Ormonde v NSW National Parks & Wildlife Service (No 2) - [2004] NSWADT 253

No judgment structure available for this case.

CITATION: Ormonde v NSW National Parks & Wildlife Service (No 2) [2004] NSWADT 253

DIVISION: General Division

PARTIES: APPLICANT
Peter Ormonde
RESPONDENT
NSW National Parks and Wildlife Service

FILE NUMBER: 033238

HEARING DATES: 19/05/2004

SUBMISSIONS CLOSED: 06/14/2004

DATE OF DECISION:
11/04/2004

BEFORE: Montgomery S - Judicial Member

APPLICATION: Privacy - information protection principle - personal information - access by 1st party

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Evidence Act 1995
Freedom of Information Act 1989
Privacy & Personal Information Protection Act 1998

CASES CITED: BW -v- Registrar, New South Wales Medical Board [2002] NSWADT 76
Chief Executive Officer, State Rail Authority v Woods [GD) [2003] NSWADTAP 25
Esso Australia Resources Ltd v The Commissioner of Taxation (1999) 74 ALJR 339
FM v Vice Chancellor, Macquarie University [2003] NSWADT 78
Gliksman v Director General, NSW Department of Health [2002] NSW ADT 1
Kay v Commissioner, Department of Corrective Services [2000] NSWADT 34
Neary v The Treasurer, New South Wales [2002] NSWADT 261
Todd v University of New South Wales [2004] NSWADT 250
Vice-Chancellor. Macquarie University v FM (GD) [2003] NSWADTAP 43
Walden and Toni v General Manager, Leichhardt Municipal Council [2001] NSWADT 81
Waterford v Commonwealth (1987) 163 CLR 54
Wykanak v Director General, Department of Local Government [2002] NSWADT 208

REPRESENTATION:
APPLICANT
In person
RESPONDENT
S Prince, barrister
PRIVACY COMMISSIONER
J Gaudin, legal officer

ORDERS: Mr Ormonde's application is dismissed.

1 Mr Peter Ormonde has made three applications to the Tribunal under the Privacy and Personal Information Protection Act 1998 ("the PPIP Act"), for the review of decisions made by Mr Chris Perkins, an officer with the NSW National Parks and Wildlife Service ("the Agency"). In his decision Mr Perkins asserted exemptions under the Freedom of Information Act 1989 ("the FOI Act").

2 For ease of reference Mr Ormonde’s requests for access to material held by the Agency will be referred to as P1, P2 and P3.

3 P1 was made on 2 April 2003 and requested:

"From Jan 2002, all records, documents, minutes of meetings pertaining to the applicant's attendance, entitlements, payments, leave, health in the possession of NPWS HR Unit, including all files and records (including correspondence) on this issue in the possession of Michael Wright, Tom Tyrpenou, Kate Molloy, Ian Hunter, David Godden".

4 P2 was made on 11 April 2003 and requested:

“All documents, advice, communications, minutes and other Information held by Brian Gilligan and Dawn Easton pertaining to Peter Ormonde’s health, fitness and capacities.”

5 P3 was made on 29 April 2003 and requested:

plus

all records, notes to file, minutes and correspondence (including phone records) held by Ms Kate Molloy, Mr Tom Tyrpenou and any other employee of NPWS referring to communications (with) HealthQuest or consultants employed by HealthQuest regarding the assessment requested for Mr Ormonde on April 14, 2003".

6 The Agency’s Freedom of Information/Privacy Contact Officer, Ms Sylvia Lowe, dealt with the requests. She provided documents to the Applicant in relation to P1 in stages. The first batch was provided on 30 April 2003 and a second batch was provided on 12 May 2003. The final determination was made on 17 July 2003. Ms Lowe determined P2 on 15 May 2003 and a Notice of Determination was sent on that date. She determined P3 on 21 May 2003 and a Notice of Determination was sent to the Applicant on that date.

7 The Applicant requested an internal review in relation to each of these decisions. His application for internal review in relation to P1 was made on 27 May 2003, before Ms Lowe’s final determination of that application. The Agency raised a jurisdictional issue in relation to this application, asserting that the Applicant had not lodged an application for an internal review in respect of the determination dated 17 July 2003.

8 Internal reviews were undertaken by Mr Perkins, the Agency’s Director Education and Community Programs. The internal reviews were completed on 22 July 2003 and notice of Mr Perkins’ decisions and reasons were sent to the Applicant on that date. The contents of those reasons are of assistance in allowing the issues in dispute in these proceedings to be put in context.

9 The internal review reasons in relation to P1 stated in part:

“Ground 1:

I note a determination was made on 17 July 2003 in relation to your access application, after receipt of your internal review application.

If you are not satisfied with that determination, you are entitled to lodge an internal review application within six months.

Finding 1: I find that as a determination had not been made in relation to your access application when your internal review application was received, this ground is not sustained. As there is no evidence to suggest the alleged conduct occurred, I propose to take no action.

Ground 2: You claim the citation of exemption clauses 6(1) [personal affairs] and 10(1) [legal professional privilege] of Schedule 1 of the Freedom of Information Act 1989 fails to meet the Premier's Department's Freedom of Information guidelines to provide a chain of reasoning.

This ground does not relate to an alleged contravention of an IPP and does not require consideration under the internal review provisions of the PPIP Act.

In any event, a determination had not been made at the time of receipt of your internal review application and exemption clauses had not been cited.

Please note for your information that the Premier's Department FOI Procedure Manual does not apply to privacy applications although it may be helpful when applying the FOI exemption clauses to privacy applications. The provisions of the Freedom of Information Act 1989 and the Premier's Department's FOI Procedure Manual relating to notices of determination are not relevant when the FOI/Privacy Contact Officer prepares a letter to advise a privacy applicant of an access decision.

I note you have previously been advised that the PPIP Act requires agencies to consider the FOI exemption clauses when determining privacy access applications. The PPIP Act does not set out what should be contained in a notice of determination.

Finding 2: I find that this ground is irrelevant to the internal review as it does not relate to an alleged contravention of an IPP. I propose to take no action.

Ground 3: You claim the citation of clause 10(1) implies that NPWS intends to initiate legal action against you, but you argue NPWS legal resources cannot be extended to individual officers facing civil action or who could be "charged with maladministration, breach of policies and/or exceeding or abusing their lawful authority”.

This ground does not relate to an alleged contravention of an IPP and does not relate to the access or internal review applications. It does not require consideration under the internal review provisions of the PPIP Act.

Finding 3: I find that this ground is irrelevant to the internal review as it does not relate to an alleged contravention of an IPP. I propose to take no action.”

10 The internal review reasons in relation to P2 stated in part:

“Ground 1:

I am advised by the FOI/Privacy Contact Officer that your privacy access request was provided in full to the Director-General and Ms D Easton, former Manager Strategic and Executive Support Unit, in processing your application. I note your request was clear in its scope and documents were provided by Ms Easton, who was a senior officer of the National Parks and Wildlife Service. I am advised that your request was interpreted broadly by Ms Easton such that some documents went beyond the scope of your request. It was advised that documents/information were not held by the Director-General.

Finding 1: In the absence of any specific allegation or proof from you that information or document/s that you claim were held by the Director-General and Ms Easton were not provided for inclusion in the original determination, I find that there is insufficient evidence to suggest the alleged conduct ie that not all the information relating to your access request was provided, occurred.

I find in the circumstances that NPWS complied with IPP 7. I propose to take no action.

Mr Perkins could only find that there was insufficient evidence to suggest the alleged conduct ie. that not all the information relating to the access request was provided, occurred.

Ground 2: You claim the use of clauses 6(1) [personal affairs] and 10(1) [legal professional privilege] of Schedule 1 of the Freedom of Information Act 1989 fails to meet the Premier's Departments Freedom of Information guidelines to provide a chain of reasoning.

This ground does not relate to an alleged contravention of an IPP and does not require consideration under the internal review provisions of the PPIP Act.

Please note for your information that the Premier's Department FOI Procedure Manual does not apply to privacy applications although it may be helpful when applying the FOI exemption clauses to privacy applications. The provisions of the Freedom of Information Act 1989 and the Premier's Department's FOI Procedure Manual relating to notices of determination are not relevant when the FOI/Privacy Contact Officer prepares a letter to advise a privacy applicant of an access decision.

I note you have previously been advised that the PPIP Act requires agencies to consider the FOI exemption clauses when determining privacy access applications. The PPIP Act does not set out what should be contained in a notice of determination.

I am advised that to reveal any more information than was provided to you in the 20 May 2003 letter of determination would have disclosed privileged and personal affairs Information for which exemption from release was claimed.

Finding 2: I find that this ground is irrelevant to the internal review as it does not relate to an alleged contravention of an IPP. I propose to take no action.

Ground 3: You claim the use of clause 10(1) implies that NPWS intends to initiate legal action against you, but you argue NPWS lega1 resources cannot be extended to individual officers facing civil action or who could be "charged with maladministration, breach of policies and/or exceeding or abusing their lawful authority”.

This ground does not relate to an alleged contravention of an IPP and does not relate to the access or Internal review applications.

