Jones v NSW Department of Education

[2017] NSWCATAD 51

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Jones v NSW Department of Education [2017] NSWCATAD 51
Hearing dates:	12 July 2016; 16 August 2016
Date of orders:	10 February 2017
Decision date:	10 February 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	The decision of the NSW Department of Education to refuse to provide the Applicant with access to the statement by a staff member made on 11 December 2015 about an incident involving the Applicant is affirmed.
Catchwords:	Access to government information - overriding public interest against disclosure - personal information - information provided to an agency in confidence - information provided to the agency during an investigation - prejudice supply of confidential information - prejudice effective exercise of agency's functions
Legislation Cited:	Government Information (Public Access) Act 2009
Cases Cited:	AMH v New South Wales Local Health District [2013] NSWADT 282 Commissioner of Police, NSW Police Force v Camilleri [2012] NSWADTAP 19 Department of Education and Training v Mullett (No 2) [2002] NSWADTAP 29 Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 Jenkinson v Department of Education and Communities [2013] NSWADT 280 Luxford v Department of Education and Communities [2016] NSWCATAD 118 McKinnon v Blacktown City Council [2012] NSWADT 44 Mclnnes v Department of Education and Training [2013] NSWADT 219 Searle Australia Pty Limited v Public Interest Advocacy Centre and Another (1992) 108 ALR 163
Category:	Principal judgment
Parties:	Elizabeth Jones (Applicant) NSW Department of Education (Respondent)
Representation:	Solicitors: E Jones (Applicant in person) J Pendergast (Agent for Respondent)
File Number(s):	1610201
Publication restriction:	Section 64 of the Civil and Administrative Tribunal Act 2013 applies to the material filed by the Respondent on a confidential basis. That material is not to be released to either the Applicant or to the public.

REASONS FOR DECISION

1. The Applicant is employed by the NSW Department of Education (“the Department”) as a classroom teacher. She was the subject of a formal performance monitoring program to manage her performance following previous investigations undertaken by the Department's Employee and Performance Conduct Directorate (“EPAC”).

2. The Applicant applied to the Department under the Government Information (Public Access) Act 2009 (“the GIPA Act”) requesting access to information held by the Department. In her access application the Applicant sought the following information:

"EPAC monitoring notes/information relating to Term 3 and Term 4, 2016. These can be obtained at the School or through EPAC. (All notes, information regarding me).

Notes/information that any other staff member has discussed of me, or supplied to TPS concerning me.

Information is to cover the period 13 July 2015 to 19 January 2016".

3. The Applicant subsequently clarified her request as limited to information for Terms 3 and 4 of 2015. The performance monitoring program was in place during the time period covered by the access application.

4. Ms Michelle Chau Hua, Senior Information Access Officer in the Department’s Information Access Unit determined the access application. Ms Chau Hua identified 57 pages of records as falling within the scope of the access application. She decided to provide access to part of the information and to refuse access to part of the information on the basis that, on balance, there was an overriding public interest against its disclosure.

5. Ms Chau Hua identified the following Public Interest considerations in favour of disclosure:

• There is a general public interest in favour of disclosure;

• The information relates to the Applicant’s personal and professional interests; and

• Releasing the information may help the Applicant better understand decisions the Department has made that affect her.

6. Ms Chau Hua identified a number of the Public Interest considerations against disclosure contained in the Table to section 14 of the GIPA Act as relevant. She found that disclosing the information could reasonably be expected to have one or more of the following effects:

• prejudice the future supply of confidential information that facilitates the effective exercise of the Department's functions (Item 1(d));

• prejudice the effective exercise of the Department's functions (Item 1 (f));

• found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence (Item 1(g));

• prejudice the conduct, effectiveness or integrity of any investigation or review conducted by the Department by revealing its purpose, conduct or results (Item 1(h));

• reveal the personal information of other individuals (Item 3(a));

• contravene Information Protection Principle 18 under the Privacy and Personal Information Protection Act 1998 (Item 3(b));

• disclose information that would not be in the best interests of the children concerned (Item 3(g)); and

• could expose a person to a risk of harm or of serious harassment or serious intimidation (Item 3(f)).

