Department of Education and Training v Mullett (No 2)

[2002] NSWADTAP 29

Appeal Panel

CITATION:	Director General, Department of Education and Training -v- Mullett and Randazzo (No. 2) [2002] NSWADTAP 29
PARTIES:	APPELLANT Director General, Department of Education and Training FIRST RESPONDENT Christopher Mullett SECOND RESPONDENT Robert John Randazzo
FILE NUMBER:	019040
HEARING DATES:	20/05/02
SUBMISSIONS CLOSED:	08/14/2002
DATE OF DECISION:	08/23/2002
DECISION UNDER APPEAL:	Mullett -v- Director General, Department of Education and Training and Anor [2001] NSW ADT 119
BEFORE:	O'Connor K - DCJ (President); Montgomery S - Judicial Member; Bolt M - Member
CATCHWORDS:	access to documents - confidential material - Freedom of Information Act - access to documents - confidential material - leave to extend to the merits
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	003353
DATE OF DECISION UNDER APPEAL:	07/18/2001
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Education Teaching Service Regulation 2001 Freedom of Information Act 1989 Teaching Services Act 1980
CASES CITED:	Director General, Department of Education and Training v Mullett and Randazzo [2002] NSWADTAP 13 Y v Director General, Department of Education and Training [2001] NSWADT 149 Re Maher and A-G’s Department (1985) 7 ALD 731 Re Kamminga and Australian National University (1992) 26 ALD 585 Re Maine and Department of Education, Employment and Training [2001] VCAT 1456 Smith and ATSIC Smith and Aboriginal & Torres Strait Islander Commission [2000] AATA 512 (22 June 2000) Re James and Australian National University (1984) 6 ALD 687 Re Thies and Dept of Aviation (1986) 9 ALD 454 Attorney General (Comm) v Cockcroft (1986) 64 ALR 97 Department of Social Security v Dyrenfurth (1988) 15 ALD 232; 80 ALR 533 Re Fryar and Australian Federal Police (1988) 17 ALD 25 Director General, Dept of Education and Training v Mullett & Randazzo [2002] NSWADTAP 13
REPRESENTATION:	APPELLANT K Sant, barrister FIRST RESPONDENT In person SECOND RESPONDENT In person
ORDERS:	1. The agency’s decision to refuse access to the requested document is affirmed in respect of paras 14-17; paras 21-24; paras 28-29; para 30, sentence one; paras 31-33; paras 39-43; paras 50-53; paras 57-61; paras 69-73; para 81. ; 2. Otherwise the decision is set aside.

1 In this case arising under the Freedom of Information Act 1989 (FOIA), a decision upholding the appellant’s question of law appeal was delivered on 26 April 2002: Director General, Department of Education and Training v Mullett and Randazzo [2002] NSWADTAP 13.

2 The Administrative Decisions Tribunal Act 1997 (the Tribunal Act) provides that an Appeal Panel may give leave for an appeal on a question of law to be extended to the merits: see s 113(2)(b). Before considering any application to extend the appeal to the merits, the practice followed by Appeal Panels has been to determine whether an error of law warranting variation or setting aside of the Tribunal decision under appeal has been identified.

3 As the question of law appeal had been successful, the Panel reconvened to consider the appellant’s application for the appeal to extend to the merits, heard submissions from the parties, and granted the application: ex tempore ruling, 20 May 2002. The main reasons for granting the application were: the time the application for review had already been in the hands of the Tribunal; the Appeal Panel’s familiarity with the matter; and the lack of any need to receive further evidence.

4 The appellant agency is the respondent to the application for review that is now being reconsidered by the Appeal Panel. The decision under review is the agency’s determination (as it now stands) to refuse access to parts of a document. The applicant for review is the first named respondent to the appeal, Mr Mullett. A second person was joined to the application, Mr Randazzo. He was the second respondent to the appeal. In this decision the primary parties will be referred to as ‘Mr Mullett’ and ‘the agency’; and the joined party as ‘Mr Randazzo’.

5 The FOI request: By letter dated 31 December 1999 Mr Mullett requested access pursuant to FOIA to ‘The investigation by the Audit Directorate of the Dept of Education and Training into Allegations by me of bias and corruption relating to a panel selection process to appoint a principal of [name] Primary School. Report delivered on December 31, 1999.’ The official title of the report in question is Department of Education and Training, Audit Directorate, Investigation Report AI 91/99 [name] Public School Alleged Corrupt Merit Selection Process (31 December 1999).

6 Mr Mullett had been a member of the selection panel in his capacity as a parent’s representative nominated by the parents and citizens association. At the time he was president of the School Council. He was active in school affairs and had also been president of the parents and citizens association.

7 The history of the access application is set out in the agency’s material filed at the original hearing (Ex A in that hearing). The original access request is dated 8 May 2000. The original agency determination is dated 5 June 2000. There is an application for internal review dated 14 June 2000. The decision on that application is dated 5 July 2000. The application for review of the determination was filed in the Tribunal on 10 November 2000.

8 The second respondent to the appeal, Mr Randazzo is a disappointed candidate. The original Tribunal permitted Mr Randazzo to be joined as a party to Mr Mullett’s application for review, describing him as the ‘first party joined’. (In the course of agency consultations in respect of Mr Mullett’s request with persons named in the report on the question of whether the privacy exemption should be invoked, Mr Randazzo had given permission for references to him to be released to Mr Mullett.) Mr Mullett and Mr Randazzo have in effect jointly pursued the FOI request.

9 Merits Hearing before Appeal Panel: This hearing has been undertaken pursuant to s 115 of the Tribunal Act, which provides:

‘ 115. Appeals on the merits

(1) If an appeal under this Part extends to a review of the merits of an appealable decision, the Appeal Panel is to decide what the correct and preferable decision is having regard to the material then before it, including the following:


(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) The Appeal Panel may exercise all the functions that are conferred or imposed by or under any relevant enactment or this Act on the Tribunal at first instance to make the appealable decision concerned.