Finding 3: I find that this ground is irrelevant to the internal review as it does not relate to an alleged contravention of an IPP. I propose to take no action.

Only ground 1 is relevant to my internal review determination. In view of my findings that there is insufficient evidence to suggest the alleged conduct occurred and that NPWS complied with the IPP relating to access to personal information, I propose to take no action in relation to the original access determination.”

11 The internal review reasons in relation to P3 stated in part:

“Ground 1a):

REVIEW:

This ground relates to the form of information provided. I am advised the full text of your request was provided to the appropriate NPWS senior officers, but only documents were supplied as being relevant. Your request was specific in nature. You have provided no evidence to indicate other forms of information, other than documents, exist.

Finding 1a): In the absence of details or evidence to support the claim that records in a form other than documents exist and were not provided, I find that the conduct complied with IPP7. I propose to take no action.

Ground 1 b): You claim that the documents referred to in the Notice of Determination do not comprise all the information held by NPWS that is covered by the application and specifically that only documents and then only selected documents were provided, despite documents explicitly referred to in the released documents have not been considered or released.

REVIEW:

A review of the documents that were the subject of the 21 May 2003 determination has revealed the omission of an attachment to an email sent by Ms Molloy to Dr Godden dated 9 April 2003. The attachment is enclosed. It should be noted this document is a draft of the letter that was sent to HealthQuest on 14 April 2003. The final document contains more information than the draft document. The 14 April 2003 letter was provided to you almost in its entirety.

I have determined to exempt the words following "...contravene these directions" up to "they are clearly contrary to the policies..." on page 1 of the draft document pursuant to clause 6(1) of Schedule 1 of the Freedom of Information Act 1989 (FOI Act) (personal affairs exemption).

As you know, clause 6(1) provides that a document is an exempt document if disclosure would involve the unreasonable disclosure of personal affairs information relating to another person.

Section 20(5) of the PPIP Act requires NPWS to consider the exemption clauses under the FOI Act when determining privacy access applications. I have reviewed the reasons for the original determination in relation to the words in question in the final document (referred to as document 18 in the 21 May 2003 determination) and I uphold the decision. My review of the decision in relation to document 18 is canvassed later in this letter under Grounds 3a and 3b. The decision to exempt the words is applied to the same words in the draft document.

Document 3, a letter from Ms Molloy to you dated 24 April 2003, referred to a copy of a Director-General's Memorandum dated 23 April 2003 relating to changes to NPWS. While the Memorandum does not relate to the scope of your request, it was provided to you on 24 April 2003 outside of the PPIP Act and FOI Act. I have furnished you with a further copy. Your claims relating to the documents and information removed from the documents that were forwarded to you on 24 April 2003, are addressed under Grounds 3a and 3b.

Finding 1b): I find this ground is sustained in so far as the documents released/considered did not include an attachment referred to in a document that was provided.

The document, a draft of the letter sent to HealthQuest on 14 April 2003, is attached. However, part of the document is exempt from release under clause 6(1) of Schedule 1 of the FOI Act, as outlined above.

I find the conduct therefore did not comply with IPP 7 and that the breach was not authorised by an exemption under the PPIP Act, a Privacy Code of Practice or a Direction by the Privacy Commissioner under section 41 of the Act.

I have provided you with a further copy of a Director-General's Memorandum dated 23 April 2003 notwithstanding it does not relate tot he scope of your access request.

Ground 1c): You claim that the documents referred to in the Notice of Determination do not comprise all the information held by NPWS that is covered by the application and specifically that only documents and then only selected documents were provided, despite “indisputable evidence" provided by HealthQuest under FOI of ongoing communications with NPWS which have not been considered in determining the original application.

REVIEW:

Your application was determined in relation to documents that were in existence on or before the date of receipt of the application ie. 29 April 2003.

You have not provided any details or proof to support your claim.

Finding 1c): In the absence of any details or evidence of specific information or records that were in existence on or before the date of receipt of your application that you claim NPWS holds that have not been provided to you, l, find there is insufficient evidence to support the claim. I therefore find the conduct complied with IPP 7. I propose to take no action.

Ground 2a): You claim that the determination that the substantive content of a report headed "Report on Allegations made by Peter Ormonde" be excluded on the basis that it falls outside the scope of the application is wrong, unreasonable and in violation of the Act.

REVIEW:

I note the FOI/Privacy Contact Officer considered certain information in the subject documents to be outside the scope of your request for all records held by specific officers relating to your grievance complaint and "all records referring to communications (with) HealthQuest or consultants employed by HealthQuest regarding the assessment requested for (you) on April 14, 2003".

The "Report on Allegations made by Peter Ormonde" (document 11) relates in part to the first aspect of your access application ie. your grievance complaint. Attachment 1 to the report refers to issues that were raised before your grievance complaint was lodged and also briefly refers to your grievance complaint. Only the information relating to the grievance complaint on 10 April 2003 was released.

Finding 2a): Since the omitted information does not refer to your grievance complaint and is therefore not relevant to your access request, I support the decision not to include the information in the original determination. I find the conduct complied with IPP 7. I propose to take no action.

Ground 2b): You claim that the determination to exclude sections of a report by Ms Molloy to Mr Gilligan on the basis that it falls outside the scope of the application is wrong , unreasonable and in violation of the Act.

The document is a submission by Ms K Molloy dated 14 April 2003 (document 16) which relates to the second part of your access request ie. communications with HealthQuest or its consultants.

The attachment that was not provided was referred to as an email from you, dated 11 April 2003. This appears to be a typographical error and in fact, the email is dated 10 April 2003. The email does not refer to communications with HealthQuest or its consultants and therefore is not relevant to your request.

Finding 2b): The email that was not provided does not refer to communications with HealthQuest so I find the conduct complied with IPP 7. Nevertheless, while it does not fall within the ambit of your request, I note that you issued the document so I have decided to provide you with a further copy of the email for your records.

Ground 3a): You claim that the determination to remove or delete sections of the letter sent to HealthQuest (on 14 April 2003) on the basis that deleted sections of the letter would unreasonably disclose a third party's 'personal affairs" is unreasonable, given the serious impact of non-disclosure to you, fails to provide a chain of reasoning, as required, the fact that such information was disclosed to HealthQuest and others and that this determination is wrong, unreasonable and violates the Act.

REVIEW:

The words following "...contravene these directions" up to "these behaviours are clearly contrary to the policies referred to above" were originally exempted " from release under the personal affairs exemption clause 6(1) of Schedule 1 of the FOI Act in relation to document 18 (letter to HealthQuest dated 14 April 2003) ie. the deleted sections of the letter would unreasonably disclose the personal affairs of NPWS staff who would be readily identifiable.

I have carefully reviewed the reasons why the information was exempted. I have decided to uphold the original determination to exempt the information under clause 6(1) as I am satisfied that the circumstances of the case are such that it would be unreasonable to release the information which relates to the personal affairs of other people. I find that the public interest of protecting personal information of other parties outweighs the public interest of you obtaining access to the information.

While the information was provided to HealthQuest, I find the release was appropriate to assist HealthQuest in considering NPWS' request of 14 April 2003. However, for the reasons outlined above, I find release of the information to you would not be appropriate and that exemption under clause 6(1) should apply.

In relation to the claim that a chain of reasoning has not been provided ''as required", it is assumed this is a reference to a similar ground raised in relation to the P2 internal review application. You argued that the notice of determination in that matter failed to meet the Premier's Department's FOI Procedure Manual by not providing a chain of reasoning.

This claim does not relate to an alleged contravention of an IPP and does not require consideration under the internal review provisions of the PPIP Act.

Please note for your information that the Premier's Department FOI Procedure Manual does not apply to privacy applications although it may be helpful when applying the FOI exemption clauses to privacy applications. The provisions of the FOI Act and the Premier's Department's FOI Procedure Manual relating to notices of determination are not relevant when the FOI/Privacy Contact Officer prepares a letter to advise a privacy applicant of an access decision.

I note you have previously been advised that the PPIP Act requires agencies to consider the FOI exemption clauses when determining privacy access applications. The PPIP Act does not set out what should be contained in a notice of determination.

I am advised that to reveal any more information than was provided to you in the 21 May 2003 letter of determination would have disclosed personal affairs information for which exemption from release was claimed.

Finding 3a): I find the conduct did not comply with IPP 7 in that you were not given access to a small part of the letter to HealthQuest on 14 April 2003. However, I find that the non-compliance was authorised by section 20(5) of the PPIP Act, which requires the FOI exemption clauses to be considered when determining privacy access applications and clause 6(1) of Schedule 1 of the FOI Act.

While the exempted information was provided to HealthQuest, I find the release was appropriate to assist HealthQuest in considering NPWS' request of 14 April 2003. However, for the reasons outlined above, I find release of the information to you would not be appropriate and that exemption clause 6(1) should apply for the specified information.

I further find that the public interest of protecting personal information of parties outweighs the public interest of you obtaining access to the information.

Ground 3b): You claim that the determination to remove or delete sections of the dossier sent to HealthQuest (on 14 April 2003) on the basis that the attachments do not refer to communications with HealthQuest or your grievance, is unreasonable, wrong and violates the Act.

