Plowman and Australian Securities and Investments Commission (Freedom of information)

[2020] AATA 4729

Plowman and Australian Securities and Investments Commission (Freedom of information) [2020] AATA 4729 (24 November 2020)

Division:FREEDOM OF INFORMATION DIVISION

File Number(s):      2018/0504

Re:Virginia Plowman

APPLICANT

AndAustralian Securities and Investments Commission

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM QC

Date:24 November 2020

Place:Sydney

The decision under review is affirmed.

...................................[sgd].....................................

Deputy President B W Rayment OAM QC

CATCHWORDS

FREEDOM OF INFORMATION – access to conditionally exempt documents – where documents in relation to complaint made against Applicant – where no adverse findings made against Applicant – whether adequate searches were made – where release of documents would have adverse impact in managing employees – whether disclosure is in the public interest – decision under review affirmed

LEGISLATION

Freedom of Information Act 1982 (Cth) s 11A, 31B, 47E, 47F

REASONS FOR DECISION

Deputy President B W Rayment OAM QC

24 November 2020

1. This review concerns a request by the applicant, Ms Plowman, for documents under the Freedom of Information Act 1982 (‘the Act’). The respondent (‘ASIC’) provided some documents to the applicant and claimed that nineteen other documents were conditionally exempt under s 47E(c) of the Act, and in the case of one of the documents, that it was also exempt under s 47F of the Act.

2. Section 47E(c) provides as follows:

   47E   Public interest conditional exemptions—certain operations of agencies

   A document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to, do any of the following:

   …

   (c)have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency…

3. Section 47F relates to a conditional exemption available if its disclosure would ‘involve the unreasonable disclosure of personal information about any person’.

4. If a document is conditionally exempt under the Act, the issue relating to access is whether access to the document would, on balance, be contrary to the public interest for the purposes of s 11A(5) of the Act, as s 31B provides.

5. The decision was the subject of an internal review by ASIC, and in the course of that review, one additional document was disclosed, but the original decision was otherwise affirmed.

6. The proceedings have been before the Information Commissioner who affirmed ASIC’s internal review decision, and now come before the Tribunal on review of the Information Commissioner’s decision.

7. Subsequent to the decision of the Information Commissioner, ASIC disclosed two further documents in full, and eight in a redacted form. The proceedings now concern eight withheld documents and eight partially redacted documents.

8. The documents relate to the progress of a complaint made by an ASIC staff member alleging that the applicant was guilty of bullying or harassment. ASIC decided that the complaint had no substance and dismissed it and informed the applicant that it had done so. The applicant had come to believe that she was being investigated, without being informed of the existence of the investigation, and so made the request (‘the FOI request’).

   SEARCH ISSUE

9. There was also a search issue in this case. An ASIC employee, Ms Jenkins, who had been processing FOI requests for ASIC gave evidence before me. She became involved at the time of the internal review within ASIC. She confirmed with each person who had been identified at the time of the initial ASIC decision on the FOI request (including by the applicant) as having had possession of documents falling within the FOI request and that each such document had been supplied to the person who did the earlier search (a lady who had by then left ASIC).

10. The list of persons contacted by the Ms Jenkins also included a person identified by Ms Plowman as having had taken handwritten notes while she spoke to her. The person who took those notes confirmed that she had done so, but as time went by with no apparent need to keep those notes, she destroyed them.

11. Ms Plowman cross-examined Ms Jenkins as to whether she had made an electronic search of ASIC’s files, as the Information Commissioner’s guidelines indicated should occur. Ms Jenkins said that she had not. She stated that her understanding from reading the documentation is that the complaint did not lead to an investigation, so she was told no files were kept. An electronic search does not seem to have been necessary in those circumstances.

12. It seems to me that reasonable efforts were made by Ms Jenkins to search for documents in this matter.

    CONDITIONAL EXEMPTION ISSUE

13. On the issue of conditional exemption pursuant to s 47E(c), ASIC called Ms Brown, who had been employed by ASIC as the Senior Executive Leader, People & Development, since May 2019, having earlier filled similar roles in other organisations. She has read the exempt documents and described their contents in general terms. They include a file note made by the employee who made the complaint against Ms Plowman (‘Document 24’). The other documents contain information about Document 24, including personal views expressed by management employees about the complainant’s interactions with the applicant.

