Anicic v Fairfield City Council

NCAT Administrative and Equal Opportunity|2022-04-07

REASONS FOR DECISION

Mrs Gorica Anicic (the "Applicant") has applied to the NSW Civil and Administrative Tribunal (the "Tribunal" or "NCAT") for administrative review of a decision made on 21 December 2021 ("Decision") by the Fairfield City Council (the "Council" or "Respondent") under the Government Information (Public Access) Act 2009 (the "GIPA Act") refusing her access to unredacted versions of three documents held by the Council.
Mrs Anicic requests this Tribunal to overturn the Decision and decide that the three documents should be released to the Applicant in unredacted form. She submits disclosure is in the public interest, that the documents contain personal information about herself regarding a staff complaint and investigation, and it is important for her to obtain the unredacted documents "as they will reveal the truth that no threats were made."
The Council requests the Tribunal to affirm the Decision. The Council submits that there is an overriding public interest against disclosure of the redacted information in the documents that on balance outweighs the public interest considerations in favour of disclosure. In particular, the Council submits that disclosure could prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, that disclosure could prejudice the conduct, effectiveness or integrity of an investigation or review conducted by that agency, and that disclosure could reveal an individual's personal information and contravene information protection principles.
For the reasons that follow, and having considered all the circumstances, I find that the Council's Decision should be affirmed and the application of Mrs Anicic should accordingly be dismissed.

Mrs Anicic's First GIPA Application

On 15 October 2000, Mrs Anicic lodged with the Council a formal access application under the GIPA Act, seeking access to "…complaint against Council staff - CRM424556/2020. I would like all the information regarding the investigation of this matter." ("First GIPA Application")
On 10 November 2020, the Council's Right to Information Officer, Ms Orr, sent a letter to Mrs Anicic setting out the Council's decision ("First Decision") to release in full six documents (including the electronic record of the complaints, the letters sent to Mrs Anicic by Council, and a draft of the 7 October 2020 letter); and to withhold in full three documents pursuant to Section 58(1)(d) of the GIPA Act. The three documents withheld ("Three Documents") were: 1. The JV Marked Up 30 July 2020 File Note 2. The JV Investigation Note 3. The Marked Up JV Mud Map
The Council provided Mrs Anicic with reasons for withholding the Three Documents. Council identified the following considerations against disclosure as relevant to her application: Section 14(2) Table 1(f) (disclosure of the information could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions); and Section 14(2) Table (1)(h), (disclosure of the information could reasonably be expected to prejudice the conduct, effectiveness or integrity of an investigation or review conducted by agency by revealing its conduct or results). These factors, according to the Council, balanced against the public interest considerations in favour of disclosure. Mrs Anicic was provided with information about her rights of review under Part 5 of the GIPA Act, including external review by the Information and Privacy Commissioner ("IPC").

First IPC Report and Second Decision by Council

On 25 November 2020, Mrs Anicic applied to the IPC for external review of the Council's First Decision.
On 4 February 2021, the IPC issued its review report under the Government Information (Information Commissioner) Act 2009 (NSW). The IPC recommended that the Council make a new decision by way of internal review under section 93 of the GIPA Act within 10 days ("First IPC Review"). In particular, the IPC noted that the Council had only provided generalised assertions, without identifying the relevant function it believed would be prejudiced by release of the information, or explaining the nature of the investigation or review, or how disclosure could reasonably be expected to result in the prejudice asserted. The IPC also observed that the Council had not taken into consideration any personal factors in relation to the application, including any motives and personal circumstances in accordance with section 55 of the GIPA Act.
In accordance with the First IPC Review, the Council conducted an internal review and issued a new decision on 16 February 2021 ("Second Decision"), which it set out in a letter from Ms Sonja Drca, Manager Governance & Legal. In the Second Decision, the Council decided under Section 58(1)(d) of the GIPA Act to withhold access to some of the information sought. The Second Decision pointed to prejudice under Item 1(f) and Item 1(h) of the Table to Section 14(2), The Council additionally pointed to concerns that disclosure could reveal an individual's personal information (Item 3(a)) and contravene an information protection principle under the Privacy and Personal Information Protection Act 2002 ("PPIP Act") (Item 3(b)). The Council stated that the information in the three withheld documents, if released, could reasonably be expected to: • Prejudice the effective exercise of Council's complaints management, investigative and regulatory functions by making available information intended only for a limited, internal information and decision-making purpose • It is information relating to the conduct of a review that if made available could reasonably be expected to prejudice the conduct, effectiveness or integrity of that review including employee performance appraisal and procedural fairness • Disclose the name of a person involved in the gathering of a background information or conducting investigation into a complaint, that if released could reasonably be expected to reveal an individual's personal information and reveal information collected for the purposes of research, investigation, complaints management or employee performance appraisal.
The Council also took into account personal factors, including the dissatisfaction expressed by Mrs Anicic with Council's handling of the staff compliant and her request for an apology by applicable Council officers.
Under the Council's Second Decision, the same Three Documents were withheld in full, and three additional documents were released that had not earlier been released, including policies on complaints management and a statement of business ethics.

