Williams v Department Industry and Investment
[2012] NSWADT 192
•19 September 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Williams v Department Industry and Investment [2012] NSWADT 192 Hearing dates: On the papers Decision date: 19 September 2012 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: The decision under review is affirmed.
Catchwords: Government Information (Public Access) - whether public interest considerations against disclosure outweigh the public interest considerations favouring disclosure whether disclosure could reasonably be expected to prejudice the supply to an agency of confidential information Legislation Cited: Administrative Decisions Tribunal Act 1997
Government Information (Public Access) Act 2009
Freedom of Information Act 1989Cases Cited: Bennett v Vice Chancellor, University of New England [2000] NSWADT 8
Black v Hunter New England Area Health Service [2008] NSWADT 301
Black v Hunter New England Area Health Service [2008] NSWADT 301
Commissioner of Police, NSW Police Force v Camilleri [2012] NSWADTAP 19
Department of Education and Training v GJ (GD) [2009] NSWADTAP 33
Dezfouli v Justice Health [2006] NSWADT 274
Director General, Department of Education and Training v Mullett & anor (GD) [2002] NSWADTAP 13
Fahey v NSW Office of Liquor, Gaming and Racing [2012] NSWADT 181
Flack v Commissioner of Police, NSW Police [2011] NSWADT 286
Hurst v Wagga Wagga City Council [2011] NSWADT 307
Macquarie University v Howell (No 2) [2009] NSWADTAP 19
Re: Maher and the Attorney General's Department (No 2) (1986) 4 AAR 266
Richards v Commissioner, Department of Community Services [2011] NSWADT 98
Robinson v Director General, Department of Health [2002] NSWADT 222
Sobh v Victoria Police [1994] 1 VR 41
The Commissioner of The Qld Police Service v Cornack, Magistrate & Anor [2003] QCA 383
TW v TX [2005] NSWADT 262Category: Principal judgment Parties: Anthony John Williams (Applicant)
Department Industry and Investment (Respondent)Representation: J Callaghan and D Schulz (Respondent)
File Number(s): 113258
REASONS FOR DECISION
GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): The Applicant lodged an access application with the Respondent under the Government Information (Public Access) Act 2009 ("the GIPA Act") seeking access to information held by the Respondent. Mr Ron Taylor, the Respondent's Manager Corporate Projects, determined the access application.
The determination summarised the Applicant's access application as requesting:
(1) All correspondence from the Ministers and the department about [the Applicant] in relation to the Edge Theatre in 2010 and the present complaint to the Government in 2011.
(2) All letters of complaint from any member of the community in relation to [the Applicant].
(3) All letters of complaint sent to the Director General from Bernadette Self and Julie Scott in reference to [the Applicant].
(4) The responses to the DG and the Minister in relation to the Edge theatre (Bernadette Self and Julie Scotts' reports)
(5) All correspondence from the Anti-Discrimination Board to the DG and the DG response in reference to [the Applicant's] complaint.
In relation to the charge of bullying and harassment:
(6) The final report from Rhonda Stein (IAB)
(7) The department's brief and instruction to Rhonda Stein in relation to carrying out the investigation.
(8) The full statements of Felicity Johnson, Barbara O'Neil and Julie Scott
(9) All correspondence from the office to Simon Kempson on this matter.
(10) All correspondence from Bernadette Selfe and Julie Scott to Michael Cullen regarding this matter.
(11) All correspondence to Michael Cullen and the DG from Bernadette Selfe, Julie Scott and the lAB regarding this matter.
(12) All transcripts of recorded interviews in relation to FlashPoint Fire Services and all correspondence to Michael Cullen, the DG and the Minister in relation to [the Applicant].
(13) A full copy of [the Applicant's] personal file.
Mr Taylor determined to grant access to a number of documents but declined to grant access to several documents that related to an investigation carried out by Ms Rhonda Stein from the Internal Audit Bureau. The investigation concerned a disciplinary matter relating to the Applicant and resulted in a March 2011 report by Ms Stein titled Investigation Report into Allegations of Misconduct Regarding Tony Williams ("the Stein Report").
