Johnson v Secretary, Department of Communities and Justice

[2020] NSWCATAD 23

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Johnson v Secretary, Department of Communities and Justice [2020] NSWCATAD 23
Hearing dates:	16 October 2019
Date of orders:	20 January 2020
Decision date:	20 January 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Ludlow, Senior Member
Decision:	(1)   The decision of the respondent is varied as follows: (a)   The respondent is to release the information on page 5 of the attachments to the investigation report as described at paragraph 93 of these reasons. (2)   The decision is otherwise affirmed.
Catchwords:	FREEDOM OF INFORMATION – government information - misconduct investigation into allegations of breach of confidence and privacy – witness evidence received in confidence – results of investigation – personal information – personal factors.
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 (NSW) Children and Young Persons (Care and Protection) Act 1998 Privacy and Personal Information Protection Act 1998 (NSW)
Cases Cited:	AFW v WorkCover Authority of NSW [2013] NSWADT 51 Ansoul v City of Sydney [2017] NSWADTAD 65 Australian Broadcasting Tribunal (No. 2) (1985) 7 ALD 584 Battin v University of New England [2013] NSWADT 73 Camilleri v Commissioner of Police (NSW) [2013] NSWADT 80 Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 Department of Education and Training v Mullett (No. 2) [2002] NSWADTAP 29 Hall v Roads and Maritime Services [2012] NSW ADT 239 Hurst v Wagga Wagga City Council [2011] NSWADT 307 MJ v Department of Education and Commerce [2013] NSWADT 213 McLennan v University of New England [2013] NSWADT 113 Raven v The University of Sydney [2015] NSWCATAD 104 Re Actors Equity Association of Australia and Smith v Pittwater Council [2016] NSWCATAD 67 Selby v Commissioner of Police (NSW) [2013] NSWADT 61
Texts Cited:	Robinson, New South Wales Administrative Law
Category:	Principal judgment
Parties:	Darlene Johnson (Applicant) Secretary, Department of Communities and Justice (Respondent)
Representation:	Solicitors: Applicant (Self Represented) Office of General Counsel, Department of Communities and Justice (Respondent)
File Number(s):	2019/00089523
Publication restriction:	Evidence and submissions made in the absence of the applicant and documents marked “Confidential” are not to be published or disclosed to the applicant pursuant to s 107 of the Government Information (Public Access) Act 2009. The disclosure of the names of the applicant’s grandchild, the grandchild’s mother and the employee of the respondent who was the subject of Document 2 is prohibited, pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

REASONS FOR DECISION

Background

1. On 23 January 2019 the applicant lodged an application for access to information under the Government Information (Public Access) Act 2009 (GIPA Act) with the respondent. The respondent was formerly referred to as Family and Community Services.

2. The request sought:

1. a copy of the ROSH (Risk of Significant Harm) report made to Family and Community Services (FACS) by the applicant and her husband to start an investigation into the care of their grandchild by the child’s mother.

2. A copy of the internal investigation by FACS concerning the alleged transfer of a FACS document by a named FACS employee regarding the case of the grandchild to the child’s mother.

3. The applicant was provided with access to Document 1, with some information redacted. The applicant was provided with a severely redacted version of Document 2, which included the cover page, contents (with names of witnesses redacted), General Findings (with some information redacted, including the nature of those findings), Methodology, Standard of Proof, and Summary.

4. The respondent withheld the redacted information on the ground that it was subject to a number of overriding public interest considerations against disclosure which in its view outweighed the public interest in favour of disclosure under the GIPA Act.

5. An application for review was lodged with the Tribunal on 21 March 2019. A mediation between the parties was unsuccessful. In its 13 August 2019 submissions the respondent notified the Tribunal and the applicant that the attachments to the report had not been considered in the original decision and undertook to make a supplementary decision. The matter was listed for hearing on 16 October 2019. On 2 October 2019 the respondent made the supplementary decision which considered the attachments to the investigation report.

