Pallier v NSW State Emergency Service

[2016] NSWCATAD 293

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	Pallier v NSW State Emergency Service [2016] NSWCATAD 293
Hearing dates:	24 October 2016
Date of orders:	14 December 2016
Decision date:	14 December 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Senior Member Ludlow
Decision:	1. With respect to Item 1 of the Schedule, the Respondent’s decision is set aside and another decision is substituted. 2. With respect to Items 2 to 9 of the Schedule, the Respondent’s decision is affirmed.
Catchwords:	Administrative law – access to government information – public interest disclosures – legal professional privilege – confidential information – personal information – false or unsubstantiated defamatory allegations – risk of serious harassment or intimidation
Legislation Cited:	Government Information (Public Access) Act 2009, ss 3, 5, 13, 14, 15, 55, 105, 107, cl 1 of Sch 1 Civil and Administrative Tribunal Act 2013 s 64 Public Interest Disclosures Act 1994 Independent Commission Against Corruption Act 1988 s 9
Cases Cited:	Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 Attorney General’s Department v Cockcroft (1986) 10 FCR 180 Searle Australia Pty Limited v Public Interest Advocacy Centre And Another (1992) 108 ALR 163 McKinnon v Blacktown City Council [2012] NSWADT 44 Waterford v The Commonwealth of Australia (1987) 163 CLR 54 AIN v Medical Council of New South Wales [2015] NSWCATAP 241 Pemberton v Macquarie University [2014] NSWCATAD 76 McInnes v Department of Education and Communities [2013] NSWADT 219 Director General, Department of Education and Training v Mullett [2002] NSWADTAP 13 Raven v University of Sydney [2015] NSWCATAD 104 Commissioner of Police (NSW) v Camilleri [2012] NSWADTAP 19 NSW Office of Liquor, Gaming and Racing v Fahey (GD) [2012] NSWADTAP 56 Singh v Legal Aid Commissioner (No 2) [2015] NSWCATAD 5 Hurst v Wagga Wagga City Council [2011] NSWADT 307 AEZ v Commissioner of Police, NSW Police Force [2013] NSWADT 90
Category:	Principal judgment
Parties:	Kevin Pallier (Applicant) NSW State Emergency Service (Respondent)
Representation:	K Pallier (Applicant in person) Crown Solicitor’s Office (Respondent)
File Number(s):	1610399
Publication restriction:	Paragraphs 32, 33, 36, 38 and 84 are not to be published.

reason for decision

Background

1. The applicant is a former employee of the respondent.

2. As part of a workplace investigation into alleged conduct of the applicant, an allegation was made concerning the applicant which was treated by the respondent as a public interest disclosure within the meaning of the Public Interest Disclosures Act 1994 (“PID Act”).

3. In December 2013 the respondent engaged the consultancy MCAA to conduct an investigation and prepare a report into that allegation (“the MCAA report”). The report found that the allegation was substantiated.

4. Following delivery of the report, the respondent engaged another consultancy (Nemesis) to review the MCAA report. That review (“the Nemesis report”) also found that the allegation was substantiated and recommended referral to the Commissioner of Police.

5. The respondent followed that recommendation.

6. The applicant made an access application under the Government Information (Public Access) Act 2009 (“GIPA Act”) to the respondent on or about 15 October 2016 for the following information:

“All documents under an investigation process/report initiated by the NSW SES against me on 18/12/13

- I was the respondent to the disciplinary investigation undertaken by Mr Gary Coultheart (MCAA Pty Ltd)

- (NB; you do not need to provide my initial response dated 26/01/14 as I already have a copy of the same.”

7. On 10 November 2015 the respondent refused access to the information sought on the basis that there was an overriding public interest against disclosure as outlined in ss 14(1) and 14(2) of the GIPA Act.

8. The applicant complained to the Information and Privacy Commissioner who reviewed the file.

9. The Commissioner did not make any recommendations to the respondent although he did make some comments.

10. The applicant was informed by letter from Acting Commissioner Smith dated 16 July 2014 that the MCAA reports did not establish a breach of the PID Act by the applicant and that Acting Commissioner Smith did not intend to take any further action.

11. The respondent now says that letter was erroneous. It was also inconsistent with action taken by the respondent to refer the applicant’s actions to the Commissioner of Police. The applicant claims that he was only made aware of this subsequent action as a result of his application under the GIPA Act.

