Department of Education and Training v GJ (GD)

[2009] NSWADTAP 33

Appeal Panel - Internal

CITATION:	Department of Education and Training v GJ (GD) [2009] NSWADTAP 33 This decision has been amended. Please see the end of the decision for a list of the amendments.
PARTIES:	APPELLANT Department of Education and Training RESPONDENT GJ
FILE NUMBER:	089081
HEARING DATES:	4 March 2009
SUBMISSIONS CLOSED:	18 March 2009
DATE OF DECISION:	29 May 2009
BEFORE:	O'Connor K - DCJ (President); Fitzgerald K - Judicial Member; Bolt M - Non-Judicial Member
CATCHWORDS:	Freedom of Information – Confidential Information, Personal Affairs Exemptions – Relevant Considerations – Law Enforcement Exemption – Meaning of “Confidential Source” – Appeal Allowed
DECISION UNDER APPEAL:	GJ v NSW Department of Education and Training [2008] NSWADT 310
FILE NUMBER UNDER APPEAL:	073330
DATE OF DECISION UNDER APPEAL:	11/21/2008
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Crimes Act 1900 Freedom of Information Act 1982 (Vic.) Freedom of Information Act 1989
CASES CITED:	Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667 Cheney v Sydney West Area Health Service [2008] NSWADTAP 29 Chief Constable of the Greater Manchester Police v McNally (2002) EWCA Civ 14 Cianfrano v Director-General, Premiers Department [2007] NSWADT 216 Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606 (Perrin’s case) D v National Society for the Prevention of Cruelty to Children [1978] AC 171 Director General, Department of Education & Training -v- Mullett & anor (GD) [2002] NSWADTAP 13 DQ -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 215 GJ v NSW Department of Education and Training [2008] NSWADT 310 Humane Society v National Parks and Wildlife Service [2000] NSWADT 133 Macquarie University v Howell (GD) [2008] NSWADTAP 46 Macquarie University v Howell (No. 2) (GD) [2009] NSWADTAP 19 Marke v Victoria Police [2007] VSC 522 Mauger v Wingecarribee Shire Council [1999] NSWADT 35 Ranier Pty Ltd New South Wales Casino Control Authority and anor [2007] NSWADT 118 Re Burns and ANU (No 2) (1985) 7 ALD 425 Re McEneiry and Medical Board of Queensland (1994) 1 QAR 349 Saleam v Director General, Department of Community Services and ors [2002] NSWADT 41 Simring v Commissioner of Police, NSW Police Force [2009] NSWSC 270 Taylor v Chief Inspector, RSPCA [1999] NSWADT 23 University of New South Wales v McGuirk [2006] NSWSC 1362 Victoria Police v Marke [2008] VSCA 218 Vranic v Director-General, Department of Community Services [2001] NSWADT 129 XZ v Commissioner of Police, NSW Police Force [2009] NSWADTAP 2
REPRESENTATION:	APPELLANT G Shirm, solicitor, Crown Solicitor's Office RESPONDENT In person
ORDERS:	1. Appeal allowed. 2. Order 2 of the Tribunal as it relates to documents 448 and 446 set aside.

1 The Department of Education and Training has appealed against a decision of the Tribunal made under the Freedom of Information Act 1989 varying its determination to refuse an access applicant certain documents.

2 The access request was made by the respondent, GJ. She sought access to the whole of an investigation report made up of 567 folios (or pages), comprising a principal report and numerous annexures. The Department granted her request as it related to 339 pages, and refused her request in relation to the balance, 228 pages. The Tribunal upheld the Department’s determination as to 220 of the 228 pages, and varied it in the case of the remaining 8 pages by order no. 2: see GJ v NSW Department of Education and Training [2008] NSWADT 310 (21 November 2008).

3 The Department has appealed against order no. 2 only as it relates to documents 448 and 446. These documents are a person’s file notes of statements made by GJ in two telephone calls to that person. They were handed by the person to an investigator undertaking an internal investigation into the conduct of a teacher, the then husband of GJ. The order as it relates to documents 448 and 446 has been stayed pending this decision. (We will refer to the higher numbered documents first, as the document numbering commences from 001 at the end and moves forward, with the front page bearing the highest number.)

4 The respondent, GJ, has not appealed against the orders of the Tribunal insofar as they were adverse to her. But she does oppose any variation of the orders for release to her of documents 448 and 446.

5 Order 2 states relevantly:

‘2. The respondent’s decision in regard to the remaining documents as referred to in paragraph 48(b) and (c) to these reasons for decision is varied to a decision … to grant the applicant access to a copy of the documents that are at folio … 446, 448, … with the exempt matter as referred to in paragraphs [45] and [46] of these reasons for decision being deleted’

6 Paragraph [45] refers to documents 448 and 446. It states:

‘45 To the extent folio 448 contains personal information unrelated to the applicant’s phone call on 18 July 2002, this information remains exempt under clause 6(1). Disclosure of this personal information would, in my opinion, involve an unreasonable disclosure and remains an exempt matter. Accordingly, the applicant should be granted access to a copy of folio 448 with this exempt matter deleted pursuant to section 25(4) of the FOI Act. In my opinion the same applies to the name and position of the author of the file note that is folio 446.’

