MJ v Department of Education and Commerce

[2013] NSWADT 213

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

MJ v Department of Education & Commerce [2013] NSWADT 213

Hearing dates:

On the papers

Decision date:

30 September 2013

Jurisdiction:

General Division

Before:

S Higgins, Deputy President

Decision:

1. The decision of the respondent in regard to the category 1 requested information is set aside and in substitution thereof a decision to grant the applicant access to the information held by the respondent. It is noted that the information was previously disclosed to the applicant in response to an earlier access application.

2. The decision of the respondent to refuse the applicant access to the deleted mobile telephone numbers of the principal Investigator of EPAC is set aside and in substitution thereof a decision to grant the applicant access to that information.

3. The decision of the respondent, as revised in its written submissions, is otherwise affirmed.

Catchwords:

Government information - public access - access sought to information relating to an investigation of a public interest/protected disclosure and action taken in regard thereto - refusal to deal with access application in part to the extent the information had previously been sought and determined by the agency
Government information - public interest considerations against disclosure - personal information, disclosure of information provided to the agency in confidence - prejudice the effective exercise of the agency's functions

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989 (repealed)
Government Information (Public Access) Act 1997
Public Interest Disclosure Act 1994

Cases Cited:

AEF v Northern Sydney Local Health District (No 2) 2012] NSWADT 89
Attorney-General's Department v Cockcroft (1986) 10 FCR180
Camilleri v Commissioner of police (NSW) [2012] NSWADT 5
Commissioner of Police (NSW) v Camilleri [2012] NSWADTAP 19
Commissioner of Police v District Court (NSW) (1993) 31 NSWLR 606
Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201
McCabe v Workers Compensation Commission [2012] NSWADT 30
McKinnon v Secretary, Department of Treasury [2006] HCA 45
McKinnon v Blacktown City Council [2012] NSWADT 44
Shepherd and the Department of Housing, Local Government and Planning (1994) 1QAR 464

Category:

Principal judgment

Parties:

MJ (Applicant)
Department of Education & Commerce (Respondent)

Representation:

MJ (Applicant in person)
K Song, Senior Information Access Officer (Respondent)

File Number(s):

123363

Publication restriction:

Name of the applicant is not to be published

reasons for decision

Introduction

1. The applicant, MJ, seeks review of a decision of the respondent, the Department of Education & Commerce, made under the Government Information (Public Access) Act 2009 (GIPA Act), in regard to her request for access to specified information held by the respondent.

1. The applicant, an employee of the respondent, made her request for access on 23 October 2012. On 2 November 2012, the applicant agreed to amend the terms of her request to three specific categories of information. It is the first two categories of requested information that is relevant to this review application. These categories were in the following terms:

1) All information about my protected disclosure/public interest disclosure, made by Mr Neil Ray in 2008, including all records about any investigation conducted as a result.

2) The EPAC file related to my protected disclosure/public interest disclosure in 2011 to Paul Callaghan (Director Tamworth TAFE), in particular, the 'final report' to Jane Thorpe. Please note that some documentation has been provided through previous GIPA application, including the Woodhouse Report.

1. The respondent determined the applicant's access request in regard to the above categories, on 23 November 20012.

1. In regard to the requested category 1 information, the respondent determined that the requested information was not held by the agency (see para 58(1)(b) of the GIPA Act).

1. In regard to the category 2 information, the respondent identified a number of records containing the information sought. These records (pages) were contained in two files: File No EPAC11/297-01 and EPAC11/297-02. In its determination, the respondent noted that the applicant had previously, on 5 December 2011, sought access to the information on these files. In response to that access application the respondent had determined to grant the applicant to access to some of the information and refused access to the remaining information.

1. In light of its earlier determination in regard to the 5 December 2011 access application, the respondent determined, pursuant to para 60(1)(b) of the GIPA Act, to refuse to deal with that portion of the applicant's access request, which fell within the terms of the earlier request (i.e. the information dated 5 December 2011 and earlier).

