Russell-Uren v Director-General, Education Directorate

[2017] ACAT 113

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

RUSSELL-UREN v DIRECTOR-GENERAL, EDUCATION DIRECTORATE (Administrative Review) [2017] ACAT 113

AT 23/2016

Catchwords:              ADMINISTRATIVE REVIEW – freedom of information – government cleaning contracts and cleaners records - business affairs – duty of confidence – whether legal professional privilege – whether legal professional privilege was waived – unreasonable disclosure of personal information – ‘reverse FOI’ process undertaken when review proceedings are brought in the tribunal -

Legislation cited:      Freedom of Information Act 1989 ss 27, 27A, 36, 41, 42, 43, 45, 69A, 74

Cases cited:Attorney-General (NT) v Maurice (1986) 161 CLR 475

BGC (Aust) Pty Ltd v Freemantle Port Authority (2003) 28 WAR 187
Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429
Haskins v ACT Director of Public Prosecutions [2016] ACAT 90
Phillip Arcidiacono t/as Rose Cleaning Service [2016] FWCA 1769
Re Gordon Peter Wiseman v Commonwealth of Australia [1989] FCA 434
Re Maher and Attorney-Generals Department (1986) 13 ALD 98
Searle Australia v Public Interest Advocacy Centre (1992) 36 FCR 111
Spier v ACT Electoral Commissioner & Anor [1995] ACTAAT 125
Thornton v DPP [2009] ACAT 40

Tribunal:                   Presidential Member M-T Daniel

Date of Orders:  22 December 2017

Date of Reasons for Decision:         22 December 2017

AUSTRALIAN CAPITAL TERRITORY  )

CIVIL & ADMINISTRATIVE TRIBUNAL       )          AT 23/2016

BETWEEN:

STEFAN RUSSELL-UREN

Applicant

AND:

DIRECTOR-GENERAL, EDUCATION DIRECTORATE

Respondent

TRIBUNAL:Presidential Member M-T Daniel

DATE:22 December 2017

ORDER

1. The Tribunal orders that the decision under review is, in relation to each document, confirmed or varied as follows:

1.Document 1 decision varied – grant access with redaction of exempt material being names of cleaners and other contractor staff.

2.Documents 2 – 11 decisions confirmed – do not grant access, documents are entirely exempt.

3.Documents 12 and 13 decisions varied – grant access to entire documents.

4.Document 14 decision confirmed – do not grant access, document is entirely exempt.

5.Document 15 decision confirmed – grant access with redaction of exempt material being names and telephone numbers of contractors’ staff.

6.Document 16 decision varied – grant access to entire document.

7.Document 17 decision varied – grant access to entire document.

8.Document 18 decision varied – grant access with redaction of exempt material being names of contractor staff.

9.Document 19 decision varied – grant access to document but retain redaction of material outside scope of request.

10.Document 20 decision varied – grant access to entire document.

11.Documents 21 and 22 decisions confirmed – do not grant access, documents are entirely exempt.

12.Document 23 decision confirmed – grant access to entire document.

13.Documents 24-26 decisions varied – grant access with redaction of exempt material being names of cleaners.

14.Document 27 decision confirmed – grant access to entire document.

15.Document 28 decision confirmed – do not grant access, document is entirely exempt.

16.Documents 29 - 32 decision varied – grant access to entire document.

17.Document 33 decision varied – grant access with redaction of exempt material being names of contractor staff.

18.Document 34 decision varied – grant access to entire document but retain redaction of material outside scope of request.

19.Document 35 decision varied – grant access with redaction of exempt material being name of third party on page 2, and redaction of material outside scope of request.

20.Document 36 decision confirmed – do not grant access, document is entirely exempt.

21.Document 37 decision confirmed – grant access with redaction of exempt material being names of cleaners.

22.Document 38 decision varied - grant access with redaction of exempt material being names of cleaners.

23.Document 39 decision varied – grant access with redaction of exempt material being name of auditor on page 2, and redaction of material on page 1 outside scope of request.

24.Document 40 decision confirmed – grant access with redaction of exempt material being names of contractor’s staff.

25.Document 41 decision varied – grant access with redaction of material on pages 1 and 2 outside scope of request.

26.Document 42 decision varied – grant access to entire document.

27.Document 43 decision confirmed – grant access with redaction of material outside scope of request.

28.Document 44 decision varied – grant access with redaction of material outside scope of request.

29.Document 45 decision varied – grant access to entire document.

30.Document 46 decision varied – grant access with redaction of exempt material being cleaner names and names of contractor staff on pages 9, 10, 13, 14 and 18, and signatures on page 15.

2.  The respondent is directed to provide the applicant access to the documents in accordance with this decision.

………………………………..

Presidential Member M-T Daniel

REASONS FOR DECISION

1.This decision involves an application to review the refusal of the Director-General to grant access to a number of documents, or parts of documents, under the Freedom of Information Act 1989 (FOI Act). The documents sought by the original request for access (the FOI request) were in relation to the contractors providing cleaning services in certain ACT public schools.

