DQE v The University of Sydney

[2019] NSWCATAD 132

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	DQE v The University of Sydney [2019] NSWCATAD 132
Hearing dates:	12 December 2018
Date of orders:	09 July 2019
Decision date:	09 July 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins, Senior Member
Decision:	1. Pursuant to subsection 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant is not to be disclosed without the leave of the Tribunal.  2. The decision of the respondent is affirmed.
Catchwords:	ADMINISTRATIVE REVIEW – government information – information concerning a preliminary assessment of a complaint made by the applicant – prejudice supply of information – prejudice effective exercise by the agency of its functions – personal information – motive   ADMINISTRATIVE REVIEW – application for non-publication orders
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 Privacy and Personal Information Protection Act 1998 (NSW) University of Sydney Act 1989 (NSW)
Cases Cited:	Alexander v University of Sydney [2008] NSWADT 214 Attorney-General’s Department v Cockcroft (1986) 10 FCR 180 Battin v University of New England [2013] NSWADT 73 Commissioner of Australian Federal Police v Zhao [2015] HCA 5; (2015) CLR 46 Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 CYL v YZA [2017] NSWCATAP 105 Diehm v Greater Taree City Council [2010] NSWADT 241 Director-General Department of Education and Training v Mullett [2002] NSWADTAP 13 Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 Kostov v Ecclesia Housing Limited (No 3) [2018] NSWCATAP 221 Leech v Sydney Water Corporation [2010] NSWADT 298 McLennan v University of New England [2013] NSWADT 113
Texts Cited:	Nil
Category:	Principal judgment
Parties:	DQE (Applicant) The University of Sydney (Respondent)
Representation:	Counsel: B Tronson (Respondent)   Solicitors: DQE (Applicant in person) Heesom Legal for the Respondent
File Number(s):	2018/00275008
Publication restriction:	Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 any material provided by the respondent to the Tribunal in confidence is not to be disclosed without further order of the Tribunal.

Reasons for decision

1. In May 2018, the applicant applied to the respondent, the University of Sydney, for access to information under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act).

2. The information sought was:

All records, including all documents and electronic communications, held by the University’s Workplace Relations Unit at any time connected with my complaint since October 2017 regarding Sydney University employee [name of employee].

3. On 13 June 2018, the respondent determined the applicant’s application. The respondent advised that it had located thirteen documents which contained information falling within the applicant’s access request. Of these the respondent determined to grant the applicant access to the information in three documents (Document no 4, 5 and 8). On the grounds of there being an overriding public interest against disclosure, the respondent refused to grant the applicant access to some of the information in six documents (Document 1, 2, 3, 6, 7 and 9) and refused access to the entirety of the information in the remaining documents (Document 10, 11, 12 and 13).

4. On 7 September 2018, the applicant applied to the Tribunal for external review of the decision of the respondent. His application was heard on 12 December 2018. At the hearing the applicant pressed access to the information for which access was refused. He also sought broad non-publication orders under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). The respondent opposed the orders sought, but sought an order under this section in respect of the name of the person against whom the applicant had lodged his complaint. I reserved my decision in regard to these matters.

5. At the conclusion of the hearing, at the request of the applicant, I also made an order that the applicant file and serve written submissions in response to the respondent’s submissions in reply that were filed and served two days before the hearing. At the request of the applicant, I made an order that these further submissions be filed and served by 29 January 2019. In his submissions in response, the applicant contended that he was prejudiced in that he had not been given adequate time to brief counsel prior to the hearing and that he was given insufficient time to ‘provide oral evidence and submissions or to complete his cross-examination of the Respondent’s witness, Ms Jodie Dickson’.

6. For the reasons that follow I am satisfied that:

1. it is appropriate to make a no-publication order in respect of the name of the person against whom the applicant had lodged his complaint and I have referred to him as Mr A in these reasons for decision; and

2. in light of the abovementioned order, it is appropriate to also make a non-publication order in respect of the name of the applicant, as the disclosure of his name might also disclose the name of Mr A.

7. However, I am not satisfied that the applicant has established any basis for making any further orders under s 64 of the NCAT Act, or that he was prejudiced in presenting his case at the hearing. As I explained to the applicant, the jurisdiction of the Tribunal was limited to reviewing the decision of the respondent in regard to his GIPA access request and in doing so it was required to determine the correct and preferable decision having regard to the evidence before it and the relevant provisions of the GIPA Act: NCAT Act, s 64(1). That is, the Tribunal had no jurisdiction to review the conduct of the respondent in regard to the preliminary assessment or the conclusions reached in that assessment and the action taken in regard thereto.

8. Finally, for the reasons set out below, I have found that the decision of the respondent is the correct and preferred decision and should be affirmed.

Restriction of disclosures under s 64(1) of the NCAT Act

9. Section 107 of the GIPA Act sets out the procedure the Tribunal is to adopt in hearing and determining an application, brought under s 100 of that Act, where there is a claim of an overriding public interest against disclosure. That section provides as follows:

107   Procedure for dealing with public interest considerations

(1)  In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure.

(2)  On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant’s representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.

(3)  On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of:

(a)  the public and the applicant, and

(b)  the applicant’s representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.

