Public Service Assn v Premier's Department

[2002] NSWADT 277

CITATION:	Public Service Association and Professional Officers Association, Amalgamated Union of NSW -v- Director General, Premier's Department [2002] NSWADT 277
DIVISION:	General Division
PARTIES:	APPLICANT Public Service Association and Professional Officers Association, Amalgamated Union of NSW RESPONDENT Director General, Premier's Department
FILE NUMBER:	013298; 023049
HEARING DATES:	16/05/2002
SUBMISSIONS CLOSED:	06/06/2002
DATE OF DECISION:	12/24/2002
BEFORE:	Britton A - Judicial Member
APPLICATION:	access to documents - confidential material - access to documents - if practicable to give access with exempt material deleted - access to documents - operation of agencies - access to documents - personal affairs - Freedom of Information - access to documents - if practicable to give access with exempt material deleted - Freedom of Information Act - access to documents - confidential material - Freedom of Information Act - access to documents - operation of agencies - Freedom of Information Act - access to documents - personal affairs
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977 Freedom of Information Act 1989 Privacy & Personal Information Protection Act 1998
CASES CITED:	Commissioner of Police v District Court of NSW (Perrin’s Case) (1993) 31 NSWLR 606 Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 43 Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 Re B and Brisbane North Regional Health Authority (1993) 1 QAR 279 Corrs Pavey Whiting & Byrne v Collector of Customs (1987) 14 FCR 434 Re James and the Australian National University (1984) 2 AAR 327 Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSW ADT 93 Rittau v Commissioner of Police [2000] NSWADT 186, Watkins v Chief Executive, Roads and Traffic Authority [2000] NSWADT 11
REPRESENTATION:	APPLICANT P Lowson, barrister RESPONDENT R M Henderson, barrister
ORDERS:	1. Decisions under review are affirmed.

1 This is a review of decisions of a delegate of the Director-General to refuse the release of documents requested pursuant to the Freedom of Information Act 1989 ("the Act") on the basis that the documents sought in the application are exempt documents within the meaning of cl. 13(b) of Schedule 1 of the Act.

Background

2 The background and history of the matter can be stated shortly.

3 On 6 September 2001, the applicant lodged a request under the Act for access to documents concerning "Password or other equivalent access to on-line workforce profile employment data - agency level."

4 On 3 December 2001 an officer, Mr Maurie O’Sullivan, of the Public Service Association and Professional Officers Association Amalgamated Union of New South Wales ("the PSA") applied to the Premier’s Department for a "hard copy", ie a paper copy, of a document identified in his application as "Workforce Profile Data, Agency Level. Hard copy version of what is currently on-line but inaccessible to other than those with authorised username/password." The application was received by the Department on 7 December 2001.

5 Each of these applications were refused and internal reviews confirmed the original decisions. The PSA has exercised its right to seek review of those decisions, which by consent, are dealt with together in this matter.

6 The NSW Public Sector Workforce Profile ("the Profile") is a data-base comprising data sent to the Department annually by NSW Government agencies. The Profile commenced in 1999. The data consists of information regarding the 400,000 plus public sector employees collected from the agencies and the employees, concerning each employee’s date of birth, gender, location, earning, superannuation contributions, allowances and leave. Each employee has the right to request that his or her data not be forwarded for inclusion in the Profile. Employees are not identified by name in the Profile but each is assigned an identifier number by his or her agency. The respondent is the custodian of the data and is responsible for their management.

7 The information is held on a Premier’s Department database. From that database statistical information about the whole of the NSW public sector is extrapolated. Statistical information about agencies can also be extrapolated to enable agencies to compare their data and performances with those of other agencies. This information is known within the NSW public sector as "agency level data". A website was established for the Profile in 2001, but agency level data is not publicly available. The information on the website consists of approximately 13,000 graphs. In 1999 and 2000, the Department produced documents entitled Overview Report for the NSW Public Sector Workforce Profile, the second edition being a publication of about 30 pages, which provided a summary of the findings from each collection of data. A hard copy is not kept by the Premier’s Department of the entire collection of data and graphs, although some of the material is in hard copy form.

