Owen v Commissioner of Police

[2020] NSWCATAD 296

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Owen v Commissioner of Police [2020] NSWCATAD 296

Hearing dates:

23 September 2020

Date of orders:

4 December 2020

Decision date:

04 December 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Lonsdale, Senior Member

Decision:

(1) Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) and s 107 of the Government Information (Public Access) Act 2009 (NSW), the evidence, submissions and record of the parts of the proceeding conducted in private on 23 September 2020 are not to be released to either the applicant or the public.

(2) The decision of the respondent is affirmed.

Catchwords:

ADMINISTRATIVE LAW – government information – access application – information relating to the applicant and the management of the applicant’s workplace injury – whether prejudice the supply of information – whether reveal a deliberation or consultation – whether prejudice the effective exercise of an agency’s functions – personal information - whether public interest considerations against disclosure outweigh public interest considerations in favour of disclosure

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Workers Compensation Act 1987 (NSW)

Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Cases Cited:

Ansoul v City of Sydney [2017] NSWCATAD 65

Australian Vaccination Network v Department of Finance & Services [2013] NSWADT 60

Cameron v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 13

Commissioner of Police v Camilleri [2012] NSWADTAP 19

Department of Education and Training v Mullett (No 2) [2002] NSWADTAP 29

Hurst v Wagga Wagga City Council [2011] NSWADT 307

Luxford v Department of Education and Communities [2016] NSWCATAD

Manly v Ministry of Premier and Cabinet (1995) 14 WAR 550

Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254

Place v Department of Finance, Services and Innovation (No 2) [2018] NSWCATAD 220

Raven v University of Sydney [2015] NSWCATAD 104

Searle v Transport for NSW [2018] NSWCATAP 93

Spice v Mosman Council [2016] NSWCATAD 215

Category:

Principal judgment

Parties:

David Robert Owen (Applicant)
Commissioner for Police (Respondent)

Representation:

Counsel
T Howell (Applicant)

Solicitors:
Police Association of NSW (Applicant)
Norton Rose Fulbright (Respondent)

File Number(s):

2020/00070422

Publication restriction:

Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) and s 107 of the Government Information (Public Access) Act 2009 (NSW), the evidence, submissions and record of the parts of the proceeding conducted in private on 23 September 2020 are not to be released to either the applicant or the public.

Reasons for decision

1. This is an application by the applicant under s 100 of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) for administrative review of decisions of the respondent dated 7 May 2020, 15 May 2020 and 29 May 2020 (together, the GIPA Decision).

2. For the reasons set out below, the GIPA Decision is affirmed.

Background

3. The applicant is a Sergeant with the NSW Police Force. In 2013, the applicant suffered a psychological injury in the workplace. The applicant’s injury was accepted as compensable under the Workers Compensation Act 1987 (NSW).

4. Over a period of some time, arrangements were made by the respondent for the applicant to return to work. Some of the arrangements (or the process through which the arrangements were made) are contested by the applicant.

5. In or around October 2019, the applicant made an access application under the GIPA Act for all documents held by the NSW Police Force relating to the applicant’s injury management and deployment. On 8 November 2019, the applicant revised the scope of his access application to specific documents and communications between persons employed by the NSW Police Force during the period 1 October 2018 and 31 October 2019.

6. Approximately 1200 pages of information has been provided by the respondent to the applicant. However, the respondent refused to provide access to certain information (Disputed Information) contained in 165 pages of material. In the open submissions, the respondent described the Disputed Information as information in “emails between various NSW Police Force officers and non-sworn staff relating to [the applicant’s] employment, in particular return to work … placements (Placements)”. In open material filed by the respondent, it is clear that the Disputed Information contains information relating to the applicant and Placements, as well as other persons. I have reviewed the Disputed Information and confirm that this accurately describes, at a high level, the Disputed Information for the purposes of this decision.

7. The applicant does not agree with the GIPA Decision and applied for administrative review in March 2020.

Confidentiality

8. Section 107(1) of the GIPA Act provides that the Tribunal must ensure that information in which there is an overriding public interest against disclosure is not disclosed. Section 107(2) of the GIPA Act provides that the Tribunal must receive evidence and hear argument in the absence of the applicant and the public, if necessary, to prevent the disclosure of such information.

9. After a brief discussion during the hearing, I made orders pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) regarding the publication of evidence, submissions and the transcript of that part of the proceeding held in private. Pursuant to s 49(2) of the NCAT Act, I conducted part of the proceedings in the absence of the applicant to consider an unredacted copy of the Disputed Information provided to the Tribunal on a confidential basis.

