Mullett v Director General of the Department of Education and Training
[2001] NSWADT 119
•07/18/2001
Set aside by Appeal:
Set aside by appeal on 23/8/02
CITATION: Mullett -v- Director General of the Department of Education and Training & Anor [2001] NSWADT 119 DIVISION: General Division PARTIES: APPLICANT:
Christopher Mullett
RESPONDENT:
Director General, Department of Education and Training
FIRST PARTY JOINED:
Robert John RandazzoFILE NUMBER: 003353 HEARING DATES: 26/03/2001, 27/03/2001 SUBMISSIONS CLOSED: 03/27/2001 DATE OF DECISION:
07/18/2001BEFORE: Robinson MA - Judicial Member APPLICATION: access to documents - confidential material - access to documents - operation of agencies - access to documents - personal affairs - Freedom of Information Act - access to documents - confidential material - Freedom of Information Act - access to documents - operation of agencies - Freedom of Information Act - access to documents - personal affairs MATTER FOR DECISION: Principal matter LEGISLATION CITED: Freedom of Information Act 1989 CASES CITED: Humane Society International Inc. -v- National Parks & Wildlife Service [2000] NSWADT 133.
Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606 ("Perrin's Case")
Queensland v Albietz [1996]1 Qd R 215
Re Easdown and Director of Public Prosecutions (1987) 2 VAR 102
Ainsworth v Principal Officer, Department of Gaming and Racing (unreported, NSW Dist Ct, 6 June 1997)
Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93 at [76] to [85]REPRESENTATION: APPLICANT
In person
RESPONDENT
K Sant, barrister
FIRST PARTY JOINED
In personORDERS: 1. The decision under review is set aside; 2. Access to a full copy of the report is to be given to the applicant and the first party joined with the exception that the exempt matter in the second two lines of the table in paragraph 74 of the report is to be deleted from the copy so provided; 3. The parties have 14 days from the date of this decision to file at the Tribunal and serve on each other party any application and submission concerning any application for costs.
1 This is an application for review of a reviewable decision made under the Freedom of Information Act 1989 (“ the Act ”) refusing the applicant full access to a copy of an 18 page report of an internal investigation unit of the respondent agency. An “expurgated” version of the said report was released to the applicant at various stages of the FOI process by the respondent. The report concerns the results of an investigation into alleged irregularities in the selection process conducted by the respondent at the instigation of the applicant in relation to the appointment of a new principal at a small rural primary school in New South Wales.
2 At the hearing, the respondent relied on the following grounds of exemption in Schedule 1, Part 2 of the Act in respect of those portions of the report that were not given to the applicant: clause 13(b) [confidential material], clause 16 [operations of agencies], and clause 6 [personal affairs].
3 The applicant is a person interested in the investigation as he was the complainant who caused the investigation to be commenced and he was on the selection panel that recommended the appointment of a new principal to the school. He was also then president of the School Council and had children attending the school. He was in receipt of legal representation by Deakins, solicitors, during the course of preparation for the Tribunal hearing, and he relied on helpful written submissions prepared by them. However, he represented himself at the Tribunal hearing.
4 The first party joined is a teacher and was an applicant for the position of principal at the primary school. He was then a popular and experienced teacher at the school. Notwithstanding his excellent credentials and experience, and the fact that he ultimately scored higher in numerical terms than the other job applicants as at the conclusion of the formal selection process the subject of the report in November 1999, he narrowly missed out being the panel’s recommended applicant by an “overall preference vote” of 3 to 2 panelists. The job went to another person.
5 At the hearing, the respondent, who was represented by counsel, tendered the subject report described as the “full” report. It was received as a confidential exhibit (B) and I ordered that it remain confidential (other than to a Tribunal member properly constituted to deal with the matter) until further order. The report is a report of the Audit Directorate of the NSW Department of Education and Training (“the Department”) dated 31 December 1999 and headed “Investigation Report AI 91/99 Penrose Public School Alleged Corrupt Merit Selection Process” (“the report”). I note that notwithstanding its description as a full copy of the report, the 7 or so “appendices” to the report, referred to at page 18 of the report and referred to in various places in the body of the report are not reproduced. Ordinarily, I would regard the said appendices as forming part of the report here. However, as the issue was not raised by the applicant or the first party joined I shall say no more about it other than to note the applicant tendered a statement of his dated 7 December 1999 (exhibit 2) that appears to be Appendix “A” to the report. In the absence of any complaint made at the hearing by the active parties, I make no findings in this decision on the material that may have been appended to the report.
Background
- 6 The background to the facts giving rise to the creation of the subject report is perhaps best explained by setting out the opening paragraphs of the report and its summary of findings and recommendations (paragraphs 1 to 12):
“INTRODUCTION
1. Allegations of corrupt conduct and complaints concerning the merit selection process for the position of Principal , Penrose Public School were received from Mr C. Mullett, panel member and President of the Penrose Public School Council and from other members of the School Council on 15 and 18 November 1999 respectively.
2. On 23 November 1999 the Director of Personnel Operations referred the allegations to Audit for investigation which was undertaken by Mr C. Ballantine, Manager Corruption Prevention and Investigation assisted by Ms C. Wells, Assistant Director of Audit during December 1999.