REVIEW:

I have considered whether the attachments to the letter to HealthQuest dated 14 April 2003 fall within the scope of your access application. While I find the attachments do not refer to communications with HealthQuest or their consultants relating to the assessment request and therefore do not fall within the ambit of your application, I have decided to provide you with a further copy of the attachments (except for certain information) bearing in mind you were given a copy of the documents on 24 April 2003 by the Workforce Services Division, albeit with some information omitted.

Some emails that were issued by NPWS officers were not included in the documents provided to you by the Workforce Services Division on 24 April 2003. I note these emails were provided to HealthQuest, a third party. The emails involve commentary on emails written by you. Despite being irrelevant to your access request, I have decided to provide you with a copy of the following emails because of the previous disclosure to a third party and because no exemption issues arise:

ii. Email from I Hunter to D Godden and K Molloy dated 8 April 2003;

iii. Email from I Hunter to M Wright dated 8 April 2003;

iv. Email from I Hunter to D Easton and M Wright dated 7 April 2003;

v. Email from I Hunter to K Molloy and D Godden dated 30 January 2003.

The following continues to be withheld for the following reasons:

2. The attachments also include a memo from Mr Hunter to Mr Wright (undated). This memo was provided to you on 24 April 2003 outside the FOI and privacy legislation with a paragraph omitted.

While the attachments/information were provided to HealthQuest, I find the release was appropriate to assist HealthQuest in considering NPWS' request of 14 April 2003. However, for the reasons outlined above, I find release of the attachments/information to you would not be appropriate and that exemption under clause 6(1) should apply.

Finding 3b): I find the attachments to the letter to HealthQuest dated 2003 do not fall within the scope of your access application in that they are "records ... referring to communications (with) HealthQuest or employed by HealthQuest regarding the assessment requested for (you) on ApriI14, 2003". Accordingly, I find the conduct complied with IPP 7.

However, since certain information (emails referred to at (i) -(v) above) was revealed to a third party, I have exercised the discretion to provide information to you notwithstanding that information is not relevant to access request

A copy of the remaining attachments will again be provided, with the exception of the information set out in (1) and (2) above - for the overriding reasons explained above,

I find that the public interest of protecting personal information of other parties outweighs the public interest of you obtaining access to the information. I propose to take no action.

Ground 3c): You claim that the decision did not comply with the procedures, and guidelines under the FOI Act.

REVIEW:

This ground was raised in a purported internal review application under the FOI Act. Since you did not make an access application under the FOI Act, an internal review under that Act was not possible. However, you were advised that your claims would be considered under the present review as access to the letter to HealthQuest dated 14 April 2003 formed part of the P3 determination under the PPIP Act. I find that this ground does not relate to an alleged contravention of an IPP and does not require consideration under the Internal review provisions of the PPIP Act.

It is irrelevant to the review as the decision by Workforce Services Division to omit certain information from your copy of the documents sent to HealthQuest was made at a time when neither an FOI application nor a PPIP Act application had been made.

I note your comments relating to the 24 April 2003 correspondence to you have been considered separately within NPWS and that the Director-General wrote to you on 3 July 2003.

Finding 3c): I find that your comments are not relevant to whether or not an IPP was complied with. The actions to omit the information by the Workforce Services Division prior to the privacy determination on 21 May 2003 considered separately within NPWS and that the Director-General wrote to you on 3 July 2003. I propose to take no action.”

12 Under section 55(7) of the PPIP Act, the Privacy Commissioner (“the Commissioner”) has a right to appear and be heard in any proceedings before the Tribunal in relation to a review under that section. In FM v Vice Chancellor, Macquarie University [2003] NSWADT 78 the Deputy President of this Tribunal found that the words of section 55(7) of the PPIP Act do not confer the burdens and benefits of party status on the Commissioner. The Commissioner has a right to intervene in proceedings and be heard.

13 The Commissioner's role is in the nature of amicus curiae at common law, rather than a party who is necessarily concerned with the facts of the case and the adversarial nature of proceedings. The Commissioner generally maintains a neutral position before the Tribunal in PPIP Act proceedings and does not intervene on matters that depend on the facts of the case. Dr Gaudin appeared on behalf of the Commissioner and both the Acting Commissioner and the Deputy Commissioner provided written submissions.

Jurisdiction

14 Section 52 of the PPIP Act provides for the types of conduct that may be reviewed under the PPIP Act. It is confined to conduct that has occurred at the time an application for Internal Review is made under section 53: Wykanak v Director General, Department of Local Government [2002] NSWADT 208 at paragraph 17. Any failure to afford Mr Ormonde procedural fairness or to follow prescribed public service procedures is not conduct that may be reviewed under the PPIP Act.

15 Section 55 of the PPIP Act and section 37 of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”) give the Tribunal jurisdiction to review the Agency’s conduct. Section 55(1) of the PPIP Act provides jurisdiction to review the Agency’s conduct that was the subject of the application for internal review under section 53. Section 55(1) of the ADT Act makes it clear that an internal review of reviewable decisions needs to occur before any application can be made to the Tribunal. The PPIP Act expressly excludes the application of section 53 of the ADT Act, however it does not expressly exclude the application of section 55 of the ADT Act. The Tribunal should primarily have regard to the terms provided in section 55 of the PPIP Act, which confer jurisdiction on the Tribunal. It appears to have been accepted in MG v Director General, Department of Education and Training [2004] NSWADTAP 45 that the exceptions to section 55(1) of the ADT Act referred to in section 55(2) do not apply to internal reviews under the PPIP Act. Section 55 of the ADT Act provides:

“55 When can an application for a review be made?

(1) A person may apply to the Tribunal for a review of a reviewable decision only if:

(a) the application is made by an interested person, and

(b) an internal review is taken to have been finalised under section 53 (9), and

(c) the application is made in the manner prescribed by the rules of the Tribunal, and

(d) the application is made within such period as may be prescribed by the rules of the Tribunal following the date on which the internal review is taken to have been finalised under section 53 (9).

Note: Section 4 defines interested person to mean a person who is entitled under an enactment to make an application to the Tribunal for an original decision or a review of a reviewable decision (as the case may be).

(2) However, subsection (1) (b) or (d) does not prevent a person from making an application in respect of a reviewable decision that has not been the subject of an internal review under section 53 if the Tribunal is satisfied that:

(a) the person was not at any time entitled to apply for an internal review of the decision, or

(b) the person made a late application for an internal review in circumstances where the person dealing with the application unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the decision of the administrator concerned, or

(c) it is necessary for the Tribunal to deal with the application in order to protect the person’s interests and the application to the Tribunal was made within a reasonable time following the decision of the administrator concerned.

(3) In determining whether a late application for internal review was unreasonably refused or whether an application to the Tribunal was made within a reasonable time for the purposes of subsection (2), the Tribunal is to have regard to:

(a) the time when the applicant became aware of the making of the decision, and

(b) in a case to which subsection (2) (b) applies - the period prescribed by or under section 53 for the lodging of an application for an internal review, and

(c) such other matters as it considers relevant.”

16 The most relevant provisions of the PPIP Act are found in sections 5, 14 and 20.

5 Freedom of Information Act 1989 not affected

(1) Nothing in this Act affects the operation of the Freedom of Information Act 1989.

(2) In particular, this Act does not operate:

Freedom of Information Act 1989

(b) to lessen any obligations under that Act in respect of a public sector agency.

14 Access to personal information held by agencies

A public sector agency that holds personal information must, at the request of the individual to whom the information relates and without excessive delay or expense, provide the individual with access to the information.

20 General application of information protection principles to public sector agencies

(5) Without limiting the generality of section 5, the provisions of the Freedom of Information Act 1989 that impose conditions or limitations (however expressed) with respect to any matter referred to in section 13, 14 or 15 are not affected by this Act, and those provisions continue to apply in relation to any such matter as if those provisions were part of this Act.

17 The review provisions are found in Part 5. Sections 52 and 53 provide:

Part 5 - Review of certain conduct

52 Application of Part

(1) This Part applies to the following conduct:

(b) the contravention by a public sector agency of a privacy code of practice that applies to the agency,

(c) the disclosure by a public sector agency of personal information kept in a public register.

(3) This Part does not apply to any conduct that occurred before the commencement of this Part.

(4) Section 53 (Internal reviews) of the Administrative Decisions Tribunal Act 1997 does not apply to or in respect of conduct to which this Part applies.

53 Internal review by public sector agencies

(1) A person (the applicant) who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct.

(2) The review is to be undertaken by the public sector agency concerned.

(a) be in writing, and

(b) be addressed to the public sector agency concerned, and

(c) specify an address in Australia to which a notice under subsection (8) may be sent, and

(d) be lodged at an office of the public sector agency within 6 months (or such later date as the agency may allow) from the time the applicant first became aware of the conduct the subject of the application, and

(e) comply with such other requirements as may be prescribed by the regulations.

(b) who is an employee or officer of the agency, and

(c) who is otherwise suitably qualified to deal with the matters raised by the application.