1. In regard to the remaining information for which the applicant sought access (i.e. 141 records in File No EPAC11/297-01 and 112 records in File No EPAC11/297-01), the respondent determined to release the information, in full, or part, from a number of pages in the relevant Files. The respondent also determined not to release the information from a number of pages from these files. The information that was not released, the respondent found to be information for which there was an overriding public interest against disclosure. These are discussed, to the extent they were pressed by the respondent in these proceedings, more fully below.

1. Attached to the respondent's determination was a schedule of documents, which listed those pages for which the respondent had refused access in part or whole and the grounds on which that determination had been made.

1. The applicant was also provided with a copy of the records, or part thereof, for which access had been granted. These copies were provided on a CD.

1. When the matter came before me at a planning meeting, on 15 January 2013, I made a number of consent orders in regard to the progress of the application. I also made an order, by consent, under subs 75(2) of the Administrative Decisions Tribunal Act 1997 (ADT Act), prohibiting the publication of the name of the applicant. It was also agreed that this application was to be dealt with on the papers, under s 76 of the ADT Act, after each party had the opportunity to file and serve evidence and written submissions.

1. As I have mentioned below, subs 105(1) of the GIPA Act places the onus on the respondent to justify its decisions the subject of review.

1. In support of its claim, the respondent filed and served written submissions and relied on the reasons set out in the original determination made on 23 November 2012. In support of her claim, and in response to the respondent's written submissions, the applicant also filed and served written submissions.

The Respondent's submissions

1. In regard to the requested category 1 information (i.e. the applicant's protected disclosure/public interest disclosure to Mr Ray in 2008), the respondent contended that all reasonable searches had been made for information falling within this category and no information was located. However, the respondent did acknowledge that Mr Ray had communicated with the applicant, by email, on 2 and 3 December 2008. A copy of the latter email was attached to the submissions. I note, a copy of this email was provided to the applicant, in 2011, in the course of an earlier access application by her.

1. The respondent explained that in 2008, the applicant became aware of the existence of 'misinformation' about her, in a record held by the respondent and its insurers. The respondent acknowledged that the applicant contacted Mr Ray on becoming aware of this 'misinformation'. However, it went on to say that Mr Ray did not record this contact as being a public interest/protected disclosure by the applicant. The only record of the applicant having made a public interest/protected disclosure was that which was made in 2011. In this decision I have referred to is as the applicant's '2011 misconduct allegations'

1. Accordingly, there is no record of Mr Ray having conducted 'a misconduct investigation' in regard to the concerns raised by the applicant. The only record held by the respondent in regard to this matter was the email Mr Ray sent to the applicant on 3 December 2008. In that email, Mr Ray informed the applicant that there was no record of her coming to the attention of Employee Performance and Conduct Directorate of the respondent (EPAC). I understand the respondent agrees that there was no basis for the 'misinformation' that was of concern to the applicant.

1. In regard to the requested category 2 information, the respondent said that it had re-examined the deleted information and determined to release some additional information to the applicant. A copy of this information was attached to the respondent's submissions. The respondent also noted that, since its original determination of the applicant's request, the applicant had been provided with a full copy of the Woodhouse Report. That report, I understand to have been the subject of an earlier access request by the applicant. The respondent has identified this report as being at pages 19 to 103 of File No EPAC11/297-02. The report, I note was an investigation report concerning the applicant's 2011 public interest/protected disclosure and the information in dispute in this application is information that was created or came into the possession of the respondent subsequent to that report and the applicant's 5 December 2011 access request.

1. To the extent the applicant's access application related to information previously sought and for which the respondent had made a determination, the respondent adhered to its decision to refuse to deal with this part of the applicant's application for access.

1. In regard to the remaining information for which the respondent had determined to refuse access, the respondent adhered to its original decision. Attached to the respondent's submissions, was a revised schedule of the information in issue. This information is summarised below.

1. The respondent provided the applicant and the Tribunal with a CD containing the records, falling within the applicant's access request, and for which it had been determined to grant access. The Tribunal was also provided, in confidence, with a further CD containing a full copy of the information released together with the information that and had been withheld (see s 107 of the GIPA Act).

1. In its submissions, the respondent made reference to a more recent access application by the applicant, for which the respondent had located an additional 'peripheral' EPAC file relating to the applicant (i.e. EPAC 12/246). The respondent made a determination in regard to that application, on 9 January 2013 and I note that determination is the subject of another review application by the Tribunal (Tribunal file no. 133018), which is yet to be determined. Accordingly, I have not dealt with this aspect of the respondent's submissions any further.

