TW v TX

[2005] NSWADT 262

CITATION:	TW v TX [2005] NSWADT 262
DIVISION:	General Division
PARTIES:	APPLICANT TW RESPONDENT TX
FILE NUMBER:	053079
HEARING DATES:	19/08/05
SUBMISSIONS CLOSED:	09/26/2005
DATE OF DECISION:	11/18/2005
BEFORE:	Hennessy N - Magistrate (Deputy President)
APPLICATION:	access to documents - confidential material - access to documents - operations of agencies - access to documents - personal affairs - Freedom of Information Act - access to documents - confidential material - Freedom of Information Act - access to documents - operations of agencies - Freedom of Information Act - access to documents - personal affairs
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989 Public Sector Employment and Management Act 2002
CASES CITED:	Commissioner of Police v District Court of New South Wales (Perrin’s case) (1993) 31 NSWLR 606 Director General, Department of Education and Training v Mullett & Anor [2002] NSWADTAP 13 revised 11/06/2002 Humane Society International Inc v National Parks and Wildlife Service [2000] NSWADT 133 Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279 Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 Re Maher and Attorney General’s Department (1985) 7 ALD 731 Re Thies and Department of Aviation (1986) 9 ALD 454
REPRESENTATION:	In person G Mahoney, solicitor
ORDERS:	1. The Department’s decision in relation to Documents 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 ,13, 14, 15, 19, 20, 21, 22, 23, 24, 25, 29, 30, 31, 32, 34, 41, 43, 45, 48, 49, 51, 53, 54, 55(b), 61 and 67 is affirmed; 2. The Department’s decision in relation to Document 1 is set aside. In substitution for that decision a decision is made to give the applicant access to that document apart from the passages under the heading “Summary of Key Issues”; 3. The Department’s decision in relation to Documents 16, 17, 18, 26, 27, 28, 33, 38, 40, 42, 55(a), 57, 58, 59, 60, 62, 63, 64, 65, 66 is set aside. In substitution for that decision a decision is made to give the applicant access to those documents.

Introduction

1 TW was employed as an Employee Relations Officer in the Human Resources Division of a State Government Department. TW’s name and that of the Department are not identified in these reasons to protect TW’s confidentiality. Part of her job was to carry out disciplinary inquiries in relation to employees of the Department. During 2003 the relationships between TW and some other employees in the Division deteriorated. Three employees, including two who were senior to her, alleged that she had bullied or harassed them. The two staff members senior to her also raised issues about TW ’s performance. TW complained that the two employees senior to her had bullied her or not treated her properly.

2 Because the Division could not investigate conduct or performance issues involving its own staff, the Director General appointed an investigator to investigate all the complaints as part of one inquiry. The investigator was asked to prepare a report and make recommendations about whether any action, including disciplinary action, should be taken against any of the employees involved. The investigator conducted an investigation which included recorded interviews with at least eight staff members. The Director General accepted the investigator’s recommendations and no disciplinary action was taken against any employee. TW accepted a voluntary redundancy package in mid 2004.

3 On 6 May 2005 TW applied under the Freedom of Information Act 1989 (FOI Act) for:

“letters, reports, memos, file notes and e-mails concerning:
1. inquiry conducted by [the investigator] into allegations involving staff from [ Human Resources Division of the Department] ie complete unedited report

2. my worker’s compensation claim

3. my referral to the Government Medical Officer

4. my proposed return to work; and

5. any other related documentation.”

4 Several documents were released to TW but the Department refused to release 67 documents, or parts of documents, on the ground that they fell within an exemption under the FOI Act. The Department claimed that the exemptions relating to confidential communications and the operations of agencies justified non-disclosure of all 67 documents. In addition, the Department submitted that the exemption for documents containing information about someone else’s personal affairs justified the non-disclosure of several of the documents. TW said she wanted copies of all the documents because she felt that she had been “ambushed” by senior officers. In her view, senior managers had been planning to discipline her for months but did not say anything to her. She considers it unfair that senior officers can make allegations against a more junior staff member without being accountable for those allegations.

