Gallagher and Secretary, Department of Immigration and Border Protection (Freedom of Information)
[2016] AATA 1025
•13 October 2016
Gallagher and Secretary, Department of Immigration and Border Protection (Freedom of Information) [2016] AATA 1025 (13 October 2016)
Division
FREEDOM OF INFORMATION DIVISION
File Number(s)
2015/2860
Re
Mary Gallagher
APPLICANT
And
Secretary, Department of Immigration and Border Protection
RESPONDENT
DECISION
Tribunal The Hon. Dennis Cowdroy OAM QC, Deputy President
Date 13 October 2016 Date of written reasons 14 December 2016 Place Sydney The decision of the Information Commissioner is affirmed, subject to the ‘Terms of Agreement as to Decision’, filed by the Respondent and dated 6 October 2016.
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The Hon. Dennis Cowdroy OAM QC, Deputy President
Catchwords
FREEDOM OF INFORMATION – access to documents – whether ‘exempt document’ – whether release of documents contrary to public interest – whether ‘substantial adverse effect on the proper and efficient conduct of the operation of an agency’ – decision under review affirmed
Legislation
Freedom of Information Act 1982 (Cth) ss 4, 11(1), 47E(c), 47F, 55K, 57A & 61(1)
Cases
Albanese and Chief Executive Officer of the Australian Customs Service [2006] AATA 900
Carver v Fair Work Ombudsman [2011] AICmr 5
Diamond and Chief Executive Officer of the Australian Curriculum, Assessment and Reporting Authority [2014] AATA 707
Tillmanns Butcheries Pty Ltd v Australasian Meat Employees’ Union (1979) 42 FLR 331Secondary Materials
Guidelines Issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982
REASONS FOR DECISION
The Hon. Dennis Cowdroy OAM QC, Deputy President
14 December 2016
In this application the Applicant seeks by s 57A of the Freedom of Information Act 1982 (Cth) (FOI Act) an application to review a decision of the Information Commissioner made under s 55K of such Act. Under that decision the Information Commissioner confirmed the decision of an officer of the department to refuse access to the Applicant of part of a document which I shall now describe.
The Applicant was a member of the Respondent department between 1979 and 2011. The Applicant worked in its national office, in the offices of the Secretary and the Minister, and in various New South Wales offices, and also worked in three overseas posts. She was a sole immigration officer at one time in Nairobi. She worked as an EL1 manager in the New South Wales offices from 1990. Between May and June 2010 she was the sole operational manager for New South Wales Refugee Status Assessment (RSA) section. These matters are referred to, to show that the Applicant has a longstanding history of service in the offices of the Respondent.
Certain issues arose which concerned the Applicant, particularly relating to the operation of refugee assessments, however certain other issues concerning the administration of her office also caused her concern. Accordingly, the Applicant made what was described as a whistle-blower complaint under the then Public Service Act 1999 (Cth), section 16. In 2012, Mr Jeff Lamond of CPM Reviews was engaged by the Respondent to undertake an investigation of the Applicant's complaints and to provide a formal written report. The report was to be prepared in accordance with the Department's policies reflected in a document entitled, "Respect in Immigration - Guidelines for managing harassment, bullying and discrimination in the Department of Immigration and Citizenship" (the Report). The Report was finalised and delivered on 28 August 2013. In summary, the Report found that the Applicant's allegations were not proven.
On 3 September 2013 the Applicant made a request under the FOI Act seeking access to the report, including all attachments, appendices and transcripts. On 1 October 2013 the scope of that application was limited by the Applicant merely to the 88 page report. On 24 December 2013, a decision was made in respect of the FOI request. That answer resulted in portions of the report being claimed to be exempt under two sections, namely sections 47E(c) and 47F of the FOI Act. On 2 January 2014 a review was sought by the Applicant with the Office of the Australian Information Commissioner. On 4 February 2015 certain aspects of the decision under review were set aside and more portions of the report were released. On 12 May 2015 the Privacy Commissioner made a decision on the Applicant's application for review and essentially the decision of the Department was affirmed.
