Purcell v Department of Climate Change, Energy the Environment and Water

[2025] NSWCATAD 192

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Purcell v Department of Climate Change, Energy the Environment and Water [2025] NSWCATAD 192

Hearing dates:

30 June 2025

Date of orders:

01 August 2025

Decision date:

01 August 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

EA MacIntyre, Senior Member

Decision:

(1) The administratively reviewable decision of the Respondent is set aside.

(2) The administratively reviewable decision is remitted for reconsideration by the Respondent in accordance with the recommendations of the Tribunal.

(3) Pursuant to ss 64(1)(c) and 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the contents of all paragraphs in these reasons marked NOT FOR PUBLICATION are not to be published or disclosed to the Applicant or the public.

Catchwords:

ADMINISTRATIVE LAW - administrative review - government information - access application - enforceable right to access government information - presumption in favour of the disclosure of government information - overriding public interest against disclosure - public interest considerations against disclosure - public interest considerations in favour of disclosure - balance - prejudice supply to an agency of confidential information - prejudice the effective exercise of an agency’s functions - disclosure of information provided to an agency in confidence - personal information - false or unsubstantiated allegations about a person that are defamatory

ADMINISTRATIVE LAW - reviewable decision - correct and preferable decision - Civil and Administrative Tribunal

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Cases Cited:

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

DRP v Orange City Council [2020] NSWCATAD 220

Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286

Hurst v Wagga Wagga City Council [2011] NSWADT 307

Leech v Sydney Water Corporation [2010] NSWADT 298

McInnes v NSW Department of Education and Communities [2013] NSWADT 219

MJ v Department of Education & Commerce [2013] NSWADT 213

Office of Finance and Services v APV and APW [2014] NSWCATAP 88

Pemberton v Macquarie University [2014] NSWCATAD 76

Tallawoladah Pty Ltd v Department of Planning, Industry and Environment [2021] NSWCATAD 248

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Sean Purcell (Applicant)
Department of Climate Change, Energy the Environment and Water (Respondent)

Representation:

Self-Represented (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2025/00083737

Publication restriction:

Pursuant to ss 64(1)(c) and 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the contents of all paragraphs in these reasons marked NOT FOR PUBLICATION are not to be published or disclosed to the Applicant or the public.

REASONS FOR DECISION

1. This is a review of a decision made by the Department of Climate Change, Energy the Environment and Water (“Respondent”) to refuse access to certain information. The information sought by the applicant, Mr Sean Purcell (“Applicant”) concerns a voluntary public interest disclosure he had made.

Background

2. The Applicant was a Senior Policy Officer with Heritage NSW in its Aboriginal Cultural Heritage team.

3. On 21 September 2022, the Applicant made a voluntary public interest disclosure pursuant to the Public Interest Disclosure Act 1994 (NSW) as in force at the time. At the time of the disclosure, Heritage NSW formed part of the Department of Planning and Environment (“DPE”).

4. On 1 January 2024, Heritage NSW became part of the Department of Climate Change, Energy and Environment and Water. Certain functions of DPE were transferred to the Department of Planning, Housing and Infrastructure (“DPHI”).

5. On 28th May 2024, DPHI transferred a part of an access application made by the applicant to the respondent pursuant to s 45 of the Government Information (Public Access) Act 2009 (“GIPA Act”). The part of the application so transferred sought access to certain information related to the public interest disclosure of September 2022.

6. By decision dated 4 July 2024, the Respondent determined to provide to the Applicant partial access to five documents. These were email chains, with certain information determined to be subject to an overriding public interest against disclosure. That information had been redacted from the email chains.

7. The Applicant then sought review by the Information Commissioner of the decision of the Respondent. The Information Commissioner published a review report on 29 November 2024. She formed the view that she could not be satisfied that the decision to refuse access to some information was justified or that the searches for the documents conducted by the Respondent were adequate. The Information Commissioner advised that the Respondent should reconsider their decision by way of internal review.