10. The purpose of s 107 is to preserve the disclosure of the information that is the subject of an application for review and for which the respondent agency has claimed there is an overriding public interest against disclosure. Hence, in accordance with that provision, the Tribunal will receive a copy of that information and hear evidence in regard to that information in confidence, in the absence of the applicant, the applicant’s representative and the public.

11. In compliance with s 107 of the GIPA Act, the Tribunal also makes a non publication order under s 64(1) of the Civil and Administrative Tribunal Act 2009 (NSW) (NCAT Act). That section is of general application and gives the Tribunal the discretion to make orders restricting disclosures concerning proceedings before it, including the discretion to prohibit or restrict the disclosure of the name of any person. That section relevantly provides as follows:

64   Tribunal may restrict disclosures concerning proceedings

(1)  If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:

(a)  an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),

(b)  an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal,

(c)  an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

(d)  an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

12. Section 64(4) provides that:

(4)  For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

13. As noted by the Appeal Panel in Kostov v Ecclesia Housing Limited (No 3) [2018] NSWCATAP 221 at [9], s 64 must be read in the context of the overall requirement that the proceedings of the Tribunal be conducted in public: see NCAT Act, s 49. That is, subject to the proceedings falling within s 65 of the NCAT Act, or any other legislation provision restricting the disclosure of the proceedings before the Tribunal, the starting point is s 49 of the NCAT Act which provides:

49   Hearings to be open to public

(1)  A hearing by the Tribunal is to be open to the public unless the Tribunal orders otherwise.

(2)  The Tribunal may (of its own motion or on the application of a party) order that a hearing be conducted wholly or partly in private if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason.

14. As noted in Kostov (supra), at [10], there is a system open justice within New South Wales. This is a long established principle of the judicial system within Australia. As noted recently by the High Court in Commissioner of Australian Federal Police v Zhao [2015] HCA 5; (2015) CLR 46 at 60 [44]:

The rationale of the open court principle is that court proceedings should be subjected to public and professional scrutiny, and courts will not act contrary to the principal save in exceptional circumstances.

15. In Kostov (supra) the Appeal Panel, went on to say that the system of open justice means that:

10 … [From] time to time reports of decisions of courts and tribunals reveal circumstances pertaining to parties in proceedings of a personal nature, and some of which deal with a whole range of difficult circumstances. Whilst it is unfortunate that details of this kind are revealed in this way, this is a necessary concomitant of open justice.

16. In CYL v YZA [2017] NSWCATAP 105, at [102] the Appeal Panel recognised that the Tribunal’s power to make suppression orders under s 64(1) of the NCAT Act was less constrained that the position of common law. Earlier in its decision, at [96], the Appeal Panel said:

96 We accept that s 49(1) reflects the principle of ‘open justice’ (see Russell v Russell (1976) 134 CLR 495 at 520 per Gibbs CJ) that applies to all judicial and quasi-judicial proceedings in this country. But, as privacy proceedings highlight, open justice is a value that must sometimes be balanced against other values. Similarly it is well accepted that there are other public interests that may militate against identification of parties or witnesses or third persons mentioned in proceedings; for example, the names of child victims of sexual assault, sometimes adult victims and people with psychiatric or other conditions whose health or rehabilitation may be set back by public identification should be accorded anonymity in proceedings; or because of the need to protect commercial confidentiality, law enforcement or national security interests.

17. It is evident from the terms of the applicant’s access request, he seeks access to information that is information of a personal nature concerning a complaint he made about Mr A an employee of the respondent. The complaint relates to Mr A’s dealings with the applicant in regard to a facility associated with the respondent but which is independent from the respondent. Mr A is the Executive Director of this facility. He is not a party to these proceedings. Nor, as I have explained, is the substance of that complaint or the process the respondent used to respond to that complaint the subject of these proceedings. What is the subject of this application, is the specific information held by the respondent, as at the time the applicant made his access request, concerning the applicant’s complaint against Mr A and whether, having regard to the relevant provisions of the GIPA Act, there is an overriding public interest against the disclosure of that information. As I have explained below, this involves a fairly abstract assessment of the information in issue within the confines of where the public interest lies between the public interest considerations in favour of disclosure and the public interest considerations against disclosure. It is only where, on balance, the public interest consideration against disclosure of the information in issue is an overriding one that access to the information can be refused: GIPA Act, s 13.

18. As the substance of the complaint made by the applicant is not the subject of review, in my view, it is appropriate to make an order under s 64(1) of the NCAT Act prohibiting the disclosure of the name of the person the subject of that complaint (i.e. Mr A). I am also satisfied that it is appropriate to make a similar order in regard to the name of the applicant, as in my opinion, given the circumstances surrounding the applicant’s complaint may lead to the disclosure of the name of Mr A. As noted above, s 64(4) of the NCAT Act provides that a non publication order of the name of a person includes a ‘reference to any information, picture or other material that identifies the person or is likely to lead to the identification’ of Mr A or the applicant. Accordingly, the pseudonym given to the applicant is DQE.

19. I do not otherwise consider it appropriate to make any of the other non-disclosure orders requested by the applicant.