The Respondent decided to provide access to the majority of the information sought but, under section 58(1)(d) of the GIPA Act, to refuse to provide the Applicant with access to other of the information sought. In his determination Mr Taylor relevantly stated:
"I have applied the public interest test and after considering their nature and purpose I am of the opinion there are overriding public interests against disclosure of the transcripts of interview conducted by Ms Stein with Ms Scott, Ms Johnson and Ms O'Neill.
In coming to this conclusion I took into account the objections raised by those staff, but was predominately concerned with the implications the action of releasing these transcripts would have upon the capacity of the Department to effectively investigate and manage such issues.
When investigating allegations against staff members it is often necessary to gather facts, information and opinions from colleagues by way of interview. There is a reliance by the Department for staff to be candid and forthcoming with all information relevant to the area of inquiry in these interviews. The rigour and value of this process would be severely diminished if staff were concerned that all information provided would not have any degree of confidentiality attached. As a consequence there is a strong public interest against release of such transcripts.
I note that while the actual transcripts have been withheld, the content which has been relied upon by the investigator to draw her conclusions and make out the position taken in the written report has not been withheld. This approach was taken on the basis that a range of material may be canvassed at interview, but it is only those parts which have been relied upon by the investigator in her report that have ultimately been considered relevant and been given weight in making her final determination. In these circumstances it is reasonable that the subject of the investigation should be aware of what matters were considered relevant and how they were assessed."
The Applicant has applied to the Tribunal for review of the determination. He seeks access to attachments 14, 15 and 16 to the Stein Report. These attachments comprise transcripts of interviews with Barbara O'Neill, Felicity Johnston and Julie Scott ("the Transcripts").
The Applicant alleges that he was discriminated against and that charges were fabricated to damage his reputation and that he was denied procedural fairness during the investigation. He believes that the evidence provided to the Internal Audit Branch is baseless and incorrect. He seeks the relevant documents so that he can formulate a defence to the allegation made against him.
The relevant GIPA Act provisions
Section 3 of the GIPA Act provides:
3 Object of Act
(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:
(a) authorising and encouraging the proactive public release of government information by agencies, and
(b) giving members of the public an enforceable right to access government information, and
(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
(2) It is the intention of Parliament:
(a) that this Act be interpreted and applied so as to further the object of this Act, and
(b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
Section 5 of the GIPA Act provides:
5 Presumption in favour of disclosure of government information
There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
Section 9(1) of the GIPA Act provides:
9 Access applications
(1) A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.
Section 12 of the GIPA Act provides:
12 Public interest considerations in favour of disclosure
(1) There is a general public interest in favour of the disclosure of government information.
(2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.
Note. The following are examples of public interest considerations in favour of disclosure of information:
(a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.
(b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.
(c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.
(d) The information is personal information of the person to whom it is to be disclosed.
(e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.
(3) The Information Commissioner can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies.
Section 13 of the GIPA Act 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.
Section 14 of the GIPA Act provides:
14 Public interest considerations against disclosure
(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.
(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) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section.
(4) The Information Commissioner must consult with the Privacy Commissioner before issuing any guideline about a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to this section).
The Table to section 14 of the GIPA Act relevantly provides:
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):
...
(d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that 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,
...
2 Law enforcement and security
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) reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant,
...
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:
...
(f) expose a person to a risk of harm or of serious harassment or serious intimidation,
...
Section 15 of the GIPA Act provides:
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.
Section 105 of the GIPA Act provides:
105 Onus on agency to justify decisions
(1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section.
(2) If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review. ...
Consideration of the legislative regime
A person who makes an application for access to government information has a legally enforceable right to access the information requested, unless there is an "overriding public interest against disclosure" of the information: section 9(1) of the GIPA Act. The public interest balancing test for determining whether there is an overriding public interest against disclosure is set out in section 13 of the GIPA Act. Section 12 of the GIPA Act provides that this balance is always weighted in favour of disclosure. The GIPA Act does not limit the types of matters that can be called in aid of disclosure. Section 12 provides a number of non-exhaustive examples of the types of matters that can be taken into account. Section 5 of the GIPA Act establishes a presumption in favour of disclosure of government information and sections 97 and 105 place the onus for rebutting this presumption or "justifying the decision" not to release information, on the respondent agency.
The presumption in favour of disclosure can only be rebutted by proving that there is a "conclusive presumption of an overriding public interest against disclosure" or "overriding public interest consideration against disclosure": section 14 of the GIPA Act.
