Public Service Association of NSW v Insurance and Care NSW

[2020] NSWCATAD 228

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Public Service Association of NSW v Insurance and Care NSW [2020] NSWCATAD 228

Hearing dates:

25 June 2020

Date of orders:

12 October 2020

Decision date:

12 October 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Lonsdale, Senior Member

Decision:

(1) The name of the respondent in these proceedings is amended to Insurance and Care NSW.

(2) The decision of the respondent is set aside.

(3) The report entitled ‘Forensic Claim File Review – icare’ dated April 2018 (excluding the information identified in the Schedule to these reasons) is to be disclosed to the applicant within 28 days of the publication of these reasons.

Catchwords:

ADMINISTRATIVE LAW – public access to government information – Whether prejudice to the supply of confidential information – Whether prejudice to the effective exercise of an agency’s functions – Whether disclosure would reveal a deliberation, consultation, opinion or advice – Whether prejudice an investigation – Personal information – balancing public interest considerations

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Government Information (Public Access) Act 2009 (NSW)

State Insurance and Care Governance Act 2015 (NSW)

Interpretation Act 1987 (NSW)

Administrative Review Act 1997

Industrial Relations Act 1996 (NSW)

Cases Cited:

Anderson v University of Sydney [2018] NSWCATAD

Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5

Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19

Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46

Hurst v Wagga Wagga City Council [2011] NSWADT 307

Luxford v Department of Education and Communities [2016] NSWCATAD 118

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

Re Waterford and Department of Treasury No 2 (1984) 5 ALD 588

Shoebridge v Commissioner of Police, NSW Police Force (No. 3) [2018] NSWCATAD 110

Spice v Mosman Council [2016] NSWCATAD 215

Transport for NSW v Searle [2018] NSWCATAP 93

Turner v Department of Planning and Environment [2019] NSWCATAD 166

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Public Service Association NSW (Applicant)
Insurance and Care NSW (Respondent)

Representation:

Counsel:
P Lowson (Applicant)
A Edwards (Respondent)

Solicitors:

File Number(s):

2020/00048942

Publication restriction:

Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) and s 107 of the Government Information (Public Access) Act 2009 (NSW), the evidence, submissions and record of that part of the part of the proceeding conducted in private on 25 June 2020 is not to be released to either the applicant or the public.

Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013, publication of those paragraphs of these reasons identified as [NOT FOR PUBLICATION] and the Schedule is prohibited, and that material is not to be released to the applicant or the public.

REASONS FOR DECISION

Background

1. This is an application under s 100 of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) for administrative review of a decision of the respondent dated 16 December 2019 (Respondent’s Decision). For the reasons set out below, the Respondent’s Decision is set aside and the information (excluding the confidential information identified in the Schedule) is to be disclosed to the applicant.

The parties

2. The respondent is a NSW Government agency constituted by s 4 of the State Insurance and Care Governance Act 2015 (NSW) (SICG Act). At the beginning of the hearing, the respondent identified that the correct name of the respondent is ‘Insurance and Care NSW’ as described in s 4 of the SICG Act. I ordered that the respondent’s name be amended, accordingly, pursuant to s 53 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).

3. Section 10(1) of the SICG Act provides that the respondent’s functions include:

“…

(b)   to provide services (including staff and facilities) … in relation to any insurance or compensation scheme administered or provided by the relevant authority or that other person or body,

(c)   to enter into agreements or arrangements with any person or body for the purposes of providing services of any kind or for the purposes of exercising the functions of the Nominal Insurer,

(d)   to monitor the performance of the insurance or compensation schemes in respect of which it provides service …”

4. Section 10(2)(d) of the SICG Act provides that the NSW Self Insurance Corporation (SiCorp) is a “relevant authority”.

5. SiCorp entered into a claims management agreement (Claims Agreement) with QBE Insurance (Australia) Limited (QBE) under which QBE provided claims management services for workers’ compensation insurance matters. The respondent assisted SiCorp with certain tasks arising from the Claims Agreement. In accordance with this role, the respondent engaged KPMG Forensic Pty Ltd (KPMG) to carry out a review (the Review) of the way in which certain workers’ compensation claims were managed by QBE under the Claims Agreement.

6. The applicant is a state industrial organisation registered under Pt 3 of Ch 5 of the Industrial Relations Act 1996. Some of the workers’ compensation claims that were the subject of the Review were claims made by members of the applicant (Workers’ Compensation Claimants).

The access application

7. The applicant made an access application under the GIPA Act on 9 October 2019 (Access Application) seeking:

“All prior versions of the KPMG Forensic Pty Ltd … under partners Fulkner N, and Paino M, Forensic Claim File Review, All versions of the report issued to [the respondent] prior to July 2018 detailing how QBE, Corrective Services managed these claims at the [Metropolitan Remand and Reception Centre] at Silverwater.”

