Director General, Department of Education & Training v Mullett & anor (GD)

[2002] NSWADTAP 13

Appeal Panel

CITATION:	Director General, Department of Education & Training -v- Mullett & anor (GD) [2002] NSWADTAP 13 revised - 11/06/2002
PARTIES:	APPELLANT Director General, Department of Education & Training FIRST RESPONDENT Christpher Mullett SECOND RESPONDENT Robert John Randazzo
FILE NUMBER:	019040
HEARING DATES:	05/10/2001
SUBMISSIONS CLOSED:	10/05/2001
DATE OF DECISION:	04/26/2002
DECISION UNDER APPEAL:	Mullett & anor -v- Director General, Department of Education & Training [2001] NSWADT 119
BEFORE:	O'Connor K - DCJ (President); Montgomery S - Judicial Member; Bolt M - Member
CATCHWORDS:	adequacy of reasons - no evidence - relevant/irrelevant considerations - unreasonableness
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	003353
DATE OF DECISION UNDER APPEAL:	07/18/2001
LEGISLATION CITED:	Freedom of Information Act 1989 Privacy and Personal Information Protection Act 1998
CASES CITED:	Mullett -v- Director General, Department of Education and Training [2001] NSWADT 119 Re Easdown and Director of Public Prosecutions (1987) 2 VAR 102 Department of Social Security v Dyrenfurth (1988) 80 ALR 533 (Fed Ct, FC) Corbett v Australian Federal Police (1986) 11 ALN N249 Re Williams and Registrar, Federal Court (1985) 8 ALD 219 Ryder v Booth [1985] VR 870 Attorney General’s Dept v Cockcroft (1986) 64 ALR 97 Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279 Bennett v Vice Chancellor, University of New England [2000] NSWADT 8 Hope v Bathurst City Council (1980) 144 CLARE 1 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Haines v Lever & Anor (1987) 8 NSWLR 442 Associated Provincial Picture Houses v Wednesbury Corp [1948] 1 KB 223 Minister for Aboriginal Affairs & Anor v Peko-Wallsend & Ors (1986) 66 ALJR 299 Re Horesh and Ombudsman (1986) 1 VAR 149 Re Lapidos and Ombudsman (no 1) (1987) 2 VAR 82
REPRESENTATION:	APPELLANT K Sant, barrister FIRST RESPONDENT In person SECOND RESPONDENT In person
ORDERS:	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.

1 This appeal arises under the Freedom of Information Act 1989 (FOI Act). The Department appeals against a decision of the Tribunal to set aside (with one minor exception) its decision to refuse to release to the applicant the whole of a report of its Audit Directorate entitled, ‘Investigative Report AI 91/99 [name deleted] Public School Alleged Corrupt Merit Selection Process’ dated 31 December 1999 (the report). See Mullett -v- Director General, Department of Education and Training [2001] NSWADT 119 (18 July 2001). By consent, the determination of the Tribunal was stayed on 17 August 2001 pending determination of this appeal.

2 The applicant for review (and respondent to the appeal) is Mr Christopher Mullett (Mr Mullett). Mr Robert Randazzo (Mr Randazzo) was the first party joined in the proceedings. The report was prepared for the Department as a result of allegations made by Mr Mullett as to the fairness and propriety of a selection process for principal at a country primary school. Mr Mullett was a member of the selection panel in his capacity as President of the School Council. Mr Randazzo, the first party joined, was an unsuccessful candidate for the position. Mr Mullett had supported Mr Randazzo.

3 The Department gave Mr Mullett access to some parts of the report, but refused to disclose substantial portions on the basis of the grounds for exemption given in the FOI Act relating to privacy, revelation of information given in confidence and protection of internal audit processes (referred to in detail later). The Tribunal substantially rejected the Department’s claims to exemption. The Department now appeals.

Background

4 The Department’s decision to advertise and fill the position of principal followed on an earlier inquiry. Because of complaints in relation to the operation of the school the Department in June 1999 initiated a wide-ranging management review of the operation of the school. There had been a history of principals coming to the school and seeking to leave after short periods, and often being prepared to accept demotions in order to do so. The final report of the review was published by the Department in August 2000.

5 The five member selection panel held interviews on 15 November 1999. The panel comprised a Convener (Ms Sandra Bradley, a principal of a country primary school), Principal representative (Mr John Walker, a principal of another country primary school), a Teachers Federation representative (Mr Michael Mullane, an assistant principal from another country school), a P & C representative (Mr Mullett as president) and a Parent representative (Ms Susan Bradley, a parent at another country primary school who was President of its P & C).

6 Mr Mullett said at hearing that the panel had been split, with a majority favouring the appointment of a candidate other than Mr Randazzo. He favoured the appointment of Mr Randazzo and refused to sign the report. Later that day he sent the first of his letters to the Department complaining about the process. 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’ while the preferred candidate was scored at ‘68 points’.

7 Mr Mullett made complaints about the selection process in two letters dated 15 and 18 November 1999. The Department initiated an inquiry into the complaints giving rise to the report in issue.

8 The report addressed eight allegations concerning the alleged bias of panel members; improper conduct by Departmental staff on the selection panel; and alleged corrupt conduct by Mr Thomas, the District Superintendent in relation to his role as referee. The report concluded that on the basis of statements from those involved and from the review of relevant documentation, none of the allegations were substantiated. The report did express concern over Mr Mullett’s role on the grounds of breach of confidentiality and bias. The report recommended that the selection panel's recommendation stand.

Tribunal’s Reasons for Decision

9 The Department in refusing to disclose parts of the report relied on three heads of exemption: FOI Act, Schedule 1 clause 13(b) [confidential material], clause 16 [operations of agencies], and clause 6 [personal affairs].

10 In support of its reliance on the exemption categories under which it had withheld parts of the document, the Department tendered affidavit evidence from senior officers. Their evidence related to the expectations of confidentiality that attached to the provision of information to an internal audit process, and as to the desirability of protecting the audit process. They were cross examined. The Tribunal recounted this evidence in some detail in its reasons.

