Taylor v WorkCover Authority

[2003] NSWADT 186

CITATION:	Taylor v WorkCover Authority [2003] NSWADT 186
DIVISION:	General Division
PARTIES:	APPLICANT Robert Richard Taylor RESPONDENT General Manager, WorkCover Authority
FILE NUMBER:	023053
HEARING DATES:	02/06/2003
SUBMISSIONS CLOSED:	06/10/2003
DATE OF DECISION:	08/11/2003
BEFORE:	O'Connor K - DCJ (President)
APPLICATION:	access to documents - confidential material - Freedom of Information Act - access to documents - confidential material
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1982 (Cth) Freedom of Information Act 1989 Protected Disclosures Act 1994
CASES CITED:	Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VR 37 Commonwealth v John Fairfax & Sons Ltd [(1980) 147 CLR 39 Corrs Pavey Whiting and Byrne v Collector of Customs (1987) 14 FCR 434 Gartside v Outram [(1856) 26 LJ Ch 113, Wood V-C Smith, Kline and French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health (1991) 28 FCR 73) Public Service Association and Professional Officers Association v Director General, Premier’s Department [2002] NSWADT 277 (24 December 2002) Re B and Brisbane North Regional Health Authority [1994] QICmr 1 (31 January 1994); (1994) 1 QAR 279 Re Searle Australia Pty Ltd and Public Interest Advocacy Centre and Department of Community Services and Health (1992) 108 ALR 163 (1992) 36 FCR 111
REPRESENTATION:	APPLICANT In Person RESPONDENT M Allars, barrister
ORDERS:	1. Agency’s determination in respect of documents 217 and 218 affirmed.; 2. Application to be relisted for further planning meeting.

REASONS FOR DECISION

1 This decision deals with an application made by the applicant (‘Mr Taylor’) pursuant to the Freedom of Information Act 1989 (FOIA) for review of a determination made by the respondent (‘the agency’).

2 The original FOI request to the agency was made on 12 March 2001. The application for review was filed on 6 March 2002, and the first planning meeting was held on 21 May 2002. There have since been meetings on 16 August 2002, 4 February 2003 and 11 March 2003 prior to the hearing held on 2 June 2003.

3 Like many FOI applications, this application has a wider context. Mr Taylor was from 22 April 1991 until 24 March 1999 an employee of the agency, which (among other things) manages the workers compensation system for New South Wales. He was employed for most of that time as actuarial co-ordinator, Insurance Division. He become increasingly concerned over what he saw as failures in administration in relation to the setting the amount of the workers compensation insurance premium levy. He saw it as inadequate to meet future liabilities. As he did not receive what he regarded as a satisfactory response from the agency, he made external complaint to the Independent Commission Against Corruption in a manner which he saw as complying with the ‘whistleblowing’ law, the Protected Disclosures Act 1994. He also made his criticisms known to Members of Parliament. He said in his submissions filed on 7 May 2003 that he had acted in this way partly out of the fear that he would be made a scapegoat in the event that any public inquiries found that the premium rate had been set too low.

4 In August 1996 the agency decided to abolish the unit in which Mr Taylor worked, and the possibility of seconding Mr Taylor to a private actuarial consultancy firm was canvassed with him; there was an offer as an alternative of a redundancy package. Mr Taylor had objected to these courses of action, and, according to a memorandum of Mr McInnes dated 21 April 1997 (filed by Mr Taylor) Mr Taylor had expressed concern that the agency’s conduct involved a breach of occupational health and safety legislation.

5 There was an incident on 10 April 1997. The incident is referred to in an internal agency report of July 1997. The inquiry giving rise to the report was into complaints made by Mr Taylor that he had been the subject of detrimental action in breach of his rights under the Protected Disclosures Act. The report (‘the Francis Report’) is at tab 5 of Mr Taylor’s submissions and refers at pp 4-5 to the incident of 10 April 1997. The incident is referred to further later in these reasons.

6 Ultimately Mr Taylor accepted a voluntary redundancy offer and his employment was terminated on 24 March 1999.

7 He has a deep sense of grievance over how he was treated by the agency.

8 His original FOI request was wide-ranging, and sought documents relating to the financial practices of the agency and documents relating to the steps taken by the agency culminating in his termination.

9 The request covered five categories of information:

1. investigative files held under Mr Taylor’s name, and in particular relating to the monitoring of telephone conversations.

2. protected disclosures held under Mr Taylor’s name.