The information sought

8. The applicant has received from the respondent a copy of one report produced by the Review, being a report dated July 2018 (July Report). At the beginning of the hearing:

1. the parties outlined that there were three other reports – one dated April 2018 (April Report) and two dated June 2018 (June Reports) – arising from the Review that the parties accepted would be “prior versions” for the purposes of the Access Application.

2. Counsel for the respondent indicated that, while the July Report and the April Report contain, to a significant degree, the same information, parts of the April Report were removed and do not appear in the July Report.

3. The applicant indicated (consistent with the written submissions it filed) that its “focus” was the disclosure of the April Report.

9. Accordingly, the information that is in dispute for the purposes of this decision is the information that appears in the April Report but does not appear in the July Report (Withheld Information). The respondent’s position is that there is an overriding public interest against disclosure of that information.

Scope of review by the Tribunal

10. Section 80 of the GIPA Act sets out the reviewable decisions that may be the subject of review by the Tribunal. The reviewable decision in this matter is the refusal to disclose the Withheld Information to the applicant (see s. s 80(d) of the GIPA Act).

11. In reviewing a decision, s 63 of the Administrative Review Act 1997 provides that the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

Confidentiality of part of hearing

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

13. I made an order pursuant to s 64(1) of the NCAT Act regarding the publication of evidence, submissions and that part of the proceeding that was held in private. Pursuant to s 49(2) of the NCAT Act, I conducted part of the proceedings in the absence of the applicant to consider an unredacted copy of the April Report, which had been provided to the Tribunal on a confidential basis on the day of the hearing.

14. As the respondent had not filed a ‘marked-up’ version of the April Report or the July Report identifying the Withheld Information, the respondent identified the Withheld Information with reference to a copy of the April Report that had been filed during the confidential part of the hearing.

Material before the Tribunal

15. The applicant filed and served written submissions and materials before the hearing. The applicant relied on the affidavit dated 18 June 2020 of Mr Deguara, Manager Industrial Support Team for the applicant (Exhibit A1) and its annexure.

16. A further affidavit dated 23 June 2018 of Mr Deguara and its annexure was filed two days before hearing. The annexure is a copy of a determination by the State Insurance Regulatory Authority (SIRA) in respect of a separate access application under the GIPA Act by the applicant for access to the April Report. The annexure shows that SIRA determined that the April Report should be released to the applicant. However before releasing the April Report, SIRA wished to consult with certain third parties. The respondent indicated at the hearing that the respondent is such a third party and that it anticipated objecting to the release of the information and taking other action as it considers necessary to prevent the release of the April Report. While the applicant and the respondent may be engaged in a separate process with SIRA under the GIPA Act in respect of the April Report, the Tribunal is required to make its decision in respect of the application for review in this proceeding.

17. The respondent filed and served written submissions and materials before the hearing. The respondent relied on the Statement dated 28 May 2020 of Mr Brad Cole, Account Manager for the respondent (Exhibit R1). Mr Cole’s statement refers to three confidential annexure (being the June Reports and the April Report). However, the June Reports were not provided to the Tribunal. The respondent also relied on the unredacted copy of the April Report filed during the hearing (Exhibit R2).

Evidence of Mr Cole

18. Mr Cole’s evidence is set out in the affidavit filed prior to the hearing. Counsel for the applicant raised a number of objections to Mr Cole’s evidence, including in respect of Mr Cole’s opinion as to the nature of the audit conducted by KPMG and statements that KPMG carried out the review as a “delegate” under the Claims Agreement without putting the Claims Agreement (or relevant parts) into evidence. After hearing from the parties, I admitted Mr Cole’s evidence, subject to weight because he holds the position of Account Manager with the respondent with stated responsibilities for managing contracts such as the Claims Agreement and given that evidence in GIPA Act matters is routinely given by an employee or officer of the relevant agency. Where Mr Cole has expressed an opinion, it is necessary to consider that opinion in the context of relevant material, such as the documentary evidence.

19. After a brief adjournment, the applicant advised that Mr Cole was not required for cross examination.

20. Mr Cole’s affidavit states (and I paraphrase and summarise):

1. SiCorp entered into the Claims Agreement with QBE for the management of workers’ compensation claims. On or around 23 November 2013, a senior officer of the respondent determined that the Review should be carried out. KPMG was appointed to carry out the Review.

2. The Claims Agreement contains a provision that permits the respondent or its “delegate” to carry out an “audit” of QBE’s claims management. The term “delegate” is defined by the Claims Agreement to be “any officer or person authorised by SiCorp to undertake duties in connection with the arrangement and/or operation of [the Claims Agreement] but does not include the Claims Manager and its Personnel.”

