Murphy v NSW Department of Services, Technology & Administration

[2010] NSWADT 133

CITATION:	Murphy v NSW Department of Services, Technology & Administration [2010] NSWADT 133
DIVISION:	General Division
PARTIES:	APPLICANT Paul Thomas Murphy RESPONDENT NSW Department of Services, Technology & Administration
FILE NUMBER:	093247
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	1 February 2010
DATE OF DECISION:	2 June 2010
BEFORE:	Wilson R - Judicial Member
CATCHWORDS:	Unreasonable disclosure of information concerning a person’s personal affairs. Discretion to grant access to exempt documents.
LEGISLATION CITED:	Freedom of Information Act 1989; Clause Schedule 1.
CASES CITED:	CEO, State Rail Authority v Woods (GD) [2003] NSWADTAP 25 McGuirk v Commissioner of Police [2007] NSWADT 120 (GD) Saleam v Director-General Department of Community Services [2002] NSWADT 41 (GD) Re Dutton and Commissioner for Housing (1999) 56 ALD 608 Colakovski v ATC (1991) 13 AAR 261 at 270
REPRESENTATION:	APPLICANT In person RESPONDENT J McDonnell, solicitor
ORDERS:	The decision under review is affirmed

REASONS FOR DECISION

1 The applicant commenced these proceedings in the Tribunal pursuant to the provisions of the Freedom of Information Act 1989 seeking access to certain documents held by the respondent following an unsuccessful internal review application under the legislation in relation to those documents.

2 In preparation for the hearing of this matter a great deal of documents were filed and served. However, during the interlocutory stages the parties were able to compromise many of the issues between them so that at the end of the day there is but a single document in issue. This document is a typed record of an interview conducted by a trained investigator with a third party (exhibit R4(b)). It is a record, which goes for some 45 pages, and it covers quite a lot of issues and events. Whilst the compromise between the parties does not limit the volume of materials that the Tribunal is required to peruse and take into consideration, it nevertheless has assisted the Tribunal greatly. The parties are to be commended for this reasonable and common sense approach.

THE PERSONAL AFFAIRS EXEMPTION

3 The respondent argues that this document is an exempt document upon a number of grounds, one being that to disclose it would be to unreasonably disclose information personal to the third party (clause 6 Schedule 1 of the Act). Additional exemptions are claimed under clauses 13 and 16 of the same Schedule. The same exemptions were relied upon in CEO, State Rail Authority v Woods (GD) [2003]NSWADTAP 25 a leading authority on this exemption.

4 The application of the personal affairs exemption in circumstances where a third party is interviewed and asked detailed questions about events observed and opinions held about those events, and the actors themselves, involves some complexity, as the respondent’s submissions acknowledge. This is because all of the information supplied in answer to the questions comes from the mind of the person being examined and, in this sense, may be regarded as “personal information”: the answers clearly reveal what the person’s memory is about the events and reveal the subjective opinions that the person has about the events and the people involved. In consequence, the respondent’s submissions discuss in some detail the characteristics of information that properly falls within this exemption.

5 During the course of this interview, the third party being interviewed made three types of allegations about the conduct of the applicant, all of which had a nexus with his employment, although the basis for the nexus differed. The respondent has advised the applicant what these three allegations were. Some detail of each allegation was also supplied, but not all of the statements made by the third party have been brought to the applicant’s knowledge. The focus here is on whether the information concerns the personal affairs of the third party, the person who was interviewed, rather than on whether the record of interview also contains information personal to the person who conducted the interview. That person clearly was acting in an official role and thereby may be excluded from consideration (following Department of Education and Training v GJ (GD) [2009 NSWADTAP 33). Whilst the record of interview also refers to other persons, it is not necessary, for reasons, which appear below, to consider the relationship between information provided which, may, or may not, concern their personal affairs. The respondent based its arguments on whether the information in question concerned the personal affairs of the third party only.

6 The interview was conducted following the lodgement of a formal grievance by the third party against the applicant. Normally the respondent, by its Grievance Policy, encourages resolution of this type of issue by an informal process. However, in this case the grievance followed the formal process that is provided for in this Policy. Consequently, the interview in question took place (exhibit R1). The respondent adduced evidence giving assurances that the formal grievance procedure is conducted in such a way that an appropriate balance is struck between the right of a person to know the nature of the complaints made against him or her and the maintenance of the privacy entitlements of any person who comes forward to give evidence so as to assist the enquiry (exhibit R1 paragraph 16). Whilst such assurances are comforting, they do not always ensure that in any particular case the correct balance is struck: it therefore is always necessary to examine carefully the way in which this was achieved, should it be relevant to do so. It is often difficult, if not impossible, for a person to properly answer allegations without detailed knowledge of what is alleged. However, what is important here is that the grievance procedure acknowledges the need for a person in the applicant’s position to be made aware of the allegations made against him and provides for a discretionary process whereby this requirement will be satisfied.