7 The file notes are found in the annexures to the report entitled ‘Preliminary Investigation into Alleged Falsification of a Witness Statement’. The ‘Witness Statement’ is a record of interview between Mr Malins of the Child Protection Unit of the Department and GJ dated 22 July 2002. Mr Malins had charge of an investigation into the conduct of GJ’s husband. The investigation had commenced in December 2001, the subject being an alleged inappropriate relationship with a female student (who as at 2001 was a year 11 student). At the beginning of the school year 2002, the Department moved the husband away from the school to other duties (non-teaching). Ultimately in or about 2005 there was a finding of improper conduct, and her husband was dismissed. At that point GJ applied for documents relating to the Malins’ investigation. Among the documents released was the record of interview. She lodged a complaint with the Department over various aspects of the Malins’ investigation, and in particular the accuracy and fairness of the record of interview with her dated 22 July 2002. As a result the Department initiated the inquiry giving rise to the report to which documents 448 and 446 are appended.

8 The date of the record of interview, 22 July 2002, is significant. GJ, herself a teacher, had been away in London working between February and July 2002. One of the matters of interest was whether the student had lived with GJ’s husband at the family home while she was away in London.

9 The following is known to the parties about the disputed documents. Documents 448 and 446 were given to Mr Malins by the author when the author was interviewed on 24 July 2002. The author is female, and was, at the material times, an employee at the school. As noted earlier, they record notes of telephone conversations with GJ that occurred on 18 July 2002 (document 448) and 21 July 2002 (document 446). The author objects to both disclosure of the notes and disclosure of her identity.

10 Among the pages from the report that have been disclosed to GJ is the Executive Summary at the front of the report. The report notes that GJ has steadfastly maintained the innocence of her husband in relation to the charges made against him. In the report author’s opinion, the major exception is to be found in statements attributed to her by those with whom she dealt in the days after she returned from London.

11 The Summary sets out at 564-562 the investigation’s ‘Findings’. The principal Finding was that ‘the available evidence does not support a conclusion that Mr John Malins falsified a statement taken from [GJ] on or about 22 July 2002 or that he falsified his own statement concerning his interviews with her on 18 and 24 July 2002’. In support of this conclusion the report refers, by way of corroboration of the accuracy of Mr Malins’ record of interview with GJ, to statements that GJ had made to others over those days. Direct reference is made to statements made by the author of the documents in dispute:

‘Further, a record of interview between [DELETED], a teacher at [the High School], and Mr Malins on 24 July 2005 indicates that [DELETED] told Mr Malins that, in a phone call on 18 July 2002, [GJ] made her ‘very aware of the sexual nature of the relationship’ between [the husband] and [the female student]. The record of interview also indicates that, in a further phone call on 21 July 2002, [GJ] told her that she believed that [the husband] was secretly meeting with [the female student] at night as early as October 2000.’

12 While the Tribunal did uphold the Department’s determination refusing access to Mr Malins’ record of the interview with the employee, it did not extend that protection to the notes of the abovementioned telephone calls. Simply put, the Department’s view is that the considerations that led to the record of interview being protected apply equally to the employee’s written notes.

13 In relation to the material for which it claimed exemption, the Department relied on one or more of the following exemptions, and most importantly cl 13. It relied on all three exemptions in relation to documents 448 and 446.

‘ 13 Documents containing confidential material

A document is an exempt document:

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

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

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

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

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.

4 Documents affecting law enforcement and public safety

(1) A document is an exempt document if it contains matter the disclosure of which could reasonably be expected:

(b) to enable the existence or identity of any confidential source of information, in relation to the enforcement or administration of the law, to be ascertained.’

14 As to the Claims for Exemption based on Clause 13(b) and Clause 6: While the Tribunal found that all three requirements of cl 13(b) were made out in relation to most of the material for which exempt status was claimed, the Tribunal held that requirement (iii) was not made out in the case of the notes of the telephone conversations. It said:

‘31 … In my opinion there are only two documents of the documents found to have met the other two aspects of the clause 13(b) exemption which do not also meet this last aspect. These documents are the file note of a conversation the applicant had with Mr Malins on 2 August 2002 and two further file notes dated 18 & 21 July (i.e. the documents found at folio 363, 446 and 448 (in part)). These are documents that concern the personal affairs of the applicant and are discussed more fully below in regard to the clause 6 exemption. [The decision as it relates to 363 is not in issue.]’

15 It will be seen that the Tribunal, in effect, adopted as its reasons in respect of requirement (iii) the reasons given for not upholding the Department’s claim based on cl 6.