There is an overriding public interest against disclosure 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: section 13 of the GIPA Act.
The public interest considerations against disclosure are limited to those set out in the table to section 14 of the GIPA Act.
The Appeal Panel in Commissioner of Police, NSW Police Force v Camilleri [2012] NSWADTAP 19 considered that the GIPA Act requires a structured approach to the decision-making task. The Appeal Panel observed that unless a conclusive presumption applies, the GIPA Act envisages a two-step approach to the question of whether information has been properly refused. The case for refusal must rest on the considerations in the Table to section 14, with the Tribunal's task to then weigh that case against the factors favouring disclosure.
The Appeal Panel considered that the section 14 considerations need to be examined at a broad operational level and that those considerations "are concerned with systemic features of the operation of government". It would not be usual to introduce considerations connected with the particulars of the instant situation at this stage of the process. By contrast, it would be proper to have regard to specific aspects of the instant case at the section 13 stage.
The Tribunal decisions in Flack v Commissioner of Police, NSW Police [2011] NSWADT 286 ("Flack) and Hurst v Wagga Wagga City Council [2011] NSWADT 307 ("Hurst") adopted the approach that the test in section 13 of the GIPA Act requires decision makers to:
(i) identify relevant public interest considerations in favour of disclosure,
(ii) identify relevant public interest considerations against disclosure,
(iii) attribute weight to each consideration for and against disclosure, and
(iv) determine whether the balance of the public interest lies in favour of or against disclosure of the government information.
The public interest test must be applied in accordance with the principles set out in section 15 of the GIPA Act.
Public interest considerations in favour of disclosure
The Respondent has not identified any considerations in favour of disclosure.
As noted above, section 12 of the GIPA Act reiterates the general presumption in favour of disclosure of government information, and lists examples of public interest considerations that favour disclosure. The list is not exhaustive.
The Applicant relies on his own evidence. He asserted that he was discriminated against during the investigation and that charges were fabricated to damage his reputation. He believes that he has a prima facie case for victimization based on the fact that there was no fairness show to him from person's excising administrative power, and because management did not ensure that both sides of the complaint were heard before instigating an investigation. That is, the investigation commenced prior to his knowledge of any charges. He submits that a decision maker must give a person whose interests may be adversely affected by their decision the opportunity to be heard.
He contends that he was denied natural justice and procedural fairness in that he has not been afforded his rights or the opportunity to be heard by an impartial decision maker. He has been denied the right of appeal in order to clear his name and record of these false charges.
He believes that the charges against him have no basis of fact. He contends that there is clear evidence that he was denied access to the content of the complaints made against him and he was not provided the details of the charges made against him. He contends that there is also evidence that the investigating officer was advised that he was guilty prior to the completion of the investigation. He was not provided any opportunity to see the evidence against him nor read the interviews on which much of the conclusion was based. He contends that disclosure of the information sought is necessary in order to allow him to clear his name and put an end to the continuous bullying and harassment and personal attacks on his reputation.
As Judicial Member Isenberg recognised in Fahey v NSW Office of Liquor, Gaming and Racing [2012] NSWADT 181:
[T]here is a public interest in disclosing the identity of persons who make false complaints. Careful distinction should be made between allegations which, while based on genuinely-held beliefs are found to be erroneous and allegations which are malicious or which are made with disregard to basic facts.
Public interest considerations against disclosure
The Respondent has provided a copy of all the documents that are in issue. It also provided a copy of all the documents that were released to the Applicant. It relies on the evidence of its the Director of Industrial Relations, Mr Simon Kempson.
In his affidavit Mr Kempson stated that he is responsible for undertaking investigations and managing disciplinary processes across the Respondent. He has reviewed the material that is currently before the Tribunal and he supports the position taken by the Respondent not to release the Transcripts.
He stated that he is satisfied that the Respondent has met its legal and policy obligations with respect to the disciplinary action that was taken against the Applicant. He stated that the Applicant was provided with the relevant information that was relied upon by the Respondent in the investigation conducted by Ms Stein and that the Applicant was also given the opportunity to make representations on the charges that were laid against him. He stated that the Respondent's Director General made the decision to reprimand the Applicant based on the investigators report and the representations that the Applicant had made.