8 The Profile was developed to enable effective workforce planning and management strategies within the NSW public sector; to assess social and economic trends in the composition of the public sector workforce and the consequent need for new employment policies, procedures and systems, and the effect of such new policies and procedures; and, finally, to provide the Office of Equal Opportunity in Public Employment ("ODEOPE") with the necessary data to enable it to monitor Equal Employment Opportunity ("EEO") policies and programmes within NSW public sectors agencies and, generally, to fulfill its functions under the Anti-Discrimination Act, 1977 (NSW).

9 The Profile was developed by the Department and overseen by a "Peer Review Committee" comprising representatives of the Department, other agencies, the PSA and the Labour Council of NSW.

10 One of the significant features of the Profile, and relevant to this review, is that it was agreed by the Peer Review Committee that the collection of data for inclusion in the Profile would be within a set of arrangements established to ensure the maintenance of the privacy and confidentiality of the data collected in relation to all individual public sectors employees. A Privacy Code of Practice for the Profile was developed by the Committee and approved by the NSW Privacy Commissioner. The Code was endorsed by concerned groups, including ODEOPE, the PSA and the Labour Council. The Code was gazetted on 23 July 1999.

11 The Code recognised that, while it was intended that the information about individual public sector employees obtained for the Profile be used "to generate statistical and aggregated reports which will not identify individual officers or employees, ... in a small number of instances [is] a capacity to indirectly identify an individual based on a unique combination of characteristics."

12 With that in mind, a number of "Information Protection Principles" were adopted within the Code to allay concerns of public sector employees regarding their personal and private information. Among the principles adopted were principles that all data would be kept in safe custody to prevent unauthorised access; that the data would be preserved from loss, corruption or deterioration; that the data would be made available "when required for legislative purposes consistent with [the Code]"; that "where transmission of data is required, all reasonable measures will be taken to ensure its safety and confidentiality" and that "data included in reports and otherwise available as part of the [Profile] will not involve a disclosure of private information as the data will be presented in an aggregated form that does not allow the identification of individuals."

13 Access to Profile data was also dealt with in the Code. The following principle was also adopted:

Other than [individuals seeking access to their own data and authorised persons], no officers, employees or contractors of the Premier’s Department, any other public sector agency or any other public or private organisation may directly access the unit database.

14 Section 10.2 of the Code guarantees an employee access to his or her information on the database under the provisions of the Privacy and Personal Information Protection Act and the Freedom of Information Act 1989 ( FOI Act). Section 10.3 requires the respondent and the Director-General of ODEOPE to nominate the positions under their control which require access to the Profile data. Those persons are required to sign a confidentiality agreement. (In this case, the legal representatives of both applicant and respondent have signed the confidentiality agreement.) Requests for access to the Profile data from government agencies, including Federal Government agencies, Courts and Tribunals, and requests for access pursuant to the FOI Act are dealt with under sections 10.4 -10.6 of the Code.

15 In relation to organisations other than government agencies, such as the applicant, section 10.6 of the Code provides that data which would identify individuals will not be made available to an applicant unless the applicant is the individual concerned. Ordinarily, such applications by individuals for their own data would be dealt with by the agency holding the original data rather than the Premier’s Department.

16 It is NSW Government policy and practice to notify all public sectors employees of their entitlement to withhold their data from inclusion in the Profile. About 1 per cent of employees have exercised this option.

Issues for Determination

17 The preliminary issue the Tribunal must determine is whether the respondent ought be allowed only to rely on a claim for exemption pursuant to cl. 13 of Schedule 1 of the Act, namely, the "confidential material" exemption. The respondent in these proceedings has sought to rely on other grounds of exemption, arguing that the documents are also documents "affecting personal affairs" [Sched.1, cl.6]; or documents "concerning operations of agencies" [Sched.1, cl.16]. On the respondent’s case, the documents sought fall within one or more of these categories. The applicant submits that this is a review of the original decision of the respondent’s delegate who relied only on confidentiality exemption in refusing the applicant access to the documents.

18 If the respondent is not limited to and bound within the parameters of the original decision, the first substantive issue is whether the documents sought are exempt documents pursuant to s.6 and Schedule 1 of the Act.

19 If it is held that the documents sought are exempt documents, a further question arises, namely, whether it is practicable for the Department to give access to a copy of the documents from which the exempt matter has been deleted.