The GIPA Act

10. The object of the GIPA Act is to "is to open government information to the public" in stated ways "[i]n order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective" (GIPA Act, s 3(1)). The GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (GIPA Act, s 5).

11. A person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information (GIPA Act, s 9(1)). There is a general public interest in favour of the disclosure of government information (GIPA Act, s 12(1)).

12. There is an overriding public interest against disclosure of government information if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure (GIPA Act, s 13).

13. Subject to the application of Sch 1 of the GIPA Act, the public interest considerations listed in the table to s 14 to the GIPA Act (the Table) are the only considerations that may be taken into account as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information (GIPA Act, s 14(2)).

14. Section 15 of the GIPA Act sets out the principles that are to be applied when determining whether there is an overriding public interest against disclosure:

15 Principles that apply to public interest determination

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

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

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

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

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

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

15. In proceedings to review a decision made under the GIPA Act to refuse access to government information in response to an access application, s 105(1) of the GIPA Act provides that the burden of establishing that the decision is justified lies with the respondent.

16. The Tribunal's function on review under s 63 of the Administrative Decisions Review Act 1997 (NSW) is to decide what the correct and preferable decision is having regard to the material before it, including any relevant factual material and any applicable written or unwritten law.

Public interest considerations in favour of disclosure

17. The applicant relied upon the general public interest in favour of disclosure referred to in s 12(1) of the GIPA Act. The applicant submitted, in particular for this matter, that the high incidence of workplace injuries in the NSW Police Force places a particular importance on this public interest.

18. The respondent submitted that, in addition to s 12(1) of the GIPA Act, other considerations in favour of disclosure are the applicant’s personal interest in matters relating to his employment and that the applicant wishes to assess whether the respondent has complied with all relevant policy and legislation.

Personal factors of the application

19. Section 55(1) of the GIPA Act provides that, in determining whether there is an overriding public interest against disclosure of information, an agency is entitled to take into account the following “personal factors of the application”:

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

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

(c)   any other factors particular to the applicant.

20. The personal factors of the application may not be taken into account as considerations against disclosure in respect of cll 1, 6 or 7 of the Table.

21. Section 55(2) of the GIPA Act provides that the personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information.

22. The applicant has expressed that a motive for making the access application is to understand whether the respondent has complied with its own policies and procedures “with respect to the management of injured workers”.

23. The applicant also submitted that the Disputed Information will assist the applicant to determine if the respondent has complied with its obligations in s 49(2) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act) which provides, in respect of employment provided by an employer after a workplace injury, that:

The employment that the employer must provide is employment that is both suitable employment (as defined in section 32A of the [Workers Compensation Act 1987 (NSW)]) and (subject to that qualification) so far as reasonably practicable the same as, or equivalent to, the employment in which the worker was at the time of the injury.

Public interest considerations against disclosure relied on by respondent

24. At the hearing, the respondent relied on cll 1(d), 1(e) and 1(f) of the Table, which relevantly, provide as follows:

Responsible and effective government

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

…

(d)   prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions,

(e)   reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency,

(f)   prejudice the effective exercise by an agency of the agency’s functions

…

25. The respondent also relied on cl 3(a) of the Table, which relevantly, provides as follows:

Individual rights, judicial processes and natural justice

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects—

(a)   reveal an individual’s personal information

…

26. I deal with each public interest consideration below.

Evidence at the hearing

27. The applicant relied on an affidavit of the applicant dated 7 September 2020 and its annexures. The respondent relied on two witness statements of Tracy McGregor, Chief Inspector and Human Resources Manager for State Crime Command (CI McGregor) dated 17 June 2020 and 21 September 2020.

28. The evidence of both the applicant and CI McGregor is that set out in the above affidavit and witness statements. Neither the applicant nor CI McGregor was required for cross examination.

Clause 1(d) – prejudice the supply to an agency of confidential information

29. The respondent claims that disclosure of the information sought could reasonably be expected to prejudice the supply to the respondent of confidential information that facilitates the effective exercise of its functions.

Is the Disputed Information Confidential?

30. The respondent submitted that the Disputed Information is confidential and referred the Tribunal to various parts of Commissioner of Police v Camilleri [2012] NSWADTAP 19 (Camilleri).

31. CI McGregor’s evidence is that, communications about Placements includes information about a worker’s “skills, experience, limitations on roles, duties, details about other injured persons… suitability, past performance and issues with performance and attitude to the work place” and “it is well understood by managers and officers with HR responsibilities that their communications [in respect of Placements] are carried out with a high degree of confidentiality, due to the sensitive personal information being exchanged”. CI McGregor also states that she considers that when “workplace performance and other HR information is sought and provided during the placements identification process, it is understood that the information is to be kept confidential”. CI McGregor indicates that distribution of the information is limited to employees with involvement in a possible Placement and in the management of the injured employees. Further, the information is stored in dedicated folders with access otherwise restricted to Human Resources personnel.