Mr Kempson stated:
I do not believe it is in the public interest for an employee to be provided with other employee's interview transcripts especially where those employees do not consent to do so. I am of the view that if this was allowed the Department would be severely hampered in its efforts to fully investigate issues that arise. Mr Williams was provided with the necessary and relevant information during the disciplinary process to satisfy the obligations placed on the Department in meeting the principles of natural justice. At the same time the Department was giving the appropriate protection to staff to be able to speak candidly about issues that were impacting upon them.
In my view there is nothing to be gained in the public interest by releasing these transcripts. The decision made to reprimand Mr Williams is not appealable under the Industrial Relations Act 1996 and the Department considers the matter to be closed. The employees who conducted the interviews are not willing to provide their consent to the release of the transcripts. They undertook the interview on the basis that the Department would maintain confidentiality of the process to the extent that only specific information directly relevant to the case would be put to Mr Williams. The investigator provided this information to Mr Williams and as such nothing else in these transcripts was relied upon to reach the decision that was ultimately made in this case.
Mr Taylor provided an affidavit in which he related conversations with Ms. O'Neill , Ms. Johnson and Ms. Scott in which they each confirmed that she continues to object to the Respondent disclosing the transcript of the interview conducted by Ms. Rhonda Stien.
Mr Taylor also provided a copy of the Respondent's Bullying and Harassment Prevention Policy. That policy was implemented on 21 September 2009, was effective during January of 2011 and remains current. Mr Taylor also provided copies of the documents disclosed to the Applicant pursuant to his GIPA request.
The Respondent contends that the following clauses in the table of section 14 of the GIPA Act are applicable:
a. Clause 1(d) - prejudicing the supply of confidential information to an agency;
b. Clause 1(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;
c. Clause 2(a) - prejudicing the future supply of information from an informant; and
d. Clause 3(f) - exposing a person to a risk of harm, serious harassment or intimidation.
The Respondent repeats the reason for its determination that the Transcripts would not be released. The reasons were:
a. The public interest test was applied and after considering the nature and purpose of the Transcripts, Mr Taylor was of the opinion that there are overriding public interests against disclosure.
b. The staff who gave the interviews and whose views were transcribed, all objected to the release of the Transcripts in full.
c. If the Respondent is required to release the Transcripts in full, then it will no longer have the same capacity to effectively investigate and manage such issues.
d. There is a reliance by the Respondent for staff to be candid and forthcoming with all information relevant to the area of inquiry in these interviews.
e. The rigour and value of any inquiry would be severely diminished if staff were concerned that all information provided would not have any degree of confidentially attached.
Prejudice supply of confidential information - Clause 1(d)
The GIPA Act states that there is a public interest consideration against disclosure if disclosure could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's function".
The Respondent says that a "likely effect" of disclosing the Transcripts would be to prejudice the supply of confidential information from future victims of bullying and harassment. The Respondent submits that the supply of such confidential information is essential to the implementation of an effective anti-bullying and harassment policy in the workplace and that were the Transcripts to be disclosed in this case, future victims would be less willing to come forward for fear that their own complaints would not be treated in confidence.
The primary function of the Respondent is to deliver trade and investment services to the people of NSW but it says that it would not be able to fulfil that function in an effective way if its employees did not have the confidence to come forward and complain about bullying or harassment for fear that their confidential conversations with an investigator were to be reported back to the person who is the subject of the complaint.
The Respondent submits that if the Transcripts were disclosed, the effective exercise of its functions would be seriously diminished because potential victims and complainants will be less likely to come forward.
Ms Case, for the Information Commissioner, submitted that the word "prejudice" has been found in cases decided under FOI legislation to have its ordinary meaning: "to cause detriment or disadvantage": Re: Maher and the Attorney General's Department (No 2) (1986) 4 AAR 266 or to "impede or derogate from": Sobh v Victoria Police (1994) 1 VR 41.
The "future tense" of the likely effect is one aspect of the abstract nature of the enquiry under this consideration: Black v Hunter New England Area Health Service [2008] NSWADT 301 [26] per Handley DP. Ms Case submitted that although the GIPA Act does not use the phrase "future supply", the future nature of the "prejudice" is implicit.