3. KPMG provided updates to the respondent from time to time and “a number of improvements and refinements” were made to the “initial draft” provided by KPMG including:

“a.   removal of non-essential personal identifying information;

b.   refinements to promote clarity and objectivity in the presentation of findings;

c.   clarification of scope/exclusions; and

d.   removal of unnecessary duplication.”

4. Despite the improvements and refinements, “the substance of KPMG’s findings was consistent between the draft and final versions of KPMG’s report”.

5. The “resolution of claims … depends upon claims managers being able to engage lawyers and medical professionals to advise and record their consideration of that advice … [and it] is that information that, in this case QBE was contractually obligated to provide to KPMG …”. The review by KPMG “was not a ‘freeform’ independent appointment but an exercise in assisting [the respondent to] form a view as to what steps, if any, were appropriate in accordance with the [Claims Agreement] and its functions”.

6. Mr Cole’s view is that the disclosure of the April Report (and other “prior versions” of the report by KPMG) would:

1. Undermine the “[respondent’s] employees’ and external experts’ confidence in engaging in candid exchanges of draft reports and preliminary views if … such early and incomplete views could be disclosed to the world at large with no restrictions or conditions on use or publication”.

2. Undermine the respondent’s relationship with QBE (as claims manager) if “privileged and confidential” information that QBE was obliged to provide under the Claims Agreement could be disclosed.

3. Result in the disclosure of personal information.

4. Result in the disclosure of information provided to the respondent in confidence.

7. Mr Cole’s view is that the above consequences could reasonably be expected to undermine the integrity and effectiveness of the respondent’s ability to carry out its functions because:

1. The respondent and experts that it engages would be less inclined to exchange draft views which “may lead to audit outcomes that do not ultimately serve to further [the respondent’s] performance of its functions”.

2. Experts such as KPMG may be less inclined to accept appointments that involve the exchange and discussion of incomplete reports and views.

3. Claims managers such as QBE may be “unwilling to record in writing otherwise confidential and privileged opinions and information relating to claims decisions”.

Submissions of the applicant

21. The applicant’s oral and written submissions included the following (and I paraphrase and summarise):

1. The review carried out by KPMG relates to serious concerns arising from alleged claims management practices and the manner in which amendments to the April Report were made. These are matters of public interest. The Tribunal has recognised the public interest in enhancing transparency in the investigation of complaints (see Applicants v Commissioner of Police (NSW) [2015] NSWCATAD 22 at [118 – 119].

2. In respect of the claims based on cl 1(e) of the Table – The annexure to Mr Deguara’s affidavit includes emails from an employee of KPMG to third party that indicate the April Report was intended by KPMG to be the final report, not a draft report. Even if it was intended that that April Report was a draft, this does not, of itself, justify the respondent’s decision not to disclose the Withheld Information. In Luxford v Department of Education and Communities [2016] NSWCATAD 118 at [104] (Luxford) the Tribunal sets out a description of the meaning of “deliberative process”. The amendments made to the April Report should not be seen as evidence of such a deliberative process. Further, there is no evidence that experts or consultants would not carry out similar review work in future because the Withheld Information is disclosed.

3. In respect of the claims based on cl 1(f) of the Table – While the respondent refers to Turner v Department of Planning and Environment [2019] NSWCATAD 166 (Turner) the applicant submits that the factual circumstances of this matter differ from those in that decision. This is because KPMG carried out a review of compensation files – it was not engaged as a ‘qualified expert’ in the field of workers’ compensation. Investigations of the kind carried out by KPMG are intended to uncover inefficient or inappropriate practices and is, therefore, not a basis for refusing to disclose information under cl 1(f) of the Table. Further, it is incongruous that the prejudice identified by the respondent for the purposes of cl 1(f) of the Table is only raised in respect of the Withheld Information and not the information already disclosed to the applicant in the July Report.

4. In respect of the claims based on cl 1(h) of the Table – The applicant is aware of the purpose and conduct of the audit carried out by KPMG as it has the July Report. There is a public interest in favour of disclosure in understanding the nature of the amendments made to the April Report.

5. In respect of the claims based on cl 4(d) of the Table – There is no evidence before the Tribunal that the respondent has consulted with third parties.

6. In respect of the claims based on cll 1(g) and 3(a) of the Table – The relevant personal information (names of employees of QBE and the respondent) have already been revealed in the July Report. There is no issue of confidentiality under either clause of the Table.

Submissions of the respondent

22. The respondent’s oral and written submissions included the following (and I paraphrase and summarise):

1. The relevant public interest considerations are cll 1(e), (f), (g) and (h), cl 3(a) and cl 4(d) of the Table.

2. KPMG was appointed as the respondent’s delegate under the Claims Agreement to carry out the Review (independently from QBE) in respect of concerns that were raised about certain claims management practices. The appointment was to assist the respondent carry out its functions and as part of “an internal deliberative process of [the respondent]”.