6. The applicant was unable to attend the hearing and leave was granted to Anthony Johnson to represent her at the hearing under s 45(1)(b) of the Civil and Administrative Tribunal Act 2013.

The issues for determination

7. There is a presumption in favour of the disclosure of government information under the GIPA Act unless there is an “overriding public interest against disclosure”: s 5.

8. Section 12 provides:

“12 Public interest considerations in favour of disclosure

(1)   There is a general public interest in favour of the disclosure of government information.

(2)   Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.

Note. The following are examples of public interest considerations in favour of disclosure of information:

(a)   Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.

(b)   Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.

(c)   Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.

(d)   The information is personal information of the person to whom it is to be disclosed.

(e)   Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.”

9. Section 13 provides:

“There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.”

10. Section 14 provides:

“14 Public interest considerations against disclosure

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.

(2)   The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

(3)   The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section.

(4)   The Information Commissioner must consult with the Privacy Commissioner before issuing any guideline about a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to this section).

11. The table to s 14 of the GIPA Act lists the public interest considerations against disclosure which are the only other considerations that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information (s 14(2)).

12. The considerations relied on by the respondent are:

“1 Responsible and effective government

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally):

…

(d)   prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions,

(e)   reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency,

(f)   prejudice the effective exercise by an agency of the agency’s functions,

(g)   found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence,

(h)   prejudice the conduct, effectiveness or integrity of any audit, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).

3 Individual rights, judicial processes and natural justice

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects:

(a)   reveal an individual’s personal information,

(b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002,

…”

13. Section 15 provides:

“15 Principles that apply to public interest determination

A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles:

(a)   Agencies must exercise their functions so as to promote the object of this Act.

(b)   Agencies must have regard to any relevant guidelines issued by the Information Commissioner.

(c)   The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.

(d)   The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.

(e)   In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.”

14. The task of the Tribunal is to determine whether the agency has substantiated its reliance on any of the identified considerations against disclosure, and if so, those considerations must be weighed against the considerations which favour disclosure, bearing in mind what is said in s 15.

15. Clause 10 of Schedule 1 provides:

“10 Care and protection of children

It is to be conclusively presumed that there is an overriding public interest against disclosure of information contained in a report to which section 29 of the Children and Young Persons (Care and Protection) Act 1998 applies.”

16. Section 29 of the Children and Young Persons (Care and Protection) Act applies to reports made by a person in good faith in relation to a child or young person or a class of children or young persons, to the Secretary or to a person who has the power or responsibility to protect the child or young person or the class of children or young persons.

17. Section 107 of the GIPA Act provides:

“107 Procedure for dealing with public interest considerations

(1)   In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure.

(2)   On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant’s representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.

(3)   On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of:

(a)   the public and the applicant, and

(b)   the applicant’s representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.”

Confidentiality

18. Section 64 of the Civil and Administrative Tribunal Act 2013 provides:

“64 Tribunal may restrict disclosures concerning proceedings

(1)   If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:

(a)   an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),

(b)   an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal,

(c)   an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

(d)   an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

(2)   The Tribunal cannot make an order under this section that is inconsistent with section 65.

(3)   The Tribunal may from time to time vary or revoke an order made under subsection (1).

(4)   For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.”

19. I conducted part of the proceedings in the absence of the applicant’s representative pursuant to s 107(2) of the GIPA Act and made orders prohibiting the publication or disclosure of that evidence. Sections of these reasons which contain information which is subject to these orders or would disclose information which is subject to an overriding public interest against disclosure is marked “Not for publication” and may not be disclosed to the public or the applicants.

20. The respondent also sought an order under s 64(1) of the Civil and Administrative Tribunal Act 2013 that the name of the employee who was the subject of Document 2 not be disclosed. The request was made on the basis of the sensitive and/or personal nature of some of the information concerning the employee.

21. Section 64(1) of the Civil and Administrative Tribunal Act provides that if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may make an order prohibiting or restricting the disclosure of the name of any person. I am satisfied that it is desirable to make such an order, given that the information about the employee discussed in these reasons would normally be confidential.