32. In relation to the information provided to the injured employee, CI McGregor states that they are “informed of the outcome of the placement process but are not provided with a copy of all internal paperwork, including options identified and rejected and evaluations and opinions as to the likely success of a placement”.

33. The applicant’s evidence states that the Disputed Information in so far as it relates to the limitation of roles and duties, is not confidential and “is exactly the sort of information that is supposed to be discussed with an injured worker (and others) in the form of a return to work plan …”. In this regard, the applicant’s affidavit and submissions also indicate that the respondent’s ‘Injury and Management Procedures’ dated April 2019 (Respondent’s Procedures) provide for consultation with the injured employee.

34. The Respondent’s Procedures do provide for consultation in respect of certain matters. However, the requirement to consult, does not, of itself, mean that all information relating to or arising from the Respondent’s Procedures must be provided to the applicant and, therefore, cannot be confidential. Section 5.8 of the Respondent’s Procedures indicates that consultation is required with the injured employee in the preparation of a “Return to Work Plan”. The Respondent’s Procedures define a Return to Work Plan as a plan “…developed in consultation with all parties when an employee is restricted from performing their [pre-injury duties and] must clearly outline the goal, medical restrictions, suitable duties, days/hours worked, supervision arrangements, treatment and review dates …”. Neither section 5.8 nor the definition of “Return to Work Plan” indicate that the consultation requires the plan is to include all information obtained regarding the consideration (and rejection) of possible Placements.

35. The evidence of CI McGregor supports this in so far as it states that consultation with an injured employee typically occurs after a potential Placement is identified. This appears logical to me in so far as the relevant duties, hours, supervision arrangements and the like could not be discussed in a meaningful way for the purposes of a “Return to Work Plan” unless the particular Placement was known. Accordingly, I am not satisfied that the consultation requirements in the Respondent’s Procedures mean that the Disputed Information is intended or required to be provided to injured employees and is, therefore, not confidential.

36. I also not that section 4.3 of the Respondent’s Procedures provides that the “Injury Management Advisor” is to maintain confidential injury management files. While section 4.3 is limited in its application to the “Injury Management Advisor” and might not be said to represent an ‘agency wide’ practice, the Tribunal has previously found that the practices of an agency can support a finding that information is received confidentially where the information is received on a need to know basis (see Place v Department of Finance, Services and Innovation (No 2) [2018] NSWCATAD 220). In this regard, the evidence of CI McGregor indicates the conditions under the Disputed Information was received by those with involvement in Placements.

37. In oral submissions, counsel for the applicant indicated that the applicant could accept that information relating to a person’s skills and experience and factors considered in respect of a particular injured employee may be confidential, but information that is part of an agency’s consideration as to whether there is a suitable Placement would not.

38. In Camilleri the Appeal Panel stated at [26] that the Tribunal must first assess the effect of the claimed public interest consideration in the Table at a “broader operational level”, and at [37] that “the section 14 enquiry is directed to the administrative structure and context, and its conditions, to which the document or information belonged”. At [33] in Camilleri, the Appeal Panel stated:

In our view, the question of whether the information supplied is 'confidential information' must be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received.

39. I accept the evidence of CI McGregor that the Disputed Information:

1. may contain information that has not been discussed with the injured employee due to the impact it may have on their injury and treatment but may be important for relevant employees and the Human Resources sections of the NSW Police Force to know as it may affect the success or otherwise of a possible Placement.

2. may contain information from medical practitioners that is provided to the respondent on the basis that the information is not to be provided to the injured employee.

40. In Raven v University of Sydney [2015] NSWCATAD 104 at [62] the Tribunal stated:

The term “confidential information” in cl 1(d) of the table in s 14 of the GIPA Act does not connote information which may not be disclosed in any circumstances. The term captures information which is not to be disclosed in ordinary circumstances.

41. In my view, the ordinary circumstances of the collection of the Disputed Information are that it is confidential to all persons (including confidential to the injured employee) excepting, of course, the managers and senior officers with involvement in the Placement processes. The evidence of CI McGregor states that information about Placements that may be considered, but rejected, is not provided to the injured employee. In circumstances were there may be numerous issues or factors under consideration in a particular team or area at the time each possible Placement is discussed (and in view of the need to manage the expectations and particular circumstances of each injured employee) such confidentiality supports the Placements process and is consistent with the evidence that it is all of the information, including the agency’s consideration as to whether there is a suitable Placement would not, that is confidential.

