McGuinness v Bathurst Regional Council

[2005] NSWADT 152

CITATION:	McGuinness v Bathurst Regional Council [2005] NSWADT 152
DIVISION:	General Division
PARTIES:	APPLICANT Leah Michelle McGuinness RESPONDENT Bathurst Regional Council
FILE NUMBER:	043353
HEARING DATES:	24/02/2005
SUBMISSIONS CLOSED:	02/24/2005
DATE OF DECISION:	07/06/2005
BEFORE:	Hennessy N - Magistrate (Deputy President)
APPLICATION:	access to documents - confidential material - access to documents - operations of agencies - access to documents - personal affairs - Freedom of Information Act - access to documents - confidential material - Freedom of Information Act - access to documents - operations of agencies - Freedom of Information Act - access to documents - personal affairs
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	Ansell v Wells (1982) 43 ALR 41 Colakovski v Australian Telecommunications Corporation (1991) 100 ALR Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 111 Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606 Director General, Department of Education & Training -v- Mullett & anor (GD) [2002] NSWADTAP 13 revised - 11/06/2002 DQ -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 215 Muin v Refugee Review Tribunal (2002) 76 ALJR 966) Re B and Brisbane North Regional Health Authority ((1994) 1 QAR 279 Re James and Australian National University (1984) 6 ALD 687 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 Re Pergamon Press Ltd [1971] CH 388 Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 Re Thies and Dept of Aviation (1986) 9 ALD 454.) Robinson v Director General, Department of Health [2002] NSWADT 222 Schlebaum (No. 2) -v- Director General, Department of Community Services & anor [2001] NSWADT 214
REPRESENTATION:	C Bolger, counsel C Nichols, solicitor
ORDERS:	The agency's decision is affirmed.

1 Ms McGuinness was a registered carer with the Bathurst Family Day Care Scheme (BFDCS) which is administered by Bathurst Regional Council (the agency). BFDCS is a home-based child care service where small groups of children are looked after in the home of a registered carer. At the time of the hearing 420 children were being cared for in the homes of 52 registered carers. Ms Smith, the co-ordinator of BFDCS, de-registered Ms McGuiness on 29 June 2004. One of the reasons for that decision was that Ms McGuiness had allegedly breached confidentiality by contacting another registered carer (the informant) and disclosing certain information to her. That information included the fact that Ms McGuinness had discussed the financial administration of another carer’s service with the informant. Another reason for de-registering Ms McGuiness was that she allegedly told the informant that she and another registered carer had grievances against Ms Smith and asked the informant to write down her own grievances against Ms Smith. Ms Smith put these and other reasons for de-registration to Ms McGuiness in person and later in a “show cause” letter.

2 Ms McGuiness applied under the Freedom of Information Act 1989 (FOI Act) for access to Ms Smith’s notes of her phone conversation with the informant. Under the FOI Act members of the public have “a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government”: s 5(2)(b). An agency may refuse access to a document if it is an exempt document: s 25. Schedule 1 to the FOI Act lists the categories of exempt documents. The burden of proof lies on the agency to establish that the determination is justified: s 61. If the Tribunal determines that a document is an exempt document, access should not be refused “if it is practicable to give access to a copy of the document from which the exempt matter has been deleted”: s 25(4).

Issues

3 The issue is whether the notes of the phone conversation between Ms Smith and the informant constitute an exempt document under Schedule 1 to the FOI Act. The exemptions on which the agency relied were:

a) documents containing confidential material - clause 13(b);

b) documents affecting personal affairs - clause 6; and

c) documents concerning operations of agencies - clause 16.

4 The elements that the agency must establish under cl 13(b) are that the document contains information, 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.

5 Obtained in confidence. After the agency received Ms McGuiness’ application someone from the agency spoke to the informant about the release of the document. There is hearsay evidence in Exhibits C, D and E that she said that she believed the disclosures she made to Ms Smith were on a confidential basis. She also said that Ms Smith told her that the information would be treated confidentially. There was no evidence from Ms Smith about whether or not she told the informant that the information would be kept confidential.

6 Conclusion. The Tribunal is not bound by the rules of evidence but should only take into account evidence that is logically probative. The best evidence of whether or not the material was obtained in confidence would have been evidence from Ms Smith. The evidence from the informant is hearsay evidence which Ms McGuiness was not able to challenge because it was provided to the Tribunal confidentially in accordance with s 55. Despite the indirect nature of the evidence, and the fact that Ms Smith could have provided better evidence, we find that the information was obtained in confidence. That finding is consistent with what is likely to have happened given that the BFDCS’s Grievance Policy states that confidentiality should be maintained at all times.