2.The proceedings raised the following issues:

(a)How is a section 27A ‘reverse FOI’ process or a section 69A notification process to be undertaken when proceedings for review of an FOI decision are brought in the tribunal;

(b)Whether section 41 of the FOI Act applied to some of the personal information in the documents so as to make those documents, or parts of them, exempt from disclosure;

(c)Whether client legal privilege existed in some of the documents, and if so, if it had been waived such that those documents were no longer exempt under section 42 of the FOI Act;

(d)Whether a number of documents were subject to a duty of confidence, such that they were exempt from disclosure under section 45 of the FOI Act;

(e)Whether some of the documents contained information relating to business affairs and were exempt from disclosure under section 43 of the FOI Act.

Background

3.On 2 December 2015 Mr Stefan Russell-Uren (the applicant) made a request under the FOI Act to the Education Directorate (the Directorate/the respondent). That request was made in his role as Senior Legal Officer for the ACT Branch of United Voice. United Voice is a union which represents cleaners.

4.The FOI request sought access to certain documents held by the Directorate relating to cleaning contracts for ACT schools, including documentation created in relation to those contracts, complaints and investigations about the cleaning contractors, and correspondence between the Directorate and United Voice, the contractors or persons associated with them.

5.The cleaning contractors and associated persons referred to in the FOI request were Phillips Cleaning Services Pty Ltd, Phillips Cleaning Trust School Cleaner Pty Ltd and Angelo Di Dio (the Phillips Group), and Rose Cleaning Services, Rose Cleaning Group Pty Ltd, Rose Cleaning Trust, and Phillip Arcidiacono, Daniel Olssen, Sue Price and Peter Farmer (the Rose Group) (collectively, the contractors).

6.By way of background, United Voice and the contractors were around this time in dispute over enterprise bargaining agreements, and legal action was underway in the Fair Work Commission.[1] Additionally, United Voice was complaining to the Directorate that some of the contractors and other entities were engaging in unlawful labour hire arrangements, exploiting workers and should be investigated, while some of the contractors were complaining to the Directorate about the conduct of United Voice when visiting work sites, and interacting with workers generally.

[1]Phillip Arcidiacono t/as Rose Cleaning Service [2016] FWCA 1769

7.By an email sent on 18 December 2015 the applicant narrowed the scope of the FOI request by clarifying the time frame for relevant documents.

8.The relevant documents were identified by the Directorate, and a decision was made on 11 March 2016 to give access to most of the documents subject to some information being redacted on the basis of section 36 (internal working documents), section 41 (personal information), section 42 (client legal privilege), section 43 (business affairs) and section 45 (breach of confidence). Some documents were considered to be entirely exempt from disclosure on the basis of section 42 or section 45.

9.On 5 April 2016 the applicant sought internal review of the decision. Specifically, he criticised the decision on access in relation to documents 2-11 (cleaner sign in records for a number of schools), email correspondence (documents 1, 12-23 and 27-45) and ethical supplier statutory declarations for the contractors (documents 24-26).

10.By letter dated 20 April 2016 the original decision was varied in relation to the email correspondence to release the names, email addresses and work telephone numbers of ACT public servants as appearing in the headings and signature block for each email. It was decided that the mobile telephone numbers of each public servant, also contained in the email signature blocks, should remain exempt under section 41 of the FOI Act. The cleaner sign in records and the ethical supplier statutory declarations were considered to be exempt from disclosure on the basis of section 41 and section 45 of the FOI Act, respectively. The remainder of the decision was also confirmed.

11.On 11 May 2016 the applicant applied to the tribunal for review of that decision.

The proceedings

12.The matter was listed for hearing on 16 August 2016. Both parties had filed statements of facts and contentions. Because of the Tribunal’s concerns about the adequacy of consultation with persons whose information was contained in the documents, the hearing was not completed on 16 August but was adjourned to further hearing 20 September 2016.

13.The applicant relied upon a witness statement of Lyndal Ryan[2], the Branch Secretary of United Voice, which set out information about the ACT Government procurement process for school cleaners, attaching copies of the publically available ‘Panel Deed and Services Contract’. Ms Ryan detailed the background of union concerns and complaints, and dissatisfaction with the Directorate’s response to these concerns and complaints. Although he had not provided a witness statement, in his opening submission the applicant provided information about the employment of cleaners in the ACT which was not challenged by the respondent.

[2] Exhibit A-1

14.The respondent had provided to the Tribunal a set of T-documents containing the documents as provided to the applicant[3], and a further set of all of the documents within the scope of the FOI request, unredacted, and marked for the attention of the Tribunal member only.[4] Additionally, the respondent relied upon:

(a)Transcript of an ABC report broadcast 1 August 2016[5] which covered allegations that United Voice did not treat its staff well and had failed to put in place an employment agreement with staff.

(b)A witness statement of John Wynants[6], an officer of the Directorate working within procurement and contract management, outlining the arrangements for the contracts, the provision of ethical supplier declarations, and arrangements for the provision of legal advice.

(c)Letters dated 29 June 2016 from David Cassaniti of Accolade Advisory Business and Taxation Services[7], on behalf of his clients Phillips Cleaning Service Pty Ltd, Rose Cleaning Service and Rose Cleaning Group Pty Ltd, setting out his clients’ objections to providing access to certain of the documents on the basis of sections 43 (business affairs) and 45 (confidentiality), and expressing his clients’ willingness to provide witness statements to the tribunal.