(b) the Privacy Commissioner.

(7) Following the completion of the review, the public sector agency whose conduct was the subject of the application may do any one or more of the following:

(b) make a formal apology to the applicant,

(c) take such remedial action as it thinks appropriate (eg the payment of monetary compensation to the applicant),

(d) provide undertakings that the conduct will not occur again,

(e) implement administrative measures to ensure that the conduct will not occur again.

(b) the application relates to conduct of a public sector agency in relation to the convicted inmate or former convicted inmate, and

(c) the conduct occurred while the convicted inmate or former convicted inmate was a convicted inmate, or relates to any period during which the convicted inmate or former convicted inmate was a convicted inmate.

(b) the action proposed to be taken by the agency (and the reasons for taking that action), and

(c) the right of the person to have those findings, and the agency's proposed action, reviewed by the Tribunal.”

18 The relevant provisions of the FOI Act are found in section 25 and Schedule 1. Subsection 25(1) of the FOI Act allows an agency to refuse access to an exempt document in certain circumstances, including where a document is an "exempt" document as defined in the FOI Act. Subsection 25(4) of the FOI Act provides that an agency shall not refuse access to an exempt document if it is practicable to give access to a copy of the document from which the exempt matter has been deleted and if it appears to the agency that the applicant would wish to be given access to such a copy.

19 Section 31 of the FOI Act provides in part that an agency shall not give access to a document containing information concerning the personal affairs of any person (otherwise than to the person concerned) unless the agency has taken steps as are reasonably practicable to obtain the views of the person concerned as to whether or not the document is an exempt document by virtue of clause 6 of Schedule 1.

20 The relevant provisions of Schedule 1 of the FOI Act are:

6 Documents affecting personal affairs

(1) 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.

10 Documents subject to legal professional privilege

(1) A document is an exempt document if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege.

(2) A document is not an exempt document by virtue of this clause merely because it contains matter that appears in an agency's policy document.

21 Mr Ormonde applied to the Tribunal for review of the decisions pursuant to section 55 of the PPIP Act. His application is in the following terms:

Findings sought in relation to PPIP 1

1. That the internal review failed to conform to the requirements of the PPIP Act and denied both procedural fairness and natural justice to the applicant in that

- it was not comprehensive;

- asserted that an onus of proof lay with the applicant to establish that documents, records and other information falling within the scope of the initial application had not been supplied;

- failed to undertake reasonable consultation with the applicant to identify these omissions;

- adopted an unreasonably narrow definition of its role in that the application of FOI exemptions of the initial determination was regarded as not within the scope of the review;

- refused to consider the merit of exemptions claimed under FOI Schedules I and 6;

- was not conducted by an independent officer of the agency;

- upheld an unlawful application of Schedule 6(l) of the FOI Act (unreasonable disclosure of third party personal information);

- upheld an unlawful application of Schedule I exemption (legal professional privilege) on the basis of anticipated legal action against NPWS when no such action had been foreshadowed and in fact had been repeatedly rejected by the Applicant.

- upheld a decision to claim legal professional privilege based on an unlawful decision to extend public indemnity to individual employees accused of maladministration in the absence of the stipulated procedures.

2. The initial determination comprised an inadequate search in that documents and only documents were sought, considered or supplied despite the scope of the request.

3. The officers against whom allegations of impropriety and maladministration had been made by the applicant regarding these matters were solely responsible for determining which if any documents and records were provided in response to the application and that, in fact, no search was conducted by the determining officer

4. The initial determination asserted an exemption under Schedule I of the FOI Act where no client relationship existed between the Legal Services Branch and NPWS;

5. That any and all claim of exemptions under Schedule I of the FOI Act for any documents or information is unlawful, in the absence of any foreshadowed legal action by the applicant against the agency, and in the absence of the investigation and undertakings required prior to extending public indemnification to officers accused of improper conduct or maladministration.

6. The Notice of Determination failed to comply with appropriate guidelines setting out the basis of exemptions claimed.

Orders sought in relation to PPIP 1;

1. That NPWS conduct a full and proper search and provide all documents and other information and records sought by the applicant under PPIP 1.

2. That the information be provided to the Applicant without deletion or exemption within two week, from this date.

3. That should those officers in possession of such material fail to produce the required material, the Applicant can return the matter to the Tribunal within four weeks.

4. That the Tribunal order compensation against NPWS regarding its failures to comply with the Act

Findings sought in relation to PPIP 2;

1. That the internal review failed to conform to the requirements of the PPIP Act and denied both procedural fairness and natural justice to the applicant.

- it was not comprehensive;

- asserted that an onus of proof lay with the applicant to establish that documents, records and other information falling within the scope of the initial application had not been supplied,

- failed to undertake reasonable consultation with the applicant to identify these omissions;

- adopted an unreasonably narrow definition of its role in that the application of FOI exemptions of the initial determination was regarded as not within the scope of the review;

- refused to consider the merit of exemptions claimed under FOI Schedules 1 and 6;

- was not conducted by an independent officer of the agency

- upheld an unlawful application of Schedule 6(1) of the FOI Act (unreasonable disclosure of third party personal information);

- upheld an unlawful application of schedule 1 exemptions (legal professional privilege) on the basis of anticipated legal action against NPW S when no such action had been foreshadowed and in fact had been repeatedly rejected by the Applicant;

- upheld a decision to claim legal professional privilege based on an unlawful decision to extend public indemnity to individual employees accused of maladministration in the absence of the stipulated procedures.

2. The initial determination comprised an inadequate search in that documents and only documents were sought, considered or supplied despite the scope of the request.

3. The officers against whom allegations of impropriety and maladministration had been made by the applicant regarding these matters were solely responsible for determining which if any documents and records were provided in response to the application and that in fact, no search was conducted by the determining officer

4. The initial determination asserted an exemption under schedule I of the FOI Act where no client relationship existed between the Legal Services Branch and NPWS;

5. The Notice of Determination failed to comply with appropriate guidelines setting out the basis of exemptions claimed.

Order sought in relation to PPIP 2;

1. That NPWS conduct a full and proper search and provide all documents and other information and records sought by the applicant under PPIP 2.

2. That the information be provided to the Applicant without deletion or exemption within two weeks from this date.

3. That should those officer in possession of such material fail to produce the required material, that the Applicant can return the matter to the Tribunal within four weeks.

4. That the Tribunal order compensation against NPWS regarding its failures to comply with the Act

Findings sought in relation to PPIP 3

1. That the internal review failed to conform to the requirements of the PPIP Act and denied both procedural fairness and natural justice to the applicant, in that

- it was not comprehensive;

- it asserted that an onus of proof lay with the applicant to establish that documents, records and other information falling within the scope of the application had not been supplied;

- it failed to undertake reasonable consultation with the applicant to identify these omissions;

- it adopted an unreasonably narrow definition of its role in that the application of FOI exemptions of the initial determination was regarded as not within the scope of the review;

- it refused to consider the merit of exemptions claimed under FOI Schedules 1 and 6;

- it was not conducted by an independent officer of tie agency;

- it upheld an unlawful application of Schedule 6(1) of the FOI Act (unreasonable disclosure of third party personal information);

- it failed to consider or review the unlawful app application of FOI "exclusion principles" by an unauthorised officer, Ms Kate Molloy, to documents to which the applicant was entitled in full.

2. That the initial determination and the subsequent internal review upheld an unreasonable and unlawful decision to exempt sections of a document (document 18) on the grounds of Schedule 6(1) of the Freedom of Information Act.

3. That the initial determination and subsequent internal review did not produce any record of phone conversations and other communications between Ms Kate Molloy and Healthquest between April 9th and April 29th despite documented records of such communications being provided by HealthQuest.

4. That the initial determination and subsequent internal review did not produce any diary records, minutes of meetings or correspondence between those officers named despite Ms Molloy's established practice of working by phone, of keeping comprehensive notes and record of discussions and of the clear role she played in co-ordinating and orchestrating the disciplinary and other proceedings against the applicant, as attested to by tendered documents.

5. That the initial determination and subsequent internal review failed to undertake a proper search.

6. That the initial determination and the subsequent internal review produced no records of meetings, diary entries or phone records produced despite the obvious evidence that such records exist.

7. That the initial determination and subsequent review failed to undertake reasonable consultation with the applicant to identify specific documents, records and other information which had not been provided by the officer who were requested to provide any and all material in their possession.

8. That the initial determination and the subsequent review upheld an unreasonable and unfounded decision to suppress the content of a document (document 11) on the basis that the document fell outside the scope of the initial application (this document has now been released without explanation);

9. That the initial determination and subsequent internal review upheld an unreasonable and unfounded decision to delete sections of a document (document 18) purportedly on the basis of FOI Schedule 6(l).

10. That the initial determination and subsequent internal review adopted an unreasonably narrow interpretation of the original application so that only those documents "referring to communications with HealthQuest” were provided while the communications themselves were deemed to fall outside the scope of the application.

Orders sought in relation to PPIP 3;

1. That NPWS conduct a full and proper search and provide all documents and other information and records sought by the applicant under PPIP 3.

