Lemon v Department of Planning and Environment

[2019] NSWCATAD 148

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	Lemon v Department of Planning and Environment [2019] NSWCATAD 148
Hearing dates:	26 June 2019
Date of orders:	01 August 2019
Decision date:	01 August 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	G Blake AM SC, Senior Member
Decision:	1. The name of the respondent be changed to the Department of Planning and Environment. 2. The decision made on 21 December 2018 of the respondent to refuse to provide full access to the document "Incident Investigation Report - Aggression, conflict and other safety matters at Gunnedah Research Centre" and its appendices is set aside and remitted for the respondent to provide further partial access to the applicant in accordance with these reasons.
Catchwords:	ADMINISTRATIVE REVIEW – Government Information (Public Access) – application for review by person aggrieved by decision to refuse to release information – public interest considerations
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Freedom of Information Act 1989 (NSW) Government Information Public Access Act 2009 (NSW) Privacy and Personal Information Protection Act 1998 (NSW)
Cases Cited:	Alexander v University of Sydney [2008] NSWADT 214 Ansoul v City of Sydney [2017] NSWCATAD 65 Burke v Health Education and Training Institute [2016] NSWCATAD 194 CCB v Department of Education and Communities [2015] NSWCATAD 145 Collins v Department Finance, Services & Innovation [2018] NSWCATAD 60 Commissioner of Police NSW Police Force v Camilleri [2012] NSWADTAP 19 Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 Flack v Commissioner of Police, NSW Police Force [2011] NSWADT 286 Hurst v Wagga City Council [2011] NSWADT 307 Kioa v West (1985) 159 CLR 550 Macquarie University v Howell (No. 2) [2009] NSWADTAP 19 Miskelly v Secretary, Department of Education [2019] NSWCATAD 48 Robinson v Department of Health [2002] NSWADT 222 Singh v Legal Aid Commission (No 2) [2015] NSWCATAD 5 The State of Victoria v The Master Builders’ Association of Victoria [1995] 2 VR 121 Williams v Department of Industry and Investment [2012] NSWADT 192
Category:	Principal judgment
Parties:	John Malcolm Lemon (Applicant) Department of Planning and Environment (Respondent)
Representation:	Counsel: G Campbell (Applicant)   Solicitors: APJ Law (Applicant) Crown Solicitor (Respondent)
File Number(s):	2019/00072140

REASONS FOR DECISION

Summary

1. The applicant, John Malcolm Lemon, seeks an administrative review pursuant to the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) of the decision to refuse to provide full access to the document "Incident Investigation Report - Aggression, conflict and other safety matters at Gunnedah Research Centre" and its appendices (the Report) made on 21 December 2018 (the Third Decision).

2. As the name of the respondent has changed from the Office of Environment and Heritage to the Department of Planning and Environment it is appropriate to change to the name of the respondent in this application to reflect this change.

3. I am satisfied that the correct and preferable decision is to provide further partial access but otherwise to refuse full access to the Report to the applicant. Accordingly, I set aside the Third Decision and remit the matter for the respondent to provide further partial access to the Report to the applicant in accordance with these reasons.

Background

4. At all relevant times the respondent, which prior to 1 July 2019 was called the Office of Environment and Heritage and since 1 July 2019 has been called the Department of Planning and Environment, has been an “agency” within the meaning of the GIPA Act.

5. On 1 May 2017, an incident occurred at the Gunnedah Research Centre (GRC) between Mr Stephan Heidenreich (Mr Heidenreich) and the applicant (1 May 2017 incident) which led to an investigation by the respondent under its WHS Incident Reporting & Investigation Procedure dated 7 April 2016 (WHS Procedure).

6. On or about 11 April 2018, the applicant lodged an access application with the respondent under the GIPA Act seeking information relating to the 1 May Incident. The respondent identified the Report as responsive to the application.

7. On 5 June 2018, the respondent made a decision to provide the applicant with partial access to the Report (the First Decision).

8. On 29 June 2018, the applicant lodged an internal review application with the respondent under the GIPA Act relevantly seeking complete access to the Report.

9. On 20 July 2018, the respondent made a decision that was consistent with the first decision (the Second Decision).

10. On 7 August 2018, the applicant applied to the Information Commissioner for an external review of the Second Decision.

11. On 29 October 2018, Donna Howard, Investigation and Review Officer, as delegate of the Information Commissioner, published the review report, which relevantly recommended that the respondent make a new decision with respect to sections of information over which particular considerations were claimed.

12. On 21 December 2018, the respondent made the Third Decision to provide further partial access to the Report to the applicant.

The Third Decision

13. The Third Decision, which was made by Cameron Davies (Mr Davies), Acting Manager, Privacy and Information Access, contains 8 sections and a Schedule of Documents, and refers to the respondent as “OEH”.

14. Section 4, which has the heading “The public interest test”, has an introduction and 5 subsections. The introduction refers to ss 5, 9(1), 13 and 15 of the GIPA Act, and describes how Mr Davies applied the public interest test.

15. Subsection 4.1, which has the heading “Public interest considerations in favour of disclosure” and refers to s 12(1) and (2) of the GIPA Act, relevantly provides:

I find the fact that the records contain information relating to you is a consideration in favour of disclosure. I also consider that the release of the records might reasonably be expected to demonstrate how OEH deals with incidents and discharges its duty of care to its employees as being a consideration In favour of disclosure.

16. Subsection 4.2, which has the heading “Personal factors of the application” and refers to s 55 of the GIPA Act, relevantly provides:

… I have considered the circumstances of how the report came to be produced and the situation after the report was produced when looking at the personal factors of the application.

You have raised your concerns about the accuracy of the report and the impact it has had on your business and you personally. The matter is obviously important to you and you understandably seek to understand actions taken that you believe have impacted on you.

You also submitted that your firearms licence was recently renewed and asked that this be taken 'into account as it is central to this matter'. I accept that the renewal of your firearms licence goes towards demonstrating responsibility and trust in the context of firearms ownership. However, I do not think that this fact is central to the decision-maklng process here nor do I think that this fact impacts on the relevance of or weight attributable to the considerations against disclosure which are predominantly focused on the operations of OEH and individual rights of others.

In relation to the issue of procedural fairness you raised, I do not believe that procedural fairness applies to you in this instance. OEH is not your employer, nor was it at the time the report was written. OEH does not, and did not, have the ability to make decisions directly about you. Therefore, · I do not see how OEH owes you procedural fairness when you are not a party directly related to decisions that OEH made.

…

I have taken the circumstances that led up to the development of the report and the relationships between yourself and other people who work at the Gunnedah Research Centre as factors against the release of the information.

