Hutchinson v Warrumbungle Shire Council

[2009] NSWADT 187

CITATION:

Hutchinson v Warrumbungle Shire Council [2009] NSWADT 187

DIVISION:

General Division

PARTIES:

APPLICANT
Rowan Hutchinson

RESPONDENT
Warrumbungle Shire Council

RESPONDENT
Warrumbungle Shire Council

FILE NUMBER:

083239

HEARING DATES:

17 February 2009

SUBMISSIONS CLOSED:

10 March 2009

 
DATE OF DECISION: 

20 July 2009

BEFORE:

Montgomery S - Judicial Member

CATCHWORDS:

Freedom of Information Act - access to documents - confidential material - internal working documents - operations of agencies

LEGISLATION CITED:

Freedom of Information Act 1989

CASES CITED:

Gales Holdings Pty Ltd v Tweed Shire Council (2005) NSWAD 216
Ganley v Northern Sydney Central Coast Area Health Service [2009] NSWADT 161
General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84
Keriakes v Chief Executive Officer, State Rail Authority [2003] NSWADT 191
Livingstone & Anor v The State Rail Authority of New South Wales [2002] NSWADT 25
McGuinness v Bathurst Regional Council [2005] NSWADT 152
McKinnon v Secretary, Department of Treasury [2006] HCA 45
Re Maher and the Attorney General’s Department (No 2) (1986) 4 AAR 266.

REPRESENTATION:

APPLICANT
In person

RESPONDENT
M Down, solicitor

ORDERS:

1. Mr Hutchinson is to be given a copy of the transcript of his interview with Mr Watson that took place on 15 and 22 November 2006.
2. The decision under review is otherwise affirmed.

1 On 25 December 2007, Mr Hutchinson (“the applicant”) applied to the Warrumbungle Shire Council (“the Council”) under the Freedom of Information Act 1989 ("the FOI Act') for copies of documents held by the Council. The request was in the following terms:

1. Documents on my personnel file

2. All documents (including submissions) of a report produced by Hunter Consultants Pty Ltd for Warrumbungle Shire Council concerning various allegations including harassment and bullying. This report was apparently produced sometime in 2007 (“the Hunter Report” or (“the Report”).

2 Mr Geraghty, the Council’s General manager, purported to determine the application on 4 February 2008. The Council advised Mr Hutchinson that the documents on his personnel file were available for inspection at any time but advised him that any documentation relating to grievances are not placed on a staff members' file unless the matter leads to a disciplinary action.

3 In relation to the Hunter Report the Council asserted that documents are exempt pursuant to Clauses 9 and 10 of Schedule 1 to the FOI Act. No reasons for the asserted exemptions were provided.

4 As the Council had not provided a determination within 21 days, it was deemed, under section 24(2) of the FOI Act, that the Council refused access to the documents. Mr Hutchinson sought an internal review of the Council’s determination. An internal review determination by Mr Geraghty dated 13 February 2008 affirmed the original decision.

5 Mr Hutchinson applied to the NSW Ombudsman with respect to the Council's determination. Mr Wayne Kosh, an Investigations Officer with the NSW Ombudsman advised Mr Hutchinson that he disagreed with the Council’s assertion that the documents are exempt pursuant to Clauses 9 and 10 of Schedule 1 to the FOI Act. However, he indicated that he considered the Hunter Report to be exempt under clause 13(b) and clause 16(a)(iii) and (b) of Schedule 1 in the FOI Act.

6 Mr Hutchinson applied to the Tribunal for review of the determination. A copy of the Hunter Report has been provided to the Tribunal.

Relevant legislation

7 Section 5 of the FOI Act provides that the objects of the FOI Act are to extend, as far as possible, the rights of the public to obtain access to information held by the Government.

8 Section 16 of the FOI Act provides that a person has a legally enforceable right to be given access to an agency's documents in accordance with the Act.

9 Pursuant to section 61 of the FOI Act, the agency has the burden of establishing that its determination was justified.

10 Clause 9 of Schedule 1 of the FOI Act provides:

9 Internal working documents

(1) A document is an exempt document if it contains matter the disclosure of which:

(a) would disclose:

(i) any opinion, advice or recommendation that has been obtained, prepared or recorded, or

(ii) any consultation or deliberation that has taken place,

in the course of, or for the purpose of, the decision-making functions of the Government, a Minister or an agency, and

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

(2) A document is not an exempt document by virtue of this clause if it merely consists of:

(a) matter that appears in an agency’s policy document, or

(b) factual or statistical material.