7. The Applicant was not satisfied with Ms Chau Hua’s decision and applied to the Tribunal for external review.

8. The matter came before me for hearing in July 2016. Following the hearing I remitted the matter for redetermination by the Department, taking into account information that had been released to the Applicant following the original decision and concessions that the Department had made in regard to the release of other information.

The Redetermination decision

9. The Department’s R/Senior Information Access Officer, Ms Jenni Pendergast, undertook the redetermination.

10. Ms Pendergast decided to vary the original decision and to provide the Applicant with access to information about allegations made on 11 December 2015. This took account of information that had been revealed to the Applicant in an EPAC letter in June 2016. The EPAC letter had given the Applicant information to enable her to respond to the allegations. Ms Pendergast decided to release the information that was revealed in the EPAC letter.

11. Ms Pendergast decided that the remainder of the original decision would stand.

Action following the redetermination

12. The matter was listed for a further case conference on 9 August 2016. On that occasion the Applicant indicated that she did not wish to proceed and the matter was listed for dismissal. The Applicant subsequently wrote to the Tribunal and requested that the matter be determined.

13. A further case conference was held on 18 October 2016. On that occasion Senior Member McAteer listed the matter to be determined on the basis of the material already filed. He indicated that the matter to be determined was limited to a statement (“the statement”) by a staff member made on 11 December 2015 about an incident involving the Applicant ('the incident').

14. The Applicant subsequently wrote to the Tribunal and advised that EPAC had finalised its investigations. She also advised that at the case conference held on 18 October 2016 Ms Pendergast had indicated that the Applicant would receive all documents pertaining to the allegations/investigations once the EPAC investigation was complete. The Applicant complained that she had not received the allegation reports concerning the dates 11 December 2015, 9 March 2016 and 10 March 2016.

15. I have not been advised as to whether or not those reports have now been provided. However, I note that the original access application requested information for the period “13 July 2015 to 19 January 2016". Information relating to March 2016 is outside the scope of the access application and therefore outside the scope of the Tribunal’s jurisdiction.

16. In light of the undertaking given by Ms Pendergast on 18 October 2016 I accept that the Applicant should be given the information that was the subject of the undertaking.

Issues for determination

17. The issue for determination by the Tribunal is whether or not the decision to refuse to provide the Applicant with the statement is the correct and preferable one.

18. The Tribunal must determine whether or not there is an overriding public interest against disclosure of the statement.

The Applicable legislation

19. The objects of the GIPA Act as set out in section 3(1) are to advance the system of responsible and representative democratic government by authorizing and encouraging public release of government information by agencies, giving the public an enforceable right to access government information and providing that such access is restricted only when there is an overriding public interest against disclosure.

20. The GIPA Act establishes a presumption in favour of disclosure of government information unless there is an overriding public interest against disclosure: section 5. Applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure: section 9. The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the "overriding secrecy laws" set out in schedule 1. In the case of those laws it is conclusively presumed that there is an overriding public interest against disclosure: sections 11 and 14.

21. With respect to government information not covered by overriding secrecy laws, the GIPA Act establishes a principle that there is a public interest in favour of disclosure: section 12(1). The category of public interest considerations in favour of disclosure is not limited: section 12(2). That subsection then sets out several examples of public interest considerations in favour of disclosure.

22. There can be an overriding public interest against disclosure only when the public interest test in section 13 is satisfied. It provides that "There is an overriding public interest against disclosure of the 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".

23. In considering whether there is an overriding public interest against disclosure, the Tribunal is to be guided by section 15, which provides that agencies must exercise their functions so as to promote the objects of the GIPA Act and must have regard to any relevant guidelines issued by the Information Commissioner.

24. The Department relies on several clauses of the Table to section 14 of the GIPA Act: Items 1(d)), 1(f)), 1(g)), 1(h)), 3(a)), 3(b)), 3(g)); and 3(f)).

25. Section 14 of the GIPA Act relevantly 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.

...

Table

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,

…

(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, 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).

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,

…

(f) expose a person to a risk of harm or of serious harassment or serious intimidation,

(g) in the case of the disclosure of personal information about a child - the disclosure of information that it would not be in the best interests of the child to have disclosed.

