Hattch v Dubbo City Council

[2007] NSWADT 4

CITATION:	Hattch v Dubbo City Council [2007] NSWADT 4
DIVISION:	General Division
PARTIES:	APPLICANT Jennifer Robin Hattch RESPONDENT Dubbo City Council
FILE NUMBER:	063299
HEARING DATES:	18/12/2006
SUBMISSIONS CLOSED:	18 December 2006
DATE OF DECISION:	9 January 2007
CATCHWORDS:	access to documents - operations of agencies - Freedom of Information Act - access to documents - operations of agencies
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1982 (Cth) Freedom of Information Act 1989
CASES CITED:	Cianfrano v Director General, NSW Treasury [2005] NSWADT 7 Director General, Department of Education & Training v Mullet & anor [2002] NSWADTAP 13 Gales Holdings Pty Ltd v Tweed Shire Council [2005] NSWADT 168 McGuinness v Bathurst Regional Council [2005] NSWADT 152 Re James and Australian National University (1984) 6 ALD 687 Re Marr and Telstra Corporation Ltd (AAT Matter No P93/337, 29 October 1993) Re Thies and Department of Aviation (1986) 9 ALD 454 Re Wilson and Australian Postal Corporation (AAT Matter No N93/800, 11 July 1994) Toomer and Department of Agriculture, Fisheries and Forestry [2003] AATA 1301
REPRESENTATION:	APPLICANT In person RESPONDENT N Wilson, solicitor
ORDERS:	The decision under review is affirmed

1 This matter involves an application by Jennifer Hattch to review a decision of a delegate of Dubbo City Council (‘the Council’) refusing a request made under the Freedom of Information Act 1989 (‘the FOI Act’) to provide copies of certain documents.

Background

2 By application dated 7 February 2006, Ms Hattch applied for access to documents concerning:

“3 grievances lodged with Dubbo City Council ie Greenhalgh & Christmas / Fiona Ross / Ray Tickle. I request all letters/memos/file notes/reports & emails”.

3 On 8 February 2006, Ms Hattch was permitted to inspect all the relevant documents, and requested copies of documents that she identified with yellow “post it” notes. On 28 February 2006, Grahame Marchant, the Director of Administrative and Financial Services for the Council and its FOI Officer, decided to provide copies of some documents but refused copies of others on the ground that they were exempt documents under the FOI Act. By letter dated 22 March 2006, Ms Hattch requested an internal review of this decision. On 3 April 2006, the Council’s General Manager confirmed the decision. By letter dated 25 April 2006, Ms Hattch lodged a complaint with the NSW Ombudsman. After investigating the complaint, the Ombudsman suggested that the Council should redetermine its decision.

4 On 25 July 2006, Mr Marchant redetermined the decision and provided Ms Hattch with copies of additional documents. However, he determined that other documents comprising (1) “Records of meetings with subjects of the three grievances”, and (2) “Memos to the subject of the three grievances advising them of the outcome of the investigations” were exempt documents pursuant to cl 16(a)(iii) of Sch 1 of the FOI Act:

“My reasons for this redetermination are that I consider that a record of what was said by individuals during an interview regarding a grievance lodged against them should not be made public. I consider that the persons involved in these interviews would have a reasonable expectation that the record of the interview would remain confidential to Council. Without this level of confidentiality, the interview process and outcomes may be compromised and therefore have an adverse effect on the management of the Council’s personnel.”

5 On 10 August 2006, the Tribunal received Ms Hattch’s application for a review of this decision. Ms Hattch said she believed the real reason for the Council not providing copies of the other documents was that Mr Marchant “would lose control of the information as he had no guarantee that I would keep them confidential and he didn’t want that to happen”. Moreover, she contended “the documents did not contain anything of a personal nature other than people’s names”, and considered refusal of the documents was a “further example of the stonewalling tactics employed by management” who were making her “attempts to reach a reasonable resolution of my original grievances as difficult a process as possible”.

