.
Mr Elliott explained that all calls (i.e. those on the CAD system, the radio network and the private mobile radio) made to and from the operator positions within a Control Centre are recorded. This includes all triple zero calls and those from the emergency booking line. He said they were recorded 'in order to maintain an official record of information from the public, ambulance bookings, dispatch orders, instructions from the Control Centre to paramedics, and information from hospital to paramedics.' He said the Control Centres operate as a declared 'emergency service facility' within the meaning of subs 6(2A) of the Telecommunications (Interception and Access) Act 1979 and are therefore exempt from transmitting a warning tone to indicate that the call is being recorded.
He said there are signs within the Control Centre stating that all calls are recorded. These are visible to all staff and visitors and all staff (including paramedics) are informed that such calls are recorded during training activities. Staff, are informed that access to these recordings, by them and other staff members is strictly limited to the circumstances set out in the respondent's 'Policy on Listening to and/or recording Communications between Ambulance Service of New South Wales Employees.'
The introduction to the Policy states that its purpose 'is to address the issue of recorded communications between [the respondent's] employees.' The 'Policy Statement' is in the following terms:
3. POLICY STATEMENT
The use of interceptions (ie listening to or recording) of communications between staff for the purpose of investigating a complaint and/or initiating disciplinary procedures is not permitted. There are three exceptions to this policy statement:
1. If the purpose of listening to the tape recorded conversation is in connection to providing an ambulance response; or
2. If the purpose of listening to the tape recording is to review the Service's response to a request for an ambulance; or
3. If both parties to the telephone conversation consent to the recording being listened to.
This policy applies to the listening to and/or recording of communications by both the 'quick recorder' devices and the archived tapes. Staff are reminded that the 'quick recorder' devices are only intended for assisting in providing a rapid and accurate ambulance response. Making copies of these communications is not permitted under any circumstance. (emphasis added)
...
The policy goes on to prescribe how an employee can request and obtain assess, where one or more of the abovementioned exceptions arise.
Mr Elliott noted that the respondent also had a policy in regard to requests for access by other emergency services, such as police, the Coroner and Workcover. That policy ('Sharing Sound Files with Emergency and Rescue Services') relevantly provides:
Rationale
To describe the procedure for processing a request from an emergency or rescue service for sound files of calls received by Ambulance.
Application
This procedure applies to all Operations Centres and relates to requests received from any emergency or rescue service.
The policy goes on to sets out how requests for sound recordings are to be made, provided and recorded. In this regard I note para 6 of the policy makes provision for sound recordings to be made in the form of a tape, CD or DVD. However, in accordance with the policy, they can only be made available to an emergency or rescue service.
Mr Elliott asserted that the information in the recordings held by the respondent of communications through its CAD system, the radio network and the private mobile radio were confidential in their entirety, including the recordings of communications from, or between employees of the respondent in the ordinary course of their day-to day duties.
There is no dispute that the recordings in issue in these proceedings are communications between employees, which have been on the respondent's integrated communications system.
As I have already noted, the recordings consist of a number of short telephone and radio communications, between the applicant and the Manager of the Northern Control Centre, on 20 September 2012, between 4:33 to 5:20 pm, at a time the applicant was on duty. There are four telephone calls from or to the applicant's mobile phone (three from the Control Centre to the applicant and one from the applicant to the Control Centre) and 13 radio transmissions (seven from the Control Centre and six from the applicant).
The initial communication was a radio communication from the Northern Control Centre, at 4:33 pm, to the applicant's ambulance for the purpose of assigning the urgent dispatch to the applicant's ambulance.
As I have explained earlier, the applicant's evidence is that this assignment was close to the end of his shift and as he still had some outstanding paper work to do, he was concerned about being able to complete this and undertake the assignment. He said he raised these with the Manager of the Control Centre at that time.
In regard to the written complaint, made by the Manager of the Control Centre, who assigned the urgent dispatch to the applicant's ambulance, the applicant contended that the assertions in the complaint were 'untrue' and he would be able to establish this when he receives a copy of the recordings. The applicant also asserted that the recordings were not confidential and that managers and supervisors access them all the time. He said he needed a copy of the recordings, as they would evidence his concern about being subjected to ongoing bullying conduct by managers. These concerns, he said, he wanted to refer to the Independent Commission Against Corruption (ICAC) for investigation.
It was the evidence of Mr Elliott that, if the applicant was aggrieved about the conduct of the Manager he could make a complaint pursuant to the respondent's grievance policy, 'Raising Workplace Concerns.' It was noted that, as at the date of hearing, the applicant had not made a complaint about the conduct of the Manager under this policy.