(3) In determining any such appeal, the Appeal Panel may decide:

(a) to affirm the decision, or

(b) to vary the decision, or

(c) to set aside the decision and make a decision in substitution for the decision it set aside.’

10 The Appeal Panel decided to follow the procedure of reviewing all the material before the original Tribunal, as well as the supplementary material relating to the merits lodged in connection with the appeal.

11 This material comprises:

Original Hearing: Transcript of proceedings before the Tribunal at first instance (26-27 March 2001), including all exhibits and submissions filed in the matter. The following affidavits were filed in the original proceedings. For the agency: affidavit of Christopher Ballantine, Manager of Corruption Prevention and Investigation at the Audit Directorate (Exhibit D); affidavit of Carolyn Wells, Assistant Director at the Audit Directorate (Exhibit E); affidavit of Lynda Shearer, Acting Assistant Director of Staff Operations, Personnel Directorate (Exhibit C). Each of these deponents was called for cross examination. Oral evidence was given by Mr Mullett.

Appeal Hearing: Further submissions filed and made at the reconvened hearing on 20 May 2002 by Mr Randazzo; further submissions made at the reconvened hearing and filed in reply by the agency on 3 June 2002; further submissions filed on 7 June 2002 by Mr Randazzo; and reply to those submissions filed by the agency on 14 August 2002.

12 The Circumstances : The principal’s position had fallen vacant at the end of 1998. Early in 1999 the parents and citizens association had written to the Minister for Education advising of its resolution to request the Minister to have Mr Randazzo appointed to the then vacant principal’s position without advertisement. For many years Mr Randazzo had been the deputy principal of the primary school. Mr Mullett, as were a number of parents, was highly supportive of Mr Randazzo. Mr Randazzo was also a member of the School Council. The agency declined to fill the position without advertisement and proceeded to a selection process.

13 A five member representative panel was appointed. It included Mr Mullett. Interviews were held. The panel completed its deliberations on 15 November 1999. At the completion of its deliberations the panel compiled raw scores as an aid to assessment. It reviewed the scores twice. On the second occasion Mr Randazzo was ranked first. It then made its final decision, and by a vote of three to two preferred the candidate initially scored first and later scored second. This matter is referred to again at para [113] below.

14 Mr Mullett was in the minority and refused to sign the final report. By letter to the agency dated 15 November 1999 he made 5 written allegations of bias and corruption in the process, triggering the investigation and the report which is the subject of the FOI application.

15 The allegations related to:

(1) alleged comments by the Teachers Federation Representative (an assistant principal at another school); and the Representative of Principals (a principal at another school);

(2) another alleged comment by the Teachers Federation Representative;

(3) alleged comments made by a referee consulted by the panel, the District Superintendent, relating to Mr Randazzo’s relationship with previous principals at the school;

(4) alleged comments made by the District Superintendent referring to complaints from parents in relation to Mr Randazzo;

(5) alleged criticism of another unsuccessful candidate by the Principals Representative.

16 Mr Mullett convened a meeting of the School Council on 18 November 1999 at which he outlined his concerns in relation to the panel’s processes and decision. As a member of the council, Mr Randazzo was present at that meeting. The School Council authorised a letter to be written to the agency containing a further allegation.

17 That letter contained a further allegation:

(6) that the appointment of the individual who sat as the Federation Representative was influenced contrary to Departmental guidelines by the District Superintendent.
18 On 23 November 2002 the Director, Personnel Operations referred the allegations to the Audit Directorate for report. In the course of its investigation, two further allegations were made orally, one by Mr Mullett, the other by the School Council:
(7) that Mr Randazzo scored the highest points but was not selected because of his reputation;

(8) that the person ultimately recommended (and subsequently appointed principal) was party to a conversation with the convenor of the original panel [one which did not proceed, and was replaced] as to the results of the cull following a district principal’s meeting.

19 The investigation, accordingly, addressed 8 allegations. It is the report of the investigation which was the subject of the FOI request.

20 The investigation was undertaken by Mr Chris Ballantine, Manager Corruption Prevention and Investigation, and reviewed by Ms Carolyn Wells, Assistant Director of Audit. They gave evidence to the Tribunal, as did Ms Lynda Kerri Shearer - at the time of the report, the Manager of School Staffing, Personnel Directorate; and at the time of the hearing, Acting Assistant Director of Staffing Operations, Personnel Directorate.

21 The process of investigation undertaken by Mr Ballantine involved interviewing each of the members of the selection panel in relation to the allegations that related to its conduct. Mr Ballantine also interviewed the District Superintendent and other departmental employees who had had a relevant connection with the selection panel’s work. The principal conclusions of the investigation are set out at paras 9-12 of the report, and this text is among the texts released to Mr Mullett:

‘9 The investigation addressed eight allegations concerning the alleged bias of panel members; improper conduct by Departmental staff on the selection panel and corrupt conduct by the District Superintendent, Shellharbour in relation to his role as referee and selection panel delegate.

10 On the basis of the statements from those involved and from the review of the relevant documentation, Audit concluded that none of the allegations were substantiated.

11 Audit did however express concern about the role of Mr C Mullett, President of the [name] School Council, who was a member of the selection panel. There were obvious examples of breach of confidentiality and bias by Mr Mullett.

12 It has been recommended that the selection panel’s recommendation stands; that the review of [name] Public School be completed as soon as possible and that all parties be advised of the investigation outcome.’

22 The school review referred to in para 12 of the above extract has given rise to another proceeding in the Tribunal. In the decision in those proceedings some of the broader history of the issues that had arisen at the school and their outcome is given: Y v Director General, Department of Education and Training [2001] NSWADT 149.

Agency Determination

23 The original Tribunal decision was to grant Mr Mullett access to the entire report, with one exception - the second two lines of the table in paragraph 74 of the report. These lines referred to the names of unsuccessful candidates for principal and their scores, and Mr Mullett has not continued to press for their release (both matters being known to him, in any event).