Evidence

20 Evidence was given by way of tender of statements from various witnesses for both the applicant and the respondent. In addition, Ms Joe Grisard, the Premier’s Department officer managing the Profile database, gave oral evidence, some of which was in camera in order to protect against the inadvertent disclosure of material which may by found by the Tribunal to be exempt and not to be disclosed. While I have taken into account all the evidence adduced by the parties, in the interests of brevity I will refer here and in my conclusions only to that evidence which I regard as having particular probative significance.

21 Much of the evidence given by the applicant was, in my opinion, irrelevant because it went to the question of the applicant’s reasons for making its application. The applicant does not have to have a reason to apply for agency documents. If it is entitled to the documents it does not matter what its motivations may be. If it is not entitled to the documents, or the correct and preferable decision is not to release the documents, it makes no difference what the reasons for the application may have been.

22 Similarly, evidence was given by Janet Good for the PSA concerning her understanding, in 1999, of the scope of the Privacy Code. Her opinion of the scope of the Code, or her understanding of it when presented with it, and endorsing it on 9 July 1999, seems to me to add little or nothing to its interpretation in this matter.

23 Relevant evidence was, however, given by Ms Good to the effect that the PSA has no interest in seeking personal information about individuals within the public sector. It is interested only in aggregated agency level data. That evidence is relevant to the question posed in s.25(4) of the Act.

24 Evidence was also given by Mark Cully for the PSA. Mr Cully is the Deputy Director of the National Institute of Labour Studies at Flinders University. His evidence was, in effect, expert evidence on the Profile. As was the case in relation to Ms Good’s evidence, interesting as it was, much of what Mr Cully deposed to was essentially irrelevant to the issues to be determined in this case for the same reasons. The real significance of Mr Cully’s evidence is in Part III of his statement which deals with privacy concerns.

25 He noted that in Western Australia, where a similar (although presumably much smaller) data collection and analysis project is undertaken, the information made public by the WA Government is essentially restricted to agencies employing at least 100 full-time staff. He commented, "No explanation is provided for the cut-off, but it would serve to enhance the statistical reliability of any observed pattern - because small absolute numbers can produce potentially misleading results when expressed as a percentage of a low base. It may also serve to prevent individuals being identified as a result of published tables where agencies have relatively few staff." He noted that in WA about 97.3 per cent of public sectors employees worked for agencies employing 100 or more full-time staff and that in NSW it appears to be similar proportion.

26 He also gave evidence of the means by which the Australian Bureau of Statistics ("the ABS") preserves the privacy of persons it surveys in relation to information sought by data users other than data published by the ABS. First, the ABS will produce, for a fee, what Mr Cully called "ad hoc tables". The ABS will provide such tables provided they meet the criteria of "statistical reasonableness" and do not allow individuals to be identified.

27 The second method used by the ABS is a "data cube" or a "very large matrix of underlying survey data". This is a large electronic file from which users can produce their own tables. The cube is constructed by the ABS so as to prevent users producing tables which do not conform with ABS criteria regarding publishable tables.

28 The third method is "to allow licensed users to have access to confidentialised unit record files ("CURFs"). Users must sign a declaration stating that they are using the data for statistical purposes only and give an undertaking ‘that no attempt be made to identify particular persons or organisations.’" He said that the "confidentiality of the records is maintained by withholding or aggregating of some of the items, so that it is not possible to identify any one individual."

29 His conclusions on the privacy issue were:

As it presently stands, to allow the [PSA] access to agency-level reports published on the Premier’s Department website runs the risk that some individuals can be identified. But this is only because the Department may be in breach of its own Code of Practice in the way in which it has constructed these reports. As with the production of tables for the 2000 annual report, it would be possible for the agency-level reports to be reviewed to ensure that they are compliant with the Code. Moreover, it is possible to produce ad hoc reports from the dataset, which would include information at an agency level, that does not violate the confidentiality undertakings...
In terms of access to the agency-level reports available on the Premier’s Department website, these could be reviewed by the responsible officers in the department to establish, on a case-by-case basis, whether the results are consistent with the Privacy Code of Practice. This is likely to be the case with the larger agencies, which account for all but a small percentage of NSW government employment. So long as they meet these criteria there can be no objection to making these reports available to the [PSA].