The other abstract element is the notion of "supply". Under the repealed Freedom of Information Act 1989 ("the FOI Act"), this was held to mean the supply of similar information by unknown persons to the agency in the future: Director General, Department of Education and Training v Mullett & anor (GD) [2002] NSWADTAP 13 ("Mullett"). Ms Case submitted that this characterization of the "abstract" nature of the question is the same under clause 1(d) of the table to section 14(2) of the GIPA Act. In Mullett, the approach to determining this question was to:
(i) Characterise the material sought;
(ii) Identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication;
(iii) consider the extent to which guarantees of confidentiality may be necessary.
However, Ms Case submitted that this approach must be distinguished from the approach required under the GIPA Act. She says that under the GIPA Act, the determining question is whether, as a question of fact, the information is confidential.
Ms Case contends that confidentiality cannot be imputed to a "class" of information. She says that this much is clear from decisions made under the FOI Act, where different conclusions were reached in relation to information falling into the same class. She says that the questions set out in Mullett may be relevant to determining whether information was provided on a confidential basis but cannot, of themselves, form a basis for the imputation of confidentiality without reference to the individual circumstances of an application. In particular, she submitted that confidentiality cannot be inferred from the purpose or intention of the inquirer alone.
The Respondent disputes that position. It submits that information supplied by a victim of workplace bullying or harassment about that bullying and harassment to their employer's investigator, is a class of information that is prima facie confidential information regardless of variations in factual circumstances.
However, the Respondent also submits that if the Tribunal is required to inquire as "a question of fact" whether the information was "supplied under an express or implied pledge of confidentiality", or whether confidentiality can be "inferred from the nature of the relationship between the informer and the person informed", "in the light of all the circumstances of the particular case" then the Tribunal can reasonably infer from the factual circumstances of this case and the particulars of the relationship between the informer and the person informed, that the information was supplied in confidence.
The Respondent submits that given the nature of the relationship between the investigator and the complainants, it is reasonable to infer that the complainants would have harboured fears in regard to possible consequences if the contents of their transcripts were not treated as confidential and they were disclosed to the Applicant.
The Respondent submits that in the light of all the circumstances, the Tribunal ought to infer that the information supplied by Ms. O'Neill and Ms. Johnson was supplied in confidence.
The Respondent provided confidential submissions that supported its submission that the information was being provided on the understanding that it was confidential. It says that there is sufficient evidence for the Tribunal to infer that there was an implied pledge of confidentiality made by the Investigator to Ms. O'Neill, Ms. Johnson, and Ms. Scott and that disclosure of the Transcripts will discourage future victims of workplace bullying or harassment from coming forward thereby prejudicing the supply of confidential information to the Respondent that facilitates the effective exercise of the Respondent's functions.
Ms Case submitted that the following principles have developed in the application of confidentiality provisions under right to information legislation:
(i) The confidential quality of communications is a question of fact;
(ii) To establish its confidential quality, information must have been supplied under an express or implied pledge of confidentiality;
(iii) The confidential quality of the information may be inferred from the nature of the relationship between the informer and person informed;
(iv) The confidential quality of the information must be determined in the light of all of the circumstances of the particular case.
Under the FOI Act, the following circumstances were recognised as having general significance when inferring a relationship of confidentiality:
(i) information was provided voluntarily: TW v TX [2005] NSWADT 262 at [10])("TW v TX'); Department of Education and Training v GJ (GD) [2009] NSWADTAP 33 [70] & [80];
(ii) policy guidelines support the claim that information be treated confidentially (TW v TX at [49]).
The Tribunal has found that if information is supplied pursuant to a duty of confidentiality, there is likely to be prejudice to the operations of the agency from disclosure: Bennett v Vice Chancellor, University of New England [2000] NSWADT 8 at [37].
As noted above, the Respondent provided a copy of its Policy on Bullying and Harassment. That policy, which was current at the time of the Interviews, states:
"reports and complaints of harassment and bullying will be treated seriously by [the Respondent] and will be investigated promptly in a sensitive, thorough and confidential manner ensuring that complainants and witnesses are not victimised"
The Respondent submits that the Tribunal ought to find on the basis of the above evidence that the Respondent had a duty of confidentiality and that there is likely to be a prejudice to the operations of the agency from disclosure.