24 The Tribunal order was stayed pending determination of the appeal. As noted earlier, the agency’s question of law appeal was substantially successful. The Appeal Panel orders were:

‘1. The decision is affirmed in respect of the following passages: (a) paras 29-30; (b) the last sentence of para 34; and (c) the deleted words in para 35. (It is noted that the Tribunal's decision to affirm the exemption of the second two lines of the table in para 74 was not in issue in the appeal.); 2. The decision is set aside in respect of the following passages: (a) the fourth sentence of para 51; (b) the first sentence of para 53; and (c) all passages as listed in para [22] of these reasons; 3. The Appeal Panel is to reconvene to consider whether to grant leave to extend the appeal to the merits.’
25 (In reviewing the terms of the above order we have noted that there is a lack of clarity in Order 1(a) and 1(b). The Tribunal decision was only affirmed in respect of those passages in respect of the agency’s reliance on cl 6. These texts formed part of larger passages referred to in para [22] of the reasons, for which claims to exemption under cl 13 and cl 16 were made. The Tribunal orders in those regards were set aside. Accordingly these passages remain to be considered on that basis.)

Parts of Report that Remain in Issue

26 In all cases, the agency claims the material is exempt by virtue of category (b) of cl 13 and categories (i), (ii) and (iii) as set out in cl 16(a). In two instances, noted below, cl 6 is also claimed. The parts of the report that remain in issue in the present hearing before the Appeal Panel are, as follows: paras 14-17 (relating to Allegation 1); paras 21-24 (Allegation 2); paras 28-33 (Allegation 3); paras 39-43 (Allegation 4); paras 50-53 (Allegation 5), within those paras for the fourth sentence of para 51 ; and the first sentence of para 53, cl 6 also claimed; paras 57-61 (Allegation 6), the first 11 words of paragraph 64 (in connection with Allegation 6), paras 69-73 (Allegation 7), para 81 (Allegation 8), deleted column of the list of appendices (the names of persons interviewed). [Note that the para 81 deletion was inadvertently omitted from the list given in para [22] of the Appeal Panel’s earlier decision.]
Category (b) of Clause 13 : The In Confidence Exemption
27 We will commence by examining the applicability of the cl 13 exemption. We will then examine the cl 16 claim. We will only examine the two passages in respect of which the additional ground of exemption (privacy and personal affairs, cl 6) is invoked if that becomes necessary. Category (b) of cl 13 provides:
‘ 13. Documents containing confidential material

A document is an exempt document:

…


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

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

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

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

Overview of Agency Approach

28 Essentially the agency disclosed the executive summary appearing at the beginning of the report, including importantly the ultimate general conclusions (paras 1-12). It also disclosed in full further ultimate conclusions (at paras 83-85) including findings negative to Mr Mullett.

29 But the reasoning process was for the most part not disclosed. That is the nub of the concern of Mr Mullett and Mr Randazzo.

30 The body of the report, paras 13 to 82, deals separately with each of the 8 Allegations. Under the heading of each Allegation usually the following sequence is adopted: description of allegation, summary account of statements made relating to the allegation, findings of the investigator (Mr Ballantine) and his conclusions. Material in the nature of findings or conclusions is not strictly confined to those headings. Sometimes findings or conclusions interrupt the account of statements made to inquiry. Normally the investigator’s interpretation of the statements made and his conclusions or findings are disclosed.

31 The passages not disclosed fall into the following broad categories:

1. Panel Member Deliberations and Statements to Investigators . Complete suppression of the identity of all panel members other than Mr Mullett and the substance of their statements is not disclosed.

2. Other Makers of Statements to Investigators. In the case of other persons interviewed their identity is not disclosed but the substance of their comments is normally disclosed, the main exceptions being the last sentence of paragraph 34; the deleted portions of paragraph 35; and the first 11 words of paragraph 64.

Agency Justification for Suppression

32 Ms Shearer, Assistant Director, Personnel Operations, Ms Wells, Assistant Director of Audit and the investigator, Mr Ballantine, Manager Corruption Prevention and Investigation, gave evidence. Their evidence addressed the systemic considerations which justify withholding the material for which exemption has been claimed. Their evidence also addressed the specific circumstances of this case.

33 The Audit Directorate was established within the Department in 1981. It exercises an audit function and an investigation function. Both functions are exercised in accordance with relevant State laws. The Audit Directorate’s audit function involves the examination of management issues generally in order to appraise the adequacy of compliance with systems of internal control. The Corruption Prevention and Investigation Unit of the Audit Directorate (of which Mr Ballantine is Manager) exercises the Directorate’s investigatory function. The investigatory function involves the investigation of complaints, allegations of fraud, corruption, misconduct and maladministration and also deals with protected disclosures (with the exception of those raising issues of child protection). [See affidavit of Ms Wells, paras 1-5 (Ex E in original proceedings).]

34 Investigations into allegations of misconduct involving a school will often necessitate contact with departmental staff (e.g. teachers, principals, district superintendents), parents and other members of the school community. The officers said that confidentiality is critical to the process of obtaining frank and candid statements as to events in issue. It was said that the investigator deals with those interviewed on the basis of express or implied promises of strict confidentiality. The identity of witnesses and the contents of what they say is only disclosed to those entitled to receive the report in the agency.

35 In the present case, Mr Ballantine’s evidence was that, in accordance with long standing practice, specific promises of confidentiality were given to those interviewed, subject only to the qualification that it may be necessary to disclose the information in the event of legal proceedings. The officers stated that in their experience individuals were not willing to provide information to inquiries of the present kind unless their identity and their disclosures were kept confidential.

36 We are satisfied that the agency’s practice is not to disclose the full contents of such reports to anyone other than those with a relevant interest within Government; and full disclosure is not accorded to others, such as the people interviewed or the makers of the allegations. The practice is to make available a summary account of the outcome of the investigation. In this way the promises of confidentiality that are seen as critical to the process are upheld; while meeting the need of people to know where they stand in relation to the allegations and the wider need of the school community to be informed of the outcome.

37 The witnesses also gave evidence as to the effect, as they saw it, on the ability of the agency to maintain confidence in these processes in future if statements made in confidence were released under FOI. They were firmly of the view that these processes would be seriously prejudiced by such disclosure.