22. No application was made for a confidentiality order concerning the name of the child referred to in the application. However I am satisfied that it is desirable to make an order prohibiting the publication or disclosure of the name of the child and the child’s mother given that the child has been subject to reports (discussed in these reasons) under the Children and Young Persons (Care and Protection) Act 1987 which prohibits the disclosure or publication of information obtained in connection with that Act.

23. Accordingly in these reasons the child will be referred to as AB, the child’s mother as CD and the employee as EF.

The public interest considerations against disclosure

24. The public interest considerations against disclosure which are currently pressed by the respondent are:

1. Clause 1(d) – that disclosure could reasonably be expected to prejudice the supply to an agency of confidential information thata facilitates the effective exercise of that agency’s functions;

2. Clause 1(f) – that disclosure could reasonably be expected to prejudice the effective exercise by an agency of the agency’s functions;

3. Clause 1(g) – that disclosure could reasonably be expected to found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence;

4. Clause 1(h) – that disclosure could reasonably be expected to prejudice the conduct, effectiveness, or integrity of any audit, test , investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed);

5. Clause 3(a) - disclosure could reasonably be expected to reveal an individual’s personal information; and

6. Clause 3(b) - disclosure could reasonably be expected to contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (PPIP Act).

25. The responsibility for establishing that the public interest considerations against disclosure on which it relies apply and that, on balance, those considerations outweigh the public interest considerations in favour of disclosure, rests on the respondent: Hall v Roads and Maritime Services [2012] NSW ADT 239 at [25].

26. The words “could reasonably be expected” in s 14 mean that there must be a reasonable expectation (not fanciful, imaginary or contrived) that the disclosure could have the prescribed effect (Re Actors Equity Association of Australia and Australian Broadcasting Tribunal (No. 2) (1985) 7 ALD 584 at 590). The word “prejudice” in this context should be given its ordinary meaning of “cause detriment or disadvantage” (McLennan v University of New England [2013] NSWADT 113).

27. The balancing exercise to be conducted under s 13 of the GIPA Act "is a question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation": Battin v University of New England [2013] NSWADT 73 at paragraph [74].

Evidence of the respondent

28. Ms Nancy Carl, the Manager of the respondent’s Conduct and Professional Standards Unit, gave evidence for the respondent. She said in this case the complainant shared community links with the employee (EF) who was the subject of the report. She stated that on 10 July 2018 she told the applicant that the investigation had been completed and that action had been taken in response to the findings.

29. She was concerned about the stress and anxiety which could be caused to EF by the disclosure of the information.

30. Ms Carl said that misconduct investigations were handled by her Unit and in this case, an independent external investigator was engaged. In the case of misconduct investigations the identity of witnesses was usually treated as confidential. This was documented in the Employee Misconduct Policy and Procedures which came into effect after the investigation in question. They require that strict confidentiality be maintained around allegations and where employees breach that confidentiality, this may constitute misconduct.

31. Witnesses who participated in the investigation were advised of the requirement to maintain confidentiality and this was the usual practice. This was done to protect the integrity of investigations and ensure procedural fairness.

28. She said the respondent cannot direct respondents or witnesses who are not staff to participate in interviews or provide a statement. The applicant and her husband, for example, declined to participate in an interview. The respondent relies on witness and staff cooperation when investigating misconduct allegations. Disclosure of the investigation report may make it significantly more difficult for the respondent to obtain witness evidence and manage employee misconduct as persons may be reluctant to participate.

29. Moreover providing the report in full to the applicant would, in her view, breach EF’s confidentiality.

Evidence of the applicant

34. The applicant outlined concerns about the welfare of her grandchild AB who was living with his mother CD. She and her husband contacted FACS (the respondent) about their concerns. She was aware that EF, a friend of the family who lived near CD, was an employee of FACS. She became aware that CD had been informed that she and her husband had complained about the child’s welfare to FACS. She suspected that their complaint was not being taken seriously and was concerned that her grandchild remained at risk for some time because of this.