BACKGROUND
3. Penrose Public School is a small rural PP5 school in the Shellharbour District with approximately 50 students. The teaching staff comprise the Principal and one teacher.
4. In June 1999 the Penrose P & C Association advised the Director of Personnel Operations of the instability caused at the school by the departure of the third principal in less that ten years. The P & C sought to have the long term teacher at the school, Mr Robert Randazzo, directly appointed to the Principal’s position. Mr Randazzo had been unsuccessful on a number of previous occasions when applying for the Principal’s position.
5. The Deputy Director General (Corporate Services) advised the P & C on 11August 1999 that it was not possible to directly appoint Mr Randazzo into the position as it was a promotional position. However, Mr Randazzo would have the opportunity to apply through the merit selection process.
6. Having determined that there were no principals seeking priority transfer to the position, the Personnel Directorate delegated the filling of the position to the District Superintendent, Shellharbour, Mr Alan Thomas. However, following complaints from the Penrose School Community about the proposed composition of the selection panel, responsibility for the filling of the position was assumed by the School Staffing Unit at Blacktown. An independent panel from outside the district, but including the P & C nominee, Mr Chris Mullett, was convened.
- The Selection Panel comprised:
* Convener - Ms Sandra Bradley, Principal Batemans Bay Public School
* Principal Representative - John Walker, Representative Principal, Bombala Public School
*Parent Representative - Chris Mullett, Penrose Public School
* Federation Representative - Michael Mullane, Assistant Principal, Nowra Public School
* Parent Representative - Susan Bradley, Wyndham Public School
8. A proposed school management review has been deferred until after finalisation of the audit investigation and selection process.
SUMMARY OF FINDINGS AND RECOMMENDATIONS
9. The investigation addressed eight allegations concerning the alleged bias of panel members; improper conduct by Departmental staff on the selection panel and corrupt conduct by the District Superintendent, Shellharbour in relation to his role as referee and selection panel delegate.
10. On the basis of statements from those involved and from the review of relevant documentation, Audit concluded that none of the allegations were substantiated.
11. Audit did however express concern about the role of Mr C. Mullett, President of the Penrose School Council who was a member of the selection panel. There were obvious examples of breach of confidentiality and bias by Mr Mullett.
12. It has been recommended that the selection panel’s recommendation stands; that the review of Penrose Public School be completed as soon as possible and that all parties be advised of the investigation outcome.”
7 In the applicant’s written submissions filed 20 March 2001 by his then solicitors, the following further background context is set out and which I adopt:
“(a) The Penrose Public School had suffered as a result of losing several principals in the period of about ten years preceding the report.
(b) The School Community was concerned to have a principal who would bring stability to the school.
(c) Mr Robert Randazzo had been a teacher at the school for many years and had for substantial periods been the acting principal. …
(d) He was respected by many members of the school community and upon the departure of the last principal an approach was taken by the Parents & Citizens Association to have Mr Randazzo appointed directly to that position.
(e) An officer of the Respondent’s Department indicated that this was not possible and that a merit selection process would need to be undertaken.
(f) The position was advertised and the Applicant was selected as the Penrose Public School parents’ representative on the selection panel.
(g) During the course of the selection processes a number of incidences occurred which the Applicant considered to reveal bias on behalf of some of the members of the panel and corrupt conduct on the part of Alan Thomas, the District Superintendant, and referee for Mr Randazzo.
(h) To rectify this bias/ corrupt conduct and its consequences, the Applicant sought an inquiry into the selection process. He made a number of allegations of actions which he considered constituted bias or corruption, which are addressed in the Audit Report.
(i) Subsequently, further concerns were expressed by members of the Penrose School Council, which are also addressed in the Audit Report.
(j) The Audit Directorate undertook an investigation in response to these concerns and made its report on 31 December 1999.
(k) The Applicant and the School Council were notified of the conclusions of the Audit Report in general terms but have not been provided with a full copy of the report into alleged corruption and bias affecting their local school.”
8 In the written submissions of the respondent, the following was set out in describing the preliminary and formal matters leading to the Tribunal’s hearing. These paragraphs were also adopted by the applicant in his written submissions:
“The Freedom of Information Request
2.1 On 8 May 2000, the applicant made an application under the Freedom of Information Act 1989 (“the Act”) in the following terms:
“I request access to the following documents: the investigation by the Audit Directorate of the Department of Education and Training into allegations by me of bias and corruption relating to a panel selection process to appoint a principal of Penrose Public School. Report delivered on December 31, 1999.”
2.2 By letter dated 5 June 2000, Ms Margaret Adebiyi, Acting Freedom of Information Manager, responded to the applicant’s Freedom of Information request. The applicant was provided with an edited version of the Report and access to the remainder was refused. Access to paragraphs 14 to 17, 21 to 24, 28 to 33, the third sentence of paragraph 34, paragraphs 35, 37, 39 to 43, 45, 50 to 53, 57 to 61, the first two sentences of paragraph 63, the first 11 words of paragraph 64, paragraphs 69 to 73 and paragraph 81, page 18 of the Report (which identified the individuals who had given evidence during the audit) and confidential appendices B, C, D, F, G, and H was refused on the ground of clause 13(b) of Schedule 1 to the Act (note that there was no appendix E to the Report). In addition, access to paragraphs 14 to 17, 21 to 24, 28 to 33, the third sentence of paragraph 34, paragraphs 35, 37, 39 to 43,45, 50 to 53, 57 to 61, the first two sentences of paragraph 63, the first 11 words of paragraph 64, paragraphs 69 to 73 and paragraph 81 was refused on the ground of clause 16 of Schedule 1 to the Act. Finally, access to portions of paragraphs 62 and 74 of the Report was refused on the ground of clause 6 of Schedule 1 to the Act.
