Keriakes v State Rail Authority of NSW

[2003] NSWADT 191

CITATION:	Keriakes v Chief Executive Officer, State Rail Authority [2003] NSWADT 191
DIVISION:	General Division
PARTIES:	APPLICANT Joyce Keriakes RESPONDENT Chief Executive Officer, State Rail Authority
FILE NUMBER:	023110
HEARING DATES:	10/12/2002
SUBMISSIONS CLOSED:	12/19/2002
DATE OF DECISION:	08/15/2003
BEFORE:	Hennessy N - Magistrate (Deputy President)
APPLICATION:	access to documents - confidential material - access to documents - operation of agencies - access to documents - personal affairs - Freedom of Information Act - access to documents - confidential material - Freedom of Information Act - access to documents - operation of agencies - Freedom of Information Act - access to documents - personal affairs
MATTER FOR DECISION:	Principal
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Livingstone & anor -v- State Rail Authority of New South Wales [2002] NSWADT 25 Maher and Attorney General’s Department (1985) 7 ALD 731 B and Brisbane North Regional Health Authority (1994) 1 QAR 279 Wiseman v Commonwealth, unreported, Federal Court, 24 October 1989 Ryder v Booth [1985] VR 870 Attorney General's Dept v Cockcroft (1986) 64 ALR 97 Searle Australia Pty Limited v PIAC (1992) 36 FCR 111 Neary v Chief Executive, State Rail Authority [1999] NSWADT 107 Bennett v Vice Chancellor of New England University [2000] NSWADT 8 Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606 Chambers and Department of Families, Youth and Community Care, 1999 5 QAR 16 Kioa v West (1985) 159 CLR 550 Livingstone v Anor v State Rail Authority of New South Wales [2002] NSW ADT 25 Hocknell and Australian Telecommunications Corporation (1991) 23 ALD 446 Bayliss and Department of Health and Family Services (1997) 48 ALD 443 Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 43 A v Director General, Department of Health [2002] NSWADT 59 Colakovski v Australian Telecommunications Commission (1991) 29 FCR 429 Dale and Australian Federal Police (1997) 47 ALD 417 Chief Executive Officer, State Rail Authority v Woods [GD) [2003] NSWADTAP 25 Woods -v- Chief Executive Officer, State Rail Authority [2002] NSWADT 253 Humane Society International Inc v National Parks and Wildlife Service & Ors [2000] NSWADT 133 Targridge Pty Ltd and Road Traffic Authority (1988) 2 VAR 604
REPRESENTATION:	APPLICANT In Person RESPONDENT S Goodman, counsel
ORDERS:	The agency’s decision not to release the names and other identifying details of the signatories to "the petition" is affirmed.

REASONS FOR DECISION

Introduction

1 On 28 January 2002, the applicant, Ms Keriakes, applied to the State Rail Authority of New South Wales (the agency), under the Freedom of Information Act 1989 (FOI Act) for:

Petition filed by fellow worker Rino Olic, Town Hall and signed by other employees forwarded to Mr Tony Osmani, acting Area Manager, CBD. Then Mr Peter Brown, acting Station Operations Manger, Mr Geoff Amos, General Manager Station Operations, Fran McPherson, Deputy Chief Executive Officer, on or about the 21st January through to the 25th January 2002.
2 The agency identified one document (“the petition”) which came within the scope of the applicant’s request and denied the applicant access to that document. The applicant requested an internal review of the agency’s decision. The result of the internal review was that the agency decided not to exercise the discretion in s 24(2)(e)(iii) of the FOI Act to accept the application for internal review out of time.

3 On 22 May 2002, Ms Keriakes applied to the Tribunal for a review of the decision to refuse access to the petition. At a case conference on 5 July 2002, the Tribunal remitted the decision to the agency under s 65 of the Administrative Decisions Tribunal Act 1997 (ADT Act) to re-determine the matter by 19 July 2002. On 19 July 2002 the agency granted the applicant access to the petition with the names and signatures of the 12 signatories deleted.