35. She alleged that CD had copies of internal FACS documents including their complaint which she produced at Family Court proceedings in 2018. She also alleged that she received abusive phone calls from a male using EF’s phone. She reported these calls to Police but they could not identify the caller.

The ROSH report

36. The ROSH report concerned the welfare of the child AB. The respondent relied on clauses 3(a), 3(b) and Schedule 1 Clause 10 of the GIPA Act in withholding certain information contained in this report.

The information withheld in reliance on clause 10

37. Clause 10 of Schedule 1 provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of information contained in a report to which section 29 of the Children and Young Persons (Care and Protection) Act 1998 applies. Section 29 applies to a report made by a person in good faith in relation to a child or young person.

38. It is evident, from examining the report, that it contains reports about the welfare of a child, namely AB. It is not submitted that any of the reports were not made in good faith. The information provided by the applicant has not been withheld. However there is also information in the ROSH report which comes from other sources.

39. Some of this information appears under the heading “Child Protection History”. A certificate signed by a delegate of the Secretary of the respondent was tendered regarding this information to the effect that the redacted information relates to reports to which s 29 applies. Section 29(1A) provides that a certificate purporting to be signed by the Secretary that a document relating to a child or young person is a report to which this section applies is admissible in any proceedings and, in the absence of evidence to the contrary, is proof that the document is such a report.

40. I am satisfied from a review of the report and the certificate that clause 10 applies to the withheld information. Because of this, there is a conclusive presumption that an overriding presumption against disclosure applies, and the Tribunal has no power to review that presumption.

The information withheld in reliance on clause 3(a)

41. This information is information of a personal nature relating to dates of birth, phone numbers and similar matters. Personal information is defined in clause 4 of Sch 4 as:

“information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.”

42. Clause 1 of Sch. 4 defines “reveal” as follows:

“reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).”

43. Therefore if the information is already public it may not come within 3(a).

44. [NOT FOR PUBLICATION]

45. I am satisfied that the information above is personal in nature and disclosure of this information could reasonably be expected to disclose personal information. Therefore clause 3(a) applies.

The investigation report and attachments

46. The investigation report concerned allegations made by Ms Johnson and her husband that EF had accessed the FACS records concerning CD and her child and disclosed it to persons outside FACS without legitimate authority to do so. They also alleged that EF had smoked marijuana in their presence and suggested that EF had provided their phone numbers to her de-facto partner who then made threatening phone calls to the applicant.

47. It is not the role of the Tribunal to conduct “a collateral review of the merits or validity of official action”: Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 at [24] (concerning the former Freedom of Information Act 1989 (NSW)); Raven v The University of Sydney [2015] NSWCATAD 104 at [45]; Smith v Pittwater Council [2016] NSWCATAD 67 at [11]. The Tribunal cannot, therefore, determine whether FACs or the employee have acted lawfully or fairly in relation to the allegations.

48. [NOT FOR PUBLICATION]

49. The respondent withheld the allegations put to EF, the summaries and extracts of evidence from witnesses, the analysis and commentary of the investigator, and the investigator’s recommendations concerning future action to be taken by the respondent.

50. [NOT FOR PUBLICATION]

51. The respondent relied on the following clauses in relation to the information withheld in various respects.

Clauses 1(d) and (f) - disclosure could reasonably be expected to prejudice the supply of confidential information to an agency that facilitates the effective exercise of that agency’s functions; or prejudice the effective exercise of the agency’s functions.

52. The Tribunal has recognised in a number of cases that agencies rely on the cooperation of staff to obtain access to the best information on which to make findings and take action in cases of misconduct. The effective performance of an agency’s employer functions requires that complaints relating to employee misconduct are handled confidentially (MJ v Department of Education and Commerce [2013] NSWADT 213 and Ansoul v City of Sydney [2017] NSWADTAD 65.) The test for clause 1(d) is whether the agency will be able to obtain such confidential information from employees in the future if the information in question is disclosed (Selby v Commissioner of Police (NSW) [2013] NSWADT 61) and this is to be determined at a broad operational level (Camilleri v Commissioner of Police (NSW) [2013] NSWADT 80).