8. On 12 December 2024, the Respondent accepted the Information Commissioner's recommendation to conduct an internal review. On 31 January 2025, the Respondent published its internal review decision. The Respondent determined that there was an overriding public interest against disclosure of all information identified as responsive to the Applicant’s access application, such that access should be refused to each of four relevant documents in their entirety. They were numbered 1-4.

Hearing

9. The hearing of the matter took place on 30 June 2025.

10. At the hearing of the matter, the Applicant told the Tribunal when he had sought to access information pursuant to the GIPA Act, the Respondent had informed him that an access application under the GIPA Act could not be maintained while a public interest disclosure was being dealt with. The Respondent in its submissions at the hearing, did not maintain such a position.

11. At the hearing, the Respondent informed the Tribunal that the scope of the dispute between the parties had been reduced. What was now in dispute remained a document identified as “document 2”. That document in its unredacted form was before the Tribunal but not disclosed to the Applicant.

12. The matter remaining in dispute between the parties was whether or not the document identified as document 2 should be provided to the Applicant or not. The contents of document 2 were as follows.

13. [NOT FOR PUBLICATION]

Applicant’s right to information

14. The GIPA Act gives members of the public an enforceable right to access government information, subject to the provisions of that Act. That right is given for the stated object of maintaining and advancing “a system of responsible and representative democratic Government that is open, accountable, fair and effective” (s 3(1)(b) of the GIPA Act).

15. A person who makes an access application for government information has a “legally enforceable right to be provided with access to the information” (s 9(1) of the GIPA Act). Access applications are to be dealt with in accordance with Part 4 of the GIPA Act.

16. An agency may determine an access application under the GIPA Act in a number of ways, as relevantly set out in s 58(1), including:

“(a)   deciding to provide access to the information

….

(d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information.”

17. There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5 of the GIPA Act). There is a general public interest in favour of the disclosure of government information (s 12(1) of the GIPA Act). However, the right to access will not be available where “there is an overriding public interest against disclosure of the information” (s 9 of the GIPA Act).

18. There is an overriding public interest against disclosure of government information for the purposes of the GIPA Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure (s 13 of the GIPA Act). It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1 of the GIPA Act (s 14(1) of the GIPA Act). The considerations listed in the Table under s 14 of the GIPA Act are the only other considerations that may be taken into account in determining whether there is an overriding public interest against disclosure (s 14(2) of the GIPA Act).

19. The power of the Tribunal to review a decision of the Respondent arises where a person is aggrieved by a “reviewable decision” of an agency. Such a person may apply to the Tribunal for administrative review under the Administrative Decisions Review Act 1997 (NSW) (“ADR Act”) of that decision (s 100 of the GIPA Act).

20. What are “reviewable decisions” of an “agency” is set out in s 80 of the GIPA Act. They include a decision to provide access or to refuse to provide access to information in response to an access application (s 80(d) of the GIPA Act).

21. There was no dispute that the Respondent was an “agency”.

22. An agency has made a “reviewable decision” within s 80 of the GIPA Act, the agency being the Respondent and the “reviewable decision” being a decision to refuse to provide access to information in response to an access application.

23. The Tribunal under s 63 of the ADR Act is to determine the matter, based on the material before it, including any relevant factual material and any applicable written or unwritten law. It must decide what is the correct and preferable decision. It may decide to affirm, vary or set aside the decision and make a substitute decision, or set aside the decision and remit the matter to the agency in accordance with any directions or recommendations of the Tribunal.

24. The provisions of the GIPA Act referred to above apply where the Applicant has made a valid “access application” seeking “government information”. It is not in issue that the Applicant made an “access application” under Part 4 of the GIPA Act and that the information requested was “government information” (see definition of these terms in s 4 of the GIPA Act).

25. The Respondent has the onus of establishing that the decision is justified (s 105(1) of the GIPA Act).

Consideration

26. There is an obligation upon the Respondent to undertake such reasonable searches as may be necessary to find the requested information (s 53(2) of the GIPA Act). There was no dispute remaining at the time of hearing of the matter as to the reasonableness of the searches undertaken.