26. Section 105(1) of the GIPA Act provides that the burden of establishing that the decision is justified lies on the Department.

27. The relationship between the relevant sections of the GIPA Act that address the public interest considerations was examined in the Administrative Decisions Tribunal (“ADT”) Appeal Panel case of Commissioner of Police, NSW Police Force v Camilleri [2012] NSWADTAP 19:

24. Putting to one side the cases where a conclusive presumption is relied upon, the Act envisages a two-step approach to the question of whether information has been properly refused.

25. The new Act has a more structured approach to the decision-making task than was seen under the previous legislation. The agency case for refusal must rely on one or more of the section 14 Table considerations. The Tribunal's task is then to weigh that case against the factors favouring disclosure (s 13), mindful of the injunctions that appear in both ss 12 and 15. It is important, in our view, that the Tribunal proceed in the structured way reflected by these provisions. The Table considerations are concerned with systemic features of the operation of government.

26. We agree with the agency's submission that the section 14 questions needed to be examined at a broader operational level than occurred in this case. The record in issue was generated in one of the standard services of the police force. It would not be usual, as we see it, to introduce at this stage of the process considerations connected with the particulars of the instant situation. The agency acknowledged that at the next stage of the enquiry, the section 13 stage, it would be proper to have regard to specific aspects of the instant case.

27. The approach to be adopted is similar to that commended by the Appeal Panel under the previous legislation, there in connection with cl 13(b)(ii). Clause 13(b)(ii) provided that 'a document is an exempt document if it contains matter the disclosure of which could reasonably be expected to prejudice the future supply of such information to the Government or to an agency'. Clause (b)(iii) went on to provide 'and would, on balance, be contrary to the public interest'.

28. In Director General, Department of Education & Training v Mullett & anor (GD) [2002] NSWADTAP 13 (Mullett), the Appeal Panel said:

58 In our view cl 13(b)(ii) requires the Tribunal to engage in a relatively abstract analysis. It must ask whether material of the kind sought to be protected on the present occasion would, if released, prejudice the supply of similar material to government in the future, as a matter of reasonable expectation. That requires the Tribunal to characterise the nature of the material sought to be protected on the present occasion; to identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; the extent to which guarantees of confidentiality may be necessary. We agree with the dicta of Young CJ in Ryder v Booth [1985] VR 870 as to how a similar question arising under the Victorian FOI Act's in-confidence exemption (whether disclosure would be reasonably likely to impair the ability of an agency to obtain information communicated in confidence) should be approached. His Honour said at 872:

`The question then is, would disclosure of the information sought impair (i.e. damage) the ability of the [agency] to obtain similar information in future. ... It may be noted that it is the ability of the [agency] that must be impaired. The paragraph is not concerned with the question whether the particular doctor whose report is disclosed will give similar information in future but with whether the agency will be able to obtain such information. ...'

29. This approach was endorsed in many subsequent Tribunal and Appeal Panel decisions. The same approach is required, as we see it, in relation to many of the s 14 Table considerations. They squarely focus on considerations relating to the conduct of the business of government. Under the first five clauses of the section 14 Table there are a total of 35 possible 'effects' listed (clause 1, nine; clause 2, nine; clause 3, seven; clause 4, five; clause 5, five). Each of the five clauses is introduced by the words:

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 .:.

30. The Tribunal is called on to examine whether the effect is established and then to ask whether the disclosure 'could reasonably be expected' to have the specified effect.

31. In this case the Tribunal was required to form an opinion on whether disclosure of the information could reasonably be expected to have the effect of prejudicing the supply to an agency of confidential information that facilitates the effective exercise of the agency's functions (cl 1(d)); or, if not seen as 'confidential information', would nonetheless prejudice the effective exercise by an agency of the agency's functions (cl 1(f)). As to the different spheres of operation of cl 9(d) and cl 1(f) and their connection to the provisions of the previous legislation, see generally, Robinson, New South Wales Administrative Law (NSWAL service) [50.6890] and [50.6930].

28. The section 14 Table considerations on which the Department relies must be weighed against the considerations in favour of release. I have noted Ms Chau Hua's view in regard to the considerations in favour of release. I agree with that view.