5 The most critical documents, from TW ’s point of view, are the full copy of the investigator’s report and the transcripts of interviews with four employees –the Director of the Division, one of TW’s supervisors, a project officer and another fellow employee of TW. Each of those employees objected to the transcript of their interview with the investigator being released. TW told the Tribunal that she did not seek copies of the transcripts of interviews with four other employees despite the fact that those employees did not object to their transcripts being released. Consequently I will not make a decision in relation to documents 35, 36, 37, 39, 44, 46, 47, 50, 52, 56(1) and 56(b) which were covering letters and copies of the transcripts of interview with those employees.

6 The Department described the documents as falling into nine categories:

a) internal departmental submissions,

b) complaints instigating investigation,

c) correspondence from/to Department and from/to the investigator,

d) correspondence from Department to interviewees,

e) transcripts of interviews,

f) correspondence from interviewees to the investigator,

g) communications (including file notes) of Department employees,

h) the investigator’s report, and

i) draft letters from the Department to TW.

7 After giving a brief overview of each of the relevant exemptions I will go on to consider whether each category of documents falls within the exemptions on which the Department relied.

Confidential communications

8 The Department relied on the exemption in Cl 13(b) of Schedule 1 to the FOI Act to refuse access to all 67 documents in dispute. Under Cl 13(b) a document is exempt if:

release would disclose information obtained in confidence; and

could reasonably be expected to prejudice the future supply of such information to the Department; and

would, on balance, be contrary to the public interest.

9 The Department must first establish that the information in each of the 67 documents over which it claims exemption was obtained in confidence. I agree with the Department that there is no need to prove that there was a legal obligation to keep the information confidential. It is enough if the person was not bound to disclose the information but did so on the basis of an express or inferred understanding that the information would be kept confidential. (Re Maher and Attorney General’s Department (1985) 7 ALD 731; Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279 at 338.)

10 The second requirement is that disclosure could reasonably be expected to prejudice the future supply of such information to the Department. Where people are under an obligation to continue to supply confidential information, for example as part of their employment duties, then ordinarily disclosure could not reasonably be expected to prejudice the future supply of such information. (Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279 at [161].) Where disclosure of the information is a personal choice, it is more likely that disclosure of that information would discourage people in similar situations from disclosing such information in the future.

11 Finally, the Department must establish that disclosure would, on balance, be contrary to the public interest. The Department submitted that if the documents were released, its ability to manage or properly assess its employees and effectively perform its functions would be substantially adversely affected. The Department pointed out that it has a duty to provide its employees with a workplace that is free from harassment and intimidation and a statutory duty under the Public Sector Employment and Management Act 2002, to manage staff in respect of poor work performance. It submitted that if the documents were released, staff would be hesitant to complain and would have less trust in management.

12 The evidence in support of the Department’s submission that there was an understanding between those involved that any information disclosed would be kept confidential is as follows:

The letter to the investigator briefing him about the inquiry stated that he was being given a folder of documents which was “strictly confidential and provided solely for the purpose of the investigation.”

Some participants in the investigation were provided with certain documents on a “strictly confidential basis” (see documents 31 & 32).

The investigator was required to comply with the Workplace Relationship Guidelines – August 2000 relating to “workplace concerns” which stated, in part, that:

“Information about a workplace concern will be restricted to people who genuinely need to know of the concern to resolve it. The people involved in any workplace concern or dispute procedure should recognise that maintaining the confidentiality of all those involved is a fundamental element of these procedures and is often important to achieving a resolution.” (page 6)

“Everyone involved in a workplace concern is advised of the need to maintain strict confidentiality throughout the process. Any documentation regarding workplace concerns is confidentially, centrally retained by the Grievance Manager in case the matter is referred outside the Department. No record of the process or any action taken to resolve the workplace concern is attached to a personnel file.” (page 20)

The Guidelines also provided for records of workplace concerns to be held confidentially. (page 9)

13 The Department also relied on correspondence between the Director General and TW after she lodged her FOI application. That correspondence does not assist in determining whether there was an understanding at the time of the investigation that any information disclosed would be kept confidential. Evidence in relation to the prejudice to the future supply of information was said to be in the original determination and the internal review decisions. The material in those documents was submissions, not evidence.

Documents concerning operations of agencies

14 The second exemption on which the Department relied in relation to each of the 67 documents was that disclosure “could reasonably be expected to have a substantial adverse effect on the management or assessment by an Department of the Department’s personnel” and “would, on balance, be contrary to the public interest.” (Sch 1, Cl 16.) I agree with the Department’s point that when considering this exemption the focus must be on the future effect on a Department, not on the effect of disclosure in the present matter. (Director General, Department of Education and Training v Mullett & Anor ([2002] NSWADTAP 13 revised 11/06/2002 at [62] – [64] and [84].) The effect on the Department must be sufficiently serious to cause concern to a properly informed reasonable person. (Re Thies and Department of Aviation (1986) 9 ALD 454.)