12. The respondent conceded that it had given the applicant inconsistent information in respect of the findings made in the MCAA report. It emerged that the applicant has never received a copy of the MCAA report although it formed the basis of his conduct being referred to the police by his former employer.

The issues before the Tribunal

13. The respondent’s position is that the information to which access is sought falls into the following categories:

1. information which may be disclosed;

2. information which may be disclosed with redactions; and

3. information which may not be disclosed.

The relevant legislation

14. Section 3 of the GIPA Act sets out its objects:

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

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

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

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

(2) It is the intention of Parliament:

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

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

15. Section 5 of the GIPA Act provides:

There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.

16. Schedule 1 sets out information concerning which it is conclusively presumed that there is an overriding public interest against disclosure (section 14(1)). The table to s 14 sets out the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

17. Section 13 provides:

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

18. Section 15 sets out principles which apply to determining whether there is an overriding public interest against disclosure, which are:

(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.

19. In any review of a reviewable decision, s 105 places the burden of justifying the decision on the agency concerned. It provides -

(1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section.

(2) If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review.

20. The Tribunal's function on review under s 63 of the Administrative Decisions Review Act 1997 is to make the correct and preferable decisions having regard to the material before it, and any applicable written or unwritten law. The Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.

21. Section 107 sets out the procedure to be followed by the Tribunal in dealing with certain information. It relevantly provides -

(1) In determining an application for ADT review, the ADT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure.

(2) On an ADT review, the ADT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of the ADT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.

The confidential session

22. A confidential session was held in the absence of the Applicant. The confidential session gave the Tribunal an opportunity to examine the documents in the presence of the Respondent. This process is provided for by section 107 of the GIPA Act.

23. During that confidential session I viewed an unredacted copy of the identified documents which were considered by reference to the table to section 14 of the GIPA Act.

24. I have made an order under section 64 of the Civil and Administrative Tribunal Act 2013 that no record of the confidential session is to be released to either the Applicant or to the public. In these reasons, section 64 applies to those paragraphs identified as [not for publication] and they are not to be released to either the Applicant or to the public.

Public interest considerations in favour of disclosure

25. The respondent rightly pointed out in its submissions that a number of public interest considerations are in favour of disclosure. These are:

1. the information includes some of the applicant’s personal information;

2. disclosure of the information could reasonably be expected to enhance government accountability;

3. disclosure could reasonably be expected to inform the public about the operations of the agency;

4. disclosure could reasonably be expected to contribute to procedural fairness towards the applicant;

5. disclosure could reasonably be expected to reveal or substantiate that a member of an agency has engaged in misconduct or improper or unlawful conduct; and

6. disclosure could reasonably be expected to enhance the transparency and accountability of government generally.

26. Mr Pallier submitted that there was a public interest in favour of disclosure because the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. He alleged that the public interest disclosure was false, which is an offence under s. 28 of the PID Act. He also submitted that the respondent had not applied the Public Sector Employment and Management Act 2002 to his investigation. Mr Pallier submitted that he was not aware that his conduct had been referred to the Police until after lodging his application to the respondent under the GIPA Act.

27. The words "could reasonably be expected" refer to an expectation which is reasonable “as distinct from something that is irrational, absurd or ridiculous” (Attorney General’s Department v Cockcroft (1986) 10 FCR 180 at 190), and where real and substantial grounds exist when looked at objectively (Searle Australia Pty Limited v Public Interest Advocacy Centre and Another (1992) 108 ALR 163 at 176.) It is a question of fact (McKinnon v Blacktown City Council [2012] NSWADT 44 at [42]).

Public interest considerations against disclosure

Section 14 and Cl 1 of Schedule 1 – Public Interest Disclosures Act 1994 – section 22 (confidentiality guideline)

28. Pursuant to clause 1 of Schedule 1 it is to be conclusively presumed that there is an overriding public interest against the disclosure of information the disclosure of which is prohibited by s 22 of the PID Act, whether or not the prohibition Is subject to specified qualifications or exceptions and whether or not a breach of the prohibition constitutes an offence.