Section 55 considerations

29. Section 55 of the GIPA Act provides that the "personal factors of the application" may be taken into account in determining whether there is an overriding public interest against disclosure of information.

30. In this matter, the Applicant only seeks information that is held in relation to her.

31. It is apparent that relationships between the Applicant and others in her workplace are troubled. The release of the statement has the potential to exacerbate those relationships.

Could reasonably be expected

32. The requirement, common to all the public interest considerations against disclosure in the Table to section 14, is that disclosure could reasonably be expected to have the nominated effect.

33. The phrase ‘could reasonably be expected to’ has been the subject of judicial consideration in numerous matters. The words "could reasonably be expected" refer to an expectation that is based on reason, that is to say one for which real and substantial grounds exist when looked at objectively. (Searle Australia Pty Limited v Public Interest Advocacy Centre and Another (1992) 108 ALR 163 at 176.)

34. In McKinnon v Blacktown City Council [2012] NSWADT 44 Judicial Member Molony stated:

42 … the public interest consideration against disclosure in clause 1 and 3 of the Table requires an objective assessment as to whether the claimed effects could be expected to arise. Ultimately, it is a question of fact as to whether the disclosure of the information in issue could reasonably be expected to have the prescribed effect if disclosed. That fact being established to the relevant standard of proof, on the balance of probabilities.

43 In submissions the Agency argued that the suggestion that a fact had to be established on the balance of probabilities was at odds with established authority in dealing with the same phrase in the context of the Freedom of Information Act 1989. The Agency referred to the Tribunal decisions in Leech and in Neary v State Rail Authority [1999] NSWADT 107, where the President said, at [35] -

.. it is not necessary that the level of risk be such that it be assessed as more probable than not. Nor is it necessary for the administrator to apply a balance of probabilities calculus similar to that used to set the burden of proof in litigation.

35. In my view this is the correct basis for determining whether the disclosure of a document "could reasonably be expected" to have a particular effect.

36. With respect to each public interest consideration against disclosure upon which it relies, the Department is to show that there is something more than a possibility, risk or chance that disclosure of the information could have the nominated effect.

37. It remains to be determined whether or not there is an overriding public interest against disclosure of the statement.

The material before the Tribunal

38. As noted above, the onus is on the Department to justify its decision. I have been given an unredacted copy of the statement.

39. The Department relies on both open and confidential statements. It relies on the evidence of Ms Nicole McFarlane, an EPAC Chief Investigator; an open and a confidential statement by Ms Michele Walmsley, Assistant Principal, Tomaree Public School; and a confidential statement by the staff member who provided the statement.

40. Ms McFarlane provided information in relation to:

(i)    the complaints handling process; and

(ii)    the operational reasons for maintaining confidentiality of staff responses.

41. Ms Walmsley provided information in relation to:

(i)    the confidentiality of staff responses; and

(ii)    the Applicant's relationship with work colleagues.

42. The staff member who provided the statement indicated that they have significant concerns that disclosure of their opinions could lead to them being harassed or intimidated by the Applicant.

43. The Department has also provided a copy of its "Complaint Handling Policy Guidelines" and its "Guidelines for the Management of Conduct and Performance" which both emphasise the confidentiality of those processes.

44. Ms Pendergast provided written submissions in relation to each of the asserted public interest considerations against disclosure.

45. The Applicant relies on his own evidence and also provided written submissions in support of her case.

Public interest considerations against disclosure

46. The Department submits that if the statement is released, interpersonal relationships between staff at the Applicant’s workplace are reasonably likely to be compromised and consequently, will have a negative effect on the school's day to day functions.

(1)(d) - Prejudice supply of confidential information that facilitates effective exercise of the agency's functions

47. The Department contends that disclosure of the information would prejudice the future supply of information by employees in the Department's complaint handling processes, and would thus undermine the Department's ability to undertake those processes.

48. The "Complaint Handling Policy Guidelines" emphasises the confidentiality of the complaint handling process. The "Guidelines for the Management of Conduct and Performance" also emphasises confidentiality when dealing with managing conduct and performance.