15 The Department repeated its submission that it has statutory obligations to provide a workplace free from harassment and bullying and also to manage its staff pursuant to the provisions of the Public Sector Employment and Management Act 2002. According to the Department, the release of communications provided by staff members on a confidential basis would have a substantial adverse effect on its management or assessment of its personnel. The Department went on to submit that the disclosure of confidential material provided by staff in respect of allegations of poor work performance, harassment and bullying would significantly obstruct channels of confidential communication. Finally, the Department repeated its earlier submissions that it would be contrary to the public interest to release the disputed documents.

Documents affecting personal affairs

16 Documents, or parts of documents, are exempt from production under Cl 6 of Schedule 1 to the FOI Act if they contain “matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).” The onus is on the Department is establish:

a) that the information it has withheld concerns the personal affairs of any person; and

b) that disclosure of the information would be unreasonable.

17 The Department relied on this exemption in relation to the documents in categories (b), (e) and (f) listed above at [6]. Those documents were:

a notification under the Occupational Health and Safety Act 2000 (documents 3 & 29 (duplicates));

the transcripts of the interviews with employees (documents 34, 41, 43, 45, 48, 49, 51, 53, 54 & 55(b)); and

correspondence from interviewees to the investigator (documents 65 & 66).

18 The term “personal affairs” is not defined in the FOI Act but in its context it has been held to mean “the composite collection of activities personal to the individual concerned.” (Commissioner of Police v District Court of New South Wales (Perrin’s case) (1993) 31 NSWLR 606 per Kirby P at 625.) In Perrin’s case at p 625 Kirby P (as he then was) decided that the disclosure of the names of police officers and employees involved in the preparation of reports as part of their official duties within the NSW Police, was not information concerning the “personal affairs” of those officers and employees. Rather it related to the affairs of the Department.

19 In Chief Executive Officer, State Rail Authority v Woods [2003] NSWADTAP 25, the Appeal Panel applied the approach taken by Kirby P in Perrin’s case. The Panel decided at [26] that where a document deals with the conduct or performance of an employee as part of the exercise of management responsibilities, the document does not concern the “personal affairs” of the author. The Panel distinguished the situation where an employee complains to management about the conduct of another employee. In that case the complaint would concern the “personal affairs” of the complainant. This means that if an employee is complaining in their personal capacity about the conduct of another employee, the information will generally concern the complainant’s personal affairs. On the other hand, if a supervisor, manager or investigator produces a document in the course of exercising supervisory, management or investigation responsibilities, the information in that document, so far as it relates to them, will not generally concern their personal affairs.

20 The second part of the test is that the disclosure of the information would be unreasonable. An assessment of reasonableness involves “a consideration of all the circumstances including the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance.” (Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 at N 259.) It is also necessary to balance against the public interest in protecting a person’s privacy, the public interest in the disclosure of the information.

21 In support of the reasonableness of not disclosing personal affairs, and also in support of other exemptions, the Department tendered its recent policy document which includes statements about the importance of maintaining confidentiality. TW pointed out that as the investigation was not part of any formal disciplinary process or any internal policy or procedure, the policies about confidentiality do not apply. I agree that the policy document is not directly relevant to the question of whether or not the personal affairs exemption in the FOI Act applies to the documents in dispute. It merely records the Department ’s current in August 2004 in relation to workplace grievances.

22 I will now consider each category of documents in dispute and determine whether the Department has made out any of the exemptions on which it relied.

Internal departmental submissions – documents 1, 2, 57 & 58.

23 Confidentiality exemption. Document 1 is a submission to the Director General from the Assistant Director, dated 2 October 2003. The document outlines the complaints within the Division and makes recommendations as to how those complaints should be addressed. The memorandum summarises what can broadly be described as a “workplace concern” within the meaning of that term in the Guidelines. Document 2 is in the same category and I am satisfied that both documents were obtained in confidence. However senior staff provided both these documents to the Director General in the course of their duties. Disclosure of the documents could not reasonably be expected to prejudice the future supply of such information because it is part of the duties of such managers to provide this kind of information. There was no evidence to suggest that these or other managers would neglect their duties by not providing such information in the future if the information in the documents is disclosed. Consequently, the second element of Cl 13(b) has not been made out and that exemption does not apply to documents 1 and 2.

