Haskins v ACT Director of Public Prosecutions (Administrative Review)
[2016] ACAT 90
•15 August 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
HASKINS v ACT DIRECTOR OF PUBLIC PROSECUTIONS (Administrative Review) [2016] ACAT 90
AT 78/2015
Catchwords: ADMINISTRATIVE REVIEW – freedom of information – whether disclosure contrary to public interest – whether disclosure could reasonably expect to affect the operation of an agency – whether disclosure would involve the disclosure of personal information about any person – whether documents provide for the possibility of deletion of otherwise exempt material so as to render documents non-exempt
List of Legislation: ACT Civil and Administrative Tribunal Act 2008 ss 9, 68
Director of Public Prosecutions Act 1990 s 4
Freedom of Information Act 1989 ss 21, 36, 40, 41, 59, 60
List of Cases: Colakovski v ATC (1991) 100 ALR 111
Collins v Department of Corrective Services [2010] NSWADT 39
Fogarty and Chief Executive Officer, Cultural Facilities Corporations [2005] ACTAAT 14
Gapsa v Department of Transport and Main Roads [2013] QICmr 25
GC and Australian Federal Police [2015] AlCmr 44
News Corporation v National Companies & Securities Commission (1984) 57 ALR 550
Parnell & Dreyfus v A-Gs Department [2014] AlCmr 71Searle Australia Pty Ltd v Public Interest Advocacy Centre & Anor (1992) 108 ALR 163
Schlegel v DTRS [2002] AATA 1184
Thornton v DPP [2009] ACAT 40
Waterford v Treasurer of Cth of Australia [1985] AATA 114
Williams v Department of Industry and Investment [2012] NSWADT 192
Zacek v APC [2002] AATA 473
List of Papers: ACT Government Online FOI Publication Policy
Tribunal: Senior Member Dr T Foley
Date of Orders: 15 August 2016
Date of Reasons for Decision: 15 August 2016
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 78/2015
BETWEEN:
JANINE HASKINS
Applicant
AND:
ACT DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
TRIBUNAL: Senior Member Dr T Foley
DATE: 15 August 2016
ORDER
The Tribunal sets aside the decision under review insofar as it relates to the CPM Report, Attachment 3 and Attachment 4 and in substitution decides that the only parts of these documents that are exempt from disclosure under the Freedom of Information Act 1989 are as follows:
(a)CPM Report –
(i) page 3 of 126: the email address in No. 3 of the ‘following actions’ list;
(ii) page 4 of 126: the whole of the ‘possible witness’ list;
(iii) page 11 of 126: from ‘Ms Jones’ response’ to end of page;
(iv) page 12 of 126: paragraph 1 line 1 to end of paragraph at line 4;
(v) page 16 of 126: line 13 after ‘Background’ to end of the page;
(vi) page 17 of 126: paragraph 1 line 1 to end of paragraph 2 at line 6; and paragraph 7 line 16 after ‘the exercise…’ to end of line 18;
(vii) page 18 of 126: indented paragraph 1 line 2 beginning after the words ‘version of events…’ to end of that sentence at line 3;
(viii) page 19 of 126: under the heading ‘Complaint Two’ after ‘a complaint from...’ at line 8 to ‘against Ms Haskins.’ At line 9;
(ix) page 20 of 126: In the second full paragraph beginning at line 15, omit from line 18 to before “Ms MacKenzie...’ at line 20;
(x) page 21 of 126: In paragraph 1 line 5 after the words ‘at a meeting…’ to line 6 before the words ‘…and indicates that’;
(xi) Page 23 of 126: Paragraph 4 line 17 to end of page.
(b)Attachment 3 –
(i) page 50 of 126: paragraph 2 line 5 after the words ‘(‘the complainant’)…’ to end of paragraph at line 8;
a.paragraph 4 line 11 to end of paragraph at line 14;
b.paragraph 5, in first dot point at line 17 the dashed section after the words ‘had engaged in…’ to end of line 18;
(ii) page 51 of 126 paragraph 1 line 2 after the words ‘Mr Fernandez...’ to before the words ‘…In this regard’ at line 4;
(iii) page 53 of 126: whole of paragraph 9 line 33 to end of page;
(iv) page 54 of 126: whole of page save the words ‘Comment by Ms Margaret Jones’ and ‘Comments by Mr Mark Fernandez “re: Ms Janine Haskins – Complaint(s) Against the Work Place: (Mark Fernandez) Complaints 6, 7, 8 and 9:”.’;
(v) page 55 of 126: paragraph 1 line 1 to end of paragraph line 26 before the words on line 27’…Complaints 6’;
(vi) paragraph 10 line 27 after ‘throughout the exercise…’ to end of line 28;
(vii) page 56 of 126: paragraph 5 line 13 after the words ‘in relation to her encounter(s)…’ to the end of that sentence on line 13.
(c)Attachment 4 –
(i) page 59 of 126: Under the heading ‘Date Item Attachment No/Reference’:
a.for ‘19/11/2014’ omit the words between ‘verbal complaint’ and ‘about behaviour…’;
b.for ‘21/11/2014’ omit the words between ‘discussions with’ and ‘Witness and…’.
To avoid any doubt, the decision under review is otherwise confirmed.