Before this Tribunal the Applicant has made both oral and written submissions, as has the Respondent. The Tribunal approaches such applications on the basis of s 11(1) of the FOI Act, namely that:
Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a) a document of an agency, other than an exempt document;…
Accordingly, for present purposes, the question is whether the exemptions relied upon by the Department are justified; that is, are the portions of the Report, which are claimed to be exempt, truly exempt under the definition of “exempt document” as contained in s 4(1) of the FOI Act.
The application is brought, as I have mentioned, under s 57A from the decision of the Information Commissioner. Pursuant to s 61(1) of the FOI Act the Respondent bears the onus of establishing that in fact, the documents over which exemption is claimed, are truly exempt.
Before proceeding with the content of the legal requirements, the Tribunal notes that two affidavits are relied upon by the Respondent, namely the affidavit of Louise Bernadette Buchanan, affirmed 21 January 2016, including the exhibits to the affidavit, marked confidential by order of 14 March 2016; and secondly, the affidavit of Claire Pitham, affirmed 21 January 2016.
The definition of "exempt document" contained in s 4 refers to a document that is exempt for the purposes of Part IV of the Act. This involves a question concerning whether the conditional exemptions in this case as claimed, being 47E(c) and 47F, apply. Before I deal with that I shall refer to the fact that under the FOI Act, guidelines have been made as provided by s 93A. Those are guidelines made by the Information Commissioner.
Section 47E provides:
Public interest conditional exemptions - certain operations of agencies
A document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to, do any of the following:
…
(c) have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency;
…
In Carver v Fair Work Ombudsman [2011] AICmr 5 (27 July 2011) the Tribunal observed:
In Re Albanese and Chief Executive Officer of the Australian Customs Service [2006] AATA 900, the Administrative Appeals Tribunal (the Tribunal) considered the meaning of ‘substantial adverse effect on the management or assessment of personnel' in s 40(1)(c) of the FOI Act, which was repealed when s 47E was inserted. The Tribunal decided that disclosing a consultant's report, which had been prepared in response to a complaint about treatment in the workplace, would not have a substantial adverse effect. But, in that case, the agency had asserted that the substantial nature of the adverse effect was, ‘at least in part, related to the impartiality and independence that would be lost if consultants were no longer engaged to investigate personnel matters because of the risk that their opinions, findings and recommendations, whether right or wrong, may be disclosed publicly'. The issues in this IC review are different
[20] More on point is the earlier decision of Wilson v Australian Postal Corporation [1994] AATA 189. The Tribunal agreed with the agency that, by disclosing the statements submitted by staff members in relation to a particular incident, the agency would create a reluctance on the part of staff members to provide statements in respect of future misconduct or inappropriate behaviour in the work environment. This, the Tribunal decided, would mean that serious work incidents would go unreported, and management would not be in a position to take steps to rectify work related problems or potentially serious work situations. The Tribunal was also of the view that disclosure of confidential statements would be likely to impact detrimentally on the morale of staff members.
[21] The Guidelines explain that, for s 47E to apply:
An agency cannot merely assert that an effect would occur following disclosure. The particulars of the predicted effect and the reasons behind the identification of those particulars should be articulated during the decision making process. Those particulars should also indicate whether the effect could reasonably be expected to occur.
The Guidelines, which are before this Tribunal, dated October 2014 are stated to be Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act. These are the guidelines which must guide the Tribunal in its present determination.
In respect of the issue raised by s 47E(c), the allegations of the Applicant relate to processing of refugee claims and also allegations, some of a serious nature and some of a personal nature involving staff. The allegations are such that potentially, if established, action could result against certain officers under the Australian Public Service Code of Conduct.
The Guidelines refer to the fact that the exemption under 47E require that the Tribunal has regard to the Guidelines. They are not binding on the Tribunal, however they are important in the Tribunal's consideration of a range of issues that it must take into consideration. In Carver at [22] the observation was made as follows:
It is obviously beneficial for an agency's management and assessment of its personnel that the evidence that it collects in such investigations is as frank as possible. Anyone providing such evidence would expect that, subject to applicable natural justice principles, details of that evidence will not be widely disclosed. Disclosure of such evidence could reasonably be expected to affect the willingness of people to provide evidence for future Code of Conduct investigations which, in turn, would have a substantial adverse effect on the management or assessment of the agency's personnel.