27. The question for determination is whether or not the public interest considerations in favour of disclosure of the identified information outweigh the public interest considerations against disclosure in respect of document 2.

28. The Tribunal is to determine where the balance lies between the public interest considerations for and against disclosure. In Tallawoladah Pty Ltd v Department of Planning, Industry and Environment [2021] NSWCATAD 248, the balancing exercise required to be carried out was described in the following terms:

“The test in section 13 requires the Tribunal as decision-maker to attribute weight to each consideration for and against disclosure, and determine whether the balance of the public interest lies in favour of, or against, disclosure of government information: Hurst v Wagga Wagga City Council [2011] NSWADT 307; Flack v Commissioner of Police, NSW Police [2011] NSWADT 286. The GIPA Act provides no set formula for calculating the weight of considerations for determining whether one set of considerations outweighs the other, and the Tribunal has stated that "any reasonable approach that follows section 15 principles seems to be acceptable ... it is really a matter of placing identified considerations in order of priority or importance": Place v Department of Finance, Services and Innovation [2016] NSWCATAD 278 at paragraph [96]. The balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at paragraph [17].The balancing exercise "is a question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation" (Battin v University of New England [2013] NSWADT 73 at [74]; Else v Transport for NSW [2021] NSWCATAD 59, at [18])”.

29. In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286, the task of the Tribunal was described as follows:

“…. in all cases other than those falling under the terms of Schedule 1, the public interest test under the GIPA Act involves the following:

(a) identifying the public interest in favour of disclosure;

(b) identifying the public interest against disclosure; and

(c) determine where the balance lies”.

30. See also Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19, at [24] – [25].

31. Section 15 of the GIPA Act sets out the principles that apply when determining whether there is an overriding public interest against disclosure:

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

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

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

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

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

32. The public interest considerations in favour of disclosure of the relevant information include the following.

1. 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.

2. 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.

3. 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.

33. The Respondent also said that disclosure could enhance accountability and transparency over the processes followed by the Respondent in investigating misconduct matters including public interest disclosures. It also said that disclosure could provide the Applicant with access to his own personal information. The Tribunal accepts that these are additional public interest considerations in favour of disclosure.

34. The Respondent identified the following public interest considerations against disclosure, set out in s14 of the GIPA Act.

“1 Responsible and effective government

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

….

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

……

(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,

…...

3 Individual rights, judicial processes and natural justice

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

(a) reveal an individual’s personal information,

……

(e) reveal false or unsubstantiated allegations about a person that are defamatory,”

35. The relevant considerations in the Table under s 14 may be satisfied where it “could reasonably be expected” to have the relevant effect. What this means was described in Leech v Sydney Water Corporation [2010] NSWADT 298 in the following terms, at [25]:

“The term ‘could reasonably be expected’ has been considered in a number of cases. The words have their ordinary meaning: Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163. The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC”.

36. I will first consider the evidence put before the Tribunal relevant to whether disclosure “could reasonably be expected” to have the effect identified in relation to each of the considerations identified above. I will then go on to consider specifically the required balance between public interest considerations for and against disclosure, in respect of the information remaining in dispute set out in document 2.

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

37. Clause 1(d) has application in circumstances where disclosure could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions.

38. The first question is whether the relevant information whose supply could be prejudiced, is “confidential”. The Administrative Decisions Tribunal in Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 said, at [33]:

“In our view, the question of whether the information supplied is 'confidential information' must be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received. The agency's case is that all information received by the triple zero service at the point of receipt is treated as confidential. The agency's case is that members of the community expected the triple zero service to be a confidential service”.

39. The Tribunal in MJ v Department of Education & Commerce [2013] NSWADT 213 made the following observations about disclosures made in the context of complaints, at [73]:

“It is well established that a function of an agency is to deal with and action allegations of misconduct by one or more of its officers. The effective exercise of that function is based on complaints being made voluntarily and that the making of the complaint and any action taken in regard thereto remains confidential, to the extent required by law”.