11 The Tribunal then referred to evidence before it as to the conduct of the selection process, in particular consultation by the panel with a Mr Thomas in order to obtain a reference in relation to the capabilities of Mr Randazzo. The Tribunal made the following observations:

‘16 In the present case an important element was that during the course of the merit selection process, the panel had an oral discussion with a referee, Mr Thomas, the District Superintendent of the Department and the immediate supervisor of the job applicant, the first party joined. Mr Thomas was obliged to be the referee for the first party joined under the requirements of the process ( ibid , page 29, line 20) and his reference and assessment, I expect, would have carried great weight to the panellists concerned. He was not a referee in the ordinary, private job application sense in that he was a person nominated by the job applicant. He said, in essence, to the panel that the first party joined was a good teacher, but that he was in some way responsible for the short term stay of four previous principals and, in potentially more damaging remarks, he said there has been some complaints made against him in the past by a number of parents. These two comments so surprised and upset the FOI applicant at the time he heard them uttered, that at the panel meeting he protested to the convener of the panel and declared them to be untrue and, later, they formed the basis of what is now known as allegation 3 & 4 in his formal complaint.

17 In my view, the significant, damaging and prejudicial effect those remarks would have had on the panel participants to the first party joined's job application cannot be understated. The comments were general, unexplained and unsupported to the panel by details or documents or discussion. There was at the time little or no questioning by the panel members of Mr Thomas on these issues. If there were to be a close contest between the first party joined and another applicant, those comments could well have tipped the scales against the first party joined (as I suspect they ultimately did).’

12 The Tribunal then went on to outline the evidence of a senior officer of the Audit Directorate, Ms Wells. Ms Wells referred to the nature of the functions of this unit, which was responsible for the conduct of internal inquiries into allegations relating to the integrity of departmental procedures, among other matters. She also explained the need to accord confidentiality to the identity of witnesses and their evidence. She had been one of the two senior officers who were co-signatories to the report, and referred to her own advice to the FOI Unit as to why it was important to protect the identity of members of the school community who had made adverse comments in relation to the appointment of Mr Randazzo.

13 In relation to Ms Wells’ concerns, the Tribunal observed:

‘21 As I discuss later in these reasons, I am not persuaded that mere disclosure of the further information in this particular case, notwithstanding the "volatile" and "high profile" nature of the investigation would result in witness no longer being willing to co-operate with internal investigations conducted by the Audit Directorate.’

14 The Tribunal then referred to Ms Well’s explanation of her finding that the seeking of views from Mr Thomas was appropriate in the circumstances even though his views were not put to Mr Randazzo for reply. The Tribunal observed:

‘23 I do not agree. I consider that any such adverse material or the substance of such material should be first put to the job applicant concerned before it is aired in a general and potentially prejudicial fashion by a referee during the course of merit selection proceedings. It does not matter that that (sic) such disclosures might have some objective or arguable basis in fact or be considered "factually correct". For example, it might be factually correct for a referee to state that "some complaints have been received". However, in the circumstances, those facts should have been acted upon or investigated fully in the proper fashion internally or otherwise before their existence was disclosed to the panel in the fashion it was. I would expect that in some cases, and it was probably the case here, that the release of that unexplored, unexplained and unsubstantiated information to the panel poisoned the panel members' minds against the application of the first party joined. As he was unaware of it until after it occurred, he was not able to say or do anything about it.’

15 The Tribunal then referred to the evidence of another senior officer of the Audit Directorate, Mr Ballantine. Mr Ballantine gave evidence as to the standard practice in such investigations of giving witnesses an assurance of confidentiality. Mr Ballantine had overseen the inquiry. The Tribunal outlined his evidence as to the number of people interviewed for the inquiry and as to the need to keep their identities secret.

16 The Tribunal then referred briefly to the evidence of Mr Mullett and of Mr Randazzo. As to Mr Randazzo’s evidence it observed:

‘27 The first party joined relied on a lengthy statement dated 18 March 2001. He argued, with some force, that the release of the partial report by the respondent merely raised more questions than it answered and the remainder of the report should be released. He said, and I accept, that the report impacts significantly on his professional and personal affairs and is of the opinion that he has a real and substantial interest in the full disclosure of the report. He also relied on helpful written submissions dated 27 March 2001.’

17 The Tribunal then set out its understanding of the law and its findings relating to each of the exemptions relied upon by the Department, i.e. cl 6(1) (the personal affairs exemption), cl 13 (the confidentiality exemption) and cl 16 (internal operations of agencies exemption). It is these aspects of its reasons that were the main focus of the grounds of appeal.

Unreasonable Disclosure of Personal Affairs

18 Clause 6 provides:

‘ 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.’

19 This exemption was claimed in relation to the following parts of the document:

· paragraphs 29 to 30,
· the last sentence of paragraph 34,
· the deleted words in paragraph 35,
· the fourth sentence of paragraph 51,
· the first sentence of paragraph 53, and
· the second two lines of the table in paragraph 74.

20 As to the applicability of cl 6(1) to these parts of the document it concluded as follows:

‘32 I have carefully read the identified passages in the report. With the exception of the second two lines of the table in paragraph 74 of the report, which disclose the names and interim rankings of two unsuccessful applicants for the principal's position, I cannot see that the material contains personal affairs as is contended by the respondent. It is properly characterised as information collected by agency officers in the ordinary performance of their duties. If any aspect of the material constituted "personal affairs" within the meaning in clause 6, it was significantly the personal affairs of the first party joined as the relevant job applicant. He has requested that the information be released.

33 Accordingly, I do not consider that the respondent has discharged its burden of proof in relation to the said claimed exemption. If I am wrong in this view, I adopt what is said below in these reasons as to the public interest considerations. As that is similar to the concept of "reasonableness" in all the circumstances here, the reasoning there is also applicable to the personal affairs exemption. The claimed exemption is not made out.’

21 Clause 13 provides:

‘ 13. Documents containing confidential material
A document is an exempt document:
(a) if it contains matter the disclosure of which would found an action for breach of confidence, or
(b) if it contains matter the disclosure of which:
(i) would otherwise disclose information obtained in confidence, and
(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.’