29. Section 22 of the PID Act provides:

22 Confidentiality guideline

(1) An investigating authority or public authority (or officer of an investigating authority or public authority) or public official to whom a public interest disclosure is made or referred is not to disclose information that might identify or tend to identify a person who has made the public interest disclosure unless:

(a) the person consents in writing to the disclosure of that information, or it is generally known that the person has made the public interest disclosure as a result of the person having voluntarily identified themselves (otherwise than by making the public interest disclosure) as the person who made the public interest disclosure, or

(b) it is essential, having regard to the principles of natural justice, that the identifying information be disclosed to a person whom the information provided by the disclosure may concern, or

(c) the investigating authority, public authority, officer or public official is of the opinion that disclosure of the identifying information is necessary to investigate the matter effectively or it is otherwise in the public interest to do so.

(2) As part of its procedures for receiving, assessing and dealing with public interest disclosures, a public authority must establish procedures for ensuring that a public official who belongs to the public authority maintains confidentiality in connection with a public interest disclosure made by the public official.

Note. These procedures are required to be the subject of a policy of the public authority under section 6D.

30. Before applying the conclusive presumption it is necessary for the Tribunal to be satisfied that disclosure of the information might identify or tend to identify a person who has made a public interest disclosure.

31. The respondent relied upon the contents of the MCAA report to show that a public interest disclosure was made. Those requirements are set out in s 8 of the PID Act:

8 Disclosures must be made by public officials

(1) To be protected by this Act, a disclosure must be made by a public official:

(a) to an investigating authority, or

(b) to the principal officer of a public authority or investigating authority or officer who constitutes a public authority, or

(c) to:

(i) another officer of the public authority or investigating authority to which the public official belongs, or

(ii) an officer of the public authority or investigating authority to which the disclosure relates,

in accordance with any procedure established by the authority concerned for the reporting of allegations of corrupt conduct, maladministration, serious and substantial waste of public money or government information contravention by that authority or any of its officers, or

(c1) to the principal officer of the Department of Parliamentary Services, the Department of the Legislative Assembly or the Department of the Legislative Council about the conduct of a member of Parliament, or

(d) to a member of Parliament or to a journalist.

(2) A disclosure is protected by this Act even if it is made about conduct or activities engaged in, or about matters arising, before the commencement of this section.

(3) A disclosure made while a person was a public official is protected by this Act even if the person who made it is no longer a public official.

(4) A disclosure made about the conduct of a person while the person was a public official is protected by this Act even if the person is no longer a public official.

32. [not for publication]

33. [not for publication]

34. Section 9A of the PID Act provides:

“an assertion by the public official as to what the public official believes in connection with the disclosure is, in the absence of evidence to the contrary, evidence of the belief asserted and that the belief is an honest belief.”

35. The definition of “Corrupt conduct” in s 9 of the Independent Commission Against Corruption Act 1988 includes the following:

(1) Corrupt conduct is:

(a) any conduct of any person (whether or not a public official) that adversely affects, or that could adversely affect, either directly or indirectly, the honest or impartial exercise of official functions by any public official, any group or body of public officials or any public authority, or

(b) any conduct of a public official that constitutes or involves the dishonest or partial exercise of any of his or her official functions, or

(c) any conduct of a public official or former public official that constitutes or involves a breach of public trust, or

(d) any conduct of a public official or former public official that involves the misuse of information or material that he or she has acquired in the course of his or her official functions, whether or not for his or her benefit or for the benefit of any other person.

36. [Not for publication]

37. My attention was drawn to cl 5.6 of the SES Code of Conduct which states that allegations of corruption may be reported to the Deputy Commissioner among other persons as being the procedure within SES concerning PIDs.

38. [Not for publication]

39. The applicant challenged whether the disclosure was a public interest disclosure. He stated that he was aware of the identity of the person who made the disclosure. He submitted that it was the respondent who told him the person’s identity in a letter received from MCAA on several occasions.

40. I accept the submission of the respondent that it is irrelevant for present purposes whether the applicant knows the identity of the person who made the disclosure, and the definition of “disclosure” in the GIPA Act supports this.

41. ‘Corrupt conduct’ includes any conduct of any person that constitutes or involves the dishonest or partial exercise of any of his or her official functions. There is sufficient evidence from which to infer that the maker of the disclosure in this case believed that the disclosure showed or tended to show the partial exercise of Mr Pallier’s functions. There is no evidence to the contrary. Accordingly I am satisfied that there was a public interest disclosure.