16 Those reasons were as follows:

‘43 Folio 446 and 448 (in part) are file notes of a school employee recording a telephone conversation the employee had with the applicant on 18 and 21 July 2002. The respondent consulted (see section 31 of the FOI Act) this employee as to whether he/she objected to the release, to the applicant, of the file notes that are at folio 446-448. The respondent provided the Tribunal with a confidential file note which recorded the oral response of this employee.

44 In my opinion, although the school employee did not write the file note in the same capacity as the file note that was written by Mr Malins, the employee wrote the file notes in her capacity as an employee recording what was said to her by the applicant on the relevant days. The file notes do not otherwise contain any comments or opinion of the employee. It is on this basis that I find that disclosure of these documents to the extent they record the author’s recollection of what was said by the applicant, would not involve an unreasonable disclosure of information concerning the personal affairs of the persons other than the applicant referred to in the file notes. The response of the author of these file notes does not alter my findings.

45 To the extent folio 448 contains personal information unrelated to the applicant’s phone call on 18 July 2002, this information remains exempt under clause 6(1). Disclosure of this personal information would, in my opinion, involve an unreasonable disclosure and remains an exempt matter. Accordingly, the applicant should be granted access to a copy of folio 448 with this exempt matter deleted pursuant to section 25(4) of the FOI Act. In my opinion the same applies to the name and position of the author of the file note that is folio 446.’

17 As to the Claims for Exemption based on Clause 4(1)(b): The Tribunal said at para [50]:

‘50 In my opinion, in this application the clause 4(1)(b) exemption has limited if any application to information that is contained in the documents in categories set out in sub paragraph 16(c) to (i) above. The reason for this is that there is no evidence that the person(s) who provided the information contained in any of the documents did so on the basis of being an ‘informer’ not wishing his/her identity being revealed.’

18 The Department’s appeal alleges that the Tribunal erred in law in its determination, and seeks leave of the Appeal Panel for the appeal to be extended to the merits, and the matter finalised. See Administrative Decisions Tribunal Act 1997, ss 112, 113.

19 Ground 1 challenges the Tribunal’s decision in relation to cl 13(b); Ground 2 in relation to cl 6; and Ground 3 in relation to cl 4(1)(b).

20 To assist in understanding the grounds of appeal, we have inspected the disputed documents, and also the report as a whole.

21 We note that while documents 448 and 446 record statements made to the author by GJ, the statements refer to the conduct of other persons, including GJ’s husband, the student and a third person. The Tribunal states at [41] of its reasons that the husband does not object to disclosure of content referring to him. (We also note that there appears to be an internal inconsistency in the Tribunal’s reasons, in that the Tribunal in affirming the Department’s decision as it related to Documents 464-450, did not except duplicates of documents 446 and 448 found in that sequence.)

22 The respondent, GJ, filed submissions in reply on 3 March 2009, the day before the hearing, and relied on her submissions at hearing. She does not seek the identification of the author of the documents.

23 The difficulty the case presents in this regard, as we see it, is that revelation of the contents of the notes would be highly likely, even with the author’s name and status deleted, to make clear who the author was. Further, there are elements of the notes which, as noted, refer to persons who have not indicated their agreement to disclosure.

Grounds 1 and 2

24 In the notice of appeal the Department asserted specific errors of the same kind in relation to the Tribunal’s application of s 13(b) and s 6, i.e. that the Tribunal:

- Failed to take into account a relevant consideration, namely, the fact that disclosure of the documents would be made in circumstances where the applicant cannot be restrained from further disclosure;

- Took into account an irrelevant consideration, namely, the identity of the applicant; and

- Failed to take into account a relevant consideration, namely, that the disclosure of documents to the applicant would disclose the identity of a person who provided information to an investigation on a confidential basis.

25 In its written submissions the Department submitted in addition that the reasons were inadequate. The Department submitted that it was an error to conflate the reasons in relation to the non-applicability of requirement (iii) of cl 13(b) with the reasons for the non-applicability of cl 6.

26 In her written submissions, GJ referred to para [45], and its directions as to what parts of documents 448 and 446 were to remain exempt. She noted that the Tribunal left protected from disclosure the material in document 448 that did not constitute a record of the telephone conversation including the name and position of the author of the notes.

27 She also noted that her husband was not opposed to disclosure of the material, so far as it related to him. She reiterated that she is not interested in the identity of the note taker, merely the content of the documents.

28 We will deal with the Department’s objection to the Tribunal dealing with the cl 13(b)(iii) question by reference to its reasoning in relation to the cl 6 claim.

29 In our view, each exemption in the FOI Act must be addressed on its own terms, and applied independently. It is dangerous to conflate the discussion of different exemptions. The factors that may be relevant to an assessment of whether disclosure of confidential information, about which there has already been a prejudice finding, would be ‘contrary to the public interest’ will not necessarily be the same as those relevant to the assessment of whether it would be ‘unreasonable’ to disclose an item of information bearing on an individual’s ‘personal affairs’. We accept that there may be factors that are common to both examinations.

