Singh v Legal Aid Commission (No 2)

[2015] NSWCATAD 5

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Singh v Legal Aid Commission (No 2) [2015] NSWCATAD 5

Hearing dates:

On the papers

Date of orders:

14 January 2015

Decision date:

14 January 2015

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

In matter No. 133096, with the exception of those matters where I have found that the withheld information should be released, the Respondent’s determination to refuse to grant access to the redacted information is affirmed.

In matter No. 133101, with the exception of those matters where I have found that the withheld information should be released, the Respondent’s determination to refuse to grant access to the redacted information is affirmed.

In matter No. 133347 the determination is affirmed.

Catchwords:

Government information - public interest considerations against disclosure - conclusive presumption - legal professional privilege - false or unsubstantiated allegations about a person that are defamatory - personal information - operation of agencies – confidential information – whether prejudicing any person's legitimate business, commercial, professional or financial interests – whether prejudicing the supply to an agency of confidential information – whether prejudicing the effective exercise of that agency's functions

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Civil and Administrative Tribunal Act 2013
Government Information (Public Access) Act 2009

Cases Cited:

AIN v Medical Council (NSW) [2013] NSWADT
Attorney-General’s Department v Cockcroft (1986) 10 FCR180
AWB Ltd v Cole (No 5) (2006) 155 FCR 30
Baker v Campbell (1983) 153 CLR
Battin v University of New England [2013] NSWADT 73
Bennett v Vice Chancellor, University of New England [2000] NSWADT 8
Brookfield Multiplex Ltd and Anor v International Litigation Funding Partners Pty Ltd and Ors (No 2) (2009) 256 ALR
Cianfrano v Department of Commerce [2008] NSWADTAP 1
Cianfrano v Premiers Department [2006] NSWADT 137
Colefax v Department of Education and Communities (No 1) [2013] NSWADT 42
Colefax v Department of Education and Communities (No 2) [2013] NSWADT 130
Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19
Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.
Flack v Commissioner of Police, NSW Police Force [2011] NSWADT 286
Hill v University of Western Australia [1995] WAICmr 60
Hurst v Wagga Wagga City Council [2011] NSWADT 307
Lawrence v Port Stephens Council [2008] NSWADT 243.
Leech v Sydney Water Corporation [2010] NSWADT 198
Macquarie University v Howell (No 2) [20091 NSWADTAP 19
Manly v Ministry of Premier and Cabinet (Supreme Court of Western Australia, delivered 15 June 1995
Mann v Carnell(1999) 201 CLR 1
McKinnon v Blacktown City Council [2012] NSWADT 44
McKinnon v Secretary, Department of Treasury [2006] HCA 45
Minister of Immigration v Li [2013] HCA 18.
Neary v State Rail Authority [1999] NSWADT 107
Priest v State of New South Wales [2006] NSWSC 1281
R v Anderson (1965) 113 CLR 177.
Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279
Re McKinnonn and Secretary, Department of Foreign Affairs and Trade [2004] AATA 1365; (2004) 86 ALD 780
Robinson v Director General, Department of Health (2002) NSWADT 222 Black v Hunter New England Area Health Service [2008] NSWADT 301
Roy v Commissioner of Police, NSW Police Force [2012] NSWADT 120
Saggers v Environment Protection Authority [2014] NSWCATAD 37
Singh v Legal Aid Commission [2014] NSWCATAD 28.
State of New South Wales v Jackson [2007] NSWCA 279
Waterford v Commonwealth (1987) 163 CLR 96
Williams v Department of Industry and Investment [2012] NSWADT 192

Category:

Principal judgment

Parties:

Andrew Singh (Applicant)
Legal Aid Commission (Respondent)

Representation:

Solicitors: A Singh (Applicant in person)
Crown Solicitors Office (Respondent)

File Number(s):

133347, 133096, 133101

reasons for decision

1. These matters were commenced in the General Division of the Administrative Decisions Tribunal ("the ADT") pursuant to the now repealed Administrative Decisions Tribunal Act 1997 ("the ADT Act"). On 1 January 2014, the ADT was abolished and its functions were taken over by the Civil and Administrative Tribunal of New South Wales (‘NCAT’). The present decision is therefore a decision of NCAT. But because the proceedings to which it relates are ‘part heard proceedings’ as defined in clause 6(1) of Schedule 1 of the Civil and Administrative Tribunal Act 2013, they are to be determined as if that Act had not been enacted (see clause 7(3)(b) of this Schedule).

2. These are applications for review of determinations by the Respondent in regard to separate requests for information under the Government Information (Public Access) Act 2009 (“the GIPA Act”). The applications were listed for Planning Meetings at which time the progress the matters were discussed and direction made in regard to the filing of documents.

3. The Applicant made an application for me to recuse myself from hearing these matters. I refused that application and my reasons for decision are recorded as Singh v Legal Aid Commission [2014] NSWCATAD 28.

4. While these are separate applications, to some extent the subject matter is related and I will deal with them together. By agreement between the parties the substantive matters are to be determined on the basis of the material filed without the need for a hearing.

5. There are three separate applications before the Tribunal. These are matters numbered 133347, 133096 and 133101.

Matter number 133347

The 133347 Access Application

6. In his access application in this matter the Applicant sought access to the information in the following terms:

Pursuant to the provisions of the above Act, I request LA to provide me the following information.

1.   I refer to LA's decision to engage the private law firm Holding Redlich (HR) to handle my employment matters including my return to work. Provide copies of all correspondence leading LA's decision to appoint HR including (but not limited to) minutes of board or executive management meetings, letters, emails, memos, file notes, record of any phone conversations, record of any consultations, record of details of budgetary allocation/approval to procure this service;

2.   Copies of quotations that LA received from HR and any other law firms from which LA sought quotations regarding the matter;

3.   Copies of all correspondence including (but not limited to) letters, emails (including my emails), memos, file notes, record of phone conversations, record of consultations, reports, policies/procedures, details of legal services sought, minutes of meetings, etc from LA to HR, from the date of appointment of HR up to the date of making a decision on this request;

4.   Copies of all correspondence from HR to LA including (but not limited to) letters, emails, memos, file notes, record of phone conversations, record of consultations, minutes of meetings, legal opinions, etc from the date of appointment of HR up to the date of making a decision on this request;

5.   Copy of current and previous job description of Nohad Ghibeley, LA's senior consultant workplace relations, showing the grade of this role and current and previous statement of duties;

6.   Copies of entries from Vicki Leaver's workplace diary (either soft or hard copy) from the date of her appointment up to the date of making of a decision on this request, regarding entries touching, ancillary or incidental to my employment with LA and my return to work matters;

7.   Copies of entries from Nohad Ghibeley's workplace diary (either soft or hard copy) from 6/9/10 up to the date of making of a decision on this request, regarding entries touching, ancillary or incidental to my employment with LA and my return to work matters;

8.   Refer to HR's letter to me dated 1/812. At page 3 (under the head "Management Training Provided to Financial to Financial Accountants") HR claim that "Ms Argyris has undertaken the relevant management training". Provide copies of all information regarding this matter including copies of information showing the date(s) of the training, name of the institution that provided the training, contents of the training program, amount paid by LA to the training institution, and copy of certificate of completion of such training;

9.   Copies of all tax invoices (whether paid or outstanding) from HR to LA showing amounts charged for work done including its attendances at the Industrial Relations Commission (IRC) since HR's appointment up to the date of making a decision on this request;

10.   Copies of all tax invoices (whether paid or outstanding) from any other law firms engaged by LA to attend industrial relations dispute before the IRC on LA's behalf from January 2008 up till the date of making a decision on this request;

11.   Copies of all correspondence including (but not limited to) emails, letters, file notes, memos, record of phone conversations, record of consultations, etc that Nohad Ghibeley had with staff at CRS Australia regarding my return to work from 14/7/2012 up till the date of making a decision on this request;

12.   Copies of correspondence in the form of letters, emails, etc from LA to its insurer QBE notifying QBE that LA was unable to provide me suitable pre-injury duties or suitable employment;

13.   I again refer to HR's letter of 1/8/12. At page 4 (under the head "Alternative Positions") HR claim that I was not called for an interview for the position that I applied in May 2011 "due to the strength of other applicants". With regard to this recruitment, please provide the following information:

13.1   Individual assessment/ranking of all applicants interviewed for the position, including the successful applicant as contained in the selection committee report,

13.2   Copies of assessments regarding how each member of the panel assessed each applicant against the selection criteria before the interview (ie, culling process) and after the interview,

13.3   Selection committee's notes of assessment in 13.2,

13.4   Selection committee's notes regarding the referees comments on the applicants, including the successful applicant,

13.5   The committee's recommendation the delegate regarding appointment of successful applicant,

13.6   The date the successful applicant's name was published in the NSW jobs gazette.

The Respondent Determination on the 133347 Access Application

7. The Respondent determined to refuse to deal with the access application on the ground that dealing with the application would require an unreasonable and substantial diversion of the agency’s resources.