3. In respect of cl 1(e) of the Table – The deliberative process was undertaken with the assistance of KPMG “who provided expert forensic services that [the respondent] was not … capable of providing in-house”. While the Tribunal may give less weight to a claimed prejudice in circumstances where the relevant process has been concluded, consideration must be given to future deliberative processes (including experts or consultants such as KPMG being inhibited in providing expertise in a consultative manner as well as staff of the respondent being inhibited in providing frank or honest views in response) if such information is disclosed. The respondent referred the Tribunal to Spice v Mosman Council [2016] NSWCATAD 215 at [17] which sets out a description of deliberative processes and submits that the July Report (as the final report) was the ultimate expression of the respondent’s deliberative process.

4. In respect of cl 1(f) of the Table – The Withheld Information relates to serious allegations about officers of the respondent, discussions with legal representatives and findings by KPMG. If disclosed, it is reasonable to expect that KPMG would be disinclined to perform further work as it may cause reputational damage and subject it to criticism. The SICG Act sets out the respondent’s functions and include monitoring the performance of claims managers such as QBE. In order to perform its functions, the respondent needs to ensure its staff and experts can freely participate in the performance monitoring activities. External experts may be dissuaded from participating if the early iterations of their work are publicly disclosed (see Turner at [56]). Further, disclosure of the Withheld Information could reasonably be expected to prejudice the claims resolution process by affecting QBE’s ability to engage with lawyers and record consideration of the advice provided.

1. In respect of cll 1(g) and 3(a) of the Table – Whether information is confidential may be inferred from all of the circumstances (see Camilleri v Commissioner of Police, NSW Police Force [2012] NSWCATAD 5 at [34]). The Withheld Information contains information provided to KPMG on a confidential basis, including the claimants’ medical details and records relating to their injuries, investigation reports and legal advice. While the claimants are not named, the Withheld Information includes the names of case managers, employees of the respondent and employees of certain government departments, medical professionals and others, which is personal information and was provided to both QBE and KPMG on a confidential basis. While the personal information (to the extent it involves individuals) could be redacted, disclosure could still reveal the personal information given the surrounding information and context.

2. In respect of cl 4(d) of the Table – The respondent consulted with third parties that it considered may reasonably be expected to be aggrieved by the disclosure of the Withheld Information and:

1. KPMG objected on the basis that disclosure of draft reports may inaccurately be referred to as setting out KPMG’s findings, which may lead to criticism of KPMG and damage to its interests. The risk of such misrepresentation is materially different to whether information may be misunderstood for the purposes of s 15(d) of the GIPA Act.

2. QBE considered that the Withheld Information contains untested and incomplete information in respect of which QBE was not afforded procedural fairness.

3. The Secretary, Department of Communities and Justice (Department of Communities and Justice) considered that disclosure of the Withheld Information contains allegations about employees that is capable of affecting their professional reputations (see Bannister v Department of Finance, Services and Innovation [2018] NSWCATAD 33 at [90]).

Consideration

The GIPA Act

23. Section 5 of the GIPA Act provides a presumption in favour of disclosure of the information unless there is an overriding public interest against disclosure. Section 105 of the GIPA Act provides that the onus is on the agency to justify its decision.

24. Section 12 of the GIPA Act provides:

(1)   There is a general public interest in favour of the disclosure of government information.

(2)   Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.

Note—

The following are examples of public interest considerations in favour of disclosure of information—

(a)   Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.

(b)   Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.

(c)   Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.

(d)   The information is personal information of the person to whom it is to be disclosed.

(e)   Disclosure of 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.

25. Section 13 of the GIPA Act provides that there will only be an overriding public interest against disclosure if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. Section 14 of the GIPA Act contains a table (Table) which sets out the only public interest considerations against disclosure that can be taken into account.

26. The respondent relies on clauses 1(e), 1(f), 1(g), 1(h), 3(a) and 4(d) of the Table. These clauses, relevantly, provide that there is a “public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally)”:

“1   Responsible and effective government

…

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

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

(g)   found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence,

(h)   prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).

…

4.   Business interests of agencies and other persons

…

(d)   prejudice any person’s legitimate business, commercial, professional or financial interests,

…”

27. Clause 3(a) of the Table contains substantially the same test in relation to personal information being revealed but does not include the reference to “whether in a particular case or generally”.

28. As cll 1, 3 and 4 of the Table share certain following common elements, it is convenient to first set out these common elements and set out the approach of the Tribunal before the turning to the relevant considerations.