30 The Appeal Panel dealt with the same issue in Director General, Department of Education & Training -v- Mullett & anor (GD) [2002] NSWADTAP 13. There the Tribunal below had adopted the same reasoning in connection with claims to exemption based, as here, on cl 13(b) and cl 6 and, as well, cl 16 (documents concerning operations of agencies relating to tests and audits):

‘91 As noted earlier, the Tribunal dealt in one section of its reasons, globally, with the ‘unreasonableness’ considerations relevant to cl 6 and the ‘public interest’ considerations relevant to cl 13 and cl 16.

92 There were also submissions by the Department under other grounds of appeal in relation to alleged error in the ‘unreasonableness’ analysis and the ‘public interest’ analysis.

93 In light of our conclusion that the information sought to be protected by cl 6 (with exception of the two texts at paras 51 and 54) does not constitute information relating to ‘personal affairs’ it is not necessary to consider the Tribunal’s reasoning on ‘unreasonableness’ at length.

94 We should state however, that we consider that it is an error to enfold this issue into a general discussion of the public interest questions found in other exemptions of the FOI Act such as cl 13 and cl 16. The proper approach, as we see it, is to deal with each exemption didactically. The considerations relevant to what is ‘unreasonable’ by way of non-disclosure of ‘personal affairs’ information should not be mixed in with the considerations that might be relevant to the question of whether disclosure would ‘on balance, be contrary to the public interest’. Similarly the ‘public interest’ discussion should be kept separate. The factors that may lead to the conclusion that disclosure is not contrary to the public interest in relation to material received in confidence and where a relevant prejudice may arise if disclosed may not be identical to the factors pertinent to the question as it arises in relation to tests, audits, assessments and the like.’

31 The Department’s third point in the grounds of appeal, as originally formulated, is that the Tribunal failed to take into account a relevant consideration, namely, that the disclosure of documents to the applicant would disclose the identity of a person who provided information to an investigation on a confidential basis.

32 The Tribunal accepted that the documents contained information ‘obtained in confidence’. The Tribunal also accepted that the release of such notes would be likely to prejudice the obtaining of similar notes in future investigations of this type.

33 In these circumstances, it seems to us that the case for the agency was already a strong one favouring a conclusion that disclosure would be contrary to the public interest.

34 It is clear that the Tribunal was conscious that its decision would give rise to the disclosure of the identity of the employee against the wishes of the employee: see last sentence of para [44].

35 It is in the nature of the detection of misconduct in the workplace that the most pertinent information will often come from co-workers or colleagues of the person of interest. In our view, the fact that the notes come from a co-worker would not ordinarily be treated as negative to the public interest in maintenance of confidentiality of their notes.

36 Recently an Appeal Panel dealt with a case where a teacher, the subject of investigation in relation to alleged maltreatment of a child in her care, sought access to the entirety of an investigation report. The Appeal Panel said, Macquarie University v Howell (GD) [2008] NSWADTAP 46 at [97] in relation to the function of cl 13(b):

‘…the focus of the provision is the effect of disclosure on the future ability of the agency to conduct investigations of this type. As we see it, the critical objective of the agency, and of the laws relating to the reporting of alleged abuse of vulnerable persons, is to obtain a high level of co-operation from persons with relevant information, and to have the investigation proceed in an efficient and timely way, especially if there is any suggestion of abuse that is of a repetitious or systemic kind (the latter is not an issue in the present case, we note).’

37 In our view, the Tribunal did not adequately explain why the Department had not made out its case that the disclosure of these documents would be contrary to the public interest. The mere fact that they are records of statements made by the access applicant to the note-taker is not sufficient, on its own, to resolve the question.

38 The first two points of appeal under Grounds 1 and 2 are interrelated. The Department’s first submission is that the Tribunal should have taken account, as a factor weighing against disclosure, both on the cl 13(b)(iii) question (the public interest in the disclosure of otherwise confidential information) and the cl 6 question (the reasonableness or otherwise of disclosure of the documents), the fact that the applicant cannot be restrained from further disclosure. This, it is said, may itself be contrary to the public interest, and give rise to the ‘unreasonable disclosure’ of statements made by GJ involving the ‘personal affairs’ of third persons (her husband, the female student and the other person).

39 This consequence of FOI release is, in our experience, often described as ‘disclosure to the world’. It usually only receives express attention in Tribunal decisions when the access applicant presses a case that the disputed document is of special interest to the access applicant and the access applicant’s interest will be satisfied by release of the document, and there will be no further use or recirculation of the document. Otherwise, the Tribunal has tended, we think, to proceed on the assumption that disclosure may be disclosure to the world.

