Woods v Chief Executive Officer, State Rail Authority

[2002] NSWADT 253

Set aside by Appeal: Set aside by Appeal on 10 July 2003

CITATION:	Woods -v- Chief Executive Officer, State Rail Authority [2002] NSWADT 253
DIVISION:	General Division
PARTIES:	APPLICANT Lindsay Woods RESPONDENT Chief Executive Officer, State Rail Authority
FILE NUMBER:	023048
HEARING DATES:	03/07/2002
SUBMISSIONS CLOSED:	07/03/2002
DATE OF DECISION:	12/03/2002
BEFORE:	Hennessy N - Magistrate (Deputy President)
APPLICATION:	access to documents - confidential material - access to documents - operation of agencies - access to documents - personal affairs - Freedom of Information Act - access to documents - confidential material - Freedom of Information Act - access to documents - operation of agencies - Freedom of Information Act - access to documents - personal affairs
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989 Protected Disclosures Act 1994
CASES CITED:	Commissioner of Police v District Court of New South Wales (Perrin's case ) (1993) 31 NSWLR 606 Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93 A v Director General, Department of Health [2002] NSWADT 59 Colakovski v Australian Telecommunications Commission (1991) 29 FCR 429 Re Dale and Australian Federal Police (1997) 47 ALD 417 oung v Wicks (1986) 13 FCR 85 at 89 per Beaumont J; Department of Social Security v Dyrenfurth (1988) 80 ALR 533 Wiseman v Commonwealth of Australia (unreported, Federal Court, 24 October 1989.) In Re Williams (1985) 8 ALD 219 In Re Griffith and the Queensland Police Service (unreported decision No 97013, 15 August 1997) Hutchinson and Department of Human Services (1997) 12 VAR 422 Re Maher and Attorney General’s Department (1985) 7 ALD 731 Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279 Ryder v Booth [1985] VR 870 Attorney General's Dept v Cockcroft (1986) 64 ALR 97 Re B and Brisbane North Regional Health Authority ((1994) 1 QAR 279
REPRESENTATION:	APPLICANT K Woods, agent RESPONDENT M Leeming, barrister
ORDERS:	1. The agency's decision not to release "the petition" is set aside. In substitution for that decision, a decision is made to grant the applicant access to the petition.

1 On 22 February 2002, Mr Woods applied to the Tribunal for a review of a decision made by the Chief Executive, State Rail Authority (the agency) pursuant to the Freedom of Information Act 1989 (FOI Act) to refuse him access to a document ("the petition"). The petition is an internal memorandum from a fellow employee of Mr Woods and is signed by eight employees as well as the author. Attached to the petition are seven individual internal memoranda from seven employees. The petition, including the attachments, was presented to the management of the Wyong Revenue Protection Unit (RPU) of the State Rail Authority (SRA) on 15 August 2001.

2 Following Mr Woods’ application under the FOI Act, the agency consulted each of the persons mentioned in the petition asking whether they consented to the release of any information relating to them. Two people consented to the petition being released to Mr Woods and the remaining eight people objected to the release of the petition.

3 The hearing of this matter was conducted over one day. The applicant’s father, Mr Kevin Woods, represented his son at the hearing. Mr Leeming of counsel, instructed by Mr Bateman, represented the agency.

Decision under review

4 The agency’s initial decision not to give Mr Woods access to the petition was affirmed on 21 December 2001 after an internal review. On 22 April 2002 the agency provided an amended Statement of Reasons at the Tribunal’s request. It is that amended Statement of Reasons which contains the decision under review. In accordance with s 63 of the Administrative Decisions Tribunal Act 1997 (ADT Act), the Tribunal must decide whether the agency’s decision not to grant access to the petition is the “correct and preferable” decision having regard to any relevant factual material and any applicable written or unwritten law.

5 Under s 55(a) of the FOI Act the Tribunal, in determining a review application, “is to ensure that it does not, in the reasons for its decision or otherwise, disclose any exempt matter.” To prevent an appeal from this decision being futile, the Tribunal must comply with this obligation even in a case where its final decision is that the information is not exempt.

6 The agency tendered confidential affidavits from eight people. Expurgated versions of these affidavits were made available to the applicant. This meant that Mr Woods could participate to the fullest extent possible in the proceedings and there was no need for any part of the hearing to be conducted in the absence of Mr Woods or his agent.