20. In regard to the applicant’s request that he too give evidence in confidence, as I have noted below, there is no onus on the applicant in these proceedings. The onus is on the respondent: GIPA Act, s 105. Furthermore, the applicant did not identify any basis on which such and order should or could be made.

Alleged prejudice

21. In my opinion, the applicant’s assertion that he was prejudiced in not being able to brief counsel is misconceived as he had ample opportunity to brief counsel prior to the hearing. His application was lodged three months before the hearing and long after he had received the respondent’s detailed determination of his access application. He attended a case conference on 16 October 2018, where the Tribunal, differently constituted, set down the matter for hearing on 12 December 2018 and made orders for the filing and serving of evidence and submissions. It is the applicant’s contention that he had objected to a one-day hearing. On what grounds he made that objection is not explained.

22. I note the applicant received the respondent’s detailed written submissions on 7 November 2018. These were signed by counsel for the respondent and countersigned by its solicitor.

23. His application was then listed for directions on 21 November 2018, before Magistrate Hennessy, Deputy President. It is the contention of the applicant that it was not until this day that he became aware of the respondent having briefed counsel and it prejudiced him in preparing for his case. As I have noted, some two weeks prior to this, the applicant had received the respondent’s written submissions which were signed by counsel for the respondent. Hence it is difficult to see how he was prejudiced. Nor did the applicant explain the manner in which he was prejudiced. Instead, he filed and served, without objection, detailed written submissions seven days later on 28 November 2018.

24. In my opinion, in the absence of the applicant establishing otherwise, the applicant’s application proceeded in accordance with the guiding principle for the NCAT Act and the procedural rules as set out in s 36(1) of that Act. There was no onus on the applicant in these proceedings. Nevertheless, had he wanted to brief counsel he could have done so from the time he lodged this application for review.

25. The applicant also contends that on 12 December 2018 there was insufficient time for him to provide oral evidence and submissions, or to complete his cross-examination of the respondent’s witness, Ms Jodi Dickson, because part of that day time was taken up with another matter in the list.

26. In my opinion, given the matters in issue in his GIPA review application, there was ample time for the applicant to make oral submissions and cross examine Ms Dickson on matters relevant to that application. Given the nature of proceeding under the GIPA Act, where the information the subject of those proceedings cannot be disclosed to the applicant, the role an applicant can play is often limited. In this case, in his written submissions, the applicant set out in detail the background to his complaint and how it had been dealt with. I have taken these matters into consideration in determining this application, but for the reasons I have explained, many of the applicant’s concerns were not relevant to the matters in issue in this application. Similarly, the applicant asked Ms Dickson a number of questions that were not relevant to the matters in issue, or related to the information for which there was a claim falling within s 107 of the GIPA Act.

27. In making the abovementioned observation, I am not critical of the applicant. However, in the absence of identifying what relevant evidence he was prevent from giving and what additional relevant questions he was prevented from asking Ms Dickson, I find that the has failed to demonstrate that he suffered any prejudice in prosecuting his case in these proceedings.

The GIPA Act

28. Section 5 of the GIPA Act provides as follows:

5   Presumption in favour of disclosure of government information

There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.

29. Section 13 of the GIPA Act defines what is meant by the term ‘overriding public interest against disclosure’ as follows:

13   Public interest test

There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure

30. Section 12 deals with the public interest considerations in favour of disclosure as follows:

12   Public interest considerations in favour of disclosure

(1)  There is a general public interest in favour of the disclosure of government information.

(2)  Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.

Note. The following are examples of public interest considerations in favour of disclosure of information:

(a)  Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.

(b)  Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.

(c)  Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.

(d)  The information is personal information of the person to whom it is to be disclosed.

(e)  Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.

(3)  The Information Commissioner can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies

31. The term ‘personal information’ is defined in cl 4 of Sch 4 of the GIPA Act as follows:

4   Personal information

(1)  In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.

(2)  Personal information includes such things as an individual’s fingerprints, retina prints, body samples or genetic characteristics.

(3)  Personal information does not include any of the following:

(a)  information about an individual who has been dead for more than 30 years,

(b)  information about an individual (comprising the individual’s name and non-personal contact details, including the individual’s position title, public functions and the agency in which the individual works) that reveals nothing more than the fact that the person was engaged in the exercise of public functions,

(c)  information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause.

32. Section 14 deals with the public interest considerations against disclosure. That section relevantly provides as follows:

14   Public interest considerations against disclosure

(1)  …

(2)  The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

…

Table

1   Responsible and effective government

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally):

…

(d)  prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions,

…

(f)  prejudice the effective exercise by an agency of the agency’s functions,

(g)  found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence,

…

3 Individual rights, judicial processes and natural justice

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects:

(a)  reveal an individual’s personal information,

(b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002,

…

4   Business interests of agencies and other persons

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects:

…

(d)  prejudice any person’s legitimate business, commercial, professional or financial interests,

…

33. Section 15 sets out the principles that apply to public interest determination:

15   Principles that apply to public interest determination

A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles:

(a)  Agencies must exercise their functions so as to promote the object of this Act.

(b)  Agencies must have regard to any relevant guidelines issued by the Information Commissioner.

