Stassen v NSW Department of Education and Training

[2009] NSWADT 144

CITATION:	Stassen v NSW Department of Education and Training [2009] NSWADT 144
DIVISION:	General Division
PARTIES:	Applicant: Mary Stassen Respondent: NSW Department of Education and Training
FILE NUMBER:	083288
HEARING DATES:	23 December 2008
DATE OF DECISION:	16 June 2009
BEFORE:	Wilson R - Judicial Member
CATCHWORDS:	Freedom of Information Act 1989, Access to documents containing information as to personal affairs and information provided in confidence, Schedule 1 clauses 6 and 13
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	CEO, State Rail Authority v Woods [2003] NSWADTAP 25
REPRESENTATION:	Applicant: In Person Respondent: Ms S Bilbe-Taylor
ORDERS:	1. The decision under review is set aside. 2. In substitution for that decision, the Tribunal determines that the document in question (exhibit R3) does not contain exempt material and access is granted to the applicant without deletion.

REASONS FOR DECISION

1 These proceedings have been commenced in the Tribunal seeking review of a decision by the Respondent refusing access following an initial application pursuant to the Freedom of Information Act 1989. By the time of hearing only parts of a single document, consisting of two folios were in issue. This document is marked exhibit R3, a copy of which has not yet been provided to the applicant.

2 However, the applicant has been granted access to a partially edited copy of this document which appears as tab E to exhibit R2. From this edited copy the applicant has discerned that the parts of the document that have been edited out consist of two email communications from one Leanne Mead to a Mr. Peter Marsh, one at 09:20 am on 16.02.07 and the other at 11:48 am that same day. This much is clear from the edited copy that the applicant was given. It is also clear from that document that Mr. Marsh has replied to the earlier communication from Ms Mead, and that this reply demonstrates that Ms Mead had written to Mr Marsh concerning issues that had arisen in Ms Mead’s workplace. Mr. Marsh’s reply also reveals that these issues, as Ms Mead perceived them, concerned the degree of assistance provided, interference in her duties and a sense of intimidation. In his reply, Mr. Marsh stated that he would address these issues by discussing them with relevant staff members with the intent of negotiating a “workable way forward”. It is common ground that an investigation was later conducted by a Ms Helen Colbey. To this extent then, the Tribunal need not be circumspect in these reasons for decision.

3 The respondent submits that the parts of the document that have been edited out are exempt under the Act by reason of the application of both clauses 6 and 13 of Schedule 1 to the Act, and that these parts should not be released to the applicant as a matter of discretion. In relation to the clause 6 submission, only the personal affairs of Ms Mead herself is relied upon. Whilst the respondent’s submissions also refer to clause 16 of Schedule 1, that clause was not relied upon as a specific ground of exemption.

4 At relevant times the applicant and Ms Mead were employed by the respondent at one of the schools that it operates. They both performed administrative duties. Mr. Marsh was the Deputy-Principal at that school. The events in question occurred across a short period of time on 16.02.07 whilst the applicant and Ms Mead, as well as other employees, were performing administrative duties at the school office. Following these events, Ms Mead sent the first communication to Mr. Marsh and then, after Mr. Marsh’s reply, sent the second one. There is no suggestion in the evidence that Ms Mead’s communications relate to anything other than the events that occurred in the office that day, save for the reference to her health.

5 Whilst this is common ground, the respondent first argued that both communications by Ms Mead fell within clause 6 of Schedule 1 to the Act, that is, disclosure of the communications would involve an unreasonable disclosure of the personal affairs of Ms Mead. To establish this argument the respondent points to the fact that these communications express the subjective reactions of Ms Mead to the events under consideration, and to one matter concerning her health. This suffices, the respondent submits, to bring the personal affairs exemption into play in that such information necessarily involves Ms Mead’s “personal affairs”. The expression of Ms Mead’s subjective reactions and the reference to her health need to be considered separately.

6 The question of whether information in a document involves the personal affairs of a person is a question of fact (CEO, State Rail Authority v Woods [2003] NSWADTAP25 at paragraph 31). This decision of the Appeal panel also establishes that it is an error of principle to hold that simply because a document relates to workplace activities it thereby cannot contain information that concerns the personal affairs of a person (Woods, ibid at paragraphs 26 and 31). This will depend upon the nature of the information in the document and the circumstances in which the document has come into being. Equally, where a document is not a workplace report prepared in the exercise of official duties, a person’s views expressed in that document towards the work activities of another may well concern the person affairs of the person expressing the view (Woods, ibid at paragraph 26): the Appeal Panel described such views as “expressions of privately held concerns about workplace performance” (Woods, ibid paragraph 31). In using this description the Appeal Panel is distinguishing between concerns about workplace performance that have a nexus with a persons personal affairs and those that do not, although it is a little difficult to discern the Appeal Panel’s thoughts on this point due to the circumspect way in which it was required to discuss the contents of the reports then before it, given that the documents in question were not released to the applicant by the determination. What is clear though is that, where there is no official report, the Appeal Panel has said that a document reporting on the workplace conduct of fellow employees may form part of the reporting person’s personal affairs (Woods, ibid at paragraph 26). However, in the final analysis, the question whether this nexus is established in a particular matter remains a question of fact.

7 In the present matter, no official reporting was involved and the subjective reactions of Ms Mead as to the incidents she experienced on the morning in question may well be described as matters of fact which are personal to her, in the sense that she was the one who experienced the reactions. However, the evidence does not show any nexus between her subjective reactions and any matter which may properly be seen as being something falling within her personal affairs. Nothing of this nature appears in the document itself, leaving aside the reference to her health, and there is no circumstance attending the preparation of the communications that would supply such a nexus. Consequently, the subjective reactions of Ms Mead as expressed in the communications are not matters which concern her personal affairs.

8 The reference by Ms Mead in the first communication to Mr. Marsh to her health though, is a different matter. Clearly, here there is a matter which pertains to Ms Mead’s personal affairs in point of fact. However, the information contained in the communication about Ms Mead’s health is both minimal and nebulous to such a degree that it cannot be said that it would be unreasonable to disclose such information. Consequently, the clause 6 exemption is not satisfied in relation to this reference to Ms Mead’s health.

9 The respondent also relied upon the clause 13 (b) exemption, arguing that the information had been supplied in confidence. On the materials before it, the Tribunal is not satisfied that Ms Mead did in fact impose an obligation of confidence at the time that the communications in question occurred. There was no express limitation of confidence in the communications and the fact that Ms Mead was reporting upon the conduct of a fellow employee, although it allows for an inference to be drawn that the communication was in confidence, is not of such weight here as would allow the Tribunal to confidently draw such an inference. The nature of several the matters reported by Ms Mead, as set out in Exhibit R3, does not suggest that such an inference should be drawn in this case.

10 In view of these findings, the proper determination to make in these proceedings is that the document in question does not contain exempt material and therefore the applicant ought to be granted access to it without deletions. The Tribunal will so order.