2.3 On 14 June 2000, the applicant requested an internal review of the determination. By letter dated 5 July 2000, Mr Paul Whelan, General Manager of Executive and Legal Services, varied the original decision as follows:
- - the third sentence of paragraph 34 remained exempt but the ground of exemption was varied from clause 13(b) of Schedule 1 to the Act to clause 6 of that Schedule;
- paragraph 35 was released with the exception of the names referred to in that paragraph. This partial deletion was based on the ground in clause 6 of Schedule 1 to the Act;
- paragraph 37 was released;
- paragraph 45 was released;
- paragraph 62 was released;
- paragraph 63 was released in full;
- the first two lines of paragraph 74 were released; and
- the first column on page 18 list of appendices was released.
2.4 On 14 July 2000, the applicant asked the NSW Ombudsman to investigate the Department’s handling of his FOI request. On 30 October 2000, he asked the Ombudsman to terminate its investigation and, by letters dated 28 November 2000, Mr David Watson, on behalf of the Ombudsman’s Office, informed both the applicant and the Department that it was taking no further action.
2.5 On 10 November 2000, the applicant commenced proceedings in the Administrative Decisions Tribunal seeking a review of the Department’s internal review decision. The Department accepts that the applicant’s review application was within time pursuant to section 54(b) of the Act.”
9 Notwithstanding that the respondent relied on the personal affairs exemption clause 6 of Schedule 1 of the Act in refusing access to the full copy of the report, the respondent did not seek the views of the third parties concerned under the “reverse FOI” procedure in section 31 of the Act until after the commencement of these proceedings and a planning meeting was held with the Tribunal. There were about 7 such persons. Their views were sought by the respondent as to whether the report should be released to the applicant. The respondent’s submissions record, and I accept, that:
“All third parties have now been consulted. Of this, two parties have not replied to the respondent. One third party, Mr Randazzo, has indicated that he consents to the release of the relevant paragraphs of the Report. The remaining third parties have expressed their view that they do not wish the material concerning themselves released to the applicant.”
10 One of the third parties, Mr Randazzo, became the first party joined to these proceedings. None of the others chose to apply to the Tribunal to become a party and the respondent chose not to call them to attend and give evidence as to why they do not wish the relevant material be released to the applicant.
11 Under the Act, section 61, the respondent agency holds the burden of proof of establishing that the determination made in the decision under review is justified. At the hearing, in addition to the subject report, the respondent relied on the following documents:
- Bundle of documents containing the original decision under review and the internal review decision and the “expurgated” versions of the report as released to the applicant in 2 stages (exhibit A);
- Affidavit of Lynda Kerri Shearer, Assistant Director of Staffing Operations, Personnel Directorate of the respondent (exhibit C);
- Affidavit of Christopher John Ballantine, Manager of Corruption Prevention and Investigation at the Audit Directorate of the respondent agency (exhibit D); and
- Affidavit of Carolyn Gay Wells, Assistant Director of Audit at the Audit Directorate of the respondent (exhibit E).
12 The respondent’s witnesses were also orally examined at the hearing by the legal representative for the respondent and were cross examined extensively by the applicant and the first party joined. Written submissions were also relied upon by the respondent that were filed on 5 February 2001.
13 Ms Shearer gave evidence of the detailed procedures and systems in place in New South Wales for the merit selection process. It was made clear that the process is long established (since 1988), is part of a larger human resources system, is known by “virtually all” teachers in NSW, and is generally regarded as a confidential process from a number of different points of view. On this last point, she said:
“10 The deliberations of a merit selection panel and the information supplied to this panel must remain confidential both during and after the merit selection process. Confidentiality is necessary:
- (a) from a “systems” point of view as explained in paragraph 11 below;
(b) from the applicant’s point of view as explained in paragraphs 12 to 13 below;
(c) from the referees’ point of view as explained in paragraph 14 below; and
(d) from the panelist’s’ point of view as explained in paragraph 15 below.
12 From the applicant’s point of view, it is necessary to ensure that the deliberations of a merit selection panel remain confidential in order to protect the privacy of the applicant and to create an atmosphere of trust and safety in which the applicant feels comfortable to speak fully and frankly with the panel.
13 In merit selection panel interviews and in the documents provided to the panel applicants may:
- (a) disclose information of a very personal and private nature (for example, their assessments of their own work performance, their career aspirations, the history of their career to date, their relationships with others);
(b) make comments or observations that could potentially de-stabilise their current job, jeopardise work relations or relations with parents if those comments or observations became known outside the merit selection panel (for example, they may make negative comments about the school that they currently work at); or
(c) make comments or observations that could expose them to embarrassment or ridicule if those comments or observations became known outside the merit selection panel.