22 The following passages were the subject of claims to exemption under cl 13(b):

· paras 14-17 (accounts of individual interviews by the audit directorate with members of the selection panel replying to allegation made against them by Mr Mullett, described as Allegation 2),
· paras 21-24 (further specific statements made by members of the panel in response to Allegation 2, gathered under the heading ‘Findings’),
· paras 28-33 (specific statements made by members of the panel in response to allegation made against them by Mr Mullett, described as Allegation 3, gathered under the heading ‘Findings’),
· the last sentence of paragraph 34 (finding in relation to contents of documents),
· the deleted portions of paragraph 35 (deletions of names of departmental staff members, but note that the substance of staff members’ actions or comments disclosed),
· paras 39-43 (specific statements made by members of the panel in response to allegation made against them by Mr Mullett, described as Allegation 4, gathered under the heading ‘Findings’),
· paras 50-55 (specific statements made by members of the panel in response to allegation made against them by Mr Mullett, described as Allegation 5, gathered under the headings ‘Findings’ and ‘Conclusion’),
· paras 57-61 (specific statements made by members of the panel in response to allegation made against them by Mr Mullett, described as Allegation 6, gathered under the heading ‘Findings’),
· the first 11 words of paragraph 64 (deletion of name of departmental staff member, substance of staff member’s comments disclosed),
· paras 69-73 (specific statements made by members of the panel in response to allegation made against them by Mr Mullett, described as Allegation 7, gathered under the heading ‘Findings’),
· deleted portions of the list of appendices (a list of persons interviewed), and
· the appendices themselves (material not supplied to the Tribunal, presumably the full text of the records of interview).

23 As to the applicability of cl 13(b) to these parts of the document the Tribunal concluded as follows:

‘37…. In any event, I do not consider that the respondent has satisfied me the material is exempt pursuant to clause 13(b). The Tribunal must be satisfied that all three limbs of that clause are adequately addressed in the evidence of the respondent. While I accept that the much of the information was probably obtained in confidence (and that the subject of that investigation also related to a confidential merit selection process) I am not satisfied that disclosure of the information could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, or that its disclosure would, on balance, be contrary to the public interest.

38 The circumstances giving rise to the production of the report were most unusual and the subject of a significant amount of public attention. I do not consider disclosure of the information could reasonably be expected to prejudice the future supply of such information to the Government or to an agency for the following reasons:

(a) The events giving rise to the matters contained in the report occurred in November 1999 and the relevant parties have, as it were, moved on from their otherwise active involvement in or connection with the school;

(b) The respondent has already released a significant portion of the report. That action has itself raised more questions than it answered in that there is now a public and partial airing of (unspecified and unsubstantiated) allegations against the first party joined, and there are adverse findings against the applicant (that he allegedly breached his duty of confidentiality in making certain disclosures to the School Council and the school community after the interviews took place in November 1999);

(c) Apart from the applicant, the persons interviewed in the investigation leading to the writing of the report were all persons employed by the respondent's agency. I do not accept that they or persons such as them will not co-operate again in a similar investigation (if one such as this ever occurs again) if the material is disclosed by the Tribunal under the Act;

(d) I do not think it is reasonable in the particular circumstances here to accept that persons involved in the merit selection process in the future would be less inclined to be involved in the same fashion if the remainder of the report were to be released; and

(f) Each of the witnesses were told at the time that their comments could be used in evidence in civil or criminal proceedings in appropriate cases. There (sic) were each clearly aware at the time it could become public through some formal process (see, Re Easdown and Director of Public Prosecutions (1987) 2 VAR 102 at 115).

39 As to the public interest considerations, I set out below in these reasons why I consider the respondent has not discharged its onus in satisfying the Tribunal the public interest requires that the remainder of the report be kept secret.’

24 Clause 16 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
(iv) to have a substantial adverse effect on the effective performance by an agency of the agency's functions, or
(v) to have a substantial adverse effect on the conduct of industrial relations by an agency, and
(b) would, on balance, be contrary to the public interest.’

25 Paras (i), (ii) and (iii) of cl 16(a), in combination with sub-clause (b) were invoked in relation to all the passages listed above, which were the subject of the cl 13 claim.

26 As to the applicability of cl 16(a) to remainder of the report (i.e. those parts not disclosed) it concluded as follows:

‘43 I do not consider that disclosure of the remainder of the report could reasonably be expected to prejudice or have the substantial adverse effects as contended by the respondent in these proceedings within the meaning in clause 16(a) largely because of the matters I referred to in paragraph 38 above in these reasons.

44 In any event, I consider that the public interest considerations, on balance, favour release of the remaining matter to the applicant and the first party joined.’

27 The Tribunal then went on to deal separately and generally with the public interest requirements relevant to each of the above categories of exemption. It expressly did not seek to apply any public interest override discretion that may be said to arise from s 25 of the FOI Act: see para [54].

Applicability of cl 13(b)(iii) and cl 16(b) and the Unreasonableness requirement in cl 6: Public Interest Considerations

28 Its observations in relation to the public interest considerations are set out in full below:

‘ The Public Interest Considerations
45 The public interest arises in this case in terms of the confidentiality and "operations of agencies" exemptions claimed by the respondent. It also goes to the issue of the "reasonableness" of disclosure as part of the personal affairs exemption. I propose to deal with these issues together.

46 Each party argued that the public interest favoured their respective positions.

47 The respondent argued the public interest in the following way (from the written submissions):

"6.25 The primary consideration in this case is the strong public interest in the elimination of corruption to ensure the fair and efficient operation of Government. There is a consequent public interest in the effective operation of the Audit Directorate and other Government agencies investigating fraud, corruption and mal-administration. The importance of this interest has been formally recognised by Parliament by the passage of the Protected Disclosures Act 1994 which aims to encourage and facilitate the disclosure of corrupt conduct, maladministration and serious and substantial waste in the public sector. In the respondent's submission, once it is found that the effective investigation of allegations of fraud, corruption and mal-administration would be significantly impaired by disclosure, it follows that disclosure is contrary to the public interest. This conclusion is more readily reached in a case such as the present where the adverse impact would be a substantial one.

6.26 Witnesses would be less likely to co-operate voluntary with investigations or to disclose information fully and frankly to investigators. As it has no power to coerce witnesses to co-operate, this would lead to a serious decease in information available to the Audit Directorate. It would receive fewer reports of corruption and would be unable to effectively investigate many of those it did receive. It is relevant that it has no alternate source of information which could replace the lost evidence of witnesses and this makes a decrease in the quality and quantity of evidence inevitable.

6.27 These considerations are similar to those raised by Ainsworth v Principal Officer, Department of Gaming and Racing (unreported, NSW Dist Ct, 6 June 1997) in which it was held that a source of information to the Department would dry up if disclosure occurred and that the public interest in preventing and dealing with infiltration of the gaming, liquor and club industries by "undesirable elements" outweighed those favouring disclosure. ... The public interest in the effective operation of such units also encompasses the public interest in the safety of informants and witnesses which could be put at risk by disclosure of their identity and the content of their evidence.