2. That the information be provided to the Applicant without deletion or exemption within two weeks from this date.

3. That should those officers in possession of such material fail to produce the required material, the Applicant can return the matter to the Tribunal within four weeks.

4. That the Tribunal order compensation against NPWS regarding its failures to comply with the Act

Findings sought regarding the conduct of Ms Kate Molloy

(attached to the internal review of PP3 by the former Director General of NPWS Mr Brian Gilligan);

1. That Ms Kate Molloy acted unreasonably and exceeded her authority in applying "FOI Exclusion Provisions" to documents provided to the applicant regarding his HealthQuest assessment.

2. That the former Director General of the NSW NPWS failed to fulfil his responsibilities as principal officer of the agency to ensure that no officer acted unlawfully or abused the provisions of the Freedom of Information Act 1989

3. That the former Director General, failed to ensure procedural fairness towards the applicant and breached the provisions of the FOI Act 1989 by refusing to review or overturn an unlawful and unwarranted application of FOI exemptions by an unauthorised officer Ms Kate Molloy;

4. That the application of unspecified FOI "Exclusion Provisions" to document 18 in the absence of an application under that Act, by an unauthorised officer of NPWS, Ms Kate Molloy was neither reasonable nor lawful;

5. That there was no lawful basis for the claim of an exemption under Schedule 6(l) of the Freedom of Information Act to delete sections of Document 18, given that the material deleted made no reference to any other party or their personal affairs;

6 That the former Director General failed to fulfil his responsibilities under the FOI Act by not censuring the officer responsible for abusing the provisions of the FOI Act, and in refusing to conduct a formal review of her action as requested by the applicant.

7. That the Internal Review failed to undertake a proper review of the decisions by Ms Kate Molloy to apply FOI “exclusion provisions" on the basis that such matters did not involve the contravention of an IPP, effectively putting Ms Molloy's unauthorised and unlawful action beyond review or scrutiny.

8. That the Legal Services Directorate of the NPW S has been improperly providing advice in this matter for which privilege is claimed, where there is no client relationship with those against whom legal action has been foreshadowed.

9 That the former Director General of NPWS has failed to undertake the required investigation and obtain the required assurances prior to extending indemnity and legal assistance to those officers against whom charges of maladministration or improper conduct have been laid.

10. That in the absence of such an investigation and assurances, all legal privilege claimed for advice provided to Mr Brian Gilligan, Ms Kate Molloy, Mr Tom Tyrpenou, Mr Michael Wright. Mr Ian Hunter and Mr David Godden regarding these matters is invalid and unlawful and hence no privilege applies.

Orders sought regarding the conduct of Ms Kate Molloy and others.

1. That any and all documents under which legal privilege has been claimed on the basis of advice provided to those officers named in the applications be provided to the applicant within two weeks of this date.

That the Minister appoint an independent external investigator to examine the conduct of Ms Molloy, Mr Brian Gilligan and others in this matter including the suitability of formal disciplinary action against officers found to have acted improperly or to have exceeded their authority or failed to undertake their responsibilities.

3. That the Tribunal imposes exemplary punitive damages against NPWS over the conduct of its officers in this matter and the subsequent response by senior managers of the agency.”

22 Mr Ormonde subsequently stated that he is seeking specific answers to specific questions regarding the legal authority claimed for a series of actions that he asserted have been imposed upon him to his financial and medical disadvantage.

23 Following the commencement of these proceedings there were negotiations between the parties and the Agency released further material to Mr Ormonde. The issues for determination have been narrowed to some extent. In his substantive submission Mr Ormonde observed that there are in effect four grounds asserted by the Agency for the exemptions of material and material not supplied under P1, P2 and P3:

b) Exemptions claimed on the basis of unreasonable disclosure of the private affairs of a third party

c) Exemptions implied by the assertion that specific documents, phrases and words are "out of scope" of these applications; and lastly,

d) The implied assertion that there is no other information, documented or otherwise, that within the scope of the application.

24 For convenience, I will address the issues that remain to be determined by reference to these categories. I note that the Agency provided detailed submissions in answer to each of the specific matters raised in P1, P2 and P3, as well as the findings sought and orders sought in relation to each of those applications.

A. Exemptions claimed on the basis of legal professional privilege

25 As indicated above, the Agency asserts that legal professional privilege applies to several of the documents that fall within the scope of Mr Ormonde’s requests and an exemption is claimed in relation to those documents. Mr Ormonde has submitted that the exemption is not applicable, as no client relationship existed between the Legal Services Branch and the Agency.

26 Mr Ormonde’s submission is that there can be no legitimate assertion of exemption based on legal professional privilege, given that there is no legal action threatened by him against the Agency, and that none has been foreshadowed against him by the Agency. What has been foreshadowed is that Mr Ormonde intends to take civil actions where possible against named individual officers and former officers of the Agency. He argued that the Director of Legal Services for the Agency and other legal advisers had provided personal legal advice to those named officers but that the advice was not given in accordance with the Premier's Department guidelines for the provision of legal assistance to Crown Employees. Mr Ormonde’s argument regarding the invalidity of any claim for client's legal privilege is not based on the content of the documents themselves but on the basis that there are no lawful clients involved here, and in particular according to the accountability requirements laid down by the NSW Government.

27 Mr Ormonde requested that the Tribunal reject any claim or assertion of suppression on the basis of protecting a client's legal privilege or, alternatively, that the Tribunal make a new determination based on the documents themselves and on the fact that no legal proceedings are anticipated between Mr Ormonde and the Agency.

28 The Agency submits that this assertion is wrong because the Legal Services Branch was part of the Agency and the legal officers who comprised that Legal Services Branch were at the relevant time employed by the Agency.

29 Mr Prince referred to Waterford v Commonwealth (1987) 163 CLR 54 and Gliksman v Director General, NSW Department of Health [2002] NSW ADT 1 as authorities for the principle that legal advice given by a qualified lawyer employed by the government can be privileged. The Agency submits that Mr Ormonde's understanding of the principles applying to legal professional privilege is misconceived. The Agency relies on section 20(5) of the PPIP Act as a basis for asserting that exemptions provided for under the FOI Act are relevant.

30 Clause 10(1) of Schedule 1 to the FOI Act provides that a document is an exempt document if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege. Mr Prince referred to the High Court decision in Esso Australia Resources Ltd v The Commissioner of Taxation [1999] HCA 67 where is was held that legal professional privilege will attach to a confidential communication, oral or in writing, made for the dominant purpose of obtaining or giving legal advice or assistance or for use in court proceedings. Gleeson CJ, Gaudron and Gummow JJ said at [35]:

‘Legal professional privilege (or client legal privilege) protects the confidentiality of certain communications made in connection with giving or obtaining legal advice or the provision of legal services, including representation in proceedings in a court. … The privilege exists to serve the public interest in the full and frank disclosure by clients to their lawyers. … [A] person should be entitled to seek and obtain legal advice in the conduct of his or her affairs, and legal assistance in and for the purposes of the conduct of actual or anticipated litigation, without the apprehension of being prejudiced by subsequent disclosure of the communication. … The party denied access might be an opposing litigant, a prosecutor, an accused in a criminal trial, or an investigating authority. For the law, in the interests of the administration of justice, to deny access to relevant information, involves a balance of competing considerations.’

31 The Esso decision has been applied by the Tribunal in a number of matters including Kay v Commissioner, Department of Corrective Services [2000] NSWADT 34 and Walden and Toni v General Manager, Leichhardt Municipal Council [2001] NSWADT 81. The present law is that advices, reports and the like attract the privilege if the ‘dominant purpose’ of their preparation was to obtain legal advice or assistance. The Tribunal has no discretion to override legal professional privilege on the basis of public interest: Neary v The Treasurer, New South Wales [2002] NSWADT 261.

32 Mr Prince also referred to section 125(1) of the ADT Act which provides that nothing in the ADT Act requires the disclosure of a document if the Tribunal is satisfied that evidence of the document could not be adduced in proceedings before a NSW Court by reason of the operation of sections 118 or 119 of the Evidence Act 1995. Those sections provide:

118 Legal advice

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a) a confidential communication made between the client and a lawyer, or

(b) a confidential communication made between 2 or more lawyers acting for the client, or

(c) the contents of a confidential document (whether delivered or not) prepared by the client or a lawyer,

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.”

“119 Litigation

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or

(b) the contents of a confidential document (whether delivered or not) that was prepared,

for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.”

33 The Agency submits that having regard to the foregoing, it is quite clear that legal professional privilege can apply to a communication (including a document) which is prepared for the dominant purpose of seeking or giving of legal advice and such advice does not have to be predicated on any legal action being foreshadowed.

34 The Agency submits that Mr Ormonde had foreshadowed legal action against various Agency employees for undertaking their duties as employees and therefore the employees were entitled to create documents for which legal professional privilege could be claimed.