The petition

4 The petition is an internal memorandum from several staff members, all of whom have been supervised at various times by Ms Keriakes who is a Customer Service Team Leader (CSTL). That part of the petition which was released to the applicant states that:

We, the undersigned would like to air our grievances regarding CSTL Joyce Keriakes. The manner in which CSTL Keriakes relates to staff is far from appropriate. Her targeting of staff from specific ethnic groups and her continual harassment of staff, has led to certain staff members taking sick leave or swapping shifts or relinquishing duty rather than working with her. Some staff have even transferred because of her. These problems are causing a very unhealthy working environment at Town Hall Station. We are requesting that management look into this matter urgently and take the appropriate action to alleviate this problem.
5 On 3 September 2002, the agency produced a statement of reasons. On 8 November 2002, the agency filed an amended statement of reasons relying on further exemptions. It is the combination of these two documents, which comprises “the decision” under review. In accordance with s 63 of the ADT Act, the Tribunal must decide whether the agency’s decision not to grant access to the petition in full is the “correct and preferable” decision.

Statutory scheme

6 The objects of the FOI Act are set out in section 5(1)(a):

The objects of this Act are to extend, as far as possible, the rights of the public:
(a) to obtain access to information held by the Government; and

(b) to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect out of date or misleading.

7 An agency may refuse access to a document if it is an "exempt document" (FOI Act s 25(1)(a)). Pursuant to s 6(1) of the FOI Act an "exempt document" includes a document referred to in Schedule 1. In this case the agency is relying on the exemptions in Clause 6 (personal affairs), Clause 13 (confidential material) and Clause 16 (operations of an agency). These provisions are set out below:

6 Documents affecting personal affairs

(1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).

(2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made.

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.

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:
(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

(b) would, on balance, be contrary to the public interest.
8 Pursuant to s 61 of the FOI Act, the onus of proof is on the agency to justify any decision to withhold documents. Under s 55(a) of the FOI Act the Tribunal, in determining a review application, “is to ensure that it does not, in the reasons for its decision or otherwise, disclose any exempt matter.” This means that the names of the signatories cannot be disclosed.

Evidence and findings of fact

9 Nature of the evidence. The agency tendered an affidavit from Jeffrey Stirk dated 13 November 2002. Mr Stirk also gave oral evidence. The agency tendered four confidential affidavits and provided expurgated versions of those affidavits to the applicant. The agency presented further documentary evidence in support of its case. The applicant did not provide any written evidence prior to the hearing, but gave oral evidence at the hearing.

10 Town Hall Station. Town Hall station has a staff of 90 to 100 people. There is a station manager (Clyde Livingstone), several Duty Managers, Customer Service Team Leaders, (including the applicant) and Customer Service Attendants (a number of whom were signatories to the petition.) Customer Service Attendants carry out platform, ticket barrier and cleaning duties and report to one or more Customer Service Team Leaders. Managerial staff (including the applicant) are generally members of the Australian Services Union (ASU), while non-managerial staff are generally members of the Rail Tram and Bus Union (RTBU). I accept Mr Stirk’s evidence that there is some conflict between the members of each union given their divergent interests.

11 Medlock Report. In December 2000, at the request of the agency, Mr Medlock prepared a report entitled SRA Report of Inquiry into Staff Grievances (the Medlock Report). Mr Clyde Livingstone and Ms Soula Vlahos applied under the FOI Act for a copy of that report. (See Livingstone & anor -v- State Rail Authority of New South Wales [2002] NSWADT 25, where the Tribunal affirmed the agency’s decision to provide part only of that document the applicants.) Mr Medlock’s recommendations included that Ms Keriakes be provided “with the necessary management training, particularly addressing people management and conflict resolution techniques”

12 Grievance Resolution Policy. In December 2001, the agency introduced a new Grievance Resolution Policy (the policy) which sets out the expectations and obligations in relation to grievances which are not serious enough to constitute a breach of the agency’s Code of Workplace Standards. One of the principles set out in the policy is that “confidentiality in grievance situations is essential.” The policy goes on to state that “Generally, the grievant and the respondent should be aware of, and agree on, how far information is being communicated in relation to the grievance.” The policy does not specify whether or in what circumstances, a person who is the subject of a grievance should be provided with a copy of the grievance or the names of the people who have complained.

13 Victimisation. Another objective of the policy is to protect grievants from victimisation. The policy says that one way of achieving this is by “applying confidentiality.” In addition, the policy notes that protection from victimisation can be achieved through rigour in performance management processes and the use of disciplinary procedures for misconduct. Step 4 of the grievance handling process requires the investigator to provide the respondent with “full details of the grievance.”