8. In making that determination the Respondent stated:

“1)   It would take approximately nine working days for staff of the People and Organisational Development Division to identify, locate and collate the requested information. Only three staff of the POD Division have the necessary knowledge and experience to conduct this search, and this would involve a substantial and unreasonable diversion of these staff from their regular duties.

2)   Further time would be required by the Right to Information Officer to decide whether to grant or refuse access to each document, including examining the documents, consulting other parties, redacting and copying documents and notifying you of any decision. This time cannot be quantified, but would be substantial given the extensive list of information requested.

3)   I have considered that this access and your previous access applications are related as they all seek access to information about your employment with Legal Aid NSW. The previous access applications and internal review applications have taken up a substantial amount of time of staff of the POD Division and the determining officers. It would be unreasonable to allocate further substantial resources to this related access application.

4)   Legal Aid NSW is a small agency with a small team of staff allocated to determine access applications. These resources are already overstretched with a number of complex applications recently finalised or on hand. It is unreasonable to allocate resources to this application given other work and agency commitments.

5)    I invited you to amend your application, and you declined to do so."

Matter number 133096

The 133096 Access Application

9. In his access application in this matter the Applicant sought access to information in the following terms:

PART A - My workers compensation claim and subsequent declinature

In relation to this matter, provide the following information:

1.   Statements of Clare Hamilton (director corporate finance), Sandra Argyris and Suzana Nimac (financial accountants) to Legal Aid's insurer Allianz regarding my workers compensation claim lodged on 6/9/10 (the claim). If any of these staff did not give their statements to Allianz, please provide reasons

2.   Statement of Jennifer Bulkeley (former director hr) to Allianz in response to the claim

3.   Statements of any other Legal Aid employees made to Allianz in relation to the claim

4.   Copies of all correspondence/information/documents from Legal Aid to Allianz

5.   Copies of all correspondence/information/documents received from Allianz by Legal Aid

6.   Copies of all documents (whether in possession of Legal Aid or not) relating to, touching or incidental to the claim, including letters, emails, memoranda, file notes, interview notes, reports, and/or other documents generated as a result of the claim.

PART B - Referral to Medibank Health Solutions by Legal Aid dated 21 January 2011

This part relates to Legal Aid's referral to Medibank (ref 5527) regarding my medical assessments. Provide copies of the following:

1.   Tax invoices(s) for payments made by Legal Aid to Kathryn Lovric, consultant psychiatrist for her report regarding my assessment

2.   Tax invoice(s) for payments made by Legal Aid to Dr Margaret Gibson, occupational physician for her report regarding my assessment

3.   Tax invoice(s) for payments made by Legal Aid to Dr Dale Kong of Medibank Health Solutions for his report.

PART C - My appeal to the NSW Workers Compensation Commission (the Commission)

After the declinature of my claim by Allianz, I appealed the matter to the Commission (case number 005630/11) and Legal Aid opposed my appeal by engaging external lawyers. In relation to this matter, provide the following information:

Legal Aid NSW FP12/8

Notice of Decision (s. 58 of the GIPA Act)

1.   Statements of Clare Hamilton, Sandra Argyris and Suzana Nimac given in opposition to my appeal. If they did not provide any statements, please provide reasons for the basis of Legal Aid's opposition to my appeal and engagement of external lawyers

2.   Statement of Jennifer Bulkeley in opposition to my appeal. If she did not provide any statement, please provide reasons

3.   Statements of any other Legal Aid employees and/or third parties given in relation to the appeal

4.   Copies of all tax invoices for payments made by Legal Aid to its external lawyers for representing Legal Aid in opposing my appeal, including payment(s) made to the barrister engaged by Legal Aid (and/or its lawyers) to oppose my appeal set down for a formal hearing by the Commission on 5/9/11

5.   Copies of all correspondence from Legal Aid to its lawyers regarding my appeal

6.   Copies of all correspondence from Legal Aid's lawyers to Legal Aid regarding my appeal

7.   At the hearing of my appeal on 5/9/11 Legal Aid advised the Arbitrator through its legal representative about the discontinuance of its opposition to my appeal and agreed to pay me compensation as recorded in the Arbitrator's determination dated 7/9/11. In relation to this issue, provide copies of correspondence or any other information which records Legal Aid's decision to withdraw its opposition to my appeal and its decision to pay me workers compensation as recorded in the Arbitrator's determination of 7/9/11. If no such documents/information exist, please provided reasons for Legal Aid's withdrawal of its opposition to my appeal and paying compensation as claimed

8.   Copies of all correspondence from Legal Aid to its new insurer QBE from 7/9/11 up to the date of making a decision on this request

9.   Copies of all correspondence to Legal Aid from QBE from 7/9/11 up to the date of making a decision on this request

10.   Copies of all documents (whether in possession of Legal Aid or not) relating to, touching or incidental to the appeal, including letters, emails, memoranda, file notes, interview notes, reports, and/or other documents generated as a result of my appeal to the Commission.

PART D - Investigation into Legal Aid by WorkCover NSW

Following complaints to WorkCover NSW, an investigation was conducted into Legal Aid by WorkCover"s inspector Mr Petar Ankovic (the inspector). In relation to this investigation, provide the following information:

1.    Copies of statements given by Legal Aid's employee's (including Clare Hamilton and the financial accountants) to the inspector

Legal Aid NSW FP12/8

Notice of Decision (s. 58 of the GIPA Act)

2.   Copies of all information given by Legal Aid to the inspector not covered in 1 above

3.   Copies of all information received by Legal Aid from the inspector and/or third parties

4.   Copies of all documents (whether in the possession of Legal Aid or not) relating to, touching or incidental to the investigation, including letters, emails, memoranda, file notes, interview notes, reports, and/or other documents generated as a result of the complaint and subsequent investigation by WorkCover NSW.

The Respondent Determination on the 133096 Access Application

10. The Respondent determined to provide the Applicant with access to some of the information identified as falling within the scope of the access application; that some of the information was already available to the Applicant and that access to some of the information should be refused on the basis of an overriding public interest against its disclosure.

11. A schedule relating to the withheld information indicated that the grounds for refusal included:

some of the information would be privileged from production in legal proceedings on the ground of client legal privilege. As such, there is a conclusive presumption of an overriding public interest against disclosure of the advice;

some of the information is personal information and the Respondent has decided that on balance, there is a public interest consideration against disclosure of the information;

release of some of the information may prejudice legitimate business, commercial, professional or financial interests.

Matter number 133101.

The 133101 Access Application

12. In his access application in this matter the Applicant sought access to information in the following terms:

1.   Copy of my complaint.

2.   Copy of letter of appointment of IAB Services to investigate my complaint.

3.   Copy of the terms of reference regarding the investigation of my complaint.

4.   Copies of interview notes that the investigator had with all the persons she interviewed as part of the investigation of the complaint (including my interview notes).

5.   Copy of the investigator's interim and final report to Legal Aid NSW dismissing my complaint.

6.   Copy of the tax invoice from IAB Services showing the details of their fee for investigating and reporting of the complaint and date of payment by Legal Aid NSW.

7.   Copies of tax invoices from IAB Services for the financial years 2005 to 2010 for its fees for investigating personal grievance complaints lodged by employees of Legal Aid NSW.

8.   Copies of all documents in possession by Legal Aid NSW relating, touching or incidental to my aforesaid personal grievance complaint, including letters, emails, memoranda, file notes and/or other documents generated, from start to the conclusion of the investigation.

The Respondent Determination on the 133101 Access Application

13. The Respondent identified four files as falling within the scope of the access application. It determined to provide the Applicant with access to some of the information identified; to provide access to a redacted version of some other material; and that access to some of the information should be refused on the basis of an overriding public interest against its disclosure because release of some of the information could reasonably be expected to:

reveal an individual's personal information (clause 3(a) of the table to section 14 of the GIPA Act);

have the effect of prejudicing any person's legitimate business, commercial, professional or financial interests information (clause 4(d) of the table to section 14 of the GIPA Act);

have the effect of prejudicing the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions information (clause 1(d) of the table to section 14 of the GIPA Act);

have the effect of prejudicing the effective exercise of that agency's functions information (clause 1(f) of the table to section 14 of the GIPA Act);

have the effect of resulting in the disclosure of information provided to an agency in confidence information (clause 1(g) of the table to section 14 of the GIPA Act); or

contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (“the PPIP Act”) information (clause 3(b) of the table to section 14 of the GIPA Act).

Applicable legislation

14. The Tribunal's function on review under section 63 of the Administrative Decisions Review Act 1997 ("the ADR Act") is to make the correct and preferable decisions having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.

15. The applicable provisions of the GIPA Act have been considered in a number of decisions of this Tribunal. For a summary of the GIPA Act provisions see the decision of Judicial Member Molony in the matter of Battin v University of New England [2013] NSWADT 73 (“Battin”).

16. The objects of the GIPA Act are set out in section 3(1) -

In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:

(a) authorising and encouraging the proactive public release of government information by agencies, and

(b) giving members of the public an enforceable right to access government information, and

(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.