Brief history

7 Industrial dispute. These proceedings arise from what is essentially an industrial dispute within the Wyong RPU. Revenue Protection Officers are responsible for the enforcement of the agency’s policy on fare evasion. There are currently 12 staff members at the Wyong RPU.

8 Complaint by applicant against Ray Chapman. The background to the petition being prepared is that in March 2001 Mr Woods and a fellow employee, Mr Brew, made allegations of dishonesty, improper behaviour, incompetence and exceeding authority against the coordinator of the Wyong RPU at that time, Ray Chapman. Mr Platt, the current Group Manager of Security and Revenue Protection for the agency, conceded that Mr Woods and Mr Brew had acted responsibly in reporting matters of concern to them.

9 Investigation by IAB. The agency commissioned IAB Management Services (IAB) to investigate the allegations that Mr Woods and Mr Brew had made. IAB furnished a report in October 2001. Following consideration by management, Ray Chapman and another staff member, Grant Foster, were disciplined and removed from their positions. During the course of the IAB investigation, there was a great deal of interpersonal conflict among the members of the Wyong RPU chiefly between the supporters of Mr Woods (four staff members including Mr McKenna) and the majority of the RPO’s who supported Ray Chapman.

10 The petition. On 15 August 2001 a staff member forwarded the petition to management complaining about certain conduct of Mr Woods and Mr Brew. Mr Woods provided evidence that three of the signatories did not read the petition in its final form before signing it. The petition comprises four sections: a general introduction which puts the author’s position; the recounting of four specific allegations against Mr Woods; attached documentation and the seven internal memoranda referred to above.

11 Action by management. In August 2001 Ms Donaldson, who was then the Manager, Stations and Operations Improvement, attended a meeting with Mr Moir (Manager Protective Services) and Mr Abel (Acting Manager, Revenue Protection) in relation to the petition. Ms Donaldson said that during that meeting they discussed their concerns for the health and welfare of Mr Woods and Mr Brew based on their knowledge of the level of interpersonal conflict between RPOs at Wyong. Ms Donaldson conceded that they were also concerned that the petition was intended to victimise Mr Woods and Mr Brew for their action in complaining about Mr Chapman.

12 Letter advising of relocation. On 12 September 2001, following the managers’ meeting, Ms Donaldson wrote to Mr Woods and Mr Brew advising them they would be temporarily relocated to the Central Business District Depot (Sydney CBD). In that letter Ms Donaldson stated that there was “ongoing interpersonal conflict” at Wyong and that “It is to (be) clearly understood that your relocation is not a form of punishment or the assumption of any guilt.” The reason for the relocation was expressed to be as a result of the agency’s “duty of care” to ensure that “the best interests of all officers are protected at all times.” Ms Donaldson stated repeatedly when giving evidence that the relocation was not the result of forming any view about the substance of the allegations in the petition.

13 Drafts of the petition. On 13 September 2001 an agency manager, Mr Clarke, told Mr Woods the names of the people who were signatories to the petition. Mr Woods also received two, three page drafts of the petition from Susan Pratzky, a former RPO at Wyong.

14 Investigation of complaints in petition. It was common ground that there has never been an investigation in relation to the matters set out in the petition. None of the people who wrote or signed the petition, nor Messrs Woods or Brew, was consulted before the relocation decision was made.

15 Actions of applicant following relocation decision. Neither Mr Woods nor Mr Brew took up the position at the Sydney CBD. Instead, both men took sick leave. They returned to work at Wyong on 18 June 2002, approximately nine months after the decision to relocate them, and two weeks prior to this hearing.

16 The second petition. On 12 June 2002, four days before Mr Woods and Mr Brew were due to return to work, nine RPOs from Wyong RPU sent a further internal memorandum to managers. Unlike the first petition, the second petition was not intended to be kept confidential. It was sent to 12 people including agency managers, union officers and the Workcover Authority. The second petition stated, in part, that:

