Troskie v NSW Department of Education and Communities

[2014] NSWCATAD 155

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Troskie v NSW Department of Education & Communities [2014] NSWCATAD 155
Hearing dates:	16 April 2014
Decision date:	25 September 2014
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins, Principal Member
Decision:	Decision of the respondent is affirmed.
Catchwords:	ADMINISTRATIVE LAW - administrative review - access to government information - request for access to information in an internal investigation report of a complaint - refusal to grant access to information that is personal information about a person other than the access applicant and which was supplied in confidence - whether there was an overriding public interest against the disclosure of this information
Legislation Cited:	Administrative Decisions Review Act 1997 Administrative and Civil Tribunal Act 2013 Government Information (Public Access) Act 2009
Cases Cited:	Alexander v University of Sydney [2008] NSWADT 214 AMH v Western New South Wales Local Health District [2013] NSWADT 280 Attorney-General's Department v Cockcroft (1986) 10 FCR180 Independent Pricing and Regulatory Tribunal v Sydney Services Pty Limited [2008] NSWADTAP 79 Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 McInnes v NSW Department of Education and Communities [2013] NSWADT 219 McKinnon v Secretary, Department of Treasury [2006] HCA 45
Category:	Principal judgment
Parties:	Sheridan Helen Troskie (Applicant) NSW Department of Education & Communities (Respondent)
Representation:	Troskie (Applicant in person) Crown Solicitor's Office (Respondent)
File Number(s):	133339

reasons for decision

Introduction

1. The applicant seeks review of a decision of the respondent, the Department of Education and Communities, in regard to her application for access to specified government information, under the Government Information (Public Access) Act 2009 (GIPA Act).

1. The applicant is a former employee of the respondent and the information for which she sought access was the February 2013 internal independent investigation report into a complaint she had made against another employee of the respondent. That investigation was undertaken in February 2013.

1. The applicant made her initial request for access, in August 2013.

1. The respondent determined the applicant's application on 5 September 2013. The applicant received a copy of that determination until 26 September 2013.

1. In its determination the respondent said it had identified 97 pages containing information falling within the applicant's access request. In regard to the information on these pages the respondent determined that there was an overriding public interest against disclosure of the information, in part, on pages 23, 32 to 52 and 57 to 59. The respondent made a similar determination in regard to the entire information on pages 53 to 56.

1. On the basis of these findings, the respondent determined to refuse the applicant access to the information for which it found there was an overriding public interest consideration against disclosure and determined to grant the applicant access to the remaining information.

1. The applicant was provided with a copy of the pages containing the information for which access had been granted. Where access was granted in part, the applicant was provided with a copy of the relevant page with the information for which access had been refused redacted.

1. On 7 November 2013, the applicant made this application for review of the respondent's decision, as she was entitled to do (see sections 80 and 100 of the GIPA Act).

1. The applicant's application was heard on 16 April 2014. The applicant appeared in person and Ms K Mattes, solicitor, appeared on behalf of the respondent. During the course of the hearing, by consent I made an order that the respondent's decision in regard to the deleted information on pages 36, 51, 58 and 59 be set aside and in substitution thereof a decision that the applicant be granted access to this information. The applicant was granted access to this information in the course of the hearing.

1. The applicant's application for review was lodged with the Administrative Decisions Tribunal, in its General Division (see Administrative Decisions Tribunal Act 1997 as it applied at that time). As anticipated, on 1 January 2014, prior to the hearing of the applicant's application, the NSW Civil and Administrative Tribunal was established and on its establishment the Administrative Decisions Tribunal was abolished (see s 7 and cl 3 of Schedule 1 of the Civil and Administrative Tribunal Act 2013). By reason of cl 7(2) and (3) of Schedule 1 of the Civil and Administrative Tribunal Act 2013, this application is taken to be an application before the NSW Civil and Administrative Tribunal (NCAT), with NCAT (the Tribunal) being vested with all the relevant functions of the Administrative Decisions Tribunal immediately before its abolition and the provisions of the Administrative Decisions Tribunal Act 1997 and the GIPA Act continuing to apply.

1. Otherwise, there is no dispute that the tribunal has jurisdiction to hear and determine this application (see section 100 of the GIPA Act and section 30 of the Civil and Administrative Tribunal Act 2013).