The applicant's submissions

1. In her submissions the applicant explained that she sought access to the information the subject of this application so that she could correct any information about her that was held by the respondent and which was false and misleading.

1. The applicant also said she believed that documents/information had been withheld from her and that the respondent had not dealt with her fairly, equitably and without bias or prejudice in regard to her access request. In support of this she gave a number of examples where she believed information was withheld, or delayed and where the information provided by the respondent was inconsistent or incorrect. Of concern to the applicant was the fact that the respondent changed its mind about granting access, the location of the additional 'peripheral' EPAC file, which should have been identified when she made her initial access application and inconsistencies in the various schedules of documents prepared by the respondent.

1. While I can understand the concerns raised by the applicant, on the material before the Tribunal, I am unable to find that the respondent has acted inappropriately in dealing with this application. I agree the schedule attached to the respondent's written submissions contain an inconsistency in regard to pages 48 and 49 in File No EPAC11/297-01. However, nothing turns on this as the applicant has been provided with a copy of these pages with the relevant information on page 48 deleted. While I agree that the 'peripheral' EPAC file should ideally have been identified earlier, once it was identified, the respondent did not delay in making the applicant aware of its existence. Nor is it unusual for an agency to amend its decision once a matter comes before the Tribunal. The fact that this occurs does not of itself indicate that the agency has acted inappropriately.

1. In regard to her requested category 1 information, the applicant asserted her contact with Mr Ray, in 2008, was a 'protected disclosure/public interest disclosure'. She explained that she contacted Mr Ray, in 2008, after she had been provided, pursuant to an earlier access application (under the former Freedom of Information Act 1989), with a document dated 25 May 2007. That document, written by an officer of Workcover, the applicant asserted, contained 'false, defamatory statements about her', which she investigated. In response to her request, Mr Ray sent her an email on 2 and 3 December 2008. A copy of the earlier email was attached to the applicant's submissions. In that earlier email Mr Ray said that there was no record of a child protection investigation being carried out by the EPAC Directorate in regard to her conduct.

1. As I understand the applicant's submissions, she maintains that her contact with Mr Ray was in fact a 'protected disclosure/public interest disclosure' and on this basis some investigation would, or should have occurred and there must be a record thereof. If no enquiries (investigations) were made, the applicant asserts, given the nature of her concerns, at a minimum some enquiries should have been made of the person who was stated to have provided Workcover with the alleged 'false, defamatory statements about her', together with a search for the information that this person forwarded to Workcover. Again, the issue of what action should have been taken is not a matter relevant to this application for review.

1. In regard to the requested category 2 information, the applicant pressed her application for access. In particular she sought access to the deleted information on page 48 and the subsequent deleted pages 50 to 52 of the File No EPAC11/297-01.

The GIPA Act

1. S 3 sets out the objects of the GIPA Act to be as follows:

3 Object of Act

(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:

(a) authorising and encouraging the proactive public release of government information by agencies, and

(b) giving members of the public an enforceable right to access government information, and

(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.

(2) It is the intention of Parliament:

(a) that this Act be interpreted and applied so as to further the object of this Act, and

(b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.

1. The term 'government information' is defined in section 4 of the GIPA Act to mean 'information contained in a record held by an agency'. The word 'record' and the phrase 'government information held by an agency' is defined in cls 10 and 12 of Schedule 4 of the GIPA Act.

1. S 5 of the GIPA Act contains a presumption in favour of the disclosure of government information, unless there is an 'overriding public interest against disclosure'. And subs 9(1) gives every person who makes an access request for government information a legally enforceable right to be provided with access to the information in accordance with Part 4 of the Act unless there is 'an overriding public interest against disclosure of the information.'