Has the information contained the Transcripts in been disclosed?
Ms Case submitted that only information that has not been disclosed is capable of being the subject of this consideration against disclosure. She notes that clause 1 of Schedule 4 of the GIPA Act provides that:
reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).
The Respondent has supplied the Applicant with the following documents ("the Disclosed Documents"):
a. Executive Summary of the Stein Report
b. Detailed Report of Findings of the Stein Report
c. Attachments to the Stein Report but excluding the Transcripts of interview with Ms. O'Neill, Ms. Johnson and Ms. Scott.
d. the Applicant's own disciplinary file.
In Richards v Commissioner, Department of Community Services [2011] NSWADT 98 [40] ("Richards"), the Tribunal decided that the issue to be considered regarding whether release of information is likely to 'reveal' information, is whether the 'information' had been publicly disclosed. If the information contained in a document has been disclosed, it cannot be "revealed" by giving access under the GIPA Act. In Richards, the Tribunal said that:
As the information was disclosed in open court, certain consequences follow. Because the information has already been publicly revealed, release under the GIPA Act could not be reasonably expected to reveal the complainant's personal information: see definition of reveal (cl1, Sched 4). As a result, the public interest against disclosure in 3(a) of the Table to s 14 cannot be relied on as a ground for refusing disclosure.
The Respondent undertook a comparison of the Transcripts and the Disclosed Documents to determine what information had already been disclosed to the Applicant and provided the Tribunal with the outcome of that comparison. No part of the verbatim record comprised of the three transcripts is reproduced in the Disclosed Documents. The content of some of the interviews is referred to as "Information Provided by" Barbara O'Neill, Felicity Johnson or Julie Scott" in the Stein Report.
The Respondent submits that in this case a distinction ought to be drawn between the factual contents or general meanings in the Transcripts from the particular words actually used verbatim in the Transcripts. The former kind of information was disclosed but none of the latter information was disclosed. The Respondent submits that the latter information, the verbatim transcript, was not disclosed and is therefore capable of being the subject of the consideration against disclosure set out in Clause (1)(d).
Clause 1(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
Both the Respondent and Ms Case repeated their submissions with respect to information provided to an agency in confidence as referred to in regard to Clause 1(d).
Clause 2(a) - prejudice the future supply of information from an informant
Ms case noted that the meaning of "informant" is not defined in the GIPA Act. No reference to this clause is made in the relevant extrinsic materials (the second reading speech of the GIPA Act and the Government Information (Information Commissioner) Act 2009 and the Ombudsman's report). However, she submitted that while the word used in clause 2(a) is "informant" the meaning intended to be conveyed was the meaning usually associated with the legal meaning of the word "informer".
In The Commissioner of The Qld Police Service v Cornack, Magistrate & Anor [2003] QCA 383, Justice Williams of the Queensland Court of Appeal, when considering the meaning of "informer" for the purposes of the Police Powers and Responsibilities Act 2000 (Qld), observed at paragraph [3] that " Neither statute contains a definition of an "informer", though disclosing particulars likely to lead to the identification of an informer constitutes a criminal offence. However, the "informer" has been known to the Common Law for centuries" and further noted at paragraph [5] that:
It is not everyone who in some way provides a police officer with information which aids in the investigation of a crime who is an "informer" for the purposes of statutory provisions such as those referred to above.
Ms Case submitted that the common law meaning of informer should be applied to the word "informant" in clause 2(a). This would mean that clause 2(a) protects the identity of people who are informers in order to protect them from reprisals and to ensure that they continue to provide evidence to police. Clause 2(a) is the only provision in the table to section 14(2) of the GIPA Act that is capable of this interpretation and therefore of achieving this result. She says that it is clear that on this approach, the information provided by informers is not, necessarily, confidential. If the information were itself confidential, it would fall within the ambit of clause 1(d). This raises the question of the scope and application of clause 1(d) and, in applications such as the present, the overlap between 1(d) and 2(a).
The Respondent makes no submissions regarding whether an informant under the GIPA Act is restricted to police informants but notes that the word "informants" has a broader meaning and usage in ordinary English and is often used to refer not only in connection to secret police informants but to any person who gives information to another. The Respondent does however submit that if the Tribunal finds that the word "informant" does have a wider meaning under GIPA Act and that the Interviewees are informants for the purposes of Clause 2(a) then disclosure of the Transcripts would prejudice the future supply of information from future complainants regarding bullying and harassment and relies on its submissions in respect of clause 1(d) above.