The respondent is directed to make a copy of the CPM Report, Attachment 3 and Attachment 4 with redactions of the exempt material referred to in Order 1, and provide the copy to the applicant with 28 days of the date of this order.
Leave is granted to apply to the tribunal to seek clarification of any of these orders.
………………………………..
Senior Member Dr T Foley
REASONS FOR DECISION
Janine Haskins (the applicant) has sought review of a decision of the ACT Director of Public Prosecutions’ (the respondent) not to grant access to certain document in accordance with her request under the Freedom of Information Act 1989 (ACT) (the FOI Act) on the ground that they are exempt documents.
The applicant is entitled to seek review of that decision under section 60 of the FOI Act which is an authorising law for the purposes of section 9 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act). The review is an application for review by the ACT Civil and Administrative Tribunal pursuant to section 68 of the ACAT Act.
The Hearing
The matter was heard on 22 April 2016. The Tribunal had before it the documents provided by the respondent on which its decision was based (the T Documents); the submissions and statements of facts and contentions of the parties; witness statements; and other exhibits tendered in evidence. The applicant was represented by Mr J Moffatt of counsel and the respondent was represented by Dr D Jarvis of counsel.
Evidence for the respondent was given by Shane Drumgold. The applicant gave evidence on her own behalf.
Background
The respondent is a position created under the Director of Public Prosecutions Act 1990 (the DPP Act). The DPP Act establishes the Office of the ACT Director of Public Prosecutions (the ODPP) for the Director’s staff which Office is under the control of the respondent.
The applicant was employed by the ODPP from September 2012 to September 2015 as a Senior Witness Assistant.
In June 2014 the applicant was subject to a workplace complaint which was investigated by a member of the ODPP legal staff. Following that investigation the applicant was ‘informally counselled’ by the respondent in August 2014 and she returned to her normal duties.
In November 2014 the applicant was subject to a further workplace complaint which was investigated by a member of the ODPP legal staff. Following that investigation the applicant was ‘informally counselled’ by the respondent in February 2015 and she returned to her normal duties.
In March 2015 the applicant made a complaint about the conduct of the respondent and certain staff of the ODPP towards her. The complaint included allegations about her treatment during the ‘informal counselling’ by the respondent in August 2014.
The applicant’s complaint was referred by the respondent for investigation to personnel management consultants CPM Reviews Pty Ltd (CPM). On 7 May 2015 CPM provided a report of its inquiry to the respondent (the CPM Report).
On 12 May 2015 the applicant was advised by letter from a member of the ODPP legal staff that “the result of the enquiry is that none of the complaints outlined in your letter have been substantiated by credible evidence.” The applicant was not provided with a copy of the CPM Report.
The freedom of information application
On 22 June 2015 the applicant lodged a request under the FOI Act for two documents, (1) a fact gathering report about the complaint of November 2014 and (2) the CPM Report.
On 29 June 2015 document (1) was released to the applicant save for certain handwritten notes attached to it. Subsequently in December 2015 these notes were also released.
Also on 29 June 2015 the cover page of the CPM Report and attachments 1, 2, 5, 6 and 7 were released to the applicant.
On 2 September the applicant requested a review of the initial decision under section 59 of the FOI Act. The decision of the review was the same as the initial decision.
On 3 November 2015 the applicant applied to the Tribunal for review of that decision.
The documents to which access remains refused are:
(a)The CPM Report (save the cover page).
(b)Attachment 3 to the CPM Report labelled as ‘Comments from the 4 DPP Officials on the complaints’.
(c)Attachment 4 to the CPM Report labelled as ‘List of documents supplied to this inquiry by Mr Drumgold of the DPP’.
The applicant is aware of the description of these documents but not their content. A schedule of the documents that the respondent contends are exempt documents under the FOI Act has been filed with the Tribunal and served upon the applicant. Copies of the documents at issue have also been filed with the Tribunal and accessed only by the member hearing the matter.
The relevant law
The scope of the Tribunal’s deliberations focus on the following sections of the FOI Act.
Section 36 exempts documents that are internal working documents and whose disclosure would be contrary to the public interest. The relevant parts of the section provide as follows:
36Internal working documents
(1)Subject to this section, a document is an exempt document if its disclosure under this Act—
(a)would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Territory; and
(b)would be contrary to the public interest.
(2)In the case of a document of the kind referred to in section 8 (1), the matter referred to in subsection (1) (a) of this section does not include matter that is used or to be used for the purpose of the making of decisions or recommendations referred to in section 8 (1).
(3)This section does not apply to a document only because of purely factual material contained in the document.
Section 40 exempts documents the disclosure of which would or could reasonably be expected to affect the operation of an agency. The section provides as follows:
40Documents concerning certain operations of agencies
(1)Subject to subsection (2), a document is an exempt document if its disclosure under this Act would, or could reasonably be expected to—
(a)prejudice the effectiveness of procedures or methods for the conduct of tests, examinations or audits by an agency; or
(b)prejudice the attainment of the objects of particular tests, examinations or audits conducted or to be conducted by an agency; or
(c)have a substantial adverse effect on the management or assessment of personnel by the Territory or by an agency; or
(d)have a substantial adverse effect on the proper and efficient conduct of the operations of an agency; or
(e)have a substantial adverse effect on the conduct by or on behalf of the Territory or an agency of industrial relations.