14 Lodgement of petition and management’s response. The petition was presented to the management of the agency on 23 January 2002. Mr Stirk, who is responsible for the management of CityRail and Countrylink stations in NSW, received a copy of the petition from Rino Matarazzo an Area Manager, and decided to investigate the issues raised in the petition. Following a conversation with Mary O’Sullivan, Manager of Workplace Conduct at the agency, they agreed to speak individually to the signatories in order to obtain further information about the allegations. Mr Stirk and Ms O’Sullivan met with five of the signatories and told each of them that the meeting was confidential. The remaining seven signatories either cancelled or failed to meet with Mr Stirk. Their reasons for not attending are dealt with below.

15 Procedural fairness. Following the interviews with five of the signatories, Mr Stirk and Ms O’Sullivan met with Ms Keriakes and Joe Moon from the ASU. Mr Stirk says that he told Ms Keriakes the general nature of the complaints about her without mentioning any names or specific incidents. Mr Stirk said that he then gave Ms Keriakes the opportunity to put her side of the story. Ms Keriakes said that she was not given that opportunity and that Mr Stirk told her not to worry about the allegations.

16 I find that the allegations were put to Ms Keriakes in general terms without reference to specific people or incidents. In that context it would have been difficult for Ms Keriakes to respond in any detail to those matters. However, I find that she was given an opportunity to respond to the general allegations that were made.

17 Outcome of the investigation. Following these interviews Mr Stirk decided that none of the alleged matters justified disciplinary action because they did not constitute a breach of the agency’s Code of Workplace Standards. He found that the conflict arose, in part, from Ms Keriakes’ management style. Mr Stirk decided to take no further action in relation to the matters raised in the petition.

18 Intention and actions of person who prepared the petition. The person who prepared the petition assured the other signatories that the petition would be provided to executive management of the agency and the union, but would not be provided to Ms Keriakes or to any other manager at Town Hall Station. The person who prepared the petition did not show it to anyone else at Town Hall Station other than the signatories themselves.

19 Expectations of signatories. Four Customer Service Attendants who signed the petition provided statements saying that they only signed it on the understanding that it was to be kept confidential. Each of those people objected to the release of their name and other identifying details contained in the petition. They all said that if that information were released they would not be prepared to approach management again with any concern they may have regarding incidents in the workplace.

20 Role of Grievance Resolution Policy. Mr Stirk expressed the view that the policy creates an expectation among employees that grievances will not be communicated further without the consent of the person complaining. While that may be so in general terms, there was no evidence from the signatories that they were aware of, or re-assured by, the content of the Grievance Resolution Policy and I find that the policy did not create any particular expectation in their minds about confidentiality.

21 Waiver of confidentiality. Ms Keriakes alleged that management did not keep the identity of the signatories confidential. She bases that assertion on an allegation that Mr Stirk told the Station Manager, Mr Livingstone, to arrange interviews with each of the signatories. Only one of the confidential affidavits from the signatories states that the request to attend the interview was received from Clyde Livingston. The others indicate that it came directly from Mr Stirk or SRA headquarters. Mr Stirk said that as far as he could recall the request did not come from him but may have been sent by another investigating officer. Mr Stirk also gave evidence that the only people with whom he has discussed the petition were Ms O’Sullivan and Helen Dalton, Manager Stations-Human Resources. He also said that the petition has not been circulated generally within the SRA and the only people in management who have a copy are himself, Tony Osmani, Ms O’Sullivan, Ms Dalton, Mr Matarazzo and their immediate supervisors.

22 Finding re waiver. In some circumstances the person who has imparted confidential information may subsequently waive the obligation to treat that information confidentially. A waiver can be either express or implied. There was no express waiver in this case, but Ms Keriakes submitted that Mr Stirk waived any confidentiality by distributing the names of the signatories to Mr Livingston. The difficulty with this submission is that only the confider of the information can waive confidentiality. None of the signatories to the petition distributed the petition, so it cannot be said that confidentiality was waived.