3. Board papers relating to the WorkCover insurance scheme financial statements for 30 June 1995, in particular relating to the recommendation for the premium rate for 1995-96

4. ANZSIC consultancy reports completed by Pacific Bridge Pty Ltd for WorkCover.

5. Copies of agenda and minutes of Occupational Health and Safety Committee meetings for 1993 to 1998.

10 The agency determined to refuse the request on the grounds of unreasonable diversion of resources. At this point Mr Taylor lodged his application for review of the determination with the Tribunal. There had been no internal review of the determination, and no application to that effect from Mr Taylor. Consequently the application was adjourned pending the conduct of an internal review by the agency. The internal review determination confirmed the original determination. The Tribunal resumed dealing with the application.

11 Within the framework of the proceedings before the Tribunal, the agency decided to action the request, with the result that most of the documents that have been located relating to his request have been released. Some were the subject of various claims for exemption.

12 Mr Taylor has consistently questioned the motives of the agency and the way in which it has conducted itself. He has highlighted the occasions during the time the matter has been before the Tribunal where documents said not be held by the agency have eventually been located and released. He has decided, partly in response to discussions that have occurred at planning meetings, not to challenge the agency’s claims for exemption in respect of most of the documents that it has refused to release. So the issues in dispute between Mr Taylor and the agency over its response to his request have for the most part been resolved.

13 As at the time of the hearing giving rise to this decision (2 June 2003), there only remained two documents in issue: described in the proceedings as Document 217 and Document 218. On 30 June 2003, while this decision was reserved, the Crown Solicitor advised Mr Taylor that:

‘some further paper work has been recently found in a compactus at WorkCover’s premises which may possibly be relevant to your FOI application. In this regard, I am instructed that these papers are currently being reviewed for FOI purposes. When this review is completed which I am instructed will be in the near future, a schedule of further documents will be prepared and provided to you together with copies of such further documents, if any, as are determined to be released under the Freedom of Information Act 1989 .’
14 It is clear, therefore, that this decision may not now entirely dispose of Mr Taylor’s application for review. The Tribunal will, accordingly, not enter any final order disposing of the application at this stage.
Documents 217 and 218
15 The agency declined to give any details as to their contents in the schedule of those documents for which exemption was claimed that was provided to Mr Taylor. The agency did so because in its opinion that might give rise to the release of exempt matter (see FOIA s 28(3)). What is known about them from the non-confidential elements of an affidavit relied upon by the agency is that the documents have as their author different persons, described as ‘A’ and ‘B’. The affidavit is that of Mr Rodney Stuart McInnes, a senior manager, who was at all times relevant to Mr Taylor’s application either directly or indirectly Mr Taylor’s supervisor. The non-confidential element of the affidavit also recites that ‘A’ and ‘B’ are opposed to release of the contents of their documents to Mr Taylor.

16 Mr Taylor believes that the documents relate to a telephone call that he made at about 1.00 pm on 10 April 1997. He believes that his calls were the subject of systematic monitoring. He sees his situation as one where he has been the victim of a breach of confidence in the way that those calls became known to senior officers, and which then gave rise to formal warnings.

17 As to the events on 10 April 1997 he said that while at work on that day he made a phone call to a person connected with the ABC current affairs program, the 7.30 Report. About 7 or 8 minutes later he was confronted by Mr McInnes and another senior officer, Mr John Horder, who he said pushed him into a meeting room, criticising his conduct. He said they seemed to have full and total knowledge of the telephone conversation in which he was involved. He believes that if the documents in issue are records of what he said they could not have been prepared in the short time that had elapsed from the making of the call to the end of the call and to being confronted by Mr McInnes and Mr Horder. He believes that they must have been compiled at some later time; and that they must have been monitored. He submits that that is illegal. After the interrogation, as he described it, as to his conduct by Mr McInnes and Mr Horder, he said that he phoned the offices of two Members of Parliament. He said that he was formally warned that afternoon. I make no findings on these matters.

18 Mr Taylor also referred in his submissions at p11 to an incident which he says occurred later on the afternoon of 10 April 1997. He said another senior officer, Ms Anne Mackie, sought to prevent him faxing material to one of the Members of Parliament whose office he had previously contacted (the portfolio Minister, the Hon J W Shaw QC). He says that Ms Mackie told him that two agency officers had overheard his conversations and she was acting to stop the applicant from getting into further trouble. The Francis Report contains similar information. I make no findings on these matters.