7 Could reasonably be expected. Clause 13(b)(ii) requires that the Tribunal be satisfied that disclosure of the information “could reasonably be expected” to prejudice the future supply of such information to an agency. The Tribunal has considered the phrase “could reasonably be expected” on several occasions. In summary, the expectation must be based on real and substantial grounds when looked at objectively. Mere speculation or conjecture is insufficient. (Robinson v Director General, Department of Health [2002] NSWADT 222 at [66].)

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

9 There is hearsay evidence in Confidential Exhibits D and E that the informant would not have disclosed the information if she had known that the information would be passed on to Ms McGuinness. That evidence is contradicted by further hearsay evidence in Confidential Exhibit C that she would still have informed the agency even if the conversation was not treated confidentially, because of the serious nature of the matters she disclosed. Ms Smith gave evidence that all stakeholders associated with BFDCS expect that their concerns will be dealt with confidentially, promptly and without disadvantaging their position within the BFDCS. According to Ms Smith, if information is not treated confidentially and complaints are not dealt with formally, this would generate negative rumours and lack of trust by the community in the standard of the service. She said if stakeholders were aware that confidential information relating to grievances and complaints was not being dealt with according to BFDCS’s policies and procedures, the number of complaints would decline, leading to deterioration in the standard of service being provided.

10 Ms McGuiness submitted that the Tribunal should not accept the opinion evidence of Ms Smith because she does not have any specialised knowledge in the area: s 79 of the Evidence Act 1995. Furthermore, the opinion is self-serving and unsupported by the evidence.

11 Conclusion. While the informant’s evidence is contradictory, it is not her evidence alone that is determinative of this question. Ms Smith is in a good position to offer an opinion as to the effect of disclosure on the future supply of such information. While I appreciate that the opinion is self-serving, it is nevertheless rational. It makes sense that other carers would be reluctant to disclose adverse information against fellow carers if they were aware that their identity and all the information communicated could be disclosed to the person who is the subject of their complaint. Although the evidence on this point is not strong, I am satisfied that disclosure could reasonably be expected to prejudice the future supply of such information to the agency.

12 Contrary to the public interest. The final requirement in cl 13(b) is that disclosure is, on balance, contrary to the public interest. One public interest consideration is that people accused of wrongdoing know who has complained about them and have a reasonable opportunity to respond to the substance of any complaint. On the other hand, there is a public interest in information which is adverse to a carer being communicated to management so that any wrongdoing can be addressed. Ms McGuiness also raised the possibility that her confidentiality may have been breached by the informant and/or by the BFDCS. Since disclosure under the FOI Act cannot be restricted to the applicant, Ms McGuinness may not consider that general disclosure of her allegedly confidential communication is in the public interest.

13 Interests of persons accused. Ms McGuinness submitted that the public interest is served by disclosure so that she can be afforded procedural fairness. She was also concerned that the agency only act on bona fide complaints. Procedural fairness requires merely that the substance or gravamen of adverse material be disclosed. (Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247; Re Pergamon Press Ltd [1971] CH 388; Ansell v Wells (1982) 43 ALR 41.) Ms McGuiness’ evidence makes it clear that the substance of the adverse material conveyed in the phone conversation with Ms Smith, was put to her both orally and in writing. There is no requirement that copies of documents be provided. In addition, exceptional circumstances, such as the need to keep material confidential, may displace the general rule of disclosure. (Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 116 per Kirby J, at 100 per McHugh J; Muin v Refugee Review Tribunal (2002) 76 ALJR 966 at 991 per McHugh J.) While it is not a matter I need to decide, the evidence supports a finding that the BFDCS did afford Ms McGuiness procedural fairness before making the decision to de-register her. Consequently the public interest argument in favour of disclosure of the entire document is not particularly strong in this case.

14 Interests of users of the service. There is hearsay evidence in Exhibit D that the informant is concerned that she would be bothered and harassed if Ms McGuiness knew that she was the source of the information. Ms Smith gave evidence that, in her opinion, if confidential information is released there may be an increase in complaints of intimidation and harassment. One of the aims of the agency’s Grievance Policy is “To use our best endeavours to ensure participants in Family Day Care have the right to raise grievances without fear of retribution or jeopardy to their position within the service.” According to the agency there is a public interest in BFDCS being able to receive confidential information on the fitness of licensed carers to carry out their responsibilities.

15 On balance, I am satisfied that disclosure would be contrary to the public interest. Informants would be less likely to disclose adverse information about carers if they knew that their identity and everything they disclosed could be passed on to the subject person. Fear of harassment and intimidation can be a very real concern for potential informants. Even though I have found that the document is exempt under cl 13(b), I go on to consider the other exemptions on which the agency relied.

Personal affairs

16 The elements that the agency must establish under cl 6 are that the document contains information the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person. Cl 6(2) provides that a document is not exempt merely because it contains information about the person who has made the application. Consequently:

the document must contain information concerning the personal affairs of a person other than the applicant; and

disclosure of that information must be unreasonable.