7 As the investigation progressed other persons were interviewed and other statements were taken by the investigator.

8 At the conclusion of the investigation a formal report was issued, part of which was provided to the applicant. The covering letter to him from one Andrew Gavrielatos is contained in annexure B, exhibit R2 (the annexed copy being undated) and it advises him that the three allegations, of failing to follow certain guidelines, of bullying staff and of sexual harassment could not be substantiated. It further advised him that a strategy would be put in place to improve the workplace relationship between himself and the third party. It is of course a little difficult to anticipate a successful resolution of this aspect where the applicant has not been fully apprised of the statements that have been made against him by the third party. However, that is how the facts stand.

9 Looking at these facts, and leaving authority to one side for the moment, a tribunal of fact may well form the preliminary view that although allegations of bullying and sexual harassment could well involve matters personal to the third party, it is unlikely that an allegation that the applicant failed to follow departmental guidelines would involve anything of a personal nature to the third party. Any allegation of the latter type would seem to involve evidence of what the applicant did, or did not, do followed by a comparison of the alleged conduct with the relevant guideline. In the making of such an allegation it appears unlikely that the person who made the allegation would have any need to state any information concerning that person’s personal affairs. Of course, this is just a generalisation and it would be necessary in all cases to look closely at what was said by the third party on this aspect. For the reasons set forth below, the Appeal Panel has clearly established that it is necessary to look at the factual matrix in each case to determine whether information concerning a person’s personal affairs has been disclosed.

10 However, the matter is not free of authority. One of the leading cases is the decision of the Tribunal’s Appeal Panel in Woods, cited ante. The facts were quite similar to the present case. In Woods a number of employees had signed and lodged statements with their employer concerning grievances they had against other employees, and the persons against whom the complaints were made sought copies of these statement pursuant to the same legislation involved here. The Tribunal at first instance, in essence, held that these statements concerned conduct in the workplace and therefore did not, and could not, concern the personal affairs of any of the persons who made the statements. As a broad approach, there is logic and good sense in this finding. However, the Appeal Panel overturned this finding as there was an error of law in the way that the Tribunal arrived at its determination on this point.

11 It should be noted that the issue in Woods was whether the information supplied by certain employees abut the conduct of other employees was information concerning the personal affairs of the employees who supplied the information, rather than whether it was information concerning the personal affairs of the employees who were the subject of the allegations (paragraph 13, Appeal Panel decision). This point needs to be kept in mind otherwise there is a chance of confusing the personal affairs of the two groups of employees that is being referred to in the decision. The Tribunal at first instance, in essence, held that views held by employees about the workplace performance of others cannot concern the personal affairs of those supplying the information. (This appears to be what the Tribunal at first instance meant, although the language used allows a reading that suggests the reference is to the personal affairs of the person about whom the complaint was made). The Appeal Panel held that the error of law in this determination was that this was a non sequitur, that is, the finding that the information supplied concerned the workplace conduct (of another person) did not necessarily mean that the information could not concern the personal affairs of the person(s) supplying the information. Thus, in all cases, it is necessary to look at the entire factual matrix and it is not correct to simply categorise the information as being about performance or conduct in the workplace. Such a finding cannot determine the issue alone. The decision at first instance was therefore set aside.

12 The Appeal Panel then noted a distinction between two situations. The first was where an employee, having a duty to assess the ability of other employees, provides a report about the workplace performance of another employee in performance of this duty. In such a case the view expressed by the reporting officer could not concern that officer’s personal affairs, although it could contain information about the personal affairs of the employee the subject of the report. The other situation is where an employee, not having any such duty, reports on the workplace conduct of another employee (usually referred to as a complaint or grievance). In this situation the Appeal Panel was clearly of the view that the information so provided would concern the personal affairs of the person lodging the complaint (paragraphs 23 to 28). It makes no difference that the information is supplied for the purpose of improving aspects of the workplace, such as effective management (paragraph 28). Thus, in such a situation there is no room to develop further principles and, for example, to categorise information as having a stronger connection with the workplace than with someone’s personal affairs.

13 The circumstances to hand fall squarely within the parameters of this statement by the Appeal Panel. The third person lodged a grievance against the applicant, which, although it clearly concerned matters pertaining to the workplace, and in part concerned the effective management of the respondent’s affairs, was not done pursuant to any duty performed by the third party by way of assessment of the applicant’s workplace performance. This duty was in the hands of others, and not those of the third party. This being the case, this Tribunal must decide that the information supplied by the third party about the applicant, as set forth in the record of interview, was, in toto, information concerning the third party’s personal affairs. If this is not what the Appeal Panel intended in Woods, then the proper place to remedy the position is in the Appeal Panel. The observations of the Appeal Panel in Department of Education and Training v GJ (op cit) confirm this to be the correct approach.

14 It should be noted however that, if the Tribunal was able to do so, it would hold that much, if not all, of the information supplied by the third party concerning the allegations that the applicant did not follow the respondent’s policy directions was information that had a nexus only with affairs pertaining to the respondent. As such, this information would not be information concerning the personal affairs of the third party, even though it was made up of the third party’s subjective observations and opinions. However, this is not a course that is presently open to this Tribunal at first instance.