I am bringing to your attention a serious breach of not only SRA policy but a breach of the OH&S Act. It is CityRail’s view to return Norman Brew & Lindsay Woods to the Revenue Protection Unit Wyong despite numerous and valid protests from the overwhelming majority of staff based at this location.
About 18 months ago these above mentioned officers were removed from the unit because of their demonstration that they could not function as part of the team, their willingness to create tension, and harassment of staff including threats of physical violence and verbal threats. All of these allegations have been sent to CityRail for action, however no action has been taken despite admissions being made. These admissions are both in writing and said under oath in the Transport Appeals Board.
Returning Lindsay Woods and Norm Brew to Wyong Revenue Protection Unit would have detrimental effects to the staff currently employed at this location. As previously mentioned, Mr Brew has physically threatened and admitted to such, staff in the Unit. Mr Woods has threatened individuals with legal action over their participation in signing the petition which had them removed from the Unit approximately 12 months ago. Staff at Wyong have a genuine fear of Mr Woods and Mr Brew and the steps they may take for reprisals against them. Mr Woods and Mr Brew have demonstrated their ability to fabricate stories to no end, in the efforts to remove any person who they believe is standing in their way.

17 Despite the reference in the second petition to Mr Woods and Mr Brew having been transferred “about 18 months ago” and “approximately 12 months ago”, it was not in dispute that they had been transferred on 13 September 2001, approximately 9 months prior to the second petition being written.

18 Implications of second petition. The contents of the second petition suggest that the nine signatories to that petition are of the view that their allegations in the first petition have not been satisfactorily resolved. In particular, the second petition states, in part, that:

Clause 3.6.3 of the Grievance Resolution Process states that “a grievance should only be regarded as satisfactorily resolved when the outcome is agreed, and there is an immediate improvement in the circumstances which led to the grievance being raised.
CityRail have absolutely no agreeance (sic) from staff. There can be no improvement in circumstances with the return of these two officers.

19 Mr Platt who has been the Group Manager, Security and Revenue Protection at the agency since 22 October 2001, stated that, in his view, a few employees at the Wyong RPU have pressured other employees to object to working with Mr Woods.

20 Applicant’s response to second petition. Mr Woods stated that the second petition contains false allegations against him. He denies having fabricated any stories and maintains that he has always reported corruption and maladministration in a forthright manner. Mr Platt agreed that the allegation in the second petition that “Mr Woods and Mr Brew have demonstrated their ability to fabricate stories to no end” was incorrect. In general Mr Platt agreed that Mr Woods had been co-operative and responsible.

21 Mr Woods has not lodged a complaint or responded in any way to the second petition. He denied ever having threatened to sue staff. He has given a verbal undertaking that he would do his best to work harmoniously with staff members and that he would not sue any staff member if the first petition is released.

22 New Grievance Resolution Policy. The agency introduced a new Grievance Resolution Policy (GRP) in December 2001. The policy differentiates between a grievance that does not allege a breach the agency’s Code of Workplace Standards and a grievance that does allege a breach those standards. The latter would include behaviour such as theft, fraud, assault, and posing a risk to the health or safety of a person. The GRP states that “Confidentiality in grievance situations is essential.” It goes on to say that:

Confidentiality means that information related to the grievant, respondents and the actual grievance itself will not be communicated any more broadly than is essential for the achievement of the aims set out above. Generally, the grievant and respondent should be aware of, and agree on, how far information is being communicated in relation to the grievance.’

23 Under the heading “Documentation” the GRP states that:

All parties associated with the grievance should have the opportunity to review all material relevant to the grievance.

24 Step 4 of the GRP involves arranging to interview the employee/s alleged to have caused the grievance as soon as possible. At that interview the person investigating the grievance must provide full details of the grievance, and invite the employee to discuss the grievance and respond to the details given by the grievant.

25 Mr Platt is currently responsible for the overall security functions of the agency including Revenue Protection. He gave evidence, which was not controverted, that the agency has taken several steps to resolve the conflict between staff at Wyong RPU. These steps have included consulting with employees and unions, briefing a workplace relations consultant and mediator, appointing a psychologist and providing counselling to staff. A workshop had been organised to take place during the two days following the hearing for all RPU staff to attempt to mediate and resolve the conflict at the Wyong RPU.

26 In May 2002 the agency appointed a personnel manager, Mr Arie Marten, to be responsible for resolving interpersonal conflicts and improving the ability of the Wyong RPU to work together as a team. In Mr Platt’s opinion, the situation has improved since Mr Marten’s appointment.

Statutory provisions

27 The Tribunal has jurisdiction to hear this matter pursuant to section 53 of the FOI Act and section 38 of the Administrative Decisions Tribunal Act 1997.

