DQN v University of Sydney

[2019] NSWCATAD 159

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DQN v University of Sydney [2019] NSWCATAD 159
Hearing dates:	19 February 2019
Date of orders:	14 August 2019
Decision date:	14 August 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins, Senior Member
Decision:	(1)   The decision of the respondent made on 23 April 2018 and as varied on 19 February 2019 is affirmed.
Catchwords:	ADMINISTRATIVE LAW – Freedom of information – Access to information concerning a preliminary assessment report of a complaint made by the applicant – whether there is public interest against the disclosure of the information sought and on balance, that public interest against disclosure overrides the public interest in favour of disclosure – confidential information – personal information of a person other than the applicant
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 (NSW) Privacy and Personal Information Protection Act 1998 (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:	None cited
Category:	Principal judgment
Parties:	DQN (Applicant) University of Sydney (Respondent)
Representation:	Counsel: B Tronson (Respondent)   Solicitors: DQN (Self Represented) (Applicant) Heesom Legal (Respondent)
File Number(s):	2018/00233325
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the publication and broadcast of the name of the applicant and the names of those persons against whom the applicant made a complaint in November 2017 is prohibited. Note: 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.

reasons for decision

1. The applicant, DQN, is a former staff member of the respondent, the University of Sydney. In November 2017, the applicant made a complaint to the respondent about alleged inappropriate workplace conduct by a number of other staff members. The complaint was dealt with under the respondent’s ‘Bullying, Harassment and Discrimination Resolution Procedures 2015’ (the Bullying Resolution Procedures), a preliminary assessment of the applicant’s complaint was undertaken by Ms Margaret Buchanan of the respondent’s Workplace Relations team.

2. On 16 March 2018, Tania Rhodes-Taylor, Vice-Principal, External Relations of the Office of the Vice-Chancellor and Principal, formerly advised the applicant of the outcome of the preliminary assessment in that his allegations were found not to have been substantiated. However, he was also advised that there had been some irregularity in the processes of the matter he complained about.

3. On 28 March 2018, the applicant made an application to the respondent, under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act), for access to the information in the preliminary assessment report of Ms Buchanan.

4. The respondent determined the applicant’s access request on 23 April 2018. It identified two Preliminary Assessment Reports of Ms Buchanan, one dated 1 February 2018 and another dated 28 February 2018. The respondent determine to grant the applicant partial access to the information contained in each report and refused him access to the remaining parts of the report on the grounds that there was an overriding public interest against disclosure of those parts. The applicant sought external review of this decision by the Information Commissioner, which he was entitled to do: GIPA Act, s 89. Having completed her review, on 11 July 2018, the Information Commissioner wrote to the applicant and advised that having reviewed the respondent’s information and decision, she had concluded that the decision of the respondent was justified.

5. On 30 July 2018, the applicant made this application for external review of the respondent’s decision by the Tribunal, which he was entitled to do: GIPA Act, s 100.

6. The applicant’s application was heard before me on 19 February 2019. At the commencement of the hearing, on the application of the applicant and the respondent, I made a non-publication order under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), prohibiting the publication of the name of the applicant and the names of the persons against whom he had made a complaint. By consent I also made an order setting aside the decision of the respondent in regard to specified sections of the information for which the respondent had refused access and in substitution thereof, made a decision that the applicant be granted access to that information. Hence, the decision that was the subject of this application was the decision of the respondent made on 23 April 2018 as varied on 19 February 2019.

7. In this application, the onus is on the respondent to prove that its decision is justified: GIPA Act, s 105. That is, the onus is on the respondent to prove that the information for which it has refused access falls within one or more of the following public interest consideration against disclosure, in that access to that information could reasonably be expected to have one or more of the following effects:

1. prejudice the supply to the respondent of confidential information that facilitates the effective exercise of the respondent’s functions: GIPA Act, s 14(2) Table cl 1(c);

2. prejudice the effective exercise by the respondent of the respondent’s functions: GIPA Act, s 14(2) Table cl 1(f);

3. found an action against the respondent for a breach of confidence or otherwise result in the disclosure of information provided to the respondent in confidence: GIPA Act, s 14(2) Table cl 1(g);

4. reveal an individual’s personal information, or 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: GIPA Act, s 14(2) Table cl 3(a) and (b);

and that in the circumstances, these public interest considerations against disclosure, on balance, out weigh the public interest consideration in favour of disclosure.

8. For the reason that follow, based on the material that is before the Tribunal and the applicable law, I am satisfied that the respondent has discharged its onus that its decision is justified. Hence I find that the correct and preferable decision is to refuse the applicant access to the information sought and the appropriate order is to affirm the decision of the respondent: Administrative Decisions Review Act 1997 (NSW) (ADR Act), s 63.