42. The conclusive presumption is established.

Legal professional privilege

43. The information which is subject to this claim is contained in an email from a senior investigation officer in the Ombudsman’s office. The email refers to “internal legal advice” and paraphrases that advice. The email is summarised and reproduced in the MCAA report.

44. Clause 5(1) of Sch 1 of the GIPA Act provides:

5 Legal professional privilege

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege.

45. Section 118 of the Evidence Act 1995 provides:

'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, lawyer or another person,

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

46. A lawyer-client relationship must exist for the communication or document to be privileged under s 118 and the communication or document must be confidential. The burden of establishing that is on the respondent. There is no evidence before the Tribunal as to the confidentiality of the advice, who produced it or whether it was produced for the dominant purpose of providing legal advice to a client. There is nothing on the face of the document from which I can infer these matters. As to confidentiality, the fact that the advice was disclosed to MCAA suggests the opposite. Legal professional privilege may apply to legal advice provided by an employed government lawyer to another employee or branch of government, providedthat the relationship is a professional relationship with an independent character notwithstanding the employment (Waterford v The Commonwealth of Australia (1987) 163 CLR 54). I am unable to infer from the available evidence that the necessary requirements are met in this case (AIN v Medical Council of New South Wales [2015] NSWCATAP 241 at [25]).

47. Accordingly the conclusive presumption in cl 5 of Sch 1 is not established.

Prejudice of the supply of confidential information – clause 1(d)

48. Section 14(1) cl 1(d) of the GIPA Act provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have the effects (whether in a particular case or generally) of prejudicing the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions.

49. A large amount of the information sought is subject to a claim under this clause. As described by the respondent, it includes information provided by the respondent and its employees to investigators and which is contained in witness statements, interview transcripts, the body of reports and other documentary evidence. The information includes allegations and evidence of a sensitive nature.

50. The respondent submitted that it has the function of investigating allegations of employee misconduct and the effective exercise of this function is dependent upon its employees being willing to cooperate with investigators fully and frankly. I accept this, but this raises two questions. Firstly, whether the information in question was “confidential”. Secondly whether the disclosure could reasonably expected to prejudice the supply of that information.

51. The respondent submitted that “confidential” in cl 1(d) means confidential “in ordinary circumstances”, in reliance on Raven at [62].

52. It relied upon the evidence of Mr David Chambers, who has held the position of Chief of Staff of the Commissioner since 10 September 2013. His role involves overseeing inquiries and investigations conducted by the Commissioner into alleged misconduct of SES employees and volunteers. In evidence was a copy of a document which the MCAA investigator provided to witnesses in the investigation concerning Mr Pallier. This document stated:

“ I do advise you that the information you provide to me may be disclosed to the respondent to enable him/her to respond to the allegations. During the investigation process, he/she will not be provided with a copy of the transcript or audio recording of this interview, nor given specific details about the source of the information gathered; however, he/she will be given sufficient information to allow him/her to respond to the matters under investigation…. If the department head or delegate makes a finding of misconduct against the respondent, he/she may receive a copy of the investigation report that may include a copy of all the attachments to the report, including the transcript of this interview.

53. Mr Chambers said that in his experience it would be unusual for the SES to provide the formal investigation report with attachments, including interview transcripts, to an employee who was the subject of a misconduct investigation, even after a finding of misconduct had been made. He stated in his experience at the SES he had not done so. He stated that in his opinion releasing the information in the IAB, MCAA and Nemesis reports would damage the trust that had been built between employees, volunteers and senior staff over the past few years because they would no longer be confident that a high level of confidentiality and protection could be upheld.

54. Mr Chambers gave evidence that there was concern among SES employees and volunteers that they could suffer retribution or be shunned by their peers if their identities became known after providing information to a misconduct investigation. There had been a general practice within the SES that information provided to such an investigation would be treated confidentially to the maximum extent possible. Following a number of allegations of corruption which were ultimately the subject of an ICAC enquiry Mr Chambers said that there had been a particular reluctance among staff and volunteers since 2012 to come forward regarding allegations of misconduct.