17. Subsection 4.3, which has the heading “Public interest considerations against disclosure” and refers to s 14 of the GIPA Act, states that Mr Davies has identified the considerations 1(d), 1(f), 1(h), 2(d), 2(e), 3(a) and 3(b) of the table to s 14 as being relevant to the applicant’s application, and discusses each of these considerations as follows:

Consideration 1(d)

Some of the information contained in the records that fall within the scope of your application is confidential information. It is confidential because the people who provided it were not required to provide it and there is an expectation that it will not be disclosed by OEH. This information has already been received and the Report has been written considering the information. Therefore, disclosing it is unlikely to prejudice that specific function of OEH.

However, it might prejudice OEH's functions in respect of any future work that needs to be done in respect of the incidents that led to the creation of the Report and other issues such as OE H's presence at the Gunnedah Research Centre. OEH might rely on the people who provided the confidential information to do so again. They could reasonably be expected to have concerns about providing more confidential information, and might not provide such information in future if the information is released now.

Also, the disclosure of the information could impact on other situations in the future. If OEH discloses confidential information in this instance it is reasonable to assume that it would do so again in the future. If that is a perception or assumption held by people they are reasonably likely to be less likely to provide confidential information to OEH In the future. This could impact on OEH's ability to conduct its functions as it will be poorly placed to collect confidential information that is crucial to completing tasks.

Consideration 1(f)

Similar to the reasons explained above in relation to consideration 1(d), disclosing the information is reasonably likely to have a negative effect on OEH's ability to collect or receive confidential information which would prejudice its ability to exercise its functions. This applies to the specific instance of further work in relation to the Gunnedah Research Centre and generally to other functions of OEH.

Consideration 1(h)

The Report contains information about work health and safety issues at the Gunnedah Research Centre. Disclosing this information would reveal the conduct of what is In effect an audit or review of those issues and the results of that activity which include protocols to protect OEH staff.

As those protocols relate to safety of OEH staff at the Gunnedah Research Centre, revealing them could reasonably be expected to prejudice the effectiveness of the protocols developed in the Report. This is not to say that you would attempt to undermine the effectiveness of the protocols. However, the fact of the protocols being publicly known could reasonably be expected to provide opportunities for them to be undermined. I have also considered the fact that OEH staff may lose confidence in the protocols if they are publicly known.

Consideration 2(d)

As noted above in the examination of consideration 1(h), the Report contains information relating to work health and safety, specifically an investigation that led to the implementation of protocols designed to ensure the safety of OEH staff. This is a system designed to protect health and safety.

Revealing that information could reasonably be expected to prejudice the effectiveness of that system because it may lead to circumstances where they are compromised either deliberately, or inadvertently by staff who do not believe that they will be effective because they are publicly known.

Consideration 2(e)

For reasons similar to those explained in relation to consideration 2(d), disclosing information about safety protocols could reasonably be expected to prejudice that system which is designed to protect a place, property and vehicles.

Consideration 3(a)

I have re-examined the records that fall within the scope of your application and determined that they contain personal information of people other than yourself. I note that information can be personal information of two people, for example in circumstances where a person is giving an opinion about another person. The records contain a mixture of your personal information and the personal information of other people.

I have considered the nature of the personal information in the records, whether any exemptions to the definition of personal information found in schedule 4 of the GIPA Act apply, and whether any of the personal information has already been disclosed.

I find that the exemptions to the definition do not apply and there is no information before me that suggests the personal information has already been disclosed. I am satisfied that if the personal information of third parties was disclosed through this access application it would be revealed and that consideration 3(a) is a relevant consideration.

Consideration 3(b)

Section 18 of the PPIP Act prohibits a public-sector agency from disclosing personal information unless an exemption applies. This is an information protection principle. Having established that the personal information would be revealed if it was disclosed through this access application I have turned my mind to whether any of the exemptions in these circumstances.

I find that none of the exemptions contained in subsections 18(1)(a), (b) or (c) of the PPIP Act apply and that if the personal information of third parties were disclosed it would be in breach of section 18 of the PPIP Act.

18. Subsection 4.4, which has the heading “Consultation” and refers to s 54 of the GIPA Act, relevantly provides:

Information that is the subject of your application relates to third parties. OEH consulted with those third parties to determine whether there was an objection to the release of the information …

As there was no new information identified as being relevant to your application during the course of this internal review, I did not conduct further consultation. Instead I have considered the results of the consultation conducted as part of the original decision. The results of the consultation were that one party did not object to the release of their information and one party did object to their information being released. I have taken these responses into account when making my decision.

19. Subsection 4.5, which has the heading “Balancing the public interest test”, relevantly provides:

Significant weight can be attributed to the considerations in favour of releasing the information. The information relates to an issue that you have been involved in and it is obviously of great importance to you. I also note the general public interest in favour of disclosing information.

However, there are compelling public interest considerations against the disclosure of some of the information. While the information relates to a situation that you have been involved in, there is information in the records that is not directly about you. It can be characterized as being primarily about other people or forward looking in terms of about how OEH will conduct its business.

OEH owes its employees a duty of care that extends to providing a safe workplace and protecting their privacy. The commissioning of the report and actions taken as a result of the report were in pursuit of discharging that duty of care. Disclosing certain information could reasonably be expected to have the effect of prejudicing OEH's ability to meet Its duty of care. That is, the release of the information could reasonably be expected to prejudice a system for projecting the life, health and safety of its employees as well as property and assets.

That duty of care is exceptionally important, of such importance that it overrides the reasons for releasing information. This applies to information that could reasonably prejudice OEH's exercise of its functions in relation to the Gunnedah Research Centre specifically but also more generally looking forward. OEH must take a long-term view of this matter in terms of the potential flow on consequences of the release of Information.

20. Section 5, which has the heading “Access”, states that Mr Davies has decided to release additional information to the applicant from that which was previously provided to him when his application was originally decided, and that the information released is set out in the accompanying Schedule of Documents.