The evidence

9. In support of its case, the respondent filed and served an open affidavit (sworn on 11 October 2018) of Ms Jodi Sophia Dickson, Director of Workplace Relations of the respondent and a copy of the two redacted Preliminary Assessment Reports that were initially provided to the applicant.

10. The respondent also provided the Tribunal, in confidence, with an un-redacted copy of Ms Dickson’s affidavit and the two Preliminary Assessment Reports: GIPA Act, s 107.

11. The applicant also relied on statement (dated 31 January 2019)that he filed and served.

12. Ms Dickson also gave oral evidence at the hearing and she was cross-examined by the applicant. Both parties filed and served detailed written submissions. I have dealt with the evidence and submissions below.

The GIPA Act

13. 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.

14. 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

15. 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

16. 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.

17. Section 14 of the GIPA Act deals with the public interest considerations against disclosure. Section 14(1) provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of any government information described in Schedu1 of that Act. The information the subject of this application does not fall within any of the categories described in Schedule 1.

18. Section 14(2) of the GIPA Act provides that the public interest considerations listed in the Table to that section are the only other considerations that may be taken into account under that Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. As I have noted in paragraph [7] above, the respondent contends that the information in issue falls within cl 1(d), (f) and (g) and cl 3(a) and (b) of that Table, namely under the responsible and effective ground and the individual rights ground.

19. 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.

20. 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 it appears that:

1. the information is of a kind that requires consultation;

2. the person may reasonably be expected to have concerns about the disclosure of the information; and

3. those concerns may be relevant to a public interest consideration against disclosure.

21. Information 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).

22. 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

23. Section 73(1) provides that 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. That is, where an agency provides access to the information sought, an access applicant is free to use and disclose that information as he or she sees fit.

The applicant’s case

24. In his application for review the applicant asserted that the respondent was not justified in its application of cl 3(a) of the Table to section 14 of the GIPA Act.

25. In his affidavit, the applicant set out the background to his complaint and the circumstances giving rise to the end of his employment with the respondent. He also pointed out that he was a former student of the respondent and remains a member of its community.

26. In his written submissions, the applicant contended that there was not an overriding public interest against disclosure, but rather a misplaced desire on behalf of the respondent to protect collective private interests. He said there was instead an overriding public interest in favour of disclosure to ensure that the respondent conducts its complaints and investigations in a transparent and reasonable manner. He went on to say that there was also an overriding public interest in favour of disclosure as the complaint and subsequent preliminary assessment related directly to how the respondent dealt with individuals who manage and treat its staff, both academic and professional. In this regard the applicant relied on the public interest considerations in favour of disclosure noted in paragraphs (b), (d) and (e) of s 12(2) of the GIPA Act and that greater weight should be given to these.

27. The applicant contended that the decision of the respondent was contrary to its cultural values of ‘respect and integrity’ as set out in the respondent’s ‘2016-2017 Strategic Plan’. He said he had acted in good faith when he approached the respondent with his complaint, but believes the respondent had failed to do the same in response to his complaint.

28. In regard to the public interest considerations against disclosure relied on by the respondent, the applicant submitted that Ms Dickson’s evidence went no further than asserting that there was an ‘expectation of confidentiality’. That is, Ms Dickson’s evidence did not go so far as to say that confidentiality of the preliminary assessment process was ‘absolute’. Hence, confidentiality could not be guaranteed.

29. The applicant agreed that complaints were an important means of identifying problems and improving the quality of the respondent’s services, but went on to submit that the respondent also needed to act in a fair, reasonable and transparent manner in accordance with its values of respect and integrity. He submitted that as he remains part of the respondent community, it was fair and reasonable to disclose the information to him. He agreed that the disclosure of the information in issue would facilitate public scrutiny and promote transparency.

30. He said he did not believe his complaint had been dealt with fairly. Nor had all the areas about which he had complained been addressed. In this regard, he said he had not been provided with any evidence as to why his allegations were found to be unsubstantiated. He said he did not seek the personal information of the individuals concerned. He only sought access to opinions about him that was contained in the preliminary assessment reports.

The respondent’s case

31. The respondent contends that, based on the evidence of Ms Dickson, the circumstances in which information was obtained, the content of the information for which access was refused and the relevant provisions of the GIPA Act, its decision was justified.

32. At the hearing, counsel for the respondent, said that the crux of the respondent’s case was the public interest in protecting the respondent’s complaint handling functions and the exercise of those functions.