41. For the reasons stated above, I consider that the Disputed Information is confidential for the purposes of cl 1(d) of the Table.

Does the confidential information facilitate the effective exercise of the respondent’s functions?

43. The respondent submitted that the relevant administrative function is the management of staff and the Placement of injured employee. In this regard, CI McGregor states that Placements are an important human resources function of the NSW Police Force, in particular, because the nature of policing work means there is a high incidence of workplace injuries and a corresponding need to effectively manage the process.

44. The applicant did not make submissions disagreeing that the respondent has functions of the kind described by the respondent (rather, the respondent’s submissions and evidence relating to functions are directed to the issue of whether the prejudice arises for the purposes of cl 1(d) of the Table and the balancing exercise required under s 13 of the GIPA Act).

45. In my view, the evidence of CI McGregor is supported by the documentary evidence in this matter. The respondent has well-documented processes in the Respondent’s Procedures to manage its workplace injuries. There are strict legislative duties relating to work, health and safety in NSW that require consultation and communication as to risks for the elimination of harm. I also note that the term ‘function’ is defined in cl 1 of Sch 4 to the GIPA Act to include a duty.

46. In Ansoul v City of Sydney [2017] NSWCATAD 65 the Tribunal stated at [38] that the “effective performance of an agency's functions depends to a significant extent on the performance and management of its staff”. I agree with this conclusion in relation to injury management and work, health and safety.

47. In my view, it is clear that the Disputed Information was provided to the respondent in relation to functions that that the respondent has for the management of injured employees. Accordingly, the information is necessary for the management of its staff and, thereby, facilitates the effective exercise of the respondent’s functions for the purposes of cl 1(d) of the Table.

Could disclosure reasonably be expected to prejudice the supply of the confidential information?

48. The respondent submitted that the question of whether the future supply of information is to be determined, at least initially, at a broader operational level and:

1. It is not to be determined by reference to the particulars of the immediate situation.

2. It is not necessary to show that it could reasonably be expected to occur on each occasion.

49. CI McGregor states that (and I summarise and paraphrase):

1. In order to identify a suitable Placement and give it the greatest change of success there is a need for a frank exchange of information at a management level about the injured employee’s skills, performance and any other workplace issues that might impact on the success of the Placement.

2. CI McGregor is concerned that the disclosure of the information will result in future communications being less frank and that Placements will suffer as a result because all relevant information is not communicated.

3. Placements rely heavily on frank comments and evaluations from employees as to the suitability of an officer and the disclosure of this information is likely to lead to those employees being less willing to provide frank and candid comments.

4. Employees cannot be compelled to provide information of the kind contained in the Disputed Information. While employees would be expected to continue to perform their duties, “the way in which they perform their duties will likely change and be inhibited”.

50. The applicant referred to the Appeal Panel decision in Searle v Transport for NSW [2018] NSWCATAP 93 (Searle), Australian Vaccination Network v Department of Finance & Services [2013] NSWADT 60 and Manly v Ministry of Premier and Cabinet (1995) 14 WAR 550 and submitted that the question of whether the prejudice could reasonably be expected to arise must be based on real and substantial grounds – not just mere risk or chance – and that it will not be sufficient for the decision-maker to proffer a view.

51. The applicant submitted that the Appeal Panel in Searle at [73] took account for the need for an “appropriate degree of scepticism to be applied to the views of agencies …”. The applicant submitted that CI McGregor does not describe any factual foundation for the concerns expressed in her statement and, in particular does not explain why she considers that disclosure of the Disputed Information would lead to police officers and non-sworn staff being less willing to provide frank and candid comments.

52. The applicant referred to the “statutory and procedural” duties incumbent on employees of the NSW Police Force (and, in particular, police officers) and submitted that the Tribunal should “be slow to accept that a sufficiently significant number of police officers would fail to act with integrity, or fail to carry out their duties in the professional manner required of them (as suggested by CI McGregor [in her statement])”.

53. The applicant’s evidence is that he does “not accept that the officers responsible for ensuring a safe and durable return to work … would fail to communicate relevant information just because it may be disclosed to the injured worker”. In written submissions, the applicant also identified the requirements in the NSW Police Force - Standards of Professional Conduct, including that employees of the NSW Police Force must “act honestly, truthfully and with integrity in all [their] dealings with other employees and the public” and “carry out … work professionally [which] means paying all due care and attention and diligence to your duties, fulfilling them to the best of your ability and supporting other employees to do the same”. In this context, the applicant submitted that the Tribunal should not accept that the “bald assertions of ‘concern’ expressed by CI McGregor provide a basis to conclude that senior police would ignore these duties and fail to disclose relevant information or opinions”.