(d)A further letter from Mr Cassaniti dated 5 July 2016[8], enclosing template documents entitled ‘Statements of Objection to Disclosure of Information’, signed by cleaners at each of the schools. As this contained information which had been considered exempt from release, the applicant was not provided a copy of this document.

(e)A witness statement from Camille Carroll, Senior Adviser Governance and Legal Liaison, dated 13 September 2016[9], outlining the steps undertaken by the Directorate to conduct a ‘reverse FOI’ procedure in relation to the personal information of public servants, cleaners and other persons whose personal information was contained in the redacted documents.

(f)Email correspondence of September 2016 from the respondent to the applicant[10] in relation to the issue of whether client legal privilege in documents 21, 22, 28 and 36 was challenged, and warning that costs would be sought if the respondent was put unnecessarily to obtaining evidence on that point.

(g)A bundle of screen shots from the Access Canberra website[11] which were relied upon to demonstrate that information in relation to particular public sector employees was not publically available.

(h)Correspondence from the Directorate and its lawyers to the Contractors, requesting provision of information as required by the Panel Deed.[12]

[3] Exhibit R-2

[4] Exhibit R-3

[5] Exhibit R-1

[6] Exhibit R-4

[7] Exhibit R-5a

[8] Exhibit R-5b

[9] Exhibit R-6

[10] Exhibit R-7

[11] Exhibit R-8

[12] Exhibit R-9

15.Both Ms Ryan and Mr Wynants gave evidence and were questioned on their witness statements.

16.After the conclusion of the hearing, both parties were given leave to file written submissions.

The reverse FOI issue

17.Section 27 of the FOI Act requires, generally speaking, that a decision-maker consult with a third party whose business affairs or commercial information may be disclosed in response to an FOI request prior to determining that request, if it seems that the third party might reasonably want to submit that the information falls within section 43 of the FOI Act and is exempt from disclosure. A similar provision is made by section 27A of the FOI Act in relation to a third party whose personal information might fall within the section 41 exemption.

18.In this case, no section 27 or section 27A procedure appeared to have been undertaken for the original decision or the internal review.

19.Additionally, section 69A of the FOI Act provides that where, as in this case, a decision has been made not to provide access to a document containing a third party’s personal information, and an application is made to the ACAT for review of that decision, “the person dealing with the application” must inform that third party of the application. This reference to ‘the person dealing with the application’ is interpreted by the Tribunal to impose an obligation upon the respondent in any such application, as it is the respondent that would have possession of the name and contact details of the third party.

20.At the hearing on 16 August 2016, the Tribunal had before it correspondence to the respondent from Mr Cassaniti on behalf of the contractors, providing a submission in relation to the section 43 exemption. This was apparently in response to correspondence from the Directorate to the contractors.

21.However, in relation to the personal information of the public servants, there was no indication that a section 27A process had been engaged in, nor had there been any contact by the respondent to advise them of the proceedings.

22.In relation to the personal information of the cleaners, it appeared that there had been no contact of any kind by the respondent with the cleaners. Rather, the cleaners had been approached by the contractors (their employers) and provided opportunity to sign a template document which recorded their opposition to their personal information being released. The Tribunal was concerned first as to whether this process met the procedural requirements of section 69A, and secondly as to whether in the circumstances any weight should be placed on the template objections. The Tribunal noted that the cleaners’ signatures had been witnessed by their employer, a representative of the contractor. The Tribunal also noted that there was no indication that the documents, which were written in English, had been translated for those employees who might not read English.

23.The respondent in its written submissions argued that it was speculation on the part of the Tribunal that the cleaners did not speak English, or that the signatures were not freely written. The Tribunal rejects this submission, which seems to take no account of the evidence referred to and submissions made at the hearing on 16 August 2016. At that hearing the Tribunal drew the parties’ attention to documents contained in Exhibit R-1 which referred to allegations previously raised of cleaners being asked to sign documents they did not understand [13] and the independent OH&S report which recorded that all but one cleaner (in one school) was unable to read English.[14] Also on 16 August 2016, the applicant provided to the Tribunal a decision of the Fair Work Commission of 22 March 2016[15] in proceedings between United Voice and some of the contractors, which noted at paragraphs 26 and 37 the uncontested evidence of some cleaners that:

(a)in relation to matters in issue in those proceedings they had been asked by their supervisor to sign a document without it being translated into their first language;

(b)some cleaners while fluent English speakers could not read English fluently; and

(c)other cleaners did not understand English well.

[13] Document 17 email dated 17 July 2015, Document 20 email dated 3 August 2015

[14] Document 31, Work Health and Safety Inspection conducted 2 September 2015 by Mick Peterson & Associates page 5

[15] Phillip Arcidiacono t/as Rose Cleaning Service [2016] FWCA 1769

24.Due to the Tribunal’s concerns about the adequacy of the third party consultation in relation to personal information, the hearing on 16 August 2016 was adjourned so that the respondent could contact the relevant persons.

25.When the hearing resumed on 20 September 2016, the witness statement of Ms Carroll setting out the consultation undertaken in relation to public sector employees, cleaners and other third parties was put before the Tribunal.