21. The Schedule of Documents provides:

No.	Description of record that contains the information	Released or withheld	Relevant public interest consideration(s) against disclosure
Report*	Incident Investigation Report: Aggression, conflict and other safety matters at the Gunnedah Research Centre	Release in part	s 14 Table GIPA Act (1(d),·(f) and (h), 2(d) and (e), 3(a) and (b))
1.	SafeWork Australia definition of Workplace Bullying	Release
2.*	WHS document	Release
3.	Statements from OEH Staff
3a	Statement from staff member	Refuse in full	s 14 Table GIPA Act (1(d) and (f), 3(a) and (b))
3b	Statement from staff member	Refuse in full	s 14 Table GIPA Act (1(d) and (f), 3(a) and (b))
3c	Statement from staff member	Refuse in full	s 14 Table GIPA Act (1(d) and (f), 3(a) and (b))
4.	Statement from Water NSW staff
4a	Statement from staff member	Refuse in full	s 14 Table GIPA Act (1(d) and (f), 3(a) and (b))
5.*	Email trail about a misappropriated OEH ladder	Release
6.	Initial Risk Assessment	Release in part	s 14 Table GIPA Act (1(d),·(f) and (h), 2(d) and (e), 3(a) and (b))
7.	Water NSW protocol	Release in part	s 14 Table GIPA Act (1(h), 2(d) and (e))

* Indicates a record where more information is being released than previously.

Procedural history

22. On 4 March 2019, the applicant, on behalf of himself and JML Environmental Consultants Pty Ltd (JML Environmental) of which he is the director, commenced proceedings 2019/00072140 in the Tribunal against the respondent by lodging the application in which he seeks a review of the Third Decision.

The hearing

23. The hearing was held on 26 June 2019. The first part of the hearing was open to the public. The second part of the hearing, which was closed to the applicant and the public, involved confidential evidence of the respondent and submissions of the respondent in relation to that confidential evidence.

24. The applicant relies on the following written evidence:

1. the affidavit of the applicant sworn on 5 June 2019.

25. The respondent relies on the following written evidence:

1. the affidavit of Dr Katherine Wilson (Dr Wilson) affirmed on 14 May 2019, who prior to July 2018 was Executive Director, Science Division, of the respondent;

2. the affidavit of Mr Davies affirmed on 14 May 2019.

Each of these affidavits was in a redacted and an unredacted form.

26. During the first part of the hearing which was open to the public Dr Wilson and Mr Davies gave oral evidence.

27. The applicant relies on the following written submissions:

1. opening submissions dated 25 June 2019;

2. further submissions dated 27 June 2019.

28. The respondent relies on the following written submissions:

1. submissions received by the Tribunal on 22 May 2019;

2. confidential submissions received by the Tribunal on 2 July 2019.

The evidence of the applicant

29. In his affidavit the applicant has dealt with the matters set out below.

Background

30. Between December 1988 and June 2013, the applicant was employed in various roles at the GRC initially by the Soil Conservation Service (SCS) and subsequently by the respondent in its Science Division. From December 1988 the applicant leased the residence at the GRC from the SCS. In June 2013, the applicant was made redundant.

New lease at the residence

31. In September 2013, the applicant entered a new 12 month lease with the SGS for the residence. This lease was then renewed on a 12 or 6 monthly basis until 29 September 2017, when it was not renewed by the SCS.

The 10 year contract

32. In October 2013, the applicant commenced work with JML Environmental. In the period from October 2013 to May 2017, JML Environmental was awarded a number of contracts for research and report projects with different NSW Government agencies as well as the Whitehaven Mine, Shenhua Watermark Coal Company, as well private environmental projects. A number of these projects came from contracts JML Environmental was awarded through the respondent and other NSW Government agencies through recommendations from personnel of the respondent, to the value of approximately $50,000 per year. On 11 December 2015, North West Local Land Services, JML Environmental and SCS entered into a 10 year contract for the remediation of the GRC land including the control of feral animals.

2010 asbestos incident

33. On 28 and 29 April 2010, the applicant had communications with Mr Heidenreich about the disposal of asbestos sheeting at the GRC.

Employment of Mr Heidenreich's de facto partner

34. In the period from August 2012 to September 2013, the applicant discussed the issue with other staff members of the GRC as to whether proper recruitment procedures may not have been followed in the employment of Ms Jo Brady, who was Mr Heidenreich's de facto partner.

1 May 2017 incident

35. On 1 May 2017 there was a confrontation between the applicant and Mr Heidenreich at the GRC when, according to the applicant, Mr Heidenreich failed to move his vehicle when requested by the applicant and said to the applicant “If you dare to continue to disrespect me, I will make an official complaint".

Events following the 1 May 2017 incident

36. On or around 4 May 2017, the applicant was instructed by Mr George Georgijevic, Manager for Business & Program Support SCS, to stop using firearms for pest control at the GRC and to relocate them to another location. In the 12-month period prior to 4 May 2017, the applicant had shot, trapped and euthanized approximately 60 feral pigs at the GRC as part of his contract without any complaint. On 12 May 2017, Mr Graham Burton (Mr Burton), Work Health and Safety (WHS) Manager rang Senior Constable Burgess at the Gunnedah Police Station suggesting that "Mr Lemon is not a fit and proper person to hold a firearms licence". Since the 1 May 2017 incident, JML Environmental has not had the benefit of the $50,000 of contracts that it used to have with NSW Government agencies.

The affidavit of Dr Wilson

37. In her affidavit Dr Wilson has dealt with the matters set out below.

Background

38. The GRC is a research facility located on the outskirts of Gunnedah in north-western NSW. The land on which the GRC is situated is owned by the SCS. The primary tenants of the GRC are the respondent and Water NSW. At all relevant times the respondent has had approximately 4 to 6 staff present at the GRC.

The respondent's Work Health and Safety system

39. The WHS Procedure which was in force as at 1 May 2017 required incidents to be reported in the WorkSafe Online system (WSO) within 24 hours of the incident occurring. WSO would then determine the level of investigation required into the incident, being level 1, 2 or 3, and assign an investigator from within the WHS Section of the Corporate Services Cluster within the respondent. In the case of a level 2 incident, the assigned investigator would draft an incident investigation report using a standard level 2 template. Once complete, the report would be sent to a senior manager for review and endorsement. The process would then culminate by loading recommendations from the report into WSO and tracking actions arising from those recommendations.

40. The WHS Procedure, which has 13 sections, includes the following provisions:

1.   Introduction and Scope

This procedure applies to all OEH workplaces, employees, volunteers, contractors and visitors.

The organisation is committed to;

providing a safe and healthy working environment for its employees, contractors and other persons that may be affected by its undertaking;

protecting the environment, preventing pollution and promoting environmentally sustainable practices

complying with WHS legislation

Despite these intentions incidents sometimes occur and need to be managed to mitigate loss and meet legal requirements. Therefore incidents involving staff, volunteers, contractor or other persons or property damage as a result of, or in connection with the organisations activities must be reported, recorded and investigated.

Investigation is done to identify the cause(s) and contributing factors to enable appropriate corrective action to be determined and taken so as to eliminate, or at least minimise, the risk of a recurrence. Incidents often require ongoing management to mitigate loss and/or meet legal requirements.