In this instance before the Tribunal, the Applicant has indicated that she seeks essentially only portions of the Report. The bulk of the Report has already been released to her and has been made public. The Applicant is strongly critical of the Report and is strongly critical of various aspects of the operations of the Department. However, her current application is limited to the transcripts or statements made by certain persons who were interviewed by Mr Lamond for the purposes of his report. She has also sought the identity of those persons, but says that is not of critical importance, rather she would like to know in particular what the Report contains concerning the statements made by those persons.
Accordingly, before the Tribunal comes to deal with the substance of the matter in detail, it must bear in mind that the Applicant, prima facie by virtue of s 11(1) of the FOI Act, has the right to see the documents; that the Department bears the onus under s 61(1) of establishing the exemption, and the exemption under 47E is conditional; that is, the question will arise if the exemption is prima facie established whether it is in the public interest that the documents remain exempt. I should add that the phrase "substantial adverse effect on the proper and efficient conduct of the operation of an agency" has been the subject of detailed consideration in Diamond v Chief Executive Officer of the Australian Curriculum, Assessment and Reporting Authority [2014] AATA 707 at [114]-[120].
Further, the word "substantial" has been defined by the Federal Court of Australia, but in a slightly different context in Tillmanns Butcheries Pty Ltd v Australasian Meat Employees’ Union (1979) 42 FLR 331. In summary, the Full Court decided that the word "substantial" means more than trivial or minimal.
In support of its claim for exemption, the Respondent relies upon the affidavit of Claire Pitham affirmed on 21 January 2016. Ms Pitham is the director of the Integrity Referrals Section of the Integrity and Professional Standards Branch of the Department. She has held numerous roles in the various departments. In her affidavit she refers to the background of the retention of Mr Lamond and makes the point that as part of the investigation, Mr Lamond was able to request the assistance of employees of the Department, but he had no power to direct or compel their co-operation.
In respect of the request made by the Applicant, Ms Pitham states:
[14] The material which was the subject of the exemption claims made by the Department involved the names of the staff in the Department about whom the applicant made allegations, details of the staff members who participated in the investigation, comments and opinions made by named staff members in documents provided to the investigator, or in transcripts of questions and answers from interviews during the investigation, which are reproduced in the report, and comments and opinions of the investigator including by reference to named persons.
At paragraph 15 she refers to the consideration of the possible release of various portions of the information. Of particular concern in this application is the fact that the deponent affirms at paragraph 20:
In my experience and from my review of documents relating to this matter, I understand and believe that the assurances of confidentiality referred to above were made to staff who participated in the investigation conducted by Mr Lamond.
[21] By ensuring investigations processes are confidential, people, the subject of complaints, are more likely to reflect upon and be open about their own conduct. This can assist in resolving issues of concern more quickly and effectively. Based on my professional experience and in my opinion, employees who are the subject of a complaint would be less likely to cooperate, or would provide less valuable information, if they could not be assured that what was said during such processes was confidential.
She then refers to the possible reprisals or victimisation of witnesses whose information is made public and of a need for confidentiality arising from that issue. She continues at [23]:
In my experience, many employees involved in internal investigations, whether as subjects, complainants or witnesses, also provide to investigators information that is personal to them. Such information is often very useful to investigators, but because of its sensitive and personal nature, is not information that the individual concerned would want made broadly or publicly available, or be provided to the complainant.
[24] In my experience employees participating in investigations can find the experience stressful. Maintaining confidentiality lessens the risk of negative impact upon employees during the investigation processes. I am aware that during the investigation into the Applicant's complaints one employee became highly vulnerable and others also expressed concerns about participating in the process.