(2)This section does not apply to a document the disclosure of matter in which under this Act would, on balance, be in the public interest.
Section 41 exempts documents which would involve the unreasonable disclosure of personal information about any person. The section provides as follows:
41Documents affecting personal privacy
(1)A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).
(2)Subject to subsection (3), subsection (1) does not apply to a request by a person for access to a document only because of the inclusion in the document of matter relating to that person.
(3)Where—
(a)a request is made to an agency or Minister for access to a document of the agency, or an official document of the Minister, that contains information of a medical or psychiatric nature concerning the person making the request; and
(b)it appears to the principal officer of the agency, or to the Minister, as the case may be, that the disclosure of the information to that person might be prejudicial to the physical or mental health or wellbeing of that person;
the principal officer or Minister may direct that access to the document, so far as it contains that information, that would otherwise be given to that person is not to be given to that person but is to be given instead to a doctor to be nominated by that person.
Section 21 provides for the possibility of deletion of otherwise exempt material so as to render documents non-exempt. The section provides as follows:
21Deletion of exempt matter
(1)Where—
(a)a decision is made not to grant a request for access to a document on the ground that it is an exempt document; and
(b)it is possible for the agency or Minister to make a copy of the document with such deletions that the copy would not be an exempt document and would not, because of the deletions, be misleading; and
(c)it is reasonably practicable for the agency or Minister, having regard to the nature and extent of the work involved in deciding on and making those deletions and the resources available for that work, to make such a copy;
the agency or Minister shall, unless it is apparent from the request or as a result of consultation by the agency or Minister with the applicant, that the applicant would not wish to have access to such a copy, make, and grant access to, such a copy.
(2)Where access is granted to a copy of a document in accordance with subsection (1)—
(a)the applicant shall be informed—
(i)that it is such a copy; and
(ii)of the provision of this Act by virtue of which any matter deleted is exempt matter; and
(b)section 25 does not apply to the decision that the applicant is not entitled to access to the whole of the document unless the applicant requests the agency or Minister to give to the applicant a notice in writing in accordance with that section.
The respondent’s contentions
The respondent noted that as a preliminary issue disclosure of material under the FOI Act is to be taken as disclosure to the public at large not just the applicant.[1] This is consistent with the ACT Government Online FOI Publication Policy (the Online Policy) that imposes an obligation, subject to exemptions, on agencies releasing documents under the FOI Act to also release the material online on the Open Government Website. The respondent says any decision to grant access to the disputed material would constitute disclosure to the public at large.[2] This is so even though a determination had been made by the ODPP not to release online the balance of the documents already provided to the applicant. Prior to their release the respondent had determined the ‘online release status’ of such documents as being non-disclosable relying on the ‘personal privacy’ exemption of the Online Policy.[3] Nonetheless, the respondent says if the documents remaining at issue are released to the applicant she could republish these herself. The respondent says the Tribunal has no power to prevent her from doing so.
Claims for exemption
A. Section 36 exemption – internal working documents
[1] News Corporation v National Companies & Securities Commission (1984) 57 ALR 550, 559; Searle Australia Pty Ltd v Public Interest Advocacy Centre & Anor (1992) 108 ALR 163, 179
[2] Respondent’s facts and contentions filed 22 February 2016 at [36]
[3] T117-118
The respondent contends that a reading of the CPM Report (and the attachments at issue) shows the report contains recommendations and opinions obtained by the ODPP.[4] The respondent further contends that the content of the Report involves an evaluation of factual matters by the author not simply the recording of factual matters.[5] The contents of the report therefore has the necessary elements of evaluation – namely the character of consideration, followed by the formation of a view.[6]
[4] Section 36(1)(a)
[5] Section 36(3)
[6] Fogarty and Chief Executive Officer, Cultural Facilities Corporations [2005] ACTAAT 14 at [14] refers to a process of ‘weighing up or evaluation of competing arguments or considerations…’
The respondent says these evaluations, recommendations and opinions were obtained for the purpose of the deliberative process of the ODPP on a personnel management issue, namely the 2015 allegations made by the applicant about the conduct of the respondent and certain staff of the ODPP towards her and that this process involved the functions of the agency.[7]
[7] Respondent’s facts and contentions filed 22 February 2016 at [37-38]; Zacek v Australian Postal Corporation [2002] AATA 473, [62-63]
The respondent further contends that release of such material would be contrary to the public interest.[8] In this regard the respondent says the public interest consideration arises with respect to two categories of material – material of a trivial nature and material of a non-trivial nature.