38 In the original Tribunal decision, a distinction was drawn between the position of employees of the agency and members of the general community. The Tribunal, accepting a submission of Mr Mullett and Mr Randazzo, considered that employees of the agency were duty-bound to co-operate with such processes; and it was not satisfied that there was any likelihood of significant prejudice to the agency’s future ability to obtain similar information.

39 The evidence given by the departmental officers at hearing had been that employees are not bound to co-operate with internal investigative inquiries by the audit section. They can not be compelled to give answers. It was the witnesses’ view that employees would be concerned if the information they gave to an internal inquiry was disclosed to others.

40 Mr Randazzo drew attention to regulations under which employees may be required to give evidence to an inquiry conducted in respect of disciplinary charges: Education Teaching Service Regulation 2001, esp cl 17 and the Teaching Services Act 1980. His contention is that employees must therefore co-operate with departmental investigations.

41 This contention is addressed in detail in the agency’s additional further submissions filed 14 August 2002. We are satisfied that departmental employees can not as a general matter be compelled to make statements and give information to departmental investigators. We agree with the agency’s submission that the report to which access is sought in this case belongs to a stage prior to the one to which cl 17 is relevant. Clause 17 is relevant to the conduct of a formal inquiry into charges. The investigation was a precursor to the laying of any charges. The power given by cl 17 does not apply at that point.

42 The evidence produced by the agency came from officers expert in the conduct and purpose of these investigations. While their evidence may not be that of detached experts, it is the evidence of officers of great experience in the relevant fields. It should be given substantial weight.

43 There is no evidence in reply on these matters of administrative practice from the applicant for review. We noted in our earlier decision that applicants for review will often not be well placed to produce alternative expert evidence on issues such as these. It is important, therefore, that the Tribunal should make its own critical assessment of the strength of the agency evidence on such matters.

44 In this case we are of the view that the agency’s evidence is cogent and persuasive. We accept the departmental officers’ evidence, and recognise that as a practical matter investigations of this kind depend significantly on co-operation.


Requirements (i) and (ii) of Clause 13(b)

45 It has been held that to establish requirement (i) of cl 13(b) it will be necessary for an agency or minister to show that the exempted information was ‘communicated and received under an express or inferred understanding that [it] would be kept confidential’: Re Maher and A-G’s Department (1985) 7 ALD 731 at 737. This also requires ‘an examination of the circumstances surrounding the communication of the information’: Ibid.

46 We are satisfied, in line with usual practice, that the investigation was conducted on the basis that the information given was received in strict confidence; a confidence only to be placed at risk in the event that it became necessary to rely on the information in support of formal charges.

47 So far as requirement (ii) of cl 13(b) is concerned, we are also satisfied that disclosure of such information, where no charges are laid, could be reasonably expected to prejudice the future supply of such information to the agency.

48 In that regard, we do not accept that a distinction can be drawn between the position of members of the community and employees in relation to this type of prejudice. Clearly many agency inquiries directed to a complaint of internal misconduct (as here) will necessitate interviews with employees connected with the circumstances of the alleged misconduct.

49 In the present case the information given to the panel by the district superintendent was central to, at least, two of the grievances. That information was in turn based on information given to the district superintendent by other employees of the department.

50 We acknowledge that conscientious employees would ordinarily see it as appropriate and proper for them to co-operate with departmental inquiries. If information of the kind in issue were to be released, it is not likely in our view that all employees would withdraw all future co-operation with similar inquiries. However, there is a likelihood that some might be more inhibited and guarded in the extent of their communication than may have previously occurred; and some might withdraw co-operation completely out of fear (reasonable or otherwise) of adverse repercussions flowing from publicity. To that extent, a relevant prejudice to the future supply of information would arise.

51 So it will be seen that we are satisfied that criteria (i) and (ii) of cl 13(b) are applicable.


Requirement (iii) of Clause 13(b): the Public Interest Balance

52 The Parliament has made it clear that meeting requirements (i) and (ii) is not sufficient to justify non-disclosure. It is necessary for the agency to satisfy the Tribunal that disclosure:
‘(iii) would, on balance, be contrary to the public interest’.
53 The agency’s case in relation to the public interest essentially repeats the submissions made in support of the applicability of requirements (i) and (ii).

54 In Re Kamminga and Australian National University (1992) 26 ALD 585, the Commonwealth Administrative Appeals Tribunal observed:

‘Deciding whether disclosure is contrary to the public interest requires a balancing of competing interests including the public interest in the applicant’s right to know (Re Peters and Dept of Prime Minister of Cabinet (No 2) (1983) 5 ALN N306; Re Burns and Australian National University (1984) 6 ALD 193), which is a different thing from the applicant’s personal interest in knowing. The tribunal must balance this against any adverse effect disclosure might have on the proper working of government or its agencies: Harris v Australian Broadcasting Corp (1983) 5 ALD 545; 50 ALR 551.’
55 The balancing exercise in which the Tribunal is asked to engage must commence by giving great weight to the public interest reflected in the passage of Freedom of Information legislation - the advancement of the democratic objective by recognising the right of the citizen to be informed (through an access to documents regime) about the basis for government actions, conduct, policies and decisions. Access also allows citizens to check whether governments have conducted themselves properly- in relation to particular conduct or in formulating and implementing wider ranging policies.

56 The community’s interests are also served by government having processes which examine and investigate thoroughly allegations that its officials have broken the law or not adhered to proper standards. Government has many ways of investigating allegations of official misconduct. They range from police investigation to special commissions, or they may be undertaken internally (as here) or by an external agency such as the Ombudsman.

57 It is typical of all investigative practice that it has at least three components: one, a preliminary inquiries stage, two, the undertaking of a formal investigation, and three, substantive findings with recommendations as to whether any further action should be taken. The recipient of the report then makes a decision whether, and how, to implement the recommendation. If warranted, charges may be laid with the material in support being disclosed to the person charged. It may be that not all the material gathered in the investigation will be made known to the person charged. It may be that none of the material is disclosed; and that instead new material brought to light by the investigation is relied upon. These points are, we recognise, obvious. But they bear repetition in the present context.