The Relevant Legislation

6 Section 5 of the FOI Act states that the objects of the Act include extending, as far as possible, the rights of the public “to obtain access to information held by the Government”. Pursuant to s 16(1), “[a] person has a legally enforceable right to be given access to an agency’s documents”. However, s 25(1)(a) permits an agency to refuse access to a document if it is an “exempt document”, the onus being on the agency to establish this. Section 25(4) provides that an agency shall not refuse access to an exempt document if it is practicable to give access to a copy of the document from which the exempt matter has been deleted and it appears to the agency that the FOI applicant would wish to be given access to such a copy.

7 Section 6(1) defines ‘agency’ as including a local authority, and ‘exempt document’ as including a document referred to in any one or more of the provisions of Sch 1. The exempt documents in Sch 1 include those specified in cl 16. Clause 16 provides relevantly:

“A document is an exempt document if it contains matter the disclosure of which:

(a) could reasonably be expected:

(i) ...

(ii) ...

(iii) to have a substantial adverse effect on the management or assessment by an agency of the agency’s personnel, or

(iv) ...

(v) ... , and

(b) would, on balance, be contrary to the public interest.”

8 Section 53 provides that a person who is aggrieved by a determination made by an agency may apply to the Tribunal for a review of that determination.

The Council’s Evidence and Submissions

9 Mr Marchant gave evidence at the hearing. He has been employed with the Council for many years and has been Director of Administrative and Financial Services, including responsibility for FOI and human resources, since 1993. Mr Marchant said the documents in issue are records of interview and related documents that are part of the grievance process initiated by Ms Hattch. He believes they should be confidential. If copies were provided, they would be freely available to the public and this would be detrimental both to the Council’s future handling of grievances, and to the manager/employee relationship if those involved are aware that information provided could become public. Staff would be reluctant to provide the full facts or express their opinions on a matter if a record was made and that record could become public.

10 Mr Marchant referred to the Council’s “Grievance Resolution Management Policy” which states: “A grievance or dispute lodged under this policy by an employee will be dealt with in a confidential manner.”

11 In cross-examination, Mr Marchant agreed that Ms Hattch has never said that she “would go public”. He said that when, at first, Ms Hattch requested access to the Council’s file on the grievances, she was given access to the whole file and could have made her own notes on its contents. She was not, however, provided with copies of certain documents in the file. Mr Marchant said Ms Hattch could still seek access to and inspect the whole file should she wish to do so.

12 In its written submissions dated 10 November 2006, the Council stated:

“12. More particularly, the subject documents relate to employment matters directly between Dubbo City Council and individual employees concerned. Council submits that disclosure would not be in the public interest as the documents in question relate specifically to personal matters rather than a concern common to the public at large.

13. It is the Council’s view that these matters may have a substantial adverse effect on the management or assessment of Council’s personnel. Disclosure of the documents would almost certainly prejudice the effectiveness of Council’s procedures for preventing, detecting, investigating or otherwise dealing with these sorts of matters on the basis that individuals have given statements which must be presumed to be in confidence.”

13 Mr Wilson, representing the Council, said the Council manages a large number of employees to whom it owes obligations under various legislation. He referred to the documents claimed to be exempt, pointing out references in the documents to the Council’s “Grievance Resolution Management Policy” and to the confidentiality of the grievance resolution process. Mr Wilson noted Mr Marchant’s evidence that provision of copies of the documents claimed to be exempt would impact detrimentally on the relationship between staff and management because staff would be reluctant to provide information and express opinions if they knew these could be made public.

14 Mr Wilson referred to the Administrative Appeals Tribunal (‘AAT’) decision in Re Wilson and Australian Postal Corporation (AAT Matter No N93/800, 11 July 1994) (‘Wilson’), a case involving similar facts and the equivalent provision in the Commonwealth Freedom of Information Act 1982, where Deputy President McMahon found that statements by employees concerned with an incident at the workplace, which the employer claimed to be confidential, were exempt. Mr Wilson submitted that the evidence of the respondent in that case was substantially similar to Mr Marchant’s.