1. At the conclusion of the hearing I reserved my decision.

Matters in issue

1. The applicant raised a number of issues in her written submissions and at the hearing. The main matter being a review of the decision of the respondent to refuse her access to the deleted information. That information was contained in the following pages:

• page 23 - private email address of the investigator, Mr Robert Lewis,
• pages 32 - 50 and 52 - 57. These pages are the investigator's record of interview with individual staff members. The applicant has been refused access to the information that is the investigators record of the interviewee's responses to specific questions he asked of them. The applicant has otherwise been granted access to the information, including the name of the interviewee and the questions that were asked.

1. The respondent contends that its decision is justified in that there is an overriding public interest consideration against disclosure of that information.

1. For the reasons set out below, having regard to the applicable law and the relevant facts, I am satisfied that the respondent has established that its decision is justified.

1. The other matters raised by the applicant are as follows:

(a) referral of systemic issues to the Information Commissioner under section 111 of the GIPA Act. In my view, this application does not raise any issues that are indicative of a systemic issue in relation to the determination of access applications by the respondent, or by agencies generally;

(b) report of improper conduct under section 112 of the GIPA Act. While I understand that the applicant may be dissatisfied with the determination made by the respondent, there is no material before the tribunal to indicate that an officer of the respondent has failed to exercise, in good faith, a function conferred on him/her under the GIPA Act;

(c) an alleged offence under section 120 of the GIPA Act for having destroyed his original notes. While this is not a matter falling within the tribunal's jurisdiction, I note section 120 creates an offence of destroying, concealing or altering any record of government information for the purpose of preventing the disclosure of the information as authorised or required by or under the GIPA Act. There is no evidence before the tribunal that supports a finding of the kind set out in section 120.

(d) the applicant also expressed a number of concerns about the manner in which the investigator had conducted his investigation. In this regard she asserted he had incorrectly, or changed what she had said during her interview with him. She also expressed concern about the mechanism used by Mr Lewis in the course of the investigation in that he told her he could investigate her complaint or negotiate a resolution with the staff member complained about. She said Mr Lewis told her that in either case the process was the same. During the hearing, I explained to the applicant that her application for review under the GIPA Act was limited to reviewing the decision of the respondent in regard to her application for access and that the tribunal had no jurisdiction in regard to the manner in which Mr Lewis conducted his investigation.

1. For the reasons set out above, I have not considered any further the additional matters raised by the applicant.

The GIPA Act

1. The object of the GIPA Act is to give every member of the public an enforceable right to seek access to government information and only restrict access where there is an overriding public interest against disclosure (see sections 3, 5, 9 and 13 of the GIPA Act).

1. The term 'government information' is defined in section 4 of the GIPA Act to mean 'information contained in a record held by an agency'. Government information 'held' by an agency is defined in clause 12 of Schedule 4 of the GIPA Act.

1. Section 5 of the GIPA Act contains a presumption in favour of the disclosure of government information unless there is an 'overriding public interest against disclosure'. Subsection 9(1) gives every person who makes an access request a legally enforceable right to be provided with access to the information in accordance with Part 4 of the Act unless there is 'an overriding public interest against disclosure of the information.'

1. The test for determining whether there is an overriding public interest against disclosure is set out in section 13 of the GIPA Act. That section provides:

13 Public interest test

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.

1. Section 12(1) of the GIPA Act provides that there is a general public interest in favour of disclosure of government information. Subsection 12(2) provides that public interest considerations in favour of disclosure are not limited. The section goes on to provide some examples of public interest considerations in favour of disclosure of government information. These are:

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.

1. The public interest considerations against disclosure are limited. These are set out in s 14 of the GIPA Act. Subs 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. This provision does not apply to this application.

1. The Table in subsection 14(2) sets out the only other public interest considerations against disclosure. For the purpose of this application, the relevant public interest considerations against disclosure are as follows:

14 Public interest considerations against disclosure

(1) ...

(2) 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.

(3) ...

(4) ...

Table

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):

(a)

...,

(b)

...,

(c)

...,

(d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions,

(e) reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency,

(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,

(h) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).

...,

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,

(c)

...

1. 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 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) ...

.

1. 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.

1. 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.

1. Section 107 of the GIPA Act sets out the procedure to be used, by the tribunal, in regard to information for which there is, or claimed to be an overriding public interest consideration against disclosure, when reviewing a decision of an agency. The provision essentially requires the tribunal to ensure that it does not disclose, in its decision or during the course of the hearing, such information to the applicant, the applicant's legal representative, or the public.

1. Subsection 105(1) of the GIPA Act places the burden of establishing that the decision the subject of review is justified on the respondent agency.

Evidence

1. The respondent relied on two affidavits at the hearing, an affidavit of Mr Lewis, sworn on 11 February 2013 and an affidavit of Jennifer Anne Murray, an employee of the respondent who holds the position of Director, Public Schools NSW. Neither witness was required for cross-examination.