17. ‘Government information’ is given a wide meaning (section 4) being ‘information contained in a record held by an agency.’ ‘Agency’ is also defined in section 4. It includes “(c) a public authority.” Public authority is in turn defined in Clause 2 of Schedule 4 to mean, among other things, “a body (whether incorporated or unincorporated) established or continued for a public purpose by or under the provisions of a legislative instrument”. The Respondent is an agency to which the GIPA Act applies.

18. The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (section 5). Applicants for access to government information have a legally enforceable right to be provided with access to that information, unless there is an overriding public interest against disclosure (section 9). The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the ‘overriding secrecy laws’ that are set out in Schedule 1 (section 11). Schedule 1 sets out information concerning which it is conclusively presumed that there is an overriding public interest against disclosure (section 14(1)).

19. With respect to other government information, the Act establishes a principle that there is pubic interest in favour of disclosure (section 12(1)). Section 12(2) says that public interest considerations in favour of disclosure are not limited. It provides -

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

Note. The following are examples of public interest considerations in favour of disclosure of information:

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

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

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

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

(e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct

20. There will only be an overriding public interest against disclosure when the public interest test in section 13 is satisfied. It provides -

There is an overriding public interest against disclosure of government information for the purposes of this 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.

21. In considering whether there is an overriding public interest against disclosure section 16 provides that the following principles apply -

(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.

22. The public interest considerations against disclosure are limited to those set out in the Table to section 14. Subsection 14(1) provides that government information described in Schedule 1 of the GIPA Act is to be conclusively presumed to give rise to a public interest consideration against disclosure. Section 14(2) provides that -

The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

23. The Table to section 14 provides that there will be a public interest consideration against disclosure if disclosure of the information "could reasonably be expected to" have one or more of the effects set out in the Table (either in a particular case or generally). The words "could reasonably be expected to" have been held to mean "something which is more than a mere, risk or chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived" (Leech v Sydney Water Corporation [2010] NSWADT 198 at paragraph [28], adopted in Flack v Commissioner of Police, NSW Police Force [2011] NSWADT 286 and cited in Roy v Commissioner of Police, NSW Police Force [2012] NSWADT 120 at paragraph [28]).

24. For the purpose of this application, the relevant public interest considerations against disclosure are found in clauses 1(d), 1(f), 1(g), 3(a), 3(b) and 4(d) of the table to section 14 and clause 5 to Schedule 1 of the GIPA Act.

25. The public interest considerations against disclosure in the table to section 14 are predicated on the words ‘could reasonably be expected’ to have the effect as prescribed. These words are to be given their ordinary meaning and ‘require a judgement to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous’ to expect to have the prescribed consequences set out in the paragraphs to the relevant applicable clause: see Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at paragraph [28], McKinnon v Secretary, Department of Treasury [2006] HCA 45, at paragraph [61] and Attorney-General’s Department v Cockcroft (1986) 10 FCR180, at 190.

26. Accordingly, the enquiry that is required to be made, under clause 1 and the other clauses containing the same introductory words, is of a general and abstract nature.

27. In Camilleri at paragraph [29], the Appeal Panel described the public interest considerations against disclosure in the table to subsection 14(2) as squarely focusing on considerations relating to the conduct of the business of government and require a ‘relatively abstract analysis’ in determining whether they apply to the information in issue.

28. The Respondent contends that the relevant considerations against disclosure in these matters are found in clauses 1(d), 1(f), 1(g), 3(a), 3(b) and 4(d) of the table to section 14 and clause 5 to Schedule 1 of the GIPA Act. Those clauses relevantly provide:

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,

(b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002

4 Business interests of agencies and other persons

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

…

(d) prejudice any person’s legitimate business, commercial, professional or financial interests,(e) prejudice the conduct, effectiveness or integrity of any research by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).

29. Clause 5 to Schedule 1 of the GIPA Act provides:

5 Legal professional privilege

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege.

(2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause.

(3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5.

30. Section 15 sets out the principles that are to be applied when determining whether there is an overriding public interest against disclosure. That section provides as follows:

15 Principles that apply to public interest determination

A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles:

(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.

31. Where the information for which access is sought is personal information about a person other than the access applicant, section 54 of the GIPA Act requires an agency to consult with the person to whom the information relates before it discloses the information. Section 54 relevantly provides:

54 Consultation on public interest considerations

(1) An agency must take such steps (if any) as are reasonably practicable to consult with a person before providing access to information relating to the person in response to an access application if it appears that:

(a) the information is of a kind that requires consultation under this section, and

(b) the person may reasonably be expected to have concerns about the disclosure of the information, and

(c) those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information.

(2) Information relating to a person is of a kind that requires consultation under this section if the information:

(a) includes personal information about the person, or

(b) concerns the person’s business, commercial, professional or financial interests, or

(c) concerns research that has been, is being, or is intended to be, carried out by or on behalf of the person, or

(d) concerns the affairs of a government of the Commonwealth or another State (and the person is that government).

Note. The requirement to consult extends to consultation with other agencies and other governments. See the definition of person in Schedule 4.

(2A) …

…

(4) The purpose of consultation under this section is to ascertain whether the person has an objection to disclosure of some or all of the information and the reasons for any such objection.

(5) The agency must take any objection to disclosure of information that the agency receives in the course of consultation into account in the course of determining whether there is an overriding public interest against disclosure of government information.

(6) …

.

32. Section 55 makes provision for personal factors to be taken into account in determining where the public interest lies. That section is in the following terms:

55 Consideration of personal factors of application

(1)  In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section:

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

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

(c) any other factors particular to the applicant.

(2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information.

(3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency’s consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2–5 (but not clause 1, 6 or 7) of the Table to section 14.

(4) …

(5) …

(6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person.

Note. An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73.

33. Section 60 of the GIPA Act provides:

60 Decision to refuse to deal with application

(1) An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason):

(a) dealing with the application would require an unreasonable and substantial diversion of the agency’s resources,

...

(3) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency’s resources, the agency is entitled to consider 2 or more applications (including any previous application) as the one application if the agency determines that the applications are related and are made by the same applicant or by persons who are acting in concert in connection with those applications.

(4) Before refusing to deal with an access application because dealing with it would require an unreasonable and substantial diversion of an agency’s resources, the agency must give the applicant a reasonable opportunity to amend the application. The period within which the application is required to be decided stops running while the applicant is being given an opportunity to amend the application.

…

34. Persons aggrieved by reviewable decisions have a number of options available to press their access applications. First, they may ask the agency to conduct an internal review. A decision made on internal review is a reviewable decision. A person aggrieved may seek a review by the Tribunal (section 100). The Tribunal has jurisdiction to review reviewable decisions under the GIPA Act.

35. In any review of a reviewable decision section 105 places the burden of justifying the decision on the agency concerned.

36. Section 107 sets out the procedure to be followed by the Tribunal in dealing with public interest considerations. It relevantly provides -

(1) In determining an application for ADT review, the ADT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure.

(2) On an ADT review, the ADT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant’s representative if in the opinion of the ADT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.

…

Confidential information

37. The Respondent relied on clauses 1(d) and 1(g) of the section 14 table. Both factors have at their core the concept of confidential information. The Respondent submitted that disclosure of some withheld information could reasonably be expected to prejudice the supply of confidential information.

37. "Prejudice" under the GIPA Act has been held to have the same meaning as under the FOI Act, which is its ordinary meaning, that is, "to cause detriment or disadvantage" or "to impede or derogate from": Hurst v Wagga Wagga City Council [2011] NSWADT 307 at paragraph [60].

38. The Respondent submitted that some of the withheld information e.g. that contained in transcripts of interview, was provided to it on a confidential basis. Further, the disclosure of the information could reasonably be expected to prejudice the supply of such information to the agency in the future.

39. In Bennett v Vice Chancellor, University of New England [2000] NSWADT 8 the Tribunal found that if information is supplied pursuant to a duty of confidentiality, the disclosure of the information is likely to prejudice the operations of the agency. In Robinson v Director General, Department of Health (2002) NSWADT 222 Deputy President Hennessy held that the effective performance of an agency's investigative functions depended to a large extent on the cooperation of those who had relevant information. In an application brought under the FOI Act the Deputy President held that if information obtained confidentially was provided to an applicant, then that disclosure could reasonably be expected to have a substantial adverse effect on the effective performance of the agency's functions. In Black v Hunter New England Area Health Service [2008] NSWADT 301 Deputy President Handley noted that the release of the relevant documents by a health service might discourage members of the public and professionals from reporting their concerns, and discourage professionals from making full and frank assessments. This could reasonably be expected to have a substantial adverse effect on the health service's performance of its functions, which include provision of health care and protection of individual patients and the wider community. This principle was reiterated by the Appeal Panel in Macquarie University v Howell (No 2) [2009] NSWADTAP 19 at paragraph [10]:

In our view, the Tribunal is required to engage in a relatively abstract analysis. The Tribunal needs to characterise the nature of the material sought to be protected on the present occasion; identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; and consider the extent to which guarantees of confidentiality may be necessary. It is then necessary to evaluate the effect on the agency's ability in future to obtain similar information.