26.In relation to the ACT public sector employees, Ms Carroll reported that those who had been able to be contacted did not oppose the mobile telephone numbers in their email signature blocks being released. One had not been able to be contacted, even by the relevant mobile number which simply rang out. One other person, a past advisor to an MLA, wished their mobile phone not to be disclosed to United Voice ‘for privacy reasons’ which were not further specified.

27.In relation to the school cleaners, Ms Carroll advised that on 23 August 2016[16] the Directorate wrote to the contractors seeking the names and addresses of cleaning staff in accordance with clause 6.7 of the Panel Deed.[17] However, no response to the correspondence was provided by the Rose Group, and the Phillips Group responded that they would not provide any further information pending legal advice. The Directorate then left the issue of non-compliance by the contractors with their Panel Deed obligations in the hands of their lawyers, who wrote to the contractors in relation to this and other areas of asserted non-compliance with the Panel Deed on 15 September 2016.[18]

[16] Exhibit R-9

[17] Clause 6.7 provides that each contractor must at the commencement of the contract advise the Territory of the names, dates of birth, addresses and specimen signatures of all cleaners who will be employed in each school, and provide a criminal history check of each cleaner. Any changes to staff are to be notified in similar terms

[18] Exhibit R-9

28.The Directorate then explored other mechanisms of consulting with the cleaners. A letter was prepared for cleaners, to be translated into the most common languages thought to be spoken, and intended to be provided either directly to cleaners at the school or through having representatives present at the school to speak with and support the cleaners. Enquiries were made with the Community Services Directorate - Multicultural Services, and the Telephone Interpreter Service. At the same time, the disputes and litigation between United Voice and the contractors intensified, with the necessity for the Directorate to engage in further legal correspondence and also at that time to respond to a subpoena for historic cleaning records for 10 schools. In the end, due to resourcing limitations, no direct consultation was undertaken with the cleaners in the short time available before the hearing resumed on 20 September 2016.

29.Unlike section 27A of the FOI Act, which refers to consultation occurring where it is ‘reasonably practicable’, section 69A has no such qualifier. Although section 69A is written in mandatory terms, it cannot have been intended to be interpreted to impose a requirement of notification in cases where this is practically impossible. The FOI Act does not in its terms prevent the Tribunal from proceeding to review a decision, where section 69A has been unable to be complied with. Accordingly, the Tribunal proceeded to review the decision before it.

Unreasonable disclosure of personal information – section 41

30.Section 41 of the FOI Act provides:

41Documents affecting personal privacy

(1)A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).

(2)Subject to subsection (3), subsection (1) does not apply to a request by a person for access to a document only because of the inclusion in the document of matter relating to that person.

(3)Where—

(a)a request is made to an agency or Minister for access to a document of the agency, or an official document of the Minister, that contains information of a medical or psychiatric nature concerning the person making the request; and

(b)it appears to the principal officer of the agency, or to the Minister, as the case may be, that the disclosure of the information to that person might be prejudicial to the physical or mental health or wellbeing of that person;

the principal officer or Minister may direct that access to the document, so far as it contains that information, that would otherwise be given to that person is not to be given to that person but is to be given instead to a doctor to be nominated by that person.

31.The Tribunal is satisfied, and it was not contested, that the names, email addresses, and direct and mobile telephone numbers contained in the documents constituted personal information. Dispute centred on whether the disclosure of such information was unreasonable.

32.Having consulted with the public sector employees, the respondent did not maintain its objection to release of the mobile telephone numbers of the two remaining public sector employees. Each consented to the mobile telephone number contained in their email signature blocks being released. In addition, Ms Ryan, whose mobile telephone number had been considered exempt where appearing in email correspondence, consented to that number being made publically available. Given the consent of the persons concerned, the Tribunal is satisfied that such information, previously redacted from documents 12, 13, 16, 19, 20, 30, 32, 34, 35, 39, 41, 43, 44 and 45, is not unreasonable to disclose and may be released.

33.However, the mobile telephone number in document 1, contained in the signature block to the former adviser’s email (sent from an Australian Government email address) was still maintained to be exempt under section 41. In relation to documents 29 and 30, the direct number and the mobile telephone number of the former Chief of Staff to the former Education Minister were also submitted by the respondent to be exempt.

34.The respondent submitted that the disclosure of the mobile telephone numbers would be unreasonable because it was inherently private or personal information, and would expose persons to unsolicited contact from members of the public. It was further submitted that disclosure of personal information is not ordinarily in the public interest.[19] The respondent submitted that the mobile telephone numbers were likely to be information that a person would not ordinarily wish to be disclosed without their consent, and which would not ordinarily be known except to the person’s own immediate acquaintances, such that disclosure would be unreasonable.

[19] Thornton v DPP [2009] ACAT 40

35.The respondent cited a number of cases in which names of public sector employees, and their telephone numbers, were considered to be exempt from disclosure under section 41 of the FOI Act. These cases are helpful examples, but they do not stand as authority for a ‘blanket rule’ that personal information of this kind is always exempt from disclosure. The circumstances of the creation of the documents, the nature of the other information in them, and the broader context of the work being undertaken by the sector is relevant to the question of whether disclosure would be unreasonable.