Clause 3(f) - exposing a person to a risk of harm, serious harassment or intimidation.
The GIPA Act provides that there is a consideration against disclosure of information if disclosure could reasonably be expected to "expose a person to a risk of harm or of serious harassment or serious intimidation".
Ms Case submitted that the expression "risk of harm" incorporates and will in practice likely subsume the higher requirements of "serious harassment" and "serious intimidation". The question therefore is whether disclosure could reasonably be expected to expose the complainant to a risk of harm.
She argues that, for the purposes of this consideration, "harm" means "injury, damage, hurt" (Macquarie Dictionary). To demonstrate this requires more than evidence of mere irritation, annoyance, unease or discomfort. "Risk", for the purposes of this consideration, means "exposure to the chance of injury or loss; a hazard or dangerous chance" (Macquarie Dictionary). To constitute a "chance" or "dangerous chance", a risk must be more than purely speculative or fanciful. This should be determined on an objective basis in the light of all of the circumstances of the application.
The Respondent submits that "harm" means not just physical harm but psychological harm caused by bullying, harassment or intimidation too and submits that this kind of harm ought not to be trivialised or considered inherently less harmful than physical harm. It contends that the evidence supports its position.
In response to the Applicant's argument that he has a right to natural justice, the Respondent submits that there is in fact no redress or right of appeal regarding the disciplinary action or the contents of the Report. Furthermore, it submits that even if the Transcripts were disclosed, any additional knowledge gained by the Applicant over and above that expressly relied upon by the Investigator in her Report would be redundant, and could serve no purpose in advancing any administrative law or industrial remedies he might pursue or the complaint he has lodged against the Respondent with the Anti-Discrimination Board.
In the Respondent's submission, disclosure of the Transcripts would only serve to prejudice the supply of confidential information from future bullying and harassment victims, undermining the ability of the Respondent to effectively fulfil its function. In the circumstances the Tribunal should find that the public interest considerations in favour of disclosure do not outweigh the public interest considerations in favour of non-disclosure.
Consideration
As noted above, section 12 of the GIPA Act confirms the general presumption in favour of disclosure of government information, and lists examples of public interest considerations that favour disclosure. The Applicant also asserts that disclosure is necessary in order that he might be able to pursue avenues to address what he regards as defects in the discipline process in which he was involved.
Those interests in favour of disclosure must be balanced against the public interest considerations against disclosure.
The weighing of the public interest considerations in favour of disclosure against those against disclosure, the balancing of competing interests, "is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation: Hurst v Wagga Wagga City Council at paragraph [70].
The Respondent and Ms Case have referred me to a number of authorities that dealt with provisions in the FOI Act. While the relevant GIPA Act provisions are distinct from those of the FOI Act, the two Acts share some terminology and some FOI Act decisions are of assistance in regard to interpretation.
Clause 1(d) of the table to section 14 of the GIPA Act states that there is a public interest consideration against disclosure if disclosure "could reasonably be expected to "prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's function".
In Robinson v Director General, Department of Health [2002] NSWADT 222 the Tribunal's Deputy President Hennessy held that the effective performance of an agency's investigative functions depended to a large extent on the cooperation of those who had relevant information. She found that if information obtained confidentially was provided to an applicant under the FOI Act, then that disclosure could reasonably be expected to have a substantial adverse effect on the effective performance by an agency of the agency's functions.
In Black v Hunter New England Area Health Service [2008] NSWADT 301 Handley DP noted, at [35], that the release of the relevant documents by a health service might discourage members of the public and professionals from reporting their concerns, and discourage professionals from making full and frank assessments. This could reasonably be expected to have a substantial adverse effect on the health service's performance of its functions, which include provision of health care and protection of individual patients and the wider community.
In Dezfouli v Justice Health [2006] NSWADT 274 Pearson JM held at [37] that disclosure of documents revealing the identity of staff making notes and recording observations in the course of providing health care at the Long Bay Forensic Hospital could lead to staff being less likely to make accurate and comprehensive written notes, and that this could reasonably be expected to have a substantial adverse effect of the ability of the Respondent to provide comprehensive and appropriate health care to patients.