1. The respondent also provided the tribunal with a copy of the disputed information, in confidence, pursuant to subsection 107(3) of the GIPA Act.

1. The applicant relied on two bundles of documents. These documents set out her account of events relating to her complaint and the investigation thereof and her submissions in regard to application for access under the GIPA Act.

1. In his affidavit, Mr Lewis explained that he is an independent education consultant and in January 2013 he was commissioned by Jim White, the Regional Director of the respondent to 'handle' the complaint made by the applicant in accordance with the respondent's 'Complaints Handling Policy Guidelines' (Guidelines).

1. Mr Lewis said that in accordance with these Guidelines he interviewed the applicant and the person she complained about. He interviewed them separate days and they both attended the interviewed in the company of their support person. Mr Lewis said he also interviewed a number of other persons, including seven staff members from the school where the applicant had taught.

1. Mr Lewis said that during each interview he made handwritten notes and at the conclusion of the interview he read his handwritten notes back to the interviewee to ensure his notes were accurate. He said he assured each interviewee of 'confidentiality under the process being used.' He said he then transcribed his handwritten notes to electronic form, 'as is the protocol when investigating a complaint' and he did not change the information in any way. He said that once he completed his report and submitted it to the respondent for consideration he destroyed his 'handwritten notes and all other written and electronic information regarding the complaint, as they are no longer required.' He said this was his usual practice in order to comply with section 12 of the Privacy and Personal Information Protection Act 1998 and to maintain confidentiality.

1. Mr Lewis explained that, in addition to assuring confidentiality, he also told each interviewee that their participation in the interview was voluntary and that if they did not wish to answer the questions he asked they were free to do so.

1. Mr Lewis said he forwarded his investigation report, on the applicant's complaint, to the respondent on 22 February 2013. On sending his report he destroyed his handwritten notes.

1. It is noted that Mr Lewis concluded that the applicant's complaint was not substantiated.

1. Ms Murray, who had encouraged the applicant to make her complaint under the respondent's Guidelines. She was also aware of the applicant's request for access to the information the subject of this application.

1. In regard to the respondent's Guidelines, Ms Murray pointed to the paragraph dealing with confidentiality. That paragraph relevantly provides:

All parties to a complaint are expected to treat the matter confidentially.

This requires everyone, including the complainant, to ensure that information is restricted to those who genuinely need to know. Furthermore, those people should only be told as much as they need to know and no more. For example, some people may need to know of the issue so that they can provide advice, but not the identities of the persons involved.

...

1. Ms Murray said staff members who had provided information to the investigator on these assurances of confidentiality would have significant concerns if that information were to be disclosed. She said, in her experience, such a disclosure could affect the relationships between staff that remained at the school and this was especially so where the investigation had concluded many months ago.

1. In her material, the applicant set out the circumstances giving rise to her complaint and the effect it had on her health. As I have noted, she expressed a number of concerns about the manner in which Mr Lewis had conducted his investigation. The applicant also addressed the public interest consideration, including her reasons for seeking access to the information in issue. As I have mentioned, the applicant asserts that the information would assist her in her worker's compensation claim.

Public interest considerations against disclosure

1. As noted above, the public interest considerations against disclosure in the table to subsection 14(2) of the GIPA Act is predicated with the words 'could reasonably be expected' to have the effect as prescribed in one or more of the clauses in that table.

1. It is accepted that these words, as they appear in the table in subsection 14(2) of the GIPA Act 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 [28], McKinnon v Secretary, Department of Treasury [2006] HCA 45, at [61] and Attorney-General's Department v Cockcroft (1986) 10 FCR180, at 190. Accordingly, the enquiry that is required to be made, under cl 1 and the other clauses containing the same introductory words, is of a general and abstract nature.

1. In Camilleri (supra), at [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.

1. While the respondent has relied on a number of public interest considerations against disclosure, in my view it is only necessary to consider two of these in any detail. These are the public interest considerations against disclosure in clause 1(d) (confidential information) and clause 3(a) (personal information) in the table to subsection 14(2) of the GIPA Act.

Clause 1(d) - confidential information

1. As noted above, in order for this public interest consideration against disclosure to apply, the respondent must establish that a disclosure of the information in issue could reasonably be expected to 'prejudice' the supply of 'confidential information' that facilitates the effective exercise of its functions.