29. The principles to be applied to the test for whether disclosure of information “could reasonably be expected to” have an effect identified in the Table were summarised in Transport for NSW v Searle [2018] NSWCATAP 93 at [68] (Searle) in the following terms:

…

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

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

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

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

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

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

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

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

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

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

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

Approach of the Tribunal

31. In Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 the Appeal Panel stated at [26] that the Tribunal must first assess the effect of the claimed public interest consideration in the Table at a “broader operational level”, and at [37] that “the section 14 enquiry is directed to the administrative structure and context, and its conditions, to which the document or information belonged”. Subject to this assessment, the Tribunal is to carry out the balancing exercise provided for in s 13 of the GIPA Act. The Tribunal stated in Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [70] that the balancing of the competing interests “is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation”.

No conditions on disclosure

32. Disclosure under the GIPA Act is considered to be disclosure to the world at large as an agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application (see s 73(1) of the GIPA Act).

Personal factors of the application

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

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

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

(c)   any other factors particular to the applicant.

34. Section 55(2) of the GIPA Act provides that the personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. Section 55(3) provides that the personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency’s consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2–5 (but not clause 1, 6 or 7) of the Table.

35. The following sets out information relevant to the applicant’s relationships with other people and its motives for making the application in this proceeding.

36. Mr Deguara’s affidavit states that the applicant operates in accordance with the “PSA Rules” that are required under s 234 of the Industrial Relations Act 1996 (NSW), which provide for the establishment of “Branches”. The Branches include the Prison Officers Vocational Branch which covers the Metropolitan Remand and Reception Centre at Silverwater. The access application seeks information relevant to workers’ compensation claims made by the Workers’ Compensation Claimants. The Workers’ Compensation Claimants are members of the applicant. Mr Deguara also states that the applicant has provided support to the Workers’ Compensation Claimants throughout a range of legal and other processes arising from their workers’ compensation claims. Based on that evidence, I find that the applicant’s role of representing the interests of, and supporting, its members is a personal factor of the application.

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

37. The written and oral submissions of the parties raised the manner in which KPMG was appointed as relevant to consideration of cl 1(e) of the Table. Mr Cole’s evidence is that KPMG was appointed “as [the respondent’s] delegate”. The definition of the term “delegate” to which Mr Cole refers to in his statement states that a delegate is a person appointed by SiCorp not the respondent. Neither the Claims Agreement nor any instrument of delegation were put in evidence by the respondent. A section entitled “Scope” in the July Report identifies that KPMG was requested by the respondent to “undertake an independent file review” of the relevant claims but makes no reference to KPMG being engaged as a “delegate”. The evidence available to the Tribunal is insufficient to form a concluded position on the manner of KPMG’s appointment. Regardless, in my view, nothing of substance turns on the nature of the appointment of KPMG for the purposes of considering cl 1(e) of the Table. The definition of “delegate” is contractual in nature and has been drafted to, in essence, mean someone appointed to undertake duties under the Claims Agreement (as opposed, for example, to delegation a described in the Interpretation Act 1987 (NSW), which provides that a “delegated function that is duly exercised by a delegate shall be taken to have been exercised by the delegator” (see s 49(6) of the Interpretation Act 1987 (NSW)). Whether appointed as a delegate, expert, consultant or on some other basis, the issue is whether the disclosure of the Withheld Information could reasonably be expected to have the effect described in cl 1(e) of the Table.

38. The written and oral submissions of the parties (and relevant evidence) also raise an issue as to whether the April Report was provided as a draft report to the respondent. This issue has some relevance to cl 1(e) of the Table in so far as it goes to whether the April Report was part of a deliberative process. The applicant points to two emails dated 14 and 19 April 2018 from an employee of KPMG that are annexed to the affidavit of Mr Deguara and which indicate that KPMG had issued the “final” report to the respondent. There is no information or evidence as to what role that KPMG employee performed in respect of the April Report. Conversely, Mr Cole’s evidence is that the April Report was a draft report only and an iterative process was envisaged between KPMG and the respondent. In terms of the documentary evidence, it is apparent from the July Report that KPMG was willing to make changes to the form and content of the report as it appeared in the April Report. Based on the evidence and material before the Tribunal, I find that the April Report was issued as a draft.

39. The respondent’s written submissions refer the Tribunal to Spice v Mosman Council [2016] NSWCATAD 215 at [17] which (citing Re Waterford and Department of Treasury No 2 (1984) 5 ALD 588 at [58]) sets out a description of deliberative processes as being an agency’s “thinking processes – the processes of reflection, for example, on the wisdom an expediency of a particular decision or course of action”. In my view, the April Report contains advice and, relevantly, a number of recommendations from KPMG, which propose a particular course of action. As set out above, I find that the April Report was issued in draft to the respondent for the purpose of considering the advice and recommendations – some of which were rejected after consideration by the respondent – and, to this extent, is a deliberative process for the purposes of cl 1(e) of the Table.