49. Ms McFarlane stated that it is important that the Department be able to give an undertaking of confidentiality to encourage staff to participate in the investigation of complaints. If the statement was released to the Applicant in this case, there may be reluctance for staff to provide information to EPAC in future investigations.

50. Ms Walmsley’s evidence is that she assured the staff member who provided the statement that their information would remain confidential. The staff member had and continues to have significant concerns regarding the confidentiality of their response. In reliance on Ms Walmsley’s assurance the staff member voluntarily wrote the statement regarding the incident.

51. Ms Pendergast submits that if EPAC were to disclose personal information about an individual without his or her consent staff, students and members of the public would be reluctant to co-operate with EPAC investigations in the future.

52. The Department is obliged to investigate the conduct of employees including members of the teaching service to ensure public confidence. The release of the statement would seriously hinder the Department's exercise of this important function and has the potential to undermine the safety, welfare and wellbeing of staff and students.

53. If the Department does not handle confidential information with sensitivity and discretion, people would be unwilling to come forward and co-operate and sources of such information would not be available. This would severely impede the Department's ability to carry out a range of necessary functions, including complaint handling, employee conduct investigations of Code of Conduct breaches and receiving allegations related to the protection of children and young persons.

54. While there is the theoretical possibility of compelling staff to write such statements, the usual practice is to rely on voluntary cooperation of staff.

Consideration

55. In Commissioner of Police v Camilleri 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". The enquiry “should focus on the point of receipt, and the administrative standards and community understandings which surrounded it”.

56. I have considered the statement and I am satisfied that it was received in confidence and I accept that the Department’s practice is to treat such information as confidential. I considered a comparable issue and the Department’s practice in my decision in Luxford v Department of Education and Communities [2016] NSWCATAD 118.

57. I am satisfied that in this particular matter the Department’s processes dealt with the information regarding the incident as confidential information.

58. I am in general agreement with the Department that its complaint handling and investigative processes depend on the supply of relevant information. If that supply was prejudiced it would undermine the Department's ability to undertake those processes. In the circumstances of this matter it is clear that the statement was integral to the EPAC investigative process.

59. Clause 1(d) is concerned with the future ‘supply of confidential information’. In Department of Education and Training v Mullett (No 2) [2002] NSWADTAP 29 at paragraph [50], the Appeal Panel observed that:

“conscientious employees would ordinarily see it as appropriate and proper for them to co-operate with departmental inquiries. If information of the kind in issue were to be released, it is not likely in our view that all employees would withdraw all future co-operation with similar inquiries. However, there is a likelihood that some might be more inhibited and guarded in the extent of their communication than may have previously occurred; and some might withdraw co-operation completely out of fear (reasonable or otherwise) of adverse repercussions flowing from publicity. To that extent, a relevant prejudice to the future supply of information would arise”.

60. In determining whether disclosure would prejudice the supply of information, the test is not whether this complainant would in future refuse to supply that information but whether information of the kind in question facilitates the exercise of the Department's functions and, whether the disclosure of such information could reasonably be expected to prejudice the supply of such information: Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at paragraph [52].

61. In my view it is clear from the nature of the statement, and from the circumstances in which the Department obtained it, that it is information that facilitates the effective exercise of the Department's functions. I am also satisfied on the basis of the Department's evidence that disclosure of information of this nature could reasonably be expected to prejudice the supply of such information to the Department as others might not be prepared to supply information if they are concerned about the information becoming publicly available. In my view this consideration should be given significant weight.

62. I note the Applicant's motives for making the access application. She has indicated her view that:

(i)    she should be able to obtain any information written about her and her actions;

(ii)   if others have discussed information pertaining to her then she should be able to have the same knowledge; and

(iii)    she should be granted access to "confidential" information about her or pertaining to her as denial of that access infers a slur on her reputation and defames her character.

63. In my view this consideration should also be given significant weight. However, it is clear that much of the information regarding the incident has been disclosed as a result of the redetermination.

Where does the balance lie?

64. In my view, the release of the statement has the potential to prejudice the supply of confidential information that facilitates effective exercise of the Department's functions. Given the extent of the information to which the Applicant has already been given access, and the actual content of the statement, this potential prejudice outweighs the potential benefit from the release of the statement.