40 We do not think there was any error by the Tribunal in this case in not expressly referring to the possibility that release might constitute ‘disclosure to the world’. It would have been well aware, as an experienced adjudicator in FOI matters, that the FOI Act does not seek to restrain in any way the use that a citizen may make of the documents to which access is given in response to an application. This is so obvious a point that it need not in our view be spelt out by the Tribunal.

41 It can reasonably be assumed, in light of the case-law in the Tribunal, that the Tribunal would have proceeded on that basis. The Tribunal has traditionally given little or no consideration to statements by an access applicant as to their special need for a document, and promises not to make further use of a document, as matters relevant to the exercise of the ‘public interest’ discretion or the reasonableness discretion.

42 In an early case, Saleam v Director General, Department of Community Services and ors [2002] NSWADT 41, the President sitting at first instance dealt with the issue in the following way. The access applicant was seeking to obtain material to assist him in petitioning to have a serious conviction overturned. He believed that there was material that would assist him in the family welfare files of the respondent agency relating to the mental health of his former partner, and the mother of a child of whom he was the father. She had given evidence against him.

‘47 In the present case, consideration of the applicant's purpose would require the agency and the Tribunal (on review) to engage in an elaborate collateral inquiry before it could form any considered view on the reasonableness or otherwise of the applicant's claim that his conviction and sentence in 1988 may have been tainted because of the non-availability of information relevant to Mrs BZ's mental health.

48 The FOI Act sets a standard which is to apply as between citizens and government. Decisions to grant access under FOI should, to use an American expression, ordinarily be facially neutral. The theory, at least, is that once access is given under FOI to one citizen, any other citizen who makes the same request should have the same rights: see further Humane Society v National Parks and Wildlife Service [2000] NSWADT 133 at [26-31]. But some authorities do recognise that a point may be reached where the applicant may be able to demonstrate a personal need for the information that is of such strength as to amount to a public interest consideration in its own right: see Re Burns and ANU (No 2) (1985) 7 ALD 425 at 438-9; and generally Cossins, Annotated Freedom of Information Act New South Wales (1997), 313.

49 The applicant to some extent recognised the difficulty of his position in his submissions. He said in effect that he should get special treatment under the FOI law because of his need to gather information which he regards as relevant to his case that Mrs BZ's evidence was bad. He believed that the Department's records may contain information about her that would cast doubt on the satisfactoriness of her evidence against him. He recognised, as I perceived it, that release of the information relating to her … to any one else would not be appropriate.

50 For the reasons given, I consider that the FOI Act does not establish a scheme under which agencies can deal differentially as between third party applicants who make the identical request for someone else's personal records, and under which agencies can make varying calculuses as to the `reasonableness' of disclosure in that way. There is, for example, no mechanisms in the Act allowing for conditional or limited disclosure once a request is granted under FOI. Were there such mechanisms they would not be supported by sanctions for breach such as offence provisions punishing re-use or re-disclosure. (Of course it always remains open to an agency to use any powers or statutory discretions it might have apart from the FOI Act to give limited or conditional disclosure, or to transmit information of concern (that may have been identified through an FOI process) to other agencies for investigation or other action.)’

43 This matter was addressed most recently in Cheney v Sydney West Area Health Service [2008] NSWADTAP 29, [15]-[20], and similar views were expressed. Moreover, the Appeal Panel specifically disagreed with contrary views of Hansen J in Marke v Victoria Police [2007] VSC 522. In that case, in its decision rejecting the access applicant’s application for external review of the agency’s determination, the Victorian Tribunal had expressed similar views to those set out above. Hansen J held that the decision-maker should, at the least, give consideration to any statements by the access applicant as to the purpose of the access application, and as to the nature and degree of use that the applicant will make of the document sought.

44 The access applicant in Marke was a police officer of great experience who had had a distinguished career. He had been the subject of two internal investigations, the first following allegations that he had interfered with the conduct of a police investigation into alleged acts of paedophilia by a cleric, and the second over later conduct towards the person who had complained against him. While the complaints had been found not substantiated, he was intent on obtaining the more positive finding of exoneration. To that end, he wished to have copies of documents that contained statements made by the complainant, whose identity he knew. He believed that the complainant had made false reports against him. He accepted that the documents contained ‘personal affairs’ information about the complainant, but contended that it in the circumstances it was not unreasonable to release those documents to him even though it might be unreasonable to release them to someone else; and that regard should be had to the seriousness of his promise to confine any further circulation of the released material.

45 The agency appealed to the Court of Appeal. The Court upheld Hansen J’s decision, and substantially agreed with his reasoning: see Victoria Police v Marke [2008] VSCA 218 (Maxwell P, Weinberg JA, Pagone AJA). There are some differences in approach as between Maxwell P and the other two judges. It is unnecessary to canvass them here. The Appeal Panel’s reasoning in Cheney was specifically considered by Pagone AJA and not endorsed (see at [91] and ff).