41. In determining whether disclosure would reasonably be expected to prejudice the supply of information, the test is whether information of the kind in question facilitates the exercise of the Respondent's functions and, whether the disclosure of such information could reasonably be expected to prejudice the supply of such information: Flack at [52].

42. In Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279 at 338 F N Albietz, the Information Commissioner, considered the phrase "communicated in confidence" as is used in the Queensland FOI legislation. The Information Commissioner held that confidentiality can be inferred from all the circumstances. The Information Commissioner stated:

"149    I think the words 'communicated in confidence' set up their own criterion which is to be satisfied without any necessity to consider whether legal obligations of confidence would attend the communication in issue. ...

150   The words 'communicated in confidence' in s. 35(1) of the Victorian FOI Act were briefly considered by two members of a Full Court of the Supreme Court of Victoria in Ryder v Booth [1985] VR 869. Gray J (at p.878) looked at the terms of the document in issue, the nature of the information, the purpose for which the information was provided and the circumstances in which it was provided before concluding that the communication in question fell within the ordinary meaning of a communication made in confidence. King J (at p.883) said that whether information is communicated in confidence is a question of fact and it is not necessary to consider whether legal obligations of confidence are set up by the communications in question. King J held that undisputed evidence that the information in question was regarded and treated as confidential as between the supplier and the recipient agency suffices to prove that the information was communicated in confidence within the meaning of s. 35(1) of the Victorian FOI Act.

151   I consider that s. 46(l)(b) contemplates the situation described by the Commonwealth AAT (Davies J presiding) in Re Low and Department of Defence (1984) 2 AAR 142, where the Tribunal said of the former s. 45 of the Commonwealth FOI Act (at p.48):

"... [it] is concerned with information which would not have been disclosed but for the existence of a confidential relationship. Such a situation is readily seen when a person dealing with an agency conveys to the agency information that the person is not bound to disclose and does so on the understanding on both sides that such information will be kept confidential."

152    I consider that the phrase 'communicated in confidence' is used in this context to convey a requirement that there be mutual expectations that the information is to be treated in confidence. One is looking then for evidence of any express consensus between the confider and confidant as to preserving the confidentiality of the information imparted; or alternatively for evidence to be found in an analysis of all the relevant circumstances that would justify a finding that there was a common implicit understanding as to preserving the confidentiality of the information imparted."

43. In my view, the same approach is applicable when considering the phrase "provided in confidence" in clause 1(g) of the GIPA Act.

44. The effective performance of an agency's investigative functions depends to a large extent on the cooperation of those who have relevant information. For example, an agency’s management may depend on staff members or members of the public to come forward with complaints about staff behaviour to keep them informed about conduct and staffing issues. In the absence of any coercive powers with respect to obtaining information from staff members and the public, agencies rely on the voluntary cooperation of those individuals.

45. The Tribunal has regularly recognised that staff and the public may be reluctant to provide information if there were not some assurance of confidentiality. In that context, the disclosure of information that was received in confidence may prejudice the agency from performing its functions efficiently and effectively.

46. In Williams v Department of Industry and Investment [2012] NSWADT 192, I affirmed the agency's decision not to disclose Transcripts of interview between staff who had been interviewed by Ms Rhonda Stien of IAB Services in circumstances of an investigation into the work performance of staff. I stated at paragraph [86]:

"...disclosure of the Transcripts could discourage future victims of workplace bullying or harassment from coming forward. I accept that the supply of information of that kind is necessary for the effective exercise of the Respondent's functions."

47. I also found at paragraph [90] that "the public interest considerations have already been satisfied by the disclosure of the documents already released to the Applicant. Disclosure of the Transcripts would not further those considerations."

Personal information

48. Clause 3(a) of the table to section 14 provides that there is a public interest consideration against disclosure of information if the disclosure could reasonably be expected to reveal an individual's personal information. The phrase "personal information" is defined in clause 4 of Schedule 4 to the GIPA Act to mean information or an opinion (including information or an opinion forming part of a database and whether or not recorded in material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.

49. Work performance, complaints about another staff member and misconduct allegations concern the personal information of the public servant making the complaint and the person who is the subject of the complaint: see McKinnon v Blacktown City Council [2012] NSWADT 44 at paragraph [73].

50. Section 54 provides for a requirement to consult a person before disclosing their personal information, where it appears that the person may reasonably be expected to have concerns about the disclosure of the information, and those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information. In the present matter the Respondent has undertaken that consultation and concerns have been raised about the disclosure of some information.

Business, commercial, professional or financial interests

51. Government agencies frequently hold detailed information about business operations which, if disclosed to a competitor, would undermine that business.

52. Clause 4(d) of the table to section 14 provides that there is a public interest consideration against disclosure of information if the disclosure could reasonably be expected to prejudice any person's legitimate business, commercial, professional or financial interests.

53. In the present matter, the information in issue concerns fees that the Respondent paid to IAB Services. The Respondent contends that disclosure of the commercial rates of IAB Services' consultants could reasonably be expected to reveal fee structure information which is of commercial and professional value, and which is not publicly available information.

54. The Respondent has consulted with IAB Services in relation to disclosure of the requested information and IAB Services objected to the information being released.

55. The hourly rates charged by the Crown Solicitor's Office have been held to concern its business affairs in circumstances where disclosure would impair the office's commercial dealings: Cianfrano v Department of Commerce [2008] NSWADTAP 1. The same principle has been applied to other commercial entities: Lawrence v Port Stephens Council [2008] NSWADT 243.

56. In AIN v Medical Council (NSW) [2013] NSWADT 112 Judicial Member Isenberg accepted that revealing the hourly rates of counsel engaged by the agency would allow other legal service providers to unfairly compete with them, or would allow their other clients to attempt to negotiate a more competitive rate on the basis of rates charged to the agency. Accordingly, she found that disclosure of these rates would prejudice the counsel’s legitimate business and commercial affairs.

57. At paragraphs [119]-[120] the Judicial Member stated:

119    I was referred to Neary v State Rail Authority [1999] NSWADT 107 at [40] and [41] where the Tribunal in the context of an identically worded provision in the FOI Act acknowledged that barristers operate in a competitive and commercial environment and that one of the factors on which they compete is price. I accept that revealing the hourly rates charged by Ms Furness SC and Ms Richardson would allow other legal service providers to unfairly compete with them, or would allow other of their clients to attempt to negotiate a more competitive rate on the basis of the rates charged to the respondent.

120   Disclosure of the hourly rate information would therefore prejudice the legitimate business and commercial affairs of and Ms Furness SC and Ms Richardson, which is a public interest factor against disclosure.

Legal professional privilege

58. Section 14(1) of the GIPA Act provides that 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. Clause 5(1) of Schedule 1 relevantly provides:

5 Legal professional privilege

It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege..."

59. The Tribunal is therefore to determine whether the information that has been withheld on the basis of legal professional privilege is information to which legal professional privilege applies.

60. The law in relation to claims for client legal privilege is clear. For a summary of the principles see Priest v State of New South Wales [2006] NSWSC 1281 from paragraph [21]. See also the summary by Judicial Member Molony in Battin. I discussed this in my decision in Saggers v Environment Protection Authority [2014] NSWCATAD 37. I will not repeat that discussion here.

61. There has been some debate within the Tribunal as to whether the reference in clause 5 of Schedule 1 to the GIPA Act to "client legal privilege (legal professional privilege)" is intended as a reference to that concept as it appears in Part 3.10 of the Evidence Act 1995 or, alternatively, to legal professional privilege as recognised at common law. The Tribunal decisions support the application of the Evidence Act test in cases such as the present.

62. Nevertheless, it is my view that the application of the principles of common law advice privilege would be unlikely to lead to a different outcome in the present case.

63. The onus of establishing the claim for client legal privilege falls on the party asserting or claiming the privilege and is met by establishing the facts giving rise to the claim.

64. Where issues are raised in regard to the purpose behind the creation of the disputed documents and whether that purpose was improper, or where it is alleged that privilege has been waived, it is for the party raising the issue to present evidence to support the claim.

Matter Number 133347

The Respondent’s Case in Matter Number 133347

65. The Respondent submits that dealing with the Applicant's access application as it is currently framed would require an unreasonable and substantial diversion of its resources.

66. The Respondent relies on the statement of Sally McAtee dated 11 July 2014. Ms McAtee is a solicitor in the Respondent’s Legal Policy Branch. She is authorised to determine GIPA access applications. She performs this function along with her other responsibilities as a solicitor. She determined this access application and another of the six GIPA access applications made by the Applicant.

67. She refused to deal with the access application on the basis of section 60(1)(a) of the GIPA Act as she formed the view that dealing with the application would require a substantial and unreasonable diversion of resources. She said that she consulted with relevant personnel to obtain an estimate of the time it was likely to take to locate, collate and copy the information sought in the access application. The estimated time is approximately 9 days. The process would involve searching for information in electronic and hard copy files, diaries and emails, Once she had received the information, she would then need to review all the material in her capacity as Determining Officer.

68. Ms McAtee said that it took her 40 hours to complete another of the Applicant’s applications so she is able to estimate the time that it would take to complete this matter. She anticipated that it would take her several weeks to review the material, considering her other duties as a solicitor.