Ms Hattch’s Evidence and Submissions

15 Ms Hattch said she had lodged grievances against several Council staff alleging harassment and bullying. She was informed that her grievances had not been substantiated. Because she considered there were inconsistencies in the grievance handling process, Ms Hattch asked to inspect the Council’s file on the matter. She was told that if she marked pages of which she wanted copies, these would be provided. She therefore attached a yellow “post it” note to various pages, but was subsequently told the Council would not release copies of certain documents. Ms Hattch said she was not aware that she could again seek access to the file and could make her own notes on the documents claimed to be exempt.

16 Ms Hattch said two employees involved in the incidents in question had admitted inappropriate behaviour. She does not believe she can achieve a satisfactory outcome to her grievances without copies of the relevant documents. In her submission dated 5 October 2006, Ms Hattch stated:

“I believe the refusal to release documents to me indicates Dubbo City Council’s sole concern is that the documents contain statements that admit culpability by the respondents and the organisation’s lack of action in this regard and subsequent failure in duty of care, will cause them and the respondents embarrassment should these issues become public.”

17 Ms Hattch provided a statement from another Council employee, Brian McLeod, Maintenance Supervisor, dated 13 October 2006, who stated that he was present with Ms Hattch as her support person at a meeting to discuss her request for information pertaining to her grievance. Mr McLeod said Ms Hattch emphasised that she did not want “to go public with the information”. Rather, she said she required the withheld documents in order to pursue her case of bullying and harassment by a number of Council employees.

18 Ms Hattch provided further submissions dated 16 November 2006. She submitted that there has been a failure of due process in the Council’s grievance procedure and that she has a right to all documentation concerning her grievances. She considers the Council has failed in its duty of care for her workplace safety. Although she would like to do so, Ms Hattch said she has been unable to return to work because of the stress to which she has been subject because of this matter, for which she has sought medical assistance.

19 Ms Hattch submitted there would be no substantial adverse effect on the Council’s management of its employees if the documents in question were released. She referred to the AAT decision in Re Marr and Telstra Corporation Ltd (AAT Matter No P93/337, 29 October 1993), noting the AAT stated there, at par 5, that “embarrassment to officers from disclosure is not a substantial adverse effect”. Ms Hattch submitted there was nothing in the documents to make their disclosure contrary to the public interest.

Discussion

20 As stated above, at issue is whether the documents in question are exempt documents pursuant to cl 16(a)(iii) of Sch 1 of the FOI Act. This requires the determination of, first, whether the disclosure of the documents could reasonably be expected to have a substantial adverse effect on the management or assessment by the Council of its personnel and, second, whether the disclosure of the documents would, on balance, be contrary to the public interest.

21 A “substantial adverse effect” is one that is more than mere prejudice, and is sufficiently serious to cause concern to a properly informed reasonable person. The focus is on the future effect on the agency’s function rather than the effect of disclosure on the matter in dispute between the parties. See McGuinness v Bathurst Regional Council [2005] NSWADT 152, at par 21 (Hennessy DP, citing Re James and Australian National University (1984) 6 ALD 687, Re Thies and Department of Aviation (1986) 9 ALD 454, and Director General, Department of Education & Training v Mullet & anor [2002] NSWADTAP 13 (revised as at 11/6/02)); see also Gales Holdings Pty Ltd v Tweed Shire Council [2005] NSWADT 168 (Higgins JM), at par 46.

22 Deciding whether or not disclosure is contrary to the public interest requires a balancing of competing interests, including the public interest in the applicant’s right to know and the public interest in the proper working of the Government and its agencies: Forgie DP in Toomer and Department of Agriculture, Fisheries and Forestry [2003] AATA 1301, at par 115 to par 119, cited with approval by O’Connor DCJ, President, in Cianfrano v Director General, NSW Treasury [2005] NSWADT 7, at par 83.