(c)  The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.

(d)  The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.

(e)  In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.

34. Section 54(1) of the GIPA Act requires an agency to take such steps as are reasonably practicable to consult with a person before providing access to information relating to that person in response to an access request if the information is of a kind that requires consultation, the person may reasonably be expected to have concerns about the disclosure of the information and those concerns may be relevant to a public interest consideration against disclosure. In formation that does require consultation is information that is personal information about a person other than the person seeking access: GIPA Act, s 54(2)(a).

35. Section 55 makes provision for the consideration of personal factors of an application to be taken into account when dealing with an access request. That section provides as follows:

55   Consideration of personal factors of application

(1)  In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section:

(a)  the applicant’s identity and relationship with any other person,

(b)  the applicant’s motives for making the access application,

(c)  any other factors particular to the applicant.

(2)  The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information.

(3)  The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency’s consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2–5 (but not clause 1, 6 or 7) of the Table to section 14.

(4)  An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for.

(5)  An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to take reasonable steps to provide proof of his or her identity.

(6)  An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person.

Note. An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73

36. Section 73 provides:

73   Access to be unconditional

(1)  An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application.

(2)  A condition may be imposed as to how a right of access may be exercised (such as a condition that prevents an applicant making notes from or taking a copy of a record that is made available for inspection) but only to avoid there being an overriding public interest against disclosure of the information.

(3)  A condition may be imposed that access to medical or psychiatric information will only be provided to a medical practitioner nominated by the applicant and not to the applicant personally.

Note. Access can also be made conditional on the payment of processing charges (s 64) and on the provision of evidence of identity or other personal factors relevant to the agency’s decision to provide access (s 55).

37. In this application for review, the onus is on the respondent to establish that its decision is justified: GIPA Act, s 105(1).

The evidence

38. The respondent relied on the affidavit of Jodi Sophia Dickson (Ms Dickson), sworn on 7 November 2018. Sections of that affidavit were provided to the Tribunal, in confidence, pursuant to s 107(2) and (3) of the GIPA Act so as to prevent the disclosure of the information for which the respondent claimed there was an overriding public interest against disclosure. This information was contained in the paragraphs [33] to [43] of the affidavit and Annexure JSD5, JSD6, JSD7 and JSD 8.

39. Ms Dickson is employed as the Director Workplace Relations at the respondent. She has 20 years of experience in human resources and employee relations. In her current role she is responsible for providing high-level advice to senior management on strategic workplace relations and policy matters, and on industrial and workplace relations issues arising under the respondent’s Enterprise Agreement and complaints procedures.

40. Ms Dickson explained that she had a number of staff reporting directly to her. This included the Associate Director Workplace Relations officer, who supervises the team responsible for conducting investigations and preliminary assessments of complaints against staff made by other staff, affiliates, students and members of the public. She said that the complaint-handling processes are escalated to her on a regular basis, including when the complaint concerns or arises from a staff misconduct matter, when an internal review is required, or where necessary to manage actual or perceived conflicts of interest.

41. Attached to Ms Dickson's affidavit was a copy of the respondent’s Resolution of Complaints Policy 2015 (Resolution of Complaint’s Policy).

42. In her affidavit Ms Dickson set out the background to the applicant’s complaint against Mr A and how that complaint was dealt with and determined. In this regard it is only necessary to note that prior to making his complaint, there had been some correspondence between the applicant and Mr A in which Mr A listed a number of inappropriate comments that he alleged the applicant had made.

43. Ms Dickson explained that the applicant's complaint was referred to her on 24 October 2017. She said she asked a former member of the Workplace Relations team, Tina McAloon, to conduct a preliminary assessment of the complaint, in accordance with clause 8 of the respondent’s Bullying, Harassment and Discrimination Resolution Procedures 2015 (the Bullying, Harassment and Discrimination Procedures). Ms Dickson explained that the purpose of a preliminary assessment was to determine how a matter is to be progressed. Ms Dickson noted that the applicant and Mr A were spoken to in the course of the preliminary assessment. She said preliminary assessments are conducted confidentiality, in accordance with the respondent’s Resolution of Complaints Policy 2015 (Resolution of Complaints Policy). In this regard she referred to clause14 of that Policy which states:

Except as provided in clause 15, the following matters must not be disclosed to any other person, by any form of communication:

(a) the identity of the person raising the complaint, respondents and participants in a complaint or investigation;

(b) the information provided or collected during the consideration or investigation of the complaint;

(c) the fact a complaint has been made;

(d) any report, outcome or determination of a complaint.

44. Ms Dickson went on to explain that:

1. clause 15(2)(g) of the Resolution of Complaints Policy states that the respondent may inform a complainant or respondent generally of the outcome of the complaint or any relevant action taken, provided such disclosure is consistent with the Policy and complies with the respondent’s Privacy Policy 2017 and its Privacy Procedures 2018; and

2. clause 15(2) (j) of that Policy states that the respondent may disclose information if required to do so under the GIPA Act, or pursuant to any other legal or regulatory requirements.