33. In her evidence, Ms Dixon explained that she has worked in human resources and employee relations for over 20 years.

34. She explained that the applicant had made his complaint to her personally. She said she asked a former member of the Workplace Relations team, Ms Buchanan, to conduct a preliminary assessment of the complaint, in accordance with cl 8 of the respondent’s Bullying Resolution Procedures. She said that the purpose of a preliminary assessment is to determine how a complaint is to be progressed. She said this can involve convenient discussions with relevant parties, collating and reviewing any relevant documentary material, and providing advice to the relevant delegate about whether the matter is appropriate for assisted resolution or referral for investigation.

35. Ms Dickson explained that during the course of her preliminary assessment Ms Buchanan met with the applicant and the three staff members the subject of the applicant's complaint. She noted that Ms Buchanan had also met with other senior staff members and the respondent’s Lead Redeployment Consultant. She said preliminary assessments are conducted confidentially, in accordance with the procedures and the respondent’s ‘Resolution of Complaints Policy 2015’ (Resolution of Complaints Policy or Policy). She noted the terms of cl 14 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.

36. Ms Dickson noted that cl 15(2)(g) of the Policy provides that the respondent may inform a complainant or a respondent to the complaint generally about 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 and procedures. She noted cl 15(2)(j) of the Policy provided that the respondent may disclose information if required to do so under the GIPA Act, or pursuant to any other legal or regulatory requirements.

37. Ms Dickson explained that it is 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 where necessary to test the information they provide. She said that to the best of her knowledge, Ms Buchanan had provided this information to those who had participated in her preliminary assessment of the applicant's complaint.

38. She explained that Ms Buchanan initially completed her preliminary assessment and report on 1 February 2018. She then received additional relevant information from a new source. As a consequence, Ms Buchanan added a number of paragraphs to her initial report. Hence, there were two reports.

39. In regard to the public interest considerations against disclosure, Ms Dickson said she was aware that the respondent has declined to provide un-redacted copies of Ms Buchanan's preliminary assessment reports to the applicant on the grounds that the information contained in those reports is subject to an overriding public interest against disclosure. She said that in her experience, employees and students are often reluctant to participate in investigations and preliminary assessments. She said prospective participants often ask whether the complainant or respondent (as relevant) will be advised of, or see, their comments. She said that, in accordance with the Bullying Resolution Procedures and with standard processes, they are advised that confidentiality will be observed and that the complainant or respondent will not be provided with a copy of their comments. Ms Dickson went on to say that in her experience, the requirement for confidentiality provides a level of comfort and encourages people to express more openly relevant views and information about a complaint. She said: ‘participants are often cognisant of the fact that they will remain in the work place or course, and are concerned about damaging relationships with their colleagues, supervisors or teachers’. She said, disclosure of information provided in confidence during an investigation or preliminary assessment process would damage relationships and have an adverse impact on the workplace and the respondent's teaching and research environment. In this regard she said:

27   I have had a number of employees refused 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 workplace, teaching and research culture, because staff and students would not have access to a genuine and functional process for resolving complaints. As a consequence, staff and students would be less inclined to make complaints, and to trust in the legitimacy of the process.

40. Ms Dickson explained that, on 27 September 2018, she sent an email to each of the three staff members the subject of the applicant's complaint. In her email she asked each staff member whether they objected to the release of all or part of the information about them as contained in Ms Buchanan's preliminary assessment reports, if they did object what were their grounds for objection and whether the de-identification of the information would address their objection. Ms Dixon said that each staff member responded saying they objected to the release of the information about them as contained in Ms Buchanan's preliminary assessment reports. Copies of Ms Dickson’s emails and the responses she received were attached to her affidavit. With the exception of the redaction of a section of one of the responses, these have been disclosed to the applicant. In summary the grounds of objection were as follows:

1. the information should remain private and confidential as per the process;

2. they voluntarily participated in the respondent’s enquiry on the understanding that their discussions with Ms Buchanan would be kept private and confidential – to provide this information to the applicant would be a breach of their privacy and of the agreement that secured his/her participation at the start of the process; and

3. the information might be used inappropriately.

Consideration

41. During the course of the hearing, I explained to the applicant a number of times that it was not the role of the Tribunal to review the preliminary assessment undertaken by Ms Buchanan, or the findings and recommendations she made. However, I accept that the applicant is dissatisfied with the outcome of his complaint and seeks access to the redacted information in Ms Buchanan’s report so that he can better understand the process that was used and what was said about him.