1. In Camilleri (supra), at [27] and following, the Appeal Panel made the following remarks about the application of this public interest consideration against disclosure:

27 The approach to be adopted is similar to that commended by the Appeal Panel under the previous legislation, there in connection with cl 13(b)(ii). Clause 13(b)(ii) provided that 'a document is an exempt document if it contains matter the disclosure of which could reasonably be expected to prejudice the future supply of such information to the Government or to an agency'. Clause (b)(iii) went on to provide 'and would, on balance, be contrary to the public interest'.

28 In Director General, Department of Education & Training v Mullett & anor (GD) [2002] NSWADTAP 13 (Mullett), the Appeal Panel said:

58 In our view cl 13(b)(ii) requires the Tribunal to engage in a relatively abstract analysis. It must ask whether material of the kind sought to be protected on the present occasion would, if released, prejudice the supply of similar material to government in the future, as a matter of reasonable expectation. That requires the Tribunal to characterise the nature of the material sought to be protected on the present occasion; to identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; the extent to which guarantees of confidentiality may be necessary. We agree with the dicta of Young CJ in Ryder v Booth [1985] VR 870 as to how a similar question arising under the Victorian FOI Act's in-confidence exemption (whether disclosure would be reasonably likely to impair the ability of an agency to obtain information communicated in confidence) should be approached. His Honour said at 872:

`The question then is, would disclosure of the information sought impair (i.e. damage) the ability of the [agency] to obtain similar information in future. ... It may be noted that it is the ability of the [agency] that must be impaired. The paragraph is not concerned with the question whether the particular doctor whose report is disclosed will give similar information in future but with whether the agency will be able to obtain such information. ...'

29 This approach was endorsed in many subsequent Tribunal and Appeal Panel decisions. The same approach is required, as we see it, in relation to many of the s 14 Table considerations. They squarely focus on considerations relating to the conduct of the business of government. ...

30 ...

...

33 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. ...

1. Although the information the subject of this application arose form differing circumstances to that the subject of the decision in Camilleri, I am satisfied on the basis of the evidence of Ms Murray and Mr Lewis that the information the subject of this application is confidential information falling within clause 1(d) of the table to subsection 14(2).

1. As I have noted, the applicant's complaint was investigated in accordance with the respondent's Guidelines on dealing with internal complaints, which expressly state that the information provided by interviewees is confidential. That is, the condition under which the respondent investigates complaints by a staff member against another staff member is a confidential process where information provided by participants in that process, is provided in confidence.

1. The investigation of internal complaints is clearly one of the many matters falling within the respondent's human resources function.

1. I am also satisfied, on the evidence, that a disclosure of the information in issue could reasonably be expected to prejudice the supply to the respondent of confidential information of this kind.

1. As pointed out by the respondent, the tribunal has accepted that the maintenance of confidentiality of information supplied in the course of an investigation into a complaint serves to encourage the cooperation, openness and participation of staff and if that information were to be disclosed this could reasonably be expected to have an adverse effect in that staff may become reluctant to participate and more inhibited and guarded in what they say for fear of adverse consequences once it is known what they said: see Independent Pricing and Regulatory Tribunal v Sydney Services Pty Limited [2008] NSWADTAP 79; Alexander v University of Sydney [2008] NSWADT 214; McInnes v NSW Department of Education and Communities [2013] NSWADT 219 and AMH v Western New South Wales Local Health District [2013] NSWADT 280.

1. Accordingly, I am satisfied that the respondent has established that this public interest consideration against disclosure has been established.

1. On the basis of my findings, I would also have found that the public interest consideration against disclosure in clause 1(f) would have been established.

Clause 3(a) - personal information

1. As I have explained, this public interest consideration against disclosure concerns 'personal information', which is defined in cl 4 of Schedule 4 of the GIPA Act in the following terms:

4 Personal information

(1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.

(2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics.

(3) Personal information does not include any of the following:

(a) information about an individual who has been dead for more than 30 years,

(b) information about an individual (comprising the individual's name and non-personal contact details) that reveals nothing more than the fact that the person was engaged in the exercise of public functions,

(c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause

1. The word 'reveal' is defined in Schedule 4 of the GIPA Act to mean: 'to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).'

1. The applicant contends that as the investigation related to her complaint, to the extent the disputed information is about her, it is personal information about her. However, as pointed out in the respondent's submissions the information is also personal information about the interviewee who participated in the investigation process and any other person the interviewee spoke about in the course of her interview (e.g. the staff member the applicant complained about or another staff member).

1. I have carefully read the information that is in dispute. As I have noted, the deletion on page 23 is the email address of Mr Lewis. This is clearly his personal information, and the evidence before the tribunal is that this information has not been publicly disclosed.