(1)(f) - Prejudice the effective exercise by an agency of the agency's functions

65. Ms Pendergast submits that the Department is obliged to investigate the conduct of employees, including members of the teaching service to ensure that there is public confidence in the Department. The release of the statement would seriously hinder the Department's exercise of its functions of ensuring the safety, welfare and wellbeing of staff and students and the appropriate management of breaches of the Department's Code of Conduct.

66. It is also submitted that the disclosure of the statement would:

• have a detrimental impact on interpersonal relationships of employees, the health and well-being of staff and the day-to-day functions of the School;

• have a detrimental impact on relationships between Departmental staff and EPAC; and

• compromise the capacity of the Department to exercise its responsibilities with respect to investigations of complaints about alleged breaches of the Department's Code of Conduct.

67. Ms Pendergast points to the decision in AMH v New South Wales Local Health District [2013] NSWADT 282, in which the disputed information related to the investigation of a complaint of bullying and harassment. The Tribunal accepted that the disclosure of information in that case would prejudice the agency's future management of human resource issues requiring disciplinary investigations and on the day to day operations of the agency.

68. In Jenkinson v Department of Education and Communities [2013] NSWADT 280 the Tribunal accepted that disclosure of information supplied in the course of an investigation into a complaint could reasonably be expected to prejudice the effective exercise by the Department of its functions in respect of the health and wellbeing of staff.

Consideration

69. Clause 1(f) requires an agency to establish that the release would prejudice the effective exercise of its functions. This provision has been considered in a number of Tribunal decisions: see discussion in Luxford. As with Clause 1(d) above, this provision has often been considered in relation to an agency’s assertion as to the importance of obtaining confidential information in order to effectively exercise its functions. Clause 1(f) does not require that the information in issue had been provided in confidence.

70. In this matter, the Department has identified a number of functions that it contends could reasonably be expected to be prejudiced by the disclosure of the information. It is not necessary that the Department prove beyond doubt that the prejudice will occur. It must show that it could reasonably be expected. For the expectations to be reasonably based real grounds must be seen to exist when looked at objectively.

71. I am satisfied on the basis of the Department’s evidence that it could reasonably be expected that disclosure could detrimentally impact on the wellbeing of the staff member who provided the statement. It could also have a detrimental impact on relationships between Departmental staff and EPAC and this would compromise the capacity of the Department to exercise its responsibilities.

72. On balance, I accept that the disclosure of the statement relating to the incident could be reasonably expected to prejudice the effective exercise of that aspect of the Department’s functions. It could cause detriment to or disadvantage those functions. Accordingly I am satisfied that clause 1(f) applies to that information.

(1)(g) - Found an action for breach of confidence or otherwise result in the disclosure of information provided in confidence

73. As I have noted above, there is evidence that the statement was provided in confidence. It is a public interest consideration against disclosure of information if disclosure could reasonably be expected to found an action for breach of confidence or otherwise result in the disclosure of Information provided in confidence.

74. I accept that the statement was provided in confidence. In my view this consideration should be given significant weight.

(1)(h) Prejudice effectiveness of investigation by revealing its purpose conduct or results

75. It is a public Interest consideration against disclosure of information if disclosure could reasonably be expected to prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by the agency by revealing its purpose, conduct or results.

76. Ms Pendergast submitted that disclosure of the statement in this case would prejudice the current and future investigation by EPAC as potential witnesses will be reluctant to participate in investigations if the confidentiality of their information cannot be assured.

77. Ms Pendergast points to the decision in Mclnnes v Department of Education and Training [2013] NSWADT 219, in which Judicial member Isenberg accepted the prejudicial effect that disclosure of such information would have on future investigations. She stated at paragraphs [40] - [41]:

40.   … I accept that there is some reliance by the Respondent on the co-operation of employees and former employees and others in investigating allegations. Further, I accept there is a risk that members of the public may be reluctant to report matters to the Respondent about allegations of impropriety if the Respondent were unable to protect their privacy.

41.    I accept that the release of information in this case could reasonably be expected to prejudice the future supply to the Respondent of confidential information that facilitates the effective exercise of the Respondent's functions.