24 Operations of agency exemption. We accept that the activities described in the disputed documents directly or indirectly involve the management or assessment by the Department of its personnel. The Department’s basis for relying on this exemption was that disclosure would discourage staff from communicating details of workplace bullying or poor performance if they believed their identity may be made known. The Department did not rely on, nor present any evidence in support of, an argument that disclosure would inhibit “frankness and candour” among managers. (Re Brennan and Law Society of the ACT (No 2) (1985) 8 ALD 10.) It relied instead on the effect of disclosure on the willingness of staff to disclose such information in the future.

25 The only information in Document 1 which relates to confidential communications from staff members is the information under the heading “Summary of Key Issues” on page 1 of the document. The remainder of the document provides an assessment and makes recommendations about future action. While there are parts of those sections of the document that mention the content of the confidential communications, they are expressed in general terms without naming those who have made the allegations. As no evidence or submissions apply to these parts of the document, the exemption has not been made out and the Department’s decision in relation that document is set aside. In substitution for that decision a decision is made to give the applicant access to Document 1 apart from the passages under the heading “Summary of Key Issues”.

26 Document 2 contains numerous references to the confidential communications from staff concerning workplace bullying and poor performance. I accept the Department’s submission that disclosure would discourage staff from communicating details of workplace bullying or poor performance if they believed their identity may be made known. That could reasonably be expected to have a substantial adverse effect on the management or assessment by an agency of the agency’s personnel and would, on balance, be contrary to the public interest. For those reasons, the Department’s decision in relation to Document 2 is affirmed.

27 Document 57 comprises three emails all of which relate to TW ’s request for special leave during a period when she was absent from work. The document does not relate directly to the investigation or to a “workplace concern”. There is no evidence which would support an inference that the emails were obtained in confidence. Document 58 is a submission to the Director General dated 14 May 2004. It contains background information and recommendations in relation to TW’s return to work. Again, the submission does not relate directly to the investigation or to a “workplace concern” and I am not satisfied that it was obtained in confidence. In addition, the documents were generated by people whose job it was to make such submissions. In those circumstances, I am not satisfied that the disclosure of the documents could reasonably be expected to prejudice the future supply of such information. There is no evidence or any submissions supporting the Department’s reliance on the operations of agency exemption in relation to either of these documents. The Department’s decision in relation to Documents 57 and 58 is set aside. In substitution for that decision a decision is made to give the applicant access to these documents.

Complaints instigating investigation – documents 3 & 29.

28 Documents 3 and 29 are identical. They are copies of a notification under the Occupational Health and Safety Act 2000 filled in by a proxy for an employee of the Human Resources Division. They identify, in a few words, an incident which took place in the workplace and describe the physical consequences of that incident for the employee. The information in the document falls squarely into the category of a document concerning the personal affairs of the employee. In this case those details are about how the employee reacted to an incident in the workplace. Taking into account all the relevant circumstances, it would be unreasonable for it to be disclosed.

29 As well as falling within the personal affairs exemption the document is exempt under the confidentiality exemption and the operations of agency exemption. It relates to a “workplace concern” and, based on the Guidelines, was obtained in confidence. Disclosure could reasonably be expected to prejudice the future supply of such information to the Department because people in the employee’s position are not obliged to report such incidents and would be far less inclined to do so if they were aware that their disclosures would not be treated confidentially. Disclosure would, on balance, be contrary to the public interest because it would make it more difficult for the Department to comply with its statutory obligations to provide its employees with a workplace that is free from harassment and intimidation. For similar reasons it is also apparent that they fall within the operations of an agency exemption. The Department’s decision in relation to documents 3 & 29 (duplicates) is affirmed.