23 Non-attendance at interviews by signatories. There were confidential memoranda in evidence from five signatories who did not attend the interview. Given that Mr Stirk interviewed five of the signatories, two of the twelve people who signed the petition did not write a memorandum explaining their non-attendance. Two of the memoranda contained general reasons for not attending the interview such as withdrawing the complaint, or not wanting to be part of the matter. One person said they were “mislead” in relation to the petition and another said that signing it was a “mistake”. Another signatory wrote that he or she did not realise what was in the petition when they signed it and that Ms Keriakes is a good supervisor. In the expurgated version of one of the confidential affidavits, a signatory to the petition stated that: “I did not attend this interview because CSTL Keriakes’ behaviour had improved towards me and I no longer wished to purse the issues raised in a petition.”

24 Fear of harassment. It was part of the agency’s case that some signatories suffered increased harassment from Ms Keriakes after attending the interview or chose not to attend the interview because of a fear of such harassment. This proposition is supported in two of the affidavits from signatories. One signatory gave evidence that he or she did not attend the interview because of concern about further harassment from Ms Keriakes. Another reported experiencing an increase in the level of harassment from Ms Keriakes after the interview. One of the reasons that four of the signatories do not want their identities revealed is that they anticipate that Ms Keriakes’ attitude towards them will deteriorate if she knows they signed the petition.

25 Findings on harassment. Despite Ms Keriakes’ denials of any harassment, I accept the evidence of the two signatories summarised above. That evidence is supported by hearsay evidence from other witnesses.

26 Current situation. Ms Keriakes currently supervisors some of the signatories to the petition at various times. Those staff members have said in their affidavits that in the last few months Ms Keriakes has treated staff much better than previously. Ms Keriakes said that her attitude towards staff has not changed since the petition was written and that the training she undertook as a result of the Medlock Report has not made any difference, because she was a good manager to begin with. She made the comment that no matter how well you treat some employees, they do not want to work.

27 Opportunity for victimisation. According to those who prepared confidential affidavits, Ms Keriakes has the power to give directions and is in a position to influence the duties that staff members are assigned on each shift. Mr Stirk gave evidence that Customer Service Team Leaders, such as Ms Keriakes, have a significant amount of control over the tasks they give to Customer Service Attendants. He also said that they have some capacity to control the overtime that might be available. Ms Keriakes denied that she has the power to roster people on to particular shifts or that she is responsible for allocating overtime. I accept that evidence as she is in a better position to know what her powers are than Mr Stirk. I also find that Ms Keriakes continues to supervise a number of the signatories and can give them directions as to the duties they are to carry out during their shift.

28 Reasons for seeking access to the signatories. Ms Keriakes’ main reason for seeking access to the names of the signatories was that she says she has a right to that information because it is about her. She also agreed that she was curious as to who had signed the petition. She expressed the view that people should think carefully about signing a petition. She added that “these people tried to stain my name” and they were “stupid” and “mislead” to have signed the petition. Ms Keriakes expressed the view that the signatories should be disciplined for their behaviour in signing the petition without proof of misconduct, but she realises that it is now too late for management to take any action against them. In Ms Keriakes’ view, the signatories are “a group of nobodies who decided to destroy my reputation.”

Confidential material exemption

29 Clause 16 states that:

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.

30 Summary of requirements . The agency must establish that each of the three requirements in Clause 16 is met. In this case, those requirements are that: release would disclose information obtained in confidence; disclosure could reasonably be expected to prejudice the future supply of such information to the agency; and disclosure would, on balance, be contrary to the public interest.

31 Obtained in confidence. In order for information to be “obtained in confidence” it must have been “communicated and received under an expressed or inferred understanding that [it] would be kept confidential.” (See Re Maher and Attorney General’s Department (1985) 7 ALD 731 at 737; Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279 at 338.) Confidentiality can be inferred from all the circumstances. (Wiseman v Commonwealth, unreported, Federal Court, 24 October 1989.)

32 Tribunal’s conclusion on whether information was obtained in confidence. There is ample evidence from several of the signatories and Mr Stirk that it was their understanding that the petition would be treated confidentially. The person who prepared the petition assured the other signatories that the petition would be treated confidentially. Senior management of the agency received the petition on the understanding that it would be kept confidential and they treated the petition confidentially. There was an express understanding on both sides, that the content would be kept confidential in the sense that only senior management and union representatives would be given a copy of the petition. I am satisfied on the basis of all the evidence, including the confidential affidavits, that the petition, including the names of the signatories, was “obtained in confidence.”