28 The objects of the FOI Act are set out in section 5(1)(a):

The objects of this Act are to extend, as far as possible, the rights of the public:
(a) to obtain access to information held by the Government; and
(b) to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect out of date or misleading.

29 An agency may refuse access to a document if it is an "exempt document" (FOI Act s 25(1)(a)). Pursuant to s 6(1) of the FOI Act an "exempt document" includes a document referred to in Schedule 1. In this case the agency is relying on the exemptions in Clause 6 (personal affairs), Clause 13 (confidential material) and Clause 16(1) (operations of an agency). These provisions are set out below:

6 Documents affecting personal affairs
(1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).
(2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made.

13 Documents containing confidential material
A document is an exempt document:
(a) if it contains matter the disclosure of which would found an action for breach of confidence, or
(b) if it contains matter the disclosure of which:
(i) would otherwise disclose information obtained in confidence, and
(ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and
(iii) would, on balance, be contrary to the public interest.

16 Documents concerning operations of agencies
A document is an exempt document if it contains matter the disclosure of which:
(a) could reasonably be expected:
(iii) to have a substantial adverse effect on the management or assessment by an agency of the agency's personnel, or

to have a substantial adverse effect on the effective performance by an agency of the agency's functions,
and
(b) would, on balance, be contrary to the public interest.

30 In all FOI applications the Tribunal is required to consider whether access should be granted to exempt documents in a form in which exempt matter is deleted, if that is practicable and that is what the applicant would wish. Section 25(4) of the FOI Act provides that:

An agency shall not refuse access to an exempt document (including a restricted document that is the subject of a Ministerial certificate):
(a) if it is practicable to give access to a copy of the document from which the exempt matter has been deleted, and
(b) if it appears to the agency (whether from the terms of the application or after consultation with the applicant) that the applicant would wish to be given access to such a copy.

31 Section 31 requires an agency to consult with any person whose personal affairs may be disclosed by providing access to any document. That section provides as follows:

(1) This section applies to a document that contains information concerning the personal affairs of any person (whether living or deceased).
(2) An agency shall not give access to a document to which this section applies (otherwise than to the person concerned) unless the agency has taken such steps as are reasonably practicable to obtain the views of the person concerned as to whether or not the document is an exempt document by virtue of clause 6 of Schedule 1.

32 The onus of proof is on the agency to justify any decision to withhold documents. As Kirby P said in Commissioner of Police v District Court of New South Wales (Perrin's case ) (1993) 31 NSWLR 606 at 625:

Prima facie, the document in its entirety must be disclosed. To withhold disclosure it is for the agency to make out the application for an exemption. Thus the question properly is not why the information should be disclosed but why it should be exempted.

33 Even if the Tribunal finds that a document is an exempt document, there is a line of authority beginning with Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93, suggesting that the Tribunal may nevertheless exercise the discretion given to agencies by s 25 of the FOI Act to disclose that document. At [91] of Mangoplah, the Tribunal defined the Tribunal’s overriding discretion in the following terms:

Framing the question in this way produces a need to locate special or overriding circumstances or interests before an exempt document is released, but only in the sense that some reason particular to the circumstances should be found for not claiming the exemption.

34 Summary of requirements. In relation to Clause 6, the document must contain information concerning the personal affairs of any person (other than the applicant) and disclosure of that information would be unreasonable.

35 Information concerning the personal affairs of any person. The confidential affidavits alleged that the content of the petition concerned the deponent’s personal affairs. Pursuant to s 55 of the FOI Act, it is not possible to provide further details of the content of those affidavits because to do so may involve the disclosure of exempt matter.

36 Reasoning and findings. The leading case on Clause 6 is Commissioner of Police v District Court of New South Wales (Perrin’s Case) (1993) 31 NSWLR 606, a decision of the Court of Appeal. In that case Kirby P held at p 625 that “personal affairs” means “the composite collection of activities personal to the individual concerned." The Court of Appeal held that the disclosure of the names of police officers and employees involved in the preparation of official reports in the course of their duties was not information concerning their personal affairs. Kirby P said at p 625, that:

Applying that test, it cannot properly be said that the disclosure of the names of police officers and employees involved in the preparation of reports within the New South Wales police can be classified as disclosing information concerning their personal affairs. The preparation of the reports apparently occurred in the course of the performance of their police duties. What would then be disclosed is no more than the identity of officers and employees of an agency performing such duties. As such, there would appear to be nothing personal to the officers concerned. Nor should there be. It is quite different if personnel records, private relationships, health reports of (perhaps) private addresses would be disclosed. Such information would attract the exemption.