Correspondence from/to Department and from/to investigator– documents 28, 60 & 67

30 Document 28 is a letter to the investigator dated 15 October 2003. (That document also attaches copies of documents 2 and 42 which are dealt with separately.) The letter confirms the rate of pay to which the investigator is entitled and an estimate as to the time the investigation will take. Document 60 is a letter from the investigator enclosing his account. There is no direct evidence or any basis for drawing an inference that the letter confirming the agreed rate of pay, or the investigator’s letter enclosing his account, were provided in confidence. The documents were provided for an administrative purpose. Their disclosure could not reasonably be expected to prejudice the future supply of such information. Administrators and investigators will not fail to agree on pay rates or refuse to provide their accounts if the information in those documents is disclosed. Neither document is exempt under Cl 13(b). Similarly, the operations of an agency exemption has not been made out as none of the Department’s evidence or submissions related to the kind of information in these documents. The Department’s decision in relation to Documents 28 and 60 is set aside. In substitution for that decision a decision is made to grant the applicant access to those documents.

31 Document 67 is the letter to the investigator from the Director General engaging his services. TW did not object to the deletions from this letter of the names of employees who had been subject to disciplinary inquiries. Those names were mentioned in Document 67 to identify the disciplinary files that TW had been working on. The only other information deleted from document 67 were details of the investigator’s private address. That information falls within the exemption for personal affairs in Cl 6. (Humane Society International Inc v National Parks and Wildlife Service [2000] NSWADT 133.) Consequently, the Tribunal affirms the decision of the Department not to release the deleted portions of document 67.

Correspondence from Department to interviewees – documents 30, 31, 32, 33, 38, 40, 42, 55(a), 56(a), 62, 63 & 64.

32 Documents 30, 31, 32 are letters to interviewees setting out the basis of the investigation and the matters to be investigated which relate to the particular recipient. Each letter lists only the concerns relating to the recipient of the letter and does not refer to concerns involving other parties. That fact and the terms of the Guidelines outlined above, support a finding that the information in the letters was obtained in confidence. Disclosure could reasonably be expected to prejudice the future supply of such information to the Department because people in the employees’ position are not obliged to report such incidents and would be far less inclined to do so if they were aware that their disclosures would not be treated confidentially. Disclosure would, on balance, be contrary to the public interest because it would make it more difficult for the Department to comply with its statutory obligations to provide its employees with a workplace that is free from harassment and intimidation. For similar reasons the documents also fall within the operations of an agency exemption and the Department’s decision in relation to those documents is affirmed.

33 Documents 33, 38, 40, 42, and 55(a) are letters to interviewees enclosing copies of the transcript of their interview. The sending of the letters was an administrative task and there is nothing to support a finding that the letters themselves were provided in confidence. Similarly, as the letters do not disclose any confidential communication by staff members about “workplace concerns” the Department has not made out the operations of agencies exemption. The Department’s decision in relation to these documents is set aside.

34 Documents 62, 63 & 64 are letters from the Director General to three employees involved in the investigation advising them of the outcome of the investigation. Since the report itself was obtained in confidence, it is likely that any correspondence revealing the content of the report would also have been obtained in confidence. However all these letters were written by the Director General as part of his employment duties. Disclosure of the documents could not reasonably be expected to prejudice the future supply of such information. There was no evidence to suggest that the Director General would neglect his duties by not providing such information in the future if the information in the letters is disclosed. Consequently, the second element of Cl 13(b) has not been made out.

35 These documents do not relate to communications provided by staff members on a confidential basis. That was the only basis on which the Department relied on the operations of an agency exemption. Consequently, I am not satisfied that the exemption applies to these documents.

Transcripts of interviews – 34, 41, 43, 45, 48, 49, 51, 53, 54 and 55(b)

36 TW sought access to the transcripts of the investigator’s interviews with four employees. As I have said, TW did not press her request for the transcripts of interviews with four other employees and I have made no decision in relation to those documents. (Docs 35, 36, 37, 39, 44, 46, 47, 50, 52 and 56(b).) At these interviews each of the interviewees was given an opportunity to elaborate on and respond to allegations or complaints that they had made about TW or TW had made about them. At various times the Director of the Division and TW’s supervisor were in a management and/or supervisory relationship with TW. Their complaints about TW related both to her performance and her behaviour. Despite the fact that they were overseeing TW ’s work, the information they gave to the investigator was given in their personal capacity, not in the course of exercising management or investigatory responsibilities. They were providing their version of events to an investigator as part of a fact-finding process. It was up to the investigator, not them, to recommend whether any disciplinary action should be taken against TW. In those circumstances I am satisfied that the information they gave to the investigator about their observations of and interactions with TW concerned their personal affairs.