58 The officers gave evidence, from their experience, of the harm to the public interest that could result if the identity and the contents of the individuals who make statements to an investigator were to be released. They referred to the possibility of reprisals by those who were adversely affected by the information. They referred to the possibility of discrimination in future applications for promotion and the like. These are, in our view, important considerations especially in specialist career services such as teaching where an employee is likely to spend their entire work career. For career service agencies, like the agency in this case, the effective management of long-term, continuing relationships is a significant matter.

59 In reply to these concerns, Mr Mullett and Mr Randazzo both disavowed the possibility that they might behave in the manner suggested (effect reprisals, etc). This reply does not meet the point made by the agency. The agency is not making a specific allegation against Mr Mullett and Mr Randazzo. It is referring to the system-wide and long-term implications for its future operations in being seen to release this kind of information.

60 Mr Mullett is aggrieved by the selection process in which he was involved. He has made serious complaints to the agency. They have been investigated. He would like to satisfy himself as to the quality of that investigation. He would like to see how the agency reached its conclusions. Moreover, the material disclosed reveals that he was the subject of adverse findings.

61 It is not clear what expectation Mr Mullett had when he made his complaints to the agency as to the process that the agency would undertake; or what he would be told by the agency once his complaint had been investigated.

62 Nonetheless, in our view a complainant can not reasonably hold an expectation that he or she will be given complete access to the final report into their complaints. The agency will be faced with a range of issues when deciding to what degree a complainant should be informed about the contents of an investigation.

63 There is no indication in the material before the Tribunal that he was told in advance that he might be the subject of adverse findings and given an opportunity to respond. So not only has he had his complaints rejected, but he has also been the subject of adverse comment. His sense of dissatisfaction is understandable.

64 Mr Randazzo is aggrieved as he considers that he was the victim of unfair processes. The inquiry found, in essence, that the processes did not miscarry in any way. Mr Randazzo had industrial appeal rights open to him through which the ultimate recommendation of the selection panel could have been tested.

65 The material gathered will not at that stage have been fully tested. It may include material that is damaging to particular individuals. It may include material that is personal to an individual. It may be information with a high intelligence value that should be held in secure databases; and its further use and disclosure closely managed. These are judgments which are best made by trained staff in agencies. These difficulties are, we consider, recognised in the broader community.

66 There is a plainly-significant public interest placed at stake if the confidential phase of investigations is exposed to public view. While FOI is one means through which the democratic objectives to which we have referred may be secured, it is not the only one. It is possible today to have examined the fairness and lawfulness of confidential investigative processes through such bodies as the Police Integrity Commission (in the case of police forces) and the Ombudsman (general administration such as the instant case).

67 In this case, the officers also noted that information obtained from witnesses may be exculpatory or inculpatory in nature. The agency submitted that, in addition to the public interest in the elimination of corruption, there is a public interest in ensuring that alleged offenders have the benefit of evidence that tends to suggest they are innocent of wrongdoing.

68 In the present case, the report deals with a selection process said to have been flawed. A selection process is itself a confidential process. Panels are conducted on the basis of strict confidentiality as to what is said to the panel by applicants and referees.

69 Agency practice in relation to appointment of school principals allowed for a report to be obtained from the district superintendent.

70 As we understand the agency’s evidence, that practice is not accompanied by a requirement that any negative comment from the district superintendent is routinely disclosed to the applicant for a response. It is Mr Mullett’s perception that what he regards as an adverse report from the district superintendent led to the non-preferment of Mr Randazzo; and that as a result Mr Randazzo was dealt with unfairly. That perception is shared by Mr Randazzo.

71 It is that perception, more than others we feel, that lies at the heart of the original FOI request, and the vigour with which it has been pressed since. The agency’s toleration of such a practice (which appears to deny procedural fairness to the subject of the comment) is a public interest factor that clearly favours the case of Mr Mullett and Mr Randazzo.

72 However that factor must be weighed alongside the other factors we have mentioned relating to the need to protect interviewees; and to preserve confidentiality in the investigative process.

73 Our conclusion, on balance, is that the public interest factors opposing disclosure outweigh those favouring disclosure. Accordingly the agency’s reliance on cl 13 is, in general terms, justified. We note that a similar conclusion, relying on the internal working documents exemption, was reached in Re Maine and Department of Education, Employment and Training [2001] VCAT 1456.

74 We now move to examining the specific parts of the report which have not been disclosed in reliance on cl 13(b); and make findings, subject to the requirement that no exempt material be disclosed in the reasons for decision.

75 We are satisfied that the following excisions, would if released, disclose in-confidence communications, and otherwise satisfy the requirements of cl 13(b):

paras 14-17 : Excerpts from the statements made to the investigator by members of the selection panel replying to Allegation 1.

paras 21-24: Further excerpts from the statements made to the investigator by members of the selection panel replying to Allegation 2.

paras 28-29, 31-33, as to the whole; Para 30, sentence 1 only: Paras 28 to 29 and 31 to 33 comprise further excerpts from the statements made to the investigator by members of the selection panel or the district superintendent replying to Allegation 3. Para 30, sentence 1 is similar..

paras 39-43: Further excerpts from the statements made to the investigator by members of the selection panel and by the district superintendent replying to Allegation 4.

paras 50-53: Further excerpts from the statements made to the investigator by members of the selection panel and by the district superintendent replying to Allegation 5. (In light of this conclusion, the Appeal Panel will not assess the other ground upon which an exemption was sought, cl 6, in respect of two passages within paras 50-53, namely: the fourth sentence of para 51; and the first sentence of para 53).

paras 57-61: Further excerpts from the statements made to the investigator by the district superintendent and by a member of the panel replying to Allegation 6.

paras 69-73: Further excerpts from the statements made to the investigator by members of the selection panel and by the district superintendent replying to Allegation 7.

para 81: Further excerpts from the statements made to the investigator by a member of the selection panel and by the district superintendent replying to Allegation 8.