30 In his opinion, the confidentiality of individuals could be protected, and the Privacy Code complied with, by the Premier’s Department either limiting its tables to agencies with at least 100 full-time staff, as is the practice in WA, or by adopting the ABS practice of providing ad hoc reports but "suppressing table cells where fewer than six people responded". Of the two options, he regarded the former as the more desirable in terms of public dissemination of the data (which he assumed would then be published on the publicly accessible website or in the annual report) as any interested party would then have access to the same information.

31 For the respondent evidence was given by Dr Laurie Young, Director of the Performance Measurement, Review and Reform Division of the Department. He gave evidence concerning the background to the Profile, the measures taken to secure the data from invasions of privacy and about the confidentiality concerns held by the Department in relation to these applications.

32 One of the principal concerns raised by Dr Young and also by Ms Grisard, whose evidence will be dealt with below, is "the continued reporting of Workplace Profile information is dependent on both staff and agency co-operation. Staff can choose to withhold data if they have no faith that privacy protocols will be honoured and agencies will not put the resources necessary to report and check data if they believe that those data will be used unfairly, or in ways they cannot influence."

33 Dr Young and Ms Grisard gave evidence to the effect that one of the current problems with providing access to agency-level data is that the data do not comply in all cases with the ABS protocol of providing data cells which contain six or more cases. While published reports do not contain cells with the data of five or fewer respondents, the unpublished material does contain such cells. Were such small collections of data to be made available, there is a risk that individual respondents might be identified. To further protect individuals, the published reports do not identify the agencies from which the data were collected.

34 As well as those already mentioned, Dr Young outlined the measures taken to protect the privacy of individual and to secure the database. First, the data are collected anonymously and each individual public sector employee is identified only by a code number known only the reporting agency. Second, individuals have the right to withhold their data from the collection. Third, Premier’s Department staff with access to the data sign a confidentiality agreement. Fourth, the data are stored on a dedicated server with its own network, which is protected by a firewall. This prevents anyone other than Profile staff working on specific computers accessing the data. Fifth, a person seeking to use the data on a dedicated computer is required to use a password. Sixth, the Profile computers are all located within a secured area at the Review and Reform Division. Seventh, any request for data from the Profile team is vetted by Dr Young himself to ensure that confidentiality undertakings are not breached. Eighth, agency-level data are posted on the Profile website but are only accessible to a nominee of the agency’s CEO. That agency representative may only access the data by using a password issued by Profile team. Finally, all data investigation and analysis is handled within the Profile team. Only that team may publish authorised analyses or reports.

35 Three main threats to confidentiality were identified by Dr Young. First, he considered that if agencies formed the view that data were being disclosed in breach of confidentiality agreements, the entire data collection may be jeopardised because significant numbers of employees may then withhold their data.

36 Second, agency-level data collections have not been designed for release to other agencies. He said that this can raise statistical difficulties and lead to misinterpretation of data.

37 Third, "the smaller the agency, the more likely it is that indicator data could identify individuals. In her oral evidence (given in camera) Ms Grisard gave an example of how a particular employee in a certain agency could be identified merely by reference to that person’s gender.

38 Ms Grisard’s written evidence largely concerned the efforts taken by the Profile team, through the development of a confidentiality regime and other means, to develop the integrity of the Profile. Much of her evidence was to similar effect as that given by Dr Young. Among other things, she gave evidence that undertakings had been given by Premier’s Department that no information would be released which identified individuals, and that techniques, such as those employed by the ABS, would be used when reports were prepared to ensure that individuals could not be identified by recipients of those reports. One such technique to be applied was the use of data cells based on no less than six respondents.

39 Ms Grisard also gave evidence that, during the development phase of the Profile, agencies were given a period of grace in which to eliminate or correct any systematic errors in their data to ensure that the data, if released to a wider audience, would not present a false or misleading picture to the prejudice of the agency concerned, the public sector generally (or, one extrapolates from that, the broad public interest).

40 She also gave evidence that the reason that agency-level data are restricted is because "it has not been edited to ensure that no individual employee can be identified from the data, i.e. it includes statistical representation of all employees, even when they are fewer in number than 6 (the minimum number considered by the ABS to protect individual privacy."