37 Similarly, in A v Director General, Department of Health [2002] NSWADT 59 at [32]-[38], the Tribunal held that A’s name, which appeared in an investigation report which was solely concerned with A’s duties at the hospital, did not amount to “personal affairs”. It is a question of fact in every case as to whether the name of a person and any other information in a document amounts to their personal affairs (Perrin's case per Clarke JA at p 644; Re French (1987) 12 ALD 525).

38 The same approach has been followed under the Freedom of Information Act 1982 (Cth) in cases including Colakovski v Australian Telecommunications Commission (1991) 29 FCR 429 at 440 and Re Dale and Australian Federal Police (1997) 47 ALD 417 at 425.

39 The agency sought to distinguish the present case from Perrin’s Case and A v Director General, Department of Health, on the basis that the matters referred to in the petition, while happening at work, were outside the scope of the performance of duties within the agency. In addition, the agency submitted that the conduct which gave rise to the documents in dispute was substantially unrelated to the performance of the key functions of the agency. According to the agency the names, identities and information disclosed in the petition are personal matters.

40 Some of the confidential evidence related to the impact the release of the document would have on a person’s personal affairs. The focus for this part of the test must be on the document itself, not on any impact its release may have. Similarly the opinion of the person concerned about whether the petition contains matter concerning their personal affairs is not determinative.

41 Mr Woods submitted that the petition was prepared by the author in the course of his duties as a RPO with the agency. It contains work-related complaints concerning himself, not information relating to his, or anyone else’s personal affairs.

42 There is one line of authority which has held that information about a person’s work performance or vocational competence does not ordinarily constitute their personal affairs. (See Young v Wicks (1986) 13 FCR 85 at 89 per Beaumont J; Department of Social Security v Dyrenfurth (1988) 80 ALR 533 and Wiseman v Commonwealth of Australia (unreported, Federal Court, 24 October 1989.) In Re Williams (1985) 8 ALD 219 at 222, Beaumont J stated that if the term personal affairs refers to matters of private concern to an individual then:

. . . ordinarily information as to the work capacity and performance of a person is not private in that sense. It is something observed by others and commonly discussed by those involved in that work. Ordinarily, information as to a person's vocational competence is not something which is treated as confidential. Prima facie at least, it is not part of his or her personal affairs.

43 In Re Griffith and the Queensland Police Service (unreported decision No 97013, 15 August 1997) the Queensland Information Commissioner commented, at paragraph 51, that:

I consider that conduct of a public sector employee which occurs in the course of performing his or her employment duties is properly to be characterised as part of the employee's employment affairs rather than his or her personal affairs, even in respect of conduct alleged or proven to involve misconduct or a breach of discipline.

44 I am unable to disclose the precise content of the petition, however it is common ground that as well as being a general complaint against Mr Woods and Mr Brew, it reports four alleged incidents where Mr Woods and/or Mr Brew behaved inappropriately in the course of performing, or purportedly performing, their duties. It is clear that some of the people concerned witnessed the incidents referred to in the petition.

45 As mentioned above, there is a line of authority, with which I agree, that information about a person’s work performance or vocational competence does not ordinarily constitute their personal affairs. Given this conclusion, it is not logical that a third party’s view of a person’s work performance or vocational competence should be characterised as constituting that person’s personal affairs.

46 A contrary view was taken in a similar legislative context by the Victorian Administrative Appeals Tribunal in Hutchinson and Department of Human Services (1997) 12 VAR 422. Deputy President Megay decided that handwritten notes and statements taken from interviewees by an officer investigating the conduct of a public servant, related to the interviewees’ personal experiences with the applicant and their reactions to those experiences, their versions of particular events and their reactions to those events.

47 While the circumstances are similar in the present case, I do not consider that “personal affairs” should be so broadly defined. When a person’s opinion about the work performance of another arises as a result of the position, office or public activity which the person occupies, it primarily concerns their business or professional relationship, rather than any private or personal relationship between them. Similarly, while the opinion may arise from incidents they have witnessed at work, that does not mean that the information concerns their personal affairs.