6.28 Information obtained from witnesses may be exculpatory or inculpatory in nature. The respondent submits 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.

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."

48 The applicant's primary submission on the public interest was that it played no part in these proceedings as the respondent had failed to establish the material was otherwise exempt under the Act. If it was relevant, the applicant's written submissions stated:
"24. The Applicant does not deny that there is a public interest in the efficient management of personnel within government departments. Nor does the Applicant deny that this is best achieved where personal and professional information pertaining to applicants for positions are kept confidential and where members of selection panels are able to have full and frank discussions about the relative merits of applicants. However, this approach must be secondary to the public interest in the management of personnel in a way that is not corrupt or bias. It follows that confidentiality in such processes may need, in rare cases such as this, to be displaced to investigate bias and corruption allegations.

25. Further, it is submitted that confidentiality in this area should give way to the public interest in transparency in dealing with such allegations especially where such allegations are made by or on behalf of a section of the public. In this case, the allegations were made by the Applicant, who was chosen as a representative of parents of the school, and by the Parents and Citizens Association. The Applicant submits that, in these circumstances, [it] is not enough to hold an investigation and communicate to the complainants the conclusions thereof. The public interest requires that investigations in these circumstances should be transparent and all the results and findings be made available to the public so as best to ensure public confidence in these important processes."

49 The applicant states in the final paragraphs of his written submission:
"34. However, the Applicant contends that, in any event, the public interest in this case justifies the disclosure. The selection of a principal for Penrose Public School was a matter of concern for the local community. The allegations of corruption and bias relating to the selection process is of concern not only to the Applicant and the School Community but to the broader community (see the report in the Daily Telegraph in the affidavit of [the Applicant]). It is in the public interest that such processes not be corrupted or affected by bias. It is also in the public interest that investigations into such matters not only be carried out fairly but that they be seen to be carried out fairly. This will be so only if the entire Audit Report is released to the public. Only this can ensure public confidence in investigation processes."
50 The first party joined argued that his personal interest in viewing the withheld material outweighs any interest in keeping it secret. The fact that confidential and undisclosed information was used against him by Mr Thomas during the merit selection process to his obvious detriment was an issue he was entitled to be made fully aware of so that, to the extent necessary, he could in future seek to exercise his rights, if any, under Part 4 of the Act to seek amendment of the agencies' records relating to him.

51 He says that "truth and public sector accountability are two far more important issues" than any interest in keeping the material secret. In his written statement, he said full disclosure of the report is in the interests of the public because:

"- The administration of public education is funded by the people of this state and is therefore accountable to them
- The Freedom of Information Act 1982 (Cth) legislation is now mirrored in all the states and includes:
- recognition of the individual's "right to know";
- right to have information amended if not accurate;
- access to State and Federal government information;
- government accountability;
- an attempt to increase public participation in the process of policy making and governance.
- The full disclosure of the Report would answer questions that the edited Report raises but does not answer.
- The full disclosure of the Report would enhance scrutiny of the decision making process under review and thereby improve accountability and participation.
- The local community has been devastated and divided by the circumstances surrounding this matter and frustrated by the withholding from them of information relevant to their children's education.
- Full disclosure would begin to restore public confidence in a system and a process which has denied them information to which they are entitled and which has served its own needs and not the needs of their children and community.
- Potential or actual embarrassment is not a valid criterion against which to balance the public interest in disclosure of information. It is irrelevant that the disclosure may cause embarrassment to the government [ NB: section 59A of the Act ].
- The damage to the children and families of [name deleted] School and its community which has been caused by the circumstances surrounding this Report far outweigh any claims to "privacy" or "confidentiality" of those making undisclosed, unsubstantiated and unfounded allegations.
- Full disclosure would contribute to debate on a matter of public interest."
52 In addition to these submissions, I consider that the matters I set out in paragraph 38 are also relevant to a proper consideration of the issue of the public interest in the present case. I consider that on the unusual facts relating to this particular case, on balance, the public interest requires the remaining material to be released (with one limited exception). My primary reasons are as follows:
(a) The events giving rise to the matters contained in the report are nearly 2 years old, there is no current investigation of them and the relevant parties have moved on from their former involvement in the subject school;
(b) The respondent has already released an edited yet significant portion of the report in several stages. As I have already said, that act raised more questions than it answered. There was then a public and only partial airing of matters, inter alia , plainly adverse to the applicant and the first party joined without there also appearing a full explanation of them or them appearing in their proper contextual setting; and
(c) I do not consider that release of the remaining material will adversely affect Audit Directorate investigations in future or the merit selection process in NSW.
53 The same cannot be said for the second two lines of the table in paragraph 74 of the report. There is no compelling reason why those two names or their respective rankings should be released in the public interest. As I have indicated, the names and rankings set out there constitute the personal affairs of the job applicants. At the hearing, neither the applicant nor the first party joined expressed any particular interest in discovering the information there.’

29 The Amended Grounds of Appeal filed by the Department on 4 October 2001 contain 19 grounds of appeal. Of these, grounds 1, 3 and 4 were not pressed. The grounds that remain are 2 and 5-19 inclusive. It is convenient to deal with the grounds under the heading of the relevant exemption.

30 In order to assess the grounds of appeal it has been necessary for the Appeal Panel to inspect the material in issue as the submissions often claim that the Tribunal misapplied the law to the facts before it. The document as released to Mr Mullett is exhibit A in the original proceedings. The full document is a confidential exhibit, exhibit B, in the original proceedings.

31 The structure of the Audit Directorate report was as follows:

· Introduction (paras 1 and 2),
· Background (paras 3 to 8),
· Summary of Findings and Recommendations (paras 9 to 12),
· Detailed Findings and Recommendations (paras 13-82),
· General Comments (paras 83 to 85),
· Recommendations (A to E),
· signatures stating ‘prepared by’ Chris Ballantine, Manager, Corruption Prevention and Investigation, 31 December 1999; and ‘reviewed by’ Carolyn Wells, Assistant Director, Audit, 31 December 1999; followed by,
· a page headed List of Appendices (marked A to H). The material referred to in this List are the statements provided by Mr Mullett and other persons interviewed in connection with his allegations.

32 The Appendices have not been before the Tribunal.

33 In the principal section of the document headed Detailed Findings and Recommendations, the method of organisation is:

· to recite each of the allegations made to the Audit Directorate and give them a number,
· then to divide the report on each specific allegation separately under the headings ‘Findings’ and ‘Conclusion’.