41 She said that "aggregation of this data would greatly reduce its value to agencies, especially the many small agencies in the sector (50 per cent of the 136 agencies in the sector had fewer than 200 full-time equivalent staff)." She said that larger agencies would also lose potentially useful information if the data were aggregated, where small numbers of staff fell into particular categories within the organisation.

42 Her evidence was that the purpose of providing agency-level data was "solely to provide each agency with analyses of its own data and comparisons with sector averages." If agency-level data were to be disclosed, she said that it would need "separate development at a higher level of aggregation, in line with principles of privacy protection."

43 Her concern, apart from the privacy and confidentiality issue, was that, if access to agency-level data (as currently formulated) were proposed, the Profile team would be required to undertake the massive job of notifying each of the 400,000 public sector employees, advising them that they could withhold their data, then of identifying in the data set each of the employees who sought to withdraw their consent, removing the relevant entries and, finally, recalculating the statistics on the basis of the new data set and loading the new set onto the website.

44 Ms Grisard was also asked to give evidence concerning the practicability of providing data from which confidential material had been excised. Her evidence was to the effect that it would be "considerable". It was certainly possible to undertake the necessary work. In relation to the year 2000 data collection she said that there were about 6000-7000 graphs to be assessed which, she said, would be "a lot of work". She went on to discuss the impact of conducting such a project on the Profile team:

We don’t have tremendous resources to run the Workforce Profile, as is probably apparent, and there’s a lot of work involved in just doing what we have to do in trying to get reports out and so forth. I think that would have a major impact on the timing of our next collection and so on because in fact you have to use the staff who were familiar with the data which are the very staff who have to run the collection, and I might add that we’re just about to run the fourth one right now. It’s not a good time.

45 Ms Grisard gave further evidence that the Profile team was developing computer software which could overcome the problem of data cells being too small to protect confidential data and personal privacy. She said that it was intended to produce agency-level reports from the 2001 data collection which would be in form which would not produce confidentiality difficulties and could be publicly distributed.

Relevant law

46 Section 25(1) of the Act provides that an agency may refuse access to a document on a number of grounds, including the fact that the document is an "exempt document". The onus of proof lies on the agency which seeks to rely on an exemption to show that the document in question is exempt. As Kirby P said in Commissioner of Police v District Court of NSW (Perrin’s Case) (1993) 31 NSWLR 606 at 625:

Prima facie, the document [the subject of an FOI application] must be disclosed. To withhold disclosure it is for the agency to make out the case for an exemption. Thus the question properly put is not why the information should be disclosed but why it should be exempted.

47 An exempt document is defined in s.6 to mean, among other things, a document referred to within Schedule 1.

48 Clause 6 of Schedule 1 states that a document is an exempt document "if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or dead.)" The term "personal affairs" cannot be exhaustively defined. In Perrin’s Case (at 625) Kirby P formulated a definition "In its [legislative] context, the words ‘personal affairs’ mean the composite collection of activities personal to the individual concerned." Information concerning personal affairs need not necessarily be secret or confidential to fall within the category.

49 Following Perrin’s Case, generally speaking a person’s name will not be regarded as personal information which would attract the protection of the exemption. It is the linkage of a name and other information about that individual which may do so. (See generally Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 43 (22 June 1999) and Perrin.)

50 The second issue to be considered in relation to disclosure of information relating to the personal affairs of a person is whether the disclosure would be unreasonable. In Gilling it was held that a number of matters may be relevant to that question, such as the views of the third parties (ie the persons concerning whom the information relates); the nature and extent of the prejudice to the third parties if the information is disclosed; and whether the disclosure would serve the public interest purposes of the FOI Act. In Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429, it was held that what was "unreasonable" was to be judged by public interest considerations, including the public interest that information concerning a person’s personal, business or professional affairs were excepted from the general right of public access to information held by government agencies.

51 Clause 13(a) of Schedule 1 states that a document is exempt "if it contains matter the disclosure of which would found an action for breach of confidence". Clause 13(b) makes a document exempt "if it contains matter the disclosure of which would disclose information obtained in confidence and [which] could reasonably be expected to prejudice the supply of such information to the Government or to an agency, and [which] would be contrary to the public interest."