11 Clause 13 of Schedule 1 of the FOI Act provides:

13 Documents containing confidential material

A document is an exempt document:

(a) if it contains matter the disclosure of which would found an action for breach of confidence, or

(b) if it contains matter the disclosure of which:

(i) would otherwise disclose information obtained in confidence, and

(ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and

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

12 Clause 16(a) of Schedule 1 of the FOI Act provides:

16 Documents concerning operations of agencies

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

(a) could reasonably be expected:

(i) to prejudice the effectiveness of any method or procedure for the conduct of tests, examinations or audits by an agency, or

(ii) to prejudice the attainment of the objects of any test, examination or audit conducted by an agency, or

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

(iv) to have a substantial adverse effect on the effective performance by an agency of the agency’s functions, or

(v) to have a substantial adverse effect on the conduct of industrial relations by an agency, and

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

13 The Council relies on the evidence of its General Manager, Mr Robert Geraghty and that of the Council’s Director, Technical Services, Mr Kevin Tighe. Each provided written statements and also gave oral evidence and was cross-examined. Mr Down provided both oral and written submissions.

Mr Tighe’s evidence

14 Mr Tighe’s evidence is that in August 2004 Mr Hutchinson held a position under the Warrumbungle Shire Salary Scheme on Grade 15 - Step 1. Salary increases are related to the progression through steps within Grades. Progression is based on assessment of competency. Mr Hutchinson is currently employed by the Council as Manager, Road Contracts, based at the Council's premises at Coolah.

15 Mr Tighe has been Mr Hutchinson’s supervisor since January 2005. He has conducted competency assessments of Mr Hutchinson in relation to his employment. As a result of an assessment in January 2007 he recommended there be no movement of Mr Hutchinson from Grade 15 - Step 1. In July 2008 he recommended Mr Hutchinson move from Grade 15 - Step 1 to Grade 15 - Step 2, effective 1 August 2007. Mr Hutchinson declined an invitation to a competency assessment in September 2008.

16 Mr Tighe’s referred to Mr Hutchinson’s assertion that the Council has used information contained in the Hunter Report to deny him salary increase to which he was entitled. Mr Tighe’s evidence is that he was asked to attend an interview in regard to the investigation by Hunter Consultants but that has never seen a copy of the Hunter Report and that the Hunter Report played no part whatsoever in his recommendations concerning the movement of Mr Hutchinson within Steps in his current Grade. He agreed that other complaints against Mr Hutchinson had been taken into account in that process.

Mr Geraghty’s evidence

17 Mr Geraghty’s evidence is that as General Manager of the Council he is responsible for the efficient and effective operation of the Council's organisation and for ensuring the implementation of the decisions of the Council. He is responsible for the day to day management of the Council and administers various Council policies and responsibilities required to ensure compliance with the Occupational Health and Safety Act responsibilities and workplace harmony.

18 He referred to the Council’s harassment policy and its grievance procedure and stated that the grievance procedure requires supervisors, managers and others who have to resolve grievances, to deal with matters confidentially.

19 During 2006, Mr Geraghty became aware of allegations of harassment in the Council’s Coolah office. In August 2006 he wrote to Mr Hutchinson in regard to issues that he had raised, and invited him to provide further details. In reply, Mr Hutchinson suggested that an independent investigator be appointed to investigate the harassment allegations. He indicated that he would be prepared to provide additional information concerning the allegations to an independent investigator.

20 Mr Larry Watson of Hunter Consulting was appointed to investigate and prepare a report into the harassment issues.

21 Mr Geraghty stated that the purpose of that process was to allow an independent assessment of the workplace and the allegations made by a number of people, including Mr Hutchinson, so he could decide on a course of action to ensure workplace harmony and a safe workplace. He read and considered the Report, particularly with respect to whether he would recommend or undertake disciplinary action against either Mr Hutchinson or any other Council staff against whom Mr Hutchinson had alleged harassment and bullying. Mr Geraghty used the Report in reaching the conclusion that he would take no formal disciplinary action. On 17 December 2007 he wrote to various staff members, including Mr Hutchinson, advising that no formal disciplinary action would be taken. This letter also provided advice about appropriate behaviour towards other staff.