…

2.   Legislation

…

2.1   Notifiable incidents includes the death of a person; a serious injury or illness of a person; or a dangerous incident.

2.2   A serious injury or illness as defined in Sec 36 of means a person with an injury or illness requiring the person to have:

(a)   immediate treatment as an in-patient in a hospital, or

(b)   immediate treatment for:

(i)   the amputation of any part of his or her body, or

(ii)   a serious head injury, or

(iii)   a serious eye injury, or

(iv)   a serious burn, or

(v)   the separation of his or her skin from an underlying tissue (such as degloving or scalping), or

(vi)   a spinal injury, or

(vii)   the loss of a bodily function, or

(viii)   serious lacerations, or

(c)   medical treatment within 48 hours of exposure to a substance, and includes any other injury or illness prescribed by the regulations

…

3.   Objectives

3.1   All incidents must be promptly reported to the immediate supervisor and in WorkSafeOnline. This allows for contemporaneous recording of accurate incident details and facilitates a degree of internal communication. This must be as soon as possible and within 24hrs of the incident occurring

…

4.   Key Concepts

4.4   An incident is any event which causes an injury or disease, or has the potential to cause an injury, death or disease, such as a near miss. The term can also be applied to significant property or plant damage. In this context the incident must involve or relate to the activities and operations of the organisation, which could include workers and visitors (including the public) to our properties or work locations.

…

5.   Procedures

5.1   Initial response and internal notification

5.1.1   Employees, contractors and volunteers must immediately inform their supervisor of any incident they are involved in or observe where injury, illness or significant damage occurs.

…

5.2   Level 1 Safety Incidents

(Minor near misses, first aid & medical treatment injuries with no lost time)

5.2.1   This level of investigation reflects the actual or likely consequence of the incident. The supervisor, as soon as practicable after the incident and with the assistance of the injured worker, shall determine the causes and contributing factors of the incident and record them on the WSO Incident Investigation section. Refer to Checklist 1 and Checklist 2 for investigation prompts. Incidents in this category that hold a potential risk of high or extreme should be investigated as per level 2.

5.2.2   The workplace manager reserves the right to request a higher level of incident review such as a level two investigation.

…

5.3   Level 2 Safety Incidents

(Serious near misses and lost time injuries)

5.3.1   The workplace manager (Region/Area/Section) shall arrange for an investigation to be undertaken as per the elements of Level 2 Safety Incident Investigation Template (available via the WSO documents tab or the WHS intranet) to ensure a thorough analysis of the incident and that the causative and contributing factors are identified and corrected.

…

5.3.4   The causes, findings and recommendations arising from the Level 2 Safety Incident Investigation shall be entered into the WSO Incident Investigation template (Att 1) for that incident and the completed Level 2 Investigation document attached to the WSO Incident page. The incident investigation report must be peer reviewed by the workplace manager (Region/Area/Section) having regard to the causes and preventative or risk reducing recommendations.

…

12. Definitions

…	…
Incident	An event which causes an injury, disease or major damage, or has the potential to cause an injury or disease, such as a near miss.
…	…
Near Miss	A near miss is an incident that, had it occurred either earlier or later, would have had real potential to cause an injury or illness.
…	…
Serious Near Miss	A near miss which has a reasonable potential to cause death or serious injury as defined in the Notifiable Incidents. (Level 2 Incident)
…	…

The investigation into the 1 May 2017 incident

41. WSO classified the 1 May 2017 incident as a level 2 incident. Mr Burton, WHS Manager within the WHS Section of the respondent, was assigned to investigate the incident. Mr Burton was supported by Ms Alison Phin, who worked in Support Services within the Science Division of the respondent. On 17 May 2017, during the investigation period, Water NSW issued a protocol for its staff. On 24 May 2017, Mr Burton attended the GRC as part of the WHS investigation into the 1 May 2017 incident. The applicant was not specifically informed of or invited to participate in the investigation because he was not, at that time, a staff member of the respondent. Furthermore, the purpose of the investigation was not to apportion blame for the 1 May 2017 incident, but to identify and seek to address any ongoing WHS issues. On 23 June 2017, Mr Burton completed the Report. Since 23 June 2017 until the present day, the Report has been treated as confidential by the respondent. Access to the Report is controlled by the records management system used by the respondent, called CM9. Only senior management in the respondent were provided with the report in accordance with the WHS policy.

Concerns about release of the Report

42. Dr Wilson holds concerns for the mental health and wellbeing of those individuals whose identities would be apparent from release of the Report. This concern has been strengthened by the objection of some of the individuals who provided statements to Mr Burton to their personal information being disclosed. She also holds concerns for the effect that the release of the information could have on the ability of the respondent to manage WHS issues. More broadly, the applicant’s application has lowered her confidence in the ability of the WHS system generally to deal confidentially and expeditiously with WHS issues in the respondent, particularly in managing workplace issues involving interpersonal conflict, and complaints of conduct.

The affidavit of Mr Davies

43. In his affidavit Mr Davies has given evidence on his conversations with two persons who provided a statement to Mr Burton (described as “Person A” and “Person B”), and who have objected to the disclosure to the applicant of any information that relates to them:

1. Person A expressly recalls Mr Burton explaining that the interview he was giving was confidential. Correspondence between person A and Mr Burton records that information relating to the investigation was dealt with under conditions of confidentiality;

2. Persons A and B had a common understanding that the limited purpose for which they were supplying information was for the conduct of the WHS investigation by the respondent.

The oral evidence of Dr Wilson

44. In cross-examination, Dr Wilson substantially repeated the contents of her affidavit. She believes the 1 May 2017 incident comes within the WHS Procedure. She denied that she discussed the applicant’s lease by the SCS with Richard Gallen of LJ Hooker. She denied that she had any discussion with SCS about the applicant’s lease before its termination. She denied that she asked or told the respondent not to issue contracts to the applicant or JML Environmental. She denied that the purpose of the Report was to remove the applicant from the GRC or justify the termination of the applicant’s lease by the SCS.