14. At [10] and [11] of her affidavit of 4 September 2019 Ms Brown said:

    I note that documents and discussions concerning [ULHC’s] file note ([Document 24]), were used by management to assess whether an investigation needed to be taken as a result of the contents of that file note. Management decided that it was not necessary to undertake an investigation in relation to the contents of [Document 24], and as such it did not take further action. Accordingly, no adverse findings were made against the Applicant and there was no requirement for Ms Plowman to be given procedural fairness

    I am deeply concerned:

    (a)about the effect the release of the Exempt Documents may have on the authors of those documents because they contain personal information and opinions. While these documents were used to assess whether further action needed to be taken, their release could decrease rather than increase employee engagement and co-operation; and

    (b)there is a risk that releasing the Exempt Documents will become common knowledge at ASIC and that employees will not feel safe to raise concerns confidentially and have workplace issues addressed.

    Either of the factors set out at paragraph 11 [sic] above, could have a substantial adverse impact on ASIC’s ability to manage its employees’ performance and behaviours, specifically, in relation to resolving inter-personal conflict, bullying and harassment.

15. Cross-examination by Ms Plowman included Ms Plowman pointing out to Ms Brown that since she examined the documents said to be exempt, some of them have been released or released with redactions. In my opinion, that does not entail that I should reject the evidence of Ms Brown at [10] and [11] of her affidavit in their application to the documents which remain in issue. It seems to me that the complainant’s note contained in Document 24, having been assessed as not calling for any investigation to be carried out in relation to the matters referred to in the note, the concerns expressed by Ms Brown have substance, and in those circumstances, the documents are conditionally exempt under s 47E(c). The same matters are relevant to the public interest questions which arise in the review.

16. As is stated in the evidence of Ms Brown, there is a risk that the disclosure of the exempt documents will become common knowledge of employees of ASIC. That, in turn, may discourage employees from raising matters with management, which otherwise would remain confidential and would not have been brought to the notice of any other staff member against whom a complaint may be made, even a complaint that is regarded by management as having no substance.

17. Ms Plowman sought to rely upon various matters to deny that the documents were conditionally exempt and, in the alternative, to deny that it was, on balance, contrary to the public interest for them to be disclosed.

18. Ms Plowman made a complaint about the work performance of an ASIC employee who has been given the pseudonym ULHC for the purpose of these proceedings. ULHC was informed of the complaint and in the course of her interactions with management about the complaint against ULHC, ULHC made a complaint against the applicant.

19. Ms Plowman was not told that a complaint had been made against her by ULHC nor of its details until she learned of it in late November or early December 2015 from another colleague, EGOB, that he had been told at a management meeting that the complaint by ULHC against the applicant had been found to be of no substance. EGOB was not told the nature of or any detail about the complaint and did not ask.

20. When EGOB discussed the fact that a complaint against Ms Plowman by ULHC had been found to be of no substance, Ms Plowman told EGOB that ULHC had not complained about her, but rather Ms Plowman had complained about ULHC. She asked who was at the management meeting and was told by EGOB that it was APHW, EMCM and EGTS.

21. Ms Plowman had told EGOB in early November that she had a discussion with APHW, and that the conversation gave her the “weird feeling” that she was being investigated about dealings with ULHC.

22. Ms Plowman gave evidence about what was said in that conversation. At [35] of her Statement of Facts, Issues and Contentions (‘SFIC’), she had referred to the conversation in somewhat general terms. At [13] of her statement she said (substituting pseudonyms given to ASIC employees for these proceedings and omitting the name given to another colleague mentioned) in the statement:

    I recall the “monthly catch up” meeting on 5 November 2015. [APHW] was insistent that I speak to [ULHC] and despite my protestations that I do not speak to her and had no reason to, he kept insisting that I must speak to her. We had a conversation in words to the effect:

    He said:“You must speak to [ULHC] when you task her.”

    I said:“No. Never. I always task her by email”.

    He said:“I expect you to speak to her and not task her in writing. You must speak to her”.

    I said:“No. I don’t speak to her. As I said I task her by email but as she didn’t do the task I recently requested her to do, there was nothing to speak to her about”.

    He said:“But you must speak to her when you task her?”

    I said:“I can’t remember the last time I spoke to her but the previous time I asked her to do something was months ago. So many months ago, I can’t remember when. I prefer to do any administrative tasks myself as I find her so unpleasant to deal with or I get [another colleague] to task her as we get a better result.”

    He said:“Why do you task her in writing. I would expect you to speak to her, not task her in writing”.

    I said:“Because I like to have a record of things for my own purposes, and because as I said I find her so unpleasant to deal with”.

    He said:“I expect you to speak to her if you need assistance”.

    I said:“I will continue to task her in writing – they are [EMCM’s] instructions actually. If [ULHC] gets back to me to do the task then of course I will speak to her”.