22 His evidence is that he does not intend to use the Hunter Report in the future and that he has never stated otherwise. He stated that under the grievance procedure the documentation relating to the investigation could not be used again unless there were further complaints within a period of 12 months. As that period has passed, the material cannot be used again. He stated that the Hunter Report has been kept confidential and that he has not discussed the contents of the Hunter Report with any staff member.

23 Mr Geraghty stated that the investigation process was designed to allow the investigator the ability to gain sufficient objective evidence to enable conclusions to be drawn as to the validity of the complaints received by Council. It included conducting personal, confidential interviews with all parties who could be considered to be able to provide information that would assist the process.

24 He believes that without confidentiality, Council staff would be loath to provide open and complete accounts of behaviours, which may, either of themselves or accumulatively constitute bullying and harassment. He stated that confidentiality is integral to the proper functioning of the Council's harassment and grievance policy. In his opinion, the disclosure of the Hunter Report would have a substantial adverse effect on his ability to manage the Council's personnel. He does not believe Council staff would supply confidential material or information to Council in the future, as they would not be guaranteed confidentiality. He agreed that Mr Hutchinson could be given a copy of the transcript of his interview. It is also his opinion that the public at large have a very real interest in ensuring that a local council functions properly and productively for the benefit of the public.

The Council’s submissions

25 Mr Down provided both oral and written submissions. The Council claims that the Hunter Report is exempt from production pursuant to one or all of clauses 9; 13(b); 16(a)(iii) and (b) of Schedule 1 to the FOI Act.

26 The Council claims that it obtained the Hunter Report as part of the independent investigation process required by Council's grievance procedure following a number of bullying and harassment allegations made by and against Mr Hutchinson. Mr Hutchinson and 13 other Council staff were involved in the investigation process and were interviewed by Mr Watson, the author of the Hunter Report. Mr Watson interviewed Mr Hutchinson on 15 and 22 November 2006.

27 The investigation methodology that Mr Watson used included ensuring confidentiality for all persons being a party to the investigation. The Council says that the confidentiality aspect was important for Mr Watson to be able to gain sufficient objective evidence to enable him to draw conclusions as to the validity of the complaints. The Council further says that all parties were made aware of Council's grievance procedures, which required them to sign confidentiality statements. The Council submits that in the circumstances the Hunter Report is appropriately exempt.

28 Mr Down submits that the circumstances of this matter are similar to those the subject of the decision of the Tribunal in Livingstone & Anor v The State Rail Authority of New South Wales [2002] NSWADT 25 in which Judicial Member Robinson held that confidential reports obtained into staff grievances relating to the staff and management of the State Rail Authority of New South Wales based at Town Hall railway station should not be released primarily based upon the exemption contained in Clause 16 of Schedule 1 of the Act.

29 Judicial Member Robinson stated at paragraph [20]:

20 I do not consider it matters that in the present case, the “channel of communication” to the respondent by its employees was by way of an independent consultant specifically appointed to hear and report on such claims and issues.

30 The Council submits that here the disclosure of the Hunter Report would hamper the proper communication and confidentiality expected by those interviewed by Mr Watson, and which is an essential part of the Council's grievance procedure.

31 The Council also submits that the Hunter Report is an opinion obtained for the purpose of the decision making functions of the Council. The relevant decision making function is with respect to the question of whether to take further action in regard to the complaints.

32 The Council submits that the Tribunal should find that the Hunter Report is exempt under Clause 9 of Schedule 1 to the FOI Act.

33 The Council also submits that the Hunter Report is an exempt document within the meaning of Clause 13 of Schedule 1 to the FOI Act. The Council says that the disclosure of the Hunter Report could reasonably be expected to prejudice the future supply of such information to it within the meaning of Clause 13.

34 The Council submits that the information was 'obtained in confidence'. There was mutual understanding that the information in question was to be treated as confidential. Confidentiality was required by the grievance procedure and Mr Watson required it. Mr Down submits that if necessary, the Tribunal could infer confidentiality from the circumstances in which the information was obtained: Gales Holdings Pty Ltd v Tweed Shire Council (2005) NSWAD 216 where Higgins JM stated at paragraph [41]:

41 It is well established that in determining whether information in a document was “obtained in confidence” it is not necessary for the agency to establish that there was an express understanding or stipulation of confidentiality between the supplier and recipient at the time the information was communicated ... This particular requirement will generally be satisfied where there is evidence of a common express or mutual understanding that information of a particular kind, which includes the information in question, would be or should be treated as confidential. That is, confidentiality may be inferred from the circumstances in which the information was obtained ...