78. I agree with that view. I accept that in the circumstances of this matter the release of the statement could reasonably be expected to prejudice the future supply to the Department of confidential information that facilitates the effective exercise of the Department's functions. If that were to occur it would prejudice the effectiveness of the investigation. However, it is difficult to see how it would do so “by revealing its purpose conduct or results”. I am not satisfied that the Department has established that Clause 1(h) applies in these circumstances.

(3)(a) and 3(b) reveal a person's personal information and contravene an information protection principle

79. It is a public interest consideration against disclosure of information if disclosure could reasonably be expected to reveal a person's personal information ((3)(a)) and contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 ("the PPIP Act") ((3)(b)).

80. It is not clear whether the Department continues to press this issue. In her redetermination Ms Pendergast stated:

I have decided that pages 27, 28, 35, & 36 identified in the schedule contain personal information of third party students. Such information has been provided in the records released to you.

Schedule 4 Clause 4 of the GIPA Act defines personal information. I am satisfied that the records reveal personal information of third parties because it is information or an opinion about an individual whose identity is apparent or can be reasonably ascertained from the information, and none of the exceptions at Clause 4 apply. The personal information reveals names of students and staff members.

I am not satisfied that a disclosure of this information could reasonably be expected to contravene the disclosure information protection principle in section 18 of the Privacy and Personal Information Protection Act (PPIP Act). …

Disclosing the information without the consent of the third parties is not likely to contravene the above Information Protection Principle because the students named were in your class at the time the information was collected by the school for the monitoring of your performance. Therefore, this information has already been revealed to you.

These factors weigh strongly for disclosure.

81. I accept that is the correct position. Schedule 4 to the GIPA Act provides these definitions:

"disclose" information includes make information available and release or provide access to information.

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

82. I am satisfied that the names of students and staff members that I have referred to in the passage from the redetermination decision is information that has already been disclosed to the Applicant. The release of that information could not ‘disclose’ or ‘reveal’ it.

83. The same cannot be said in regard to the statement. The statement contains opinions of the staff member and would reveal their identity. While that information may be characterised as the Applicant's personal information, insofar as it is "information or an opinion" about her, it is also the personal information of the staff member, as it is an expression of their opinions and views.

84. Clauses (3)(a) and (b) have been considered in a number of decisions of this Tribunal and the Administrative Decisions Tribunal. I also discussed these provisions in some detail in Luxford.

85. In my view, disclosure of the statement could reasonably be expected to reveal the staff member’s personal information. In the circumstances of this matter considerable weight should be placed on the fact that the personal information includes the identity and contact details of the staff member. I note that that the staff member has objected to the information being released to the Applicant.

86. I accept that the disclosure of the opinions would allow the Applicant to form her own view in regard to that issue and this is a consideration in favour of release.

87. In weighing these considerations I have taken into account the extent of the information to which the Applicant has already been given access and the content of the statement. In the circumstances it is my view that greater weight should be given to clause 3(a) as a consideration against disclosure than to the fact that the Applicant is requesting access to her own personal information that has been withheld.

Weighing the public interest

88. Section 105 of the GIPA Act places on the Respondent the burden of establishing that the decision is justified. As I have noted above, the Respondent has provided a copy of the statement and other withheld information. Following the hearing I remitted the matter for reconsideration and made some recommendations in regard to the reconsideration. The Applicant was not satisfied with the outcome of the reconsideration and pressed for the Tribunal to make a determination. As a result of the reconsideration the Respondent released further information to the Applicant and the issues in dispute have been significantly narrowed.

88. I have considered the statement and the arguments relating to the public interest considerations for and against its disclosure and my findings are set out above. For the most part I have agreed with the Respondent in regard to the weigh to be given.

89. In my view, the Respondent has satisfied the burden placed upon it by section 105. I am satisfied that the public interest considerations against disclosure of the statement outweigh the public interest considerations in favour of disclosure. Accordingly, it is my view that the Respondent's decision to refuse access to the statement is the correct and preferable decision. The decision should therefore be affirmed.

Orders

1. The decision of the NSW Department of Education to refuse to provide the Applicant with access to the statement by a staff member made on 11 December 2015 about an incident involving the Applicant is affirmed.

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: 10 February 2017