54. The principles to be applied to the test for whether disclosure of information “could reasonably be expected to” have an effect identified in the Table were summarised in Searle at [68] in the following terms:

…

1. The words “could reasonably be expected” are to be given their ordinary meaning. They require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that disclosure would have the relevant effect: Attorney-General’s Department v Cockcroft (1986) 10 FCR 180 at 190.5; Raven v The University of Sydney [2015] NSWCATAD 104 at 48. As was made clear by Hayne J in McKinnon v Secretary, Department of Treasury [2006] HCA 45 at [61] –

   ... when their Honours said, as they did, that the words required a "judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous," to expect certain consequences, they are not to be understood as having used the latter expression as a paraphrase of the former. Rather, they are to be understood, and have since been understood, as doing no more than drawing an emphatic comparison. To do more would have been, as their Honours correctly said, "to place an unwarranted gloss upon the relatively plain words of the Act."

2. In order to discharge the onus, the appellant needed to show more than a mere possibility, risk or chance of prejudice. It must be based on real and substantial grounds: Australian Vaccination Network v Department of Finance & Services [2013] NSWADT 60 at [22].

3. It will not be sufficient for the decision-maker to proffer the view. It must be supported in some way: Manly v Ministry of Premier and Cabinet (1995) 14 WAR 550 at 573G; Raven at [53].

4. “Prejudice” is to be given its ordinary meaning, that is, to cause detriment or disadvantage, or to impede or derogate from: Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60].

5. The question as to prejudice to future supply was not to be determined by reference to the particulars of the instant situation. It was not necessary to show that it could reasonably be expected to occur on every occasion. It was to be determined at a broader operational level. Hence, the fact that in the instant situation the specific individual(s) supplying the information was unlikely to be inhibited even if there was disclosure was not determinative against the agency: Camilleri at [21], [22] and [26].

   55. In Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 the Appeal Panel considered the nature and probity of the evidence required to establish that disclosure of the information could reasonably be expected to have one of the effects in the Table, referring to Searle and the authorities discussed in that decision, and held:

6. Based on these authorities when considering the evidence on which it is asserted that disclosure “could reasonably be expected” to have a particular effect, the following principles should be kept in mind:

   (1)   a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient;

   (2)   there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect;

   (3)   prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses.

   56. CI McGregor is a senior police officer who has held the role of Chief Inspector and Human Resources Manager for State Crime Command for some fourteen years. While CI McGregor’s evidence indicates that she holds a ‘concern’ regarding the disclosure of information leading to less frank, in my view, the totality of CI McGregor’s evidence goes beyond raising a mere risk or possibility that the requisite prejudice could arise and provides real and substantial grounds for her concerns of the prejudice. In addition to the matters identified above, the evidence of CI McGregor identifies (and I summarise and paraphrase):

   1. A broad range of information is both relevant and required for an assessment regarding Placements and the success of Placements.

   2. There is a high incidence of workplace injuries in the NSW Police Force due to the nature of policing work.

   3. Success of Placements rely heavily on frank comments and evaluations of the suitability of an injured employee for the particular Placement.

   4. Frank and candid information regarding the suitability of a Placement is important because it may identify potential risks and issues with a Placement.

   5. Placements can be difficult and often give rise to industrial issues.

   57. The above factors are relevant also to applying an “appropriate degree of scepticism” to be applied to the views of agencies. They are matters that go to important operational issues and constraints and, in my view and when read together, provide a reasonable factual basis for the claims made by the respondent about the likely operation impacts and impacts on the actions of employees of the Police Force.

   58. In my view, the “statutory and procedural” duties (including the NSW Police Force - Standards of Professional Conduct) requiring, amongst other things, honesty, integrity and diligence by employees of the Police Force do not mean that the supply of information would not be prejudiced. The “statutory and procedural” duties are described at a high level as would be expected for an agency wide document dealing with conduct, generally. A central issue in this matter is whether the information offered up would be inhibited in circumstances where the person offering the information is aware it will be disclosed to world at large under the GIPA Act (see s 73(1) of the GIPA Act). In my view, there is an important difference between what may satisfy the high-level requirements of the “statutory and procedural duties” and offering up a person’s views and assessments about sensitive matters that include an injured colleagues’ injuries and capacity for a role, possible complications with the type of work that may be carried out in a Placement, possible personnel difficulties and issues within the relevant area.