37 Two fellow employees of TW also gave their version of events involving TW to the investigator. They were not in any kind of supervisory or investigatory relationship with TW so their disclosures were not made in the course of their official duties. I am satisfied that the information about their observations of and interactions with TW concern their personal affairs.

38 Several factors suggest that disclosure of these transcripts would be unreasonable. The information was obtained in the course of a fact-finding investigation involving claim and counter claim against TW. All four employees object to the transcripts of their interviews being provided and some felt “hounded”, “harassed” and “intimidated” by TW. The information is not relevant to TW’s employment with the Department, as she is no longer working there. TW conceded that the investigator put the allegations to her during her interview with him but she wants to know the detail of what her fellow employees and managers said about her. TW’s interest in knowing what other employees said about her does not tip the balance in her favour. Taking into account all the relevant circumstances I am satisfied that disclosure of the transcripts of interview with all four employees would be unreasonable.

39 These documents also fall squarely within the confidentiality exemption. The information was provided in confidence. Disclosure could reasonably be expected to prejudice the future supply of such information to the Department because those employees were not disclosing the information in any management or supervisory capacity. They were merely giving their side of the story to the investigator. People in their situation would be much less likely to co-operate with an investigation if they were aware that the information they disclosed may not be kept secret. Each employee has indicated that she does not want the information to be disclosed and disclosure would, on balance, be contrary to the public interest. Given that at least two exemptions apply to these documents, it is not necessary to consider whether the operations of an agency exemption also applies.

Correspondence from interviewees to the investigator - documents 65 & 66.

40 Document 65 is a letter to the investigator from a second supervisor of TW dated 23 October 2003. It was written following his interview earlier that day. The letter itself adds two observations which the second supervisor wanted to put on record in relation to TW’s performance. The second supervisor has indicated that he does not object to TW being given a copy of the transcript of his interview with the investigator. While TW made it clear that she was not seeking access to that transcript, she did not make the same concession in relation to correspondence between the second supervisor and the investigator. The second supervisor’s observations were made in his capacity as TW’s supervisor, not in any personal capacity or as a personal reaction to any behaviour of TW towards him. In those circumstances I am not satisfied that they relate to his personal affairs. It is not necessary to consider whether disclosure of the information would be unreasonable because both requirements need to be fulfilled for the personal affairs exemption to apply.

41 The first attachment to the letter is an email exchange between the second supervisor, the Director of the Division and TW about a file that TW was handling. Apart from the name on the file, none of the information in the email exchange concerns anyone’s personal affairs and is therefore not covered by that exemption. The second attachment to the letter is notes of a meeting the second supervisor had with the Director and TW’s supervisor on 1 September 2003. The second supervisor indicated to the investigator in the letter that he had discussed all but one of the issues recorded in the notes with TW. The issue that was not discussed had already been resolved. Apart from the item which was not discussed, the information in these notes relates to TW’s performance and does not concern the second supervisor’s personal affairs. It is not unreasonable to disclose to TW the item that was not discussed with her, because she is aware of it and it was resolved. Nothing in the single page of notes attached to the second supervisor’s letter is exempt under the personal affairs exemption.

42 In relation to the confidentiality exemption, I am satisfied that the second supervisor’s letter to the investigator and the attachments were obtained in confidence because the investigator had been told to treat all the documents provided to him at the beginning of the inquiry in the strictest confidence. The strong inference from that instruction is that the investigator should also treat documents provided to him in the course of the investigation in the strictest confidence. However, disclosure of this information could not reasonably be expected to prejudice the future supply of such information to the Department. The second supervisor’s observations were made in his capacity as TW’s supervisor, not in any personal capacity or as a personal reaction to any behaviour of TW towards him. People in his position can be expected to continue to provide such information in the course of their duties. Consequently, the second element of Cl 13(b) has not been made out and that exemption does not apply to document 65.

43 The final document in this category is Document 66. That document is a copy of an email dated 14 November 2003 from another investigator who had conducted a different inquiry, to the investigator. The email merely forwards to the investigator a copy of an email from TW which he had requested. The document does not contain information concerning anyone’s personal affairs.

44 Document 66 was obtained in confidence for the same reasons as document 65 was obtained in confidence. However disclosure of this information could not reasonably be expected to prejudice the future supply of such information to the Department. The second investigator forwarded the information as part of her duties. People in her position can be expected to continue to provide such information regardless of whether or not it is disclosed. Consequently, the second element of Cl 13(b) has not been made out and that exemption does not apply to document 66.