45. Ms Dickson said it was normal practice for members of the Workplace Relations team to inform participants that any statements provided in the context of a preliminary assessment or investigation will be treated as confidential, except as necessary to test the information they provide.

46. In regard to the applicant's complaint, Ms Dickson explained that a preliminary assessment report was completed and provided to the Deputy Vice- Chancellor (Registrar), Professor Tyrone Carlin, on 8 December 2017. That report found that there was insufficient evidence to support the allegations of bullying that the applicant had made against Mr A. On 13 December 2017, the applicant was informed, in writing, of the outcome of the preliminary assessment.

47. Ms Dickson also gave evidence at the hearing and she was cross-examined by the applicant.

48. The respondent also filed and served a copy of the information for which the applicant was granted access. The information for which the applicant was refused access, the respondent provided the Tribunal with a copy of that information, in confidence under s 107(2) and (3).

49. The applicant relied on the written submissions he filed and served. As I have already noted, in his submissions the applicant explained the circumstances giving rise to his complaint against Mr A. While it was a detailed explanation, it is unnecessary to repeat it in these reasons for decision.

50. The applicant went to explain his dissatisfaction with the manner in which Ms McAloon had conducted the preliminary assessment, the conclusions she reached and the decision of Professor Carlin to dismiss his complaint. Of particular concern to the applicant was Ms McAloon’s failure to inform him about the respondent’s complaint handling processes and also failing to inform him of any ‘adverse and/or contrary opinions and allegations’ that had been made against him by Mr A and others during her assessment. He went on to assert, that the respondent had relied on these adverse and contrary opinions and allegations in dismissing his complaint, without him being given an opportunity to respond to them. He asserted that information collected by Ms McAloon from Mr A and others could not be regard as being impartial or reliable and it was incumbent on the respondent to have made proper enquiries regarding the accuracy and relevance of the information before relying on it to dismiss his complaint.

Consideration

51. It is convenient to first set out the extent of the deletions in documents 1, 2, 3, 6, 7 and 9 and the grounds on which the respondent refused to grant the applicant access to that information. In summary, these are as follows:

1. Document 1 - Mr A to Ms McAloon, dated 30 October 2017 – access has been refused to the information on pages 1 and 2 and part of page 3. Access to this information was refused by the respondent on the grounds of cl 1(d), (f) and (g) of the Table to s 14(2) of the GIPA Act;

2. Document 2 – Ms McAloon to T Robinson (Manager Archives and Records Management Services of the respondent), dated 6 December 2017 – access has been refused to the information in five small deletions on page two of this document. Access to this information was refused by the respondent on the grounds of cl 3(a) of the Table to s 14(2) of the GIPA Act;

3. Document 3 – Ms McAloon to Professor T Carlin (Deputy Vice Chancellor (Registrar) of the respondent), dated 9 December 2017 – access has been refused to the information in two small deletions on page 1 of this document. Access to this information was refused by the respondent on the same grounds as document 2;

4. Document 6 – Ms McAloon to S Tropiano (Executive Assistant to Professor Carlin), dated 12 December 2017 – access was refused to two small deletions on page 3 of this document and some of the information contained in the ‘Complaint Preliminary Assessment’ report that was attached to that document. Access to these deletions was refused by the respondent on the same grounds as documents 1 and 2;

5. Document 7 – S Tropiano to Ms McAloon, dated 19 December 2017 – access was granted to this document and the attached letter. The only information that was deleted was the signature on the letter that was attached to this document. The respondent refused access to this signature on the same grounds as document 2; and

6. Document 9 – F Strbik (Associate Director Workplace Relations of the respondent) to J Dickson dated May 2017 - access was refused to pages 1 and 2 and part of page three of this document. The respondent refused access to these pages and part of page three on the same grounds as documents 1.

52. The remaining documents (Document 10, 11, 12 and 13) are communications from Mr A to Ms McAloon, dated 31 October 2017 and 2 November 2017. The respondent refused access to the information in these documents on the same grounds as documents 1.

53. In its submissions filed in these proceedings, the respondent relied on the additional grounds in cl 3(b) and 4(d) in the Table to s 14(2) of the GIPA Act. However, the respondent did not identify which information these particular grounds were relied on. I have assumed that the respondent relies on cl 3(b) in addition to the cl 3(a) ground, but as it has not been clear as to which information the cl 4(d) ground is relied on, I have considered it no further.

54. In this application, I must determine the following in respect of the information the subject of this application the following (see Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19, at [29]):

1. the public interest considerations in favour of disclosure. These, as I have noted are not closed;

2. whether the information in issue, if released would give rise to a public interest against disclosure on the grounds that release of the information could reasonably be expected to have the effect as contended by the respondent: and

3. if satisfied of (2) above, where the balance lies between the public interest considerations in favour of disclosure and those against disclosure. As I have noted, s 55 of the GIPA Act provides that the personal factors prescribed in that section are to be taken into account in determining where the balance lies.

Public interest considerations I favour of disclosure

55. The respondent noted the general public interest in favour of disclosure in s 12(1) of the GIPA Act as a factor that must be taken into account.

56. The respondent accepted that there is a public interest in disclosing information that facilitates public scrutiny of and promotes transparency in its decision-making, including in respect of its handling and management of complaints against staff members. In his written submissions in reply, the applicant agreed with this contention.