The oral evidence of Mr Davies

45. In cross-examination, Mr Davies denied discussing the Third Decision with Dr Wilson.

The written submissions of the applicant

46. The applicant, after referring to ss 12, 14 and 97 of the GIPA Act and the meaning the expression “could reasonably be expected to” in the table to s 14, makes the following submissions to the Tribunal:

1. public interest considerations in favour of disclosure include that disclosure of the Report could reasonably be expected to ensure effective oversight of the expenditure of public funds by the respondent in view of the time and expenditure wasted in its creation because it was authorised by the WHS Procedure;

2. he was required to be afforded procedural fairness in relation to the investigation of the 1 May 2017 incident in accordance with the principles in The State of Victoria v The Master Builders’ Association of Victoria [1995] 2 VR 121;

3. he had a legitimate expectation that his business reputation would not be tarnished by a blacklisting, and the publication of a Report that otherwise damaged his business reputation resulting in JML Environmental being black listed by the respondent as indicated by the following letters:

1. the letter dated 7 February 2019 from James Hebron, General Counsel of the Department of Planning and Environment, which relevantly states:

You expressed concern that you have been advised that neither you nor your company are to be given any work or work contracts by OEH. After further investigations I understand that at the time of the dispute at Gunnedah Research Centre, Science Division determined not to engage you further while this dispute was outstanding. No direction was issued to OEH as whole.

I have discussed this matter with the OEH Chief Executive and in a show of good faith he is prepared to issue you with a letter advising there is no impediment to you undertaking work on behalf of the OEH on the condition that you adhere with the OEH Code of Conduct. This would allow you to compete on merit for any future contracts for which you have the suitable skills. Contracts involving staff at the Gunnedah Research Centre would need to be assessed on a case by case basis.

2. the letter dated 19 March 2019 from Anthony Lean, Chief executive of the respondent, which relevantly states:

Further to Mr Hebron’s letters of 7 February and 6 March 2019, I wish to confirm that moving forward there is no impediment to you or your business tendering for or undertaking work on behalf of the Office of Environment and Heritage (OEH). It should be noted, however, that any future contracts involving staff at the Gunnedah Research Centre would need to be assessed on a case by case basis.

4. he was not afforded procedural fairness in relation to the investigation of the 1 May 2017 incident on the basis that he is not an employee of the respondent, and the respondent does not have the power to take actions that affect him for the following reasons:

1. there is evidence in his affidavit that, immediately after the 1 May Incident, the respondent attempted to influence the termination the applicant’s lease with SCS;

2. the effect of the Report, especially when considering the exclusion zone at page 12, is to make further performance of the work of JML Environmental, and indeed any further work in the area of the GRC, impractical, which directly impacts on the applicant's livelihood;

3. since the publication of the Report, there has been a marked decrease in the amount of work from NSW Government agencies that has been available to JML Environmental, to the extent of approximately $50,000 per year;

which have had the consequence that it undermines the public interest considerations against disclosure relied upon in the Third Decision, or alternatively the Third Decision is flawed;

5. the WHS Procedure did not apply to the 1 May 2017 incident because it does not fit the criteria of a Level 2 incident that should trigger its application. The investigation and publication of the Report was an inappropriate mechanism to deal with allegations of workplace bullying. Accordingly, the respondent cannot rely on the process of generation of the Report as a consideration against its disclosure;

6. as to the consideration in cl 1(d) of the table to s 14 of the GIPA Act:

1. with the possible exception of information provided by Person A, the respondent has failed to discharge the onus of proof that the information contained in the Report was provided in confidence. The "level 2 template for incident investigation reports" in the WHS Procedure does not contain any provisions regarding to confidentiality;

2. any information that was provided in confidence may have been disclosed by the respondent such that it is no longer confidential. This happened because a representative of the respondent spoke with NSW Police regarding the 1 May 2017 incident who turn spoke to the applicant;

3. the respondent has failed to discharge the onus of proving not just that the information was provided in confidence, but that its disclosure is reasonably likely to prejudice the supply to the respondent of confidential information that facilitates the effective exercise of its functions;

7. as to the considerations in cll 1(f), 1(h) and 2(d) of the table to s 14 of the GIPA Act:

1. the respondent was not properly exercising those functions in the preparation of and publication of the Report due to its failure to afford procedural fairness to the applicant and its failure to comply with the WHS Procedure;

2. the preparation of the Report was not a proper exercise of a system or procedure for protecting the life, health or safety of any person and not a proper audit, test, investigation or review because there is no reasonable basis in the circumstances for a determination that the applicant was a risk to the health of the respondent's employees;

8. as to the considerations in cl 3(a) and 3(b) of the table to s 14 of the GIPA Act, in the circumstances the redaction of names from the Report should be sufficient to protect the individual contributors, while still allowing the applicant to understand the allegations that have been made against him;

9. with the exception of specific personal information as the Tribunal may order, the appropriate decision of the Tribunal is to release an unredacted copy of the Report to the applicant.

The written submissions of the respondent

47. The respondent, after setting out relevant provisions of the GIPA Act and the applicable legal principles under the GIPA Act, makes the following submissions:

1. it no longer relies on cl 2(e) of the table to s 14 of the GIPA Act as an applicable consideration against disclosure

2. it did not owe any obligations of procedural fairness to the applicant in conducting the WHS investigation, as the investigation could not have the effect of depriving the applicant of any right, interest or legitimate expectation of a benefit in circumstances where it was not the applicant's employer (either now, or at the time the Report was written), and did not have the ability to make decisions directly about the applicant. Accordingly, this is not a factor favouring disclosure;

3. as to the consideration in cl 1(d) of the table to s 14 of the GIPA Act:

1. the evidence of Mr Davies as to his conversations with Persons A and B, and the evidence of Dr Wilson that the Report has been treated as confidential by the respondent, and that access to the Report has been limited to senior management, support a finding by the Tribunal that the witness statements appended to the Report, and the discussion of information within these statements in the body of the Report, is confidential information;

2. the evidence of Dr Wilson of her concern that the release of information would impact the ability of the respondent to manage WHS issues, and in particular would erode confidence in the ability of the WHS system to deal with issues confidentially and expeditiously, particularly with issues involving interpersonal conflict and complaints of conduct, support a finding by the Tribunal the disclosure of information in issue to the applicant could reasonably be expected to prejudice the supply of such information in future and that this, in turn, would prejudice the effective exercise by the respondent of its WHS and human resources functions;

4. as to the consideration in cl 1(f) of the table to s 14 of the GIPA Act, for the same reasons as in the case of consideration in cl 1(d) of the table to s 14 of the GIPA Act, the disclosure of information would prejudice the effective exercise of the respondent's WHS and human resources functions because it could have the effect of discouraging staff from making statements and cooperating in future WHS investigations, particularly in matters involving issues of interpersonal conflict or allegations of bullying;

5. as to the consideration in cl 2(d) of the table to s 14 of the GIPA Act, the respondent's WHS functions constitute a "system or procedure for protecting the life, health or safety of any person";