40. Clause 1(e) of the Table requires that the prejudice to the deliberative process as described in cl 1(e) could reasonably be expected from the disclosure of the Withheld Information.

41. As outlined above, the respondent submits that both experts such as KPMG and employees of the respondent would be inhibited in providing the necessary input if the Withheld Information is disclosed. The respondent submits that both these outcomes would prejudice the respondent’s operations. In his statement, Mr Cole expresses similar views.

42. Based on the information available to me, I am not satisfied that the disclosure of the Withheld Information could reasonably be expected to prejudice the relevant deliberative processes of the respondent.

43. While the respondent has referred the Tribunal to Luxford, other than Mr Cole’s view, it has not provided any evidence as to why KPMG may refuse to participate in future engagements on the basis that the Withheld Information is disclosed. It is reasonable to expect that an organisation like KPMG would understand that legislation such as the GIPA Act may result in work produced for government clients being disclosed. In fact, this what occurred with the disclosure of the July Report.

44. Further, in considering the Withheld Information:

1. To the extent it contains recommendations from KPMG as Mr Cole’s statement indicates, KPMG has identified included a remark on its recommendations in section 1.2.3 of the July Report.

2. To the extent that it contains any information, evidence or documents provided to KPMG for the Review, that information is, necessary given the task carried out by KPMG, a review of information, evidence and documentation produced by a third party and made available to KPMG.

45. There is also no evidence, other than Mr Cole’s view, as to why an employee of the respondent would not, in future, provide frank or honest opinions in response to a draft report such as the April Report. On the information available to me, I do not consider there to be any reasonable basis on which to conclude employees would refrain from giving frank or honest opinions to their employer in respect of a future task assigned to them because of the disclosure of the Withheld Information.

46. Further, no relevant evidence has been provided by the respondent as to why it is the disclosure of the Withheld Information that gives rise to the prejudice claimed. Based on the information before me, I do not see how the prejudice claimed by the respondent (which relates to broad operational functions such as the future engagement of experts or consultants and the future behaviours of employees) does not also arise in respect of the information disclosed in the July Report, which arose from the same deliberative process and which has been disclosed to the applicant.

47. For the reasons given above, I do not consider that disclosure of the Withheld Information could reasonably be expected to have the effect described in clause 1(e) of the Table.

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

48. As set out above, s 10(1) of the SICG Act sets out the respondent’s functions and include a role in monitoring the performance of insurance schemes of the kind in respect of which QBE provided claims management services under the Claims Agreement. I accept the evidence of Mr Cole that the respondent engaged KPMG to carry out the Review in furtherance of this function.

49. The respondent submits that it is necessary to engage experts to assist it in the effective exercise of its functions and that service providers such as KPMG may be dissuaded from carrying out this work if “early iterations of a work product” are disclosed. Mr Cole expresses the view that disclosure of the Withheld Information could reasonably be expected to “undermine … external experts’ confidence in engaging in candid exchanges of draft reports and preliminary views”.

48. The respondent also submits that the Withheld Information contains very serious allegations relating to Corrective Services NSW (being the agency that employed the Workers’ Compensation Claimants) and, if disclosed could expose KPMG or other experts engaged by the respondent to criticism or reputational damage. The respondent submits that such experts or consultants would be less inclined to carry out further work and this would prejudice the respondent’s effective exercise of its functions.

49. For the same reasons as identified above in respect of cl 1(e), I do not accept that the prejudice set out in cl 1(f) arises.

50. In addition, and in respect of the respondent’s position that the sensitivity of the information being reviewed by KPMG could expose KPMG to criticism or reputational damage, this position is inconsistent with the documentary evidence available to me. The July report sets out the scope, allegations, evidence and analysis of KPMG in respect of the allegations relating to QBE (and Corrective Services NSW). In this context and from my comparison of the Withheld Information to the information in the July Report, I do not consider that the disclosure of the Withheld Information could reasonably be expected to have the effect of this additional prejudice claimed by the respondent.

51. Based on the information before me, I do not consider that disclosure of the Withheld Information could reasonably be expected to have the effect described in clause 1(f) of the Table.

Clause 1(h) - prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results

54. In its written submissions, the respondent submits that its arguments in respect of cl 1(f) apply to cl 1(h) of the Table.