[8] Section 36(1)(b)
The respondent says in relation to the some of the personal matters raised that they are of such a trivial nature that it would be contrary to the public interest to disclose them because their very triviality would produce potential prejudice to the reputation of the agency. Publicly disclosing trivial material of this nature would bring the ODPP into disrepute and potentially ridicule, adversely affecting its highly critical function to the administration of justice.[9]
[9] Respondent’s facts and contentions filed 22 February 2016 at [39]; Colakovski v ATC (1991) 100 ALR 111, 123
The respondent says the material in the CPM Report which is of a non-trivial nature discloses inappropriate conduct relating to the conduct of the applicant herself which led to her being informally counselled by the DPP in August 2014. As the applicant is no longer employed in the ODPP disclosure of this information serves no public purpose. The respondent further contends that disclosure of the inappropriate conduct of the applicant on two occasions in 2014 would itself tend to undermine confidence in the administration of justice, and thereby tend to diminish the standing of the agency and that this is not in the public interest.[10]
B. Section 40 exemption – effect on operations of agency
[10] Respondent’s facts and contentions filed 22 February 2016 at [41]
The respondent contends that disclosure of the CPM Report (and the attachments at issue) could reasonably be expected to have a substantial adverse effect on the operation of the ODPP.[11] The respondent further contends that disclosure of material in those documents relating to the proper and efficient conduct of the agency is not in the public interest.[12]
[11] Section 40(1)(d)
[12] Respondent’s facts and contentions filed 22 February 2016 at [45]; section 40(2) of the FOI Act
The respondent contends this is the case because if such working documents were subject to disclosure it would inhibit the preparation of future material intended for internal review and the ODPP would need to expend resources unnecessarily on producing more detailed similar documents suitable for publication in the future.[13]
[13] Respondent’s facts and contentions filed 22 February 2016 at [45]; Thornton v Director of Public Prosecutions [2009] ACAT 40 at [26], [33]; Schlegel v Department of Transport and Regional Services [2002] AATA 1184 at [10]
The respondent further contends that the identification of persons who have given information, and the disclosure of the record or transcript of that information itself, would tend to adversely affect the review of internal staff conduct in the future because it would be likely to inhibit the free giving of such information by its staff.[14]
[14] Respondent’s facts and contentions filed 22 February 2016 at [46]; Williams v Dept of Industry and Investment [2012] NSWADT 192 at [4] and [78-84]; Gapsa v Department of Transport and Main Roads [2013] QICmr 25 at [1] and [34]
The respondent says the CPM Report, and in particular attachments 3 and 4, are not documents intended for general publication but for internal use only. Their ‘summary and incomplete’ nature renders them liable to present an incomplete or misleading picture if published.[15]
C. Section 41 exemption – personal privacy
[15] Respondent’s facts and contentions filed 22 February 2016 at [48]; Thornton v DPP [2009] ACAT 40 at [26]
The respondent says the CPM Report (and the attachments at issue) contain names and personal details (sex, position, phone numbers, and emails) of the DPP, ODPP staff and members of the public. These details are personal information about those persons for the purposes of section 41.
The respondent contends that disclosure of that personal information would be unreasonable as it would expose those persons to the risk of unsolicited contact from members of the public and that this provides grounds for non-disclosure. The respondent says this is particularly so given the crucial role the ODPP plays in the administration of criminal justice.[16]
[16] Respondent’s facts and contentions filed 22 February 2016 at [51-52]; Thornton v DPP [2009] ACAT 40 at [38]
The respondent further contends that the recounting of events expressed by persons recorded in the CPM Report is also their personal information.[17] Disclosure of the document containing their candid recounting would involve the unreasonable disclosure of this personal information. This is so in the respondent’s submission even though the recounting of events may also be considered the personal information of the applicant because the information is so intertwined with her own knowledge as to be inseparable.[18]
Section 21 – deletion of exempt material
[17] Respondent’s facts and contentions filed 22 February 2016 at [54]; Collins v Department of Corrective Services [2010] NSWADT 39, [18-19], [59]
[18] Gapsa v Department of Transport and Main Roads [2013] QICmr 25 at [27-28]
The respondent contends it is not reasonably practicable to release the CPM Report and attachments even with deletions such as could render them non-exempt pursuant to section 21(1)(b). The respondent says the extent of the required redaction to those documents would render them unintelligible and of little utility to the applicant.[19] Conversely, the respondent contends even redaction to the extent required could still allow members of the public to reconstruct personal information protected under section 41, and information otherwise exempt under sections 36 and 40.