42. Ms Buchanan’s initial preliminary assessment report is 5 pages in length, with an Attachment of 6 pages. Her subsequent report is 6 pages in length and the Attachment consists of 7 pages.

43. The format of each report and its Attachment is the same. The front page of the report identifies the complainant (the applicant), his former position and supervisor and the names of the respondent’s to the applicant’s complaint and their respective positions within the respondent. Each report deals with the background and context of the complaint, the allegations made by the applicant, the steps undertaken by Ms Buchanan during the course of the assessment and the recommendations of Ms Buchanan.

44. The Attachment to each report was a summary of the allegations and the evidence in regard to each allegation. This summary was in table form with three columns; namely a summary of the allegation the applicant had made against a particular respondent, a summary of the respondent’s response to the allegation and a summary of any other evidence relevant to the allegation.

45. The information that is in issue in this application is the name of the respondents to the applicant’s complaint and any information that would identify the respondents, Ms Buchanan’s summary of the response of each respondent and Ms Buchanan’s summary of other evidence that would identify the respondents or their respective responses to the allegations the applicant had made against him or her. The applicant has otherwise been granted access to the information contained in the report, including the format of the report and the Attachment.

Public interest considerations in favour of disclosure

46. The respondent concedes that it is accountable to the public for, among other things, the provision of courses of study, the carrying out of research and the conferring of degrees. It also acknowledged that the GIPA Act is one means of facilitating and furthering that accountability. Hence, it accepts 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. As noted above, the applicant is in agreement with the respondent in this regard.

47. However, as pointed out by the applicant, the information in issue includes opinions about him, who is the person seeking access. However, the information is also intertwined with the personal information of those persons who have expressed an opinion about the applicant. I have dealt with this issue in more detail below.

48. Having carefully examined the information in issue, in my opinion, a disclosure of the information would not reveal or substantiate that Ms Buchanan acted improperly during her preliminary assessment of the applicant’s complaint.

Public interest considerations against disclosure

49. 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: see Attorney-General’s Department v Cockcroft (1986) 10 FCR 180, at 190, where Bowen CJ and Beaumont J held 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.

50. In Leech v Sydney Water Corporation [2010] NSWADT 298, at [25], the Tribunal held that the test in determining whether a disclosure of the information ‘could reasonably be expected to’ have the stated effect was 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.

51. In Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 (Camilleri), at [26], the Appeal Panel held 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’: see also Director General, Department of Education & Training v Mullett & anor (GD) [2002] NSWADTAP 13 (Mullett), at [58], where the Appeal Panel said ‘this requires the Tribunal to engage in a relatively abstract analysis’.

52. However, in Camilleri (supra), the Appeal Panel went on to say that it was 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

53. 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?

54. It is accepted that, 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. Hence, I am satisfied that functions of the respondent include receiving and dealing with complaints made by or against staff members, workers or affiliates (the respondent’s complaint handling function).

55. In order for this public interest consideration against disclosure to apply, the respondent must establish the following:

1. the information is confidential;

2. the information facilitates the effective exercise of its functions; and

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

56. It has long been accepted that, in the context of freedom of information legislative schemes, 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].

57. In this case, the preliminary assessment reports of Ms Buchanan do not expressly state that they are confidential.

58. However, she does state at the commencement of her report that her preliminary assessment of the applicant’s complaint was conducted under the respondent’s 2015 Bullying Resolution Procedures. Clause 4 of those 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. 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.

59. Accordingly, given the context in which the information in issue was obtained, I am satisfied that it is confidential information. This equally applies to the information the applicant provided to Ms Buchanan.

60. Based on the above evidence of Ms Dickson, I am also satisfied that information of this kind facilitates the effective exercise of the respondent’s complaint handling function.

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

62. In Mullett (supra), the Appeal Panel held that the question of whether a disclosure of the information would prejudice the supply of information in future was also a matter of reasonable expectation: 

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. ...' 

63. As noted above, it was the evidence of Ms Dickson that, during her many years of experience in dealing with workplace complaints, students and staff were often reluctant to participate in a preliminary assessment or an investigation unless they could be assured of confidentiality. She also said it would be impossible to conduct such assessments or investigations without the participation of the parties involved, which would render the complaints processes ineffective. Hence, I am satisfied that a disclosure of the information in issue could reasonably be expected to prejudice the future supply of information of this kind which facilitates the effective exercise of the respondent’s complaint handling function.

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

65. Accordingly, I am satisfied that the respondent has established its claim that a disclosure of the information in issue could reasonably be expected to have the effect prescribed in cl 1(d) of the Table to s 14(2) of the GIPA Act.