1. The test to be applied in determining whether there is an 'overriding public interest against disclosure' is set out in s 13. That test is in the following terms:

13 Public interest test

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

1. Subs 12(1) provides that there is a general public interest in favour of disclosure of government information. Subs 12(2) provides that public interest considerations in favour of disclosure are not limited. The section goes on to provide some examples of public interest considerations in favour of disclosure of government information. These include:

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

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

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

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

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

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

1. The public interest considerations against disclosure are limited. These are set out in s 14 of the GIPA Act. Subs 14(1) provides that government information described in Schedule 1 of the GIPA Act is to be conclusively presumed to give rise to a public interest consideration against disclosure. This provision does not apply to this application.

1. Subs 14(2) sets out the only other public interest considerations against disclosure. For the purpose of this application, the relevant public interest considerations against disclosure are as follows:

14 Public interest considerations against disclosure

(1) ...

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

(3) ...

(4) ...

Table

1 Responsible and effective government

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

(a)

...,

(b)

...,

(c)

...,

(d)

...,

(e)

...,

(f)

prejudice the effective exercise by an agency of the agency's functions,

(g)

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

(h)

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

2 ....

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...,

(c)

...,

1. Section 15 sets out the principles that are to be applied when determining whether there is an overriding public interest against disclosure. That section provides as follows:

15 Principles that apply to public interest determination

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

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

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

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

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

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

1. S 55 makes provision for personal factors to be taken into account in determining where the public interest lies. That section relevantly provides:

55 Consideration of personal factors of application

(1) 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 the following factors (the personal factors of the application) into account as provided by this section:

(a) the applicant's identity and relationship with any other person,

(b) the applicant's motives for making the access application,

(c) any other factors particular to the applicant.

(2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information.

(3) ....

Note. An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73.

1. S 53 of the GIPA Act sets out the obligations of an agency in regard to searching for the information sought by an access applicant. That section is in the following terms:

53 Searches for information held by agency

(1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received.

(2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency.

(3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically.

(4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures.

(5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.

1. S 58 sets out how an access request/application is to be decided. It is in the following terms:

58 How applications are decided

(1) An agency decides an access application for government information by:

(a) deciding to provide access to the information, or

(b) deciding that the information is not held by the agency, or

(c) deciding that the information is already available to the applicant (see section 59), or

(d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or

(e) deciding to refuse to deal with the application (see section 60), or

(f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact.

Note. These decisions are reviewable under Part 5.

(2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for.

(3) If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired.

1. S 60 of the GIPA Act sets out the circumstances in which an agency can determine to refuse to deal with an access application. That section relevantly provides:

60 Decision to refuse to deal with application

(1) An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason):

(a) ...,

(b) the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision on the application,

(b1) the applicant has previously been provided with access to the information concerned under this Act or the Freedom of Information Act 1989,

(c) ...

(2) ...

1. S 73 provides that where a decision is made to grant access to government information, subject to the prescribed exceptions, that access is unconditional. That section is in the following terms:

73 Access to be unconditional

(1) An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application.

(2) A condition may be imposed as to how a right of access may be exercised (such as a condition that prevents an applicant making notes from or taking a copy of a record that is made available for inspection) but only to avoid there being an overriding public interest against disclosure of the information.

(3) A condition may be imposed that access to medical or psychiatric information will only be provided to a medical practitioner nominated by the applicant and not to the applicant personally.

Note. Access can also be made conditional on the payment of processing charges (s 64) and on the provision of evidence of identity or other personal factors relevant to the agency's decision to provide access (s 55).

1. Where an access applicant is aggrieved by a decision made by an agency under s 58 of the GIPA Act and the access applicant seeks external review by the Tribunal, subs 105(1) of the GIPA Act places the onus on the respondent to justify its decision the subject of review.

1. S 107 of the GIPA Act sets out the procedure to be used, by the Tribunal, in regard to information for which there is, or claimed to be an overriding public interest consideration against disclosure, when reviewing a decision of an agency. The provision essentially requires the Tribunal to ensure that it does not disclose, in its decision or during the course of the hearing, such information to the applicant, the applicant's legal representative, or the public. As I have already explained, pursuant to this section, the respondent provided the Tribunal with a copy of the entire records the subject of this application.

Category 1 information - consideration

1. In regard to the information concerning the applicant's 2008 disclosure to Mr Ray, I am satisfied, on the material before the Tribunal, the respondent has, in accordance with subs 53(2) of the GIPA Act, undertaken reasonable searches for the information sought.