   59. Further, cl 1(d) of the Table is concerned with the future ‘supply of confidential information’. In Department of Education and Training v Mullett (No 2) [2002] NSWADTAP 29 (Mullett) at paragraph [50], the Appeal Panel stated:

“conscientious employees would ordinarily see it as appropriate and proper for them to co-operate with departmental inquiries. If information of the kind in issue were to be released, it is not likely in our view that all employees would withdraw all future co-operation with similar inquiries. However, there is a likelihood that some might be more inhibited and guarded in the extent of their communication than may have previously occurred; and some might withdraw co-operation completely out of fear (reasonable or otherwise) of adverse repercussions flowing from publicity. To that extent, a relevant prejudice to the future supply of information would arise”.

60. In the context of confidential information offered on a voluntary basis and in respect of the management of sensitive issues regarding workplace colleagues, I find that there is such a likelihood in respect of the Disputed Information.

61. The Disputed Information in this matter is a complex mix of information provided by senior officers and managers that necessarily comprises an individual assessment of factors relevant to the possible success of a Placement. The evidence of CI McGregor is not that these senior officers and managers would be untruthful or not provide the information at all. Rather, the evidence of CI McGregor is that the information would be more circumspect, less frank and less candid. Based on the evidence before me, I consider that such an effect is reasonable, as distinct from something that is irrational, absurd or ridiculous.

62. While the applicant submitted in oral submissions that the information may be expressed differently rather than not supplied, the issue for the purposes of cl 1(d) of the Table is whether disclosure of the Disputed Information could reasonably be expected to prejudice the supply of the information. For the reasons outlined above (including the comments of the Appeal Panel in Mullett at [50]) information that expressed differently may be less relevant for the purposes of the evaluative and other processes required to assess Placements. Information that is less relevant in the context of the function in this matter represents a detriment, disadvantage or derogation to that which may otherwise be supplied.

63. For the reasons set out above, I consider that the disclosure of the Disputed Information could reasonably be expected to prejudice the supply of confidential information for the purposes of cl 1(d) of the Table.

Where does the balance lie?

64. Following my decision above, the Tribunal is to carry out the balancing exercise provided for in s 13 of the GIPA Act. The Tribunal stated in Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [70] that the balancing of the competing interests “is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation”.

65. The applicant submitted that the information contains expressions of opinion about the applicant and this should be given considerable weight (and, correspondingly, the respondent’s arguments that this information should not be disclosed should be given little weight). Further, the applicant’s written submissions state that if a senior member of the NSW Police Force holds the view that a police officer has a deficiency or weakness in their skills, experience, suitability, past performance and attitude towards the workplace then it is in the public interest that that officer is advised of those concerns. A related matter is addressed in the evidence of the applicant which states that information about the applicant’s skills, experience, past performance and attitude is all information about the applicant. While I accept that the applicant has a strong personal interest in the information because it includes information relating to his employment with the NSW Police Force, the Disputed Information is intertwined with other information including the opinions or assessments volunteered by employees involved in Placements from time to time, information about other injured employees as well a range of other confidential issues that arise from consideration of Placements. Given this, it cannot be said that such information is information of the applicant only. Further, cl 1(d) is directed to the issue of future supply of the information and, in this matter, in the context of an injury management scheme that applies to the NSW Police force as a whole, which is a relevant broader consideration in weighing competing interests of the respondent and the applicant as an individual.

66. The applicant’s wish to determine whether the respondent has complied with its own policies is clearly important, but I do not consider it to be of significant weight in the circumstances. The applicant has received approximately 1200 pages of material, such that a significant proportion of information within the scope of the access application is therefore available for the applicant’s stated motive. In the context of cl 1(d) of the Table, the Tribunal is required to consider the prejudice to the future supply of information and, as set out above, there is also an agency wide workplace and injury management process that must be considered and weighed against an individual’s motive.

67. The applicant also submitted that the Disputed Information would assist in informing him as to whether the respondent has complied with its obligations in s 49(2) of the WIM Act. My comments above in relation to the applicant wishing to determine whether the respondent has complied with its own policies apply to this issue as well. I note that s 305 of the WIM Act provides for concerns regarding a failure by the respondent to comply with an obligation imposed by or under Chapter 3 of the WIM Act (and s 49(2) is part of Chapter 3 of the WIM Act) can be the subject of dispute in the Workers Compensation Commission. The WIM Act also contains provisions regarding the provision of information and evidence that may be relevant to such disputes (although, the Tribunal did not have the benefit of submissions from the parties as to whether these provisions could apply to assist the applicant with his motive regarding the WIM Act).

68. The applicant also submitted that for a period of more than 18 months he was been certified as fit for ‘pre-injury’ duties and that, given this, the respondent’s processes have concluded. In such circumstances, the applicant submitted that the weight given to any prejudice must be negligible. The issue for consideration for the purposes of cl 1(d) of the Table is the appropriate weight to be given in respect of the future supply of the confidential information. Whether or not the particular process has concluded in respect of one individual is, in my view, not the correct focus for cl 1(d) of the Table and is therefore something that should be given a significant weight in the particulars of this matter.