The applicant’s contentions
[19] Respondent’s facts and contentions filed 22 February 2016 at [60-61]; Waterford v Treasurer of Cth of Australia [1985] AATA 114 [66]; Parnell & Dreyfus v Attorney-General’s Department [2014] AlCmr 71 [43], [76-77]
The applicant has not seen the documents at issue – the CPM Report (save its first page), Attachment 3 and Attachment 4. Therefore her contentions can only be based on assumptions as to what the documents contain given their general description in the respondent’s FOI Request Schedule.[20] The applicant can also surmise what the CPM Report covered from the respondent’s terms of reference provided to CPM for its preparation which are known to her.[21]
Claims for exemption
A. Section 36 exemption – internal working documents
[20] T117-118
[21] T142
The applicant contends the CPM Report is not an internal working document of the respondent. The applicant’s counsel in oral submissions accepted the report was prepared for the respondent’s ‘thinking processes’ with respect to the applicant’s complaint but contended this went beyond its functions as an agency, as detailed in section 4 of the DPP Act. Nonetheless, it is settled law that “the deliberative processes involved in the functions of an agency” is to be interpreted as meaning the ‘thinking processes’ of that agency and that these processes extend to processes for incidental functions, such as the management of staff.[22]
[22] Zacek v APC [2002] AATA 473 at [62-63]
The applicant further contends that the material in the report cannot be construed as ‘opinion, advice or recommendation’ as its author was requested in its terms of reference to only “investigate and report if there is any evidence” on a range of matters. The applicant contends in this regard that a distinction needs to be drawn between matters of opinion and facts on which such opinions are based.[23] In the applicant’s submission the CPM Report must of logical necessity contain factual material relating to the investigation of whether certain evidence existed but need not, and does not, contain the giving of advice or opinion or the making of recommendations since those were beyond its terms of reference.[24]
[23] Applicant’s facts and contentions filed 15 March 2016 at [17-21]; Fogarty and Chief Executive Officer, Cultural Facilities Corporations [2005] ACTAAT 14 at [13]
[24] Applicant’s facts and contentions filed 15 March 2016 at [18-19]
The applicant further contends that section 36(1)(a) does not apply to Attachment 3 because the document contains notes of interviews conducted under the terms of reference, and these terms only related to a factual investigation.[25]
[25] Applicant’s facts and contentions filed 15 March 2016 (corrected from the incorrect description as ‘attachment 4’) at [21]
The applicant further contends that section 36(1)(a) does not apply to Attachment 4 because the document comprises only factual material, namely a list of documents provided to Mr Lawless, the author of the report, and these are not in the nature of opinion, advice or recommendation.[26]
[26] Applicant’s facts and contentions filed 15 March 2016 (corrected from the incorrect description as ‘attachment 3’) at [20]
The applicant alternatively contends that even if the documents at issue come within the scope of section 36(1)(a) there is a public interest in the documents being disclosed. In the applicant’s view there is public interest in the proper conduct of the respondent and its employees, in ensuring complaints about the conduct of the respondent’s employees are conducted properly and fairly, and in the applicant herself having access to documents showing that her complaints were investigated properly and fairly.[27]
[27] Applicant’s facts and contentions filed 15 March 2016 at [22] citing Pemberton v University of Queensland [1994] QlCmr 32 at [164]
The applicant contends that the letter of 12 May 2015 to the applicant from Mr Drumgold of the OPPP saying that “none of the complaints outlined in your letter have been substantiated by credible evidence” and that as a consequence he “propose[d] taking no further action” indicates the content of the Report.[28] Assuming this is what the CPM Report says – that there is no credible evidence for the complaints – the applicant contends that the respondent cannot maintain that its disclosure would damage its reputation or have the effect of undermining confidence in the administration of justice.[29]
[28] Statement of Shane Drumgold 22 February 2016 annexure SD1
[29] Applicant’s facts and contentions filed 15 March 2016 at [24]
The applicant further contends the respondent has not met the onus of establishing that disclosure of the exempt documents would be contrary to the public interest. There is no evidence to suggest their release would ‘cast a shadow’ over its reputation, undermining confidence in the administration of justice, or would impact adversely on its reputation.[30] On the contrary, the report and the attachments would suggest on their face that the applicant’s complaints have been investigated in a proper and professional way. The facts of the complaints are already in the public arena.[31]
[30] Applicant’s facts and contentions filed 15 March 2016 at [23]
[31] In the ‘Fact Gathering Exercise Report’ T29-31
The applicant contends there is no evidence the disclosure of the documents would inhibit the giving of information in future staff conduct matters. The applicant says the respondent has failed to lay the necessary factual basis for such a claim and that evidence of a non-specific kind does not suffice.[32]
[32] Applicant’s facts and contentions filed 15 March 2016 at [25-26] citing Pemberton v University of Queensland [1994] QlCmr 32 at [134] and Zacek v APC [2002] AATA 473 at [77]
The applicant further contends that even if the release of the documents would inhibit frankness and candour by employees of the ODPP in future investigations, there is no evidence that the public interest would suffer if their disclosure meant future information is given only under a ‘cloak of confidentiality’. There is no evidence that information given in that form is necessarily more or less probative.[33]
[33] Applicant’s facts and contentions filed 15 March 2016 at [27]; though Pemberton v University of Queensland [1994] QlCmr 32 at [137] sees such information as ‘not particularly probative’
The applicant further contends the assertion of the respondent that the CPM Report is ‘summary and incomplete’ in nature cannot be a basis for refusing disclosure given that the report was apparently seen as adequate to form the respondent’s decision to take no further action in respect of the applicant’s complaints.[34] The applicant contends that the suggestion that the Report and Attachments 3 and 4 are of a ‘summary and incomplete nature’ is unfounded in comparison with factual situation in Thornton v DPP.[35]
B. Section 40 exemption – effect on operations of agency
[34] Applicant’s facts and contentions filed 15 March 2016 at [28]