23. That is the conversation that gave Ms Plowman the “weird feeling” that she was being investigated. I return to that conversation below.

24. After she received the information from EGOB, to which I have referred at [‎19], Ms Plowman had another conversation with APHW. This conversation was set out in the applicant’s SFIC at [44] as follows:

    [APHW] accordingly advised me that:

    (a)[ULHC] had lodged a complaint about me with ASIC Personnel & Development (P&D: being “ASIC HR”);

    (b)P&D had investigated me;

    (c)P&D had found [ULHC’s] complaint had no substance;

    (d)[EMCM, EHLO], Senior Executive Leader, Head of P&D …, [UJYL], Relationship Manager, Personal & Development … and he had had a meeting further to me being investigated;

    (e)[EMCM] had involved P&D and was liaising with P&D, not him; and

    (f)He did not know why [EMCM] had involved P&D, nor the details of [EMCM’s] complaint about me and recommended that I speak to P&D.

25. The applicant also gave evidence before the Tribunal and was cross-examined briefly by Mr Davies of counsel, who appeared for the respondent. Amongst the evidence given by Ms Plowman was that she was told by another colleague, EGOB, that ULHC had made a complaint against her, that she (the applicant) was investigated, and that People & Development had found that the complaint had no substance.

26. Ms Plowman gave evidence about an earlier discussion she had with APHW in which APHW asked her to speak to ULHC if she wanted to task her, rather than sending her an email to task her. The applicant replied that she preferred to email ULHC. Apart from that discussion (which related to the future, not the past), there was, as I understood Ms Plowman’s evidence, nothing that amounted to an investigation of her. I am unable to regard the conversation with APHW as an investigation of the complaint made by ULHC.

27. It seems to me that Ms Plowman had some reason to believe that she had been investigated, because those words were used by APHW in the later conversation she had with him.

28. It was put to Ms Plowman by Mr Davies that the word “investigation” can cover a spectrum of activities and can include a preliminary consideration of whether a complaint is worth investigation without actually communicating any complaint to the person who is the subject of it.

29. If management had taken the view that the complaint of ULHC deserved to be investigated, in my understanding of proper procedure, she would have been informed of the details of the complaint and any evidence in support of it and be asked to provide management with her version of the facts. Otherwise she would not be accorded procedural fairness.

30. However, if management took the view that the particulars provided in support of a complaint against a member of staff, such as the applicant, did not support the complaint, it would not be necessary for management to communicate the complaint to the person whose conduct was the subject of the complaint before deciding that the complaint had no substance. That is what the evidence in this case suggests to me. I asked Ms Plowman whether anybody ever put to her that it was suggested she had been guilty of any misconduct, with or without particulars, and she answered in the negative. She also said to the Tribunal that she did not know the nature of the complaint suggested to have been made about her by ULHC until during the course of the Tribunal proceedings themselves.

    PUBLIC INTEREST QUESTION

31. Ms Plowman submitted that, because procedural fairness was denied to her, the public interest question should be resolved adversely to the respondent. I am not satisfied, for reasons which I have given, that procedural fairness was not given to the applicant.

32. The public interest question relates not to whether or not Ms Plowman was accorded procedural fairness in the process which ASIC followed in deciding that the complaint of ULHC lacked substance. Rather, it relates to whether it is in the public interest to disclose the documents which are conditionally exempt. The documents which I have read do not bear upon any such matter at all. No misconduct by ASIC is suggested or revealed by them. The documents upon their perusal do not suggest any reason why the evidence given by Ms Brown as to why it would, on balance, be contrary to the public interest to disclose them, should not be accepted.

33. ASIC submitted that any alleged maladministration in the course of ASIC’s dealings with the complaint made against Ms Plowman is not relevant in these proceedings. Assuming it is relevant to the public interest question, I am not satisfied that any maladministration occurred, and in those circumstances, I do not need to decide the relevance question.

34. Ms Plowman described the conversation in her SFIC as a ‘covert investigation’ of ULHC’s complaint. I would not so describe it, having read the exempt documents, including what is described as Document 24.

35. Like the Information Commissioner, I do not find it necessary to decide whether Document 24 is also conditionally exempt under s 47F of the Act.

    DECISION

36. For those reasons, in relation to all of the documents remaining in contention, the reviewable decision will be affirmed.

I certify that the preceding 36 (thirty -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC

...................................[sgd].....................................

Associate

Dated: 24 November 2020

Date(s) of hearing:	20 August 2020
Applicant:	By video
Counsel for the Respondent:	Mr R Davies
Solicitors for the Respondent:	Administrative Law Team, Australian Securities and Investments Commission