69. She stated that she invited the Applicant to narrow the scope of his application, as required by subsection 60(4) of the GIPA Act; however he refused to do so.

70. Ms McAtee’s determination to refuse to deal with the access application was affirmed on internal review.

71. With respect to the factors to be taken into account in assessing this matter, the Respondent relies on the decision Cianfrano v Premiers Department [2006] NSWADT 137 which dealt with the assessment of large claims under the now repealed Freedom of Information Act 1989.

72. In Cianfrano at paragraph [62] the Tribunal’s President set out the following nine factors to be taken into account:

i.   the terms of the request, especially whether it is of a global kind or a generally expressed request;

ii.    the demonstrable importance of the document or documents to the applicant as a factor in determining what in the particular case is a reasonable time and a reasonable effort;

iii.    whether the request is a reasonably manageable one giving due, but not conclusive, regard to the size of the agency and the extent of its resources usually available for dealing with FOI applications;

iv.    the agency estimate as to the number of documents affected by the request and, by extension, the number of pages, the amount of officer time and the salary cost;

v.    the reasonableness or otherwise of the agency's initial assessment and whether the applicant has taken a co-operative approach in redrawing the boundaries of the application;

vi.   the timelines that are binding on the agency;

vii.    the indication found in the annual report reporting requirements suggesting that requests involving more than 40 hours work are seen as lying at the upper end of the range, suggesting at least that the view of government administrators is that a processing time that goes well beyond 40 hours may properly raise concerns;

viii.    the degree of certainty that can be attached to the estimate made as to documents affected and hours to be consumed, and whether there is a real possibility that processing time may exceed, to some degree, the estimate first made; and

ix.    the extent, possibly, to which the applicant is a repeat applicant to the agency in respect of applications of the same kind or a repeat applicant across government in respect of applications of the same kind, and the extent to which the present application may have been adequately met by those previous applications."

73. In Colefax v Department of Education and Communities (No 2) [2013] NSWADT 130, Judicial Member Molony considered the Cianfrano factors in regard to whether a request under the GIPA Act would require an unreasonable and substantial diversion of an agency's resources. The Judicial Member stated at paragraph [25]:

In my opinion most of those considerations are equally applicable to a consideration of whether a request under the GIPA Act constitutes an unreasonable and substantial diversion of an agency's resources. A factor that concerns me is that in (g), being the 40 hours processing time. I discuss this in more detail below.

74. The Judicial Member further stated at paragraphs [26] – [28]:

In addition to these factors, however, an access applicant under the GIPA Act has statutory right to access government information, and the Act instructs that discretions under it be exercised so as to enhance its objects. These legislative provisions apply with respect to applications under the GIPA Act and may result in the differing weight and importance being accorded to the Cianfrano factors.

Further, the circumstances of this case highlight another factor of relevance to the question of whether the request requires an unreasonable and substantial diversion of resources. This is that the information sought by Ms Colefax relates to herself, and is substantially likely to be her own personal information within the meaning of definition of that term in Clause 5 of Schedule 4 of the GIPA Act. The fact that an access applicant is seeking his or her own personal information, is a factor relevant to the determination.

With respect to the 40 hour consideration referred to by the President In Cianfrano, the Tribunal in that case accepted evidence that a request taking more than 40 hours to process would be a cause for concern to those responsible for processing it. Considerable caution needs to exercised with respect to that finding. It was made in the context of the facts and evidence in that case, and should not be taken as establishing something in the nature of a 40-hour rule.

75. I agree with that view.

76. In this case, the Applicant sought 13 different categories of documents, covering a range of issues, often for extended periods of time. (I note that the Applicant says that he reduced this request to 12 categories.) The Respondent says that it has consulted with personnel best placed to identify the documents sought and, on the basis of this consultation, has estimated that it would take 9 working days just to identify the relevant documents. This estimate does not factor in the time that would then be involved in considering each document to identify whether there is an overriding public interest against disclosure, undertaking consultation with third parties, and preparing a determination.

77. The Respondent contends that dealing with the application within the statutory timeframes would be a particularly onerous task for this small agency, which has limited resources available for dealing with applications under the GIPA Act.

78. Furthermore, the Respondent submits that in assessing the resources that would be required to deal with this application it is entitled to take account of the Applicant's related applications and the resources already devoted to determining them. Such a consideration is expressly permitted under the terms of section 60(3) of the GIPA Act.

79. The Respondent contends that whether two or more access applications are "related" is a question of degree, with the assessment to be made in the light of the circumstances of each case, having regard to the purposes of section 60(1)(a) and (3). The Respondent relies on the comment by Judicial Member Molony in Colefax v Department of Education and Communities (No 1) [2013] NSWADT 42 at paragraph [40].:

"That purpose is to prevent a drain on departmental resources created by voluminous requests, and to prevent the splitting of access applications into two or more, whether at the same time or not, in an attempt to avoid them being categorised as voluminous.":

80. The Respondent submits that the Tribunal should affirm the decision to refuse to deal with the application.

The Applicant’s Case in Matter Number 133347

81. In his written submissions in reply the Applicant wrote as follows:

By letter dated 6/12/12 Ms McAtee advised she had decided to refuse my application under s60 of the Act. She purported giving me an "opportunity" to amend my application.

This "opportunity" was a charade as the respondent's senior management had already decided to refuse my application. The respondent's human resources director Vicki Leaver and her staff were actively engaged with external lawyers hired to block my return to work at Legal Aid. The respondent had caused me a compensable workplace injury during 2009 and has gone to extreme lengths to drive me out of the organisation.

By letter dated 14/12/12 I disputed Ms McAtee's assertion that she could refuse my application based on her belief that s60 (1) (a) applied to my request. I declined to amend my request as urged by her.

By letter dated 19/12/12 Ms McAtee declined my application.

By email dated 26/12/12 I sought an internal review of the declinature, again providing detailed submissions. In order to facilitate matters, I even amended my original application by waiving item 13 of my request.

By letter dated 17/1/13 Erin Gough declined my application, citing s60 (1) (a), simply repeating the reasons advance by Ms McAtee, despite my waiver of item 13 of my request.

82. The Applicant advanced the following grounds of review.

Constructive failure to exercise jurisdiction

I submit that there has been a constructive failure to exercise the review jurisdiction under the Act by Ms Gough because she failed to give proper, genuine and realistic consideration to my submissions of 26/12/12.

None of my submissions have been considered or addressed by Ms Gough in her decision. She gives no reasons for this, nor explains why she simply rubber stamped the reasons advanced by Ms McAtee declining my application, or why she preferred Ms McAtee's views over my submissions.

The failure of Ms Gough to respond to my comprehensive, clearly articulated arguments, relying upon established facts … was at least to fail to accord me natural justice. ... Such failure amounts to jurisdictional error.

It is trite law that a failure to accord genuine, realistic and proper consideration to submissions advanced by an applicant in support of his case amounts to a constructive failure to exercise jurisdiction, thus vitiating the purported decision ...

By simply adopting Ms McAtee's decision as her own (with certain cosmetic linguistic changes), Ms Gough simply failed to bring her own mind to bear on the issues before her and thus constructively failed to exercise jurisdiction ...

83. The Applicant also elaborated on these arguments in support of his assertion that Respondent’s determinations should not stand.

84. In relation to the application of section 60 of the GIPA Act he submitted:

Use of s 60 to thwart disclosure improper exercise of discretion

My final submission is the use of s 60 is improper exercise of discretionary power.

Section is discretionary - the agency "may" refuse. Every statutory discretion, however broad, is constrained by law and must be exercised fairly and reasonably, and more importantly, to promote the scope and purpose of the legislation under which it is conferred - see R v Anderson (1965) 113 CLR 177.

Ms Gough's decision fails this judicial muster for obvious reasons. First, her state of satisfaction is untenable. It is tainted by virtue of her adoption of Ms McAtee's original decision. It is also tainted by Vicki Leaver's profound hatred and jaundiced view of me as demonstrated by the McAtee statement. Further, in order to be satisfied, the decision maker must have a fair and balanced view of the application - this is only possible if the decision maker gives the submissions made by the applicant proper, genuine and realistic consideration. As already submitted, Ms Gough failed to do so.

Secondly, there is no evidence supporting Ms Gough's contentions. Her "unreasonable diversion of resources" argument is pure conjecture and speculation. She does not provide any evidence to quantify her assertions. No evidence is provided regarding the estimated "eight working days" as claimed by Leaver and her staff. She has simply accepted Vicki Leaver's claim which, based on Ms McAtee's statement, strains credibility. ….

Thirdly, excessive weight have been accorded to my previous applications which in submission is misplaced. Ms Gough asserts that such applications "has therefore taken up a substantial amount to time..." but fails to provide any credible evidence to quantify same. Her claim is mere conjecture. She fails to quantify the time and financial resources expended. ...

Finally, the small agency argument by Ms Gough is improper use of s60. ...

85. In his response to Respondent's further submissions the Applicant submitted:

Response to Respondent's submissions

4.   [A]t [4] the respondent claims that it "implemented the recommendations" of Ms Stien. This claim is false. None of the recommendations were implemented. In fact when the applicant asked the respondent to provide evidence of the implementation of the recommendations the respondent claimed through its lawyers Holding Redlich that it was not obliged to provide any. ...