55. The respondent pointed out that confidential information from witnesses in workplace misconduct investigations has been accepted in the past as falling under clause 1(d) or its equivalent - see for example Pemberton v Macquarie University [2014] NSWCATAD 76 and McInnes v Department of Education and Communities [2013] NSWADT 219.

56. The applicant submits that the respondent’s approach is contrary to guidelines provided by the New South Wales Ombudsman which requires that public officials be frank and candid in the advice they give in the performance of their official functions. He also submitted that it was contrary to the Personnel Handbook provided by the Public Service Commission. The Handbook states at 9A – 13.1 concerning the notification to an employee that an investigation has found misconduct by the employee:

The written notification must state:

The details of the misconduct that the Department Head is of the opinion the officer has engaged in

The full Investigation Report with all attachments should be included subject to any legislative or confidentiality requirements precluding disclosure

If the matter concerns a Protected Disclosure or confidentiality the identity of the person who made the disclosure is only to be disclosed in the Investigation Report if it is essential having regard to the principles of procedural fairness – that is, essential for the person to be able to respond to the allegation.

57. The Handbook applied under the Public Sector Employment and Management Act 2002 which applied to the MCAA investigation, although that Act is now repealed. The guideline cited above is based on common law requirements of procedural fairness. It recognises that there may be some confidentiality or other restrictions on the information provided to the employee, however the employee should receive enough information to inform the employee of the findings against him or her and how they were reached; and allow him or her to make submissions concerning disciplinary action. However this addresses a situation where the employee may be disciplined; in the present case, the applicant is no longer employed.

58. The respondent referred to a passage from Director General, Department of Education and Training v Mullett [2002] NSWADTAP 13 at [58] cited in Raven v The University of Sydney [2015] NSWCATAD 104 at [50] concerning the predecessor of cl 1(d), cl 13(b)(ii) of Sch 1 to the Freedom of Information Act 1988:

That requires the Tribunal to characterise the nature of the material sought to be protected on the present occasion; to identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; the extent to which guarantees of confidentiality may be necessary.

59. In that case, after citing Mullett, Senior Member Lucy went on:

There must be some evidentiary basis from which the Tribunal may infer that disclosure of the information sought could reasonably be expected to prejudice the supply to an agency of confidential information. It is not sufficient for the respondent to make an assertion that this is the case: cf Hynes v General Manager, Hawkesbury City Council [2004] NSWADT 135, at [123].

…

The Appeal Panel in Camilleri observed, at [33], that “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”. [52-55]

60. Furthermore, the Appeal Panel in Commissioner of Police (NSW) v Camilleri [2012] NSWADTAP 19 noted that:

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…

We also agree with the agency that the Tribunal should not have introduced factors relating to the later history of the information or document. The enquiry, so far as cl 1(d) is concerned, should focus on the point of receipt, and the administrative standards and community understandings which surrounded it.

[at 33-34]

Therefore in determining whether the information is confidential, it is relevant whether it was confidential at the time it was received.

61. Also where an expectation of confidentiality was conditional, in that a reasonable witness or complainant would recognise that confidentiality may be overridden to some extent in the interests of fairness, this is relevant in weighing the public interest considerations against access (see for example New South Wales Office of Liquor, Gaming and Racing v Fahey (GD) [2012] NSWADTAP 55 at [39-40]).

62. I accept that this kind of information is needed in order to investigate allegations against employees, and that employees and volunteers will often be unwilling to cooperate with an employer in a misconduct investigation. Therefore I accept that the information comes within cl 1(d).

63. The evidence is, however, that the witnesses in these investigations cooperated, even though they were told that their information might be seen by the applicant “if the department head or delegate makes a finding of misconduct against the respondent”. A finding of misconduct was made in this case.

64. The respondent submitted that as the applicant received multiple opportunities to be heard in respect of the allegations and therefore the public interests in favour of disclosure relating to accountability and procedural fairness should be given little weight. The applicant submitted that this would be contrary to the Model Litigant Policy.

65. In balancing the public interest against disclosure against the public interest in favour of disclosure, I must consider the nature of the information and the particular effect of disclosure in the circumstances ( Hurst at [90-93]). I have found it necessary to consider those parts of the MCAA report which set out the allegations and findings separately from those parts which contain the evidence, annexures and analysis.