33 Could reasonably be expected to prejudice the supply of similar material in the future. The Tribunal must now determine whether release of the information in the petition could reasonably be expected to prejudice the supply of similar material to government in the future. In Ryder v Booth [1985] VR 870 Young CJ dealt with a similar question arising under the corresponding (though not identical) provision in the Freedom of Information Act 1982 (Vic). 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 . . .
34 His Honour went on to observe at p 872, that the question is a question of fact. (See also Attorney General's Dept v Cockcroft (1986) 64 ALR 97 per Bowen CJ and Beaumont J at 106.)

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. (See Re B and Brisbane North Regional Health Authority at 341 and Bennett v Vice Chancellor of New England University [2000] NSWADT 8 at [37].)

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. On the basis of all the evidence, I am satisfied that disclosure of the petition could reasonably be expected to prejudice the future supply of such information from the agency’s employees.

38 Public interest. The final issue is whether disclosure would, on balance, be contrary to the public interest. The factors in favour of disclosure are those concerned with the democratic objectives of the FOI Act in promoting accountability and transparency of governmental operations. (See Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606).

39 Despite the fact that Ms Keriakes maintained that she was not given a fair opportunity to put her side of the story, I found to the contrary. In addition, she has now been given a copy of the content of the petition. Nevertheless, concerns about procedural fairness are relevant when assessing the public interest in the disclosure of information.

40 Other bodies have cautioned administrators against guaranteeing confidentiality because of the possibility that procedural fairness will be breached. In Chambers and Department of Families, Youth and Community Care, 1999 5 QAR 16, Commissioner Albietz made the following comment at [17]:

I do not see how it could ordinarily be practicable to promise confidential treatment for relevant information supplied by the parties to a grievance procedure (ie, the complainant(s) and the subject(s) of complaint) who should ordinarily expect their respective accounts of relevant events to be disclosed to the opposite party . . . for response. Sometimes investigators may be tempted to promise confidentiality to secure the co-operation of third party witnesses, in the hope of obtaining an independent, unbiased account of relevant events. Even then, however procedural fairness may require disclosure.
41 Procedural fairness does not always require that the identity of the person who has made the allegations be revealed to the person who is the subject of the complaint. As Brennan J noted in Kioa v West (1985) 159 CLR 550 at 629, the precise content of the rules of natural justice depends upon the circumstances in which the body subject to those rules is to exercise its powers.

42 The agency submitted that any public interest in procedural fairness has been met by giving Ms Keriakes the content of the petition and providing her with an opportunity to tell her side of the story. Furthermore, since the matter has been resolved without any adverse action against Ms Keriakes, there is now no utility in her knowing the identity of the signatories to the petition.

43 I found that the allegations were put to Ms Keriakes in general terms without reference to specific people or incidents. While that would have made it difficult for Ms Keriakes to respond in any detail to those matters, I am satisfied that she was given an opportunity to respond to the general allegations that were made. The agency did not make any adverse finding against Ms Keriakes. In those circumstances there cannot be any suggestion that non-disclosure of the names of the signatories to the petition constitutes a breach of procedural fairness or is unfair in any other way unfair.

44 The agency submitted that there are several public interest considerations against disclosure. There is a public interest in the efficient and effective operation of the agency and in providing a safe workplace free from harassment and victimisation. According to the agency, the efficiency of the complaints procedure relies to some extent on the ability to maintain confidentiality especially where there is a risk of harassment or victimisation. It is essential that channels of confidential communication be maintained. (See Livingstone v Anor v State Rail Authority of New South Wales [2002] NSW ADT 25 at [19] to [21].)

45 The agency maintained that the operational effectiveness of Town Hall Station would be adversely affected if the identity of the signatories were disclosed because disclosure is likely to reduce the future flow of information. The agency needs to carefully manage interpersonal conflicts given the sensitivity of the relationships between the Customer Service Attendants and management. According to the agency, the avoidance of such conflicts is clearly in the public interest.