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

66. For the reasons set out above, I also find that the disclosure of the information in issue 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?

67. For the reasons set out above, I also find that the disclosure of the information in issue could reasonably result in the disclosure of information provided in confidence. On the basis of this finding, it is unnecessary for me to determine whether a disclosure of the information could reasonably be expected to found an action against the respondent for a breach of confidence.

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

68. Having read the information in issue (the redacted information), I am satisfied that the information is personal information of a person other than the applicant and a disclosure of the information would reveal that person’s personal information. That is, I am satisfied that the information which names the persons against whom the applicant has made his complaint, the responses of these persons to the allegations made against them by the applicant and the summary of the evidence (other than what has been disclosed) is information about such person, whose identity is apparent or can reasonably be ascertained from the information in issue: GIPA Act, Sch 4, cl 4. While the responses relate to the specific allegations that were made by the applicant they are nevertheless information or an opinion about that staff member whose identity is apparent or can reasonably be ascertained from that information if disclosed.

68. 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)’.

69. Although the applicant knows the names of those staff members who were the subject of his complaint, there is no evidence that this information has been publicly disclosed. As noted in the evidence of Ms Dickson, in accordance with the respondent’s Resolution of Complaints Policy, the preliminary assessment reports of Ms Buchanan were only circulated to those staff members responsible for determining how the complaint was to be resolved.

70. Accordingly, I am satisfied that the respondent has established that a disclosure of the information in issue could reasonably be expected to reveal the personal information of the staff members the subject of the applicant’s complaint.

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

72. 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.

73. It is accepted 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.

74. In this case, for the reasons set out above, I am satisfied that a disclosure of the personal information of the staff members against whom the applicant made his complaint could reasonably be expected to contravene the s 18 disclosure information protection principle, because the disclosure would not be directly related to the purpose for which it was collected, it is not information of a kind that is usually disclosed, each staff member has objected to the disclosure of their personal information and there is no serious or imminent threat of the kind set out in s 18(1)(c).

75. Accordingly, I am satisfied that the respondent has established that a disclosure of the information in issue could reasonably be expected to contravene an information protection principle under the PPIP Act.

Personal factors of the applicant

76. As noted above, the applicant seeks access to the information in issue, as he believes his complaint was not fairly dealt with. He also seeks to understand why his complaint was not sustained. In his oral evidence, the applicant said that access to the information was important in order for him to obtain ‘closure’ in regard to the issues he had raised.

77. As noted by the respondent, these are primarily matters of a private nature. However, as I have explained above, the applicant was informed orally and in writing about the outcome of Ms Buchanan’s preliminary assessment. He has also been granted access to a significant portion of the preliminary assessment reports, which identifies the manner in which Ms Buchanan conducted her preliminary assessment, the terms of each and every allegation that was the subject of her preliminary assessment and the essence of her recommendations. What he has not been granted access to are the responses of the staff members in regard to the allegations made against him or her and the evidence from other sources in regard to each allegation.

Where does the balance lie?

78. 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].

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

80. In weighing up the competing public interests I have given considerable weight to the public interest consideration in favour of disclosure in that the information in issue is, in part, the personal information about the applicant to the extent it is information in response to the allegations the applicant made in his complaint about the manner he was treated in the workplace. I also accept that a disclosure of the information may better inform the applicant of the basis on which Ms Buchannan made her recommendations. However, I do not find that a disclosure of this information could reasonably be expected to facilitate public scrutiny of and promote transparency of the respondent’s complaint handling function that has not already been disclosed in the respondent’s Bullying Resolution Procedures and the Resolution of Complaints Policy. Hence, I have placed very little weight on this public interest consideration in favour of disclosure.

81. I have given considerable weight to each of the public interest considerations against disclosure, in particular, the public interest consideration against disclosure of personal information of persons other than the applicant, which was supplied in confidence during the course of a preliminary assessment conducted pursuant to the respondent’s Resolution of Complaints Policy and the Bullying Resolution Procedures. As noted above, I accept that to the extent the information in issue 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 those staff members the applicant complained about. Hence, for the reasons set out above, I have found that a disclosure of this information could reasonably be expected to reveal the personal information of the persons other than the applicant, breach an information protection principle under the PPIP Act and prejudice the supply to the respondent of confidential information that facilitates the effective exercise of its complaint handling function.

82. In my opinion, greater weight must be given to the abovementioned public interest consideration against disclosure. Hence, on balance, I find that the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure.

83. 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

84. 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. The decision of the respondent made on 23 April 2018 and as varied on 19 February 2019 is affirmed.

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

Registrar

Decision last updated: 14 August 2019