36.

In the current circumstances, I am not persuaded by the respondent’s submissions.

I note that the nature of the work or roles undertaken by the public sector employees in this case is not equivalent to that in the cases cited by the respondent. If there are any general statements to be made, it would be that public sector employees work in the shadow of the FOI Act, and in the knowledge that once an email is sent externally it cannot be recalled. In a virtual world the email signature block is the modern business card, once given it cannot be recovered or dissemination of the information in it controlled.[20] While Mr Wynants gave evidence about the processes by which members of the public might seek to telephone ACT public servants, he conceded that once emails were sent to third parties the contact details contained in those emails were in open circulation. 

[20] While there is facility to have different email signature blocks for internal and external communications, there was no evidence this facility had been used in any of the documents in question

37.Against this background, if a public sector employee chooses to put their personal mobile number in their email signature block, I do not consider it is reasonably open, without further evidence, for the Tribunal to infer generally that this is information that the person does not want disclosed without their consent, or that it is information ordinarily known only to the person’s immediate acquaintances. The mere assertion that such information is ‘private’ does not make it so, the context of placing a mobile telephone number in the signature block of an email suggests the opposite. On the evidence available, in the administrative context, I do not consider that it is unreasonable to disclose the direct line and mobile telephone numbers in documents 1, 29 or 30.

38.In relation to the cleaner sign-in records, again there is no dispute that the information contained in those documents is personal information. The respondent submits that the cleaners have indicated, almost unanimously, that they do not wish for that personal information to be available publically, and cited legal principles about the significance and legal effect of signatures. For the reasons outlined at paragraphs 22 and 23, notwithstanding the respondent’s submissions, the Tribunal places little weight on the template ‘Statements of Objection to Disclosure of Information’ signed by the cleaners and provided by the contractors.

39.The respondent in its written submissions argued that the motive of the FOI applicant – taken to be United Voice – was relevant to whether disclosure would be unreasonable. The respondent submitted that the Tribunal could be satisfied that the cleaners would be subjected to unsolicited contact by United Voice, and pressured to join the union, if the sign-in records were released. It is difficult for the respondent to sustain this argument, when it has conceded that the information in the sign in books, together with all other information held by the Directorate, was still insufficient to enable direct contact with the cleaners for the purposes of consultation. The Tribunal is not persuaded by this submission.

40.That does not mean, however, that the Tribunal considers that disclosure of the information is not unreasonable. As was submitted by both parties, the Tribunal should consider and weigh up all of the circumstances, in deciding whether disclosure would be unreasonable.[21]

[21] Re Gordon Peter Wiseman v Commonwealth of Australia [1989] FCA 434

41.I am satisfied from the evidence before the Tribunal, and submissions of the applicant in relation to industry practices for recruitment of union members or cleaning staff, that in the cleaning industry, the information as to names and times of attendance of cleaners, and their particular workplace, is information that would not ordinarily be known outside one’s employer, fellow workers and immediate acquaintances, or in limited circumstances the union, and is thus likely to be unreasonable to disclose publically.[22]

[22] Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429

42.The applicant submitted however that the sign-in book is usually located at the front desk in a school, and is accessible to members of the public who attend the school. I am reluctant to conclude that as a consequence of this circumstance the information contained in such a book may be reasonably made publically available. Most schools contain a number of different books or clipboards that are located on or near the front counter for signature by parents, students or visitors, and the public release of information contained in such documents would ordinarily be considered unreasonable notwithstanding their usual location.

43.The applicant also pointed out that under the enterprise agreement the contractors were obligated to provide United Voice with employee names, the sites they worked on, and random samples of wages, such that the disclosure of similar information by the respondent to the applicant could not be considered unreasonable. The Tribunal is not persuaded by this submission. The reasonableness of disclosure must be considered by reference to disclosure being disclosure to the world.[23]

[23] See Haskins v ACT Director of Public Prosecutions [2016] ACAT 90

44.Having considered all of the circumstances and the parties submissions on this point, the Tribunal is satisfied that it would be unreasonable to disclose publically the personal information of cleaners contained in the sign-in books. The decision in this respect, in relation to documents 2-11, is confirmed.

45.The Tribunal notes that document 1 also contained the names of individual cleaners, a union representative and a representative of the contractor, which were considered to be exempt from disclosure under section 41. Also contained in some of the documents, including the ‘Ethical Suppliers Declarations’, were names and mobile numbers of other contractors’ staff, which had been considered exempt under section 41. For the reasons set out above, the Tribunal is satisfied that such information is exempt from disclosure under section 41 of the FOI Act. One exception to this conclusion, however, is the names of cleaners who gave witness statements to the Fair Work Commission, where appearing in that context. I am satisfied that those persons would not have any expectation that their names in that context would not be released, indeed, they are named in the published decision. In relation to document 20, therefore, I am satisfied that it is not unreasonable for that information to be disclosed.