6. as to the consideration in cl 1(h) of the table to s 14 of the GIPA Act, the disclosure of the information could reasonably be expected to prejudice the effectiveness of the respondent's WHS investigation into the applicant:

1. by revealing the results of the investigation which include protocols put in place to protect the respondent's staff from risk of harm in future incidents whose effectiveness could be undermined if they were disclosed;

2. by jeopardising the mental health and wellbeing of individuals whose identities would be apparent from the release of the Report, particularly in circumstances where they have objected to this information being disclosed;

7. as to the considerations in cl 3(a) of the table to s 14 of the GIPA Act, the Report contains personal information of individuals other than the applicant which has not been publicly disclosed by reason of its treatment as confidential, and access to it having been controlled, by the respondent;

8. as to the considerations in cl 3(b) of the table to s 14 of the GIPA Act, the Report contains personal information of individuals other than the applicant within the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) and the disclosure of the information in issue to the applicant does not fall within the scope of any of the permitted disclosures under s 18(1)(a)-(c);

9. as to the application of the public interest test:

1. the public interest considerations against disclosure outweigh the considerations favouring disclosure and there is an overriding public interest against disclosure of the redacted Report;

2. the public interest considerations favouring disclosure have been addressed, to some extent, by the release of the Report in its redacted form;

3. the considerations against disclosure applicable to the Report are compelling and should be accorded considerable weight in applying the public interest test having regard to the context and circumstances in which the information was supplied, the likely prejudice that would flow to the respondent's systems and procedures for reporting and investigating WHS incidents, as well as other workplace management functions, and the objection of third parties to the release of their personal information to the applicant, and the associated concerns of Dr Wilson for the health and well-being of the officers concerned;

10. the correct and preferable decision is for the Tribunal to refuse access to the redacted information in the Report and affirm the Third Decision.

Jurisdiction

48. The Tribunal has jurisdiction to review the Third Decision under s 100 of the GIPA Act which provides that a person who is aggrieved by a reviewable decision of an agency may apply to the Tribunal for administrative review under the Administrative Decisions Review Act 1997 (NSW) (ADR Act): ADR Act, ss 9 and 63 read together with s 30 of the Civil and Administrative Tribunal Act 2013 (NSW). The Tribunal is required to determine what is the correct and preferable decision having regard to the material then before it including any relevant factual material and any applicable written or unwritten law: ADR Act, s 63(1). The Tribunal may set aside the decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal: ADR Act, s 63(3)(d). The agency has the burden of establishing to the Tribunal that the decision it made is justified: GIPA Act, s 105.

Relevant legislation

GIPA Act

49. The object of the GIPA Act is to open government information to the public. This object is to be realised by agencies authorising and encouraging proactive public release of government information (s 3(1)(a)), giving members of the public an enforceable right to access to government information (s 3(1)(b)), and restricting access to government information only when there is an overriding public interest against disclosure (s 3(1)(c)).

50. There is a presumption in favour of disclosure of government information unless there is an overriding public interest against such disclosure: s 5. A person who makes an application to access government information has a legally enforceable right to be provided with such access unless there is an overriding public interest against disclosure: s 9.

51. There is a general public interest in favour of the disclosure of government information: s 12. The Note to this section contains examples of public interest considerations in favour of disclosure, including:

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

52. There is an overriding public interest against disclosure if and only if there are public interest considerations against disclosure which on balance outweigh the public interest considerations in favour of disclosure: s 13. The public interest considerations against disclosure are set out exhaustively in s 14 in a Table, which relevantly includes:

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,

…

(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).

2   Law enforcement and security

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)   endanger, or prejudice any system or procedure for protecting, the life, health or safety of any person,

…

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 …

53. “Personal information” relevantly means information about an individual whose identity is apparent or can reasonably be ascertained from the opinion: s 4(2) and Sch 4, cl 4. “Reveal information” means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure): s 4(2) and Sch 4, cl 4.

54. A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the principles in s 15.

55. An agency must take such steps (if any) as are reasonably practicable to consult with a person before providing access to information relating to the person in response to an access application if it appears that the information includes personal information about the person, the person may reasonably be expected to have concerns about the disclosure of the information, and those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information: s 54(1) and (2)(a).

56. In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take into account specified factors, which are defined as the personal factors of the application, and which relevantly include the applicant’s identity and relationship with any other person: s 55(1)(a). The personal factors of the application can be taken into account as factors in favour of providing the applicant with access to the information: s 55(2). The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency’s consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in cll 2 to 5 (but not cl 1, 6 or 7) of the table in s 14.

57. An agency may decide an access application for government information by deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information: s 58(d). Notice of an agency’s decision to refuse to provide access to information because there is an overriding public interest against disclosure of the information must relevantly state the agency’s reasons for its decision, and the findings on any material questions of fact underlying those reasons, together with a reference to the sources of information on which those findings are based: s 61(a) and (b).

58. An agency can delete information from a copy of a record to which access is to be provided in response to an access application (so as to provide access only to the other information that the record contains) where relevantly the agency has decided to refuse to provide access to the deleted information: s 74.

59. The decision of an agency in respect of an access application to refuse to provide access to information is a reviewable decision: s 80(d).

60. If the decision is not the subject of review by the Information Commissioner, an application for administrative review to the Tribunal can be made at any time up to 40 working days after the applicant is notified of the decision: s 101(1).

PPIP Act

61. Part 2 Division 1 (ss 8-19) contains information protection principles. Section 18 deals with limits on disclosure of personal information and provides:

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.

62. “Personal information” relevantly means information or an opinion about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion: s 4(1).

Applicable legal principles under the GIPA Act

The function of the Tribunal when reviewing a decision under the GIPA Act

63. The function of the Tribunal when reviewing a decision under the GIPA Act is not to undertake 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)); Burke v Health Education and Training Institute [2016] NSWCATAD 194 at [45].

The process for deciding whether to grant access to information

64. The process for deciding whether to grant access to information under the GIPA Act is to identify the factors in favour of granting access; then to identify the public interest factors against such disclosure (being only those items set out in the table in s 14). Then it is necessary to allocate weight to each of the positive and negative factors. This is followed by a process of balancing the positive and negative elements to reach a decision as to whether access should be granted: Miskelly v Secretary, Department of Education [2019] NSWCATAD 48 at [9]. Balancing the competing public interest considerations is “a question of fact and degree, requiring the weighing of competing matters, and a task that is not amenable to mathematical calculation”: Hurst v Wagga City Council [2011] NSWADT 307 at [70].