76 The net effect of the above is that the agency has justified its claim based on cl 13(b) in respect of all passages except for the second and third sentences of para 30, the first 11 words of para 64 and the deletions in the page headed list of appendices. We will deal with these parts of the document following our consideration of cl 16: see paras [107] and following.
Clause 16
77 All passages that were the subject of a clause 13 claim were also the subject of a clause 16 claim. Clause 16, as relevant provides:
‘ 16. Documents concerning operations of agencies

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

(a) could reasonably be expected:
(i) to prejudice the effectiveness of any method or procedure for the conduct of tests, examinations or audits by an agency, or

(ii) to prejudice the attainment of the objects of any test, examination or audit conducted by an agency, or

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

… and

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

78 The application of the cl 16 exemption rests on broader considerations to those that support the application of the cl 13 exemption. The focus is not on the existence of a relationship of confidence between the giver of the information and the agency, but rather the value in its own right to the effective operation of government of keeping certain kinds of administrative practices free from general community scrutiny through FOI.

79 In this instance the agency invokes three of the categories of exemption found in cl 16, being sub-paras (i), (ii) and (iii) of para (a) of the clause (read in conjunction with sub-para (b)).

80 There is in each instance a three step analysis involved:

· one, does the administrative practice in issue fall within the description of the administrative practice to which protection is given;

· two, has the degree of prejudice specified been demonstrated; and,

· three, ‘would [disclosure], on balance, be contrary to the public interest.’

81 As the Appeal Panel noted in its previous decision, while the text of the public interest test is the same in relation to both cl 13 and cl 16, it does not follow that the one set of considerations applies equally to each head of claim. This is so, even though in this case the agency itself did chose to rely on the one set of submissions in support of the public interest claims under both cl 13(b) and each of the three heads of claim upon which it relied in cl 16.

Categories (i) and (ii) of Clause 16: Protection of Audits

82 To reiterate, the text of paras (a)(i) and (ii) is as follows:
‘A document is an exempt document if it contains matter the disclosure of which:
(a) could reasonably be expected:
(i) to prejudice the effectiveness of any method or procedure for the conduct of tests, examinations or audits by an agency, or

(ii) to prejudice the attainment of the objects of any test, examination or audit conducted by an agency’.

83 It will be seen that categories (i) and (ii) above, both refer, to the conduct of the administrative practice of ‘audit’. The agency claims in this case that these headings are relevant, it would seem because the investigative report was produced by a body with ‘audit’ functions. The agency’s submissions throughout have merely asserted that it is the case that an internal investigation of the kind in issue falls within the parameters of (i) and (ii).

84 Regrettably, in the course of the conduct of this case, no detailed submissions appear to have been addressed to the question of whether the activity in issue in this case is one of ‘audit’. It is the case that the activity was undertaken by a body with the name, ‘Audit Directorate’. However, as noted earlier, the evidence is that the Audit Directorate has two units – an audit unit; and an internal investigations unit.

85 The present activity belongs to the internal investigations side of the Audit Directorate. The conduct of an official investigation into specific allegations of misconduct relating to a particular set of circumstances is, in our view, not commonly understood to be the conduct of an ‘audit’. The Macquarie Dictionary (1st ed, 1981) defines the noun ‘audit’ as follows:

‘ audit , n. 1. An official examination and verification of accounts and records, esp. of financial accounts. 2. An account or statement of account. 3. A calling to account. 4. Archaic , a judicial hearing. 5. Rare , audience.’
86 In our view, the term ‘audit’ carries the connotation of a systemic, broad ranging examination of specified activities of the organisation the subject of the audit. While the expression is most commonly used in connection with the conduct of audits of the financial affairs and operations of an organisation, it is now often used to describe examinations of non-financial aspects of an organisation’s activities, for example the level of compliance of the organisation with regulatory standards or best practice standards (a form of audit sometimes called a compliance audit or a quality audit).

87 The Australian Concise Oxford Dictionary (3rd ed. 1997) recognises the wider connotation. It defines the noun ‘audit’ as

‘ audit , n.1. an official examination of accounts. 2. A systematic review ( safety audits ).’
88 The concept of a ‘systematic examination’ is reflected in an explanation of the meaning given in a High Court case, referring to the accounting context. An audit was described as the ‘official and systematic examination of the financial statements of an accounting entity with verification by reference to witnesses and vouchers’: see Shire of Frankston and Hastings v Cohen (1960) 102 CLR 607.

89 A similar mode of inquiry is seen in a recent Commonwealth case dealing with the equivalent Commonwealth FOI Act exemption. In Smith and ATSIC Smith and Aboriginal & Torres Strait Islander Commission [2000] AATA 512 (22 June 2000) per Forgie DP:

‘282. The first question which must be answered before I can consider whether the documents come within paragraphs 40(1)(a) or (b) is what is meant by the words "tests, examinations or audits" used in paragraphs 40(1)(a) and (b). In Marco Ascic v Australian Federal Police (1986) 11 ALN N184, the Federal Court considered examination papers, which clearly came within the term "examinations", and so had no need to consider the meaning of the words further. I have looked to the ordinary meanings of those words in so far as those meanings are relevant. "Test" means "... That by which the existence, quality, or genuineness of anything is or may be determined ...". "Examination" means "... The action of testing or judging by a standard ... Investigation by inspection or experiment ...". "Audit" means "... Official examination of accounts with verification by reference to witnesses and vouchers ..." (The New Shorter Oxford English Dictionary, 3rd edition, 1993).

283. It seems to me that Mr Trezona's audit is clearly an audit within the meaning of s. 40 for there was an examination of the CCO Association's accounts with a view to verifying them. His audit was requested by the Commission for the purposes of enabling it to carry out its wider functions of monitoring the effectiveness of programs for Aboriginal persons and Torres Strait Islanders. The OEA's powers extend to evaluating and auditing the operations of a body corporate that has received a grant or loan from the Commission. The evaluation or audit extends only to an evaluation or audit concerning that grant or loan. Mr Trezona's audit, then, is relevant to both the procedures and methods by which the Commission conducts examination or audit and the manner in which it carries out a part of it functions.’