66. In relation to the allegations and findings in the report, I find that the public interest in the public sector notifying its employees of disciplinary findings against them, as well as the other other public interests identified above, outweigh the public interest against disclosure of the confidential information contained in the allegations and conclusions in the MCAA report.

67. However, given the confidential nature of the evidence, and the importance of ensuring cooperation in future investigations, in the case of the evidence and analysis of that evidence, and other annexures, in the MCAA report, as well as the Nemesis review and IAB reports, the public interest against disclosure is not outweighed by the public interest in favour of disclosure. I have set out at the end of this judgment how I believe these parts of the MCAA report should be redacted by the agency by balancing this particular public interest in favour of disclosure against the public interest in cl 1(d) of the table to s 14.

Disclosure of information provided in confidence – cl 1(g)

68. The respondent also submitted that the disclosure of the information in the four reports could reasonably be expected to result in the disclosure of information provided to the agency in confidence. The evidence cited above also applies to this ground. The evidence was provided to the investigators in confidence, however this was limited by the witnesses’ understanding that their evidence could be disclosed if the department head or delegate made a finding of misconduct against the respondent.

69. The applicant submitted that the respondent’s submissions were speculative and without a proper basis.

70. In relation to cl 1(g), in balancing the public interest against disclosure against the public interest in favour of disclosure in relation to the findings of the MCAA investigation, have taken the same approach as I took in relation to cl 1(d). In relation to the allegations and findings in the report, I find that the public interest in the public sector notifying its employees of disciplinary findings against them, as well as the other other public interests identified above, outweigh the public interest against disclosure of the confidential information contained in the allegations and conclusions in the MCAA report.

71. However, given the confidential nature of the evidence, in the case of the evidence and analysis of that evidence, and other annexures, in the MCAA report, as well as the Nemesis review and IAB reports, the public interest against disclosure is not outweighed by the public interest in favour of disclosure. I have set out in a confidential section of this judgment how I believe these parts of the MCAA report should be reviewed by the agency by balancing this particular public interest in favour of disclosure against the public interest in cl 1(g) of the table to s 14.

Personal information – cl 3(a)

72. Clause 3(a) of the table to s 14 of the GIPA Act provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to reveal an individual’s personal information. “Personal information” is relevantly defined to mean “information or an opinion … about an individual … whose identity is apparent or can reasonably be ascertained from the information or opinion” (GIPA Act, Sch 4, cl 4(1)). It does not include “information about an individual (comprising the individual’s name and non-personal contact details) that reveals nothing more than the fact that the person was engaged in the exercise of public functions” (GIPA Act, Sch 4, cl 4(3)(b)).

73. The respondent submitted that information and opinion about the conduct of employees and work performance, complaints and misconduct allegations concern the personal information of the employees concerned (McKinnon v Blacktown City Council [2012] NSWADT 44 at [73] and Singh v Legal Aid Commissioner (No. 2) [2015] NSWCATAD at [49].

74. I note that (name) has objected to the release of her personal information to the applicant and has stated that she fears for her safety and that of her family and that she believes that the applicant will use the information to harass her.

75. It is apparent that the information in question contains a large amount of personal information, in the evidence and evidence summaries contained in the report, as well as other documents.

76. I find that disclosure of the information in question could reasonably be expected to disclose personal information. In weighing the public interest against disclosure against the public interest in favour of disclosure, I find that the public interest against disclosure should be given more weight.

77. However, some of this can be addressed by redacting the names of the individuals concerned and any identifying or personal details so that their identity is not readily apparent.

False or unsubstantiated defamatory allegations – cl 3(e)

78. There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to reveal false or unsubstantiated allegations about a person that are defamatory (cl 3(e) of the table to s 14). A defamatory publication is one which tends, in the minds of ordinary reasonable people, to injure a person’s reputation either by

1. disparagement.

2. causing others to shun him or her, or

3. subjecting him or her to hatred, ridicule or contempt.

(Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [83])

79. The respondent submits that the First and Second IAB reports and to a lesser extent the MCAA report, contain allegations of this kind.

80. Having reviewed the documents, I accept that disclosure of the information marked as falling under this category could reasonably be expected to reveal false or unsubstantiated allegations about a person that are defamatory.