48 On the basis of the authorities quoted above and an examination of the contents of the petition and all the evidence, neither the names of any person, nor any of the other information in the petition concern anyone’s personal affairs. The subject matter of the petition is complaints about Mr Woods and Mr Brew which arose during the course of the signatories employment with the agency. While there may be situations where an employee’s views about another employee constitutes that person’s personal affairs, that is not the situation in this case.

Confidential information exemption

49 Summary of requirements. In relation to the exemption for documents containing confidential material there are three requirements: that release would disclose information obtained in confidence; that disclosure could reasonably be expected to prejudice the future supply of such information to the agency; and that disclosure would, on balance, be contrary to the public interest.

50 Information obtained in confidence. Evidence contained in the confidential affidavits from third parties was that the petition was given in confidence. Ms Donaldson gave evidence that at the time the first petition was received it was the practice of the agency to treat such information in confidence unless the person complaining indicated otherwise. In her view, the principles in the new GRP reflect the informal custom and practice in relation to the confidential treatment of information received from employees which existed at the time the petition was received. There was an expectation among employees that the information would be treated confidentially. According to Ms Donaldson, the fact that the petition was addressed to six people including several managers, was appropriate given their positions and does not indicate a lack of confidentiality.

51 Although there was some reference to the Protected Disclosures Act 1994 in the confidential affidavits, the agency did not rely on Clause 20(d) of Schedule 1 to the FOI Act to submit that the petition was exempt because it would disclose matter relating to a protected disclosure within the meaning of the Protected Disclosures Act 1994.

52 In order for information to be “obtained in confidence” it must be shown that it was “communicated and received under an expressed or inferred understanding that [it] would be kept confidential.” (See Re Maher and Attorney General’s Department (1985) 7 ALD 731 at 737 and Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279 at 338.) Confidentiality can be inferred from all the circumstances. (Wiseman v Commonwealth, unreported, Federal Court, 24 October 1989.)

53 Mr Woods provided evidence which suggested that not all the signatories provided the information in confidence. While this may have been the case, I am satisfied on the basis of all the evidence, including the confidential affidavits, that the petition was “obtained in confidence.”

54 Prejudice the future supply of such information to the agency. The evidence was that the people concerned would be reluctant to provide similar information in future if the petition was disclosed to Mr Woods. The Tribunal must determine whether release of the information in the first petition could reasonably be expected to prejudice the supply of similar material to the agency in the future. This approach has been confirmed in Ryder v Booth [1985] VR 870 by Young CJ when dealing with a similar question arising under the corresponding (though not identical) provision in the Victorian FOI Act. 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 . . .

55 His Honour went on to observe at p 872 that the question is a question of fact. (See also Attorney General's Dept v Cockcroft (1986) 64 ALR 97 per Bowen CJ and Beaumont J at 106.)

56 Similarly, in Re B and Brisbane North Regional Health Authority ((1994) 1 QAR 279 at 341) the Queensland Information Commissioner stated that:

In my opinion, the test is not to be applied by reference to whether the particular confider whose confidential information is being considered for disclosure, could reasonably be expected to refuse to supply such information in the future, but by reference to whether disclosure could reasonably be expected to prejudice future supply of such information from a substantial number of the sources available or likely to be available to an agency.

57 Consequently, evidence that those who signed the petition would be reluctant to provide similar information in future if the petition was disclosed to Mr Woods, is not determinative. In December 2001, the agency introduced a new Grievance Resolution Policy which sets out the expectations and obligations in relation to confidentiality. As a general rule, the information is not to be communicated more broadly than is essential, but there is an assumption that the respondent will be fully informed of the content of any grievance prior to any action being taken. Under the heading “Documentation” the GRP states that:

All parties associated with the grievance should have the opportunity to review all material relevant to the grievance.

58 The future supply of such information will be governed by the Protected Disclosures Act 1994 and the new GRP, to the extent that that policy is consistent with the agency’s obligations under the FOI Act. A grievant will be aware that if any action is to be taken in relation to a grievance, the respondent must be given full details of the grievance. In those circumstances, disclosure of the petition could not reasonably be expected to prejudice the future supply of such information to the agency.

59 Having come to this conclusion, there is no need to consider the third element of Clause 13, namely public interest considerations.

Operations of an agency exemption

60 Summary of requirements. In order for the agency to make out the relevant parts of this exemption, it must establish that disclosure could reasonably be expected either to have a substantial adverse effect on the management or assessment by an agency of the agency's personnel, or to have a substantial adverse effect on the effective performance by an agency of the agency's functions. In addition disclosure must, on balance, be contrary to the public interest.