46 The Department’s submissions invite this Appeal Panel to reject the Victorian Court’s opinion.

47 Clause 6 of the NSW Act and s 33 of the Victorian Freedom of Information Act 1982 are materially identical. Having regard to their respective places in the hierarchy of the Australian legal system, an Appeal Panel of this Tribunal ought, we consider, where there is no material difference in the law under scrutiny, follow any considered decision of an interstate appellate court where it conflicts with a prior decision of the Appeal Panel.

48 These issues received some attention in a recent Supreme Court decision, Simring v Commissioner of Police, NSW Police Force [2009] NSWSC 270 at [70] ff. Smart AJ found it unnecessary to rule on an agency submission that Marke was not correctly decided. His Honour stated at [71] that he ‘would hesitate before not following the majority view of the Victorian Court of Appeal on legislation which has so many similarities to the NSW FOI Act.’

49 Consequently, the FOI decision-maker (agency or review tribunal) must not, uncritically, exclude from its consideration matters pressed by the applicant personal to the applicant such as the purpose of the application and promises of limited use. As the Victorian Court noted, that does not mean that the decision-maker must give effect to the applicant’s plea. The decision-maker may form a negative view as to the likelihood that the promise will be kept, and the attributes of the applicant may militate against acceptance of the promise. The Victorian Court gave the following illustrations of this point: the applicant who is a political activist, a journalist or a member of parliament, all of whom might reasonably be assumed to be likely to seek maximum publicity for the material released.

50 The Department’s submissions continue that if the Appeal Panel is not inclined to dispute the authority of Marke nonetheless the reasoning in Marke supports its submission that the Tribunal in this case should have taken into account what the access applicant might do with the document.

51 The applicant’s statement of evidence to the Tribunal (marked A1) does not make any reference, one way or the other, as to what she might do with the records if they are released to her. Her statement makes a case as to why it is in the public interest that the material received in investigations be made known to those affected by the material. She refers to the injustice she considers was perpetrated on her husband, and the unfairness, as she sees it, with which the Department acted in moving her husband out of his school to other duties when the investigation was commenced, and the way more generally it handles inquiries into alleged teacher misconduct.

52 In her written submissions she refers to the evidence from the Department (see Tribunal reasons [11] and [28]) that employees may be compelled to give evidence to internal disciplinary investigations, though it preferred to proceed by way of voluntary co-operation. In her favour the power to obtain evidence by compulsion was a factor that favoured her case that the cl 13(b) claim did not satisfy requirement (iii).

Ground 3

53 Ground 3 refers to the Tribunal’s disposal of the cl 4(b) claim. Clause 4(1)(b) is designed to protect the identity of the source of the information, not the information that the source provides: see XZ v Commissioner of Police, NSW Police Force [2009] NSWADTAP 2 at [31].

54 In the ultimate, GJ does not press for disclosure of the identity of the author of the notes. She merely questions the relevance at all of cl 4(1)(b) to the resolution of this case. As we understand the Department’s submission, it is that revelation of the contents of the notes, even with the author’s name and status deleted, which will inevitably lead to the identification of the author.

55 In support of its conclusion that cl 4(1)(b) was inapplicable, the Tribunal said at para [50], as previously noted, that there was ‘no evidence that the person(s) who provided the information contained in any of the documents did so on the basis of being an ‘informer’ not wishing his/her identity being revealed’.

56 This conclusion appears to have two elements. The first is that it is material, if not conclusive, that the author of the notes did not see herself as an ‘informer’ in the way that term is commonly used, i.e. a person who supplies incriminating information to a prosecuting officer (see principal definition in the Macquarie Dictionary), often with the additional feature that the person is furnished with specific protection of their identity and given indemnity from prosecution (see meaning given in Osborn’s Concise Law Dictionary, 9th ed., 2001). The second is that one circumstance that may be conclusive is that the informer does not wish to have his or her identity revealed. We agree that such a circumstance would be conclusive, but this is not a case of that kind.

57 Clause 4(1)(b) does not itself use the word ‘informer’. It refers to a ‘confidential source of information’. We accept, however, that the common understanding in the case-law here and elsewhere is that provisions like cl 4(1)(b) have as their aim the protection of identity of persons commonly called ‘informers’: see, for example, Re McEneiry and Medical Board of Queensland (1994) 1 QAR 349 at 371.

58 Whether a person is a ‘confidential source of information’ is to be adjudged by reference to all the circumstances. The Information Commissioner in Re McEneiry referred to the following:

‘…the nature of the information conveyed, the relationship of the informant to the person informed upon, whether the informant stands in a position analogous to that of an informer …, whether it could reasonably have been understood by the informant and the recipient that the appropriate action could be taken in respect of the information conveyed while still preserving the confidentiality of its source, whether there is any real (as opposed to fanciful) risk that the informant may be subject to harassment or other retributive action or could otherwise suffer detriment if the informant’s identity were to be disclosed, and any indications of a desire on the part of the informant to keep his or her identity confidential … .’