55. In this matter, the relevant “audit, test, investigation or review” has concluded and is said to take the form of the July Report. As described above by the respondent in the open part of the hearing, the information in the April Report and the July Report is the same to a significant degree. The applicant already has a copy of the July Report. To this extent, the purpose and almost all of the conduct and results contained in the April Report have already been “revealed” for the purposes of cl 1(h). While some of the Withheld Information has not been disclosed in the April Report, from my review and based on the evidence before me, the disclosure of that information could not reasonably be expected to have the effect set out in cl 1(h), particularly if the information that may reveal personal information is redacted, as I have set out below at [66] to [74].

56. Based on the information before me, I do not consider that disclosure of the Withheld Information could reasonably be expected to have the effect described in clause 1(h) of the Table.

Clause 1(g) - found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence

57. The respondent’s written submissions state that the “considerations relevant to cll 1(g) and 3[(a)] … overlap in the present case, and are dealt with together for that reason”. I have separated my consideration of clauses 1(g) and 3(a) for clarity in this decision.

58. The respondent submits that the Withheld Information contains confidential information and submits that the nature of the confidentiality may be inferred from all the circumstances. In giving his view that the disclosure of the Withheld Information could reasonably be expected to undermine the respondent’s relationship with QBE, Mr Cole refers to “confidential and privileged information [QBE] was obliged to provide under the [Claims Agreement]”.

59. The Claims Agreement was not put in evidence and there is no evidence, other than Mr Cole’s statement, as to the nature of QBE’s obligations of confidentiality.

60. While the Withheld Information contains information supplied by QBE to KPMG, parts of that information is the information of third parties (including Corrective Services NSW) and, as outlined above, the respondent’s submissions in respect of that information is that the Department of Communities and Justice raised issues relating to the professional reputations of their employees, but not about confidentiality).

61. While the July Report is clearly marked “Private and Confidential”, the labelling and treatment of information as confidential is not conclusive (see McKinnon v Blacktown City Council [2012] NSWDAT 44 at [55]). The Appeal Panel in Commissioner of Police NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [34] held that the enquiry “should focus on the point of receipt, and the administrative standards and community understandings which surrounded it”.

62. Here, the July Report has already been disclosed to the respondent and the April Report contains, in the respondent’s submission, to a significant degree, the same information. Based on the evidence before me and in circumstances where a significant amount of information has already been disclosed to the applicant, I am not persuaded that the Withheld Information is confidential, particularly when compared to the information already disclosed to the applicant by the release of the July Report.

63. While the respondent has raised, in submissions and the evidence of Mr Cole, the issue of ‘privileged’ information (which I take to mean legal professional privilege) no evidence was filed or submissions made in respect of that information as being information for the purposes of cl 5 of Sch 1 of the GIPA Act.

64. [NOT FOR PUBLICATION]

65. Based on the information before me, I do not consider that disclosure of the Withheld Information could reasonably be expected to have the effect described in clause 1(g) of the Table.

Clause 3(a) ­- reveal an individual’s personal information

66. Clause 3(a) requires consideration of whether disclosure of the Withheld Information could reasonably be expected to reveal an individual’s personal information.

67. While the applicant’s written submissions indicate that the personal information has already been revealed through the disclosure of the July Report, that is not the case from my review of both the July Report and the April Report.

68. Further, there is no relevant evidence before the Tribunal as to whether the personal information has already been publicly revealed. Given that the July Report has de-identified information in the Withheld Information that may otherwise reveal personal information, there is also no evidence before me to suggest that such information has been revealed. In the circumstances, I find that the personal information has not been ‘revealed’ for the purposes of cl 4 of Sch 4 to the GIPA Act. Accordingly, I consider that the disclosure of the information could reasonably be expected to have the effect set out in cl 3(a) of the Table. I now turn to consider the balancing exercise required by s 13 of the GIPA Act.

69. It is clear from my review of the April Report that the Withheld Information includes information that is personal information as defined in cl 4 of Sch 4 to the GIPA Act to the extent it includes the names of individuals. The Withheld Information also includes information that, given its content and context, may reveal an individual’s personal information for the purposes of cl 3(a).

70. The general public interest in favour of the disclosure of government information set out in s 12(1) of the GIPA Act, the enhancement of accountability for government and its agencies and informing the public about the operations government agencies are all public interest considerations in favour of disclosure that should be taken into account in this matter.

71. The personal factors identified in [34] to [37] above should also be taken into account as considerations in favour of disclosure. The evidence of Mr Deguara is that the Workers’ Compensation Claimants are aware that the respondent has applied for administrative review by this Tribunal and they have consented to the disclosure of their names for the purposes of this proceeding. The notes to s 12(2) of the GIPA Act give examples of public interest considerations in favour of disclosure. Note (d) refers to information that “is personal information of the person to whom it is to be disclosed”. In circumstances where the applicant is taking proceedings with the consent of the Workers’ Compensation Claimants this is a consideration that should also be taken into account as a consideration in favour of the release of the information.