19 There is some additional material later in these reasons going to these events.

20 I have inspected the documents in issue.

21 The exemptions relied upon provide:

‘ 13 Documents containing confidential material

A document is an exempt document:

(a) if it contains matter the disclosure of which would found an action for breach of confidence, or

(b) if it contains matter the disclosure of which:

(i) would otherwise disclose information obtained in confidence, and

(ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and

(iii) would, on balance, be contrary to the public interest.’

22 The agency carries the burden of establishing its claim: FOIA s 61. The agency relied on a mixture of open and confidential submissions and evidence. There is the partly-confidential affidavit from Mr McInnes, to which I have already referred. Paragraphs 13 to 16 are blacked out, and they were provided in confidence to the Tribunal. It attaches statements from the authors of the two documents.

23 The agency also presented a written Outline of Submissions. That document was provided to Mr Taylor. In addition there were oral submissions in confidential session (Mr Taylor being excluded) from Ms Allars of counsel for the agency. The Tribunal then resumed in open session, and Mr Taylor made oral submissions. The agency provided the Tribunal with an additional piece of information that it requested, copied to Mr Taylor, by letter dated 3 June 2003. Mr Taylor has also, since the conclusion of the hearing, filed further written submissions dated 2 and 10 June 2003.

24 In all Australian FOI laws, there are a number of specific exemptions that seek to protect confidentiality interests. In relation to the place of general claims to confidentiality in the scheme of the Commonwealth Freedom of Information Act 1982, the Federal Court noted in Re Searle Australia Pty Ltd and Public Interest Advocacy Centre and Department of Community Services and Health (1992) 108 ALR 163 (1992) 36 FCR 111 (information submitted to a regulatory agency, about tests, product ingredients and the like needed for registration) at [61]:

‘Prior to the coming into operation of the FOI Act, most communications to Commonwealth departments were understood to be confidential because access to the material could be obtained only at the discretion of an appropriate officer. With the commencement of the FOI Act on 1 December 1982, not only could there be no understanding of absolute confidentiality, access became enforceable, subject to the provisions of the FOI Act. No officer could avoid the provisions of the FOI Act simply by agreeing to keep documents confidential. The FOI Act provided otherwise.’
25 In this case, the agency submitted that the two documents were protected by cl 13(a), or alternatively, cl 13(b). As to the state of law as at 1997, see Cossins, Annotated Freedom of Information Act New South Wales (1997) (Cossins) [113.1] and following. In the Tribunal’s opinion, this remains an up to date account of the law as it has emerged in FOI law in Australia, the leading cases belonging to the period 1987-1993.

26 The unusual aspect of the submission is the attention given to cl 13(a) having regard to the very simple nature of the two documents. Agencies usually rely on cl 13(b) in cases like this rather than engage in a close examination of the applicability or otherwise of the general law principles which remain, to some extent, in a state of flux.

27 The principles governing actions for breach of confidence have been developed primarily in the sphere of intellectual property, in particular the protection of trade secrets and copyright. There are also a number of cases where employers have sought to prevent employees and ex-employees making use for their commercial purposes of information acquired in the course of employment with the plaintiff employer: see for example Ansell Rubber Co Pty Ltd v AlliedRubber Industries Pty Ltd [1967] VR 37. The cases involving the protection of private confidences are fewer. My limited research located none involving private confidences occurring within the framework of government employment.

28 There remains some doubt among commentators as to the readiness of the courts to find a duty of confidence in relation to private information. For example Richardson comments in ‘Breach of Confidence’, (1994) 19 MULR 673 at 689:

‘[T]he cases where breach of confidence actions have succeeded for private and personal information imparted in confidence represent the exception rather than the rule for breach of confidence cases, most of which concern trade secrets imparted for commercial reasons [footnote omitted].’
29 The attraction of cl 13(a) is that, arguably, its establishment may not require the agency to address at all, or to the same degree, the issues of prejudice and the public interest that are required to be addressed when cl 13(b) is invoked. Commentators have observed that is not surprising that agency officers, generally not trained in law let alone the vagaries of the principles of equity, have preferred to avoid relying on cl 13(a), and have instead tended to invoke cl 13(b) with its more transparent statement of the criteria to be addressed, and ones which naturally relate to the operation of government. See for example Cossins at [113.2.3] and observations of the Queensland Information Commissioner in Re B and Brisbane North Regional Health Authority [1994] QICmr 1 (31 January 1994); (1994) 1 QAR 279 ( Re B ) at [23] and [34].