46.I have considered whether the name of the deponent of each of the Ethical Supplier Declarations (documents 24, 25 and 26) should also be exempt from disclosure under section 41 of the FOI Act. While the name is clearly personal information, it is a declaration made by a person by virtue of their role as a director, employee or person associated with the contractor. The declaration is made in relation to a contract with a government agency, is voluntarily made by the particular deponent,[24] and on its face provides that it may be circulated to third parties. As discussed below, although the letter of Mr Cassaniti made general assertions of confidentiality, there was no evidence before the Tribunal from the individual deponents to support this finding. Given the content of the statutory declarations, and the legal framework for transparency and accountability of government procurement within which they were made, I do not consider it unreasonable for the names of the deponents of the Ethical Supplier Declarations to be disclosed.

Client Legal Privilege – section 42

[24] Albeit required to be provided by each contractor to the Directorate

47.Section 42 of the FOI Act provides:

42Documents subject to legal professional privilege

(1)A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.

(2)A document of the kind referred to in section 8 (1) is not an exempt document under subsection (1) of this section only because of the inclusion in the document of matter that is used or to be used for the purpose of the making of decisions or recommendations referred to in section 8 (1).

48.The respondent submitted that documents 14, 21, 22, 28, 36 and part of 41 were each on their face confidential communications between the ACT Government Solicitor and officers of ACT agencies for the purpose of giving or seeking legal advice, or the transmission of legal advice so received within the agency. Mr Wynants gave evidence to this effect.

49.The applicant noted that he was unable to comment on whether client legal privilege subsisted in the documents, being unable to see them, and would leave that to the opinion of the Tribunal. However, he submitted that depending upon their contents, any privilege subsisting in them may have been waived. Evidence was given by Ms Ryan as to a conversation she had with an official of the Directorate sometime after June 2015, confirming advice had been sought about the contractors’ labour hire arrangements. The official advised Ms Ryan advice had been sought on terminating certain contracts and the advice received had been that the Directorate could not terminate those contracts on the grounds raised. This information was also repeated by the Minister, and a number of other persons.

50.The Tribunal has considered the relevant documents[25], and is satisfied that client legal privilege would ordinarily attach to those communications.

[25] Pursuant to Section 74 FOI Act

51.The Tribunal is not satisfied that the conversations attested to by Ms Ryan constitute a waiver of that privilege. I note that the Directorate email which is document 34 contains the statement ‘previous summary of advice was discussed with United Voice’, however the evidence before the Tribunal is insufficient to satisfy it that disclosure of sufficient substance of the legal advice to constitute a waiver has occurred. As submitted by the respondent, reference to the outcome of legal advice is not a waiver.[26] The decision in this respect is confirmed.

[26] Attorney-General (NT) v Maurice (1986) 161 CLR 475; Spier v ACT Electoral Commissioner & Anor [1995] ACTAAT 125 at [20-22]

52.I note that the internal review decision in relation to document 17 had exempted from disclosure a reference to calling a meeting. The respondent made no submissions in relation to this information in this document, and on its face it is only tenuously information to which client legal privilege attaches.  The decision in that respect is varied to permit disclosure of that information.

Business Affairs – section 43

53.The respondent contended that section 43 of the FOI Act applied to information contained in the sign-in books, some emails from the contractors to the Directorate, three Ethical Supplier Declarations, and a Cleaning Contractor Compliance Review conducted by Bellchambers Barrett in December 2015. Section 43 provides:

43Documents relating to business affairs etc

(1)A document is an exempt document if its disclosure under this Act would disclose—

(a)trade secrets; or

(b)any other information having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed; or

(c)information (other than trade secrets or information to which paragraph (b) applies) concerning a person in respect of his or her business or professional affairs or concerning the business, commercial or financial affairs of an organisation or undertaking, being information—

(i)the disclosure of which would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her lawful business or professional affairs or that organisation or undertaking in respect of its lawful business, commercial or financial affairs; or

(ii)the disclosure of which under this Act could reasonably be expected to prejudice the future supply of information to the Territory or an agency for the purpose of the administration of a law or the administration of matters administered by an agency.

(2)Subsection (1) does not apply to a request by a person for access to a document—

(a)only because of the inclusion in the document of information concerning that person in respect of his or her business or professional affairs; or

(b)only because of the inclusion in the document of information concerning the business, commercial or financial affairs of an undertaking where the person making the request is the proprietor of the undertaking or a person acting on behalf of the proprietor; or

(c)only because of the inclusion in the document of information concerning the business, commercial or financial affairs of an organisation where the person making the request is the organisation or a person acting on behalf of the organisation.

(3)A reference in this section to an undertaking includes a reference to an undertaking that is carried on by, or by an authority of, the Territory, the Commonwealth, a State or by a local government authority.

54.The correspondence on behalf of the contractors from Mr Cassaniti stated that the contractors felt that there was an interest served by a commercial entity not having its business arrangements available to the world at large. The respondent submitted that the relevant documents contained information about the contractors’ commercial dealings with the government, the release of which might disadvantage them as compared with their competitors, or might damage their relationship with the agency or the Territory more generally. The relevant information was identified as being the terms of the contracts with the agency. Mr Cassaniti wrote that if contractors felt that their information would be publically released in response to an FOI request, this would hinder the full disclosure of commercial information to the Directorate.

55.While assertions were made about the nature of the information in the documents, and its effect on business affairs or the relationship between contractors and Directorate, no witness was called on behalf of the contractors to give evidence of these assertions.