15 It follows from this finding that the next issue is whether disclosure of the information contained in the record of interview would be unreasonable. Clearly the legislative provisions envisage that, provided the circumstances be apposite, disclosure of personal information may be reasonable, otherwise there would be no need for the qualifying condition of unreasonableness to be specified. The concept of “reasonableness“ has traditionally been regarded by the law as involving an assessment against a standard, usually referred to as being what a reasonable person would regard as being reasonable in the circumstances. However, the decisions of this Tribunal to date, both at first instance and on internal appeal, have not approached this issue in this way. Instead, these authorities have outlined the relevant factual matters that need consideration and have established the correct approach as being that the Tribunal must weigh these relevant matters and the public interests they give rise to and, in this way, come to a determination whether disclosure of the information would be unreasonable (see Mcguirk v Commissioner of Police [2007] NSWADT 120 (GD); Saleam v Director-General Department of Community Services [2002] NSWADT 41 (GD); Re Dutton and Commissioner for Housing (1999) 56 ALD 608)). Generally, the relevant public interests will be those of open disclosure of agency documents and protection of personal information held by an agency. Public interest matters appear to have primary importance (Colakovski v ATC (1991) 13 AAR 261 at 270). This well established approach should be followed.

16 In this regard the respondent relies upon the objection of the third party to the disclosure of this document, the fact that it contains personal information, the need to ensure a significant degree of confidentiality so as to dispose persons such as the third party to come forward and be frank in circumstances like the present and recognition that disclosure would give the applicant an open hand with the document. These circumstances are clearly established by the evidence and they must be given significant weight, as the authorities require.

17 As against this the public interest in providing open access to agency documents must be considered. The applicant, in additional, argues that he has a specific personal interest in finding out precisely what was said against his good name, with particular regard to the allegations of bullying and sexual harassment, these being matters about which he knows little. However, there are two factors which detract from the weight to be given to this personal interest. The first is that the respondent has formed the view that the allegations cannot be substantiated, and has so advised the applicant and the third party. The purpose for which this document came into being has therefore run its full course. Secondly, the authorities do not permit this Tribunal to give this type of consideration any significant weight (see Saleam v Director-General op cit).

18 Consequently, the factors relied upon by the respondent, if they be given their due weight must predominate. Accordingly, to disclose the information contained in the record of interview would be unreasonable. Therefore the clause 6 exemption has application. There is no need to consider the further grounds of exemption relied upon by the respondent.

19 The applicant clearly wishes access to the detailed information contained in the record of interview so that there is no scope at all for granting access to the document in a redacted form.

20 The final question is whether the applicant should be given access to the document as a matter of discretion. This is essentially an unfettered discretion, although the authorities establish that there must be a sound and persuasive reason why the effect of the ground of exemption should be displaced. It is usually said that there must be strong grounds for displacing the exemption. Another general fetter is that the power should be exercised so as to produce the correct and preferable decision in each particular case.

21 The considerations that are relevant here are the same as those discussed above in relation to whether disclosure would be unreasonable. However, exercise of the discretionary power is a separate matter and must be considered independently of that earlier determination. One important difference here though is that the authorities which attribute little weight to the reasons why an applicant may require a document when unreasonable disclosure is being considered, for example, Saleam v Director-General op cit, do not apply when the Tribunal’s residual discretion is in play.

22 However, for the reasons given in paragraph 16 ante, the several considerations relied upon by the respondent are relevant here as well and , for those same reasons, they are of significant weight. The applicant of course relies upon the public interest of open access as well as the public interest arising in circumstances where allegations of misconduct are made against him. In the latter situation there is clearly a public interest in a person knowing precisely what those allegations are and the facts upon which they are based. However, there are two matters which detract from the strength of the applicant’s grounds. The first is the general observation that whilst the object of the legislation is to provide for open access, this does not extend to making open disclosure of information concerning a person’s personal affairs (Colakovski v ATC op cit). The second is that the investigation central to the applicant’s interest, and to his interest in his good name, has run its course without any findings adverse to the applicant. Whilst minds may well differ in this regard, the arguments pressed by the respondent should carry the day and the applicant should not be granted access to the record of interview on discretionary grounds.

23 If in fact the investigation had not run its course, the exercise of the Tribunal’s discretion would have involved a close examination of whether the applicant had been sufficiently advised of the allegations against him and the substance of the evidence upon which those allegations were based. A person cannot properly answer allegations in ignorance of such detail. There are two significant issues, at least, arising from the evidence filed. The first is whether the applicant was sufficiently advised of the allegations and evidence, either prior to or during his interview or by way of the final report. The second is whether, as he asserts, he was not provided with any detailed information concerning the bullying and harassment allegations. It would then be necessary to determine what effect, if any, the findings about these matters have in the exercise of the Tribunal’s discretionary power. However, there is no need to here examine this aspect in detail, given that the investigation has finalised without any adverse determinations which concern the applicant. Consequently, the Tribunal makes no determination concerning the interplay between access under the legislation and the grievance procedures employed by the respondent.

24 As the applicant does not wish to displace any part of the decision under review, save in relation to the record of interview, and as the Tribunal has declined to grant access to this document, the appropriate decision is simply to affirm the decision under review.