34 The allegations numbered 1 to 5 are contained in Mr Mullett’s letter of complaint about the selection process dated 15 November 1999. Allegation 6 is contained in a letter dated 18 November 1999 from the School Council. Allegation 7 is a verbal allegation made by Mr Mullett on 7 December 1999. Allegation 8 is a verbal allegation made by members of the School Council on 7 December 1999.

35 Material Released by Department: In its original decision the Department provided Mr Mullett with all the material at the beginning of the report under the headings Introduction, Background and Summary of Findings and Recommendations as well as all the material at the end under the headings General Comments and Recommendations.

36 It exempted on various grounds almost all of the material found in the body of the report under the heading Detailed Findings and Recommendations apart from the recitals of the allegation and the opening paragraph under the recitals referring further to the allegations all made either by Mr Mullett personally or by the School Council of which he was President.

37 In the decision on internal review (the decision the subject of the application for review) dated 5 July 2000 the reviewing officer released some further material from within the Detailed Findings section of the report, mainly under the heading Conclusions, as well as the one page List of Appendices at the back, but without identifying any of the persons from whom the statements were obtained.

38 Very little of the material under the heading Findings in respect of each allegation was released. It is for access to this material that essentially Mr Mullett and Mr Randazzo are pressing. Basically they want to see what people interviewed by the Audit Directorate said in response to the allegations that the selection process for principal was corrupt.

(1) Clause 6: Ground 2

39 The Department submits that the Tribunal failed to apply the law relating to cl 6 correctly. The leading NSW case is Perrin’s case. The leading judgment is given by Kirby P in which he held that ordinarily the name of a public servant would not be covered by cl 6. In that case Kirby P observed, as noted by the Tribunal at [31] that ‘[t]he name of an officer or employee doing not more than the apparent duties of that person could not properly be classified as information concerning the ‘personal affairs’ of the person.’ His Honour considered that the situation might be ‘quite different if personnel records, private relationships, health reports or (perhaps) private addresses would be disclosed.’

40 Paragraphs 29 and 30; deleted words in Paragraphs 34 and 35, which were said by the Department to be similar: Their similarity lies in the fact that all of the texts provide an account of information given to the audit team by persons contacted and are all connected with Allegation 3, an allegation made about the fairness of what Mr Mullett believed that Mr Thomas, District Superintendent, said to the Committee about Mr Randazzo’s suitability for appointment.

41 The texts in paras 29 and 30 belong to Findings section of the report in relation to Allegation no. 3; and the deleted words in paragraphs 34 and 35 belong to the Conclusion section in respect of that allegation. Paras 29 and 30 concern what was said by one person consulted. The first and fifth deleted texts of para 35 delete a name but leave intact the information connected with that name. The deleted text of para 34 concerns the views of other persons consulted. While the second, third and fourth deleted texts of para 35 remove names but leave intact the factual information conveyed by the non-identified persons.

42 All of these persons were staff members of the Department with relationships with Mr Randazzo that were relevant to the allegation. All of them were consulted by the Committee in their official capacities. The information recorded is comment of an official kind. Where names are deleted those deletions are connected with action or comment of an official kind that is disclosed. Moreover, it is evident from the material that has been disclosed to Mr Mullett (see opening text of para 34) that one of these persons must be Mr Thomas, while (see second text of para 35) it is also apparent that three ex-principals are among the other persons consulted; though it is not immediately possible to connect the texts disclosed to the specific individuals.

43 The submission made by the Department is that these paragraphs contain ‘personal relationships and professional matters personal to third persons’ (para 4.7 of submissions). See further appeal transcript, pp 3-5.

44 There is, in our view, no substance in the submission.

45 We consider that in his qualifying comments in Perrin’s case, Kirby P was referring to the obvious fact that public servants may be the subject of records that go to intimate aspects of their personal lives or may involve their ‘personal affairs’ in a broader sense. For example there will be health tests conducted at the time of appointment, there may be comments of a personal character made in the context of performance appraisals or selection processes (for example, effect of domestic circumstances on work performance). Arguably, a confidential assessment made at interview or on a performance appraisal may as a whole be said to be the ‘personal affairs’ of the employee.

46 There is a grey line in this area, acknowledged in cases such as Department of Social Security v Dyrenfurth (1988) 80 ALR 533 (Fed Ct, FC). In that case the Full Court disagreed with the Administrative Appeals Tribunal in Corbett v Australian Federal Police (1986) 11 ALN N249 where it had queried the accuracy of the observations made to the above effect by Beaumont J in Re Williams and Registrar, Federal Court (1985) 8 ALD 219, 221-2.

47 Kirby P summarised the relevant line of cases as standing for the proposition: ‘In its context, the words ‘personal affairs’ means the composite collection of activities personal to the individual concerned’: at 625. He observed later that if there is any ambiguity in these words regard may be had to the extrinsic material such as the Second Reading Speech. As to the policy origins of the FOI Act he said that it was ‘abundantly plain’ that ‘one object of the Act was to breach the wall of anonymity of public servants’: at 625. He said that in the case before the Court: ‘The affairs disclosed are not that person’s affairs but the affairs of the agency’: 625.

48 In that case the Police Service had deleted the names of officers and Departmental staff involved in the preparation of the documents that had been given by the Police Service to a Queensland Royal Commission in 1990. The Commission was inquiring into the gaming industry. The applicant was the solicitor acting on behalf of a client, Mr Ainsworth of the Ainsworth Group of Companies, a major gaming machines company. The documents related to Mr Ainsworth and his companies. The circumstances surrounding the release had been the subject of a Police internal inquiry in 1991.

49 In this case the material deleted is all of an official character. While there might be a claim open to Mr Randazzo that disclosure to the world of this information via FOI might unreasonably intrude on his personal affairs (a point made also by the Tribunal below), no such claim can, we consider, be made by the officials whose comments or actions are reported; or whose identities are withheld. (As to this point, we should add that it is plain that Mr Randazzo does not object to disclosure to Mr Mullett.)

50 The material deleted contains either comment in the way of assessment, or in explanation for official action, or the names of officers responsible for those comments or actions.

51 Paragraph 51, fourth sentence and Paragraph 53, first sentence: These paragraphs belong to a part, paras 51 to 61, all of which has not been disclosed. Only these two sentences are subject to a cl 6 claim.