40. The Respondent provided specific evidence that investigations into public interest disclosure matters are handled confidentially as a matter of practice and that information is not shared outside the process except to the extent required by law. That evidence was that prospective witnesses were advised to keep the matter confidential and the person making the disclosure would be requested not discuss the disclosure with potential witnesses.

41. I accept that information provided to the Respondent in the course of investigation of a complaint concerning misconduct needs to be provided to it subject to an understanding of confidence. If the provider of that information did not believe that confidentiality would be maintained, they may be deterred from providing information about misconduct. They may fear retaliation or other adverse consequences to themselves if their identity and the information they provide could be disclosed. It follows that information provided in the context of an investigation of misconduct of the kind in issue will answer the description of “confidential information”.

40. It is not sufficient that the information, such as that provided during an investigation be confidential in nature. The Respondent must show that disclosure of the information in dispute could reasonably be expected to prejudice the supply of confidential information that facilitates the effective exercise of that agency’s functions.

41. In McInnes v NSW Department of Education and Communities [2013] NSWADT 219, the Administrative Decision Tribunal said, at [38]:

“Unlike some agencies, the Respondent has no power to compel non-staff - including former employees - to participate in investigations. It therefore must rely upon their goodwill. I accept that to encourage people to participate, it is important that the Respondent can offer people no longer connected to it an undertaking of confidentiality to the maximum extent allowable by law.

Although theoretically a staff member could be compelled to participate in an investigation, the Respondent usually relies on the voluntary cooperation of staff. I accept that it is important that for its investigations EPAC can offer staff an undertaking of confidentiality to the maximum extent allowable by law to encourage staff members to participate”.

44. In Pemberton v Macquarie University [2014] NSWCATAD 76, the Tribunal said, at [40];

“As a matter of commonsense the nature of an investigation of the kind undertaken necessarily required the co-operation of staff members in the course of the investigation. There was no evidence of an obligation to co-operate. I consider that disclosure could reasonably be expected to prejudice the supply to an investigator, on behalf of the Respondent, confidential information that facilitates the effective exercise of the University's functions: Black v Hunter New England Area Health Service [2008] NSWADT 301 at [35]; Macquarie University v Howell (No 2) [2009] NSWADTAP 19 at [10]; Williams v Department Industry and Investment [2012] NSWADT 192)”.

45. The Respondent gave specific evidence that maintaining confidentiality during the investigation process in relation to public interest disclosures was essential for securing the open an honest participation of staff in the process. I accept this evidence. Even in cases where the informant is required to provide information by reason of being an employee or otherwise, the degree and extent of participation by a person in an investigation can depend on whether or not they have an assurance of confidentiality.

46. Clause 1(d) additionally requires consideration of the effects of disclosure on the effective exercise of the agency’s functions. The Respondent submitted that disclosure of information in issue, being in each case information gathered as part of an investigation into allegations of misconduct, could reasonably be expected to prejudice the further supply of such information to the Respondent. The ongoing ability to secure that supply of information was, in the Respondent’s submission, necessary for the proper working of the Respondent’s public interest disclosure investigation process. I accept this evidence.

47. The Respondent has shown that there is a public interest consideration against disclosure in the terms set out in clause 1(d). To the extent that the information in dispute has been provided in the context of investigation of allegations of misconduct, I find that the information has been provided in confidence. I accept that confidentiality generally attaches to information provided in the context of investigations of this kind into alleged misconduct. I also accept that supply of such information could reasonably be expected to prejudice the supply of confidential information and that supply of such confidential information remains necessary for facilitation of the effective exercise of the Respondent’s functions, in particular functions of managing investigations into alleged misconduct. That prejudice arises if persons from whom such information may be sourced in the future are not assured of confidentiality, with the result that they are deterred from providing information during investigations of alleged misconduct.