15 It is also necessary to ensure that the deliberations of a merit selection panel remain confidential in order to create an atmosphere in which the panelists feel comfortable to speak fully and frankly with the panel, and without fear of reprisals. At times panelists may feel they need to put a view quite forcefully and should be able to do so without fear that it will be repeated outside of the panel.
16 Where the community involved is a small one which is very involved in its school, there is an increased potential for creating division within the school community by way of breaches of confidentiality.”
14 Ms Shearer also gave evidence that all merit selections panelists are given training about preserving confidentiality. As to the applicants or their referees, no specific assurances of confidentiality are given to them in the process. However, she says, the process is so well known, they should be aware of the need to preserve confidentiality. In her oral examination, she also said, in response to a question concerning what the effects could be if confidentiality is breached after the selection process had been completed, she said (transcript, Day 1, p 16):
“Whilst it is unlikely to have an impact on the process itself it is the impact on the participants in the process on the applicants in terms of what they've said and within the process and the panelists, the impact in terms of the community's view of the panel members; of the decisions that were made and the reasons for those decisions so I would be concerned about the ramifications for both the - for the participants both the applicants and the panel members.”
15 In cross examination by the first party joined, Mr Shearer stated that she was not able to comment on the particular FOI application in these proceedings or on what should occur when a person challenged the integrity of the merit selection process itself (ibid, page 22). As to the proper role of a referee in the process, the following exchange took place (at p 24):
“Q: Your statement, Ms Shearer, paragraph 14, "It is necessary to ensure that the deliberations to the merit selection panel remain confidential in order to create an atmosphere in which referees of applicants feel comfortable to speak fully and frankly with the panel without the fear of reprisal". Are referees' statements substantiated by the panel?
A: Referees' statements are taken from referees verbally. They may be substantiated through testing at interview with applicants.
Q: So no documentation is presented by the referee to substantiate?
A: No, it is not within the current merit selection process, no.
Q: So if a referee was to make allegations against an applicant, those allegations don't need substantiating by that referee?
A: My personal view is that if allegations were made then those allegations should be tested. … I don't believe that a panel should rest decisions upon allegations that haven't been tested. I believe that that's an aspect of fairness and equity.”
16 In the present case an important element was that during the course of the merit selection process, the panel had an oral discussion with a referee, Mr Thomas, the District Superintendent of the Department and the immediate supervisor of the job applicant, the first party joined. Mr Thomas was obliged to be the referee for the first party joined under the requirements of the process (ibid, page 29, line 20) and his reference and assessment, I expect, would have carried great weight to the panelists concerned. He was not a referee in the ordinary, private job application sense in that he was a person nominated by the job applicant. He said, in essence, to the panel that the first party joined was a good teacher, but that he was in some way responsible for the short term stay of four previous principals and, in potentially more damaging remarks, he said there has been some complaints made against him in the past by a number of parents. These two comments so surprised and upset the FOI applicant at the time he heard them uttered, that at the panel meeting he protested to the convener of the panel and declared them to be untrue and, later, they formed the basis of what is now known as allegation 3 & 4 in his formal complaint.
17 In my view, the significant, damaging and prejudicial effect those remarks would have had on the panel participants to the first party joined’s job application cannot be understated. The comments were general, unexplained and unsupported to the panel by details or documents or discussion. There was at the time little or no questioning by the panel members of Mr Thomas on these issues. If there were to be a close contest between the first party joined and another applicant, those comments could well have tipped the scales against the first party joined (as I suspect they ultimately did).
18 The evidence of Ms Wells, the Assistant Director of Audit at the Audit Directorate of the respondent Department, explained the role and function of the Audit Directorate of the Department. There are about 75 staff in the said Directorate. They conduct about 80 to 100 investigations per year. In the main, the investigations concern alleged criminal or staff disciplinary offences relating to misconduct, fraud, larceny and misuse of resources. It would be comparatively rare for the Directorate to investigate matters of the kind alleged by the applicant here, namely, a challenge to the integrity of a particular merit selection panel. She said that audits and internal investigations are undertaken in a professional and credible fashion using training and information from sources such as the Independent Commission Against Corruption. Detailed methods and procedures that have been developed by the Directorate.
19 She gave evidence of the need to protect the confidentiality of witnesses and their evidence in investigations. In particular cases, she said, fear of reprisals is expressed. There might also be concern expressed relating to victimisation of a child or children at school by other students or staff.
20 Ms Wells, together with Mr Ballantine, investigated the complaints made by the applicant here. She dealt with the allegations against Mr Thomas. With Mr Ballantine, she is a signatory to the subject report. As to the particular investigation conducted here, she said, inter alia:
“33. I am particularly concerned about violating the confidentiality assurances given to witnesses who cooperated with the Merit Selection Investigation because of the volatility in the local Penrose community about the merit selection panel’s outcomes and the potential difficulty that may ensue for witnesses if the confidentiality of their identities and the content of their evidence is violated. I became aware of this volatility because the then Director of Personnel Operations (who was the Director responsible for staff selection panels), Ms Heather Gray, told me some time in mid-November 1999 that the Penrose School Council had made direct representations to the Minister for Education and Training seeking the appointment of the candidate of their choice, rather than through merit selection, and that a review of the school was pending become of the difficulties that had been encountered by previous principals at that school.