Risk of harm, serious harassment or serious intimidation – cl 3 (f)

81. There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to expose a person to a risk of harm or of serious harassment or serious intimidation. In order to find that this public interest applies, I must be satisfied that release of the information could reasonably expose a person to intimidation or harassment that is heavy, weighty or grave, and not trifling or transient (AEZ v Commissioner of Police NSW Police Force [2013] NSWADT 90 at [94].

82. Also, s 55 of the GIPA Act provides that the personal factors of the application can be taken into account as factors against providing access to information, if those factors are relevant to the agency’s consideration of whether disclosure of the information could reasonably be expected to have any of the effects in cl 2 to 5 of the table to s 14. The personal factors include:

1. The applicant’s identity and relationship with any other person

2. The applicant’s motives for making the application

3. Any other factors particular to the applicant ( s 55(1))

83. The respondent said releasing information in the reports to the applicant would increase his sense of grievance. The applicant denied this. The submission did not refer to any evidence.

84. [Not for publication]

85. However, I must assess the risk objectively. The respondent did not provide any evidence of the risk as it currently stands. The evidence in the report dates from late 2013. The applicant is no longer employed by the respondent. No evidence has been adduced that the applicant has harassed or intimidated anyone since 2013, even though he says he is aware of the identity of the person who made the public interest disclosure.

86. The respondent says that one person’s home address appears on one of the documents; however this information would be personal information about those persons which I have already determined may be withheld under cl 3(e).

87. Mr Pallier said in submissions that his motivation was in part to ascertain if anyone should be prosecuted for a false public interest disclosure, which is an offence under s 28 of the PID Act. This is not evidence of an intention to cause serious harassment or intimidation.

88. On balance there is insufficient evidence to make a finding that disclosing the information could reasonably be expected to expose anyone to a risk of serious harassment or intimidation.

Other matters

89. Mr Pallier submitted that I should exercise the powers of the Tribunal under s 111 and 112 of the GIPA Act. Those sections provide:

111 Referral of systemic issues to Information Commissioner

NCAT may refer any matter to the Information Commissioner that NCAT considers is indicative of a systemic issue in relation to the determination of access applications by a particular agency or by agencies generally.

112 Report on improper conduct

If NCAT is of the opinion as a result of an NCAT administrative review that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act, NCAT may bring the matter to the attention of the Minister who appears to NCAT to have responsibility for the agency.

90. No evidence was adduced of facts or conduct which would warrant me taking the requested action in this matter.

Decision

91. With respect to Item 1 of the Schedule of documents the respondent’s decision is set aside and the following decision is substituted:

1. Pages 3 and 5 - withhold only the information to which s.14(1) clause 1 of Schedule 1 and s 14, Table 3(a) applies, and release the remainder.

2. On page 10 to 14 (excluding the text from Section 5 onwards on page 14) withhold only the information to which s.14(1) clause 1 of Schedule 1 and s 14, Table 3(a) and 3(e) applies, and release the remainder.

3. Page 51 - withhold the following text and release the remainder:

1. para 6.14.7 (s14(1) and cl.1(1) of Sch. 1)

2. the name in para 7.2 (s14(1) and cl.1(1) of Sch. 1)

3. the names other than Mr Pallier’s in 7.3 (s14(1) and cl.1(1) of Sch. 1, s14 Table 3(a))

4. the names other than Mr Pallier’s in 7.4 (s14(1) and cl.1(1) of Sch. 1, s14 Table 3(a)).

4. Page 52 - withhold only the information to which s14(1) and cl.1(1) of Sch. 1 and s14 Table 3(a) and (e) apply.

5. Page 53 withhold only the information too which s14(1) and cl.1(1) of Sch. 1, and s14, Table 3(a) and 3(e) apply.

6. Page 54 withhold the information to which s14(1) and cl.1(1) of Sch. 1 and s14 Table 3(a) and 3(e) apply.

7. Page 57-58 and Annexure 5.6 – release the information withheld solely in reliance on Sch. 1 cl 5, s14 Table 1(d), and 1(g) and withhold information to which s14 (1) and cl.1 of Sch. 1 and Table 3(a) and 3(e) apply.

92. With respect to Items 2 to 9, the respondent’s decision 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

Amendments

15 December 2016 - Removal of text in paragraph 74

Decision last updated: 15 December 2016