53. My examination of the individual witness transcripts supports the evidence of Ms Carl that the witnesses were required to keep the information discussed strictly confidential. The report itself is marked “Highly confidential” and the investigator was expressly required to treat the investigation as confidential. The respondent was also reminded that the process was confidential. Therefore I am satisfied that the information withheld is confidential information.

54. [NOT FOR PUBLICATION]

55. [NOT FOR PUBLICATION]

56. In relation to the information described above on page 5 of the attachments, owing to the lack of evidence I am not satisfied that it was received in confidence or treated confidentially, until it was made part of the investigation report, or that disclosure of that information would prejudice the supply of other information, as the person concerned is not named in the document.

57. Disclosure under the GIPA Act of the information provided by witnesses, however, could reasonably be expected to create concern among witnesses and employees if they believed their evidence and the findings made about their conduct could be widely known. The evidence of Ms Carl is that the respondent relies on witness and staff cooperation when investigating misconduct allegations, and disclosure of the investigation report may make it significantly more difficult for the respondent to obtain witness evidence and manage employee misconduct as persons may be reluctant to participate.

58. It is not feasible to simply delete their names from the document as the nature of their evidence would indicate who they are.

59. The Tribunal has expressed the view that while not all employees might withdraw their cooperation in these circumstances, it is reasonable that some might be expected to be more guarded in the information they provide and some might withdraw completely (Department of Education and Training v Mullett (No. 2) [2002] NSWADTAP 29).

60. I accept that managing allegations of employee misconduct is a function of the respondent under s 69 of the Government Sector Employment Act 2013. It is accepted that the effective performance of an agency’s functions depends to a significant extent on the performance and management of its staff (Ansoul at [38]).          

61. In relation to 1(f) the respondent submits that disclosure could prejudice the effective exercise of its function of meeting its work health and safety obligations under the Work Health and Safety Act 2011, in that disclosure of misconduct information could create additional stress and psychological risk for employees. Ms Carl stated she is concerned about stress on EF and has observed stress and anxiety exhibited by persons involved in investigations, but there is no other evidence on this issue, and I am not satisfied that this claim is established.

62. The respondent also submits that disclosure of the information could reasonably be expected to prejudice the function of investigating misconduct by prematurely disclosing information and inhibiting or discouraging potential complainants or witnesses from coming forward. This is one of the reasons behind maintaining confidentiality as Ms Carl stated, to maintain the integrity of the investigation and to manage employee conduct effectively. I accept that this could reasonably be expected to occur, and is relevant to clause 1(f).

63. I therefore conclude that clauses 1(d) and (f) apply to the information in question, apart from the information on page 5 of the attachments.

Clause 1(g) - disclosure could reasonably be expected to found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence

64. As discussed in AFW v WorkCover Authority of NSW [2013] NSWADT 51 it is ultimately a question of fact as to whether information was obtained in confidence.

65. The respondent relies on its Employee Misconduct Policy and Procedure but this came into force after the events in question.

66. In Commissioner of Police (NSW) v Camilleri [2012] NSWADTAP 19, the Appeal Panel held that the question as to whether information is "confidential information" is to "be examined, primarily at least, by reference to the agency’s evidence as to the conditions under which it conducts the service within which the information was received" (at [33]) and that the enquiry "should focus on the point of receipt, and the administrative standards and community understandings which surrounded it" (at [34]).

67. There is insufficient evidence, in my view, that disclosure of the information could reasonably be expected to found a legal action for breach of confidence, as contended by the respondent. I am satisfied, however, on the available evidence discussed above and my review of the report and attachments and the evidence of what witnesses were told and requested to do, that witnesses understood that their evidence was to be treated confidentially and that they must treat information about the investigation confidentially. I am satisfied that the investigator and the officers of the respondent dealing with the investigator understood the information exchanged was confidential. The report itself was prepared and delivered to the agency in confidence. I am therefore satisfied that clause 1(g) applies to the report and attachments.