30 That cl 13(a) may not necessitate examination of wider public interest considerations is the subject of the following comment in a Commonwealth case, Corrs Pavey Whiting and Byrne v Collector of Customs (1987) 14 FCR 434 (Corrs case) by Jenkinson J., with whom Sweeney J. agreed, at 438:

‘.. the language of s 45(1) [ the equivalent Commonwealth provision, which provides that a document is exempt ‘if its disclosure under this Act would constitute a breach of confidence’] is not inapt to confer exempt status on a document which contains confidential information received under circumstances importing an obligation of confidence, without regard to those considerations of public policy to which courts have allowed an influence in determining whether to grant or withhold remedies for ‘breach of confidence’ in exercise of equitable or common law jurisdiction.’
31 In Corrs case Gummow J (in dissent on this point) stated at 443 (later upheld in Smith, Kline and French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health (1991) 28 FCR 73) that the words used in s 45(1) evinced an intent on the part of Parliament that the government prove strictly that the elements necessary to be proven by a plaintiff in an action for breach of confidence be established, i.e:
(i) with specifity, and not merely in global terms, that which is said to be the information in question;

(ii) that the information has the necessary quality of confidentiality (and is not, for example, common or public knowledge)

(iii) that the information was received by the defendant in such circumstances as to import an obligation of confidence; and

(iv) there is actual or threatened misuse of the information.

32 The leading FOI case on exemptions of the kind given by cl 13(a) (and the Commonwealth’s s 45(1)) is the Queensland case, Re B . It is a case of general significance as it contains a detailed exposition of the principles relevant to the consideration of provisions like cl 13(a). In that case B had sought his medical records. One record was refused on the basis that in included information provided by a third party in confidence.

33 The Commissioner stated that in the FOI context the assessment of the claim for exemption needed to be addressed as though there was a hypothetical plaintiff complaining of breach of confidence by dint of the proposed disclosure.

34 Before coming to this conclusion the Commissioner noted at [23] the difficulties faced by a review tribunal in having to examine and apply the principles derived from the law of equity, saying:

‘As to difficulties in application, the ground of exemption under s 46(1)(a) [the Queensland equivalent of cl 13(a)] operates by calling for the application of legal tests to be derived from the general law relating to actions for breach of confidence. This is a fairly complex area of law. Its complexity is compounded by the fact that uncertainty still attends some aspects of its modern development such that not only leading academic writers but also many judges seem to disagree on some points of principle or on methods of approach to some issues.’
35 In the present case, the agency and Mr Taylor made submissions as to the applicability or otherwise of the Gummow criteria to the documents in dispute. There was also reference by Mr Taylor to a fifth criterion which he derived from the analysis found in the decision of the Queensland Information Commissioner in Re B . The Commissioner stated at [53]:
‘If the hypothetical cause of action was an equitable action for breach of confidence, five matters had to be established: [the first three criteria set out by Gummow J were repeated in slightly different terms, and the Commissioner continued]; four, it must be established that the disclosure of the information would constitute an unauthorised disclosure [similar to Gummow J’s fourth criterion]; and, five, it must be established that the giver of the information would suffer a detriment, not necessarily pecuniary, such as loss of privacy or embarrassment.’
36 The Commissioner at [71] cited with approval the following passage from a text by Dean, The Law of Trade Secrets (1990) 115, 164:

‘Confidentiality may be lost with the passage of time

(i) "... the passing of time alone may be sufficient to reduce the secrecy of the information ... This is particularly relevant to government secrets. What is confidential today may be simply harmless historical facts tomorrow. Further, it may be reduced to trivia. The same consideration will apply to some personal information." ’.

37 I note that care must be taken in not readily assimilating to the coverage of a breach of confidence action the many communications received by management in a government agency. If the information given is information given under a duty of compulsion, there will be no protection based on the duty of confidence afforded by the general law: see per Gummow J in Corrs case, referred to by the Commissioner at [95]-[96].

38 In this instance, the agency referred to the Gummow tests and submitted that the four criteria were satisfied. The agency relied on the evidence in the affidavit of Mr McInnes, especially the suppressed paragraphs 13-16.