72. However, the personal information of the Workers’ Compensation Claimants is intertwined with information that may reveal the personal information of other persons whose identities is apparent or can reasonably be ascertained. The disclosure of this information must be balanced against the applicant’s interest outlined above.

73. The personal information in the Withheld Information arises from sensitive matters and allegations about conduct of a number of persons involved in the workers’ compensation processes. In my view, the disclosure of information that would reveal the personal information of these persons would not appear to advance the personal factors or public interest considerations in favour of disclosure identified above. On balance, I consider that the public interest consideration against disclosure in cl 3(a) should be given greater weight than those in favour of disclosure.

74. In the circumstances of this matter, I consider that the appropriate approach is to redact from the April Report information that may reveal personal information (see s74 of the GIPA Act). This enables the majority of the Withheld Information to be released with minimal information withheld due to the weight that must be attributed to the personal information. This approach is consistent with the Tribunal’s decision in Anderson v University of Sydney [2018] NSWCATAD 196 at [85].

Clause 4(d) - prejudice any person’s legitimate business, commercial, professional or financial interests

75. The respondent’s written submissions in respect of cl 4(d) of the Table identify:

1. KPMG’s concerns about disclosure of the April Report being because third parties may inaccurately refer to the April Report as KPMG’s final report.

2. QBE’s concerns about disclosure of the April Report being because the information is “untested and incomplete” and therefore denies QBE procedural fairness, and

3. Department of Communities and Justice’s concern being that the professional reputations of its employees may be affected.

76. The respondent has not put any of these objections in evidence.

77. Based on the information before me, I do not accept that the business interests of a service provider such as KPMG could reasonably be expected to be prejudiced by the disclosure of the Withheld Information. Mr Cole’s evidence is that the basis on which KPMG was engaged by the respondent was an iterative one. The open written submissions of the respondent and Mr Cole’s statement make it known that there are four versions of KPMG’s report, namely, the April Report, the June Reports and the July Report. The latter is referred to in the open evidence and submissions as the final report. Further, Mr Cole’s evidence is that the “substance of KPMG’s findings was consistent between the draft versions and final report”. In my view, there is adequate information available for use by KPMG in a public forum to respond to any inaccurate references to a draft report as the final report and, thereby, adequately address any misunderstanding and, thereby, the prejudice claimed to its business interests.

78. In respect of QBE, Mr Cole’s evidence is, broadly stated and paraphrased, that the respondent’s ability to exercise its functions (including the supply of necessary information) would be adversely affected. Mr Cole does not give evidence regarding QBE’s concerns about the Withheld Information being “untested and incomplete”. Without evidence or submissions on the issue it is not possible to form a view on how QBE’s legitimate business, commercial, professional or financial interests could reasonably be expected to be prejudiced. I also note that the documentary evidence indicates that QBE was contractually obliged to provide information for the Review and there is no information before me that suggests QBE will not be in a position to perform this contractual function in the future if the Withheld Information is disclosed.

79. In respect of the Department of Communities and Justice, there is no evidence as to how the prejudice in cl 4(d) arises generally and in respect of what particular information it is said to arise. Again, there is insufficient evidence to form a view as to how the legitimate business, commercial, professional or financial interests of the Department of Communities and Justice could reasonably be expected to be prejudiced. Even if I was able to form such a view in respect of an individual’s relevant interests (that is, employees of the Department of Communities and Justice) I consider that the concern will be adequately addressed by the redaction of the information outlined in respect of cl 3(a) of the Table.

80. For the reasons given above, I do not consider that disclosure of the Withheld Information could reasonably be expected to have the effect described in clause 4(d) of the Table.

Conclusion

81. Other than in respect of the public interest consideration described in cl 3(a) of the Table, I find that the disclosure of the Withheld Information could not reasonably be expected to have one or more effects identified by the respondent in cll 1(e), 1(f), 1(g), 1(h) or 4(d) of the Table.

82. In respect of the public interest consideration described in cl 3(a) of the Table, I find that the information could reasonably be expected to reveal an individual’s personal information and, on balance, should not be disclosed to the applicant. Prior to disclosure to the applicant, this information (which is set out in the Schedule to this decision) is to be redacted from the April Report.

Orders

1. The name of the respondent in these proceedings is amended to Insurance and Care NSW.

2. The decision of the respondent is set aside.

3. The report entitled ‘Forensic Claim File Review – icare’ dated April 2018 (excluding the information identified in the Schedule to these reasons) is to be disclosed to the applicant within 28 days of the publication of these reasons.

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Schedule

Information to be redacted before disclosure to the applicant wherever occurring in the April Report

[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]

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

Registrar

Decision last updated: 12 October 2020