69. In my view, the above considerations should be afforded less weight than the public interest against disclosure in cl 1(d) of the Table. The Disputed Information is intertwined with other information as described above. The Placement process is a significant one for the respondent given the nature and complexity of the NSW Police Force and the high incidence of injuries. The Placement process is also a sensitive one as it deals with a wide range of workplace injuries, including psychological injuries, and a commensurately sensitive approach is required in the assessment of all relevant information as the means by which the success of Placements will best be supported. It is the totality of the information that is, in my view based on the evidence and material before me, likely to support the Placement process in future and in respect of the numerous employees affected on an ongoing basis.

64. For the reasons identified above, on balance, I consider that the public interest consideration against disclosure in cl 1(d) should be given greater weight than those in favour of disclosure.

Clause 1(f) – prejudice the effective exercise by an agency of the agency’s functions

71. The respondent submitted that the public interest consideration against disclosure in cl 1(f) of the Table is typically considered together with cl 1(d) of the Table. The respondent submitted that:

1. The performance of the respondent’s functions rests heavily on the voluntary provision of information and the cooperation of persons with the relevant knowledge.

2. While cl 1(f) does not refer to confidential information, the effective exercise of the respondent’s functions would be prejudiced by the disclosure of the Disputed Information on the basis that those functions depend on the provision of that information on confidential terms.

72. The applicant’s submissions also deal with cll 1(d) and 1(f) and are, relevantly, summarised above in relation to cl 1(d) of the Table.

73. While cl 1(d) requires consideration of prejudice to the supply of confidential information, cl 1(f) requires the respondent to establish that the disclosure of the information could reasonably be expected to prejudice the effective exercise of its functions. In addition to the effects identified above in relation to cl 1(d) of the Table, the following matters in the evidence of CI McGregor are relevant to cl 1(f) of the Table:

1. The disclosure of the information may impact on the treatment and recovery of an injured employee (particularly if it is a psychological injury) if it is disclosed to them and may cause additional disputation and/or make finding a Placement more time consuming or difficult.

2. There is a risk that disclosure of the Disputed Information would exacerbate conflict relating to Placements and prolong the Placement process.

3. Disclosure of the Disputed Information would reveal how HR managers deal with sensitive and disputed human resources matters.

74. For the purposes of cl 1(f) of the Table, the relevant function is that identified above in relation to cl 1(d) of the Table, being the management of staff and, in particular, injured employees.

75. In my view and given the circumstances of this matter, the public interest consideration in cl 1(f) of the Table adds little to the consideration already discussed in relation to clause 1(d) of the Table. In any case, I am satisfied, for the reasons given above in relation to cl 1(d) of the Table as expanded above that this public interest consideration applies in the circumstances of this case. For the reasons set out in relation to cl 1(d) of the Table, on balance, the public interest consideration against disclosure should be given greater weight than those in favour of disclosure.

Clause 1(e) – reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency

76. The respondent submitted the Placement process is largely a deliberative one and for the reasons set out in the statement of CI McGregor (and outlined above in relation to cl 1(d)) the respondent argued that those deliberations will be prejudiced.

77. The respondent referred to Luxford v Department of Education and Communities [2016] NSWCATAD in which the Tribunal accepted (in relation to complaints and the investigation of complaints) that employees may feel inhibited about participating in deliberations and, on this basis, accepted that cl 1(e) applied.

78. The applicant acknowledged that the expression of opinions in emails that may include frank assessments of an injured employee’s skills, experience, suitability, past performance and attitude towards the workplace as well as comments or evaluations about the suitability for a particular role is information that would reveal a deliberative process. However, the applicant submitted that the Tribunal should not readily accept that officers would fail to act in accordance with their “statutory and procedural duties and fail to communicate relevant information”. On this basis, the respondent submitted that the deliberative processes would not be prejudiced. The applicant also submitted that the respondent’s processes are said to be consultative and ensuring that the Disputed Information is provided to all stakeholders (including, the applicant) “does not establish prejudice in the deliberative process”.

79. In Spice v Mosman Council [2016] NSWCATAD 215 at [17] (citing Re Waterford and Department of Treasury No 2 (1984) 5 ALD 588 at [58]) the Tribunal set out a description of deliberative processes as being an agency’s “thinking processes – the processes of reflection, for example, on the wisdom an expediency of a particular decision or course of action”. Based on the Respondent’s Procedures and the evidence of CI McGregor and the submissions of the parties, I consider that the process of seeking opinions and assessments from employees in respect of Placements is such a deliberative process.