[35] Thornton v DPP [2009] ACAT 40 at [26] and [32-34]
The applicant contends that the exception relied upon by the respondent under section 40, namely that disclosure of the CPM Report and attachments 3 and 4 could reasonably be expected to “have a substantial adverse effect on the proper and efficient conduct of the operation” of the ODPP is unfounded. The applicant contends this exception does not apply because there remains an overriding public interest in disclosure given the applicant at present (and by extension, the community at large) does not know or understand the reasoning behind the respondent’s decision communicated via Mr Drumgold that he “propose[d] taking no further action” on her complaints.[36]
C. Section 41 exemption – personal privacy
[36] Exhibit R1, statement of Shane Drumgold 22 February 2016, annexure SD1
The applicant concedes that to the extent the exempt documents disclose the names and contact details of any person they do involve the ‘disclosure of personal information about any person’.[37]
[37] Applicant’s facts and contentions filed 15 March 2016 at [30]; section 41(1)
The applicant contends that the ‘recounting of events’ by certain of those persons in the CPM Report is not their ‘personal information’ as it is information shared by the applicant.[38]
[38] Applicant’s facts and contentions filed 15 March 2016 at [31]
The applicant contends the disclosure of such personal information as is revealed in the exempt documents is not unreasonable because the identities of witnesses to the conduct the subject of the applicant’s complaints are already known to her; there is no evidence that the information given by such persons was given in confidence; and there is no evidence that they object to its disclosure. The applicant further contends that she has next to no information about the results of the investigation (as is clear from her evidence[39]) which distinguishes her situation from factual situations in which that information is essentially known to an applicant.[40]
[39] Exhibit A1 Statement of Janine Haskins 15 March 2016 at [21]
[40] Gapsa v Department of Transport and Main Roads [2013] QICmr 25 at [27-28]
The applicant’s overall contention is that there is a public interest in transparency in the conduct of the investigation by the ODPP and that the terms of reference for that investigation shows that it was a factual investigation and that the CPM Report and the two attachments withheld simply record the factual findings of that investigation.[41]
Section 21 – deletion of exempt material
[41] Applicant’s facts and contentions filed 15 March 2016 at [35] citing GC and Australian Federal Police [2015] AlCmr 44 at [25]
The applicant contended in oral submissions that if the disclosure of the personal information of certain persons contained in the CPM Report and Attachments 3 and 4 is seen as exempt under sections 36, 40 and 41 that information can be protected by appropriate redaction so as to render them non-exempt pursuant to section 21(1)(b).
Consideration of the Issues
Section 36 exemption - internal working documents
The salient issue for consideration under section 36 is that:
(a)disclosure would reveal internal working documents of the respondent; and
(b)given the respondent’s role in the administration of criminal justice it is not in the public interest that such documents be disclosed to the public.
The CPM Report forms part of what is described as the respondent’s ‘evidence gathering exercise’ in response to the applicant’s complaints. Attachments 3 and 4 form part of that inquiry exercise. The terms of reference for the investigation makes clear in four of five of its terms that CPM’s task was to “investigate and report if there is any evidence...” in a number of situations. The fifth term requests CPM to ‘provide an opinion’, but only as to whether additional terms of reference are required. No such opinion was provided.
The respondent’s subsequent letter to the applicant of 12 May 2015 that ‘no further action’ was to be taken on her complaints makes clear that CPM did ‘investigate and report’ as required, such that the respondent had the necessary evidence it required and could then advise the applicant that “none of the complaints outlined in your letter has been substantiated by credible evidence.”[42]
[42] Exhibit R1 Statement of Shane Drumgold 22 February 2016, annexure SD1
In the process of ‘investigating and reporting’ the CPM Report contains material that has the character of recommendations and opinions, and these are provided to and obtained by the respondent. The character of the report therefore has the elements of consideration followed by the formation of a view. The Tribunal adopts the approach in Zacek [at 62-63] that the respondent’s ‘deliberative processes’ cover both the investigations and deliberations upon complaints such as the applicant’s. The recommendations and opinions and the evaluation in the CPM Report were obtained for the purposes of its deliberative processes on a personnel management issue, namely the applicant’s complaints, and these are legitimately within its ‘thinking processes’.
As such the first head of section 36(1) is satisfied as regards the CPM Report and by extension Attachments 3 and 4.
The remaining question is whether the disclosure of the material in that Report and the attachments would be ‘contrary to the public interest’.
The respondent has suggested the Tribunal address the public interest question by considering the material as falling into two categories - material of a trivial nature and material of a non-trivial nature. A reading of the Report bears out that it contains both. Regardless of this categorisation the disclosure of both categories is suggested to be against the public interest. Disclosure of the trivial material is said to be contrary to the public interest because it may hold the respondent out to disrepute and ridicule. Colakovski at [123] is cited to suggest that where disclosure may cause ‘embarrassment or hardship’ to ODPP officers then this is necessarily contrary to the public interest. Nonetheless any disclosure of such trivial material would reveal that the ODPP workplace is no different from the cut and thrust of any other workplace and that the ODPP has been sufficiently robust to accommodate this.
Disclosure of the non-trivial material was said to be contrary to the public interest because it relates to inappropriate conduct of the applicant, and that as she is no longer employed by the respondent disclosure of her conduct serves no public purpose and is not in the public interest. Additionally its disclosure is said to be likely to tend to diminish the public standing of the agency as a consequence. The ODPP is not a secret agency. It operates as an arm of the criminal justice system in an open judicial arena. The conduct of the DPP and his officers is regularly subject to scrutiny and attention, and at times robust criticism. It is well used to such legitimate scrutiny.