34. Media reports concerning the merit selection panel’s outcomes have given the Merit Selection Investigation a high profile within the Department of Education and Training, the local Penrose community and in the wider community. Because of this high profile, I believe that if the confidentiality assurances that were given to the witnesses who cooperated with the Merit Selection Investigation were violated, this fact would become widely known with the Department of Education and Training and in the wider community and that many complainants and people would form the view that the Audit Directorate could not protect the confidentiality of witnesses and the evidence that they give. This may lead to a situation where witnesses would no longer cooperate with Audit Directorate investigations.”
21 As I discuss later in these reasons, I am not persuaded that mere disclosure of the further information in this particular case, notwithstanding the “volatile” and “high profile” nature of the investigation would result in witness no longer being willing to co-operate with internal investigations conducted by the Audit Directorate.
22 Ms Wells also gave oral evidence of her investigation of the complaints relating to Mr Thomas. She said that even though the complaints made against the first party joined were never put to him, were never investigated by anybody, and were not the subject of the process set out in the formal Complaints in Schools Policy of the Department, she had verified they existed and, in her view, they were appropriate comments for Mr Thomas to raise in his referee’s report to the selection panel because they were “balanced” with some positive comments (ibid, p 94).
23 I do not agree. I consider that any such adverse material or the substance of such material should be first put to the job applicant concerned before it is aired in a general and potentially prejudicial fashion by a referee during the course of merit selection proceedings. It does not matter that that such disclosures might have some objective or arguable basis in fact or be considered “factually correct”. For example, it might be factually correct for a referee to state that “some complaints have been received”. However, in the circumstances, those facts should have been acted upon or investigated fully in the proper fashion internally or otherwise before their existence was disclosed to the panel in the fashion it was. I would expect that in some cases, and it was probably the case here, that the release of that unexplored, unexplained and unsubstantiated information to the panel poisoned the panel members’ minds against the application of the first party joined. As he was unaware of it until after it occurred, he was not able to say or do anything about it.
24 Mr Ballantine’s evidence concerned the conduct of his investigation in November and December 1999 and the circumstances of writing it. He was the Manager of Corruption Prevention and Investigation at the Audit Directorate of the respondent agency. He said he has a standard practice in such investigations and gives witnesses an assurance of confidentiality in the following words:
“In all Audit investigations, all of the information we obtain is confidential and access to that information is restricted to a “need to know” basis. Wherever possible, the Audit Directorate attempts to maintain the confidentiality of this information and of the identity of witnesses. However, it is not possible to guarantee the anonymity of witnesses in all circumstances because if the investigation forms the basis of disciplinary proceedings either in the Department or in a court then, as a matter of procedural fairness, the accused will get access to the accusations made against him or her.”
25 In the course of his investigation, he interviewed 7 people including the applicant. His evidence is unclear as to which of these witness he issued the above statement. He said two of the witnesses expressly indicated they first sought an “assurance of confidentiality” before they would co-operate due to (unstated) “concerns” about the applicant becoming aware of their identities. Accordingly, the respondent contended that even the identity of these witnesses should be considered confidential and secret. There was no attempt by the respondent to identify to the Tribunal at the hearing who those persons were and precisely why they had these concerns. There was no application by the respondent for the Tribunal to sit in closed session so that this confidential matter might be addressed in evidence.
26 The applicant gave evidence before the Tribunal setting out in some detail his involvement with the school as a parent and active member of the school parents and citizen’s committee and the School Council. He resigned from these positions in July 2000 and he no longer has children at the school. He lives 46 km from the school. He attached to his affidavit some correspondence relating to the issues and demonstrating the fact, which is plainly accepted by the respondent, that the appointment of the school principal was a lively issue for the school and the local community. He notes that as at this year, the first party joined is no longer a teacher at that school. He argues that as much of what is in the report is already in the public domain, the remainder should be released.
27 The first party joined relied on a lengthy statement dated 18 March 2001. He argued, with some force, that the release of the partial report by the respondent merely raised more questions than it answered and the remainder of the report should be released. He said, and I accept, that the report impacts significantly on his professional and personal affairs and is of the opinion that he has a real and substantial interest in the full disclosure of the report. He also relied on helpful written submissions dated 27 March 2001.
The Personal Affairs Exemption
- 28 Clause 6(1) of the Act provides:
“A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).
(2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made.”
29 The respondent submits that paragraphs 29 to 30, the last sentence of paragraph 34, the deleted words in paragraph 35, the fourth sentence of paragraph 51, the first sentence of paragraph 53 and the second two lines of the table in paragraph 74 of the report are exempt matter pursuant to clause 6 of Schedule 1 to the Act.
30 I considered the question of the personal affairs exemption in Humane Society International Inc. -v- National Parks & Wildlife Service [2000] NSWADT 133. At [13]-[14] I stated:
“13 In Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606 ("Perrin's Case") Kirby P stated at 625B that "in its context, the words 'personal affairs' mean the composite collection of activities personal to the individual concerned".
14 The determination of whether the a name constitutes personal affairs is a question of fact depending on the particular circumstances of the case: Perrin's case, per Clarke JA at 644B. In that case, Clarke JA took the view that ordinarily a person's name would not constitute part of that person's personal affairs (see also Mahoney JA at 638D; and, Queensland v Albietz [1996]1 Qd R 215 at 221.30, de Jersey J).”