57. The applicant contends that there was a lack of transparency in the manner in which the respondent had dealt with his complaint in that it failed to inform him of the complaint handling process. He contended the respondent failed to give him an opportunity to respond to the various adverse and/or contrary personal information about him which was collected by Ms McAloon. Instead it had dismissed his complaint on the basis of that information. In his written submissions in reply the applicant asserted that there was a public interest in the disclosure of the information so as to give him and others the ability to make an application under s 15(1) of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) to seek amendment of their personal information held by an agency that is irrelevant, inaccurate, out of date, or incomplete. In my opinion, these contentions of the applicant are not a public interest consideration in favour of disclosure. They are primarily a reflection of his private interests.

58. However, I do accept the applicant’s contention that there is a public interest in favour of the disclosure of the information that is his personal information, including any opinion about him: GIPA Act, s 12(2)(d).

Public interest considerations against disclosure

59. Each of the considerations against disclosure relied on by the respondent require it to establish that the disclosure of the information ‘could reasonably be expected’ to have the nominated effect. It is well established that these words are to be given their ordinary meaning and the test to be applied is an objective one. In Attorney-General’s Department v Cockcroft (1986) 10 FCR 180, at 190 Bowen CJ and Beaumont J explained that the words:

... require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like.

60. In Leech v Sydney Water Corporation [2010] NSWADT 298, at [25], the Tribunal described the test that is to be applied in determining whether a disclosure of the information ‘could reasonably be expected to’ to have the stated effect as follows:

[25] … The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC.

61. It is also well established that an assessment of the considerations against disclosure as set out in the Table to s 14 require consideration at ‘a broader operational level’ rather than ‘considerations connected with the particulars of the instant situation’: Camilleri (supra) at [26]. However, it is appropriate to have regard to the ‘specific aspects of the instant case’ at the next stage of the inquiry when determining where the balance lies between the public interest consideration against disclosure and the public interest consideration in favour of disclosure

62. Ultimately, whether a disclosure of the information ‘could reasonably be expected to’ to have the stated effect is a question of fact to be established to the relevant standard of proof, on the balance of probabilities (Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42]).

Cl 1(d) – could the disclosure of the information reasonably be expected to prejudice the supply to the respondent of confidential information that facilitates the effective exercise of its functions?

63. Under s 6 of the University of Sydney Act 1989 (NSW) the principal functions of the respondent include ‘the provision of courses of study or instruction across a range of fields, and the carrying out of research, to meet the needs of the community’. Its other functions include ‘the development and provision of that, as cultural, sporting, professional, technical and vocational services to the community' and ‘such general and ancillary functions as may be necessary or convenient for enabling or assisting the University to promote the object and interests of the University, or as may complemented or be incidental to the promotion of the object and interests of the University’. As noted by the respondent in its written submissions, in order to carry out its principal and other functions, the respondent needs to be able to receive and respond to complaints about staff from students, staff and members of the public, as these are an important means of identifying problems and improving the quality of the respondent’s services.

64. As explained by Ms Dickson, the functions of the respondent include receiving and dealing with complaints made by or against staff members, workers or affiliates (the complaint handling function).

65. In this case, Mr A is a staff member and the applicant is an affiliate of the respondent. There is no dispute that the information in issue in Documents 1, 6, 9, 10, 11, 12 and 13 is information relating to a complaint the applicant made about Mr A.

66. The issue is whether the information:

1. is information supplied to the respondent in confidence;

2. is information that facilitates the effective exercise of the respondent’s abovementioned complaint handling function; and

3. a disclosure of the information could reasonably be expected to prejudice the supply to the respondent of confidential information.

67. It has long been accepted that, in the context of legislative schemes that provide members of the public with a right to seek access to government information, the necessary quality of confidence need not be expressed as such and can be inferred from the nature of the information supplied, the persons who provided the information and the circumstances in which the information was obtained: see Diehm v Greater Taree City Council [2010] NSWADT 241 at [53] and Alexander v University of Sydney [2008] NSWADT 214 at [26].

68. The word ‘prejudice’ is to be given its ordinary meaning of: ‘to cause detriment of disadvantage’: McLennan v University of New England [2013] NSWADT 113.

69. In this case the information was received and obtained in the context of the respondent’s Bullying, Harassment and Discrimination Resolution Procedures and the Resolution of Complaints Policy and I am satisfied that it was obtained in confidence. Clause 4 of the Bullying, Harassment and Discrimination Resolution Procedures provides that the making, investigation or resolution of a complaint made under those procedures ‘must’ be in accordance with the Resolution of Complaints Policy 2015. As noted by Ms Dickson, cl 14 of the Resolution of Complaints Policy gives effect to the complaint handling process being confidential in that the fact of a complaint having been made, the information obtained in the course of dealing with a complaint and any report or outcome of a complaint is not to be disclosed. There are exceptions, which are set out in cl 15 and these primarily provide for the disclosure of such information for the purpose of dealing with the complaint, or as required by law.