Clause 1(h) – disclosure could reasonably be expected to prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).

68. It has been held that it is the conduct, effectiveness and integrity of the audit, test, investigation or review in issue, not some other or future audit, which is relevant when applying this consideration (Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [75]). The opening words of clause 1, however, refer to “in a particular case or generally” and therefore either can be applied (see Robinson, NSW Administrative Law, GIPAA 14.240). The respondent claims disclosing the report and attachments would prejudice future investigations into employee misconduct.

69. The clause refers to revealing the investigation’s purpose, conduct or results. Information regarding the conduct of the investigation has been disclosed, as has its purpose. Therefore it is a question of whether revealing the results of the investigation will prejudice the conduct, effectiveness or integrity of future investigations. There is an absence of evidence to support a finding that disclosure of the findings and disciplinary action would discourage witnesses from providing information as submitted by the respondent. I am not satisfied that this clause applies in this particular case.

Clause 3(a) and (b) - disclosure of the information could reasonably be expected to reveal an individual’s personal information, or contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002.

70. Personal information is defined in clause 4 of Sch 4 as:

“information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.”

71. It does not include an individual’s name and non-personal contact details, position title, public functions and the agency in which the individual works that reveals nothing more than the fact that the person was engaged in the exercise of public functions.

72. Information and opinions about the conduct of employees is personal information (McKinnon v Blacktown City Council [2012] NSWADT 44).

73. There are abundant amounts of personal information in the report and attachments. In the witness evidence, much of it relates to the individuals’ personal lives and is sensitive in nature. The names of witnesses have been withheld on the basis that information that they have given evidence is also personal information. The respondent states that the information is now held solely by the Professional Conduct Unit. No third party consultation was undertaken by the respondent with regard to the personal information.

74. [NOT FOR PUBLICATION]

75. [NOT FOR PUBLICATION]

76. Subject to what is said at paragraph 75, I am satisfied on the evidence that clause 3(a) applies to the report and the attachments because of the extremely personal nature of the information gathered by the investigator.

77. The Information Protection Principle relied on by the respondent is s 18 of the PPIP Act.

“18 Limits on disclosure of personal information

(1)   A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless:

(a)   the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or

(b)   the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or

(c)   the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.

(2)   If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.”

78. In this case, disclosure would be for another purpose than that for which it was collected. There is no information as to whether the individuals concerned would object, but given the sensitivity of the information and the evident hostility between the applicant and her husband and CD it is likely that they would. There is no evidence that the individuals concerned were made aware that information of the kind is normally disclosed. There is also no serious and imminent threat to the life or health of the individual concerned or another person. I am satisfied that clause 3(b) applies to the report and attachments.

Personal factors

79. The respondent relies on the following personal factors against disclosure:

1. The applicant and EF are known to each other in the community;

2. It is likely that should the information be released in the community this would have negative implications for EF’s welfare and standing in the community.

80. These personal factors may only be considered in relation to the public interest considerations against disclosure in clauses 3(a) and 3(b) – s 55 (3) GIPA Act.

81. The applicant states that she does not want witnesses’ names but she wants to know that the Department has learned from the investigation and that the employee concerned has been disciplined for releasing their personal information.

Whether there is an overriding public interest against disclosure

82. The respondent identified a number of public interest considerations which it states exist in favour of disclosure, including that disclosure could reasonably be expected to:

1. reveal or substantiate that misconduct has been committed by a member of the agency;

2. promote open discussions and enhance government accountability and debate on issues of public importance;

3. inform the public about the operations of agencies and their policies and practices for dealing with members of the public;

4. reveal the reason for a decision of the agency and the background or contextual information that informed that decision;

5. promote the fair treatment of individuals in their dealings with agencies.