31 In Perrin’s case, Kirby P went on to apply the identified test to the facts of that case. He said (at p 625C):
“Applying that test, it cannot properly be said that the disclosure of the names of police officers and employees involved in the preparation of reports within the New South Wales police can be classified as disclosing information concerning their personal affairs. The preparation of the reports apparently occurred in the course of the performance of their police duties. What would then be disclosed is no more than the identity of officers and employees of an agency performing such duties. As such, there would appear to be nothing personal to the officers concerned. Nor should there be. It is quite different if personnel records, private relationships, health reports or (perhaps) private addresses would be disclosed. Such information would attract the exemption. But the name of an officer or employee doing no more that the apparent duties of that person could not properly be classified as information concerning the “personal affairs” of that person. The affairs disclosed are not that person’s affairs but the affairs of the agency”
32 I have carefully read the identified passages in the report. With the exception of the second two lines of the table in paragraph 74 of the report, which disclose the names and interim rankings of two unsuccessful applicants for the principal’s position, I cannot see that the material contains personal affairs as is contended for by the respondent. It is properly characterised as information collected by agency officers in the ordinary performance of their duties. If any aspect of the material constituted “personal affairs” within the meaning in clause 6, it was significantly the personal affairs of the first party joined as the relevant job applicant. He has requested that the information be released.
33 Accordingly, I do not consider that the respondent has discharged its burden of proof in relation to the said claimed exemption. If I am wrong in this view, I adopt what is said below in these reasons as to the public interest considerations. As that is similar to the concept of “reasonableness” in all the circumstances here, the reasoning there is also applicable to the personal affairs exemption. The claimed exemption is not made out.
The Confidentiality Exemption
- 34 Clause 13 of Schedule 1 to the Act relevantly provides:
“A document is an exempt document: . . .
(b) if it contains matter the disclosure of which:
- (i) would otherwise disclose information obtained in confidence, and
(ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and
(iii) would, on balance, be contrary to the public interest.”
36 The primary contentions of the respondent as set out in the written submissions on this ground are as follows:
“6.3 There are two factual bases for the claim of confidentiality in the present case. Firstly, the allegations concern conduct which occurred within a selection panel and during a selection process for the principal of Penrose Public School. The investigation of these allegations inevitably disclosed evidence concerning:
- - personal and professional information about the applicants for the position;
- information about the performance of the applicants in the interview for the position; and
- the deliberations of the selection panel.
6.5 Secondly, allegations of corruption were made and investigated by the Audit Directorate. The process of investigations of corruption and the collection of evidence regarding allegations of corrupt conduct is an inherently confidential one in which the protection of witnesses is a paramount consideration. Disclosure of material of this nature would disclose:
- - the identity of witnesses assisting the Audit Directorate;
- the content of their evidence to the Audit Directorate; including
- any allegations of corrupt or improper conduct made by witnesses about any person.
37 These submissions in effect amount to the seeking of a blanket exemption for a large range of government information. With the exception of the agencies and matters set out in Schedule 2 of the FOI Act, there are no such broad exemptions described in the Act that operate in the fashion contended for here. In any event, I do not consider that the respondent has satisfied me the material is exempt pursuant to clause 13(b). The Tribunal must be satisfied that all three limbs of that clause are adequately addressed in the evidence of the respondent. While I accept that the much of the information was probably obtained in confidence (and that the subject of that investigation also related to a confidential merit selection process) I am not satisfied that disclosure of the information could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, or that its disclosure would, on balance, be contrary to the public interest.
38 The circumstances giving rise to the production of the report were most unusual and the subject of a significant amount of public attention. I do not consider disclosure of the information could reasonably be expected to prejudice the future supply of such information to the Government or to an agency for the following reasons:
(a) The events giving rise to the matters contained in the report occurred in November 1999 and the relevant parties have, as it were, moved on from their otherwise active involvement in or connection with the school;
(b) The respondent has already released a significant portion of the report. That action has itself raised more questions than it answered in that there is now a public and partial airing of (unspecified and unsubstantiated) allegations against the first party joined, and there are adverse findings against the applicant (that he allegedly breached his duty of confidentiality in making certain disclosures to the School Council and the school community after the interviews took place in November 1999);
(c) Apart from the applicant, the persons interviewed in the investigation leading to the writing of the report were all persons employed by the respondent’s agency. I do not accept that they or persons such as them will not co-operate again in a similar investigation (if one such as this ever occurs again) if the material is disclosed by the Tribunal under the Act;
(d) I do not think it is reasonable in the particular circumstances here to accept that persons involved in the merit selection process in the future would be less inclined to be involved in the same fashion if the remainder of the report were to be released; and
(f) Each of the witnesses were told at the time that their comments could be used in evidence in civil or criminal proceedings in appropriate cases. There were each clearly aware at the time it could become public through some formal process (see, Re Easdown and Director of Public Prosecutions (1987) 2 VAR 102 at 115).
39 As to the public interest considerations, I set out below in these reasons why I consider the respondent has not discharged its onus in satisfying the Tribunal the public interest requires that the remainder of the report be kept secret.