56.On the evidence available, the Tribunal was unable to be satisfied that the asserted exemption applied without reference to the documents themselves. Having viewed the documents, the Tribunal is not persuaded by the respondent’s submissions, and is not satisfied that any subparagraphs of section 43(1) currently apply to these documents.

57.As submitted by the applicant, the terms of the contracts with the agency are publically available, including rates of pay. The contractors additionally are bound by enterprise agreements, which terms were also publically available. Litigation in relation to the commercial effect upon the contractors of complying with those terms was already on foot[27] and involved the public hearing of more detailed commercial information than that contained in the relevant documents. For example, while document 18 contained frank information about the impact upon the contractors of moving to the new bargaining agreements, that information was detailed publically in the proceedings in the Fair Work Commission.

[27] Phillip Arcidiacono t/as Rose Cleaning Service [2016] FWCA 1769

58.The Ethical Supplier Declarations are in a publically prescribed form, the potential contents of which include publically available information (such as details of Court or Tribunal proceedings against the contractor) and potentially commercially sensitive information as to remedial actions required or intended to be undertaken by the contractor. As documents which are required by the terms of the Panel Deed to be regularly submitted, accurately completed and their accuracy formally attested to, the release of these documents pursuant to an FOI request could have no impact on the provision of this information to the Directorate.

59.It was also argued that information in the sign-in books could disclose to competitors, who may wish to procure additional employees, the names of employees, their numbers and working hours. The difficulty with this argument, as noted above, is that the sign in books do not provide contact details for the cleaners. As submitted by the applicant, a competitor would be better advised to wait outside a work site and approach potential employees at the commencement or end of a shift, than to look at the sign-in books. The applicant further submitted that the cleaners possess no special knowledge of the contractors’ operation, and that if a contract was lost the contractors had an obligation to invite an incoming contractor to a site meeting with the cleaners who might be taken on by the incoming contractor. The applicant submitted that cleaning contractors in the industry did not “scour documents released under freedom of information laws” looking for potential employees, that this was not how the industry worked.

60.The Tribunal is not satisfied that the sign-in books contain information which would be exempt under section 43 of the FOI Act.

61.In relation to the ‘Compliance Review’ which is document 46, there is no evidence before the Tribunal on which it could be satisfied that the release of information previously redacted from that report, which is now two years old, would reasonably be expected to adversely affect any of the contractors named in that document, let alone that any such adverse effect would be unreasonable as contemplated by subsection 43(1)(c)(i)[28]. Given the age of the information, it is not a conclusion that can easily be reached notwithstanding that the content of the document exposes shortcomings in the performance of some of the contractors in parts of 2014 and 2015. Nor is there any real evidence that the release of the information would damage the future supply of information to the Territory as contemplated by subsection 43(1)(c)(ii). I am not satisfied that any part of that document should be exempt from disclosure by virtue of section 43 of the FOI Act. For the same reasons the Tribunal is not satisfied that document 33, a letter complaining to the Directorate about the behaviour of United Voice, is exempt pursuant to section 43.

Duty of confidence – section 45

[28] See Searle Australia v Public Interest Advocacy Centre (1992) 36 FCR 111 re ‘unreasonably’

62.The respondent submitted that the ethical supplier declarations contained at documents 24, 25 and 26, were exempt from disclosure on the basis that to disclose the documents would amount to a breach of confidence. Section 45 of the FOI Act provides:

45Documents containing material obtained in confidence

(1)A document is an exempt document if its disclosure under this Act would constitute a breach of confidence.

(2)Subsection (1) does not apply to any document to the disclosure of which section 36 (1) (a) applies or would, but for section 36 (2), (3) or (4), apply, being a document prepared by—

(a)a Minister; or

(b)a member of the staff of a Minister or an officer of an agency in the course of his or her duties; or

(c)a prescribed authority in the exercise of its functions;

for purposes relating to the affairs of an agency or the official affairs of a Minister unless the disclosure would constitute a breach of confidence owed to a person or body other than—

(d)a person in the capacity of Minister, member of the staff of a Minister or officer of an agency; or

(e)an agency or the Territory.

63.It is accepted that the breach of confidence envisaged by section 45 refers to an equitable duty of confidence.[29] The applicant submitted that in this case, on the facts no such duty existed.

[29] Re Maher and Attorney-Generals Department (1986) 13 ALD 98

64.A duty will arise where the information is of the requisite character of confidentiality, being not of common or public knowledge, and is provided in circumstances of confidentiality or in which a reasonable person would expect such a duty to exist. Consequently, the circumstances at the time of provision or receipt of the information are critical.

65.Mr Cassaniti wrote on behalf of the contractors that “the information sought was provided to the Directorate on a confidential basis, solely for the Directorate’s use, and in circumstances where the Directorate agreed to maintain that information in confidence and/or in which a duty of confidentiality otherwise existed”. While this statement accurately paraphrases legal principles, it does not provide any factual information on which the Tribunal might be satisfied that the declarations were provided in circumstances of confidentiality. No witness from the ranks of the contractors was called to give evidence of the circumstances under which the declarations were provided, or their understanding at the relevant time as to the confidentiality of those documents.