5. Further, at [6] the respondent refers to "second GIPA application". This claim is misleading. Whilst the applicant's letter is couched as a GIPA application, a formal application was not made, nor the fee paid because the respondent's then CEO decided to release the information as part of the investigation process.

6. The tribunal should also note that in regards to the first and third GIPA applications, when the applicant sought external reviews by the IPC, both reviews were upheld by the IPC which recommended the respondent to provide the information sought. Despite such recommendations, the respondent still maintained its original attitude of withholding information. ...

...

9.   As regards the respondent's claim about the "fifth application" at [12] this is again misleading or misrepresentation of the facts. ...

10. The fifth application required substantial time and effort in collation, however unlike the present proceedings the respondent did not invoke s60 because it would have compromised its position regarding the Industrial Relations Commission action that the applicant had brought against the respondent.

11 In response to [13] regarding a "sixth GIPA application" this is false. The applicant denies that he made any such application as asserted by the respondent.

12.   In response to [21] and [22] of respondent's submissions that it would require an unreasonable time and substantial diversion of resources, this must be rejected by the tribunal. Such claim is sheer conjecture and has not been objectively quantified by the respondent.

13.   The tribunal should reject the purported details given in Ms McAtee's statement for obvious reasons. First, the statement is self-serving, biased and contradicted by her earlier statement … in which she confirms that most of my applications have been straightforward and properly articulated.

14.   Second, Ms McAtee has been actively involved in all of my applications and external reviews. She has prior knowledge about various issues relating to the current application, including material that is privileged. Hence her claim that it will take her several weeks to review the material strains credibility.

15. Third, Ms McAtee is the most senior right to information officer of the respondent. By her own admission she has involved in some 10 GIPA applications. Having such experience, knowledge and expertise it is questionable that it will take her several weeks to do review of all the material. The applicant submits that her claim is spurious, having regard to her extensive knowledge of the applicant's previous GIPA applications ...

16.   Fourth, Ms McAtee is not the only lawyer/right to information officer employed by the respondent. There are many ... Surely these officers can review the information in a lesser time frame than McAtee. Ms McAtee does not mention in her statement that only she can deal with my request (and why) or what time frame it will take other officers to deal with my request. On this basis alone the tribunal should reject Ms McAtee's claim that it will take her substantial time to review all the material.

17. Fifth, as the applicant mentions in his June submissions, if the respondent can engage external parties to deal with the applicant's case at a huge expense to the public purse … then there can be no justification why it cannot do same with the applicant's current application. The tribunal should note that the fundamental objective of GIPA Act is for the agency to make information available -a legally enforceable right.

18.   Finally, Ms McAtee states that POD is the custodian of most of the information. POD is headed by Vicki Leaver. ... The tribunal should not accept the purported time frame ("approximately 9 days") which Ms Leaver initially claimed and relayed by Ms McAtee in her decision (and repeated in her statement of 11 July).

19.   The respondent has failed to adduce direct evidence from Vicki Leaver to substantiate that it will take POD approximately 9 days to search the information the applicant seeks.

20.   The statement of Ms McAtee on behalf of Ms Leaver is clearly hearsay and must be rejected by the tribunal.

21.   In response to [23] of the submissions the applicant claims that the respondent's reliance on the Cianfrano case is misconceived. That case has no relevance since it was decided under repealed FOI Act.

22. That the objectives of GIPA Act and the repealed FOI Act are totally different is a further reason why the tribunal ought to reject the respondent's submission.

23.   In reply to [24] of the respondent's submissions the applicant submits that Colefax is not binding on the tribunal. The tribunal must reach its decision on the merits of the present case and in its own judgment, based on the evidence and facts as they now stand ...

24.   The NCAT is also required to make its decision based on the equity and good conscience. The applicant submits that NCAT would commit jurisdictional error if places any reliance on Colefax as urged by the respondent. That case is distinguishable and the facts in Colefax bear no resemblance to the applicant's case.

25.   In response to [25] of respondent's submissions, the applicant says the respondent's claim that the "applicant seeks 13 different categories of documents..." is false. The applicant clearly amended his request by deleting item 13 of his request.

26. The respondent's claim that POD "personnel are best placed to identify the documents sought ....and has estimated it would take 9 working days just to identify the relevant documents" is fatal to decision invoking s60 to refuse dealing with the applicant's request. ... The applicant submits the time frame is clearly exaggerated and in light of the hearsay evidence of Ms McAtee, invites the tribunal to reject it.

27.   Further, the "small agency" argument must also be rejected by the tribunal ...

28.   The applicant reiterates that the "small agency with limited resources" claim by the respondent strains credibility ...

29. By the respondent's own admission all of my GIPA applications are related to the applicant's employment. ...

30.   In response to [26] of the respondent's submission the applicant rejects the claim that he "has not taken a co-operative approach" as false, misleading or both. ...

31.   … Ms McAtee's "evidence" being heavily relied upon by the respondent should not be accorded much weight by the tribunal.

32.   In response to [27] of the respondent's submissions the applicant … says that he is "a repeat applicant to the respondent" only by virtue of his employment ...

33.   That being so, the applicant rejects the respondent's "related applications" argument in assessing the "resources already devoted to determining them". ...

34.   Upon IPC review, the respondent still made wrong decisions or maintained an anti-disclosure attitude. In doing so, it itself wasted considerable resources or unreasonably diverted such resources.

35. Further, as already mentioned some of the purported GIPA applications claimed by the respondent is false. They were not applications under the legislation but part of the investigative process relating to complaints or workplace grievances.

36. The applicant submits that the respondent has improperly invoked s60 to thwart his request for information. The respondent knows that s60 is discretionary and has a history of abusing its statutory discretionary powers as a public agency.

37. The applicant submits that the real reason the respondent has invoked s60 [is] because disclosure of some or all of the requested information will demonstrate abuse of power and impropriety by its senior management which in turn may cause it considerable embarrassment.

38. … [The respondent’s] conduct is very relevant for the tribunal to assess the propriety of the respondent's discretion to refuse to action the applicant's present request by invoking s60.

39.   In reply to [28] of respondent's submissions the applicant invites the tribunal to reject it. On any NCAT review the onus is on the agency to conclusively defend its decision. It is for this reason the respondent (or any agency for that matter) and the applicant are accorded procedural fairness by the tribunal.

40.   If the respondent has failed to address the applicant's submissions, then the tribunal is empowered to make an adverse inference against the respondent. ...

41.   The applicant submits that the respondent's lack of response should be taken as its acceptance of his submissions and/or other propositions. In any case, given the NCAT is now seized of the matter, the determination of relevancy is exclusively for the tribunal, not the respondent.

42. … [Vicki Leaver’s] conduct is relevant for the tribunal to determine whether the respondent properly exercised its s60 discretion to refuse to deal with the application as it now claims.

44.   In response to [30] of respondent's submissions the applicant repeats his claim that no reasons were provided on internal review. Rather, Ms Gough simply repeated Ms McAtee's reasons with some linguistic adjustments.

45.   In response to [31] of respondent's submissions Ms McAtee's evidence relied on by the respondent is suspect. ...

46.   Ms McAtee's statement of 11 July contains hearsay and in light of the respondent's failure to provide any direct evidence from Vicki Leaver, the tribunal should not accept the respondent's belated submissions regarding the matter.

47.   The tribunal will note that in proceedings 133101 the respondent adduced direct evidence of Vicki Leaver in support of its case, when she was not even employed by the respondent at the time of the event.

48.   Given that most of the information sought is with POD the onus was on the respondent to provide evidence from Ms Leaver regarding the purported consultation and her estimates. The failure to adduce such evidence is fatal to the respondent's case.

49.   In response to [32] of respondent's submissions the applicant rejects it. … [T]he respondent's own assessment which must be rejected by the tribunal. It is overtly self-serving and spurious.

50.   As already submitted the issues of relevance is for the tribunal, not the respondent. The tribunal's equity and good conscience power further discredits the respondent's assertion. So does the substantial justice and merits of the case jurisdiction of the tribunal.

51.   … [T]he tribunal is not restricted to considering evidence of the facts and the circumstances as they existed at the time the agency made its decision.

52.   … The tribunal's power on review is very broad. It stands in the shoes of the respondent. The respondent's function is to simply assist the tribunal, not mislead the tribunal so as to defend its decision.

53.   In response to [33] of respondent's submissions the … respondent … makes wild ranging assertions, without any explanation how the internal review process mandated by the legislation was "adhered to". As mentioned earlier, failure by the respondent to specifically address the issues raised must be adversely construed against it by the tribunal.

54.   The applicant rejects the respondent's assertion regarding the competency of the internal review mandated by s84(2). The applicant repeats his earlier submission that Ms Gough's review was not in accordance with the spirit of the provision.

...

Conclusion

58.   The applicant submits that the respondent's claim must be rejected.

59. The respondent has failed to discharge its onus in defending its decision and the evidence does not conclusively support its claim that its decision to refuse the application on the ground that it would require unreasonable and substantial diversion of its resources - s60(1)(a).