39 The agency also referred to a Tribunal decision affirming reliance of cl 13(a), Public Service Association and Professional Officers Association v Director General, Premier’s Department [2002] NSWADT 277 (24 December 2002). In that case the applicant had sought access to agency level data generated by the Premier’s Department taking the form of statistical information comparing agencies across a range of factors derived from information voluntarily supplied by public servants as to various personal particulars (age, date of birth, gender, location, earning, superannuation contributions, allowances and leave). The Premier’s Department gave evidence that there was a risk that if the data sought was disclosed there was a risk that some individuals could be identified. This is a consequence of presenting some of the agency level data in data cells with cells of five persons or less. There was a good deal of evidence as to the risks faced in gathering the primary source data (which was given voluntarily) if its employees formed the view that the confidentiality of the data may be placed at risk. The Tribunal found that several exemptions were properly relied upon including cl 13(a). Its reasons as to cl 13(a)’s applicability are very brief (perhaps due to the difficulty of not exposing exempt material). It referred to the tests laid down in Corrs case, did not apply them in a step by step way to the facts before it, and concluded that while the vast majority of the agency level data could be released without risk to identity, ‘there can be little doubt that the release of the [data] as a whole package or document, would entail a breach of confidence in certain cases and would therefore found an action for breach of confidence by those individuals’.

40 Arguably the words used in cl 13(a) exclude from view the possible defences that might be available to the hypothetical defendant to the hypothetical action for breach of confidence. The exemption is expressed to be available to be invoked where the threatened disclosure (here under FOI) would ‘found’ an action for breach of confidence.

41 In this regard, and returning to the question of a possible distinction as between cl 13(a) and cl 13(b), there is a lively debate as to whether Australian law recognises the existence of public interest defences to actions for breach of confidence. Gummow J’s comments in Corrs case at 451-456 have been interpreted as suggesting that there are no such general defences.

42 On the other hand the learned authors of the relevant text in Laws of Australia (Ricketson and Christie) reply: ‘It may be debated whether there is any principled justification for Gummow J’s rejection of the broader public interest defence (or exception) accepted in Commonwealth v John Fairfax & Sons Ltd [(1980) 147 CLR 39 at 56-57 per Mason J] based – as it appears to be – on an assumption that the law in this country has not developed since Gartside v Outram [(1856) 26 LJ Ch 113, Wood V-C at 114 [where only disclosure of ‘iniquity’ was accepted as not protected by a duty of confidence].’ See also Richardson at 688. The issue is also referred to at length by the Queensland Commissioner in Re B at [125] and following, citing other academic commentaries critical of the narrowness of the Gummow approach.

43 Criteria (i) to (iv): It is clear, I consider, that the documents satisfy the requirement of specificity (criterion (i)). I am also satisfied from the confidential evidence that the information was imparted in confidence (criterion (iii)). The threatened disclosure (criterion (iv)) is the possibility of release pursuant to FOIA; this criterion is established.

44 As to whether the information possessed the necessary quality of confidentiality (criterion (ii)), and should continue to possess that quality, the Tribunal sought further information on this matter.

45 Publicity: The Tribunal raised the issue of whether any publicity had been given to the contents of the documents. That is the subject of the letter from the Crown Solicitor dated 3 June 2003, as follows:

‘During the course of the hearing the President requested the agency clarify whether the documents which were the subject of the hearing (identified as document Nos. 217 and 218) and/or the incident which they relate were considered in the course of any formal proceedings, disciplinary or otherwise, involving Mr Taylor.

I am instructed by my client in relation to the above query that it appears document Nos. 217 and 218 were the basis for a letter dated 10 April 1997 to Mr Taylor a copy of which letter is Attachment number 6 to Mr Taylor’s Outline of Submissions filed in the above matter on 7 May 2003. Other than the letter dated 10 April 1997, I am instructed that there does not appear to have been any formal proceedings disciplinary or otherwise, involving Mr Taylor arising from document Nos. 217 and 218 and/or the incident to which they relate.’

46 The memorandum of 10 April 1997 to which the Crown Solicitor’s letter of 3 June 2003 referred was addressed to Mr Taylor at his work location, the Insurance and Fund Management Division in the following terms and signed by Mr McInnes. It was issued to Mr Taylor after he was spoken to by Mr McInnes and Mr Horder over his phone call to the media.
‘The WorkCover Media Liaison Policy provides specific details on which officers in WorkCover may make public comment on the activities and functions of WorkCover NSW. A copy of the policy is attached.

I hereby direct you to comply with the contents of the policy in all aspects. You should note that you are not an officer who is authorised to make comment to the media about WorkCover issues. Failure to comply with this direction or with the Media Liaison Policy will lead to disciplinary action being taken against you.’