52 In Re B and Brisbane North Regional Health Authority (1993) 1 QAR 279 it was held that the words “for an action of breach of confidence in the Queensland FOI Act should be taken to refer to a legal action brought in respect of an alleged obligation of confidence in which reliance was placed on one or more of the following causes of action: (i) a cause of action for breach of an obligation of confidence; (ii) a cause of action for breach of a contractual obligation of confidence; (iii) a cause of action for breach of a fiduciary duty of confidence and where account is taken of the recognised defences to an action for breach of confidence.

53 It was further held that the test of exemption was to be evaluated by reference to a hypothetical legal action in which there is a clearly identifiable plaintiff possessed of appropriate standing to bring a suit to enforce an obligation of confidence said to be owed to that plaintiff in respect of information held by the agency to which the relevant FOI application was made. If the hypothetical cause of action was an equitable action for breach of confidence, five matters had to be established: first, the information must be capable of being specifically identifiable as information which is secret rather than generally available; second, the subject matter of the obligation of confidence must not be trivial or useless or generally known; third, the information must have been communicated in circumstances such as to fix the recipient with an equitable obligation not to use the information in an unauthorised way; four, it must be established that the disclosure of the information would constitute an unauthorised disclosure; and, five, it must be established that the giver of the information would suffer a detriment, not necessarily pecuniary, such as loss of privacy or embarrassment.

54 In Corrs Pavey Whiting & Byrne v Collector of Customs (1987) 14 FCR 434, the majority held that the Federal equivalent of cl.13(a) conferred exempt status on "a document which contains confidential information received under circumstances importing an obligation of confidence, without regard to those considerations of public policy [such as "just cause" and "clean hands"] which courts have allowed an influence in determining whether to grant or withhold remedies for "breach of confidence" in exercise of equitable or common law jurisdiction." (See Jenkinson J at 438 and also Sweeney J at 435.)

55 Clause 16 declares that a document is exempt if it contains matter the disclosure of which would prejudice the conducting of tests, audits and examinations [cl.16(a)(i)]; prejudice the outcomes of such tests, etc [cl.16(a)(ii)]; adversely affect the management or assessment of staff [cl.16(a)(iii)]; adversely affect the performance of the agency in question [cl16(a)(iv)]; or adversely affect the conduct of industrial relations by an agency [cl.16(a)(v)] and, in any or each case, disclosure would be against the public interest. This category is, obviously, to do with the operations of agencies.

56 In Searle Australian Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111, a decision of the Federal Court on appeal from the Commonwealth Administrative Appeals Tribunal ("the AAT"), the Full Court approved a statement made in Re James and the Australian National University (1984) 2 AAR 327 at 340 that the expression, "the conduct of the operations of an agency" was to be extended to mean "the way in which an agency discharges or performs any of its functions." This is the analogous provision in the Commonwealth FOI Act. In my opinion, the same meaning ought be given to cl.16(a)(iv).

57 Searle is also relevant in these proceedings in relation to the question whether this Tribunal ought consider grounds other than those relied upon by the original decision-maker. In that case, the Full Court held that the AAT was not limited to considering the grounds of exemption relied upon by the original decision-maker because, as it said (at 113) "the function of the Tribunal is to hear matters de novo and to reach a view itself, untrammelled by the view taken by the primary decision-maker."

58 Section 25(4) of the Act prohibits an agency from refusing access to a document provided that it is not the subject of a Ministerial certificate and that "it is practicable to give access to a copy of the document from which the exempt matter has been deleted" and the applicant would wish to have access to such a copy.

Findings and Conclusions
Is the respondent limited to clause 13(b)?

59 The applicant submits that the respondent ought be limited to arguing its case under cl.13(b) of Schedule 1. This argument cannot be made out. This case is on all fours with Searle. The Tribunal may consider other grounds of exemption. The only limitation on the Tribunal in this regard is that, pursuant to the rules of natural justice, it must allow the parties a fair opportunity to argue the application of other grounds.

Confidentiality Exemption
(i) Clause 13(a) Would there be a breach of confidence action available?