The Operation of Agencies Exemption
- 40 Clause 16 of Schedule 1 of the Act provides:
“Documents concerning operations of agencies
A document is an exempt document if it contains matter the disclosure of which:
(a) could reasonably be expected:
- (i) to prejudice the effectiveness of any method or procedure for the conduct of tests, examinations or audits by an agency, or
(ii) to prejudice the attainment of the objects of any test, examination or audit conducted by an agency, or
(iii) to have a substantial adverse effect on the management or assessment by an agency of the agency's personnel, or
(iv) to have a substantial adverse effect on the effective performance by an agency of the agency's functions, or
(v) to have a substantial adverse effect on the conduct of industrial relations by an agency, and
41 The respondent relies on sub paragraphs (i), (ii) and (iii) of clause 16(a).
42 The respondent contends that paragraphs 14 to 17, 21 to 24, 26 to 33, the last sentence of paragraph 34, the deleted portions of paragraph 35, paragraphs 39 to 43, 50 to 53, 57 to 61, the first eleven words of paragraph 64, paragraphs 69 to 73, the second two lines of the table in paragraph 74, the deleted portions of the list of appendices and the appendices are exempt matters pursuant to clause 16 as they satisfy clause 16(a)(i) and (ii) and cl 16(b). It submits this exemption applies to all the material that has been withheld. The respondent also submits that clause l6(a)(iii) and (b) apply to all the withheld material with the exception of the deleted portions of the list of appendices which discloses the identity of witnesses to the Audit Directorate’s investigation and does not directly concern the management or assessment of personnel.
43 I do not consider that disclosure of the remainder of the report could reasonably be expected to prejudice or have the substantial adverse effects as contended by the respondent in these proceedings within the meaning in clause 16(a) largely because of the matters I referred to in paragraph 38 above in these reasons.
44 In any event, I consider that the public interest considerations, on balance, favour release of the remaining matter to the applicant and the first party joined.
The Public Interest Considerations
- 45 The public interest arises in this case in terms of the confidentiality and “operations of agencies” exemptions claimed by the respondent. It also goes to the issue of the “reasonableness” of disclosure as part of the personal affairs exemption. I propose to deal with these issues together.
46 Each party argued that the public interest favored their respective positions.
47 The respondent argued the public interest in the following way (from the written submissions):
“6.25 The primary consideration in this case is the strong public interest in the elimination of corruption to ensure the fair and efficient operation of Government. There is a consequent public interest in the effective operation of the Audit Directorate and other Government agencies investigating fraud, corruption and mal-administration. The importance of this interest has been formally recognised by Parliament by the passage of the Protected Disclosures Act 1994 which aims to encourage and facilitate the disclosure of corrupt conduct, maladministration and serious and substantial waste in the public sector. In the respondent’s submission, once it is found that the effective investigation of allegations of fraud, corruption and mal-administration would be significantly impaired by disclosure, it follows that disclosure is contrary to the public interest. This conclusion is more readily reached in a case such as the present where the adverse impact would be a substantial one.
6.26 Witnesses would be less likely to co-operate voluntary with investigations or to disclose information fully and frankly to investigators. As it has no power to coerce witnesses to co-operate, this would lead to a serious decease in information available to the Audit Directorate. It would receive fewer reports of corruption and would be unable to effectively investigate many of those it did receive. It is relevant that it has no alternate source of information which could replace the lost evidence of witnesses and this makes a decrease in the quality and quantity of evidence inevitable.
6.27 These considerations are similar to those raised by Ainsworth v Principal Officer, Department of Gaming and Racing (unreported, NSW Dist Ct, 6 June 1997) in which it was held that a source of information to the Department would dry up if disclosure occurred and that the public interest in preventing and dealing with infiltration of the gaming, liquor and club industries by “undesirable elements” outweighed those favouring disclosure. …The public interest in the effective operation of such units also encompasses the public interest in the safety of informants and witnesses which could be put at risk by disclosure of their identity and the content of their evidence.
6.28 Information obtained from witnesses may be exculpatory or inculpatory in nature. The respondent submits that, in addition to the public interest in the elimination of corruption, there is a public interest in ensuring that alleged offenders have the benefit of evidence that tends to suggest they are innocent of wrongdoing.
6.29 The second group of public interest considerations are those concerning the public interest in the management of personnel within government departments. There is a public interest in the operation of selection panels and the appointment of the principals and other Departmental officers on the basis of merit. Established human resources principles suggest this is best done where personal and professional information pertaining to applicants is kept confidential and members of selection panels are able to have full and frank discussions about the relative merits of applicants. There is a real risk that applicants, referees and members of selection panels would feel constrained in their discussions if the information could be communicated to other applicants, colleagues and the public.
6.30 There is also a general public interest in efficient systems of human resources management within Government, the existence of relationships of trust between Departmental officers and the confidentiality and privacy of personnel information. …
6.32 The respondent submits that disclosure of personnel information would have a negative effect on workplace relationships; tend to impair the development of relationships of trust between Departmental officers and their superiors and could adversely affect industrial relations.”
48 The applicant’s primary submission on the public interest was that it played no part in these proceedings as the respondent had failed to establish the material was otherwise exempt under the Act. If it was relevant, the applicant’s written submissions stated:
“24. The Applicant does not deny that there is a public interest in the efficient management of personnel within government departments. Nor does the Applicant deny that this is best achieved where personal and professional information pertaining to applicants for positions are kept confidential and where members of selection panels are able to have full and frank discussions about the relative merits of applicants. However, this approach must be secondary to the public interest in the management of personnel in a way that is not corrupt or bias. It follows that confidentiality in such processes may need, in rare cases such as this, to be displaced to investigate bias and corruption allegations.
