Schubert v Director-General, Department of Environment and Conservation
[2006] NSWADT 296
•10/10/2006
CITATION: Schubert v Director-General, Department of Environment and Conservation [2006] NSWADT 296 DIVISION: General Division PARTIES: APPLICANT
Carol Schubert
RESPONDENT
Director-General, Department of Environment and ConservationFILE NUMBER: 063202 HEARING DATES: 28/08/2006 SUBMISSIONS CLOSED: 08/28/2006 EXTEMPORE DECISION DATE: 08/28/2006
DATE OF DECISION:
10/10/2006BEFORE: Montgomery S - Judicial Member CATCHWORDS: access to documents - confidential material - access to documents - personal affairs - Freedom of Information Act - access to documents - confidential material - Freedom of Information Act - access to documents - personal affairs MATTER FOR DECISION: Principal matter LEGISLATION CITED: Freedom of Information Act 1989 CASES CITED: Chief Executive Officer, State Rail Authority v Woods [GD] [2003] NSWADTAP 25
Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429
Commissioner of Police v District Court of New South Wales (Perrin's Case)(1993) 31 NSWLR 606
Department of Health v Jephcott (1985) 62 ALR 421
Gilling v General Manager Hawkesbury Shire Council [1999] NSW ADT 94
Thompson v The Lord Howe Island Board [2003] NSWADT 193
Young v Wicks (1986) 13 FCR 85REPRESENTATION: APPLICANT
RESPONDENT
In person
S Mahony, SolicitorORDERS: The decision under review is affirmed
REASONS FOR DECISION
1 Ms Schubert applied to the Department of Environment and Conservation under the Freedom of Information Act 1989 (“the FOI Act”) for access to a number of documents held by the Department. In her application she wrote:
2 The Department’s FOI officer identified seven documents held by the Department that fell within the scope of Ms Schubert’s request. Documents 2 and 3 were released in full and the remaining documents were released with deletions. The Department asserts that the documents that are the subject of this application are partly exempt as follows:
“I request access to the following documents:
1. The letter of complaint from Chris Ingram, Jindabyne Police that he sent to NPWS regarding myself in May 1997
2. Report to NPWS executive from D Colston (NPWS employee at the time who was assigned to investigate this complaint)
3. All letters from NPWS to Chris Ingram regarding this matter
4. Private letters written by myself to other Government Departments that Chris Ingram obtained and gave to D Colston.
5. D Colston's notes in regard to his interview with Chris Ingram at Jindabyne
6. All and any other material relating to this matter including any other letters from Chris Ingram in regards to myself.
I do not believe the rules of confidentially apply because NPWS Trim record title showed "Chris Ingram -complaint re action of NPWS employee, Carol Schubert" Trim record number C1997/1287."
3 The Department’s FOI officer advised Ms Schubert that third party consultation was required regarding the request and also wrote to the person who made the complaint (“the third party”) to determine whether they objected to release of the complaint and related documents. The third party was not told the identity of the person who has sought release of the document through FOI proceedings. The third party expressed strong concerns about the release of the information including concerns relating to the person's personal safety. The third party also advised that they had submitted the information under the assumption that their identity would be vigorously protected.
1. Report dated 17 June 1997 from D Cholson to NPWS Manager Corporate Services (partly exempt)
4. Memo dated 20 May 1997 from Executive Director Operations to Director General (partly exempt)
5. Director General's Document Action sheet 19 and 20 May 1997 (partly exempt)
6. Response letter from Executive Director Operations to third party complainant dated 19 May 1997 (partly exempt)
7. Letter of complaint from third party complainant dated 13 May 1997 (partly exempt)
4 Ms Schubert applied for an internal review of the Department's decision and subsequently applied to the Tribunal for an external review. A copy of the disputed documents has been provided to the Tribunal on a confidential basis.
5 On 28 August 2006, following the hearing, I affirmed the Department's decision. Ms Schubert has requested written reasons for my decision. These reasons are provided in response to that request.
Applicable legislation
6 Section 5 of the FOI Act provides that the objects of the FOI Act are to extend, as far as possible, the rights of the public to obtain access to information held by the Government. The legally enforceable right to be given access to documents held by the Government is subject only to such restrictions as are reasonably necessary for the proper administration of the Government. The discretions conferred by the FOI Act shall be exercised, as far as possible, so as to facilitate and encourage the disclosure of information. Section 16 of the FOI Act provides that a person has a legally enforceable right to be given access to an agency's documents in accordance with the FOI Act.