1. The Tribunal has accepted the reasoning of the Queensland Information Commissioner, in Shepherd and the Department of Housing, Local Government and Planning (1994) 1QAR 464 at [19] that there are two questions to be asked in determining whether reasonable searches have been undertaken by the agency (see McCabe v Workers Compensation Commission [2012] NSWADT 30 at [34], Camilleri v Commissioner of police (NSW) [2012] NSWADT 5 at [11] and Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201 at [18]). The two questions being:

(a) whether there are reasonable grounds to believe that the requested [information] exist[s] and [is information] of the agency: and if so,

(b) whether the search efforts made by the agency to locate such [information] have been reasonable in all the circumstances of a particular case.

1. While I appreciate the applicant may be dissatisfied with the manner in which Mr Ray and the respondent, more generally, dealt with the specific concerns she raised in 2008, this is not a matter falling within the review jurisdiction of the Tribunal under the GIPA Act.

1. Accordingly, on the basis of the submissions of the respondent and in the absence of any material to indicate that Mr Ray did conduct further enquiries and a record of such is held by the respondent, I am satisfied reasonable searches were made.

1. As I have mentioned, the decision of the respondent was that it held no information falling within this category. That decision was clearly not correct. Accordingly, that decision should be set aside and in substitution there of a decision to grant the applicant access to that information. In this regard it is noted that the information has been previously provided.

Category 2 information - consideration

1. The applicant has not disputed the decision of the respondent in so far as it related to information provided to her previously in response to her earlier access applications under the repealed FOI Act and the GIPA Act. Accordingly, I have not dealt with this any further.

1. In regard to the remaining information in dispute, as indicated above, this information is that held by the respondent, concerning the applicant's 2011 misconduct allegations and which is dated after 5 December 2011 (i.e. being a record held by the respondent that came into its possession and control after 5 December 2011). I note that the applicant's 2011 misconduct allegations were investigation in late 2011 and the respondent finalised any action arising there form on or about 15 October 2012.

1. The information which remains in dispute is contained in the following records:

File No. EPAC 11/297-01

• A 5 page Incident Summary Report in regard to the applicant's 2011 misconduct allegations and action taken in relation thereto. The information in issue are the minor deletions on pages 2 to 4, which the respondent asserts to be personal information of a third party,
• A series of internal emails, dated 2 and 12/10/2012, together with attachments, between the Principal Investigator of EPAC and the Manager of Directorate Services, concerning communications with and responses from the person the subject of the investigation (pages 8 to 17). The emails and attachments thereto are marked confidential and the respondent determined that access be refused in full,
• Two emails from the Principal Investigator of EPAC, dated 4/05/2012, to 'Erica' and 'Ms Lee' (pages 19-20, 41 and 53-55 with the redaction of the mobile phone number of the Principal Investigator),
• Internal letter, dated 17/05/2012, from the Principal Investigator of EPAC, to the Manager of Directorate Services, attaching a copy of a letter (dated the same date) from the Principal Investigator to the person the subject of the allegation. Both letters are marked 'Private and Confidential' (pages 21-23 and for which the respondent determined to refuse access in full),
• Internal email, dated 5/05/2012, from the Legal and Programs Clerk of the WHS Directorate to the Principal Investigator of EPAC (page 48 - the email is marked confidential and the last paragraph is deleted) and a further internal email, dated 4/05/2012, from the Principal Investigator of EPAC to the Legal and Programs Clerk of the WHS Directorate (page 49) together with an attached File Note prepared by the Investigator (pages 50 to 52 - the File Note is marked 'Strictly Confidential'). The respondent refused access, in full, to the File Note (pages 50 to 52), which is a record of responses the Legal and Programs Clerk had provided in response to questions asked of her by the Principal Investigator.

File No. EPAC 11/297-02

• A single page submission of information to the 'Decision Maker', dated 28/09/2012, concerning a person other than the applicant (page 1 and access refused in full),
• Letter, dated 17/05/2012, from the Principal Investigator of EPAC to the person the subject of the investigation (pages 104 & 105 for which access refused in full - it is noted that these pages are the same as pages 22 and 23 above),
• Email together with an attachment, dated 29/06/2012, from the person the subject of the investigation, to the Principal Investigator of EPAC (pages 106 & 107 for which access was refused in full).