60. The respondent's decision to refuse under s60 is an abuse of discretionary power in that the power has been invoked for an improper purpose or irrelevant considerations and is contrary to the principles expounded by the High Court in Minister of Immigration v Li [2013] HCA 18.

Consideration

86. The Tribunal's task under section 63 of the Administrative Decisions Review Act 1997 is to determine what the correct and preferable decision is, having regard to the material before it.

87. As will be apparent from what I have set out above, much of the Applicant’s case is focussed on the approach taken by the Respondent in dealing with his access application, and in particular the approach adopted by Ms McAtee and Ms Gough. However, these are not relevant consideration to be taken into account by the Tribunal. The Tribunal's task is to investigate the claim de novo. The question for the Tribunal is whether the correct and preferable decision is to refuse to deal with the application on the basis that dealing with the application would require an unreasonable and substantial diversion of the agency's resources. The approach taken by Ms McAtee and Ms Gough will not be relevant to that question. Similarly, the conduct of officers of the Respondent is not relevant to the Tribunal’s assessment.

236. Similarly, he submits that the Respondent’s reliance on clause 3(b) of the table to section 14 is spurious and totally untenable. He further submits and any objection raised by a former staff member who has left employment with the Respondent becomes irrelevant.

237. He says that the Respondent’s PPIP Act arguments are untenable. The PPIP Act does not take precedence over the GIPA legislation. In any case, section 5 of the PPIP Act provides the Respondent with discretion to release personal information even if the Act is breached.

238. He submits that the withheld information should be released without redactions.

239. In relation to the IAB information, the Applicant submits that there can be no justification for the Respondent's refusal to provide the individual amounts that it paid to IAB for each grievance investigation. He submits that there is a public interest in doing so as it will ensure effective oversight of expenditure of public funds. Because the funds for the services performed by IAB were paid from the public purse the withheld information must be open to public scrutiny.

240. He contends that an agency resisting disclosure on behalf of third parties should provide evidence of prejudice or harm. He submits that the Respondent has not explained how disclosure will prejudice lAB's business interests. It has not demonstrated any purported harm that may result to IAB if the information is disclosed. It thus cannot discharge the burden imposed by section 105(1) of the GIPA Act. He contends that in the absence of any proof of prejudice or harm to IAB, he should be provided with access to the full information.

241. He further submits that this submission has force when viewed against the background that the Respondent failed to obtain tenders from other service providers to ascertain the competiveness of the rates IAB charged the Respondent for workplace grievance investigations. He says that the continuous engagement of IBA by the Respondent's senior management to investigate grievance complaints gives rise to institutional bias or a reasonable apprehension of bias that its investigator might not have brought an impartial mind to the making of the decision.

242. He says that given his claims of serious impropriety about the investigator, it is in the public interest that the Respondent provides details of the amounts it paid for all grievance complaints which may corroborate his claim that the investigation of the complaint was inadequate and seriously flawed.

243. The Applicant submits that the monies were paid from the public purse and hence, the public have a right to know this information.

244. In his submission none of the Respondent’s grounds can succeed. Its public interest balancing test is flawed and it has not satisfied the burden imposed by section 105 (1) of the GIPA Act. Accordingly, he submits, the requested information should be released without redaction.

Discussion

Documents 1, 4 and 5

252. Document 1 is a letter of appointment of IAB Services. Documents 4 and 5 are copies of tax invoices from IAB Services.

253. The Respondent determined that these documents should not be released to the Applicant on the basis of an overriding public interest against their disclosure under clause 4(d) of the table to section 14 of the GIPA Act. That is, disclosure of the information could reasonably be expected to prejudice IAB Services’ legitimate business, commercial, professional or financial interests.

254. I have set out above my understanding of the law in relation to clause 4(d). My understanding is that the Respondent has agreed to provide the Applicant with the information that was redacted from these documents. However, if I am wrong in that understanding, it is my view that the information should be provided.

255. I agree with the argument presented by the Applicant in regard to the evidence that would be required to satisfy the Respondent’s onus in regard to the redacted information.

256. Ms Pritchard gave evidence that IAB Services was consulted and that IAB had objected to disclosure of its commercial rates. I accept that evidence. However, it does not follow that the disclosure of the hourly rates of investigations staff could reasonably be expected to prejudice IAB's commercial interests. I agree that the disclosure would reveal its hourly rates to its competitors. However, the documents date from between 2008 and 2010. It is highly improbable that the rates would be current. In my view it is also improbable that the disclosure would enable IAB's competitors to obtain a competitive advantage when tendering for investigations work.

257. The Respondent has merely asserted that disclosure of the information could reasonably be expected to prejudice IAB Services’ interests. There is no evidence to support that assertion.

258. It is my view that because of the passage of time any such prejudice is unlikely. Given the age of the information it would be necessary for the Respondent to provided cogent evidence to support its assertion. In the absence of that evidence, it has not satisfied the burden imposed by section 105 (1) of the GIPA Act.

259. In the circumstances, for the reasons argued by the Applicant, it is my view that the considerations in favour of the release of this information outweigh those against the release. Accordingly, it is my view that the correct and preferable decision it to release these documents in an unredacted form.

Documents 2a to 2d

260. Documents 2a to 2d are IAB Services Records of Interview with staff members of the Respondent. Access to three of the documents has been refused in part. Access to Documents 2d has been refused in full.

261. Notwithstanding that these documents are of a similar nature, it is clear that the information in Documents 2a to 2c has been regarded differently to that in Documents 2d. This is apparently based on the objection raised by the individual who’s interview is the subject of Documents 2d. I agree with the Applicant that that objection is not conclusive. In my view, the same approach should be taken to each of Documents 2a to 2d.

262. The Respondent determined that the withheld information should not be released to the Applicant on the basis of an overriding public interest against their disclosure under clauses 1(d), 1(f), 1(g) and 3(a) of the table to section 14 of the GIPA Act.

263. I have been provided with an unredacted copy of each of these documents. It is clear from the face of Documents 2a to 2c that the redacted information is the personal information of the staff member for the purposes of clause 3(a).

264. The Respondent also contends that the information was provided on a confidential basis. Confidentiality always depends on the circumstances of the particular case. As was noted in Re B and Brisbane North Regional Health Authority confidentiality can be inferred from all the circumstances. In Commissioner of Police NSW Police Force v Camilleri (GD) at paragraph [33] the Appeal Panel said with respect to confidential information that:

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

265. I accept that Ms Leaver's experience as a senior member of staff is relevant to the question whether, as a result of various policies and guidelines, there was likely to have been an expectation by staff that such information would be kept confidential. This is the case notwithstanding that Ms Leaver was not involved at the time. Ms Leaver stated:

The Guidelines provide for all managers and supervisors and staff members with knowledge of a grievance to maintain confidentiality, and for investigations to be kept as confidential as possible.

In my experience, some staff members have been reluctant to assist in an investigation without an assurance of confidentiality.

266. I accept this as “the agency's evidence as to the conditions under which it conducts” a grievance investigation.

267. I note that the Applicant has disputed that Ms Stien was properly briefed with the Respondent’s guidelines and policy documents. However, the answer to the question of whether or not Ms Stien was properly briefed on these issues does not alter my conclusions on this issue.

268. In my view the whole of the circumstances of this matter lead to the inference of an expectation by staff that information would be kept be kept as confidential as possible. Contrary to the Applicant’s submission, it is my view that each of the staff members would have provided the information with that expectation.

269. The Applicant is in clear disagreement with statements made to IAB Services. It is also clear that he had serious concerns about the manner in which the Respondent handled his grievance. I also accept that Ms McAtee indicated that she felt that there was a basis for those concerns. However, these issues are not relevant to the question of whether the information was provided with an expectation of confidentiality.

270. In my view, this is not the appropriate forum for the resolution of the issues that the Applicant has raised regarding the manner in which the Respondent handled his grievance.

271. As noted above, the Applicant has made allegation that the Respondent has engaged in misconduct or an abuse of power and this overrides the public interest considerations against disclosure of the information. I do not agree with the Applicant in that regard.

272. The Respondent submitted that disclosure of some withheld information could reasonably be expected to prejudice the supply of such information to the agency in the future. I have referred above to a number of decisions in which the Tribunal found that if information is supplied pursuant to a duty of confidentiality, the disclosure of the information is likely to prejudice the operations of the agency from disclosure. It has been generally accepted that agencies’ investigative functions depended to a large extent on the cooperation of those who hold relevant information. If information obtained confidentially was released then there is potential for breakdown of the necessary cooperation.

273. I note the Applicant’s contention that the information in the transcripts is false and misleading and that it was provided maliciously with a view to harming his interests.

274. I also note his contention that those against whom he had made the complaint were obliged to participate because their interests were adversely affected. However, I do not accept that contention. I am satisfied that the individuals who cooperated with the investigation did so with an expectation of confidentiality. They were not bound to disclose the information and did so on the understanding that the information would be treated in confidence.