This principle has been reiterated by the Appeal Panel in Macquarie University v Howell (No 2) [2009] NSWADTAP 19 at paragraph [10]:
10 In our view, the Tribunal is required to engage in a relatively abstract analysis. The Tribunal needs to characterise the nature of the material sought to be protected on the present occasion; identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; and consider the extent to which guarantees of confidentiality may be necessary. It is then necessary to evaluate the effect on the agency's ability in future to obtain similar information.
I have considered that material provided by the parties and I have considered the contents of the Transcripts. Having done so, I am satisfied that the information supplied by Ms. O'Neill and Ms. Johnson was supplied in confidence. I am also satisfied that there was an implied pledge of confidentiality made by the Investigator to Ms. O'Neill, Ms. Johnson, and Ms. Scott.
I do not need to determine the issue of whether information supplied by a victim of workplace bullying or harassment about that bullying and harassment to their employer's investigator, is a class of information that is prima facie confidential information regardless of variations in factual circumstances. However, I note that I am inclined to the view that Ms case put forward on this issue. For present purposes I am satisfied that the information supplied by Ms. O'Neill, Ms. Johnson, and Ms. Scott was supplied in confidence.
The Respondent's Bullying and Harassment Prevention Policy states that reports and complaints of harassment and bullying will be treated seriously by the Respondent and will be investigated promptly in a sensitive, thorough and confidential manner ensuring that complainants and witnesses are not victimised. In my view, the exercise of that investigative function will depend to a large extent on the cooperation of those who hold relevant information. In order to perform that function it will often be necessary for the Respondent to obtained information confidentially. In other words, the supply of confidential information facilitates the effective exercise of the Respondent's investigative functions.
Mr Taylor fairly described the situation in his determination when he stated that, when investigating allegations against staff members, it is often necessary to gather facts, information and opinions from colleagues by way of interview. The Respondent relies on staff to be candid and forthcoming with all information relevant to the area of inquiry in those interviews. The rigour and value of this process would be severely diminished if staff were concerned that all information provided would not have any degree of confidentiality attached.
I am persuaded by the Respondent's evidence and argument that, in the circumstances of this matter, disclosure of the Transcripts could discourage future victims of workplace bullying or harassment from coming forward. I accept that the supply of information of that kind is necessary for the effective exercise of the Respondent's functions.
In my view, the withheld information has not been disclosed and is therefore capable of being the subject of the consideration against disclosure set out in Clause (1)(d). While it is apparent that some information has been provided to the Applicant, I agree with the Respondent that in this case a distinction ought to be drawn between the factual contents or general meanings in the Transcripts from the particular words actually used verbatim in the Transcripts.
The information disclosed is in the form of a summary and comprises only a small proportion of the information contained in the Transcripts. While it might be possible to provide the Applicant with a copy of those parts of the Transcripts which contain the information from which the summary has been derived, there would be no utility in doing so. In effect it would duplicate the information that has already been provided and would merely cause the Respondent to incur additional expense.
I am also persuaded by the Respondent's argument that, in the circumstances of this matter, disclosure of the Transcripts would not assist the Applicant in the process that he wishes to pursue.
In my view, the public interest considerations have already been satisfied by the disclosure of the documents already released to the Applicant. Disclosure of the Transcripts would not further those considerations.
On the basis of the consideration against disclosure set out in Clause (1)(d) of the table to section 14 of the GIPA Act I am satisfied that the Respondent has discharged its onus under section 105. I find that, on balance, the public interest considerations the public interest considerations against disclosure outweigh those in favour of disclosure.
Having formed this view, it is not necessary that I consider the other arguments presented by the Respondent. However, I note that it is probable that disclosure of the Transcripts could reasonably be expected to result in the disclosure of information provided to the Respondent in confidence. I am also inclined to agree with Ms Case's submission that the use of word "informant" in clause 2(a) is intended to protect the identity of people who are informers in order to ensure that they continue to provide evidence to police.
In the circumstances, the decision to refuse release of the Transcripts was the correct and preferable decision and should be affirmed.
Order
The decision under review is affirmed.
Decision last updated: 19 September 2012
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