During the course of the hearing, Mr Elliott also indicated that the Manager who had made the written complaint would not have accessed the recordings for the purpose of making his complaint, but would have relied on his own memory of events.
Mr Elliott also gave evidence about the effect a release of a copy of the recordings would have on the respondent and the processes involved in providing a copy of such recordings that are correct and reliable. I have dealt with this evidence below.
Consideration
The role of the Tribunal is to determine, whether the decision of the respondent is the correct and preferred decision, having regard to the applicable law and the relevant facts: see subs 63(1) of the Administrative Decisions Review Act 1997 (as it applied on 31 December 2013). The applicable law is that set out in the GIPA Act and the relevant facts are those relating to the applicant's request for access to a copy of the recordings of the communications between himself and the Manager of the Control Room on 20 September 2012.
As the onus is on the respondent, it is appropriate consider this application in the terms on which it relies.
Paragraph 72(2)(d) of the GIPA Act
I am not persuaded by the respondent's arguments as to the proper construction and application of para 72(2)(d) of the GIPA Act. In this regard the respondent argued that my construction as to the meaning and application of this paragraph, as described in Warren v NSW Trustee and Guardian [2013] NSWADT 178 at [59] and [60], was unfounded. It contended that it was correctly construed and applied by Judicial Member, Montgomery, in Turner v Corrective Services NSW (No 2) [2013] NSWADT 232 at [32] to [36].
In my opinion, the reasoning of the Tribunal in Turner is consistent with my reasoning in Warren. I note, in Turner, the decision the subject of review was the respondent agency's determination, under s 58 of the GIPA Act, to refuse the access applicant access to the information sought. What the applicant sought, was a copy of specified CCTV footage held by the respondent agency. The respondent agency, as it was required to do, identified the relevant competing public interest considerations for and against disclosure of a copy of the information sought. In this exercise, it identified that the public interest consideration against disclosure, in cl 2(e) of the table to subs 14(2) of the GIPA Act applied to a disclosure of a copy of the information sought: see Turner at [19]. The respondent agency then weighed the identified competing public interest considerations and found, on balance, that the public interest consideration against disclosure outweighed the public interest consideration in favour of disclosure the disclosure of a copy of the information sought. On review, the Tribunal found that the respondent's concerns (i.e. the overriding public interest against disclosure) would be addressed if the access applicant were to be given access to the CCTV footage in an alternative form (i.e. access by viewing the CCTV footage). Implicit in the Tribunal's reasoning is a finding that the decision of the respondent agency about the 'disclosure' of a 'copy' of the requested CCTV footage was correct.
Hence, I remain of the view that the circumstances set out in para 72(2)(d) of the GIPA Act are only applicable after an agency has identified any public interest consideration against the disclosure of the information in the form sought and where a public interest consideration against disclosure is identified, weighing that public interest consideration against the public interest consideration in favour of disclosure in the form sought (i.e. the s 13 test). In weighing the competing public interests the agency can take into account any relevant factor falling within s 55 and the inability to grant conditional access (see 73(1)).
If the s 13 test is not satisfied, then subs 9(1) provides that the access applicant has a legally enforceable right to be provided with the information in the form sought.
On the other hand, if the s 13 test is satisfied and there is an overriding public interest against disclosure of the information in the form sought, in my view, para 72(2)(d) makes provision for the agency to consider whether disclosure of the information sought, in a form, other than that requested by the access applicant, would alter the balance between the competing public interests so that the public interest considerations against disclosure no longer outweigh the public interest considerations in favour of disclosure if access is granted in an alternative form. This approach, in my view, is also consistent with the structured approach to decision making, under the GIPA Act, as noted by the Appeal Panel, in Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19, at [25].
Accordingly, I have considered the respondent's arguments in the context of this approach.
As I have noted, there is a presumption in favour of the disclosure of the information sought, unless there is an overriding public interest consideration against disclosure.
In my view, the public interest considerations in favour of disclosure are:
- disclosure of the information could reasonably be expected to enhance government accountability, or contribute to positive and informed debate on issues of public importance
- disclosure of the information could reasonably be expected to inform the public about the operations of the agency
It is accepted that the words 'could reasonably be expected to' in the GIPA Act, as they appear in subs 12(2) and the clauses (including cl 1 and 2) of the table in subs 14(2) of the GIPA Act are to be given their ordinary meaning and 'require a judgement to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous' to expect to have the prescribed consequences set out in the paragraphs to the relevant applicable clause: see Camilleri (supra) at [28], McKinnon v Secretary, Department of Treasury [2006] HCA 45, at [61] and Attorney-General's Department v Cockcroft (1986) 10 FCR180, at 190.