275. I am satisfied that information of the kind contained in the Records of Interview facilitates the exercise of the Respondent's functions. I am satisfied that the staff members who provided the information have objected to the release of the redacted information. In my view it can be inferred that if the redacted or withheld information were released then those staff members may be less inclined to cooperate in any future investigation.

276. The Applicant sought to distinguish my decision in Williams v Department of Industry and Investment as of no relevance. I do not agree with that view. Williams concerned an access application under the GIPA Act. As noted above, I affirmed the agency's decision not to disclose transcripts of interview between staff who had been interviewed by Ms Stien of IAB Services. In that regard there is a similarity in the circumstances of Williams and this matter. In Williams I accepted that the disclosure of the transcripts could discourage future victims of workplace bullying or harassment from coming forward. In this matter I accept the Respondent’s contention that it would be severely hampered in its efforts to fully investigate workplace issues that arise if confidentiality in workplace grievances could not be maintained.

277. For the same reasons as in Williams, and for the reasons argued by the Respondent, I accept that the supply of information of the kind provided in this matter is necessary for the effective exercise of the Respondent's functions. I also accept that disclosure of the redacted information in Documents 2a to 2c could discourage staff from coming forward in the future.

278. That being the case, I am satisfied that disclosure could reasonably be expected to prejudice the supply of such information to the agency in the future.

279. I have considered the arguments presented by the Applicant which he asserts support the view that the information should be released. I accept that there is a public interest in exposing persons who make false allegations. I also accept that there is public interest in exposing senior managers who maliciously make false and misleading statements against complainants during workplace grievance investigations. However, I do not consider that those interests are determinative of this particular matter.

280. The Applicant's disagreement with the statements, and the fact that he is of the opinion that the statements are false, do not justify the disclosure of this information.

281. I have weighed the various public interests in favour and against release of the information redacted from Documents 2a to 2c. As was the case in Williams, it is my view that the public interest considerations have already been satisfied by the disclosure of the information already released to the Applicant. Disclosure of the redacted information would not further those considerations.

282. Accordingly, it is my view that the correct and preferable decision is to affirm the determination to not release the information redacted from Documents 2a to 2c.

283. As I have indicated above, it is my view that the same approach should be taken to each of Documents 2a to 2d. Document 2d has been withheld in full whereas only some redactions have been made to Documents 2a to 2c. The copy of Document 2d that has been provided to me has identified sections which apparently contain personal information of the interviewee or other individuals. For the same reasons that I have accepted that the information redacted from Documents 2a to 2c should not be released, it is my view that comparable information should be redacted from Document 2d. The remainder of the document should be released to the Applicant.

284. Accordingly, it is my view that the correct and preferable decision is to release Document 2d in a redacted form.

Document 3

285. Document 3 is IAB Services' final report to the Respondent. Parts of the report were withheld on the basis of an overriding public interest against disclosure under clause 1(d) of the table to section 14 of the GIPA Act. That is, that disclosure could reasonably be expected to prejudice the supply of confidential information that facilitates the effective exercise of the Respondent's workplace grievance and complaint handling functions.

286. I have considered the report and the arguments and evidence presented by the parties. It is my view that the same considerations are relevant to the report as were relevant to the Documents 2a to 2d i.e. the Records of Interview with staff.

287. For the same reasons, it is my view that the public interest considerations in favour of disclosure of the redacted information are outweighed by the public interest considerations against disclosure. I agree that it was appropriate for the report to be released to the Applicant with personal information of third parties redacted.

288. Accordingly, it is my view that the correct and preferable decision is to affirm the determination to not release the redacted information.

Documents 6a to 6g

289. The Applicant’s access application sought copies of all documents in the Respondent’s possession relating, touching or incidental to his personal grievance complaint. Documents 6a to 6g are the documents that the Respondent identified as falling within the scope of that request.

290. As was the case in regard to documents 2a to 2d, the Respondent consulted about the release of the correspondence related to the investigation, and three of the individuals who were consulted objected to disclosure of their personal information in the correspondence. On this basis, the Respondent determined to redact personal information from the documents and to release these documents in a redacted form. It contends that release of the redacted information could reasonably be expected to reveal or disclose information that is an individual's 'personal information'.

291. I have been provided with an unredacted copy of each of these documents and I have considered those documents along with the evidence and arguments presents by the parties.

Document 6a

292. Document 6a is a series of emails between staff of the Respondent. For the most part, it is my view that the information that has been redacted from those emails is not an individual's 'personal information' because it reveals nothing more than the fact that the person was engaged in the exercise of public functions. In fact, some of those emails were copied to the Applicant and therefore he would have already been given an unredacted copy.

293. The single exception is the email sent on Wednesday, 18 November 2009 at 5.20 pm with the subject heading “Follow up from SIC, O/M meeting - Finance”.

294. In my view, the information that has been redacted from that email contains personal information. It is also my view that and the public interest considerations in favour of disclosure of the redacted information in that email are outweighed by the public interest considerations against disclosure. I agree that it was appropriate for the email to be released to the Applicant with personal information redacted.

295. However, I do not agree that other information should be redacted from the remainder of Document 6a.

296. Accordingly, it is my view that the correct and preferable decision is to affirm the determination to not release the information redacted from the email sent on Wednesday, 18 November 2009 at 5.20 pm with the subject heading “Follow up from SIC, O/M meeting - Finance”. The remainder of Document 6a should be released.

Document 6b

297. Document 6b is a series of emails between staff of the Respondent. For the most part, I agree that the information that has been redacted from those emails is an individual's 'personal information'. However, in regard to the email sent on Tuesday, 25 May 2010 at 4:17pm with the subject “A/c 20600 Goods Received/Inward” it is my view that the information that has been redacted reveals nothing more than the fact that the person was engaged in the exercise of public functions. That information is not an individual's 'personal information'.

298. In my view, the remainder of the information that has been redacted from Document 6b contains personal information. It is also my view that and the public interest considerations in favour of disclosure of the redacted information are outweighed by the public interest considerations against disclosure. I agree that it was appropriate for the document to be released to the Applicant with personal information redacted.

299. Accordingly, it is my view that the correct and preferable decision is to affirm the determination to not release the information redacted from Document 6b with the exception of the email sent on Tuesday, 25 May 2010 at 4:17pm with the subject “A/c 20600 Goods Received/Inward”. The information redacted from that email should be released.

Document 6c

300. Document 6c is a series of emails between staff of the Respondent and/or Ms Stein and a letter dated 8 November 2010 from Russell Cox to Clare Hamilton.

301. For the most part, I do not agree that the information that has been redacted from those documents is an individual's 'personal information'. It is my view that the information that has been redacted reveals nothing more than the fact that the person was engaged in the exercise of public functions. That information is not an individual's 'personal information'.

300. However, I agree that the information that has been redacted from the letter from Russell Cox to Clare Hamilton is an individual's 'personal information'. It is also my view that and the public interest considerations in favour of disclosure of the redacted information in that letter are outweighed by the public interest considerations against disclosure.

301. Accordingly, it is my view that the correct and preferable decision is to affirm the determination to not release the information redacted from the letter from Russell Cox to Clare Hamilton. The remainder of the information redacted from Document 6c should be released.

Document 6d

304. Document 6d is a series of emails between Jennifer Bulkeley and Ms Stein. I agree that the information that has been redacted from those documents is an individual's 'personal information'.

305. It is also my view that and the public interest considerations in favour of disclosure of the redacted information in those emails are outweighed by the public interest considerations against disclosure.

306. Accordingly, it is my view that the correct and preferable decision is to affirm the determination to not release the information redacted from Document 6d.

Document 6e

307. Document 6e comprises a number of file notes and a series of emails between staff of the Respondent. I agree that the information that has been redacted from those documents is an individual's 'personal information'.

308. It is also my view that and the public interest considerations in favour of disclosure of the redacted information in those documents are outweighed by the public interest considerations against disclosure.

309. Accordingly, it is my view that the correct and preferable decision is to affirm the determination to not release the information redacted from Document 6e.

Document 6f

310. Document 6f is an email from Clare Hamilton to Ms Stein. I do not agree that the information that has been redacted from the documents is an individual's 'personal information'. It is my view that the information that has been redacted reveals nothing more than the fact that the person was engaged in the exercise of public functions. That information is not an individual's 'personal information'.

311. Accordingly, it is my view that the correct and preferable decision is that the information redacted from that email should be released.

Document 6g

312. Document 6g is a file note by Ms Stein of a telephone interview. I agree that the information that has been redacted from the document is an individual's 'personal information'.

313. It is also my view that and the public interest considerations in favour of disclosure of the redacted information are outweighed by the public interest considerations against disclosure.

314. Accordingly, it is my view that the correct and preferable decision is to affirm the determination to not release the information redacted from Document 6g.

315. The Respondent submits that the Applicant has failed to establish, prima facie, that the Respondent engaged in misconduct or fraud and, accordingly, has not sought to file evidence in response to these allegations.

DECISION

316. With the exception of those matters where I have found that the withheld information should be released, the Respondent’s determination to refuse to grant access to the information should be affirmed.

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

Registrar

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: 14 January 2015