35 The Council says that the confidential nature of the interviews and complaints is essential for objective assessment of the complaint. Without confidentiality, it could reasonably be expected that allegations of bullying and harassment might not be exposed and/or treated with the seriousness required to ensure a safe and harmonious and, therefore, productive working environment.

36 The Council further submits that the disclosure of the information obtained in confidence could 'reasonably be expected to prejudice the future supply of such information'.

37 The Council also says that the document is exempt pursuant to the operation of Clauses 16(a)(iii) & (b) of Schedule 1 to the FOI Act as the disclosure could reasonably be expected to have a substantial adverse effect on the management or assessment of the Council's personnel

38 With respect to the public interest issues, the Council further submits that the public interest tips the balance away from the release of the Hunter Report, as it preserves the assurance of confidentiality given to those staff members who were interviewed; maintains the integrity of the Council's internal grievance procedure; and assists the Council to provide a safe work place free of harassment and intimidation to satisfy both its obligations under Occupational Health & Safety legislation and to ensure the workplace is functional and productive.

39 The Council further submits that the override discretion should not be exercised by the Tribunal in the circumstances of this case. Accordingly, the Tribunal should affirm the decision.

Mr Hutchinson’s case

40 Mr Hutchinson relies on his own written and oral evidence. He also provided oral and written submissions.

Mr Hutchinson’s evidence

41 Mr Hutchinson stated that he has not received any written information from the Hunter Report since its completion. He believes that much information contained in the Report directly concerns him, and that the information that concerns him is most likely inaccurate and/or incorrect. He asserted he believes that the interview/evidence that he gave should be contained in the Report and that he has never been provided with a transcript of the interview/evidence that he gave.

42 He stated that he believes that the Council has already used information contained in the Report to deny him a salary increase and that the management of the Council intends to use the contents of the Report against him in the future.

43 In relation to any exemption claimed under Clause 13(b) of Schedule 1 Mr Hutchinson submitted that not all information in the Hunter Report was obtained "in confidence". He argued that if the Tribunal finds that certain information was given "in confidence", the information should be released with names deleted.

44 He further submitted that there is no evidence that disclosing information obtained "in confidence" would prejudice the supply "of such information". He said that the information came from individuals who are still actively at work and most likely still submitting complaints to management. He also submitted that there is no evidence that the release of the subject information would on balance be contrary to the public interest.

45 In relation to any exemption claimed under Schedule 1 Clause 16(a)(iii) and Clause 16(b) he submitted that there is no evidence to show that release of the information would have a substantial adverse effect on the management (or assessment by an agency) of an agency's personnel. He said that this investigation and the Hunter Report were well known to most if not all Council employees. It was generally expected that the Report would be released. There is no evidence that the release of the information would on balance be contrary to the public interest. Council's operations should be as transparent as possible and the Report should be released.

46 He submits that the information is not exempt under Clause 9 of Schedule 1 as the Report is finalised.

47 He asserted that Council's operations should be as transparent as possible and the Report should be released.

Discussion

48 The Council asserts that the Hunter Report is exempt under clauses 9; 13(b); 16(a)(iii) and (b) of Schedule 1 to the FOI Act. and that release of the document is not in the public interest. The burden of establishing that the determination to decline to release the document is justified lies on the Council.

49 One of the stated objects of the FOI Act is to extend, as far as possible, the right of the public to obtain access to information held by the Government. The FOI Act also acknowledges that there are circumstances where providing access to documents may adversely affect the legitimate interests and rights of members of the community. For example, giving access to information may constitute an unwarranted invasion of a person's affairs.

50 For the purposes of determining these issues I have examined the copy of the Report that was filed with the Tribunal.

51 Clause 9 provides that a document is an exempt document if it contains matter, the disclosure of which, would disclose any opinion, advice or recommendation that has been obtained, prepared or recorded or any consultation or deliberation that has taken place in the course of or for the purpose of the decision making functions of the Government, a Minister or an agency and would, on balance, be contrary to the public interest.

52 I am also satisfied that the Hunter Report contains information that is not merely factual or statistical material of the kind referred to in clause 9(2)(b) and that it contains an ‘opinion, advice or recommendation that has been obtained, prepared or recorded’ for the purpose of the decision-making functions of the Council. However, in order to form the opinion that the Report is exempt pursuant to clause 9 I also need to be satisfied that disclosure of the matter contained within the Report would, on balance, be contrary to the public interest.