Finding and Reasons

35 In this particular matter I am satisfied that the documents in question have been prepared for the purposes of obtaining advice. The advice related to the legality of the Agency’s action with respect to Mr Ormonde’s employment and issues that Mr Ormonde had raised about the legality of the Agency’s actions in relation to his employment. Legal professional privilege can apply to a communication that is prepared for the dominant purpose of seeking or giving of legal advice. The advice does not have to be predicated on any legal action being foreshadowed.

36 It is my view that whether or not guidelines are applicable and whether or not they have been followed can have no bearing on whether a document was prepared for the purposes of obtaining legal advice. Even if the advice was not cleared through the appropriate channels it does not follow that it cannot attract the legal professional privilege exemption.

37 In my view, the documents in question meet the relevant criteria. Accordingly, it is my view that the exemption asserted by the Agency applies to those documents. The decision to refuse to provide them to Mr Ormonde should therefore be affirmed.

B. Exemptions claimed on the basis of unreasonable disclosure of the private affairs of a third party

38 Mr Ormonde also challenged the Agency’s assertion that exemptions apply to some information because it would involve the unreasonable disclosure of the private affairs of third persons. He submitted that the Agency has given no explanation or clarification regarding who those persons might be, or what sort of allegedly private affairs are being protected.

39 Mr Ormonde further submitted that there is considerable lack of precision about what constitutes the "private affairs" of an employee carrying out their official duties. Moreover, any decision must weigh up the rights of Mr Ormonde, and the rights of the third party, to determine whether, based on the specific circumstances of the case, it is reasonable to provide the documents to Mr Ormonde. Mr Ormonde submits that there is no evidence of such a consideration in either the final determinations of the applications, or in the internal reviews.

40 In particular, he argues, there would appear to have been no consideration applied to Mr Ormonde's rights to know the substance of allegations made against him, or other evidence presented which justified the determination by the Agency’s Director-General that Mr Ormonde posed a risk to the health or safety of other the Agency staff. Mr Ormonde asserted that he has not been given any opportunity to refute a series of allegations and claims against him. He further submitted that to withhold such information was unreasonable in the context of the circumstances facing him, and that the "personal affairs" were, by definition directly related to the workplace and the alleged impact of the performance of duties by the Agency officers or former officers.

41 Mr Ormonde stated that some documents that had been the subject of an asserted "personal affairs" exemption had been subsequently given to him. He submitted that the Agency’s determination and internal review decisions should stand on their merits and that subsequent conduct should not be considered. He requested that the Tribunal express a comment with respect to the Agency’s conduct in releasing documents over which exemptions had been claimed.

42 The Agency conceded that some documents that had previously been withheld were subsequently provided to Mr Ormonde. This was considered warranted due to the passage of time and changing events. He asserted however that it would be counterproductive to make findings against the Agency on the basis of this conduct as it would have the consequence of encouraging agencies to take an entrenched stand rather than to enter into negotiations in an effort to narrow the scope of applications.

43 The Agency asserts that the decision to exempt certain words from the document was lawful because Mr Ormonde would have been able to determine the identity of the officers easily by having regard to the circumstances that existed at the time. If the relevant words had not been deleted then the Agency would have breached the provisions of sections 18 and 21 of the PPIP Act, which place limits on the disclosure of personal information.

44 The Agency further asserts that the circumstances of the case are such that it would be unreasonable to release the information, which relates to the personal affairs of other people, because the public interest of protecting the personal information of the other parties outweighs the public interest of Mr Ormonde obtaining access to the information. Mr Prince asserted that provision of the material that had been excised would not put Mr Ormonde in any different position to that he is in now. Its probative value is outweighed by the prejudice to the individual concerned. In the circumstances it is not unreasonable to withhold the information.

Finding and Reasons

45 The meaning of the term "personal affairs" and the application of the exemption under clause 6(2) of Schedule 1 of the FOI Act have been considered in numerous decisions. I considered this most recently in the matter of Todd v University of New South Wales [2004] NSWADT 250.

46 Whether a document contains information about the "personal affairs" of a person is a question of fact to be determined from the circumstances of each individual case: Chief Executive Officer, State Rail Authority v Woods [GD) [2003] NSWADTAP 25 (“Woods”) at paragraph 31. The circumstances of the case will determine whether or not a person's name and other identifying characteristics are personal affairs for the purpose of clause 6 of Schedule 1 of the FOI Act.

47 In Woods at paras 26 and 27 the Appeal Panel stated that:

There is not, as we see it, a fundamental difference to be found in a situation of a work colleague who experiences the same type of conduct and makes a complaint to management. The conduct remains the concern to them in a private capacity.”

48 In Woods the document in issue was a petition that had been signed by work colleagues of the applicant and at paragraph 28 the Appeal Panel stated the following:

Perrin’s case

49 The Appeal Panel went on to state that in its view the application before it was akin to those in Re Hutchinson and Department of Human Services (1997) 12 VAR 422 and at paragraph 30 the Appeal Panel quoted the following paragraph from Hutchinson.

“ I do not think there can be any doubt that [the documents in issue, handwritten notes of interviews and follow-up typed drafts compiled by a named investigator from unnamed staff members relating to Hutchinson’s conduct in the workplace] are to be characterised as containing matters of private concern to the individuals interviewed by Mr Fennessy. The documents contain information relating to the interviewee’s personal experiences with the applicant and their various reactions to those experiences, their versions of particular events and their reactions to those events.”

50 Having examined the documents in question, on the basis of the decision of the Appeal Panel in Woods and the authorities discussed therein, it is my opinion that those documents contain matter that concerns the personal affairs of the individuals concerned. Accordingly, the next issue for determination is whether disclosure of the excised parts of those documents would be unreasonable.

51 In BW -v- Registrar, New South Wales Medical Board [2002] NSWADT 76 Britton JM stated:

Colakovski

46 The applicant’s motives or intentions in relation to the application for access are highly important in considering whether or not the disclosure of the information would be reasonable in all the circumstances. (See Humane Society International Inc v National Parks and Wildlife Service [2000] NSWADT 133 and Re Targridge Pty Ltd and Road Traffic Authority (1988) 2 VAR 604 at 606-607.)”

52 In this matter, Mr Ormonde seeks access so that he may have an opportunity to refute allegations and claims against him. Against that motivation is to be weighed the nature of the information that is sought to be withheld and whether disclosure is likely to have any adverse impact on the persons whose personal affairs are contained in the documents.

53 Having examined the documents in question, I am in agreement with Mr Prince that provision of the material that had been excised would not put Mr Ormonde in any different position to that he is in now. I also agree that its probative value is outweighed by the prejudice to the individual concerned. In the circumstances, it is my view that it is not unreasonable to withhold the information.

54 Accordingly, it is my view that the exemption asserted by the Agency applies to the material that had been excised from those documents. The decision to refuse to provide them to Mr Ormonde should therefore be affirmed.

55 For completeness I note that I agree with the Privacy Commissioner’s submission that the right of access to personal information under the PPIP Act is more flexible than the right of access to documents provided under the FOI Act, and is able to support informal arrangements by agencies. This is consistent with the purpose of information privacy laws to provide a readily accessible mechanism for access to one's own personal information held by agencies. On the other hand, the more formal machinery of the FOI Act is primarily intended to serve the wider public interest in providing for third party access to documents relating to the workings of Government.

56 Whilst the relationship between the PPIP Act and the FOI Act is potentially complex, each regime is characterised by a distinct purpose and substantive and procedural differences. Privacy and data protection laws are intended to protect and promote the fair handling of personal information by agencies, whilst FOI laws are intended to promote open government in relation to handling of personal and non-personal information. Section 20(5) of the PPIP Act should be read in such a way that is in keeping with the spirit of the PPIP Act to protect personal information privacy.

57 Nevertheless, a balance needs to be found between the object of protecting personal information privacy and the objects of the FOI Act to extend, as far as possible, the rights of the public to obtain access to information held by the Government. It is my view that negotiations between the parties should be encouraged to achieve this balance. Rulings that would tend to result in agencies taking an entrenched position would inhibit the achievement of those objectives.

C. Exemptions implied by the assertion that specific documents, phrases and words are "out of scope" of these applications

58 The Agency has asserted that some information held by the Agency falls outside the scope of Mr Ormonde’s requests and therefore it was not provided. Mr Ormonde argued that no content was described, nor listing of these documents or information is provided from which a reasonable assessment of the validity of these unspecified and unrecorded decisions can be made.

59 In any event, Mr Ormonde argued that there is no provision in the legislation that states that an agency can exclude material that is out of the scope of the strict wording of a request. The Agency should have included material that deals with tangential issues, which are connected to the requested material. Mr Ormonde is concerned that the Agency may have excluded material that provided an indication of an attitude or opinion held about him.

60 Mr Ormonde requests the Tribunal to direct that the Agency produce all documents and other information deemed to be outside the scope of the initial applications and that the Tribunal itself make a ruling as to the validity or otherwise of this assertion.

61 Mr Prince asserted that Mr Perkins, as the internal review officer, could only address the grounds raised by Mr Ormonde in his internal review application. These grounds were extensive and were comprehensively addressed. He argued that an agency has no obligation to provide material that was not requested.