7 Subsection 25(1) of the FOI Act allows an agency to refuse access to an exempt document in certain circumstances, including where a document is an "exempt" document as defined in the FOI Act. Subsection 25(4) of the FOI Act provides that an agency shall not refuse access to an exempt document if it is practicable to give access to a copy of the document from which the exempt matter has been deleted and if it appears to the agency that the applicant would wish to be given access to such a copy. Pursuant to section 61 of the FOI Act the agency has the burden of establishing that its determination was justified.
8 Clause 6 of Schedule 1 of the FOI Act provides as follows:
9 Clause 13 of Schedule 1 to the FOI Act provides in part:
6 Documents affecting personal affairs
(1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).
(2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made.
The Department’s Case
13 Documents containing confidential material
A document is an exempt document:
(a) …
or
(b) if it contains matter the disclosure of which:
(i) would otherwise disclose information obtained in confidence, and
(ii) could reasonably be expected to prejudice the future supply of such information to the Government another to an agency and
(iii) would on balance be contrary to the public interest.
10 The Department relies on evidence from Mr Bart Barrack who was in 1997 Acting Ministerial Liaison Officer and Acting Executive Assistant to the Director General; from Ms Dawn Easton, the Department’s Manager Corporate Governance, and from Mr Racho Donef, a Senior Project Officer (Freedom of Information) with the Department. Mr Donef provided evidence regarding the history of this matter and the Department’s approach to dealing with the complaint. He also attended the hearing and gave evidence on a confidential basis.
11 Mr Barrack states that neither the Department nor its predecessor had a policy of placing confidentiality stamps on incoming correspondence. Ms Easton’s evidence is that complaints and allegations about the conduct of staff will be less likely to be made if the organisation does not provide confidentiality to complainants.
12 The Department argues that it is entitled to refuse access to parts of the documents as exempt documents on the ground set out in clause 6(1) of Schedule 1 to the FOI Act i.e. that release would unreasonably disclose the personal affairs of a person; and clause 13 (b) of Schedule 1 to the FOI Act i.e. that the release would breach confidence, prejudice the supply of further information and be contrary to the public interest.
13 The Department contends that the letter of complaint dated 13 May 1997 (“the complaint”) was received from the author bearing the "confidential" stamp. This is an issue in dispute and the original of the complaint is not available. The Department points to a letter of 27 March 2006 from the third party, which asserts that the complaint was made to Department on a confidential basis.
14 The Department has policies in place that provide for complainants' identities to be treated confidentially. It contends that it is less likely that complaints and allegations will be made if the organisation does not treat complaints confidentially.
15 The Department also says that it undertook a check of its document management systems and this confirms that the only persons who have accessed either the physical file on which the complaint has been stored since it was received and the file on which Ms Schubert’s FOI application is stored, are persons within the Corporate Governance Unit that receives and deals with FOI applications, Central Records and the Legal Branch. The Department argues that in no manner can it be said that Ms Schubert’s personal information or the third party’s personal information have been made available to the public at large.
16 Ms Mahony, solicitor for the Department, submits that the balance of the public interest favours the maintenance of confidentiality. She argues that factors that must be weighed include:
17 She also relies on information contained within the material that is said to be exempt and the material that was provided to the Tribunal on a confidential basis. Ms Mahony submits that the release of information relating to a confidential complaint about a Department employee would contravene the confidential basis on which the complaint was made, making disclosure unreasonable.
a) people being given access to documents held by government subject to the FOI Act;
b) public sector employees being advised of the terms of misconduct allegations made against them and actions arising from the allegations;
c) complainants being afforded confidentiality so as not to inhibit the report of alleged misconduct and the consequential investigation of the allegations;
d) Government agencies being able to receive and investigate misconduct allegations; and
e) individuals' rights to privacy.
18 Ms Mahony says that the Department has partially released the documents after deleting personal information that is exempt documents on the ground set out in clause 6(1) of Schedule 1 to the FOI Act. Details that would identify the third party, such as the third party’s name and address, have been excised in accordance with section 25(4) of the FOI Act. The Department contends that the information is personal information and that its disclosure would be unreasonable. Ms Mahony says that the complaint was made by the third party in that person's private capacity; this is not a context in which the person is undertaking a professional function such that their identity would not be considered "personal information" cf. Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606 (“Perrins case”).
19 Ms Mahony also says that the circumstance of the complaint is distinguishable from those in Gilling v General Manager Hawkesbury Shire Council [1999] NSW ADT 94 where the complaint concerned a property development such that the Tribunal said that the identity of affected persons being neighbours of the property was available in the telephone book. In those circumstances the Tribunal considered that the identity and address of the complainant was not "highly sensitive".