Disclosure of information required by the rules of procedural fairness as a public interest consideration in favour of disclosure of information

65. It is in the public interest for an agency to comply with the rules of procedural fairness when conducting a workplace investigation, and the circumstance that disclosure of information is required by those rules may be a public interest consideration in favour of disclosure of information to the person the subject of an investigation: Burke v Health Education and Training Institute [2016] NSWCATAD 194 at [44]; Collins v Department Finance, Services & Innovation [2018] NSWCATAD 60 at [37].

66. A denial of procedural fairness has been held to arise from the legitimate expectation that the reputation of the builders concerned would not be tarnished by their removal from the list of approved tenderers or by the insertion of their names in a list of non-approved tenderers, without reason being given and an opportunity to respond being offered. A decision which has an effect upon a person's individual, commercial or business reputation may be described as one giving rise to a requirement that procedural fairness be accorded: The State of Victoria v The Master Builders’ Association of Victoria at 167.

67. Procedural fairness ordinarily requires only that the person affected be provided with adverse information that is credible, relevant and significant to the decision to be made: Kioa v West (1985) 159 CLR 550 at 629.

“could reasonably be expected to …” in the table in s 14

68. The words “could reasonably be expected to” in the table in s 14 have been held to require “something which is more than a mere risk or chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived”. The public interest considerations against disclosure in cll 1 and 3 of the table require 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: Flack v Commissioner of Police, NSW Police Force [2011] NSWADT 286 at [41]-[42].

69. In Commissioner of Police NSW Police Force v Camilleri [2012] NSWADTAP 19 at [26] and [37], the Appeal Panel stated:

[26] … 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. ...

…

[37] … As explained, the section 14 enquiry is directed to the administrative structure and context, and its conditions, to which the document or information belonged. As we have noted previously, the agency does not dispute that a wide array of considerations, including subsequent history, might be considered at the section 13 stage. But it is necessary as we see it for the Tribunal to approach the section 13 stage with a properly informed appreciation of the case made by the agency at the section 14 stage.

“prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions” and “prejudice the effective exercise by an agency of the agency’s functions” in cll 1(d) and (f) of the table in s 14

70. In relation to the consideration now set out in cl 1(d) of the table in s 14 of the GIPA Act, the Appeal Panel in Macquarie University v Howell (No. 2) [2009] NSWADTAP 19 at [10] stated:

[10] In our view, the Tribunal is required to engage in a relatively abstract analysis. The Tribunal needs to characterise the nature of the material sought to be protected on the present occasion; identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; and consider the extent to which guarantees of confidentiality may be necessary. It is then necessary to evaluate the effect on the agency’s ability in future to obtain similar information.

71. The term "prejudice" is to be given its ordinary meaning, that is, "to cause detriment or disadvantage" or to "impede or derogate from": Hurst v Wagga Wagga City Council at [60].

72. In Robinson v Department of Health [2002] NSWADT 222 at [71], the Tribunal held that the effectiveness of an agency’s investigative functions depend on the co-operation of those who have information relevant to the investigation. This in turn may depend on the information they provide being kept confidential, if that is legally possible. The Tribunal found that disclosure of information obtained confidentially could reasonably be expected to have a substantial adverse effect on the effective performance by an agency of the agency’s functions.

73. In Alexander v University of Sydney [2008] NSWADT 214 at [33]-[35], the Tribunal considered reasons put forward by the University why it endeavours to maintain confidentiality of information obtained, in that case, in regard to allegations of employee misconduct. The Tribunal accepted evidence that if confidentiality could not be guaranteed many people within the University would be much more reluctant to come forward with information or concerns and this in turn would adversely affect the ability of the University to conduct investigations. Similar conclusions were reached by the Tribunal in Williams v Department of Industry and Investment [2012] NSWADT 192.

“reveal an individual’s personal information” and “contravene an information protection principle under the Privacy and Personal Information Protection Act 1998” in cll 3(a) and (b) of the table in s 14

74. Work performance, complaints about another staff member and misconduct allegations concern the personal information of the public servant making the complaint and the person who is the subject of the complaint: Singh v Legal Aid Commission (No 2) [2015] NSWCATAD 5 at [49].

75. The redaction of the names of individuals only would not change the character of documents as containing personal information if the identity of the individuals would be relatively easy for the applicant to ascertain: CCB v Department of Education and Communities [2015] NSWCATAD 145 at [90]; Ansoul v City of Sydney [2017] NSWCATAD 65 at [50].

Whether the Report was authorised by the WHS Procedure

76. The question of whether the Report was authorised by the WHS Procedure does not fall within the function of the Tribunal when reviewing the Third Decision under the GIPA Act as it would involve undertaking a collateral review of the validity of official action.

77. If, contrary to my finding, the function of the Tribunal when reviewing the Third Decision under the GIPA Act includes determining the question of whether the Report was authorised by the WHS Procedure, then I am satisfied that the Report was authorised by the WHS Procedure. The 1 May 2017 incident was clearly an incident within the meaning of cl 4.4 of the WHS Procedure as it was an “event which … has the potential to cause an injury”. It was not necessary for the 1 May 2017 incident to be a “serious near miss” as defined in sec 12 to be the subject of a Level 2 investigation. An incident that was a “minor near miss” within cl 5.2 was capable of being the subject of a Level 2 investigation in the circumstances set out in cl 5.2.1 or cl 5.2.2. Having regard to the definition of “near miss” in sec 12 as encompassing “an incident that, had it occurred either earlier or later, would have had real potential to cause an injury”, the 1 May 2017 incident was at very least a “minor near miss” within cl 5.2 and so capable of being the subject of a Level 2 investigation. Accordingly, I reject the applicant’s submission that the WHS Procedure does not apply to the 1 May 2017 incident, and that the instigation and publication of the Report is an inappropriate mechanism to deal with allegations of workplace bullying. It follows that the respondent can rely on the process of generation of the Report as a consideration against disclosure.

Whether the applicant was denied procedural fairness in the investigation of the 1 May 2017 incident

78. The nature of the investigation of the 1 May 2017 incident required Mr Burton to comply with the rules of procedural fairness as the Report completed upon the investigation had an effect on the reputation of the applicant. These rules applied notwithstanding that the applicant was neither an employee nor a contractor of the respondent. As a person who had dealings with the respondent with the GRC the applicant had a legitimate expectation that his individual, commercial or business reputation would not be damaged as a result of the investigation without an opportunity being offered to provide his account of the 1 May 2017 incident.

79. In these circumstances I am satisfied that the public interest in the respondent complying with the rules of procedural fairness in carrying out an investigation under the WHS Procedure provide an additional a public interest consideration in favour of full disclosure of the Report to the applicant.