The applicant asserts that the public interest consideration in favour of disclosure, as set out in para (e) of the Note to subs 12(1) of the GIPA Act applies. That is, the disclosure of the information could reasonably be expected to evidence ongoing alleged bullying by managers of the respondent. It is his contention that he and his colleagues are continually being bullied by their respective managers and this is perpetrated by the managers through unfair and unrealistic allocations of work. As work is allocated through the respondent's communication system, the applicant went on to assert that a copy of the recordings would evidence behaviour of this kind.
The respondent contends that there is a public interest consideration in favour of disclosure by way of providing the applicant with the opportunity to listen to the recordings so as to satisfy himself of the content of the recordings and to make a written recording of his observations and then take whatever legal action he proses on the basis of what he has heard and recorded. The respondent went on to assert that if the applicant, on hearing the recordings, decided to take legal action he always had available to him the ability to subpoena a copy of the recordings. In my opinion, this is not a relevant consideration for the purpose of assessing whether access should be granted or refused to the information sought. The assessment is to be made in the context of the provisions in the GIPA Act.
The question is whether, having regard to the nature of the information in issue, a disclosure of the information could reasonably be expected to reveal or substantiate that a member of the agency has engaged in misconduct, or improper or unlawful conduct. It is not for the Tribunal to assess the information in issue and determine whether it does or does not reveal or substantiate such conduct. The inquiry is more abstract in that it is the nature of the information which is to be considered.
Having regard to the nature of the information in issue, in my opinion, it cannot be said that a disclosure of the information could reasonably be expected to reveal or substantiate that the respondent's Control Centre Manager, on the day in question engaged in misconduct, or improper or unlawful conduct. I note that the written complaint, made against the applicant, does not rely on the content of these recordings and it was the evidence of Mr Kelly that, in accordance with the respondent's access policy, the complaint had not accessed or sought access to the recordings.
However, I do find that the information is about the applicant. The respondent has not asserted that it is 'personal information' about the applicant as defined in cl 4 of Schedule 4 of the GIPA Act. In my view, it is information about the applicant, whose identity can reasonably be ascertained from the information. I also find that it does not fall within the exception in cl 4(3)(b) as it goes beyond the applicant's name and his non-personal contact details which reveal the fact that he was engaged in the exercise of his public functions at the time. Accordingly, I accept that the information in dispute is, in part, personal information of the applicant. This, as noted in para (d) of the note to subs 12(1) is a public interest consideration in favour of disclosure.
In regard to the public interest considerations against disclosure, in Camilleri, at [29], the Appeal Panel said that the s 14 table considerations of the GIPA Act squarely focus on considerations relating to the conduct of the business of government. Hence, the question to be asked is whether the material of the kind sought to be protected, could, if released, as a matter of reasonable expectation have the asserted prescribed effect.
On the material before the Tribunal, I am not satisfied that the public interest considerations in cl 1(d), or 2(d) of the table to subs 14(2) of the GIPA Act applies in regard to the disclosure of the information in issue.
In regard to cl 1(d), I am not satisfied that the communications the subject of this application are confidential in the relevant sense. Unlike the facts in Camilleri, the information in issue is not information provided by a third party. The information in issue is solely a recording of communications, between employees of the respondent, in the ordinary course of their respective day-to-day duties. That is the information in issue is not information 'supplied' to the respondent. Nor does the respondent's 'Policy on Listening to and/or recording' in regard to communications of this kind say that these communications, or recordings thereof, are confidential in the relevant sense. The policy does no more than provide internal restrictions on the circumstances in which these recordings can be listened to, or used by employees for purposes other than for which they were intended. Furthermore, every employee is aware that communications about urgent dispatches from the Control Centre are recorded and the circumstances in which they can be listened to or used.
That is, on the evidence, the communications in issue are part of the day-to-day activities of the respondent and its employees in performing their respective functions and duties. I accept they are often made in times of emergency. However, I am not satisfied that a disclosure of these communications could reasonably result in the employees communicating inappropriately or not at all. There is no evidence to support such an assertion.
For the same reasons, I am not persuaded that a disclosure of the information in the recordings in issue could reasonably be expected to endanger, or prejudice 'a system', or 'procedure' for protecting, the life, health, or safety of any person (see cl 2(d)).