53 In many cases, the public interest against disclosure of preliminary decision-making processes will fall away once a final decision has been made: General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84. See the discussion in paragraphs [13.1.29] – [13.1.30] of the NSW FOI Manual - A joint publication of NSW Department of Premier and Cabinet and the NSW Ombudsman - August 2007 which state:

13.1.29 According to the Ombudsman, before a final decision on a matter has been made, documents recording preliminary advice relating to the ultimate decision may well be exempt in accordance with clause 9, depending on the circumstances of the case. However, once the final decision has been made, it is unlikely that such documents should continue to be exempt unless special circumstances exist.

3.1.30 That said, there may be cases in which the public interest in confidentiality will continue after a decision has been made. If, however, a final decision has been made, and an agency wishes to continue invoking clause 9 on relevant documents, the agency will need to provide clear and compelling reasons as to why it is contrary to the public interest to release such documents.

54 This is not a situation in which the public interest requires documents to be kept confidential because deliberations are incomplete. It is common ground that the Council has considered the Hunter Report and determined a course of action on the basis of that consideration. The onus is not on Mr Hutchinson to prove that the public is interested or that the public interest 'requires' disclosure. The onus is on the Council to prove that, on balance, release would be contrary to the public interest notwithstanding that deliberations are complete. I will discuss the public interest issue further in regard to the Clause 13(b) exemption.

55 Clause 13(b) provides that a document is an exempt document if it contains matter the disclosure of which would otherwise disclose information obtained in confidence and could reasonably be expected to prejudice the future supply of such information to the Government or to an agency and would on balance be contrary to the public interest.

56 To satisfy the requirements for exemption pursuant to clause 13(b), a document must meet each of the specified criteria. It must first be established that the information concerned was obtained in confidence. On the evidence before me, it is beyond doubt that, with the possible exception of Mr Hutchinson, the Council staff who were involved in the investigation process and were interviewed by Mr Watson took part in the process on the basis that their submissions were made in strict confidence. That much is clear from the material included in the Hunter Report.

57 For clause 13(b) to apply it must secondly be established that the future supply of such information could reasonably be expected to be prejudiced. Reasonableness must be decided taking into account any relevant evidence that is before the decision-maker and any relevant arguments that have been advanced: McKinnon v Secretary, Department of Treasury [2006] HCA 45 per Hayne J at paragraph [63].

58 Deputy President Hennessy stated in Keriakes v Chief Executive Officer, State Rail Authority [2003] NSWADT 191:

35 Meaning of “could reasonably be expected”. The phrase "could reasonably be expected to" should be given its ordinary meaning ( Searle Australia Pty Limited v PIAC (1992) 36 FCR 111 at 122). In Neary v Chief Executive, State Rail Authority [1999] NSWADT 107, at [35] this Tribunal held (following Federal Court cases) that although there must be more than a mere risk that the stated result will follow from disclosure, it was not necessary that the risk be assessed as more probable than not.

36 Tribunal’s conclusion on prejudice of future supply of information. There was evidence from four of the signatories that they would not be prepared to approach management with any concerns about incidents in the workplace if their names were disclosed. It is also relevant that the signatories are not under any statutory or other duty to notify the agency of workplace grievances. …

37 In these circumstances, where some employees perceive that they had been harassed and may be subject to victimisation if their identity is revealed, it can reasonably be expected that they, and other employees in a similar position, will be much less likely to complain in the future if their identity is disclosed on this occasion. ...

59 The word ‘prejudice’ should be given its common, dictionary meaning – that is ‘to cause detriment or disadvantage’: Re Maher and the Attorney General’s Department (No 2) (1986) 4 AAR 266.

60 The relevant evidence in the present matter includes the evidence of Mr Geraghty who stated that he believes that without confidentiality, Council staff would be loath to provide open and complete accounts of behaviours which may constitute bullying and harassment. He stated that in his opinion, if the Hunter Report were disclosed Council staff would not supply confidential material or information to Council in the future, as they would not be guaranteed confidentiality.