61 Substantial adverse effect on the agency. Mr Platt said that the release of the document would substantially adversely affect the ability of the agency to manage or properly assess its employees and effectively perform its functions in relation to the operation of the Wyong RPU. It would also substantially adversely affect the ability of the agency to carry out its duties as an employer to provide its employees with a workplace that is free from harassment and intimidation.

62 The basis for these opinions is that RPOs are required to work as a team either in small groups or collectively. In Mr Platt’s opinion, the release of the petition would exacerbate the existing conflict among the staff. In addition staff would be very hesitant to complain or provide information in the future as there would be no guarantee that complaints made in confidence would be kept confidential. Mr Platt expressed the view that the agency would find it difficult to obtain the co-operation of employees in relation to investigations like that conducted by IAB as they would assume that the information provided would not be treated confidentially.

63 Mr Platt also expressed concern that industrial action across all RPUs could occur as a result of the document being released. This would have a serious effect on the ability of the agency to carry out its revenue protection functions. The evidence in support of this assertion was the fact that the Rail, Tram and Bus Union (RTBU) banned the issuing of fines on 19 September 2001 as a result of the action that the agency took against Mr Chapman and Mr Foster.

64 Ms Donaldson gave evidence that if the petition is released the ability of the agency to manage or properly assess its employees and effectively perform it functions would be substantially adversely affected. These functions include the operation of the Wyong RPU and carrying out its duties as an employer to provide its employees with a workplace that is free of harassment and intimidation. If documents are released, conflict will be inflamed. Staff will be hesitant to complain and have less trust in management. The agency will find it difficult to obtain the co-operation of employers in investigations similar to the IAB inquiry, and there may be industrial action.

65 In relation to the threat of industrial action, Mr Woods gave evidence that Mr King, a delegate of the RBTU, gave him a guarantee that there would be no industrial action whatsoever concerning his return to Wyong and his “basic right of reply.”

66 The three major concerns of management are that release of the petition would:

• lead to industrial action;
• increase the level of harassment and intimidation and thus exacerbate the existing conflict; and
• make employees less likely to complain or co-operate with an investigation because of concerns about confidentiality.

67 The agency did not submit that disclosure of the petition would have a substantial adverse effect on the conduct of industrial relations (Clause 16(a)(v)). I am satisfied that there is very little risk that the release of the petition, pursuant to an order of this Tribunal, will lead to industrial action. Even if it does, such action is likely to be relatively minor given the previous history of industrial action in relation to this dispute. Minor industrial action would not have a substantial adverse effect on the management or assessment of personnel or on the effective performance by the agency of its functions.

68 The agency is concerned that release of the document will exacerbate the existing conflict among employees and lead to intimidation and harassment. That concern is supported to some extent, by the confidential evidence. However, there was also evidence from Mr Platt that Mr Woods had been co-operative and responsible. Mr Woods has given a verbal undertaking that he would do his best to work harmoniously with staff members. He has also denied having ever threatened to sue staff and provided an undertaking that he would not sue any staff member if the first petition is released.

69 The agency has gone to significant lengths to address the conflict that has arisen in the workplace. Even if release of the petition does exacerbate the existing conflict in the short term, it is likely, given the steps already taken by management, that the underlying concerns fuelling the conflict can be addressed and resolved. In my view any short term exacerbation of the conflict can be effectively addressed and will not have a substantial adverse effect on the management or assessment of personnel or on the effective performance of the agency’s functions.

70 The agency’s concern that employees will be less likely to complain or co-operate with an investigation because of concerns about confidentiality, has been addressed above. Since December 2001, the agency has had a Grievance Resolution Policy which sets out the relevant principles of confidentiality in relation to grievances. That policy provides that confidentiality is essential, but also envisages that a respondent to a grievance will be provided with full details of any grievance prior to any action being taken. Given this policy and the provisions of the FOI Act, in particular the exemptions afforded to “protected disclosures” under Clause 20(d) of Schedule 1, release of the petition would not have a substantial adverse effect on the management or assessment by an agency of the agency’s personnel or on the effective performance of the agency’s functions.

Orders

71 The agency’s decision not to release “the petition” is set aside. In substitution for that decision, a decision is made to grant the applicant access to the petition.