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

48. A public interest consideration against disclosure arises where disclosure could reasonably be expected to prejudice the effective exercise by an agency of the agency’s functions.

49. I accept the Respondent’s submission that the disclosure of the information in dispute could reasonably be expected to prejudice the effective exercise by the Respondent of its functions for the reasons set out at [46] above. I place particular emphasis on the likely consequence of the provision of relevant information in deterring participation by employees in investigations of misconduct if they understood that information they provided in confidence and their identities as informants would be disclosed. To this extent, a public interest consideration against disclosure of the information in dispute arises by reason of cl 1(f).

Clause 1(g) – disclosure of information provided to an agency in confidence

50. I accept that the information in dispute was provided in confidence, having regard to the context set out at [41] above. To this extent, a public interest consideration against disclosure of the information in dispute arises.

Personal information – clause 3(a) of the Table under s 14 of the GIPA Act

51. The question for determination is whether disclosure could reasonably be expected to have the effect of revealing “personal information”. The Respondent relied on clause 3(a) in respect of document 2:

52. What is personal information is defined in clause 4 of Schedule 4 of the GIPA Act in the following terms:

“Personal information

(1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.

(2) Personal information includes such things as an individual’s fingerprints, retina prints, body samples or genetic characteristics.

(3) Personal information does not include any of the following—

(a) information about an individual who has been dead for more than 30 years,

(b) information about an individual (comprising the individual’s name and nonpersonal contact details, including the individual’s position title, public functions and the agency in which the individual works) that reveals nothing more than the fact that the person was engaged in the exercise of public functions,

(c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause”.

53. What is personal information within this definition is relevantly “information or an opinion” about an individual. Left as such, what is personal information has a wide reach. However, there is a further requirement that needs to be satisfied for something to be “personal information”. The individual in question must be someone whose “identity is apparent or can reasonably be ascertained from the information or opinion”. A comparable definition is found in s 4 of the Privacy and Personal Information Protection Act 1998 (NSW). Considering the reach of that definition, in Officeof Finance and Services v APV and APW [2014] NSWCATAP 88, the Appeal Panel of the Tribunal said, at [4]:

“To be "personal information" the information or opinion must be about an individual "whose identity is apparent or can reasonably be ascertained from the information or opinion." We have decided that this phrase does not mean that the individual's identity must be apparent or reasonably ascertainable solely from the information or opinion. Depending on the circumstances, other information may be consulted in order to ascertain the identity of the person concerned. In the circumstances of this case where APV's and APW's identity could be ascertained from the information or opinion in combination with information on a website controlled by the agency itself, the information was personal information”.

54. The following observations of the Tribunal in DRP v Orange City Council [2020] NSWCATAD 220 as to telephone numbers also have a bearing on the question at issue:

“The Administrative Decisions Tribunal found that the mobile, home and work telephone numbers, and email addresses of an objector to a prospective development application was personal information (see Donnellan v Ku-ring-gai Council (2013) NSWADT 115 (at [39]-[43])”.

55. The following principles may be derived from the above cases about when information is “personal information”:

1. the information must be information or an opinion about an individual;

2. that individual’s identity must be apparent or must reasonably be ascertainable from the information or opinion;

3. other information may be consulted in order to determine whether the identity of the person concerned can reasonably be ascertained;

4. mobile, home and work telephone numbers, and email addresses may be personal information.

56. To the extent that document 2 discloses who the subject of the misconduct allegations in question is and who has provided information about the allegations, this is without doubt “personal information” about both the person being investigated and also witnesses. To the extent that the relevant person's name, email address, telephone number and title are set out in the information in dispute, I find on the balance of probabilities, that the person’s identity can be ascertained, as well as the fact that they are the subject of or have participated in the investigation. This is information that goes well beyond information that reveals nothing more than the fact that the person was engaged in the exercise of public functions.