80. In Cameron v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 13 at [71] (and after considering evidence that email communications were issued on the basis that they would not be publicly disclosed and that the disclosure of such information would be likely to inhibit future deliberations and decision making) the Tribunal accepted that it could reasonably be expected that disclosure of the email chain could prejudice a deliberative process of the agency. I agree that the same could be said in this matter for the reasons set out above in relation to cll 1(d) and 1(f) of the Table.

81. In my view and in the particular circumstances of this matter, the public interest consideration in cl 1(e) of the Table adds little to the considerations in cll 1(d) and (e) of the Table. If the supply of the information is prejudiced as I have concluded above in a context where the relevant deliberative process requires that same information for the deliberations to be effective, then it follows that the requisite prejudice in cl 1(e) of the Table arises.

82. In coming to this conclusion, I have considered the submissions of the applicant that the deliberative process has concluded and that the requisite prejudice does not arise. However, this matter relates to information that is required for a deliberation process that is ongoing or continuous and in a workplace and where there is a “high incidence of workplace injuries”. The deliberation process is one that will necessarily be repeated and applied to a number of injured employees, rather than being a ‘one-off’ or occasional process where the possible prejudice to the deliberative process, once concluded, may be less likely to arise.

83. For completeness, I should note that I do not accept, as argued by the respondent, that disclosure of the Disputed Information would allow injured employees to “undermine the placements process” and/or “manipulate the views of a treating doctor”. First, the process as described in the respondent’s evidence is that injured employees are not informed of Placements that are considered but rejected. Given this, I do consider that an injured employee could undermine something of which they are not aware. Second, the confidential communications are a complex mix of information regarding the injured employee, the relevant features of the Placement and issues and risks arising at the time the information is requested. Given this, I do not consider that an injured employee could identify a way to undermine or ‘work around’ the process or have the level of information required to manipulate a treating doctor. Despite my finding in respect of this particular issue, in so far as it relates to cl 1(e) of the Table, it does not change the conclusion I have reached in respect of cl 1(e).

84. For the reasons set out in relation to cl 1(d) of the Table, on balance, the public interest consideration against disclosure should be given greater weight than those in favour of disclosure.

Clause 3(a) – reveal personal information

85. The applicant’s written submissions indicate that the applicant does not seek information relating to any person other than himself and that the respondent’s reliance on cl 3(a) of the Table can be dispensed with immediately because it has no application. At the hearing, the applicant drew a distinction between personal information about another injured employees and personal information that is an opinion or view of an employee providing information in respect of the Placement of an injured employee.

86. The applicant filed a table (Applicant’s Table) under cover of letter dated 17 July 2020 table setting out, in respect of each of the 165 pages of documents in which the Disputed Information is located, the public interest considerations against disclosure that the applicant has identified as the basis for the respondent’s decision not to disclose the information. While the respondent has been provided with a copy of the Applicant’s Table, it is unclear how the table relates to tables attached to the GIPA Decision filed by the respondent (and there are a number of differences in the tables, in particular, in respect of the public interest considerations against disclosure).

87. Having set out my decisions in respect of cll 1(d), 1(f) and 1(e) of the Table, it is convenient to use the Applicant’s Table for the purposes of this section of the Table because it identifies information that was not disclosed on the basis of cl 3(a) of the Table only. In respect of the information so described:

1. While information in page 848 appears to have been refused on the basis of cl 3(a) only, it is a duplicate of page 851 in respect of which the respondent has relied on cll 1(f) and 1(e) of the Table.

2. I have reviewed the information in page 856 and confirm that it is information about another injured employees that the applicant does not seek.

3. I have reviewed the information in pages 866 to 868 and pages 870 to 877 and confirm that it is information about another injured employees that the applicant does not seek.

4. I have reviewed the information in pages 1188, 1189 and 1196 and confirm that it is information about another injured employees that the applicant does not seek.

88. Accordingly, the above information is either not sought by the applicant or is not to be provided to the applicant under cll 1(d), 1(e) and 1(f) for the reasons given above.

Conclusion

89. For the reasons set out above, I am of the view that the correct and preferable decision, in view of all of the circumstances of this matter, is that the GIPA Decision is affirmed.

Orders

90. The order of the Tribunal is as follows:

1. Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) and s 107 of the Government Information (Public Access) Act 2009 (NSW), the evidence, submissions and record of the parts of the proceeding conducted in private on 23 September 2020 are not to be released to either the applicant or the public.

2. The decision of the respondent is affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 04 December 2020