Specifically at 25 the deponent states:
If information provided to investigators is not kept confidential, I believe that employees will be less willing to cooperate in investigations in the future. This would significantly limit the ability of the Department to resolve investigations effectively and efficiently and could mean that issues of concern are not brought to the attention of the Department for investigation and action. I believe that employees would have less confidence in the ability of the Department to effectively investigate concerns. Staff willingness to report concerns might decrease and the capacity of the Department to understand areas of concern, including professional standard issues would be reduced.
She states in the second last paragraph:
[27] In my opinion, there is a strong public interest in the protection of procedural fairness rights for subjects of investigations. Allegations made about specific employees which are made public could result in reputational damage and distress to those employees and could affect their future employment opportunities in circumstances where they are unable to respond to the allegations made. The public interest remains in the use of formal review processes to test complaints about investigations, and not to have the information contained in the investigation tested in the public domain.
Lastly at [28] the witness states:
I am aware that during the present proceedings, attempts were made to notify those people named in the report over whom the Department made exemption claims in the documents the subject of the FOI request of the present proceedings. I have reviewed responses from people notified and understand and believe that while some people notified did not object to material relating to them being released, others strongly objected, including due to the report concluding the allegations were not made, but the time had passed and the stress it may cause by releasing the material. I should correct one statement; the report concluding the allegations were not made out, but time had passed and the stress it may cause by releasing the material.
I should add for completeness that the affidavit provided by Louise Bernadette Buchanan annexes confidential correspondence which has passed from the Department to those persons who have provided information to the investigator, Mr Lamond, and their responses. The Tribunal confirms that the information provided by Ms Pitham in relation to the results of those enquiries is correct.
The Applicant has made submissions to the effect that there is a substantial benefit in having transparency operating at all levels, and she refers to a publication of the Australian Public Service entitled "Privacy and transparency disclosing outcomes of misconduct complaints". The Applicant submits that parties would be more willing witnesses and would provide information more readily on bullying and harassment if they had confidence that the outcome would be available to them, that they would be able to see the evidence or the statements given appropriate weight by an investigator, and that that would increase confidence in the staff if they had the knowledge that transparency would result. The Applicant has reaffirmed that she does not necessarily wish to have the names of the persons, but rather their testimony.
Much of the material adduced during this hearing is not relevant to the specific issues which this Tribunal has to decide. The only issue before this Tribunal concerns the applicability of various exemption provisions and the question of public interest as determined by the FOI Act. It is not the function of this Tribunal, on such an inquiry, to determine the accuracy or otherwise of the report in question, nor is it the function of the tribunal to determine the veracity of the very many issues raised by the Applicant against the Department and its officers.
Accordingly, the Tribunal has regard specifically to the initial objections to production, that is the statements which the Respondent says fall within s 47E. As a second ground, the Respondent relies upon the provisions of s 47F. Section 47F of the FOI Act provides:
Public interest conditional exemptions - personal privacy
General rule
(1) A document is conditionally exempt if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).
…
The Guidelines explain at 6.126:
The personal privacy exemption is designed to prevent the unreasonable invasion of third parties' privacy. The test of 'unreasonableness' implies a need to balance the public interest in disclosure of government-held information and the private interest in the privacy of individuals.
It continues on, but for present purposes, that is the critical matter for consideration.
There have been several decisions concerning privacy, and I refer to paragraph 33 in Carver, where the following appears:
In Department of Social Security v Dyrenfurth (1988) ALD 232; [1988] FCA 148, the Federal Court considered the relationship between an assessment of a person's work performance or work capacity and that person's 'personal affairs' (the term that was then used in the personal privacy exemption in the FOI Act). The Court explained that such an assessment can contain personal information, but that such an assessment is not personal information per se:
Information relating to the personal affairs of a person such as information concerning his or her state of health, the nature or condition of any marital or other relationship, domestic responsibilities, or financial obligations, may legitimately be regarded as affecting the work performance, capacity or suitability for appointment or promotion of that person. In those circumstances it is conceivable that an assessment of work performance, capacity or suitability for appointment or promotion might contain such information.
That of course is different to the present circumstances where the report, over which exemption is claimed, relates to statements made by employees of the Department.