However, having regard to the evidence of Mr Elliott, I am satisfied that a disclosure of the information sought could reasonably be expected to prejudice the effective exercise, by the respondent, of its functions (cl 1(f) of the table to subs 14(2) of the GIPA Act). These functions are set out in s 67B of the Health Services Act 1997 as follows:
67B Provision etc of ambulance services
(1) The Director-General has, on behalf of the Crown, the following functions:
(a) to provide, conduct, operate and maintain ambulance services,
(b) to co-operate with or provide assistance to any person or organisation for the purposes of providing, conducting, operating and maintaining ambulance services,
(c) in connection with ambulance services referred to in paragraph (a), to protect persons from injury or death, whether or not those persons are sick or injured,
(d) to adopt and implement all necessary measures (including systems of planning, management and quality control) as will best ensure the efficient and economic operation and use of resources in the provision of ambulance services,
(e) to consult and co-operate with individuals and organisations (including voluntary agencies, private agencies and public or local authorities) concerned with the provision of ambulance services,
(f) to co-ordinate and plan the future development of ambulance services, and towards that end, to support, encourage and facilitate the organisation of community involvement in the planning of those services,
(g) to set objectives and determine priorities in relation to the provision of ambulance services and to monitor whether those objectives are achieved,
(h) to achieve and maintain adequate standards of ambulance services,
(i) to make available to the public reports, information and advice concerning the operation of ambulance services,
(j) to provide assistance to, or co-operate with, any person or organisation in connection with the depiction of ambulance services in the news or entertainment media,
(k) to exercise such other functions in relation to ambulance services as may be conferred or imposed on the Director-General by the regulations.
The communications systems of the respondent are an essential feature of the respondent's ability to fulfil its statutory functions in serving the community in providing day-to-day efficient and effective emergency ambulance services. The purpose of the system is to respond to triple zero calls and other requests for ambulance service. That is it is an integral part of the respondent providing an essential service to the community of New South Wales. Its purpose is not to monitor the performance of the individual ambulance officers of the respondent.
As Mr Elliott explained, on any one day there may be in excess of 90,000 individual communications through the respondent's CAD, telephony and radio communications systems. Each of these is recorded and to ensure these systems are used for the purpose intended, the respondent introduced its 'Policy on Listening to and/or Recording Communications between Ambulance Service of New South Wales Employees.' As I have already explained, employees of the respondent are aware of the Policy and the circumstances in which access to these recordings will be provided. The applicant's request for access to a copy of the specified recordings does not fall within these.
The question is, whether this public interest consideration against disclosure, on balance, outweighs the public interest considerations in favour of disclosure. In my view, for the reasons stated above, considerable weight should be given to this public interest consideration against disclosure. At the same time, I find that the public interest considerations in favour of disclosure (other than the information being personal information about the applicant) are not strong as a disclosure of the specific information in issue will provide little assistance in informing the public about the operations of the respondent, or enhance in a substantive manner the accountability of government. In regard to the information being personal information of the applicant, more weight needs to be given to this, especially as he seeks to have access to assist him in responding to the complaint that has been made against him. That complaint, as I have explained, is not based on what he said during the relevant communications. Nevertheless, in my opinion this public interest consideration in favour of disclosure should be given considerable weight.
In my opinion, for the reasons I have given, in weighing the competing public interests, on balance, the public interest consideration against disclosure of the information in the form requested outweighs the public interest in favour of disclosure. That balance, in my opinion, would change if the applicant were to be given access in the form of being able to listen to the recordings, unsupervised, at the offices of the respondent. In doing so, the applicant should be permitted to bring a support person and make notes.
Para 72(2)(a) of the GIPA Act
As a consequence of my findings above, it is unnecessary to deal with this alternative ground relied on by the respondent. However, I would indicate, in the event I am wrong in regard to where the balance lies between the competing public interest considerations, I would nevertheless have been satisfied that the respondent had established this ground. That is, on the basis of the evidence of Mr Elliott, as discussed above, I would have been satisfied that to provide the applicant with access to a copy of the recording of the communications requested would interfere unreasonably with the operations of the respondent.
Conclusions and Orders
For the reasons set out above, I have found that the decision of the respondent to provide the applicant with access to the information sought in a form other than he had requested is the correct and preferred decision and should be affirmed. Under subs 72(1) the form of access must be in one of the prescribed forms, other than a copy of the record. These forms of access appear to incorporate those prescribed in s 27 of the former Freedom of Information Act 1989 (repealed).
In my view, the form of access determined by the respondent (i.e. listening to the recordings at the offices of the respondent) falls within para 72(1)(c) of the GIPA Act (i.e. the former para 27(1)(c) of the Freedom of Information Act 1989 (repealed), which described this form of access more clearly). However, there is no basis for the access to be supervised as determined by the respondent. I note the respondent agrees that the applicant is able to take notes when listening to the recordings. In my view, the applicant should also be able to bring a support person. I also suggest the parties reach some agreement as to the best means of securing the integrity of the recording, should it be required in the future.
Accordingly I order that the decision of the respondent is varied in the terms set out in paragraph 86 above.
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: 23 April 2014
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