61 I accept this evidence. While I also accept Mr Hutchinson’s assertion that some staff will continue to lodge complaints, in my view it is likely that some staff would be concerned if the Report were released. If those staff members became aware of this type of disclosure it is reasonable to expect that they would be concerned that any information they might provide in the future would also be released. In turn, this could prejudice the future supply of information to the Council.

62 This is consistent with the approach taken by Deputy President Hennessy in McGuinness v Bathurst Regional Council [2005] NSWADT 152. In that matter the Deputy President said at paragraph [8]:

“8 Prejudice the future supply of such information. Whether or not disclosure could reasonably be expected to prejudice the future supply of such information does not necessarily depend on whether the informant herself could reasonably be expected to refuse to supply such information in the future. While that evidence is relevant, the Tribunal must answer a broader question, that is whether disclosure could reasonably be expected to prejudice the future supply of such information from a substantial number of the sources available or likely to be available to the BFDCS. ( Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279 at 341.)”

63 More recently Deputy President Handley took a similar view in Ganley v Northern Sydney Central Coast Area Health Service [2009] NSWADT 161.

64 In my view, the test in clause 13(b)(ii) is satisfied.

65 The remaining issue is whether or not the release of the Hunter Report would, on balance, be contrary to the public interest. In determining this issue it is necessary to take into account public interest considerations that favour disclosure, and balance these against those which tend against disclosure.

66 The public interest considerations include the nature of the information that would be disclosed, the circumstances in which it was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent and the current relevance of the information.

67 One public interest consideration in favour of disclosure will be the general public interest in the publication of government-held documents, in so far as that is conducive to keeping the community informed and promoting public accountability: General Manager, WorkCover Authority of NSW v Law Society of NSW at 146-151).

68 Mr Hutchinson has asserted that there is interest amongst the Council staff in the outcome of the inquiry and that it was always anticipated that the Hunter Report would be released and he contends that release of the Report is in the public interest to bring that to light. The contents of the Report suggest that this is not the case.

69 In contrast, the Council argues that it is in the public interest that material communicated in confidence be protected from release. It contends that the public interest in disclosure is outweighed by the fact that the staff contributions were obtained in circumstances where the staff understood their contributions would remain confidential. It argues that disclosure could reasonably be expected to prejudice the future supply of information to the Council from voluntary informers and would also prejudice the Council’s ability to exercise its personnel management functions effectively. It submits that the public interest in ensuring that prejudice of these kinds does not occur outweighs any competing public interest in favour of disclosure.

70 Deputy President Handley recently considered this issue in Ganley v Northern Sydney Central Coast Area Health Service. He stated at paragraphs [72] - [73]:

72 The third requirement of cl 13(b) is that the disclosure would, on balance, be contrary to the public interest. In my view, it is clearly in the public interest for the Health Service and other agencies to be able to investigate allegations of workplace malpractice, including, for example, workplace bullying or harassment. Investigations of this kind will always be facilitated if the co-operation of those involved can be achieved rather than a more heavy handed approach involving employer directions. It is contrary to the public interest to undermine a co-operative approach by prejudicing the future supply of relevant information: [TW v TX [2005] NSWADT 262] at [39].

73 Ms Ganley submitted that the benefit from obtaining access to the documents and reviewing what the witnesses said to Mr Kilkeary in the course of his investigation, outweighed the detriment from breaching any assurances of confidentiality. I do not agree. While I accept that the witness statements and Mr Kilkeary’s notes may be of value to Ms Ganley in pursuing her claim in respect of her grievances against the Health Service, I am not satisfied that there is a broader public interest in these documents that outweighs the public interest in not prejudicing the future supply of relevant information where agencies investigate workplace malpractice.

71 Those views are equally applicable in this matter. I agree with the arguments advanced by the Council. In the circumstances of this matter it is my view that the public interest in disclosure is outweighed by the considerations that tend against disclosure. The single exception to this view is the transcript of Mr Hutchinson’s interview with Mr Watson that took place on 15 and 22 November 2006. In my view Mr Hutchinson should be given a copy of the transcript of his interview.

72 There are no strong grounds that would justify overriding the exemption. It follows, in my view, that the correct and preferable decision is that the Hunter Report not be released. Accordingly, the Council’s determination should be affirmed. It is unnecessary that I consider whether the clause 16(a)(iii) and (b) exemption applies.

Order

1. Mr Hutchinson is to be given a copy of the transcript of his interview with Mr Watson that took place on 15 and 22 November 2006.

2. The decision under review is otherwise affirmed.