25. Further, it is submitted that confidentiality in this area should give way to the public interest in transparency in dealing with such allegations especially where such allegations are made by or on behalf of a section of the public. In this case, the allegations were made by the Applicant, who was chosen as a representative of parents of the school, and by the Parents and Citizens Association. The Applicant submits that, in these circumstances, is not enough to hold an investigation and communicate to the complainants the conclusions thereof. The public interest requires that investigations in these circumstances should be transparent and all the results and findings be made available to the public so as best to ensure public confidence in these important processes.”
49 The applicant states in the final paragraphs of his written submission:
“34. However, the Applicant contends that, in any event, the public interest in this case justifies the disclosure. The selection of a principal for Penrose Public School was a matter of concern for the local community. The allegations of corruption and bias relating to the selection process is of concern not only to the Applicant and the School Community but to the broader community (see the report in the Daily Telegraph in the affidavit of [the Applicant]). It is in the public interest that such processes not be corrupted or affected by bias. It is also in the public interest that investigations into such matters not only be carried out fairly but that they be seen to be carried out fairly. This will be so only if the entire Audit Report is released to the public. Only this can ensure public confidence in investigation processes.”
50 The first party joined argued that his personal interest in viewing the withheld material outweighs any interest in keeping it secret. The fact that confidential and undisclosed information was used against him by Mr Thomas during the merit selection process to his obvious detriment was an issue he was entitled to be made fully aware of so that, to the extent necessary, he could in future seek to exercise his rights, if any, under Part 4 of the Act to seek amendment of the agencies’ records relating to him.
51 He says that “truth and public sector accountability are two far more important issues” than any interest in keeping the material secret. In his written statement, he said full disclosure of the report is in the interests of the public because:
“- The administration of public education is funded by the people of this state and is therefore accountable to them
- The Freedom of Information Act 1982 (Cth) legislation is now mirrored in all the states and includes:
- recognition of the individual’s “right to know”;
- right to have information amended if not accurate;
- access to State and Federal government information;
- government accountability;
- an attempt to increase public participation in the process of policy making and governance.
- The full disclosure of the Report would answer questions that the edited Report raises but does not answer.
- The full disclosure of the Report would enhance scrutiny of the decisions making process under review and thereby improve accountability and participation.
- The local community has been devastated and divided by the circumstances surrounding this matter and frustrated by the withholding from them of information relevant to their children’s education.
- Full disclosure would begin to restore public confidence in a system and a process which has denied them information to which they are entitled and which has served its own needs and not the needs of their children and community.
- Potential or actual embarrassment is not a valid criterion against which to balance the public interest in disclosure of information. It is irrelevant that the disclosure may cause embarrassment to the government [NB: section 59A of the Act].
- The damage to the children and families of Penrose School and its community which has been caused by the circumstances surrounding this Report far outweigh any claims to “privacy” or “confidentiality” of those making undisclosed, unsubstantiated and unfounded allegations.
- Full disclosure would contribute to debate on a matter of public interest.”
52 In addition to these submissions, I consider that the matters I set out in paragraph 38 are also relevant to a proper consideration of the issue of the public interest in the present case. I consider that on the unusual facts relating to this particular case, on balance, the public interest requires the remaining material to be released (with one limited exception). My primary reasons are as follows:
(a) The events giving rise to the matters contained in the report are nearly 2 years old, there is no current investigation of them and the relevant parties have moved on from their former involvement in the subject school;
(b) The respondent has already released an edited yet significant portion of the report in several stages. As I have already said, that act raised more questions than it answered. There was then a public and only partial airing of matters, inter alia, plainly adverse to the applicant and the first party joined without there also appearing a full explanation of them or them appearing in their proper contextual setting; and
(c) I do not consider that release of the remaining material will adversely affect Audit Directorate investigations in future or the merit selection process in NSW.
53 The same cannot be said for the second two lines of the table in paragraph 74 of the report. There is no compelling reason why those two names or their respective rankings should be released in the public interest. As I have indicated, the names and rankings set out there constitute the personal affairs of the job applicants. At the hearing, neither the applicant nor the first party joined expressed any particular interest in discovering the information there.
54 As to whether the Tribunal should release the exempt portion of the report in any event as a matter of the Tribunal’s discretion in section 25(1) of the FOI Act (see, Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93 at [76] to [85] referred to as the “override discretion”), I consider that all the matters the Tribunal would ordinarily consider as going to the exercise of the discretion here have already been taken into account in the Tribunal’s consideration of the claimed exemptions in the present case. Accordingly, I do not consider the portion of the report I have determined is exempt should be released as a matter of the Tribunal’s section 25(1) discretion.
55 Accordingly, I determine that:
(a) the decision under review is set aside;
(b) access to a full copy of the report is to be given to the applicant and the first party joined with the exception that the exempt matter in the second two lines of the table in paragraph 74 of the report is to be deleted from the copy so provided; and
(c) the parties have 14 days from the date of this decision to file at the Tribunal and serve on each other party any application and submission concerning any application for costs.
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