83. The respondent submits, however, that the portions of Document 2 which have been provided to the applicant are sufficient to enable her to understand the process that was undertaken and how it was determined whether the allegations were substantiated.

84. The applicant states that the public has a right to know about EF’s actions due to the seriousness of her misconduct. She agrees that disclosure would reveal or substantiate that misconduct has been committed by a member of the agency and promote open discussions and enhance government accountability and debate on issues of public importance. In addition it would advance fair treatment and proper storage and protection of information. She is also dissatisfied with her treatment by FACS and hopes to discover information about why this occurred and to what level EF allegedly interfered with the welfare of her grandchild.

85. The applicant submits that the confidentiality of the information should be given less weight because FACS had failed to maintain confidentiality over her information and their functions were compromised by EF’s actions.

86. She alleges that EF’s conduct was wilful and premeditated and put a child at risk, and therefore her rights should be given less weight. She wishes her conduct to be open to public scrutiny.

83. She also alleges that she may have been discriminated against by FACS on the basis of her Aboriginal descent, as she was not allocated to an Aboriginal liaison officer although she requested one. She believes this indicates interference in the process.

84. She does not wish to have names of individual third parties, only “the outcomes of what FACS has found, what level [EF] played in this matter, and what files [EF] accessed on FACS computers related to myself and my grandson, what actions FACS took against [EF] and the complete level of interference [EF] played in this matter and if other FACS members were involved.”

85. Mr Johnson submitted that potential embarrassment to the agency was not a relevant consideration and someone needed to take responsibility.

Consideration

90. In relation to clauses 3(a) and 3(b), disclosure of the withheld information in the ROSH report, the investigation report and the attachments would reveal information which is personal and sensitive in nature and I am satisfied that in the case of the investigation report and attachments, this would breach an Information Protection Principle.

91. In relation to clauses 1(d) and (f), I am satisfied that disclosure of the information in the investigation report could reasonably be expected to prejudice the effective performance of FACS’ functions in relation to the management of its staff and prejudice the supply of confidential information from staff and witnesses which would make it significantly more difficult for it to obtain witness evidence and manage employee misconduct. This also applies to the attachments to the report, with the exception of the information on page 5 of the attachments described in paragraph 54 and 55.

92. Counter to this is that the information in question is relevant to the applicant’s family and interactions with FACS, and the applicant believes that misconduct has been committed which breached her privacy and confidence and put her grandchild’s wellbeing at risk. It is clear that the applicant wants EF’s and FACS’ conduct to be open to public scrutiny and feels her interests deserve less weight. While disclosure would promote open discussion and allow the public to be aware of what occurred, I am not satisfied that this is more important than ensuring that FACS can effectively investigate misconduct by its employees, who deal with sensitive information and have important welfare functions and protect the personal information of its staff where disciplinary action has been taken. If the applicant wishes to pursue her rights regarding a potential breach of her privacy, there are other avenues for doing so.

93. I appreciate however that there is a public interest in a member of the public understanding how FACS deals with allegations that a member of its staff has breached confidentiality or privacy, particularly where it affects a member of their family. The applicant has already received some information of this nature and I am not persuaded that receiving the balance of the report would assist her in this regard, with the exception of the information referred to at paragraphs 54 and 55. I have not identified that any public interest considerations against disclosure apply to that information apart from clause 3(a) and (b) which applies to part of that information. In my view those considerations against disclosure are not outweighed. I therefore consider that the correct and preferable decision is that in respect of the information described in paragraphs 54 and 55 above, where indicated, the decision will be set aside and the following information should be released:

1. The first sentence of the second bullet point on page 5.

2. Third and fourth bullet points on page 5.

94. The remainder of the decision of the respondent will be affirmed.

Orders

1. The decision of the respondent is varied as follows:

1. The respondent is to release the information on page 5 of the attachments to the investigation report as described at paragraph 93 of these reasons.

2. The decision is otherwise affirmed.

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

Registrar

Decision last updated: 20 January 2020