17 There is also a provision which prevents an agency from giving access to documents that contains information about someone’s personal affairs unless the agency has taken such steps as are reasonably practicable to obtain the views of the person concerned as to whether or not the document is an exempt document: s 31(2). There is clear evidence in the confidential exhibits that the agency showed the informant the document and obtained her views in relation to disclosure.

18 Does the document contain information concerning the personal affairs of a person other than the applicant? The agency provided a confidential copy of the notes of the conversation to the Tribunal. The document contains the name of the informant, a summary of what Ms McGuiness told her and the informant’s reaction to what she was told. The fact that Ms McGuiness made the call relates to her own personal affairs. (Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 111 at 123 per Heerey J.) The information she gave to the informant all relates to her affairs and to the affairs to the other carer she was referring to during the conversation. The information Ms McGuinness conveyed to the informant is not information concerning the informant’s personal affairs. (Schlebaum (No. 2) -v- Director General, Department of Community Services & anor [2001] NSWADT 214 at [31]. See also DQ -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 215 at [56].)

19 The informant’s name and her reaction to what she was told, fall into the “grey area” where the decision may go either way, depending on the context. (See Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 111 at [17].) Ms McGuiness suspects that the informant is another carer in the BCFDC Scheme who is a nominated member of the Carers Support Group. She says she contacted her in that capacity. If that is the case, the question arises as to whether the informant’s name and her reaction to the conversation concern her business or professional affairs as distinct from her personal affairs. (See Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606 at 625 (Perrin’s Case).) We make no express finding about the informant’s position, because to do so may confirm or dispel Ms McGuiness’ suspicions about her identity. Our conclusion is that, apart from the passages recording the informant’s name or otherwise disclosing her identity and her reaction to the content of the phone conversation, the document does not relate to the informant’s personal affairs. The passages which contain the informant’s personal affairs are the blacked out sections in the minutes attached to confidential Exhibit E together with the last line of the first paragraph, the last three lines of dot point 3, the last four lines of dot point 11 and dot points 18, 19 and 20.

20 Is disclosure of that information unreasonable? Ms McGuiness submitted that if the informant is the person she suspects, then she has breached Ms McGuiness’ confidentiality by disclosing the content of the conversation to Ms Smith. According to Ms McGuiness, in those circumstances, the information cannot have been provided to Ms Smith in good faith and disclosure is not unreasonable. Even if the informant did breach Ms McGuiness’ confidence, that does not necessarily mean that the disclosure to Ms Smith was not made in good faith. The informant’s evidence reveals that she felt obliged to disclose the information because she regarded the disclosure as seriously affecting Ms McGuiness’ suitability as a carer. The risk of harassment and the public interest in any suspected wrongdoing being freely communicated and addressed, tends to suggest that disclosure of the informant’s personal information is unreasonable. Even if Ms McGuinness knew the identity of the informant and the exact content of her disclosures, that information would not significantly improve her ability to respond to the allegations against her. The substance of the allegations has already been put to her and the decision to de-register her has been made. On balance, disclosure of the information is unreasonable.

Operations of agencies

21 Under cl 16(a)(iv), a document is an exempt document if it contains matter the disclosure of which could reasonably be expected to have a substantial adverse effect on the effective performance by an agency of the agency’s functions and would, on balance, be contrary to the public interest. When considering the exemptions in Clause 16 the focus must be on the future effect on a function of the agency, not on the effect of disclosure in the present controversy. (Director General, Department of Education & Training -v- Mullett & anor (GD) [2002] NSWADTAP 13 revised - 11/06/2002 at [62] to [64] and [84].) “Substantial adverse effect” is a higher test than mere “prejudice”. (Re James and Australian National University (1984) 6 ALD 687.) The effect must be sufficiently serious to cause concern to a properly informed reasonable person. (Re Thies and Dept of Aviation (1986) 9 ALD 454.)

22 The function of the BFDCS is to facilitate the provision of safe and lawful care to pre-school children in the homes of registered carers. Although the BFDCS trains and supervises carers, it also relies on parents and carers to bring their concerns to the attention of management. The free flow of information from parents and carers to management helps ensure that a safe and lawful service is provided. Ms Smith said that there would be a decrease in the number of complaints to the BFDCS if potential informants knew that there was a possibility that their identity and the content of their complaint would be disclosed.

23 Ms McGuinness submitted that there is no evidence that establishes that there are “real and substantial grounds” that BFDCS’s functions will be hindered by disclosure. According to Ms McGuiness, the evidence is at best speculative. While disclosure may have some effect on the effective performance of BFDCS’s functions, I am not satisfied on the basis of Ms Smith’s evidence that that effect would be “substantial”. Given that finding, it is not necessary to determine whether or not disclosure would be contrary to the public interest.

Conclusion

24 Since the agency has discharged its burden of proof in relation to the exemption under cl 13(b) and, as to part of the document, under cl 6, the agency’s decision is affirmed.