70. The applicant contended that under cl 15(2)(a) of the Resolution of Complaints Policy there was an obligation on Ms McAloon to obtain a response from him in regard to the adverse comments that had been made against him. For the reasons I have already given, it is not for the Tribunal to determine in this application whether there was such an obligation. The fact is, for the purpose of this application the information was nevertheless information of the kind that is supplied to the respondent in confidence.

71. As the information in issue is information relating to the complaint the applicant had made against Mr A, I am also satisfied that information of this kind facilitates the effective exercise of the respondent’s complaint handling function.

72. Finally, I am also satisfied that a disclosure of the information in issue could reasonably be expected to prejudice the supply of confidential information that facilitates the effective exercise of the respondent’s complaint handling function.

73. As noted by the Appeal Panel of the former Administrative Decisions Tribunal this requires an enquiry as to whether information of the kind for which there is a claim under cl 1(d), prejudice the supply of similar information to an agency in the future, as a matter of reasonable expectation: see Director-General Department of Education and Training v Mullett [2002] NSWADTAP 13, at [58]. This, the Appeal Panel went on to say:

58 … [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. ...' 

74. As I have already noted, the respondent’s Resolution of Complaints Policy provides for the non-disclosure of information relating to a complaint concerning a staff member, worker or affiliate. In her evidence Ms Dickson said:

31 In my experience, employees, students and members of the public are often reluctant to participate in investigations and preliminary assessments. Prospective participants will often ask whether the complainant or respondent (as relevant) will be advised of, or see, their comments. In accordance with the Procedures and with standard process, they are advised that confidentiality will be observed and that the complainant or respondent will not be provided with a copy of their comments or the information they provide.

32 In my experience, the requirement for confidentiality provides a level of comfort and encourages people to express more openly relevant views and provide information about a complaint. Participants are often cognisant of the fact that they are members of the University community, and are concerned about damaging relationships with their colleagues, peers or teachers. Disclosure of information provided in confidence during an investigation or preliminary assessment process would damage working relationships and have an adverse impact on the University's teaching and research environment.

33 I have had a number of employees refuse to participate in an investigation or preliminary assessment unless they can be assured of confidentiality. In some cases, it would be impossible to conduct an investigation or preliminary assessment without the input of a particular employee or student, rendering the complaints process ineffective. This would lead to significant problems for the University’s working, teaching and research culture, because staff, students and members of the public would not have access to a genuine and functional process for resolving complaints. As a consequence, staff, students and members of the public would be less inclined to make complaints or to trust in the legitimacy of the process.

75. In my view, this evidence of Ms Dickson is uncontroversial as confidentiality is generally integral to all complaint handling processes.

76. Accordingly, I am satisfied that the respondent has established its claim that a disclosure of the information in issue in Documents 1, 6, 9, 10, 11, 12 and 13, could reasonably be expected to prejudice the supply to the respondent of confidential information that facilitates the effective exercise of that respondent’s complaint handling function.

Cl 1(f) could the disclosure of the information reasonably be expected to prejudice the effective exercise by the respondent of its functions?

77. For the reasons set out above, I also find that the disclosure of the information in issue in Documents 1, 6, 9, 10, 11, 12 and 13 could reasonably be expected to prejudice the effective exercise by the respondent of its complaint handling function.

Cl 1(g) could the disclosure of the information reasonably be expected to found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided in confidence?

78. For the reasons set out above, I also find that the disclosure of the information in issue in Documents 1, 6, 9, 10, 11, 12 and 13 could reasonably result in the disclosure of information provided in confidence.

79. [CONFIDENTIAL- NOT FOR PUBLICATION]

80. [CONFIDENTIAL – NOT FOR PUBLICATION]

cl 3(a) could the disclosure of the information reasonably be expected to reveal an individual’s personal information?

81. In its decision the subject of review, the respondent only made a claim that a disclosure of the deleted information in Document 2, 3 and 7 could reasonably be expected to reveal an individual’s personal information. [CONFIDENTIAL – NOT FOR PUBLICATION]

82. I accept that the deleted information in the abovementioned Documents is personal information of the individual to which it relates in that it is information about the individual concerned whose identity is apparent or could reasonably be ascertained from the information or opinion.

83. The word ‘reveal’ is defined in cl 1 of Sch 4 of the GIPA Act to mean: ‘to disclose information that has not already been publically disclosed (otherwise than by unlawful disclosure)’.

84. In regard to these deletions, it is apparent that this information has been previously disclosed to the applicant. However, it is not information that has been publicly disclosed. Hence, I am satisfied that the respondent’s claim, in regard to the deletions in Documents 2, 3 and 7, that the disclosure of the deleted information in those Documents could reasonably be expected to reveal an individual’s personal information.

85. In its written submissions in these proceedings, the respondent appears to contend that the information in the remaining documents also falls within this public interest consideration against disclosure as it is personal information about Mr A and others. As noted in her affidavit, pursuant to s 54 of the GIPA Act, Ms Dickson consulted, via email, with Mr A in regard to this information in so far as it related to his personal information and others. Mr A’s response and those of others were provided to the Tribunal in confidence in accordance with s 107.