62 Mr Prince argued that it is apparent that Mr Ormonde went to some trouble to specify the information that he required. His request reads like a well-drafted subpoena, to identify what was required. Individuals, issues and types of documents are identified. The Agency adopted a sensible construction of what was requested so as to determine the scope of Mr Ormonde’s request. Mr Prince submitted that as the PPIP Act provides sanctions for non-compliance it would be unfair to impose an obligation on agencies to second-guess the response that was required. The words of the request must be seen as setting the limits of the inquiry to be undertaken.

63 Mr Prince conceded that if an opinion had been expressed about Mr Ormonde and it was held by the Agency, and it fell within the scope of his request, it would have to be released. Similarly, if an attitude was revealed in material and it was within scope it should be released unless exempt.

Finding and Reasons

64 The Agency provided the Tribunal with copies of documents that it had deemed to be outside the scope of Mr Ormonde’s requests so that a ruling could be made as to the validity or otherwise of the Agency’s assertion.

65 Having examined the documents in question, and the scope of Mr Ormonde’s requests I am in agreement with Mr Prince that the documents do not fall within the scope of the requests. While I agree in principle with Mr Ormonde’s submission that agencies should not adopt an overly restrictive approach to interpreting requests, I also agree with Mr Prince that it would be unfair to impose an obligation on agencies to second guess the response that was required. The Agency is entitled, in my view, to consider the words of the request in order to set the limits of the inquiry to be undertaken. Nevertheless, the adoption of a common sense approach that allows some deviation outside those limits is to be encouraged.

66 Accordingly, it is my view that the exemption asserted by the Agency applies to the material that had been considered to be outside the scope of the requests. The decision to refuse to provide them to Mr Ormonde should therefore be affirmed.

D. The implied assertion that there is no other information, documented or otherwise, that falls within the scope of the application.

67 The Agency asserted that no further material remains to be discovered or disclosed as a result of these actions, and that, subject to the exemptions asserted by the Agency, all relevant material had been provided.

68 Mr Ormonde submitted that the conduct of the Agency in obtaining the relevant information was neither adequate nor reasonable in the circumstances. The circumstances include the nature of the search undertaken, the individuals involved in the search, and the basis of the exemptions claimed by the Agency.

69 Mr Ormonde also submitted that there are reasonable grounds for a belief that not all the information requested in the applications was supplied. Despite the breadth of the applications and the specific request for diary entries, notes and similar personal records held by these officers, not one item of such personal documentation was produced.

70 Mr Ormonde referred to decisions that had been taken in relation to his employment stated but that no material had been provided evidencing the basis of those decisions. He submitted that it seems an extraordinary interpretation of the PPIP Act that, in order to avoid providing the personal information to which he is entitled under the PPIP Act, a public servant needs only to not commit such information to their files, simply not write anything down, or to not provide it when requested. He argued that Parliament would not have intended that the legislation could be subverted or evaded in such a crude and obvious fashion.

71 Mr Ormonde submitted that the broad definition of personal information set out in the Section 4 of the PPIP Act appears designed to prevent such conduct. He noted that section 14 of the PPIP Act makes no restriction on the type of information to be provided nor does it impose a requirement on him to request personal information in order to obtain the full range of material held by the Agency. He asserted that his requests entitled him to obtain access to "personal information", in no matter what format that information is held. The PPIP Act imposes no obligation on him to interpret the Act or define the type of information that is to be made available. Mr Ormonde further asserted that under the PPIP Act he simply has a right to any and all relevant personal information held by the Agency including any "information or an opinion... whether or not recorded in a material form".

72 Mr Ormonde requested that the Tribunal direct that a new search be conducted for information in accordance with the scope and breadth of his initial requests under the PPIP Act. He also requested that the Tribunal direct that the officers named in the requests each be required to provide statutory declarations attesting to the fact that, to the best of their knowledge, no further information of the nature sought by Mr Ormonde exists or ever existed.

73 The Agency rejects Mr Ormonde's allegation that the initial search was inadequate or that only "documents" were sought. On receipt of the requests Ms Lowe referred a copy of the requests widely to managers within the Agency and explained that "personal information" is defined as meaning information or an opinion, including that contained in a database. Those managers then referred a copy of the requests to the relevant officers. Mr Prince asserted that it is therefore erroneous to say that only "documents" were sought from the relevant persons. Nevertheless, the relevant officers only provided documents to Ms Lowe.

74 Ms Lowe did not undertake a personal search of files, databases etc located in the relevant areas. Mr Prince submitted that it would be an unreasonable expectation having regard to the size and geography of the Agency, the number of documents held by the Agency, the number of applications received each year and the time frames involved in processing applications. It is further submitted that in the absence of any suggestion that any of the officers were withholding any information, a personal search of all records held by all the officers was not warranted.

75 It is also asserted that even after Ms Lowe had determined the application, she sent e-mails to the relevant officers, asking them to advise her of the process used and the searches made to gather documents. As a result of these further requests, some additional material was located and copies of that material were sent to Mr Ormonde.

76 The Agency submits that it has already undertaken a full and thorough search for all relevant documents and other information. Accordingly, the order sought will be an exercise that is unlikely to disclose any additional information or documents and for which the Agency will incur a cost in terms of staff required carrying out the search.

Findings and Reasons

77 Mr Ormonde observed that despite the breadth of his applications and the specific request for diary entries, notes and similar personal records none was produced. Given the history of the relationship between Mr Ormonde and the Agency it seems unlikely that none would have ever existed. Nevertheless, I have no basis on which I can determine that they now exist. On the information before me I am satisfied that the Agency’s search was adequate.

78 Mr Ormonde has raised the issue of the scope of the definition of personal information under the PPIP Act and to the application of section 14. He has also raised the difficult issue of actions that might be taken to subvert or evade the operation of this legislation.

79 The Tribunal’s Appeal Panel in Vice-Chancellor Macquarie University v FM (GD) [2003] NSWADTAP 43 considered the scope of the definition of personal information. The Appeal Panel held that the definition of personal information was not limited to information recorded in a material form. It was stated at paragraph 80:

“80 There are clear indications in the NSW Act that the legislature turned its mind to the distinction between 'personal information' simpliciter held by agencies and personal information recorded in a material form held by agencies."

80 However the Appeal Panel did not accept that this meant that the definition necessarily covered all information in the minds of public sector officers. The respondent in Macquarie argued that such immaterial information could not be 'held' by an agency within the meaning of section 4(4) of the PPIP Act. In rejecting this argument the Appeal Panel stipulated the need for a connection between the information and the official function of the officers who had access to it. It was stated at paragraph 78:

“78 On the other hand the information may be of a sort that was never committed to paper but was acquired in an official capacity by the officer, is being used for official purposes and clearly is relevant to the organisation. We see no reason in principle or in the terms of the words ‘possession’ or ‘control’ to remove that kind of information from the sphere of protection given by the Privacy Act to individuals in this State who are the subject of comment by public sector agencies.”

81 The Appeal Panel went on to consider (at paragraph 87) that the fact that the information acquired by staff members became the basis of disciplinary proceedings provided a further argument for it being information covered by the PPIP Act.

82 By this criterion views about Mr Ormonde expressed at a meeting in which officers of the Agency participated as part of their official duties, and which led to action being taken against Mr Ormonde, might be seen to fall within the definition of personal information. However this in itself does not dispose of the practical problem of providing access to such information under section 14 of the PPIP Act, when the information is not in a material form.

83 The Deputy Privacy Commissioner submitted that there are additional considerations involved in applying relevant information protection principles to specific instances of the handling of personal information. They involve an overall appreciation of what the IPPs are seeking to achieve within a framework influenced by international conventions and a principle based legal instrument whose form is influenced by these conventions. They involve accepting that the scope of the definition of personal information may expand or contract depending on the way in which a particular principle is being applied.

84 I am persuaded by her argument that section 14 of the PPP Act should be seen as protecting the overall interest of individuals in the protection of their privacy by giving them the opportunity to find out what information is held about them, assisting them to take action under section 15 to correct this information if it is inaccurate, irrelevant, out-of-date, incomplete, or misleading, and seeking redress under the other IPPs if the presence or the context of the information indicates a likely breach. Section 14 is not intended as a vehicle for functions such as legal discovery or opening up to scrutiny the operations of Government which do not specifically affect the individual's privacy or liberties.

85 In my view these considerations impact on the question of whether the right of access should have bearing on information that does not exist in a material form. It is difficult to identify common sense assumptions which would endorse the idea that an agency should be required to give access to knowledge or opinions of its employees which have never been reduced to a material form and may never have been communicated.

86 This however does not dispose of Mr Ormonde’s concerns that a meeting can take place, opinions be expressed about him and adverse action initiated as a result, and so long as nothing is written down he has no privacy remedy. There is clearly a concern that privacy protection might be circumvented in this way.

87 The PPIP Act does not appear to impose any obligation to create records for the purpose of protecting them. Moreover the remedial powers available to the Tribunal under section 55(2) of the PPIP Act do not appear to extend to requiring an agency to maintain a record system in a way that would ensure subsequent compliance with the IPPs, in particular sections 12(c) and 14 of the PPIP Act.