57. Information including a person's name, their email address, their title and their telephone contact details answer the description of personal information in the circumstances of the case. To the extent that such information is contained in document 2, it follows that a public interest disclosure against disclosure of such personal information arises.

Clause 3(e) - reveal false or unsubstantiated allegations about a person that are defamatory

58. A public interest consideration against disclosure of information arises, if disclosure of the information could reasonably be expected to reveal false or unsubstantiated allegations about a person that are defamatory.

59. There are two elements to the consideration set out in para 3(e). First of all, the information must be of a kind that could reasonably be expected to reveal false or unsubstantiated allegations about a person. Secondly, the allegations must be defamatory.

60. In Hurst v Wagga Wagga City Council [2011] NSWADT 307, the Administrative Decisions Tribunal said, that consideration was required as to whether the relevant allegations were defamatory according to the general principles of defamation law. It said at [83]:

“This is a provision new to GIPA. In helpful submissions on the issue the Information Commissioner said -

"4.9 This is a new consideration. There is no equivalent to it in the old FOl Act (NSW), the Commonwealth, WA or Qld Acts (those most similar to the GIPA Act). However, section 113 of the GIPA Act, which provides protection from actions in defamation, is in almost identical terms to section 64 of the FOl Act. . The decision of the Court of Appeal in Ainsworth v Burden (2003) 56 NSWLR 620 ("Ainsworth") construed section 64 of the FOl Act and remains authoritative. In Ainsworth, the Court found that "[t]he statutory language must be construed in the context of the general principles of the law of defamation" (at 622 per Handley JA).

50. To demonstrate that this consideration is a relevant consideration in the application of the public interest test, the respondent must show that the information to which the applicant seeks access contains false and unsubstantiated allegations against a person, and that those allegations are defamatory.

51. The respondent states that it has investigated and found that the allegations made by the applicant were unsubstantiated. On this basis, it dismissed the allegations (Statement of O'Leary, 16/05/2011, Annexures R & S). ...

52. In order to satisfy the second element of this consideration, the respondent must consider and reach a conclusion about whether the allegations are defamatory according to the general principles of defamation law. A general statement of the elements of defamation from Halsbury's Laws of Australia (chapter written by David Rote) states (with notes removed):

A publication is defamatory of a person if it tends, in the minds of ordinary reasonable people, to injure his or her reputation either by:

(1) disparaging him or her;

(2) causing others to shun or avoid him or her; or

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

The cause of action in defamation is complete upon the publication of a defamatory imputation and damage may be inferred without proof of actual loss or injury to the plaintiff”.

61. The Respondent had asserted that investigations had concluded that there was no wrongdoing by the alleged wrongdoer. They submitted that there was particular risk posed by investigations into public interest disclosures to the professional reputation and personal well-being of individuals involved, particularly when allegations are unsubstantiated.

62. What clause 3(g) addresses is not reputational damage in itself but false or unsubstantiated allegations about a person that are defamatory. These matters do not need to be proven. What is, however, required is that the Respondent establish that disclosure of the information could reasonably be expected to have the relevant effect. If the Respondent can do so, a public interest consideration against disclosure arises.

63. The Applicant said that his allegations had substance. The Respondent disagreed. What was not in dispute was that allegations of misconduct had been made against a person. There was also a finding in evidence that investigations had concluded that there was no wrongdoing by the alleged wrongdoer. There was nothing more in evidence to allow the Tribunal to determine whether or not the allegations had substance, in particular to determine whether or not the allegations are defamatory or not. However, the matters in evidence are, in my opinion, sufficient to establish that a public interest consideration against disclosure of a kind described in cl 3(e) may arise. The absence of further evidence about the allegations made may affect the weight that can be allowed to the consideration in cl 3(e). I consider this further below.

Balancing considerations for and against disclosure

64. The task of the Tribunal is to give weight to each consideration for and against disclosure, and determine whether the balance of the public interest lies in favour of, or against, disclosure of government information.

65. A public interest consideration in favour of disclosure is that disclosure of 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.