20 Ms Mahony submits that the purpose of the personal information exemption is to balance the public interest in privacy issues with the public interest in persons having access to information held by government. She argues that whether or not disclosure is unreasonable is a matter of fact and degree. In this regard she says that it is relevant that the third party has been consulted as to whether that person objects to the disclosure of their personal information and in this case the person expressed a strong objection to disclosure. Notwithstanding the objections of the third party, the complaint and other documents that relate to the complaint have been partly released in a balancing of the interests of the third party and Ms Schubert. To fully release the documents would make the interests of Ms Schubert paramount over those of the third party, and ignore the third party's objections. The Department contends that Ms Schubert was made aware of the content of the complaint in 1997 and the full text of the complaint apart from identifying personal information of the third party have been provided. Apart from curiosity or retribution, there can be no further public interest for her to continue seeking further details of the complaint.
21 In the present case Ms Schubert states that she has become aware of the identity of the complainant through the Department’s document management system (“TRIM”) and contends that in this way the confidentiality of the information has been lost. However, Ms Mahony submits that it should be noted that:
Ms Schubert’s Case
despite the third party being made aware that Ms Schubert claims to know their identity, the third party maintains its objection to release;
if Ms Schubert is in fact aware of the third party's identity, what further motivation can there be for her to seek release of the document?;
release under FOI must be considered not only release to Ms Schubert but release to the world as a whole (Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 at 440). The means through which Ms Schubert claims to have become aware of the identity of the third party, the Department’s document management system, is not available to the world at large.
the Department contends that the personal information should not be released to the world at large.
22 Ms Schubert asserts that she has been discriminated against, and has been denied natural justice and procedural fairness. She says that she was never given full details of the accusations against her, and relevant documents were not disclosed to her at the time of the complaint. She was never advised formally or informally of the outcome and no disciplinary action was ever taken. She says that she will be seeking to clear her name in the future and seeks access to the complete documents.
23 She contends that the evidence does not support the Department’s contention that the complaint was made to the Department on a confidential basis. She also contends that she knows the identity of the third party and has known their identity because she had been alerted to an entry in TRIM. She says that on TRIM the complaint letter was registered under the security level of "Unclassified". She says that "Unclassified" is the lowest security level the Department has, most of the Department’s records fall into this category and access is not restricted. Permanent employees of the Department, contractors, part-time and casual employees all had access to see this TRIM record.
24 She argues that the Department never protected the letter of complaint and did not take any security safeguards to ensure the document was kept confidential. This correspondence should not be treated as restricted or confidential as all staff of the Department had access to this TRIM entry. She says that in about 2004 she raised her concerns with Ms Gallagher, the Department’s Human Resource Manager for the area and that at that time Ms Gallagher did not seem concerned about the record being on the TRIM system. The record was only removed at Ms Schubert’s insistence. She submits that the Department cannot now assert that it is a confidential document.
25 Ms Schubert contrasts the approach taken by the Department in relation to the complaint with the approach taken by other Government Departments to which she had complained regarding misconduct by various police officers. She says that as a whistleblower she understood and was told that her correspondence would be treated as confidential and privilege information.
26 She also argues that the third party stated in the complaint that they would "cooperate fully in the event that you see fit to investigate". She says that the third party does not request that their identity or letter be treated as confidential and making this statement implies they would have been agreeable to the disclosure of their identify and the nature of their compliant.
27 While Ms Schubert does not dispute the Department’s assertion that the Department’s document management system is not available to the world at large, she says that her world at large is the small community where she lives and the Department where she works. She says that the Department would be the largest employer in her community and many local people have connections to the Department through family or friends who work there. She says that she was the subject of gossip because of the TRIM record entry and it has caused damage to her reputation.
28 She says that if the Tribunal orders the release of the document without the deletions, she will be taking action in relation to what she alleges is a breach of confidence and lack of protection to her as a whistleblower. She seeks strict guidelines to be put in place so that all future correspondence from the public is treated as confidential and privilege information. She says that the disclosure of the complaint is in the public interest as it will show that she was not protected as a whistleblower and that her letters and identity were disclosed to the person about whom she had complained, who then took revenge on her.
Findings
29 Following the hearing of this matter I affirmed the decision under review. In doing so it was necessary to ascertain whether in the circumstances the information can be said to have been obtained in confidence i.e. whether it was given with an express or implied pledge of confidentiality: See Department of Health v Jephcott (1985) 62 ALR 421 at 425 per Forster J. The relevant time at which the confidentiality of the document must be assessed is the time that the information was obtained, not some later time when Ms Schubert or a work colleague accessed the TRIM system.