60 The applicant submits that "while it may be inferred that employees expect that data such as their salary and leave entitlements have some degree of confidentiality attached to them, there is no evidence that access to agency data by the applicant would lead to the revelation of such confidential information to the applicant."

61 This argument is misconceived. The evidence from both Dr Young and Ms Grisard is that in a small number of cases agency-level data would enable the applicant to identify individual public sector employees because of a unique combination of factors. This problem might arise especially in relation to individuals in certain small agencies, but could occur where an individual worked in a section of a large agency. This is because the data are not necessarily aggregated into cells of six units at agency-level.

62 The Department undertook, in the Code and in the other information given to public sector employees, to keep that information confidential in the sense that it would not be used to identify individuals and would only be distributed in a form which did not allow the identification of individuals. In my view, the Code imposes an enforceable obligation of confidentiality upon the respondent.

63 While the vast majority of the Profile data could, on the evidence before me, be released in a form which would not breach any obligations of confidentiality, there can be little doubt that the release of the Profile data as a whole package or document, would entail a breach of confidence in certain cases and would therefore found an action for breach of confidence by those individuals.

(ii) Clause 13(b) Was the information obtained in circumstances of confidence?

64 The applicant argues that there is no evidence that the Profile data was obtained in circumstances of confidence nor that the data was provided by the agencies in question in circumstances of confidence.

65 I do not accept this argument. It is clear from the evidence given by Dr Young and Ms Grisard that strenuous efforts were taken to ensure that data relating to individuals was kept confidential. For example, names of individuals were not reported: they were given unique identifying numbers to protect their identities. That a complex Privacy Code, endorsed by the Privacy Commissioner, approved and developed by the Profile Team and endorsed by the committee which oversaw the establishment of the Profile, suggests in itself that it was the expectation of the team, the committee, the Privacy Commissioner, the government and the Department that all personal information obtained would be obtained on the basis that individual public sector employees would give that information in confidence and, indeed, that many would not do so if the information were not kept confidential.

66 It is reasonable to infer that the promulgation of the Code, in concert with the collection of data and the dissemination of information concerning the right to withhold data if an employee chose to do so, created an expectation on the part of public sector employees that their personal data, obtained for statistical purposes only, would be kept confidential by the Premier’s Department and, indeed, their own agencies. While there is no direct evidence relating to the actual collection of data from individual officers and employees, from the circumstances outlined above it is relatively easy to infer that the original data were obtained in circumstances of confidence.

67 Evidence was given by Ms Grisard and Dr Young that, in their opinions, the data collection was likely to be jeopardised with dire results if public sector employees became aware that the Profile team was, contrary to its undertakings, granting access to data which may enable them (or some of them) to be identified individually. While I suspect that there was a degree of hyperbole involved in the predictions of doom, with which they answered suggestions put to them that the information would be in safe hands if the PSA gave undertakings pursuant to the Privacy Code to keep the data confidential, I am also of the opinion that public sector employees may take the view that access being granted to the PSA is the thin end of the wedge and may lose confidence in the security arrangements made under the Code for their data.

68 While the evidence on this aspect of the case is to a large degree speculative, it is reasonable to assume that the rate of withholding data would increase somewhat. It is impossible to quantify the potential drop-out rate, but if it were of any significance it would prejudice the future supply of information to the Profile. As I understand it, while in some instances a drop-out rate of some size is likely to be statistically insignificant, due to the fact that a very large sample would nonetheless remain, in other instances, such as in small agencies, even a minor variation in the number of respondents may significantly distort the statistical analysis. It is impossible to predict where the impact of such a decrease in participation would fall, but I am satisfied that there is a reasonable expectation that the future supply of Profile data would be adversely affected. The second elemant of cl. 13(b) is therefore satisfied.

69 I am also satisfied it would be contrary to the public interest for the exempt material to be disclosed. While I think that there may be an untoward degree of pessimism expressed by Dr Young and Ms Grisard, I accept that there would be some loss of confidence by public sector employees in the integrity of the Profile data collection system insofar as the confidentiality of their personal data is concerned. It would be against the public interest, in my view, to allow those public sector employees to suffer that loss of confidence. It would also be against the public interest to risk jeopardising in any material way a statistical project of such massive proportions.