86. The applicant on the other hand contends that to the extent that this information contains an opinion about him, it is personal information about him. As I have noted, to the extent the information is personal information about the applicant this is a public interest consideration in favour of disclosure and must be weighed against the public interest consideration against disclosure, which I have dealt with below.

87. In the meantime, I agree with the respondent that to the extent the information in issue is personal information about Mr A and others, a disclosure of that information could reasonably be expected to ‘reveal’ that information. I accept the applicant is aware of the name of Mr A. However, his name has not been publically disclosed. Under the respondent’s Bullying, Harassment and Discrimination Resolution Procedures, the applicant is not at liberty to disclose the name of Mr A or the fact that he had made a complaint against him.

Cl 3(b) could the disclosure of the information reasonably be expected to contravene an information protection principle under the Privacy and Personal Information Protection Act 1998

88. Section 4(4) of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) defines ‘personal information’ in similar terms to that contained in cl 4 of Sch 4 of the GIPA Act.

89. It is not disputed that the respondent is a public sector agency and is required to comply with the information protection principles contained in Division 1 of Part 2 of the PPIP Act. Section 18 of the PPIP Act sets out the information protection principle in regard to the disclosure of personal information that is held by a public sector agency. That principle is in the following terms:

18   Limits on disclosure of personal information

(1)  A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless:

(a)  the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or

(b)  the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or

(c)  the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.

90. In this case, I am satisfied that a disclosure of the personal information of Mr A and others contained in the information is issue, could reasonably be expected to contravene this information protection principle under the PPIP Act as the disclosure would not be directly related to the purpose for which it was collected, Mr A and others believed that this information would not be disclosed other than for the purpose of dealing with the applicant’s complaint against Mr A and there is no serious or imminent threat of the kind set out in s 18(1)(c).

Personal factors of the applicant

91. The applicant’s motivation in seeking access to the information in issue appears to be so that he can respond to and correct what he asserts to have been irrelevant, inaccurate, out of date, incomplete and misleading personal information that Mr A and others provided to Ms McAloon in the course of her preliminary assessment. Underlying this is a motive to have his complaint against Mr A being substantiated.

92. [CONFIDENTIAL - NOT FOR PUBLICATION]

93. [CONFIDENTIAL - NOT FOR PUBLICATION]

94. [CONFIDENTIAL - NOT FOR PUBLICATION]

Where does the balance lie?

95. It is accepted that the balancing exercise ‘is a question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation": see Battin v University of New England [2013] NSWADT 73, at [74].

95. I note the general public interest in favour of disclosure of government information.

96. In weighing up the competing public interests I have given considerable weight to the fact that under the respondent’s Resolution of Complaints Policy, complaints made under the respondent’s Bullying, Harassment and Discrimination Resolution Procedures are confidential in that a disclosure of the complaint and information obtained in the course of a preliminary assessment are not disclosed, unless there is a requirement to do so under the terms of cl 15 of the Resolution of Complaints Policy. In this case, the evidence is that, in accordance with the respondent’s Resolution of Complaints Policy, there has been no disclosure of the information in issue, other than to those staff members responsible for dealing with and determining the applicant’s complaint (e.g. Professor Carlin). Hence I have given considerable weight to the public interest against disclosure in cl 1(d), 1(f) and (g) of the Table to s 14(2) of the GIPA Act.

97. I have also given considerable weight to the fact that the information in issue is primarily personal information about Mr A and others, given in confidence, and that a disclosure of that information could reasonably be expected to reveal that information, or contravene the disclosure information protection principle in s 13 of the PPIP Act. I accept that to the extent this information contains an opinion about the applicant, it is also personal information about him, for which there is a public interest in favour of disclosure. However, unlike the information that has been disclosed to the applicant, this information cannot be separated from the personal information about Mr A and others. In the circumstances of this case and for the reasons set out above, in my opinion, greater weight must be given to the public interest consideration against disclosure of the personal information about Mr A and others as set out in cl 3(a) and 3(d) of the Table to s 14(2) of the GIPA Act.

98. Finally, in my opinion, while a disclosure of the information in issue would disclose the basis on which the respondent dismissed the applicant’s complaint against Mr A, it would not otherwise facilitate public scrutiny of and promote transparency of the respondent’s decision making in regard to complaints made against staff members that has not already been disclosed in the respondent’s Bullying, Harassment and Discrimination Resolution Procedures and the Resolution of Complaints Policy. That is, based on the content of the information that has been released to the applicant and that which is in issue in this application there is no evidence to indicate that the respondent departed from these procedures in dealing with the applicant’s complaint. Accordingly, I have given very little weight to this public interest consideration in favour of disclosure.

99. Based on my findings above, I am satisfied that the respondent has established that its decision is justified in that, in this case, the public interest consideration against disclosure of the information in issue, on balance, outweighs the public interest considerations in favour of disclosure.

Conclusions

101. For the reasons set out above, I find that the decision of the respondent is the correct and preferred decision and should be affirmed and I make that order accordingly.

Orders

1. Pursuant to subsection 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant is not to be disclosed without the leave of the Tribunal.

2. The decision of the respondent is affirmed.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

11 July 2019 - typo corrected on coversheet and at para [1].

Decision last updated: 11 July 2019