88 The Deputy Privacy Commissioner suggested that it might be possible to argue that in exercising the powers under Chapter 5 Division 3 of Part 3 of the ADT Act the Tribunal could remit conduct of the agency, which amounts to a reviewable decision, to the Agency to make a record of the meeting or meetings to which access is sought and then determine whether this record should be disclosed to Mr Ormonde. However, she would not seek to press this argument, which would rely on a somewhat liberal interpretation of the Tribunal's powers under section 63(3)(d) and 65 of the ADT Act. In any event, a record created at this late stage would not accurately record opinions at the date of a meeting held in early 2003.

89 I agree with the Deputy Privacy Commissioner that this argument holds little merit. While I accept that Mr Ormonde has a valid concern in relation to compliance with the PPIP Act, I have difficulty in accepting as a consequence that the best remedy is to assume the existence of records and in some way to impose a retrospective material form on them that would be susceptible to an access request.

90 It seems probable to me that there are no records of the relevant meeting or meetings to which Mr Ormonde can obtain access. It follows that there is simply no remedy available to him under the PPIP Act.

91 Accordingly, it is my view that the orders that Mr Ormonde sought in relation to further search by the Agency and the provision of personal information in a form other than documents ought not be made.

The conduct of Ms Molloy

92 Mr Ormonde has sought a number of orders in relation to alleged conduct by Ms Molloy with respect to a referral to HealthQuest. On 14 April 2003 the Agency requested HealthQuest to conduct an assessment of Mr Ormonde's fitness to continue in his employment with the Agency. A number of documents were attached to the request. On 24 April 2003 Ms Molloy forwarded a copy of the letter and attachments to Mr Ormonde with certain omissions. It was asserted that the omissions were made "in accordance with the exclusion provisions of the Freedom of Information Act and Privacy legislation" and that the information related to the personal affairs of the Agency officers.

93 On 27 May 2003 Mr Ormonde lodged an internal Review application in relation to the abovementioned documents, purportedly under the FOI Act. The Agency asserted that as no FOI application had been lodged for the document, and therefore no access determination was made, an internal review was not possible under the FOI Act. However, since the letter to HealthQuest and the attachments were considered, in the P3 privacy determination, it was decided the grounds put forward by Mr Ormonde in the purported internal review application would be dealt with in conjunction with the P3 internal review application.

94 On 22 July 2003 Mr Perkins found that Mr Ormonde's claim that the decision by Ms Molloy to omit information on 24 April 2003 did not comply with the procedures and guidelines under the FOI Act, was irrelevant to the internal review as it did not relate to whether or not an IPP was complied with. The decision on 24 April 2003 was made at a time when neither an FOI application nor PPIP Act application had been made in relation to the document. Mr Perkins released some of the originally omitted information, but maintained exemption from release in relation to the remaining information.

95 On 3 July 2003 the then Director-General wrote to Mr Ormonde advising that:

Accordingly, there has been no determination made by Ms Molloy under the Freedom of Information Act, in her letter of 24 April 2003, which may be the subject of review under those Acts".

96 On 25 September 2003 more of the originally omitted information was released to Mr Ormonde with the consent of the relevant parties and following the determination of grievances lodged by certain officers against Mr Ormonde and the grievances lodged by Mr Ormonde against certain officers. Only two sentences of an undated memo, a copy of which was attached to the letter to HealthQuest, continues to be withheld.

97 The Agency asserted that any review of this matter is beyond the Tribunal's jurisdiction and outside the scope of the review powers. Mr Ormonde asserts that the review was deemed to incorporate the relevant subject matter and the Principal Officer of the agency advised Mr Ormonde that his claims would be considered as part of the Internal Review of P3. He further asserted that the jurisdiction or powers of the Tribunal of review are essentially unrestricted, regardless of any wording contained in the PPIP Act. In support of that submission he referred to section 73 of the ADT Act which provides in part:

73 Procedure of the Tribunal generally

(1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure.

(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

(3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

(4) The Tribunal is to take such measures as are reasonably practicable:

(b) if requested to do so, to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and

(c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings.

(b) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings.”

98 Moreover, he finds further support for this submission in section 40 of the ADT Act which states in part:

40 When enactment taken to make contrary provision to this Act

…

(2) However, a provision of a relevant enactment is not to be interpreted as amending or repealing, or otherwise altering or affecting the effect or operation of, any of the provisions of this Chapter unless the provision of the relevant enactment provides expressly for it to have effect despite a specified provision, or despite any provision, of this Chapter.”

99 Mr Ormonde submits that the powers of the Tribunal to review decisions must extend to those decisions which have been made in breach of the legislation, or where decisions have been made by officers neither qualified nor authorised to have made them, despite the technicalities and legalisms presented to protect such an action from scrutiny.

100 Mr Ormonde also submits that the ADT Act permits the Tribunal to investigate and inquire into any matter that is relevant to the issues before it, in order to make a determination regarding the reasonableness, lawfulness or justice of the conduct of the agency regarding this matter in refusing to consider or comment on Ms Molloy's actions in this matter.

101 The Tribunal's attention is also drawn to Section 62 of the PPIP Act which states:

62 Corrupt disclosure and use of personal information by public sector officials

(1) A public sector official must not, otherwise than in connection with the lawful exercise of his or her official functions, intentionally disclose or use any personal information about another person to which the official has or had access in the exercise of his or her official functions.”

102 Mr Ormonde requested the Tribunal to investigate and make a direction regarding the conduct of Ms K Molloy in deleting sections of the referral dossier sent to HealthQuest and the legality and propriety of these actions under section 55 Clause 5 and section 62 of the PPIP Act.

103 The Agency referred to section 52 of the PPIP Act. Mr Prince asserted that the only relevant provision for present purposes is section 52(1)(a) and that the only information protection principle relevant to this matter is Section 14. The Agency submits that the Tribunal's jurisdiction to review conduct pursuant to section 55(1), is restricted to conduct which comes within the definition of reviewable conduct in Section 52. The findings sought by Mr Ormonde relate to conduct which does not fall within Section 52. Accordingly, the Agency submits that the Tribunal cannot make the findings sought as they are outside its jurisdiction.

Findings and Reasons

104 I agree with the Agency’s submission that the Tribunal does not have jurisdiction to make the Orders that Mr Ormonde has sought. To some extent I have dealt with the reasons for this view in relation to other issues. In essence they are that the Tribunal's jurisdiction to review conduct pursuant to section 55(1), is restricted to conduct which comes within the definition of reviewable conduct in Section 52. The failure of an individual within an Agency’s employ to comply with other legislative requirements imposed on them in relation to their duties as a public servant or to act according to the accountability requirements laid down by the NSW Government do not fall within the scope of this jurisdiction.

105 Any failure to afford Mr Ormonde procedural fairness is not conduct that may be reviewed under the PPIP Act. Similarly, any failure by the Agency to comply with its obligations under legislation governing the keeping of records or other public service procedures is not reviewable under the PPIP Act. Similarly, action under section 62 of the PPIP Act is not within this jurisdiction.

Orders

106 In the light of my findings in relation to the various issues raised in this matter, it follows that I cannot agree that any of the orders that Mr Ormonde has sought should be made. Accordingly, the appropriate decision is that his application should be dismissed.

Citations

Ormonde v NSW National Parks and Wildlife Service (No 2) [2004] NSWADT 253

Most Recent Citation

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CITATION:	Ormonde v NSW National Parks & Wildlife Service (No 2) [2004] NSWADT 253
DIVISION:	General Division
PARTIES:	APPLICANT Peter Ormonde RESPONDENT NSW National Parks and Wildlife Service
FILE NUMBER:	033238
HEARING DATES:	19/05/2004
SUBMISSIONS CLOSED:	06/14/2004
DATE OF DECISION:	11/04/2004
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	Privacy - information protection principle - personal information - access by 1st party
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Evidence Act 1995 Freedom of Information Act 1989 Privacy & Personal Information Protection Act 1998
CASES CITED:	BW -v- Registrar, New South Wales Medical Board [2002] NSWADT 76 Chief Executive Officer, State Rail Authority v Woods [GD) [2003] NSWADTAP 25 Esso Australia Resources Ltd v The Commissioner of Taxation (1999) 74 ALJR 339 FM v Vice Chancellor, Macquarie University [2003] NSWADT 78 Gliksman v Director General, NSW Department of Health [2002] NSW ADT 1 Kay v Commissioner, Department of Corrective Services [2000] NSWADT 34 Neary v The Treasurer, New South Wales [2002] NSWADT 261 Todd v University of New South Wales [2004] NSWADT 250 Vice-Chancellor. Macquarie University v FM (GD) [2003] NSWADTAP 43 Walden and Toni v General Manager, Leichhardt Municipal Council [2001] NSWADT 81 Waterford v Commonwealth (1987) 163 CLR 54 Wykanak v Director General, Department of Local Government [2002] NSWADT 208
REPRESENTATION:	APPLICANT In person RESPONDENT S Prince, barrister PRIVACY COMMISSIONER J Gaudin, legal officer
ORDERS:	Mr Ormonde's application is dismissed.