46 In relation to the provision of a safe workplace, the agency pointed out that the work carried out by Customer Service Attendants requires cooperation and trust among officers. Attendants may be called on to provide back up for one another if a potentially dangerous situation develops with passengers. If that trust is not present then the agency may be exposing employees to an unsafe working environment. Disclosure is likely to exacerbate the inter-personal conflicts that the agency has tried to resolve and lead to a deterioration in the trust which the staff of Town Hall have for one another.

47 Tribunal’s conclusion on public interest. This is not a case where the democratic objectives of accountable and transparent government will be appreciably compromised if the signatories names are not disclosed. While Ms Keriakes has a right to the information unless the agency can prove that it is covered by an exemption, disclosure will not assist her in understanding the basis of the agency’s decision not to take any disciplinary action against her, nor will it assist her in pursuing any other legitimate rights or interests she may have.

48 The public interest considerations against disclosure are relatively strong. I have accepted the evidence of two signatories that they fear further harassment from Ms Keriakes. Furthermore, Ms Keriakes continues to supervise some of the signatories so that there would be an opportunity for harassment and victimisation if the names were disclosed. I do not mean to infer from this statement that Ms Keriakes would necessarily harass or victimize anyone, merely that some signatories fear that that would happen.

49 It is also in the public interest for the agency to be able to receive information in confidence from employees about the conduct or performance of other employees. The opportunity to provide confidential information helps to ensure that management has the fullest picture possible of the inter-personal and other issues existing among staff members. Fairness to the person complained about may require that some or all of the information be disclosed prior to making a decision which could adversely affect their interests. In this case, there was no breach of procedural fairness.

50 In certain circumstances, unless confidentiality is ensured, employees and others will not be willing to come forward. In those cases the agency will be deprived of information which may be critical to the efficiency and well-being of its workforce. Taking into account all the evidence and submissions, I am satisfied that it is contrary to the public interest to disclose the names of the signatories to the petition in this case. Although it is not strictly necessary to do so, I will go on to consider the agency’s other claims for exemption under Clauses 16 and 6.

Documents concerning operations of agencies

51 Summary of requirements. In order for the agency to make out the exemption under Clause 16, it must establish that disclosure could reasonably be expected either to have a substantial adverse effect on the management or assessment by an agency of the agency's personnel, or to have a substantial adverse effect on the effective performance by an agency of the agency's functions. In addition disclosure must, on balance, be contrary to the public interest.

52 In relation to the effect on the management or assessment by an agency of the agency's personnel, the agency referred the Tribunal to the decision of the Commonwealth Administrative Appeals Tribunal (AAT) in Re Hocknell and Australian Telecommunications Corporation (1991) 23 ALD 446. That case was concerned with the Commonwealth equivalent of clause 16 in relation to a letter written by a former subordinate to the FOI applicant's superior. Deputy President Bannon stated (at 447-448):

In any organisation, especially one as large as that of the respondent, free and confidential communication by staff to superior officers concerning personal problems and management difficulties appears to be essential to the smooth running of the organisation. Personal difficulties can arise between different staff members who are incompatible or make life difficult for others. ... The management of such a large organisation as that of the respondent would be seriously hampered if there were no channels of confidential communication.
53 In relation to the meaning of "substantial adverse effect" the agency pointed to the decision of the AAT in Re Bayliss and Department of Health and Family Services (1997) 48 ALD 443 at 452, where Deputy President Forgie held that what is required is an adverse effect that "is real or of substance and not that which is insubstantial or nominal".

54 According to the agency, disclosure in this case would significantly obstruct the channels of confidential communication. The effect of disclosure would be to discourage staff from using those channels of communication if they believed that their identity as a complainant might be disclosed. This would have a significant adverse effect on the management of the agency’s personnel.

55 Tribunal’s conclusions on management or assessment by an agency of the agency's personnel. I am satisfied that disclosure of the names of the signatories could reasonably be expected to have a substantial adverse effect on the management or assessment by an agency of the agency's personnel. The receipt of full and frank opinions from employees enhances the management and assessment of employees generally. While information about an employee’s conduct and performance can be obtained from other sources, the candid opinions about the conduct and performance of staff from fellow employees is invaluable. An agency must take care to ensure that confidential information does not produce unfairness in the process by which an employee’s performance or conduct is assessed. But stemming the flow of information by denying confidentiality would severely limit the agency’s ability to manage and assess their staff.