70 For these reasons I think that the claim for exemption is also made out under this head. Having dealt with the confidentiality arguments, and having found that the data are exempt documents under both cl.13(a) and (b) it seems to me to unnecessary and, indeed, would be otiose to consider the other heads of exemption raised by the respondent.

Section 25(4)

71 The real questions, in my opinion, are not whether the data are confidential but whether, pursuant to s.25(4) "it is practicable to give access to a copy of the document from which the exempt matter has been deleted" and that the applicant would wish to have the document in an amended form. Given that the vast majority of the data is aggregated or could be aggregated into a form which would comply with ABS guidelines for the protection of individual privacy, there appears to be little risk of statistical misinterpretation or misconstruction if the majority of the data are released. The Profile data would not be destroyed or rendered useless to the applicant if supplied with the data which would or may identify individuals deleted. The applicant, I infer from the submission made that small agency data might be eliminated from the data provided to the applicant if the applicant were otherwise successful, would be content to accept an amended form of the Profile and the agency-level data.

72 The issue must therefore reduce to the practicalities of supplying the data. There are 136 agencies represented within the Profile. The data were collected from over 400,000 public sector employees. Is it reasonably practicable to comb through all the agency-level data to eliminate all the problematic data and to provide a “clean” copy of the Profile to the applicant? Or is a more practical solution to provide the applicant with the relevant passwords and require a confidentiality undertaking from it?

73 On the uncontradicted evidence of Ms Grisard, while it would be theoretically possible to provide a "“clean" hard copy of the agency-level data, the Profile team’s resources would be unreasonably stretched to provide that data in an acceptable form at this stage. Ms Grisard raised the future prospect of being able to provide agency-level reports in a form which would not attract the confidentiality and other exemption provisions of the Schedule, but that will occur only from the time of the publication of the 2001 data collection reports.

74 I do not consider the notion that the applicant be provided with internet passwords and give a confidentiality undertaking would satisfy the requirements of s.25(4). The suggestion, which comes from the applicant, in effect requires the applicant to vet the information on behalf of the respondent. The respondent is the guardian of the information. It, having discharged its burden of proving that the documents are exempt, now has also discharged its burden of proving that the difficulties of providing the data make it impractible for it to comply with the request even for an amended "clean" copy of the data. The legislature has placed the burden of complying with FOI requests on public agencies because they are the custodians of their own records. It would be against the letter and intent of the legislation, in my view, if agencies handed over documents from which confidential material over which a claim for exemption is made has not been excised.

75 Neither party raised a further possible approach which might be practicable, and it is strictly outside the scope of this review for that reason. Nonetheless, it seems to me to in the interests of both parties to raise it here. While Ms Grisard’s evidence was that the work involved in undertaking the exercise of vetting 6000-7000 graphs would, in effect, overwhelm the team, she was not asked about the impact on the team of providing information in a "clean" hard copy form on a piecemeal basis. I infer from what she said that it may be practicable to undertake a smaller-scale delivery of agency-level data if an appropriate application was made. It may be very difficult to scan and cull the offending data from 136 agencies, but it may meet some of the applicant’s needs if it were to seek the agency-level data from a select group of agencies. For example, it may be possible to provide the agency-level data on emergency services personnel without causing undue hardship or inconvenience to the Profile team and thereby meet part of the applicant’s requirement for research data.

Override discretion

76 In Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSW ADT 93 the Tribunal held that it had power pursuant to s 63 of the Tribunal Act to review the decision of an agency to refuse to grant access to an exempt document. That decision was followed in Rittau v Commissioner of Police [2000] NSWADT 186, Watkins v Chief Executive, Roads and Traffic Authority [2000] NSWADT 11 and other cases. It was submitted for the Premier that the Tribunal does not enjoy the so-called "public interest" override. The Premier maintains that Mangoplah v Great Southern Energy was wrongly decided.

77 In my view this is not the case to decide whether a departure from the Mangoplah line of authority is warranted, as I am not persuaded that any special or exceptional circumstances have been identified that warrant the exercise of discretion in favour of disclosure in respect of any of the documents sought.

Conclusions

78 The respondent’s decisions in respect of both applications is affirmed.