30 In my view it is more likely than not that the complaint was given in confidence. The complaint was sent directly to the Director General and the file copy is marked with a "Confidential" stamp. There is some dispute about who marked it as ‘Confidential’ however in March 2006 the third party confirmed that the complaint was made on a confidential basis.
31 While I cannot be absolutely certain who put the ‘confidential’ stamp on the complaint, on balance I am satisfied that it was treated confidentially and that makes me think that it was probably given in confidence. This view is supported by the recent assertion by the third party that the compliant was given in confidence. I do not consider that the confidentiality has been lost because of information that was available on the Department’s TRIM system. Release under FOI is release to the whole world: see Colakovski. In my view, the first limb of Clause 13(b) of Schedule 1 to the FOI Act is satisfied.
32 I accept Ms Easton’s evidence that complaints and allegations about the conduct of staff will be less likely to be made if the Department does not provide confidentiality to complainants. Accordingly I am satisfied that it is reasonable, in the sense of not irrational absurd or ridiculous, that if confidentiality is not granted to the third party then the public would in the future be less likely to make similar disclosures to the Department. In my view, the second limb of Clause 13(b) of Schedule 1 to the FOI Act is satisfied.
33 The remaining issue in dispute with respect to the confidentiality exemption claim is whether the public interest test contained in clause 13(b)(iii) is satisfied.
34 The public interest test is a balancing exercise between Ms Schubert’s interests and the interests of preserving the confidence of the third party. The Department contends that on balance the public interest favours the maintenance of the confidentiality and that the public interest in Ms Schubert's access to information has been satisfied by providing to her a copy of the documents sought without the information that has been deleted. Ms Schubert contends that there is public interest in exposing a breach of confidence and lack of protection to her as a whistleblower.
35 In my view, the disclosure of the identity of the third party is not necessary for the purpose that Ms Schubert has identified. The issue that she has raised can be investigated without release of the information to the whole world under the FOI Act. In the circumstances of this matter I am satisfied that the public interest favours the maintenance of the confidentiality. That being the case, the third limb of Clause 13(b) of Schedule 1 to the FOI Act is satisfied.
36 The Department also argues that it is entitled to refuse access to parts of the documents by virtue of clause 6(1) of Schedule 1 to the FOI Act because the release would unreasonably disclose the personal affairs of the third party.
37 I am satisfied that the complaint was made in a private capacity, not an official capacity. This much is clear from the complaint. This is my view regardless of whether or not the information that is contained in the complaint was obtained in an official capacity. The copy of the documents that Ms Schubert has been given reveals most of the detail of what was in the complaint. In issue is the question of whether the excised information that is not exempt under of Clause 13(b) of Schedule 1 to the FOI Act is information concerning the personal affairs of the third party, and if so whether its disclosure would be unreasonable.
38 It is Ms Schubert’s view of that the third party is, in all probability, a person known to her and that the third party's name and occupation is already available generally to her and anyone able to access the TRIM system. Therefore it cannot be said that this is in any way information concerning their personal affairs.
39 In Young v Wicks (1986) 13 FCR 85 at 89 per Beaumont J stated in relation to a similar provision to that in clause 6 contained in section 41 of the Commonwealth Freedom of Information Act 1982:
40 In Colakovski Lockhart J. stated at 431:
“In my opinion, none of the subject documents contain information relating to the “personal affairs” of the applicant within the meaning of s 41(1) of the Act. The reference to “personal affairs” of a person was, I think, intended to have its ordinary dictionary meaning, that is to say, to refer to matters of private concern to an individual”.
41 In Perrins case Kirby P stated at page 625:
“It is also plain from the reasons for judgment of the full court in Dyrenfurth that their Honours preferred not to substitute for the word “personal” where appearing in s 41(1) a word such as “private”, though they recognised that according to the ordinary use of the word “personal” it connotes something private to the person, or, as it was put by Beaumont J in Re Williams at 221, the expression “personal affairs” refers “to matters of private concern to an individual”.
See also the judgment of Wilcox J in Bleicher v Australian Capital Territory Health Authority (1990) 20 ALD 625, where his Honour carefully reviewed the authorities relating to the meaning of “personal affairs” in s 41(1) and s 12(2) of the FOI Act and observed at 630 that: “… matters related to the pursuit of a vocation and ‘personal affairs’ are not necessarily mutually exclusive categories”. I respectfully agree with his Honour's observation.