52 These texts were not specifically addressed by the Tribunal in its reasons for decision. They both refer to an aspect of the relationship between the unnamed person and that person’s spouse. We are satisfied that properly applying cl 6(1), the conclusion should be reached that the disclosure of the sentences would involve the disclosure of an aspect of the unnamed person’s personal affairs. In so far as the Tribunal asserted in para [32] of its reasons that this information was official information, we are satisfied that it misdirected itself.

53 But, in our view, the information is of an innocuous kind reflecting a common place aspect of marital relationships of no special sensitivity, and is unlikely, we consider to be seen to involve an ‘unreasonable’ disclosure of a person’s personal affairs especially if the name of the person to whom the comment is attached were to remain deleted. We will not make a final order in that regard at this stage.

54 It will be seen that we agree with Mr Randazzo’s submissions in relation to the non-applicability of cl 6 to most of the material for which that exemption is claimed. We should indicate, in response to one aspect of those submissions, that we do not regard the definition of ‘personal information’ found in the Privacy and Personal Information Protection Act 1998, s 4, as bearing on the interpretation of cl 6.

(2) Clause 13

55 As noted earlier, the Tribunal accepted that the material referred to in these paragraphs was supplied in confidence to the Audit Directorate by the interviewees (cl 13(b)(i)), but was not satisfied that the other requirements (b)(ii) and (b)(iii) were met, i.e. that disclosure ‘could reasonably be expected to prejudice the future supply of such information to the Government or to an agency’ or that ‘disclosure would, on balance, be contrary to the public interest’.

Clause 13(b)(ii): Grounds 5-8; Ground 14

56 The Department submits that the Tribunal’s conclusion that cl 13(b)(ii) is incorrect on several bases. The Department refers to the list of considerations contained in para [38] and submits that the Tribunal mistakenly referred to factors relevant to the circumstances of the controversy giving rise to the report in issue rather than asking the proper question, i.e. whether the release of the exempt material ‘could reasonably be expected to prejudice the future supply’ of such information.

· Relevant Considerations

57 Ground 5 of the appeal is that in para [35] of its reasons the Tribunal erred in law in taking into account irrelevant considerations.

58 In our view cl 13(b)(ii) requires the Tribunal to engage in a relatively abstract analysis. It must ask whether material of the kind sought to be protected on the present occasion would, if released, prejudice the supply of similar material to government in the future, as a matter of reasonable expectation. That requires the Tribunal to characterise the nature of the material sought to be protected on the present occasion; to identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; the extent to which guarantees of confidentiality may be necessary. We agree with the dicta of Young CJ in Ryder v Booth [1985] VR 870 as to how a similar question arising under the Victorian FOI Act’s in-confidence exemption (whether disclosure would be reasonably likely to impair the ability of an agency to obtain information communicated in confidence) should be approached. His Honour said at 872:

‘The question then is, would disclosure of the information sought impair (i.e. damage) the ability of the [agency] to obtain similar information in future. … It may be noted that it is the ability of the [agency] that must be impaired. The paragraph is not concerned with the question whether the particular doctor whose report is disclosed will give similar information in future but with whether the agency will be able to obtain such information. …’

59 His Honour went on to observe at 872 that the question is a question of fact.

60 See also Attorney General’s Dept v Cockcroft (1986) 64 ALR 97 per Bowen CJ and Beaumont J at 106.

61 The Department’s submission is that the Tribunal failed to apply the test enunciated above.

62 Para [38] lists five factors (a), (b), (c) (d) and (f) [there is no (e)] giving rise to its conclusion that there is no reasonable likelihood of prejudice to future supply of such information to the agency. In our view in the case of four of the five factors they involve the error identified by Young CJ. They all focus on the present controversy.

63 The Tribunal held that cl 13(b) (ii) was satisfied as the relevant parties were no longer actively involved in the school’s affairs (factor(a)). Factor (b) referred to the extent to which parts of the report had been released and the adverse effects of withholding the rest, in terms of bringing the controversy to an end. These are both matters which we consider to be irrelevant to the need to address the question in the prospective way required by the cases.

64 The Tribunal in factor (d) stated its view that ‘in the particular circumstances here’ it did not consider that future supply would be prejudiced. This is not the appropriate way to approach the question of ‘prejudice to future supply’.

65 Similarly factor (f) (the usual warning given that if proceedings subsequently ensue the guarantee of confidentiality may not be able to be maintained, as the statements may need to be produced and relied on in evidence) is not relevant. It is often the case that investigations are conducted confidentially, but a point may arise where some or all of the material gathered in the investigation may have to be placed before a public forum, such as a court, a disciplinary tribunal or a Royal Commission. That does not mean that the guarantee until such a point is reached has no importance or significance in procuring answers.

66 In our view and contrary to the submissions of the Department (see Grounds 5 and 8), factor (c) is relevant. Factor (c) recorded the Tribunal’s finding as to the question of whether it could reasonably be said that an employee of the Department would be deterred in future from communicating with the audit directorate because in the past employees had had their communications revealed through FOI disclosure. (There is an inaccuracy in the Tribunal’s statement as to the status of all the persons interviewed. The Tribunal said all were departmental employees, but as we understand the material one was not (the second parent member of the selection committee).)

67 That the consideration reflected in factor (c) is relevant was recognised in Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279 at 341. The Queensland Information Commissioner held that if an interviewee has a duty to supply confidential information that may relevantly bear on the question whether there is likely to be an adverse impact on the agency in obtaining similar information in future from such persons; see also Bennett v Vice Chancellor, University of New England [2000] NSWADT 8 at [37].

68 (We acknowledge, however, that in so far as one of the interviewees was not an employee, factor (c) was expressed too broadly.)

69 Ground 5 succeeds, except as to factor (c). Ground 8 which in substance covers the same ground succeeds to the same extent.

70 Ground 14 is linked to Ground 5. The contention is that the Tribunal failed to take into account relevant considerations, being those listed in paras [13]-[15] and [18]-[20] of the reasons. These paras dealt with Ms Shearer’s evidence as to the confidentiality of the merit selection process; and Ms Wells’ evidence as to the importance of confidentiality of the audit directorate’s processes.

71 Ground 14 succeeds. There is no adequate explanation in the decision as to why these views were rejected; see further our observations below in relation to Grounds 6 and 7. In these circumstances it is our conclusion that while these matters were recited in the reasons for decision it is not clear that they were taken into account as relevant considerations.