I shall deal, before considering the documents themselves, with the issue of public interest. Even if the grounds under s 47E(c) are made out, and/or s 47F, the question of the public interest, as provided by s 11A(5) of the Act must be considered. That is, as provided in that subsection:
The Agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.
The Guidelines refer to the public interest at 6.32, which states relevantly:
The decision maker must determine whether access to a conditionally exempt document is, at the time of the decision, contrary to the public interest, taking into account the factors for and against disclosure.
And at 6.33:
In weighing the factors for and against release of a document, it is not sufficient simply to list the factors. The decision maker must explain the relevance of the factors and the relative weights given to those factors in their statement of reasons under s 26(1) (see Part 8 of these Guidelines).
The decision in Re Albanese and Chief Executive Officer of the Australian Customs Service [2006] AATA 900 at [15] states:
There is a public interest in ensuring that serious allegations against a senior officer in public employment are properly investigated. That interest may be promoted by providing transparency in such processes, being mindful of the privacy of those concerned.
The passage continues:
In that regard the public interest in the administration of justice weighs heavily in the balance and must be considered.
Having referred to the relevant Guidelines, statutory provisions and the particular authorities, the Tribunal now will address the redacted portions of the report over which exemption has been claimed under 47E(c) and under s 47F, and of the claims in each case made for their exemption.
The Tribunal has examined each claim made by the Respondent. The Respondent has relied upon both 47E(c) and 47F for the majority of the exemptions. In each case, the Tribunal considers that the exemptions should be upheld under s 47E(c), that is, that their disclosure could have a substantial effect upon the operations of the Department.
The Tribunal does not consider that the Applicant's submission that transparency in such a matter is warranted. The Tribunal considers that disclosure of statements provided under circumstances of confidentiality where the giver of the information was informed that as far as possible, confidentiality would be protected, would lead them to consider that what they provided to the investigator would be kept confidential. The Tribunal can readily infer that if such a statement and understanding were not given to them and held by them, they may have been reluctant to provide any information whatsoever. It is in the interests of all government departments to ensure that frankness in such an investigation prevail. That frankness would not be forthcoming unless some guarantee of protection of confidentiality was provided.
The Tribunal also upholds the claim for s 47F, the identity of the person concerned may not be, as the Applicant says, important to her, but nevertheless because of the Applicant's long association and involvement in the Department, the Tribunal infers that identification of the maker of the statement would be readily identifiable by the Applicant. Accordingly, the content of the statements made by the person providing the information and also the name of that person in the Tribunal's considered decision, warrants protection under s 47F.
Insofar as the public interest is concerned, the Tribunal notes the Applicant's submissions that it is in the public interest that transparency prevail and that it will be of benefit to all those who would operate within the Department, however, it is unable to agree.
The Applicant seeks details of testimony provided by persons to the investigator. That information is of a personal nature from the witness to the investigator. The information sought scarcely fits into the category of the public interest to inform debate on a matter of public importance as provided by s 11. Certainly the findings of the Report are a matter of public interest, but these findings, as I have said, have already been made known to the Applicant. But the particular interviews conducted on a private basis are in a different category.
There is another matter to which the Tribunal adverts. Where an agency of the Commonwealth conducts an investigation in the circumstances referred to, it is important that those investigations remain confidential unless the department considers it appropriate to release them. This is so because those who are requested to assist the investigation, in the Tribunal's opinion, will clearly be deterred from participating should they know their testimony could become public, leading to reprisals or by other persons. Frankness in such circumstances is essential so that a balanced report can be prepared. Those are the considerations that prevail in the present circumstances.
For the above reasons, the Tribunal considers that the decision of the Information Commissioner should be affirmed, subject to the ‘Terms of Agreement as to Decision’, filed by the Respondent and dated 6 October 2016.
I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of the Hon. Dennis Cowdroy OAM QC, Deputy President
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Associate
Dated 14 December 2016
Date(s) of hearing 14 March, 6 & 13 October 2016 Applicant In person Solicitors for the Respondent Australian Government Solicitor
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