56 The second criterion for the attraction of the exemption in clause 16 is that disclosure would, on balance, be contrary to the public interest. For the reasons discussed in paragraphs 38 to 50 above, this criterion is met.

Personal affairs exemption

57 Deleted information. Pursuant to Clause 6 of Schedule 1 to the FOI Act, to be exempt, the deleted information in the petition must contain information concerning the personal affairs of any person (other than the applicant) and disclosure of that information must be unreasonable. The information which has been deleted from the petition are the names, addresses, phone numbers and signatures of the people who signed the petition. A perusal of the original petition makes it clear that the only deleted information in the petition which is capable of identifying a signatory is the name and the signature of the person concerned.

58 Agency’s submissions. The agency submitted that in order to determine whether the names of signatories constitute personal affairs the context in which those names appear must be examined. (Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 43 at [42]. In the present case it was the agency’s submission that the context includes:

a) the signatories appear below the body of the petition and reveal the identity of those of the CSAs supervised by Ms Keriakes who have signed the petition;

b) the body of the petition reveals that the signatories were aggrieved at the way in which Ms Keriakes treated them as individuals – claims that they were harassed by her because of their particular ethnic background are claims about matters which affect each of them personally. Similarly, the effect of that behaviour is manifest at a personal level – staff taking sick leave, swapping shifts, relinquishing duty and transferring to other stations;

c) the exempt information is considered by the individuals themselves to be personal. They would not have been signed and written their names and other information on the petition if they had thought that Ms Keriakes would be able obtain that information. Whilst this evidence cannot be determinative of the question, it is a matter to be considered and afforded appropriate weight; and

d) the making and signature of the petition was not a task carried out by the Customer Service Attendants as part of their obligations as employees.

59 On the basis of these factors, the agency submitted that the signatories signed the petition because of the impact of Ms Keriakes’ behaviour on them. That impact, said the agency, is a matter of private concern to each of them.

60 According to the agency, while the witnessing of inappropriate workplace conduct may not concern the personal affairs of the witness, experiencing the relevant harassment or other conduct is a matter of private concern. That conduct relates directly to the personal or private relationship between the complainant and the subject of the complaint. In the present case the agency says that the signatories were more than mere witnesses to the alleged conduct of Ms Keriakes; her conduct affected them personally and the petition is a matter which concerns their personal affairs.

61 The confidential affidavits allege that the names and other potentially identifying information concern the deponent’s personal affairs. Pursuant to s 55 of the FOI Act, it is not possible to provide further details of the content of those affidavits because to do so may involve the disclosure of exempt matter.

62 Perrin’s case. Whether information concerns the personal affairs of a person is a question of fact in each case. The leading case on Clause 6 is Commissioner of Police v District Court of New South Wales (Perrin’s Case) (1993) 31 NSWLR 606, a decision of the Court of Appeal. In that case Kirby P held at p 625 that “personal affairs” means “the composite collection of activities personal to the individual concerned." The Court of Appeal held that the disclosure of the names of police officers and employees involved in the preparation of official reports in the course of their duties was not information concerning their personal affairs. Kirby P said at p 625, that:

Applying that test, it cannot properly be said that the disclosure of the names of police officers and employees involved in the preparation of reports within the New South Wales police can be classified as disclosing information concerning their personal affairs. The preparation of the reports apparently occurred in the course of the performance of their police duties. What would then be disclosed is no more than the identity of officers and employees of an agency performing such duties. As such, there would appear to be nothing personal to the officers concerned. Nor should there be. It is quite different if personnel records, private relationships, health reports of (perhaps) private addresses would be disclosed. Such information would attract the exemption.
63 Similarly, in A v Director General, Department of Health [2002] NSWADT 59 at [ 32]-[38], the Tribunal held that A’s name, which appeared in an investigation report which was solely concerned with A’s duties at the hospital, did not amount to “personal affairs”. The same approach has been followed under the Freedom of Information Act 1982 (Cth) in cases including Colakovski v Australian Telecommunications Commission (1991) 29 FCR 429 at 440 and Re Dale and Australian Federal Police (1997) 47 ALD 417 at 425.

64 The agency sought to distinguish Perrin's Case on the basis that the names of the officers who were doing no more than performing their “duties” was not information concerning their personal affairs; rather it concerned the affairs of the agency (at 625C per Kirby P.; 638G per Mahoney JA.). According to the agency, there was no relevant duty being performed in the present case. The agency also sought to distinguish A v Director General, Department of Health [2000] NSWADT 59, on the same basis.