· Evidence

72 Grounds 6 and 7 go to the question of whether it was open, at all, for the Tribunal to reach the conclusions reflected in para [38]. The Department submitted that there was no evidence to the contrary, or that at least the Tribunal failed to give adequate weight to the Department’s uncontradicted evidence.

73 As we have already noted, the question raised by requirement (ii) is one of fact. It follows therefore that evidence will need to be presented by the Department to justify reliance on the exemption and it carries the burden of proof (FOI Act, s 61).

74 In FOI cases it will frequently be the case that the only evidence put forward on the question of ‘future prejudice’ will come from senior agency officers (as occurred here) and will be in support of the agency’s position. The access applicant may well only be able to challenge the evidence through cross examination. Sometimes the access applicant may be able to call experts in public administration to dispute the agency’s evidence; but that will often not occur, especially where applicants do not have the means or ability to obtain such evidence.

75 As we see it, the Tribunal when dealing with evidence and submissions from agencies in FOI cases is required by the Act to exercise its own judgment as to the persuasiveness or otherwise of the evidence presented. It is not bound, because of the absence of contrary evidence, to accept uncritically the evidence of the agency. The process of merits review, including FOI review, is one of inquiry with the object of reaching the ‘correct and preferable’ decision. Some care must be shown in assimilating to the review and inquiry role of the Tribunal standards that are routinely applied in adversarial litigation (as to which we accept the Department’s submission that Hope v Bathurst City Council (1980) 144 CLARE 1 at 8 per Mason CJ; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 157 per Glass JA and Haines v Lever & Anor (1987) 8 NSWLR 442 lay down the relevant standards).

76 It does not, in our view, follow that because the only evidence before the Tribunal on prejudice to future supply is provided by the agency, that the Tribunal is obliged to accept that evidence. On the other hand, we acknowledge that the Tribunal should in its reasons for decision explain why it was not persuaded by the evidence; and to that end should in the course of proceedings put to the agency for reply any concerns or reservations that it has.

77 We are not satisfied that in this case the Tribunal gave sufficient consideration to the evidence presented by the Department. It did not, we consider, adequately explain why it did not accept that evidence. Ground 7(b) succeeds. We express no final view on the remainder of Grounds 6 and 7.

· Manifest Unreasonableness

78 Given our overall conclusion, we have decided not to address the Department’s further submission that the finding reflected in factor (d) involved legal error on another basis, i.e. that it was manifestly unreasonable and therefore an error of law, within the Wednesbury principle (Associated Provincial Picture Houses v Wednesbury Corp [1948] 1 KB 223): see generally Minister for Aboriginal Affairs & Anor v Peko-Wallsend & Ors (1986) 66 ALJR 299 at 310 per Mason CJ).

(3) Clause 16: Grounds 9-14, 16-19

79 Clause 16 is an exemption addressed to protection of records connected with various internal processes of agency which are seen as relying significantly for their effectiveness on the maintenance of strict confidentiality. Sub paras (i) and (ii) of para (a) refer to the conduct of tests, examinations and audits and processes connected with them; sub para (iii) refers to the management or assessment of agency personnel. These categories are invoked in this case; the remaining categories, (iv) and (v) are not.

80 These exemptions were invoked in relation to the same material over which the confidentiality exemption (cl 13) had been claimed.

81 Once the agency has satisfied a para (a) requirement it must then satisfy the para (b) requirement that disclosure would ‘on balance, be contrary to the public interest’.

82 There is no account given in the reasons for decision as to what the Department’s contentions were in relation to the first requirement, but its submissions are rejected: see para [43]. The explanation given by the Tribunal is found in para [44]. It would seem that it considered it unnecessary to deal in any detail with the submissions on para (a), as in any case it was satisfied that the public interest considerations of para (b) were not made out, giving the same reasons as it did in rejecting the cl 13 submissions.

83 The grounds of appeal essentially make the same objections to the Tribunal’s reasoning in respect of cl 16 as were made in relation to cl 13. Grounds 11, 12 and 13 allege that irrelevant considerations were taken into account. In para [43] the Tribunal dealt with the considerations it regarded as relevant by reiterating the considerations set out in para [38] of its reasons: see para [43] of its reasons.

84 Again in our view an abstract analysis of the kind we have explained in relation to cl 13(b)(ii) is required in respect of cl 16(a)(i), (ii) and (iii). That was not undertaken. Again only factor (c) could, we consider, be said to involve a relevant finding (future likelihood of employees to give such information). While that factor is directly relevant to the question raised for consideration by cl 13(b), it is not as relevant to the questions raised for consideration by cl 16(a)(i), (ii) or (iii). The issues raised by cl 16(a)(i), (ii) and (iii) go to broader systemic concerns than the question raised in cl 13(b). Factor (c) was at best, only of marginal relevance, to the analysis required to be undertaken in addressing whether the situation addressed by cl 16(a)(i), (ii) and (iii) arose here. See further Re Horesh and Ombudsman (1986) 1 VAR 149 and Re Lapidos and Ombudsman (no 1) (1987) 2 VAR 82.

85 Grounds 11, 12 and 13 succeed.

86 Grounds 9 and 10 assert that the Tribunal erred in referring to the test presented by cl 16(a)(i) as requiring a finding as to ‘substantial prejudice’ as distinct from mere ‘prejudice’. The only relevant discussion is in para [43]:

‘43 I do not consider that disclosure of the remainder of the report could reasonably be expected to prejudice or have the substantial adverse effects as contended by the respondent in these proceedings within the meaning in clause 16(a) largely because of the matters I referred to in paragraph 38 above in these reasons.’

87 The Department’s submission is that in light of the factors enumerated by the Tribunal it must have misconstrued the test of ‘prejudice’ to mean substantial ‘prejudice’. We do not consider that the Tribunal reformulated the requirement of (i) so as to require a higher standard to be satisfied. These grounds fail.

88 Ground 14, already discussed, in relation to cl 13 also covers cl 16. For the same reasons it succeeds.

89 Grounds 16, 17 and 18 are expressed in similar terms. They contend that in relation to sub-paras (i), (ii) and (iii) respectively, there was (a) no evidence to support the determination or the Tribunal, and (b) failed to give adequate weight to uncontradicted evidence. We are satisfied as to (b) of each of the grounds for the reasons previously given in relation to cl 13. As to (a) of each of the grounds there was at best limited evidence to support the conclusions; and we reiterate the views expressed earlier on this point in respect of Grounds 6 and 7 (cl 13) and do not express a final view.