90 In that case the document to which access was being sought in relation to which the audit exemption was invoked was a report, dated 16 April, 1996, to Department of Administrative Services Support Services provided by a chartered accountant, following a request from ATSIC regarding a special audit and review of an aboriginal organisation, the Canteen Creek Owairtilla Association Inc. Its primary purpose was to report to the Department on the management of the organisation’s financial affairs. The decision reveals that a series of allegations had been made suggesting a failure of the organisation to manage its affairs that was systemic in character, including alleged frauds. It will be seen that the report covered a seven month period, and it examined the operations of the agency has a whole.

91 The same approach to the meaning of ‘audit’ is found in the Premier’s Departments FOI Manual (1994 ed.), issued to all government agencies, at 191: ‘The term ‘audits’ although used primarily for financial audits, would also cover such things as efficiency audits.’

92 We are not satisfied that the administrative activity in issue falls within the scope of sub-paras (i) or (ii) of cl 16(a).


Category (iii) of Clause 16

93 The next question is whether category (iii) of cl 16 is applicable to this document. To reiterate, category (iii) is as follows:
‘A document is an exempt document if it contains matter the disclosure of which:

(a) could reasonably be expected: …

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

94 It is necessary to examine first what are the activities covered by the expression ‘management or assessment by an agency of the agency’s personnel.’ It is not, we consider, necessary in this case to give a comprehensive answer to the question of what is precisely covered by the expression. The reference to ‘personnel’ seeks to convey, we consider, an emphasis on activities in agencies connected with the human resource management function. In our view it is clear that selection processes, and their effective operation, are integral to the human resource management function.

95 The circumstances under notice here are the conduct of a selection process and the investigation of complaints in relation to that process by an aggrieved member of the selection panel, as well as further complaints from the school council.

96 The question then is, whether disclosure of the material for which exemption is claimed, could ‘reasonably be expected to have a substantial adverse effect’ on the integrity and operation of selection processes. In the agency’s submissions this question was addressed in conjunction with the final question, that of the public interest. The agency’s evidence and submissions was summarised in this way by the original Tribunal:

‘6.29 The second group of public interest considerations are those concerning the public interest in the management of personnel within government departments. There is a public interest in the operation of selection panels and the appointment of the principals and other Departmental officers on the basis of merit. Established human resources principles suggest this is best done where personal and professional information pertaining to applicants is kept confidential and members of selection panels are able to have full and frank discussions about the relative merits of applicants. There is a real risk that applicants, referees and members of selection panels would feel constrained in their discussions if the information could be communicated to other applicants, colleagues and the public.

6.30 There is also a general public interest in efficient systems of human resources management within Government, the existence of relationships of trust between Departmental officers and the confidentiality and privacy of personnel information. ...

6.32 The respondent submits that disclosure of personnel information would have a negative effect on workplace relationships; tend to impair the development of relationships of trust between Departmental officers and their superiors and could adversely affect industrial relations.’

97 It will be seen that, again, the exemption in cl 16(a)(iii) focuses on systemic considerations. ‘Substantial adverse effect’ involves a higher test than, for example, mere ‘prejudice’ as referred to in (a)(i) and (ii): see Re James and Australian National University (1984) 6 ALD 687. The effect must be sufficiently serious to cause concern to a properly informed reasonable person: Re Thies and Dept of Aviat ion (1986) 9 ALD 454; it must not be irrational or absurd: see Attorney General (Comm) v Cockcroft (1986) 64 ALR 97. We agree with the following comments in Australian Administrative Law (Butterworths, Australian Administrative Law Library, June 2002) at [741]:
‘Prejudice or substantial adverse effect must arise from the disclosure of the particular information in the particular documents but also from the disclosure of documents of a particular kind. The vice of such disclosure lies in the breach of confidential properties, a breach which can for that reason lead to the cessation or diminution of the future flow of information to the agency in question: Department of Social Security v Dyrenfurth (1988) 15 ALD 232; 80 ALR 533; Re Fryar and Australian Federal Police (1988) 17 ALD 25.’
98 We are satisfied that the release of the references in the report to the confidential statements made by the members of the selection panel could have a substantial adverse effect on the conduct of future selection panels. Members of the selection panel need to have security that their confidential exchanges will not be released. In the present instance it was necessary for disclosure to occur to the extent necessary to assist the internal inquiry. Selection panel processes are ones surrounded by strict requirements of confidence. It follows that any report into such a process should reflect the same standards of confidentiality. Any further disclosure should only occur to the extent necessary for formal action to be taken in respect of any recommendation flowing from the inquiry. In this case the internal inquiry found against further action.

99 We are satisfied that any discrepancy between the two standards could give rise to a ‘substantial’ adverse effect on the management and on the assessment of personnel.


Cl 16(b): The Public Interest Issue

100 We have referred at paras [55-56] and in our previous decision, Director General, Dept of Education and Training v Mullett & Randazzo [2002] NSWADTAP 13 at [90] and following to the nature of the public interest balancing exercise. This exemption is, as we see it, focussed on the effective conduct of the agency’s personnel management function.

101 The public interest factors that arise under cl 13 being those relevant to the protection of confidential communications are not identical to those that arise under cl 16(a)(iii) surrounding the preservation of good personnel management practices. Protection of confidentiality is merely one important aspect of what is involved in the preservation of good personnel management practices.

102 The public interest considerations that surround the preservation of good personnel management practices are numerous and competing. Today there is, for example, an increased emphasis on transparency and openness in personnel management; and the use of such techniques as regular formal staff appraisal and feedback.

103 As the claims for exemption founded on cl 13 have been established (with some exceptions noted below), it is not necessary, we consider, on this occasion to develop this discussion.