1. It is the respondent's contention that there is a public interest consideration against disclosure of the abovementioned information and that this public interest against disclosure, on balance, outweighs the public interest consideration in favour of disclosure (i.e. the s 13 test is satisfied in regard to this information, justifying the decision to refuse access).

Public interest consideration in favour of disclosure

1. In regard to the public interest considerations in favour of disclosure, the respondent noted the general public interest in favour of disclosure in subs 12(1) of the GIPA Act. It also noted the following public interest considerations in favour of disclosure:

• the information is about the applicant - that is, the deleted information, to the extent it is personal information about the applicant. Although the disputed information relates to the 2011 misconduct allegations, only small part of that information is personal information about the applicant. The majority of the deleted information is personal information of the person the subject of the allegations and not the applicant,
• it supports the reasons for decision - I do not understand what is meant by this, and
• disclosure supports natural justice/procedural fairness - I agree, to the extent that a disclosure of the information in dispute could reasonably be expected to enhance Government accountability.

1. Although the applicant has expressed concerns about the conduct of the respondent in dealing with her access applications, I do not understand her to assert that the disclosure of the information in dispute could reasonably be expected to substantiate that the respondent or a member of the respondent engaged in misconduct in regard to her 2011 misconduct allegations. Nor, on my examination of the deleted the information is there any information to indicate that any officer of the respondent had acted inappropriately or that inappropriate processes were used.

Public interest considerations against disclosure

1. The respondent relied on the public interest considerations against disclosure contained in the following clauses to the table in subs 14(2) of the GIP Act:

• cl 3(a) and (b)
• cl 1 (g), (h), and (h)

1. As can be seen from the terms of these public interest considerations against disclosure, they are each predicated with the words 'could reasonably be expected to'. It is well accepted that these words are to be given their ordinary meaning and 'require a judgement to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous' to expect to have the prescribed consequences set out in the paragraphs to the relevant applicable clause: see McKinnon v Secretary, Department of Treasury [2006] HCA 45, at [61] and Attorney-General's Department v Cockcroft (1986) 10 FCR180, at 190. Accordingly, the enquiry that is required to be made, under cl 1 and cl 3, is of a general and abstract nature. That is, whether a disclosure of the information, when considered in the abstract, could reasonably be expected to have the prescribed consequences: see Commissioner of Police (NSW) v Camilleri [2012] NSWADTAP 19 at [29].

1. Cl 3(a) - reveal personal information - the term 'personal information' is defined in cl 4 of Schedule 4 of the GIPA Act in the following terms:

4 Personal information

(1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.

(2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics.

(3) Personal information does not include any of the following:

(a) information about an individual who has been dead for more than 30 years,

(b) information about an individual (comprising the individual's name and non-personal contact details) that reveals nothing more than the fact that the person was engaged in the exercise of public functions,

(c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause

1. The word 'reveal' information is defined in cl of Schedule 4 of the GIPA Act to mean 'to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)'.

1. Where an agency finds that the information, for which access is sought, is personal information about a person other than the access applicant, s 54 of the GIPA Act requires the agency to take any steps reasonably practical to consult that person before it determines to grant access to that information. In its determination, the respondent said it had not consulted the third parties in regard to their personal information as it formed the view that they would not agree to a disclosure unless they knew to whom the information would be released. To do so, the respondent noted, would require a disclosure of the applicant's identity as the person seeking access as well as being the person who had made the misconduct allegations. The applicant, I note has not made any submissions to the contrary.

1. Nevertheless, the first issue for determination is whether the information in dispute is personal information.

1. In regard to the deletions that are the mobile telephone numbers of the Principal Investigator, I note that these numbers were included in emails the Investigator prepared and sent in the course of and for the purpose of exercising his functions as an officer of the respondent. There is no evidence before the Tribunal to indicate that this mobile number was his personal and private number. On the contrary, having regard to the context in which this number appears, the inference is that the Investigator's mobile number was for use for the purpose of his functions as an investigator with the EPAC Directorate: see Commissioner of Police v District Court (NSW) (1993) 31 NSWLR 606 at 621-623.