(4) The Unreasonableness of Disclosure and Public Interest Analysis: Grounds 2, 15, 19

90 Grounds 15 and 19 impugn directly the public interest analysis as it pertains to cl 13 and cl 16 respectively. Ground 2 is a general objection to the application of the tests required by cl 6.

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 6.

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.

95 Unreasonableness: We are not satisfied that a Tribunal would be inclined to regard the information which we regard as affected by cl 6 as being of such sensitivity as to be protected from disclosure. But we will not make a final order in that regard at this stage.

96 Public Interest Analysis: The approach the Tribunal took was as follows.

97 First, the submissions of the Department were quoted at length (para [47]). Second, relevant portions of Mr Mullett’s submission were quoted (paras [48] and [49]). Third, Mr Randazzo’s submissions were quoted at length (paras [50] and [51]). The Tribunal then stated at para [52] that ‘the matters … set out in para [38] are also relevant to a proper consideration of the public interest in this case.’

98 The matters set out in para [38] were the five factors taken into account in relation to the question of prejudice to future supply. We have concluded that four of those factors were irrelevant to the question of future supply under cl 13 and of marginal relevance only to the consideration to the ‘prejudice’ tests of para (a)(i) and (ii) of cl 16 and the ‘substantial adverse effect’ test of para (a)(iii).

99 But factors that may be of marginal or no relevance to the narrower questions that arise at the earlier stages in ascertaining whether an exemption is applicable may not suffer from the same deficiency when taken into account in relation to the much broader question of the ‘public interest’, an inherently broad concept. The ‘public interest’ may include, as we see it, reference to such matters as the benefit that disclosure would have for the local community; the restoration of harmony; and with caution, the particular interests of the applicant in being granted access. The FOI Act seeks to promote disclosure of information held by government including information which government regards as sensitive. That position is reflected in the ‘public interest’ requirements in this case. In both instances, the agency must not only demonstrate a reasonable likelihood of prejudice (or adverse effect) but also go on and satisfy the Tribunal that disclosure would be contrary to the public interest.

100 The Tribunal’s conclusions on this question are contained in the last part of para [52]:

‘I consider that on the unusual facts relating to this particular case, on balance, the public interest requires the remaining material to be released (with one limited exception). My primary reasons are as follows:

(a) The events giving rise to the matters contained in the report are nearly 2 years old, there is no current investigation of them and the relevant parties have moved on from their former involvement in the subject school;

(b) The respondent has already released an edited yet significant portion of the report in several stages. As I have already said, that act raised more questions than it answered. There was then a public and only partial airing of matters, inter alia, plainly adverse to the applicant and the first party joined without there also appearing a full explanation of them or them appearing in their proper contextual setting; and

(c) I do not consider that release of the remaining material will adversely affect Audit Directorate investigations in future or the merit selection process in NSW.’

101 It will be seen that there is no systematic evaluation of any of the factors which could be said to make disclosure contrary to the public interest. The Department made detailed submissions in this regard. Factor (c) states a conclusion. It does not contain any outline of the considerations leading to that conclusion. Factor (b) is of little or no relevance, as we see it. It is in the nature of an FOI dispute where partial access has been given that what is not released will invite speculation and ‘more questions’. The Parliament has given agencies the power to say no for good cause; it did not take the position that either all of a document should be released or nothing. Factor (a) does in our view involve matters that are relevant to the public interest.

102 We consider that Grounds 15 and 19 succeed to the extent indicated. In contrast to the submissions we do not agree that all these considerations were irrelevant.

103 Elsewhere in the other Grounds there are objections to the adequacy of the reasoning process.

104 The extent to which the ‘public interest’ issue needs to be discussed, and the extent of the discussion, is not something that can be the subject of any definitive statement. There will be cases where it can be dealt with briefly.

105 In this case essential processes connected with good government were placed in issue, namely the merit selection process and the internal integrity audit process. The Department’s submissions were to the effect that the public interest was served by strict confidentiality being maintained in relation to what occurs in the environment of selection committee deliberations (save to the extent that they are disclosed through the final selection report and promotion appeals and the like) and the public interest in the internal audit process was served by strict confidentiality being accorded to the statements of interviewees who were named in complaints or were witnesses to the conduct referred to in complaints. In the case of the integrity audit process the Department pointed to various constraints under which it was said the process was conducted, that meant that any inquiries relied heavily on officer and third party co-operation.

106 In our view these governmental concerns were not adequately evaluated in the assessment of the public interest undertaken by the Tribunal. In the end, the Tribunal gave five considerations (those first listed in para [38]) for finding that it would not be contrary to the public interest to release the document.

107 But at the heart of the exercise of the public interest discretion is a balancing process. In a case of this kind it is not sufficient to recite the interests opposing disclosure and the interests supporting disclosure without explaining clearly why the Tribunal has rejected the case for non-disclosure. The reasons in this case are not adequate.

Mr Mullett’s and Mr Randazzo’s Submissions

108 We have referred to Mr Randazzo’s submissions as they relate to cl 6. We have not referred to them as they relate to cl 13 and cl 16. As to those clauses, the submissions raised various matters as to the merits of the case. The same is true of Mr Mullett’s submissions at the appeal hearing: see appeal transcript 33. As they go to the merits, it is appropriate for them to be examined when the matter is further reconsidered.

Summary: Successful Grounds of Appeal

109 The following Grounds of Appeal succeed:

Ground 2, but only as to 4th sentence of para 51 and 1st sentence of para 53; Grounds 7(b), 11, 12, 13, 14, 16, 17, 18; Grounds 5 and 8, except as to factor (c); Grounds 15 and 19 as to factors (b) and (c) in para [52].

110 The usual practice of the Appeal Panel is to remit a decision which has been set aside to the Tribunal at first instance for reconsideration, either to the same or a differently constituted Tribunal. In this instance the case has been before the Tribunal already for 12 months. It may be more expeditious for the Appeal Panel now to go on dispose of the matter.

111 Before making a final decision on that matter, we will reconvene to hear submissions from the parties as to the further conduct of the matter.

Orders

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.

Revised 11 June 2002: paragraph 5- name of" Susan Broadley" changed to "Susan Bradley"