59 In DQ -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 215, the President sitting at first instance said:

‘43 I am satisfied that it is reasonable to conclude that the person who supplied information in this case, having regard to the nature of the police operation, would have done so in the context of an operation which carried with it a pledge of confidentiality. The central importance of the protection of confidentiality to the operation of the criminal justice system has been discussed in such well known cases as D v National Society for the Prevention of Cruelty to Children [1978] AC 171, see per Lord Denning at 191; per Lord Diplock at 218; per Lord Hailsham at 229; and more recently, in Australia, Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667 at 674-675; and in the United Kingdom, taking account of European Human Rights law, in Chief Constable of the Greater Manchester Police v McNally (2002) EWCA Civ 14 (25 January 2002).

44 In the Australian FOI context, see especially Re McEneiry and Medical Board of Queensland (1994) 1 QAR 349 at 371. After referring to McEneiry, in Mauger v Wingecarribee Shire Council [1999] NSWADT 35 at [45] I noted:

‘It is critical that investigations be conducted in a confidential way until any charges are laid and any evidence in support produced publicly. Up to that point those who give information to law enforcement authorities are entitled to assume the confidentiality of the process. Strict confidentiality during the investigative process offers protection both to witnesses and to persons adversely implicated by allegations.’’

60 The perception that the person said by the agency to be an informer holds as to whether he or she is an ‘informer’ is, in our view, simply a matter to be taken into account, and weighed. It could not, we think, be treated as critical or determinative. The ultimate assessment must be objective.

61 The FOI Act applies to the generality of public administration in the State of New South Wales covering the agencies of the State government, agencies of Local government and public bodies conventionally seen as unconnected to the administration of government such as Universities. The understanding of what makes a person an ‘informer’ for the purpose of serious criminal investigations, and special practices of law enforcement agencies that confer ‘informer status’ and possibly special protections such as immunities and increased security, should not unduly colour, in our opinion, the understanding of ‘a confidential source of information’ in a statute going to the generality of public administration, and the law enforcement activities that relate to it.

62 Several decisions of the Tribunal reflect this broader understanding of who may be regarded as a ‘confidential source of information’ (or ‘informer’) for the purpose of cl 4(1)(b). The Department drew attention to cases such as Taylor v Chief Inspector, RSPCA [1999] NSWADT 23 at [38] (person providing information of suspicion of mistreatment of animals, with request that identity be kept secret) and Vranic v Director-General, Department of Community Services [2001] NSWADT 129 (person providing information in relation to the welfare of a child) and Ranier Pty Ltd New South Wales Casino Control Authority and anor [2007] NSWADT 118 (maker of allegations concerning a casino tender process).

63 In our view, the Tribunal ought not to have confined its assessment to a consideration of the author’s subjective belief as to whether she was an ‘informer’. The Tribunal had already held, in connection with the cl 13(b) claim, that the information was confidential. Accordingly, its giver was a source of confidential information. In addition, in our view, there were also several circumstances pointing towards her being a ‘confidential’ source of the information contained in the disputed documents – the likelihood as a co-worker that she would wish to have her identity protected, the nature of the information that she conveyed to the investigator and the way in which the interview was conducted.

64 Moreover a disciplinary investigation may identify circumstances that raise the possibility of transgression of the criminal law. One of the questions of interest to this investigation was the degree of intimacy of the relationship between GJ’s husband and the student. Under the criminal law of the State, it is an offence for a person in a ‘special care’ relationship to have sexual intercourse, regardless of consent, with another person between 16 and 18 years who is in their care. School teacher-pupil is one such relationship (Crimes Act 1900, s 73). It is an offence to have sexual intercourse with a person under 16, and it is an aggravating circumstance if the victim is ‘under the authority’ of the offender (Crimes Act, s 66C).

Leave to Extend to the Merits

65 It will be apparent that we regard the Tribunal’s decision as affected by error. While it is not a pre-condition for extension of an appeal to the merits that legal error be demonstrated, in this case we are of the view that leave should be granted having regard to: the errors identified; the limited nature of the continuing dispute (the status of two short documents); the lack of any need for additional evidentiary material; and to bring the matter more expeditiously to a conclusion.

66 As noted earlier, the Appeal Panel has undertaken an inspection of the two documents.

67 Clause 13(b) Claim. Requirement (iii). The documents were furnished to the investigator as part of a confidential interview and investigation process. The author was a work colleague of the person of interest. The notes were handed over as part and parcel of the confidential interview and investigation process.

68 It is difficult to see why they were accorded a different status to the oral content of the interview. A person who makes a telephone call, here GJ, takes the risk that the other party may make notes of what has been said. Unknown to GJ, the recipient of her calls kept notes. Those notes may not be comprehensive. They may later become an aide memoire for the note-taker. As we see it, this is what occurred in this case. The record of interview with the author of the notes has been held to be exempt. It presents a more elaborate version of the conversations than appears in the notes.