66.It was recounted in Mr Wynants’ witness statement, that:

The declarations are provided to the respondent by the contractors under compulsion and are not given voluntarily. They are returned by the contractors stamped “confidential”, and I would expect the receiving officer in the agency to treat the documents accordingly. They are securely stored and will ultimately be placed on the contractors confidential files.

67.It is worth noting at this point that referring to a document as ‘confidential’ after the event, does not make it so, no matter how many times the word is used.

68.Indeed, in his oral evidence, Mr Wynants clarified that the declarations in question were not returned by the contractors stamped ‘confidential’. He said that on his recollection the stamp was added subsequently by the Directorate after correspondence[30] was received by the Directorate from Accolade Advisory in similar terms to that quoted in paragraph 65.

[30] That correspondence was not within the scope of the FOI request, and a copy of the correspondence was not put in evidence before the Tribunal

69.The applicant pointed out that under the Panel Deed the template for the ethical supplier declaration contains a statement “This Ethical Suppliers Declaration may be sent to the relevant Union (through UnionsACT), ACT Workcover and other regulatory bodies deemed appropriate for verification of information supplied …”

70.Is the information in the ethical supplier declarations information of the requisite kind for a duty of confidence to exist? As noted previously some of the information in the ethical supplier declarations could be public in nature. However, the number and names of cleaning staff employed by each contractor is personal and commercial information, and the details of any remedial action being taken may be private commercial information. The Tribunal is satisfied that some of the information potentially contained in the documents is of a kind that could attract a duty of confidentiality. With no evidence about their specific contents, the Tribunal was unable to determine the question of exemption under this ground without viewing the documents themselves.

71.The Tribunal viewed documents 24, 25 and 26 and confirmed that two of the three had been stamped ‘confidential’, that all contained the warning about dissemination of the document, and that each document contained names of individual staff. No document contained details of remedial action or anything else that might reasonably be argued to be sensitive commercial information. One document contained an organisational chart which, in the view of the Tribunal, did not amount to sensitive commercial information.

72.Were the circumstances under which these three ethical supplier declarations were provided to the Directorate such as to create such a duty of confidence? The warning about dissemination of the documents was clear, and was inconsistent with any obligation of confidence arising. There was no evidence of circumstances consistent with, or a shared understanding of, confidentiality at the time the documents were provided. On the contrary, there is evidence that after the event, an issue as to confidentiality was raised. Once received, the documents are Territory records and must be managed in accordance with the Territory’s statutory obligations.[31]  It is not open to the Directorate to subsequently agree that documents already received will be subject to a duty of confidence, indeed this would be prohibited if the agreement was for the purpose of avoiding disclosure which may be required by law.[32] I am not satisfied that section 45 applies to exempt the ethical supplier declarations from disclosure.

[31] Territory Records Act 2002

[32] BGC (Aust) Pty Ltd v Freemantle Port Authority (2003) 28 WAR 187

73.The situation in relation to the Ethical Supplier Declarations can be contrasted with the situation in relation to the attachment to the email from United Voice to the directorate which is included in document 31 and referred to in document 32. That attachment consisted of a statutory declaration which was said by the covering email to be “provided on a confidential basis … this statement cannot under any circumstances be provided to the employer and the identity of the cleaner who has made this statement must not be disclosed to the employer without the author’s and our consent. To be explicitly clear, the statement is confidential.” The evidence before the Tribunal was unclear as to whether that statement remained confidential.  It was proposed on internal review to be disclosed to the applicant (from whose organisation it had emanated) but not to be made available online because it was a document provided subject to a duty of confidentiality. This approach is consistent with the Tribunal’s assessment of the circumstances surrounding the document.

Conclusion

74.The Tribunal confirms that personal information of the cleaners, being their signatures and names, where contained in the sign-in records, some email correspondence, the ethical supplier declarations, and the Compliance Review, is exempt from disclosure under section 41 of the FOI Act.

75.The mobile and direct telephone numbers of public sector employees, and Ms Ryan is not exempt from disclosure. The information as to names, telephone numbers and email addresses of contractors staff is exempt.

76.The Tribunal confirms documents 14, 21, 22, 28, 36 and part of 41 attract client legal privilege, which has not been waived, and those documents are exempt from disclosure.

77.In relation to all of the documents within the scope of the request, the Tribunal is not satisfied that section 43 or section 45 apply to exempt from disclosure any of the information contained in those documents, other than as noted in relation to documents 31 and 32.

78.The Tribunal will return Exhibit R-3 to the respondent’s solicitor, and direct the respondent to provide the applicant access to the documents in accordance with this decision.

………………………………..

Presidential Member M-T Daniel

HEARING DETAILS

FILE NUMBER:	AT 23/2016
PARTIES, APPLICANT:	Stefan Russell-Uren
PARTIES, RESPONDENT:	Director-General, Education Directorate
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	Dr D Jarvis
SOLICITORS FOR APPLICANT	N/A
SOLICITORS FOR RESPONDENT	ACT Government Solicitor
TRIBUNAL MEMBERS:	Presidential Member M-T Daniel
DATES OF HEARING:	16 August 2016 & 20 September 2016