There is a public interest in the proper conduct of ODPP personnel and of ensuring that complaints about their conduct are properly and fairly considered. Whether disclosure of information given to such inquiry by other employees was given in confidence was not a matter of evidence. If those persons who gave information assumed it was being given in confidence there is no evidence that the absence of such protection in the future will be likely to inhibit their frankness. Pemberton at [137] is sound authority for the proposition that the worth of such information is not whether it is confidential or not, but whether it “appears to be balanced, well-reasoned and supported by particulars.” On a close reading of the CPM Report and Attachments 3 and 4 all of the information given by the respondent’s employees appears to have that flavour or character of balance and fair mindedness. Disclosure of information of a like character in future need not lack similar frankness and candour.
Disclosure of information showing allegations of improper conduct by the applicant and the method of its investigation may draw scrutiny and attention to what would normally be internal documents of the ODPP and provoke potentially robust criticism as a result. But the Tribunal finds that such attention and criticism is not contrary to the public interest given the agency’s wider public functions.
Section 40 exemption - effect on operation of an agency
The salient issue for consideration under section 40 is that:
(a)disclosure would have an adverse effect on the respondent’s operations; and
(b) such disclosure would not be in the public interest.
The disclosure of the CPM Report and Attachments 3 and 4 will clearly have an effect on the proper and efficient conduct of the ODPP in that it is likely to affect the agency’s practices in future internal reviews. The question is whether that effect is likely to be ‘substantial’ and ‘adverse’.
The respondent submitted relying on Zacek at [77] that disclosure of statements provided by staff members in the CPM Report would create a reluctance on the part of staff in future ‘fact gathering exercises’ relating to complaints if they knew their disclosures could be made public. A reading of the disputed documents makes clear that the quality of inquiry undertaken by the ODPP into the applicant’s complaints is in many respects revealed as exemplary. That investigation does not have the paucity of investigation as in the cases referred to for instance in Zacek. In this case any scrutiny will show the applicant’s fellow employees were frank but scrupulously fair to the applicant in what they said. Indeed there is evidence they viewed her with respect and affection.
Given this, it is difficult to see how disclosure would inhibit the ODPP’s capacity in the future to conduct similar investigations. The assumption is that such inquiries require the obtaining of “material [of a kind that] can only be obtained, or can only reasonably be obtained, by confidential communication.”[43] There is no evidence that this was the status – evidence given in confidence – of what was provided to the CPM investigation. Even if it were the case, there is no evidence that if the [assumed] cloak of confidentiality was removed in the future that frankness and fairness would disappear. The Tribunal finds that disclosure would not have a substantially adverse effect on the operation of the ODPP.
[43] Williams v Department of Industry and Investment [2012] NSWADT 192 at [81] citing Macquarie University v Howell (No 2) [2009] NSWADTAP 19 at [10]
The second part of the question for consideration with respect to the section 40 exemption is whether disclosure of the information contained in the CPM Report and Attachments 3 and 4 would, on balance, be contrary to the public interest. It is also useful to cover this aspect.
The respondent has argued[44] that the substance of the outcome of the inquiry into her complaints as conducted by CPM has already been provided to the applicant and that as per Gapsa at [20-21] that is sufficient. But the applicant was only told in the letter to her of 12 May 2015 that “none of the complaints outlined in your letter have been substantiated by credible evidence.” This hardly covers the substance of a report of some 126 pages.
[44] Respondent’s facts and contentions filed 22 February 2016 at [58]
The Tribunal finds that it would on balance be in the public interest to disclose material in the CPM Report and the two attachments in dispute that would allow the applicant and the public at large to understand the reasoning behind the respondent’s decision on a personnel issue. Further, the Tribunal finds it would be in the public interest to have information disclosed that allows a public determination to be made that the respondent has handled internal complaints openly and fairly.
Section 41 exemption - personal privacy
The salient issue for consideration under section 41 is that:
(a)disclosure would involve the disclosure of personal information about any person; and
(b) disclosure of that information would be unreasonable.
The Tribunal finds the CPM Report and Attachments 3 and 4 reveal information about certain persons that includes their personal details – their names, positions, sex, phone numbers and contacts – and this is clearly personal information.
The documents also reveal their personal recounting of events. However this is not information about investigations of their conduct or the conduct of other named officers as was the case in Collins at [18-19] but rather information about the applicant’s conduct. The Tribunal finds that while this is their personal information it is also information shared with the applicant.
The further question is whether disclosure of this personal information is unreasonable.
The personal information in the form of personal details is already known to the applicant. The personal information in the form of other persons’ recounting of events is not known to the applicant though the events that information recounts clearly are. Given that their recounting relates to her complaints the Tribunal finds it is not unreasonable to disclose that information to her. However, this is not information known to the public and it would be unreasonable to allow release of that information in its current form since any disclosure constitutes disclosure to the public at large as per News Corporation v National Companies & Securities Commission (1984) 57 ALR 550, 559 and Searle Australia Pty Ltd v Public Interest Advocacy Centre & Anor (1992) 108 ALR 163, 179.
This raises the question whether a redacted form of the documents would afford the necessary protection to that personal information. Section 21 provides that where a decision is made not to release a document on the grounds that it is an exempt document consideration needs to be given as to whether a copy of the document with deletions could render the document non-exempt. Section 21 imposes the additional requirement that such deletions do not render the document misleading and that it is reasonably practicable for the respondent to make such a copy.