47 I have noted the further submissions made by Mr Taylor dated 10 June 2003 replying to this material. He contends that this is a form of disciplinary action. The Crown Solicitor has, I consider, properly understood the inquiry I was making. It was as to whether formal disciplinary action of the kind that might result in adverse findings and the making of disciplinary orders had been undertaken, and whether any of the material contained in documents 217 and 218 had been exposed in the course of any such processes. The action taken in this instance constituted a direction (in essence, a final warning) and there is no material before me to suggest that contents of documents 217 and 218, and most particularly the identity of the authors, has ever been disclosed publicly, thereby affecting the claim for confidentiality.

48 The contents of this memorandum do not deprive the contents of documents 217 and 218 of their quality of confidentiality.

49 Passing of Time: Mr Taylor submitted, taking up considerations seen as relevant in the case-law and to which I have alluded in the earlier quote from Re B, that the degree to which confidentiality should continue to attach to Documents 217 and 218 must decline with the passage of time. It is now 4 years since he worked at the agency. He believes that a concern of the agency and of the authors of the document is that they may fear reprisals from him and physical harm. He believes that this is a far-fetched and unreasonable concern. I make no findings on what concerns have been expressed by the authors of the document. I simply note that the views of the third party (the author in this case) of a document containing confidential information ought be given weight, even though they may involve concerns that are exaggerated or are held unreasonably. This point is brought out in the Queensland decision, Re B, where considerable weight was given to the fact that the third party ‘vehemently’ opposed disclosure. There was no examination of the inherent reasonableness or fairness of the view: see [140].

50 Criterion (ii) is made out. This discussion is also relevant to criterion (v), below.

51 Criterion (v): I am satisfied that it is also necessary in my view to have regard to the fifth matter referred to by the Queensland Information Commissioner in Re B - the question of detriment. In Corrs case this issue was one that did not require detailed attention. In my opinion, the Queensland Commissioner deals with the relevance and significance of the question of ‘detriment’ authoritatively from [97] to [118] of his reasons.

52 There was some confidential evidence on this matter. As I see it, and I agree with the view of the Queensland Commissioner, care must be taken in applying private law criteria to government claims seeking to protect information given to it. Criterion (v) may, if developed, provide a mechanism through which a sensible examination can be given to the public interest factors as they may bear on an agency’s claim that disclosure will result in detriment. Alternatively, greater consideration may need to be given to the question of the availability or otherwise of public interest defences.

53 In the government setting, the question of detriment can not simply be examined solely by reference to the detriment that may fall on the hypothetical plaintiff – the giver of the information - in the hypothetical action. I note that the Queensland Commissioner explores this point at length. In the FOI setting the moving party (seeking continued confidentiality) is the government not the giver of the information for which protection is sought. It may be that the detriment flowing from disclosure suffered by government is minimal or non-existent; and there is a high public interest in having the information made available to the public. Release could be frustrated by a rigid application of breach of confidence principles primarily developed in the intellectual property setting and outside the sphere of government.

54 It may be that the information disclosed by the hypothetical plaintiff (the giver of the information) to government should be made known to the community despite the conditions under which it was imparted.

55 In this instance these more complex issues do not, I consider, arise. The agency is seeking primarily to uphold the concerns of the authors of the documents. The agency is also concerned to protect its methods for obtaining information as to possible misconduct by employees. It has an interest in protecting the identity of the authors of such documents. Mr Taylor said he was concerned if there was any suggestion that he might engage in any physical threat to the authors. I doubt that he would. There is a likelihood, however, that he would initiate substantial written communications or other forms of verbal contact with the authors.

56 The part of the affidavit of Mr McInnes which was made available to Mr Taylor states that the authors of documents 217 and 218 are strongly opposed to its release. I have scrutinised the further confidential evidence provided in support, and am satisfied that that is the case. I am satisfied that criterion (v) is established.

57 For essentially similar reasons I am also satisfied that cl 13(b) is established. There are three requirements which are well known. Criterion (i) in cl 13(b), whether the information is ‘obtained in confidence’ is made out. Criterion (ii), as to future prejudice arising from disclosure of the information in issue is made out. In these public reasons, I can not amplify on this point without possibly disclosing the exempt matter; and am satisfied by the agency submissions made in confidential session. Criterion (iii) is also made out – the kind of information contained in the documents has relevance to the management of staff and the application of departmental policies. In the circumstances of this case it would be contrary to the public interest in the preservation of those interests to reveal the contents of the documents.

Order

1. Agency’s determination in respect of documents 217 and 218 affirmed.

2. Application to be relisted for further planning meeting.