69 As the Tribunal’s reasons, and our short account of the background, reveal, the investigation that led to the interview of the co-worker went to a matter of great sensitivity – an allegation that a teacher had entered into an intimate relationship with a student.

70 We do not agree with GJ’s submission that the fact that the employee could have been compelled to give the information militates against the conclusion that disclosure of the information would be contrary to the public interest. The Appeal Panel, in a recent decision, stated that there was a public interest in upholding the ability of investigations to proceed by way of voluntary participation even if the investigator had the power to compel the giving of evidence. The existence of a power of compulsion does not make irrelevant or unimportant the value attached by agencies to being able to proceed by way of voluntary participation. See further Macquarie University v Howell (No. 2) (GD) [2009] NSWADTAP 19 at [35].

71 In our view the agency’s case does satisfy the requirement of s 13(b)(iii) and disclosure of the notes of the telephone conversation would be contrary to the public interest. This conclusion is, in our view, sufficient to dispose of the case.

72 Clause 6 Claim: As to the way cl 6 operates in a case like this, we make the following brief observations. It may be said that the notes contain information that involves the ‘personal affairs’ of the access applicant, i.e. they purport to record what she said to the maker of the notes. This analysis is incomplete. Notes taken in this way also form part of the ‘personal affairs’ of the recipient of the communication, and will usually be a selective précis of all that was said.

73 While the recipient of the communications was in this instance an employee of the Department, the original communications took place in a private context, and she was not carrying out any official function or role. Accordingly, it is tenable to describe the communications and the subsequent records as belonging to that person’s ‘personal affairs’. The position is different for the investigator who takes a formal record of interview. The investigator is performing an official role, and it can not, we think, be said that the record or its contents forms any part of the ‘personal affairs’ of the investigator: see further Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606 (Perrin’s case) per Kirby P, esp at 625.

74 In addition, the contents of the notes bear on the ‘personal affairs’ of the persons to whom reference is made, such as the husband, the student and a third person.

75 In our view, these considerations read as a whole favour the conclusion that disclosure of the notes would involve the ‘unreasonable disclosure of information concerning the personal affairs’ of the author of the notes, and, in the alternative, allowing for the concession of the husband and the other persons mentioned in the notes.

76 Clause 4(1)(b) Claim. The author was one of a number of persons with work connections to the person of interest. This is to be expected in a disciplinary investigation. The Department’s evidence, accepted by the Tribunal, was that employees are given guarantees of confidentially, and their involvement is sought on a voluntary basis rather than by invoking coercive powers.

77 In our view, in line with the authorities to which we have referred above, the author of the notes was a ‘confidential source of information’. In our view, even if her identity was not provided, revelation of the notes would be sufficient to identify her. Accordingly, in our view, cl 4(1)(b) was applicable.

78 Residual Discretion to Release. As a result of the ruling of the Supreme Court (Nicholas J) in University of New South Wales v McGuirk [2006] NSWSC 1362 at [102] and [103], the Tribunal must also consider whether the exempt matter ought to be released, exercising the discretion seen as given by s 25(1)(a) of the FOI Act, read in conjunction with s 63 of the ADT Act, to direct release of the exempt matter.

79 In Cianfrano v Director-General, Premiers Department [2007] NSWADT 216, the President sitting at first instance noted that there would need to be strong grounds to release matter found to be exempt. At [27] the President set out some of the factors relevant to the exercise of the discretion as follows:

- whether the exempt matter was, by other means, in the public domain,

- whether the circumstances that have made the exempt matters sensitive at the time it was refused remain current or significant,

- the nature of the Government activity under scrutiny, and the extent of public or community concern or interest in having a fuller knowledge of that activity,

- the public interest in an informal debate on issues of significance to the community,

- whether there were adverse consequences for the proper administration of government, and their extent,

- whether any adverse consequence is remote or innocuous.

80 As noted, there are some references to the telephone conversations in the public domain (the summary reference in the released executive summary to the content of the telephone conversations). There is, for reasons already given, a high public interest in protecting from disclosure statements made in confidence by co-workers to an investigation of the character of the present investigation. It concerned an alleged abuse of trust in a teacher-student relationship. The value to GJ in being aware of everything considered by the original investigator (Mr Malins) and the review investigator (IAB Services) has to be set off against the protection of the community’s interest in investigations of a child protection nature being thorough. Co-workers are, we think, likely to be less co-operative if they are at risk of having released any material furnished confidentially. See also Chief Executive Officer, State Rail Authority v Woods (No. 2) (GD) [2003] NSWADTAP 39 at [83]. The co-worker may well have a fear of verbal or other reprisal. In this case we note references in the material to conduct at one time by GJ (directed towards her husband and his circumstances) which had a retaliatory aspect.

81 In our view there are no wider public interest considerations that ought lead to the exempt matter being released in exercise of the residual discretion.

28/07/2009 - s 16(b)(iii) amended to s 13(b)(iii) - Paragraph(s) 71