The respondent says the extent of the required redaction to those documents would render them unintelligible and of little utility to the applicant. Conversely, the respondent contends even redaction to the extent required could still allow members of the public to reconstruct exempt or personal information under sections 36, 40 and 41. The applicant contends that any such personal information can be protected by redaction so as to render it non-exempt.
Redaction would require deletion of identifying information – names, positions, sex, phone numbers and contacts – so as to protect personal information. It would also require deletions to be made to a person’s rendition of events so as to protect recollections that are that person’s personal information. The effect would be that where the disclosure of material would normally constitute the unreasonable disclosure of personal information so as to render them exempt under section 41, redaction of relevant sections as directed renders them non-exempt but not misleading under section 21(1)(b).
The Tribunal finds appropriate redaction can render the documents non-exempt under section 21. The necessary deletions are detailed in paragraph 82 below and a copy of the documents in this form is to be released to the applicant.
Conclusion
The Tribunal has determined that the CPM Report and Attachments 3 and 4 are not exempt under either section 36 or section 40. The Tribunal has determined that there is material in the documents in the form of personal information exempt under section 41. However the Tribunal is satisfied that an appropriately redacted copy of the documents renders them non-exempt under section 21, without making them misleading or unintelligible.
Decision
The Tribunal sets aside the decision under review insofar as it relates to the CPM Report, Attachment 3 and Attachment 4 and in substitution decides that the only parts of those documents that are exempt from disclosure under the FOI Act are as follows:
(a)CPM Report –
(i)page 3 of 126: the email address in No. 3 of the ‘following actions’ list;
(ii)page 4 of 126: the whole of the ‘possible witness’ list;
(iii)page 11 of 126: from ‘Ms Jones’ response’ to end of page;
(iv)page 12 of 126: paragraph 1 line 1 to end of paragraph at line 4;
(v)page 16 of 126; line 13 after ‘Background’ to end of the page;
(vi)page 17 of 126: paragraph 1 line 1 to end of paragraph 2 at line 6; and paragraph 7 line 16 after ‘the exercise…’ to end of line 18;
(vii)page 18 of 126: indented paragraph 1 line 2 beginning after the words ‘version of events…’ to end of that sentence at line 3;
(viii)page 19 of 126: under the heading ‘Complaint Two’ after ‘a complaint from...’ at line 8 to ‘against Ms Haskins.’ At line 9;
(ix)page 20 of 126: In the second full paragraph beginning at line 15, omit from line 18 to before “Ms MacKenzie...’ at line 20;
(x)page 21 of 126: In paragraph 1 line 5 after the words ‘at a meeting…’ to line 6 before the words ‘…and indicates that’;
(xi)Page 23 of 126: Paragraph 4 line 17 to end of page.
(b)Attachment 3 –
(i)page 50 of 126: paragraph 2 line 5 after the words ‘(‘the complainant’)…’ to end of paragraph at line 8;
a. paragraph 4 line 11 to end of paragraph at line 14;
b. paragraph 5, in first dot point at line 17 the dashed section after the words ‘had engaged in…’ to end of line 18;
(ii)page 51 of 126 paragraph 1 line 2 after the words ‘Mr Fernandez...’ to before the words ‘…In this regard’ at line 4;
(iii)page 53 of 126: whole of paragraph 9 line 33 to end of page;
(iv)page 54 of 126: whole of page save the words ‘Comment by Ms Margaret Jones’ and ‘Comments by Mr Mark Fernandez “re: Ms Janine Haskins – Complaint(s) Against the Work Place: (Mark Fernandez) Complaints 6, 7, 8 and 9:”.’;
(v)page 55 of 126: paragraph 1 line 1 to end of paragraph line 26 before the words on line 27’…Complaints 6’;
(vi)paragraph 10 line 27 after ‘throughout the exercise…’ to end of line 28;
(vii)page 56 of 126: paragraph 5 line 13 after the words ‘in relation to her encounter(s)…’ to the end of that sentence on line 13.
(c)Attachment 4 –
(i) page 59 of 126: Under the heading ‘Date Item Attachment No/Reference’:
a.for ‘19/11/2014’ omit the words between ‘verbal complaint’ and ‘about behaviour…’;
b.for ‘21/11/2014’ omit the words between ‘discussions with’ and ‘Witness and…’.
In order to implement this decision the respondent shall be directed to prepare a copy of these documents, with the necessary redactions, and provide such documents to the applicant within 28 days of this decision.
Leave will be granted to the parties to apply to the tribunal if they seek clarification of any of these orders.
………………………………..
Senior Member Dr T Foley
HEARING DETAILS
FILE NUMBER: | AT 78/2015 |
PARTIES, APPLICANT: | Janine Haskins |
PARTIES, RESPONDENT: | ACT Director of Public Prosecutions |
COUNSEL APPEARING, APPLICANT | Mr J Moffat |
COUNSEL APPEARING, RESPONDENT | Dr D Jarvis |
SOLICITORS FOR APPLICANT | Kellie Johnston, Aulich Civil Law |
SOLICITORS FOR RESPONDENT | ACT Government Solicitor |
TRIBUNAL MEMBERS: | Senior Member Dr Foley |
DATES OF HEARING: | 22 April 2016 |
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