1. Accordingly, in the absence of any evidence from the respondent, on whom the onus lies, I find that the deleted mobile number of the Principal Investigator is information falling within the exception in cl 4(3)(b) above. That is, it is not personal information and hence this public interest consideration against disclosure does not apply.

1. In regard to the remaining disputed information I am satisfied that it is also personal information and a disclosure of that information could reasonably be expected to reveal that information. This includes the deleted information on page 48 of File No. EPAC11/127-01 and pages 50 to 52 of that File.

1. As I have explained the information the subject of the applicant's access request concerns an allegation of misconduct, towards her, by another employee of the respondent. It was an internal misconduct allegation and it has long been accepted that the complaint in which the allegation is made, details of any investigation into the allegation and the information provided by witnesses, or the person the subject of the complaint and the action taken in regard to the complaint is personal information of the person to whom it relates: see McKinnon v Blacktown City Council [2012] NSWADT 44 at [73] and AEF v Northern Sydney Local Health District (No 2) 2012] NSWADT 89 at [80].

1. As I have already indicated, the remaining disputed information (including that contained on pages 48, 50 and 52) is primarily personal information about the person the subject of the applicant's allegations. This information has not been revealed. The deleted information on pages 48, 50 and 52 is also the personal information of the Legal and Program's Clerk. While the identity of this person has been disclosed to the applicant, the information recording what that person said, to the Principal Investigator, has not been disclosed.

1. Some of the deleted information includes personal information about the applicant to the extent of her being names and the fact that she had made misconduct allegations. This information, however, is intertwined with the personal information of the person the subject of the allegations and the Legal and Program's Clerk.

1. Accordingly, I am satisfied that the respondent has established that a disclosure of the deleted information, other than the mobile numbers of the Principal Investigator, falls within this public interest consideration against disclosure.

1. Cl 3(b) - contravene an information Protection Principle - As the submissions of the respondent do not specifically address this public interest consideration against disclosure, I am not able to understand how it applies to the information in question. I accept that the information protection principles in ss 8 to 19 of the Personal Information Protection Act 1998 (PPIP Act) relates to the collection, storage, use and disclosure of personal information, by public sector agencies. I also note that the term 'personal information' in subs 4(1) and (2) of the PPIP Act is the same as that contained in cl 4(1) and (2) of Schedule 4 of the GIPA Act. However, the exceptions to this general description in subs 4(3) of the PPIP Act differs to that in cl 4(3) of Schedule 4 of the GIPA Act. In particular, subs 4(3)(j) of the PPIP Act excludes information or opinion about an individual's suitability for appointment or employment as a public sector official and subs 4(3)(e) excludes information about an individual that is contained in a public interest disclosure within the meaning of the Public Interest Disclosure Act 1994. Similar exclusions are not contained in the GIPA Act.

1. I make no conclusive findings in this regard. However, in the absence of the respondent providing any explanation, other than by mere assertion, as to why this particular public interest consideration applies to the information in dispute, I find that it has failed to establish that this public interest consideration applies.

1. Cl 1(f) - prejudice the effective exercise by an agency of its functions

Cl 1(g) -found an action for breach of confidence, or result in the disclosure of information provided to the agency in confidence

Cl 1(h) - prejudice the conduct, effectiveness or integrity of any investigation by or on behalf of an agency by revealing its purpose, conduct or results

The respondent contends that the abovementioned information protection principles apply to the information on pages 8 to 17, 48 (in part) and pages 50 to 52 (in full) of File No. EPAC11/297 - 01 and pages 104 to 107 (in full) of File No. EPAC11/297 - 02 (see paragraph 49 above which contains a description of these pages).

1. The respondent also contends that a disclosure of the deletions on pages 2 to 4 of File No. EPAC11/297 - 01 could reasonably be expected to prejudice the effective exercise by the respondent of its functions (i.e. cl 1(f)).

1. As I have explained, the information in pages 48 and pages 50 to 52 of File No. EPAC11/297-01 and pages 106 and 107 of File No. EPAC11/297- 02, expressly provide that the information contained therein was provided to the respondent in confidence. Even if the information was not expressly stated to have been provided in confidence, in my view, the nature of the information and the circumstances in which it was obtained by the respondent was such that it was provided in confidence.