The meaning of the expression “personal affairs” in s 41(1) of the FOI Act came before a full court of this court (Sheppard, Beaumont and Pincus JJ) in Wiseman v Commonwealth (24 October 1989, unreported). The full court noted that the Administrative Appeals Tribunal, from whose decision the appeal was brought to the Federal Court, had expressed the view that “personal affairs” referred to “matters of private concern to individuals”, citing the words of Beaumont J in Re Williams. Their Honours did not themselves consider the meaning of the expression “personal affairs”, but it is plain from their reasons for judgment that they saw no reason to disagree with the Tribunal's statement.”
42 Whether a document contains information about the "personal affairs" of a person is a question of fact to be determined from the circumstances of each individual case: Chief Executive Officer, State Rail Authority v Woods [GD) [2003] NSWADTAP 25 (“ Woods ”) at paragraph 31. The circumstances of the case will determine whether or not a person's name and other identifying characteristics are personal affairs for the purpose of clause 6 of Schedule 1 of the FOI Act. A distinction has been drawn in the authorities between persons who are carrying out their functions as officers of an agency ( Perrins Case) and persons outside the agency ( Gilling -v- General Manager, Hawkesbury CC [1999] NSWADT 43; Thompson -v- The Lord Howe Island Board [2003] NSWADT 193)
“In its context, the words "personal affairs" mean the composite collections of activities personal to the individual concerned.”
43 In Woods at paras 26 and 27 the Appeal Panel stated that:
44 In Woods the document in issue was a petition that had been signed by work colleagues of the applicant. The Appeal Panel stated:
“26 Where a document deals with conduct that is being appraised or evaluated as part of the exercise of management responsibilities, it would not be open to claim that the author of the report is engaged in an activity involving their ‘personal affairs’. This is the approach reflected in Perrin’s case. But the situation is different if the employee is not reporting as part of the exercise of management responsibilities about the conduct of another employee. In those circumstances, it may well be that the report forms part of the first employee’s personal affairs. This possibility is recognised in the case examples cited by the Queensland Commissioner in Re Stewart - the employee against employee discrimination complaint relating to conduct in the workplace (the Victorian case), and the request for a transfer referring to interpersonal difficulties with another worker (the Commonwealth case). A private citizen’s complaint of alleged rudeness by a public servant would we consider, clearly involve an aspect of the no doubt ‘personal’ life or affairs of the citizen.
27 There is not, as we see it, a fundamental difference to be found in the situation of a work colleague who experiences the same type of conduct and makes a complaint to management. The conduct remains of concern to them in a private capacity.”
45 I have examined the documents in issue in this matter. On the basis of the decision of the Appeal Panel in Woods and the authorities discussed therein, it is my opinion that the documents contain information concerning the personal affairs of the third party. That information has been excised from the copies provided to Ms Schubert. Accordingly, the next issue for determination is whether disclosure of the document would be unreasonable.
“28 The contents of the ‘petition’ are, as we see it, reasonably open to be characterised as matters of personal or private concern to the fellow employees. The document does not purport to be a neutral evaluation of performance or competence of another employee by persons trained or tasked to do that. The present case is not one involving a tasked activity (cf. Perrin’s case). The sources of the report are co-workers. None of them were at the relevant times in a supervisory relationship to Woods and Brew. They had a discretion whether to file any report. They were not directed to do so. They were seeking to draw to the attention of management, issues that were of personal concern to them and which they also saw as relevant to the effective management of the organisation and requiring action.”
46 Whether disclosure is unreasonable is a matter of fact and degree. The third party has been consulted and they expressed a strong objection to disclosure. Notwithstanding the objections of the third party, the complaint and other documents that relate to the complaint have been partly released. The Department submits, and I agree, that this demonstrates a balancing of Ms Schubert’s interests and those of the third party. To fully release the documents would make Ms Schubert’s interests paramount over those of the third party, and ignore the third party's objections. It would also contravene the confidential basis on which the complaint was made.
47 This is not a situation in which Ms Schubert seeks to have the complaint removed from the file to clear her name. Her goal is to expose a breach of confidence and lack of protection to her as a whistleblower. I have already indicated my view that Ms Schubert can achieve that goal without access to the excised information. In my view, this disclosure would be unreasonable.
48 The combination of these exemptions is sufficient to justify the decision to withhold the excised material. It follows that the determination that was made is the correct and preferable decision and should be affirmed.
49 The Department presented confidential submissions in relation to other reasons said to establish that the determination is justified. Given my findings it is not necessary that I consider these matters.
Order
The decision under review is affirmed.
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