45 Neither document 65 nor document 66 relate to confidential communications by staff members about workplace concerns. As that was the basis for the Department’s reliance on the operations of an agency exemption, I am not satisfied that the exemption applies to these documents.

Communications of Department employees – documents 4 to 27.

46 Twenty-four documents fall into this category. They are emails and file notes which include reports of interactions with TW, responses to those interactions and details of meetings involving TW. Having read those documents I am satisfied that while all the documents were obtained in confidence, only the disclosure of documents 4, 5, 6, 7, 8, 9, 10, 11, 12 ,13, 14, 15, 19, 20, 21, 22, 23, 24 and 25 could reasonably be expected to prejudice the future supply of such information to the Department. In addition, it would be contrary to the public interest to disclose those documents because it would make it more difficult for the Department to comply with its statutory obligations to provide its employees with a workplace that is free from harassment and intimidation.

47 The remaining documents, documents 16, 17, 18, 26 and 27, were written as part of the employee’s official duties and there is no basis for inferring that other employees in a similar position would cease to carry out their duties if such documents are disclosed. Consequently, the second element of Cl 13(b) has not been made out and that exemption does not apply to these documents. However the names of the people who were subject to disciplinary inquiries should be deleted from documents 16, 17, 18 and 26.

48 Similarly, documents 16, 17, 18, 26 and 27 do not do not contain confidential communications by staff members about workplace concerns. They were all written as part of the employee’s official duties and the Department’s submissions do not establish that they fall within the operations of agencies exemption.

The investigator’s report - document 61.

49 Document 61 is the investigator’s report. TW was given access to most of this document. The Department deleted references to the names of employees who had been the subject of disciplinary proceedings. TW did not object to those names being deleted. The further deleted portions of this report comprise information provided to the investigator by two fellow employees of TW, extracts from the investigator’s interviews with TW’s supervisor and one of her fellow employees and some of the investigator’s commentary on the information provided by TW’s supervisor. All this information was obtained in confidence from each of those interviewees. The terms of the Guidelines outlined above, support that finding. Disclosure could reasonably be expected to prejudice the future supply of such information to the Department because those employees were not disclosing the information in any management or investigatory capacity. They were merely giving their side of the story to the investigator. People in their situation would be much less likely to co-operate with an investigation if they were aware that their disclosures would not be treated confidentially, especially when they have specifically requested confidentiality. Disclosure would, on balance, be contrary to the public interest because it would make it more difficult for the Department to comply with its statutory obligations to provide its employees with a workplace that is free from harassment and intimidation. The Department’s decision in relation to Document 61 is affirmed.

Draft letters from the Department to TW - document 59.

50 Document 59 is undated, unsigned, draft of a letter addressed to TW from the Director General. The letter deals with the question of TW’s return to work following the investigator’s report. Release of the letter would disclose certain information obtained in confidence including parts of the investigator’s report and information provided by the Government Medical Officer (GMO). Disclosure could not reasonably be expected to prejudice the future supply of such information to the Department because both the investigator and the GMO provided the information to the Department in their professional capacity. Consequently, the second element of Cl 13(b) has not been made out and that exemption does not apply to document 59.

51 The Department did not directly address the question of how the operations of an agency exemption applies to this document. On the basis of the general submission that was provided, I am not satisfied that the Department has made out that exemption in relation to this document. The Department’s decision in relation to document 59 is set aside. In substitution for that decision a decision is made to give the applicant access to that document.

Orders

1. The Department’s decision in relation to Documents 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 ,13, 14, 15, 19, 20, 21, 22, 23, 24, 25, 29, 30, 31, 32, 34, 41, 43, 45, 48, 49, 51, 53, 54, 55(b), 61 and 67 is affirmed.

2. The Department’s decision in relation to Document 1 is set aside. In substitution for that decision a decision is made to give the applicant access to that document apart from the passages under the heading “Summary of Key Issues”.

3. The Department’s decision in relation to Documents 16, 17, 18, 26, 27, 28, 33, 38, 40, 42, 55(a), 57, 58, 59, 60, 62, 63, 64, 65, 66 is set aside. In substitution for that decision a decision is made to give the applicant access to those documents.