1. Hence, I am satisfied that the respondent has established that the public interest consideration against disclosure in cl 1(g) of the table to subs 14(2) of the GIPA Act applies to the deleted information in paragraph 67 above.

1. I am also satisfied that the respondent has established that the public interest considerations against disclosure in cl 1(f) of the table to subs 14(2) of the GIPA Act applies to the deleted information on pages 2 to 4, pages 8 to 17, page 48 and the information an pages 50 to 52 of File No. EPAC11/297-01 together with pages 106 and 107 of File No. EPAC11/297- 02.

1. It is well established that a function of an agency is to deal with and action allegations of misconduct by one or more of its officers. The effective exercise of that function is based on complaints being made voluntarily and that the making of the complaint and any action taken in regard thereto remains confidential, to the extent required by law.

1. However, in the absence of the respondent setting out in detail how it contends that the public interest consideration against disclosure in cl 1(h) of the table to subs 14(2) of the GIPA Act applies, I find that its application to the information in issue has not been established. In this regard, I find the information in dispute relates to matters that post-dated the investigation report of Ms Woodhouse.

Where does the balance lie?

1. Other than the general principles set out in ss 3, 5 and 12(1) of the GIPA Act, the Act does not set out how the public interest considerations for and against disclosure are to be weighed, in determining whether the public interest against disclosure outweighs the public interest in favour of disclosure. Accordingly, each matter is to be determined on its own facts and as pointed out by the Tribunal in, Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [70] the balancing of the competing interests 'is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation'.

1. In my view, the abovementioned public interest consideration against disclosure of the remaining disputed information (i.e. other than the mobile phone number of the Principal Investigator of EPAC) should be given considerable weight as it is personal information which has not been revealed and it is information relating to an internal misconduct allegation, for which it is accepted an agency must ensure confidentiality so as to obtain the ongoing voluntary co-operation and assistance of staff in reporting such allegations and then assisting in the investigation thereof.

1. On the material before the Tribunal, I am not persuaded that the public interest consideration in favour of disclosure, namely a disclosure of the information could reasonably be expected to enhance Government accountability is very strong. Although alleged misconduct of an officer of a government agency might become a matter of public concern, there is no evidence to indicate that the information in regard to the allegations the subject of the information in dispute is a matter of public concern. They are of course a matter of concern to the applicant, however this does not make them a matter of public concern.

1. To the extent the information is personal information about the applicant, which is also a public interest consideration in favour of disclosure, in my opinion, having regard to the nature of that information and the fact it is also part of the personal information of the person the subject of the allegations and the Legal and Programs Clerk, on balance, the public interest consideration against disclosure still outweighs it. As I have explained, to the extent the disputed information does contain the personal information of the applicant it is primarily her name and that the misconduct allegations were made by her.

1. In reaching this view I have had regard to the applicants reasons for seeking access to the disputed information. As explained above, the applicant has been granted access to a large amount of the information, including the Woodhouse report. She has not pointed to any matters arising from these disclosures, which might warrant a different conclusion in so far as her access application is concerned.

1. Accordingly, with the exception of the information that is the mobile phone number of the Principal Investigator of EPAC, I find that there is an overriding public interest against disclosure of the disputed category 2 information.

Conclusion and Orders

1. For the reasons set out above I have found that the respondent decision in regard to the category 1 information and the information that is the deleted mobile telephone number of the Principal Investigator of EPAC is not the correct and preferred decision and should be set aside. In regard to the remaining information in dispute I have found that the decision of the respondent is the correct and preferred decision and should be affirmed. Accordingly, I make the following orders:

1. The decision of the respondent in regard to the category 1 requested information is set aside and in substitution thereof a decision to grant the applicant access to the information held by the respondent. It is noted that the information was previously disclosed to the applicant in response to an earlier access application.

2. The decision of the respondent to refuse the applicant access to the deleted mobile telephone numbers of the principal Investigator of EPAC is set aside and in substitution thereof a decision to grant the applicant access to that information.

3. The decision of the respondent, as revised in its written submissions, is otherwise affirmed.

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Decision last updated: 30 September 2013