66. The agency in question has responsibility over matters concerning heritage including indigenous heritage. Informing the public about the proper functioning of the Respondent in carrying out its role is, with little doubt, a matter of importance and interest to both the general public and members of the public with a particular interest in matters of heritage. I place considerable weight on the provision of information to the public about the operations of the Respondent, including how it investigates allegations of misconduct, as a public interest consideration in favour of disclosure.

67. I also place considerable weight on the public interest consideration in favour of disclosure, where disclosure enhances accountability and transparency over the processes followed by the Respondent in investigating misconduct matters including public interest disclosures. Revealing how an agency dealt with investigations into allegations of misconduct is a matter that carries considerable weight.

68. A public interest consideration in favour of disclosure also arises where 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. Taking into account the finding in evidence of no wrongdoing having occurred, I cannot allow significant weight to the matter. However, allegations of misconduct having been made by the Applicant and the absence of further evidence before the Tribunal to allow for consideration of the matter, I allow some weight to this consideration as a public interest consideration in favour of disclosure.

69. The information in dispute includes names, email addresses, titles and telephone numbers. This is personal information. It is also information that allows for identification of the person under investigation and those who have provided information about the matter. This is also personal information about these individuals. I place significant weight on the revealing of such personal information as a public interest consideration against disclosure as required by cl 3(a). Personal information about an individual is, in its very nature, something that is generally private and should not readily be disclosed to the world at large, absent countervailing public interest considerations favouring disclosure.

70. I also place significant weight on the public interest considerations against disclosure set out in clauses 1(d) and 1(f), as matters weighing against disclosure of the personal information in issue. To the extent that disclosing that information will identify persons providing information in an investigation of allegations of misconduct, significant weight must be placed upon the reasonable expectation that disclosure of information of that kind could prejudice the supply of confidential information facilitating the effective exercise of the Respondent’s function in investigating complaints of misconduct and prejudice the effective exercise of that function.

71. I also place some weight on the consideration against disclosure of information set out in paragraph 1(g) as a matter weighing against the disclosure of personal information.

72. I am only able to place limited weight on the public interest consideration against disclosure set out in clause 3(e), in the absence of sufficient evidence to allow the Tribunal to test whether or not the allegations in issue have substance.

73. The balance, in my opinion, weighs strongly against disclosure of personal information of the kind described above, particularly having regard to the significant weight that must be attached to the public interest considerations against disclosure set out in cl 3(a), 1(d) and 1(f). Lesser weight attaches to the public interest considerations against disclosure set out in clauses1 (g) and 3(e). The public interest considerations in favour of disclosure of information set out above do not carry sufficient weight to displace the weight attached to the public interest considerations against disclosure.

74. The redaction from document 2 of names, including first names and surnames, email addresses, names of divisions, titles and telephone numbers leaves the remaining content of document 2 for consideration. I set out below a description of the remaining content and how I weigh public interest considerations for and against disclosure in respect of the remaining contents.

75. [NOT FOR PUBLICATION]

76. [NOT FOR PUBLICATION]

77. I am unable in these circumstances to attach significant weight to any of the relevant public interest considerations against disclosure in respect of document 2, once relevant personal information has been redacted. Greater weight must attach to the public interest considerations in favour of disclosure, including those set out at [32] and [33] above.

64. The personal information set out in document 2 should be redacted in the manner described above and the remaining contents provided to the Applicant.

65. The correct and preferable decision is that the decision of the Respondent is set aside in accordance with the orders set out below.

Orders

1. The administratively reviewable decision of the Respondent is set aside.

2. The administratively reviewable decision is remitted for reconsideration by the Respondent in accordance with the recommendations of the Tribunal.

3. Pursuant to ss 64(1)(c) and 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the contents of all paragraphs in these reasons marked NOT FOR PUBLICATION are not to be published or disclosed to the Applicant or the public.

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

Registrar

Decision last updated: 01 August 2025