1. The deleted information on pages 32 to 50 are the responses of the interviewees to questions asked of them by Mr Lewis. The questions have been disclosed to the applicant and as can be seen from the nature of the questions the majority did not invite a response that was specific to the applicant.

1. In any event, for the purpose of determining whether the public interest consideration against disclosure applies, it does not matter to whom the information relates. What needs to be determined is whether the information is personal information about an individual (even that of the applicant) and a disclosure of that information could reasonably be expected to reveal that information.

1. Having regard to the content of the disputed information I am satisfied that the information is personal information of an individual and that a disclosure of the information could reasonably be expected to reveal that information. Hence I am satisfied that this public interest consideration against disclosure has been established.

1. The respondent noted that the applicant had undertaken some consultation with the interviewees on her own initiative. Two interviewees had agreed to their personal information being released and that information was released to the applicant, by consent, at the hearing. However, others had demonstrated anxiety and distress by having been consulted by the applicant and on this basis the respondent contended it was not reasonable or practicable to consult with the interviewees.

1. The obligation to consult under section 54 lies on the respondent and not the applicant. However, that obligation only arises where the respondent proposes to release the individual's personal information. This does not prevent the respondent form consulting in any event. However, for the purpose of this application, on the basis of my findings that there is an overriding public interest against disclosure, I have considered this issue no further.

1. On the basis of the above findings, I would also have found that the public interest consideration against disclosure in clause 3(b) would have been established.

Public interest considerations in favour of disclosure

1. The respondent has identified the following public interest consideration in favour of disclosure:

• The general public interest in favour of disclosure as set out in subsection 12(1);
• The information, in part, is personal information about the applicant;
• The disclosure of the information may help the applicant better understand the decision made by the respondent.

1. In regard to the latter point, the respondent has not identified the decision it is referring to - I assume it is the decision of the respondent in relation to the applicant's complaint.

1. The applicant has raised a number of additional public interest considerations in favour of disclosure. In summary, these are:

• The disclosure will assist her claim for worker's compensation;
• The disclosure will highlight gaps and ineffective implementation of legislative and regulatory frameworks in regard to workplace bullying;
• The disclosure would promote transparency of the complaint handling process and address concerns relating to a lack of procedural fairness;
• The disclosure will reveal misconduct, negligent, improper or unlawful conduct by the respondent.

1. In my view, having regard to the content of the disputed information I am not satisfied that a disclosure of that information would reveal misconduct, negligent, improper or unlawful conduct by the respondent, or highlight gaps and ineffective implementation of legislative and regulatory frameworks in regard to workplace bullying.

1. It is the contention of the respondent that the public interest has already largely been met by the release of the information that has already been provided. This information is sufficient to enable the applicant to understand the investigative process and the process by which the respondent found her complaint not to have been substantiated.

Where does the balance lie?

1. In my view, considerable weight should be given to the public interest considerations against disclosure. As explained above integral to the respondent's Guidelines on complaint handling is confidentiality, which is common to most complaint handling processes. That confidentiality extending to the information provided by the complainant, the person the subject of the complaint and any person who can give information relevant to the complaint.

1. In this case the confidential information that witnesses supplied was also personal information about themselves and others.

1. I agree with the respondent that in considering what weight should be given to the public interest considerations in favour of disclosure, some account must be made about the information that has already been provided to the applicant. As I have indicated, the names of the witnesses and the questions they were asked to address have been disclosed.

1. To the extent the disputed information is about the applicant, I have found that this information is also personal information about the interviewee and persons other than the applicant. Accordingly, while there is a public interest in favour of the disclosure of that information to the applicant, in my view, as the information was supplied in confidence and is not exclusively personal information about the applicant the public interest considerations against disclosure, on balance, should be given greater weight. As I have indicated, the information in dispute is not all personal information about the applicant.

1. I make a similar finding in regard to the applicant's submission that the information will assist her in her worker's compensation claim. That is, the public interest considerations against disclosure of personal information, supplied in confidence, on balance, should be given greater weight than this public interest consideration in favour of disclosure. As pointed out by the respondent, access under the GIPA Act cannot be made conditional: paragraph 15(e).

1. Accordingly, I find that the public interest considerations against disclosure, on balance, out weight the public interest considerations in favour of disclosure.

Conclusions and Orders

1. For the reasons set out above, I am satisfied that the respondent has established that its decision to refuse the applicant access to the disputed information is justified and on this basis the appropriate order is to affirm the decision.

Order: The decision of the respondent is affirmed.

**********

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: 26 September 2014