104 Detailed written submissions were made to the original Tribunal by Mr Mullett and Mr Randazzo in relation to the public interest. The submissions referred to the important objectives served by freedom of information legislation. We have also referred to these elsewhere in our reasons. It remains the case however, that Parliament established a complex scheme to regulate decisions to grant access to government documents. The complexities include: the number and detail of the grounds upon which exemption can be claimed; and provisions for excluding classes of documents and sometimes entire agencies from the operation of the Act. The Parliament sought through the use, at a number of points, of ‘public interest’ clauses, to guard against the possibility that agencies would uncritically exploit these limitations on access.

105 The respondent’s submissions are set out in some detail at paras [50]-[51] of the original decision.

106 Mr Randazzo’s principal submission in support of his public interest case concerns the selection panel’s action in taking into account the District Superintendent’s comments without giving him an opportunity to respond. While, as previously noted, we regard such an omission as undesirable, it is not, a sufficient ground to allow our conclusion that the internal deliberations of the panel would be ‘contrary to the public interest’ (either in relations to cl 13(b)(iii) or cl 16(b)(ii)). The agency’s evidence is that confidential consultation with the District Superintendent is routinely undertaken by selection panels for Principal positions; and that the District Superintendent’s comments are not necessarily conveyed to the applicant.

107 The investigator’s report focused on the question of whether the District Superintendent’s comments were fair, in the sense that they accurately reflected the material on which he based them. Mr Randazzo understandably feels that he should have had the material put to him. Our conclusion is that the practice currently followed by the agency is an established one; and it may be that the agency (and interested parties such as teachers’ unions) see the appeals process as the way any injustice is to be dealt with. This is a systemic issue as to what is good practice in the teaching service is better resolved, we think, outside the framework of a particular FOI review application. The exercise of the ‘public interest’ discretion in the context of a single case will often not be suited to dealing with contentions that go to soundness of established administrative practice.

108 We note from attachments to Mr Randazzo’s affidavit (Exhibit 1A) in the original hearing that he did appeal the selection panel’s decision. The particular issue of the non-disclosure to him of the District Superintendent’s comments was not raised as a ground of appeal. The agency’s Appeal Committee concluded, in relation to Mr Randazzo’s contentions as to regions from which the panel was drawn and the choice of the Teachers Federation representative, that selection process was neither irregular nor improper. There are no written reasons.

109 The position is different where a contention is made out that an established administrative practice was itself not followed, for example there was no corrupt conduct. In such a case clearly there would be a strong public interest consideration favouring disclosure to the applicant.

110 There are 3 deletions to which we consider the claims made under cll 13 and 16 are not established.

111 The relevant passages are:

(i) Para 30. The second and third sentences reveal in-confidence information that is favourable to Mr Randazzo. The person named is not listed in the list of persons interviewed. While there is evidence that all persons interviewed were promised confidentiality, the present information was provided outside the context of interview, and there is no evidence that it was subject to such a promise. Clause 13(b) is not applicable. We are not satisfied that any potential ‘substantial adverse effect’ for the future conduct of internal inquiries or staff management, viewed more generally, would flow from the disclosure of this information.

(ii) The first 11 words of paragraph 64. This material follows on from an earlier reference to the same matter (merit selection training programs) in para 63 for which the in-confidence communication was not claimed. Para 63 has been released. In these circumstances the public interest in non-disclosure is not satisfied, and these words should be released. We are not satisfied that either a ‘substantial adverse effect’ or a transgression of the ‘public interest’ from release of the opening 11 words.

(iii) deleted portions of the list of appendices (the names of persons interviewed). In principle, we acknowledge that a ‘substantial adverse effect’ could be caused to an agency, within the meaning of cl 16(a)(iii) if agencies were to be required under FOIA to release lists of people interviewed in investigations. There is sometimes an interest in keeping confidential the list of those interviewed so as not to reveal to the public the scope of the investigation. In the circumstances of this case, it is in our view self-evident from the text released who was interviewed. We are not satisfied that in this case there is any significant risk to the public interest in releasing the list.

112 Accordingly our conclusion is that the agency’s determination (as recorded in the decision on internal review dated 5 July 2000) should be affirmed in respect of paras 14-17; paras 21-24; paras 28-29; para 30, sentence one; paras 31-33; paras 39-43; paras 50-53; paras 57-61; paras 69-73; para 81; and otherwise it should be set aside.

113 Postscript. We refer again to the issue of the scores given to candidates by way of postscript. Mr Randazzo has disputed the statement made in our earlier reasons for decisions (last two sentences, para [6]) that:

The Tribunal’s reasons for decisions recounts that the selection committee ranked Mr Randazzo the highest candidate using numerical indicators, but the committee ultimately divided 3-2 in favour of another candidate. The material disclosed (report, para 74 released on internal review) states that Mr Randazzo was scored at ‘67 points’ which the preferred candidate was scored at ‘68 points’.
114 Mr Randazzo contends that he was the recipient of the highest score. The Appeal Panel in its previous statement sought to avoid reaching any conclusion on that issue. Our understanding of the material is that initially Mr Randazzo was given the second-highest score. However, the convenor gave the selection panel the option to review their score. Mr Mullett altered his score by reducing the other candidate’s score by 1.5 points. That had the effect that Mr Randazzo received the highest score. (The result was said to be Mr Randazzo 66.5 and the other candidate 65.5 (original hearing transcript p 40). This evidence does not dovetail mathematically with an original score of 67 for Mr Randazzo and 68 for the other candidate.) We simply note that there was significant conflicting evidence before the Tribunal and the Appeal Panel on the matter of which of the two scores should be seen as the relevant score (see letter dated 24 July 2000 from Mr Bill Middleton, Director of Audit to Mr Mullett; transcript pp 40-43, 78-80 and 82-83). As we see it is not necessary to make any finding on this issue in order to resolve the case.

ORDERS

1. The agency’s decision to refuse access to the requested document is affirmed in respect of paras 14-17; paras 21-24; paras 28-29; para 30, sentence one; paras 31-33; paras 39-43; paras 50-53; paras 57-61; paras 69-73; para 81.

2. Otherwise the decision is set aside.