23 The Council submits that disclosure of the documents in question would have a substantial adverse effect on the relationship between its staff and management, because staff would be reluctant to provide information and express their opinions if they knew the information/opinions could be made public. Ms Hattch disputes that there would be any adverse effect, and submits disclosure would not be contrary to the public interest.

24 I note the similarity of the material facts in the AAT decision in Wilson. In that case, Deputy President McMahon, at par 24, accepted evidence from Australia Post that it was “important in the disciplinary structure operating at the mail centre, particularly at the initial or informal counselling level, that complaints or potential complainants may be assured of confidentiality when management invokes the mechanism”. There was evidence from the manager of the mail centre that he had spoken to the employees who provided statements, and all had confirmed that the statements were given in confidence and they did not wish them to be disclosed. The manager also gave evidence that disclosure would adversely impact on morale, would be likely to aggravate feelings of hostility, and would impede the resolution of workplace grievances. The Deputy President, at par 17, noted that the applicant already had copies of the documents (possibly through an unauthorised channel):

“It is well established that the mere fact that the applicant already has copies of the subject documents does not assist in characterising them for the purposes of exemption claims under the FOI Act. Knowledge of the contents of the documents by Mr Wilson is one thing. Disclosure under the FOI Act is another, as it constitutes disclosure to the whole world.”

25 I have reviewed the documents claimed to be exempt. They involve memoranda from the Manager HR Services of the Council to the employees against whom Ms Hattch lodged formal grievances, file notes by the Manager HR Services in relation to meetings held with those employees, and letters to the Council from those employees concerning the grievances.

26 I note the Council’s Grievance Resolution Management Policy states:

“A grievance or dispute lodged under this policy by an employee will be dealt with in a confidential manner. Normally, the only people who will have access to information when it is lodged as a formal grievance or dispute will be the person making the complaint, the person hearing or investigating the complaint, the person against whom the complaint is made, the relevant Division Director, Manager HR Services and the General Manager.”

27 I also note a number of the documents claimed to be exempt refer either implicitly or explicitly to the confidentiality of the grievance resolution process.

28 I am satisfied that the release of copies of the documents claimed to be exempt to Ms Hattch would be likely to be seen by other Council employees involved in the grievance resolution process as a breach by the Council of its stated policy of confidentiality in such matters. As stated by Deputy President McMahon in Wilson, release of documents under the FOI Act is release to the world at large. In terms of cl 16(a)(iii), I am also satisfied that the release of the documents could reasonably be expected to have a substantial adverse effect on the management or assessment by the Council of its personnel in the sense of being sufficiently serious to cause concern to a properly informed reasonable person.

29 With regard to the second step, whether the disclosure of the documents would, on balance, be contrary to the public interest, requiring a balancing of competing interests including the public interest in the applicant’s right to know and the public interest in the proper working of the Government and its agencies, I note that Ms Hattch has inspected the documents at issue and that Mr Marchant has said she may do so again and may make her own notes on the contents of the documents should she wish to do so. In my view, the public interest in Ms Hattch’s right to know has been addressed, albeit on a more limited basis than if she was provided with copies of the documents. On the other hand, I am satisfied from the Council’s evidence and submissions that the public interest in the proper working of the Council, and most particularly of its grievance resolution procedure, requires that confidentiality be maintained in respect of the documents in issue. Thus, in my view, disclosure of the documents would, on balance, be contrary to the public interest.

30 I do not consider it practicable to give access to a copy of the documents from which the exempt matter has been deleted, especially in view of the fact that Ms Hattch has inspected the documents and may, if she chooses, do so again.

31 The Council having established that the documents in issue meet the requirements of cl 16(a)(iii) and are, therefore, properly regarded as exempt, the decision under review must be affirmed.