The public interest considerations in favour of disclosure

80. I find that the following considerations are public interest considerations in favour of full disclosure of the Report:

1. the statutory presumption in favour of the disclosure of government information;

2. the Report contains information relating to the applicant;

3. the release of the Report might reasonably be expected to demonstrate how the respondent deals with incidents and discharges its duty of care to its employees;

4. the public interest in the respondent complying with the rules of procedural fairness in carrying out an investigation under the WHS Procedure.

81. I find that each of these considerations should be given some weight.

82. I am not satisfied that public interest considerations in favour of full disclosure of the Report include that its disclosure could reasonably be expected to ensure effective oversight of the expenditure of public funds by the respondent in view of the time and expenditure wasted in its creation. The Report was authorised by the WHS Procedure.

The public interest considerations against disclosure

Personal factors of the application

83. As the applicant is still working at the GRC, I am satisfied that the circumstances that the applicant’s identity and his relationships with other people who work at the GRC are personal factors of the application against providing full disclosure of the Report. They are relevant to the respondent’s consideration of whether the full disclosure of the Report could reasonably be expected to have any of the effects referred to cll 2(d), 3(a) and 3(b) of the table in s 14.

The considerations in cll 1(d) and (f) of the table to s 14

84. I am satisfied that “providing a safe and healthy working environment for its employees, contractors and other persons that may be affected by its undertaking” referred to in section 1 of the WHS Procedure form part of the respondent’s functions. Therefore, cll 1d) and 1(f) of the table in s 14 are applicable to this application.

85. The effective performance by the respondent of “providing a safe and healthy working environment for its employees, contractors and other persons that may be affected by its undertaking” depends to a significant extent on the cooperation of those who have relevant information to come forward with information concerning complaints about the behaviour and performance of staff and other persons. In the absence of any coercive powers with respect to obtaining information from staff and other persons in relation to such matters, the respondent must rely on the voluntary cooperation of those individuals.

86. The Tribunal has regularly recognised that staff may be reluctant to provide information if there were not some assurance of confidentiality. In that context, the disclosure of information that was received in confidence may prejudice the agency from performing its functions efficiently and effectively.

87. I accept the evidence of Dr Wilson as to her concerns for the mental health and wellbeing of those individuals whose identities would be apparent from release of the Report, and that this concern has been strengthened by the objection of some of the individuals who provided statements to Mr Burton to their personal information being disclosed. I also accept her evidence as to her concerns as to the effect that the release of the information could have on the ability of the respondent to manage WHS issues, and that the applicant’s application has lowered her confidence in the ability of the WHS system generally to deal confidentially and expeditiously with WHS issues in the respondent, particularly in managing workplace issues involving interpersonal conflict, and complaints of conduct. I further accept her evidence that the Report has been treated as confidential by the respondent, and that access to the Report has been limited to senior management.

88. I am satisfied that full disclosure of the redacted Report other than Appendix 7 could reasonably be expected to prejudice the supply to the respondent of confidential information that facilitates the effective exercise of its functions, and to prejudice the effective exercise by the respondent of its functions. I find that these considerations against full disclosure of the Report should be given strong weight. I reject the applicant’s submission that information in the Report has been disclosed to other NSW Government departments and so is no longer confidential.

The consideration in cl 1(h) of the table to s 14

89. For substantially the same reasons as in the case of the considerations in cll 1(d) and (f) of the table to s 14, I am satisfied that full disclosure of the redacted Report other than Appendices 3a, 3b and 3c could reasonably be expected to prejudice the effectiveness of the investigation conducted by or on behalf of the respondent by revealing its results. I find that this consideration against full disclosure of the Report should be given strong weight.

The consideration in cl 2(d) of the table to s 14

90. For substantially the same reasons as in the case of the considerations in cll 1(d) and (f) of the table to s 14, I am satisfied that full disclosure of the redacted Report other than Appendices 3a, 3b and 3c could reasonably be expected to prejudice the respondent’s procedure for protecting, the life, health or safety of any person contained in the WHS Procedure. I find that this consideration against full disclosure of the Report should be given strong weight.

The considerations in cll 3(a) and (b) of the table to s 14

91. I have read the statements from three members of the respondent’s staff and one member of the staff of Water NSW which are Appendices 3a, 3b, 3c and 4 and am satisfied that they contain personal information of those individuals. I accept the evidence of Mr Davies of the objections of Persons A and B to the provision of their personal information to the applicant.

92. I am satisfied that full disclosure of the redacted Report other than Appendices 6 and 7, even with redactions of names, would identity other persons at GRC. I am also satisfied that full disclosure of Appendices 6 and 7 with redactions of names would not identity other persons at GRC.

93. I am satisfied that full disclosure of the redacted Report other than Appendices 6 and 7, even with redactions of names, would not fall within the scope of any of the permitted disclosures under ss 18(1)(a)-(c) of the PPIP Act. The information was collected for the purpose of an internal WHS investigation. Disclosure to the applicant in response to his access application would not be directly related to this purpose: PPIP Act, s 18(1)(a). As set out in the evidence of Dr Wilson it is not usual practice of the respondent to disclose personal information collected in an internal WHS investigation to a third party, but rather to reserve access to investigation reports: PPIP Act, s 18(1)(b). There is no relevant serious and imminent threat to the life or health of any individual that would be prevented or lessened by disclosure: PPIP Act, s 18(1)(c).

94. I am satisfied that full disclosure of the Report could reasonably be expected to reveal an individual’s personal information and contravene the information protection principle in s 18 of the PPIP Act. I find that these considerations against full disclosure of the Report should be given strong weight. I reject the applicant’s submission that information in the Report has been disclosed to other NSW Government departments, and so would not reveal personal information of persons other than the applicant.

Balancing the public interest considerations in favour of and against disclosure

95. I find that the public interest considerations against the full disclosure of the Report with some exceptions strongly outweigh the public interest considerations in favour of disclosure of this information. Accordingly, there is an overriding public interest against disclosure of this information.

96. I find that the passages marked in orange highlighting in the confidential copy of the Report received by the Tribunal on 2 July 2019 other than the text marked in red in the confidential submissions of the respondent received by the Tribunal on 2 July 2019 should be disclosed to the applicant.

The correct and preferable decision

97. I am satisfied that the correct and preferable decision in relation to the Third Decision is to provide further partial access but otherwise refuse full access to the Report to the applicant.

**********

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

Registrar

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

Amendments

02 August 2019 - typographical error corrected at paragraph [3]

Decision last updated: 02 August 2019