65 The most recent consideration of this issue appears in the Appeal Panel’s decision in Chief Executive Officer, State Rail Authority v Woods [GD) [2003] NSWADTAP 25. That decision set aside the Tribunal’s decision in Woods -v- Chief Executive Officer, State Rail Authority [2002] NSWADT 253 on the basis among others, that the Tribunal had erred in its interpretation of the phrase “personal affairs”. The facts of that case are similar to the facts before this Tribunal. An employee of the agency applied for access to a petition signed by a number of his fellow employees concerning his conduct. The Tribunal held that the petition did not disclose the personal affairs of the signatories. The Appeal Panel disagreed with that finding and found at [25], that the context in which the document was prepared must be taken into account. At [26] to [27] of the decision, the Appeal Panel said that:

Where a document deals with conduct that is being appraised or evaluated as part of the exercise of management responsibilities, it would not be open to claim that the author of the report is engaged in an activity involving their 'personal affairs'. This is the approach reflected in Perrin's case . But the situation is different if the employee is not reporting as part of the exercise of management responsibilities about the conduct of another employee. In those circumstances, it may well be that the report forms part of the first employee's personal affairs. This possibility is recognised in the case examples cited by the Queensland Commissioner in Re Stewart - the employee against employee discrimination complaint relating to conduct in the workplace (the Victorian case), and the request for a transfer referring to interpersonal difficulties with another worker (the Commonwealth case). A private citizen's complaint of alleged rudeness by a public servant would we consider, clearly involve an aspect of the no doubt 'personal' life or affairs of the citizen.
There is not, as we see it, a fundamental difference to be found in the situation of a work colleague who experiences the same type of conduct and makes a complaint to management. The conduct remains of concern to them in a private capacity.
66 In this case, I accept the respondent’s submission that the signatories’ experience or witnessing of harassment or other allegedly inappropriate conduct is a matter of private concern to them. The content of the petition makes it clear that this was the signatory’s main concern. That concern relates directly to the personal or private relationship between the signatories and Ms Keriakes and concerns their personal affairs .

67 Unreasonable disclosure. The second requirement under clause 6 is that the disclosure of the information concerning personal affairs must be unreasonable. According to the agency, reasonableness should be assessed against all of the circumstances and involves a balancing of competing public interests of privacy and access to information about government, without any predisposition towards openness or secrecy: Humane Society International Inc v National Parks and Wildlife Service & Ors [2000] NSWADT 133 at [21] to [24].

68 The agency submitted that Ms Keriakes’ motive in seeking access is also a circumstance relevant to the question of reasonableness: Gilling v General Manager, Hawkesbury City Council at [53]; Humane Society International Inc v National Parks and Wildlife Service & Ors at [26] – [31] and [51]; Targridge Pty Ltd and Road Traffic Authority (1988) 2 VAR 604 at 606 – 7 (cited at para [30] of Humane Society International Inc v National Parks and Wildlife Service & Ors); cf Re Green (1992) 28 ALD 655 at 661-662.) I accept that that is the case.

69 The relevant circumstances in the present case include:

· Ms Keriakes’ says that she is seeking access to the names of the signatories because she is curious about who had signed the petition and she has a right to the information because it is about her;

· Ms Keriakes believes that the signatories “tried to stain her name” and were “stupid” and “misled”;

· Mr Stirk’s investigation concluded that no action was required other than that Ms Keriakes complete the training she was undertaking at that time;

· some of the signatories are still subject to Ms Keriakes’ supervision and they fear that they may be victimised if she were to be provided with their names;

· there is a real possibility that Customer Service Attendants with future grievances will be discouraged from making those grievances known if the confidentiality of their complaint is not maintained.

70 The effect of the circumstances discussed above is that disclosure:

· would not appreciably further any of the democratic objectives of the legislation;

· could lead to harassment and victimisation of the signatories; and

· could inhibit the flow of information to the agency.

71 Given these findings, disclosure of the identity of the signatories is unreasonable.

Orders

72 The agency’s decision not to release the names and other identifying details of the signatories to “the petition” is affirmed.