Second IPC Review and Council's statement it would take no further action

On 3 March 2021, Mrs Anicic requested an external review by the IPC of the Council's Second Decision.
On 26 May 2021, the IPC recommended pursuant to section 93 of the GIPA Act that the Council reconsider its decision by way of a further internal review ("Second IPC Review"). The IPC found that the Council had not provided sufficient justification for any of the four considerations against disclosure that it identified in its Second Decision, beyond generalised statements and that it did not adequately address each of the individual elements required. The IPC noted that the Council bears the burden of establishing that its decision is justified. The IPC provided further guidance on how to apply the public interest test under the GIPA Act. The IPC informed the Council of its recommendations and asked the Council to advise the Applicant and the IP within 10 working days of the actions to be taken in response. It also noted that an application for administrative review by NCAT could be made.
By email dated 16 June 2021, the Council informed the IPC and Mrs Anicic that it would not be taking any further action in response to IPC's recommendations.

First NCAT Proceeding and settlement leading to disclosure of redacted documents

On or around 21 June 2021, the Applicant applied to NCAT for the release of the Three Documents (the "First NCAT Proceeding"). A case conference was held on 26 July 2021.
Following a mediation on 1 September 2021, the Parties reached a settlement agreement for the Respondent to release the Three Documents with appropriate redactions. The Applicant withdrew the First NCAT proceedings and on 22 September 2021, the Tribunal dismissed the proceedings pursuant to section 55(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) ("CAT Act").

Second NCAT application and Second GIPA application to Council

On 6 October 2021, Mrs Anicic applied to NCAT to review the Council's decision not to release the redacted portions of the Three Documents.
On 8 November 2021, SM McAteer, directed Mrs Anicic to lodge a fresh GIPA Application to Council by 15 November 2021. Pursuant to section 65 of the Administrative Decisions Review Act 1997 (NSW) ("ADR Act"), the administrative review was remitted to the Respondent to determine the new GIPA Application afresh by 24 December 2021.
On 10 November 2021, Mrs Anicic lodged a fresh application under the GIPA Act requesting the release of the Three Documents with "NO REDACTIONS".

The Council's Third Decision and Administrative Review by NCAT

By letter dated 21 December 2021, signed by Ms Orr, the Right to Information Officer who had authorisation for purposes of Section 9(3) of the GIPA Act to decide the application, the Council advised its decision under Section 58(1)(d) of the GIPA Act to withhold access to the information sought in the Second GIPA Application. This third decision of the Council ("Decision") is the decision that is presently under review. The Council set out its reasons, starting with an identification of the public interest considerations in favour of disclosure. It then identified five considerations against disclosure, including section 14(2) Table, clauses (1)(d), (1)(f), (1)(h), (3)(a) and (3)(b). The justifications for each of these considerations was set out in considerably more detail for each document, with more extensive justifications than were provided than in the Council's First and Second Decisions. The Decision concluded that, on balance, "there is an overriding public interest against disclosure for some of the information sought within the attached Schedule as they include information obtained in confidence during an investigation process relating to a complaint and personal information of Council's staff."
By letter dated 10 January 2022, Mrs Anicic informed NCAT that she was unsatisfied with the Decision and wished to proceed with administrative review.
At a directions hearing on 24 January 2002, the Council was ordered to file evidence, submissions and legal arguments by 11 March 2022, and Mrs Anicic to file her materials in reply by 18 March 2022. The matter was listed for hearing on 7 April 2022.

Material before the Tribunal

The Tribunal has had regard to the following material, which was all entered into evidence without objection from either side.
The documentary material from the Applicant comprised: 1. NCAT Application dated 6 October 2021, attaching 1. The letter from the Council to the Applicant dated 14 August 2020; 2. the Council's First Decision of 10 November 2020 attaching the documents responsive to the Applicant's First GIPA Application; 3. the First IPC Review dated 4 February 2021; 4. the Council's Second Decision of 16 February 2021 attaching further responsive documents; 5. the Second IPC Review dated 26 May 2021; 6. email correspondence concerning the settlement of the First NCAT Proceedings and disclosure of redacted documents in accordance with that settlement. 1. The Applicant's Submissions of 17 March 2022 summarising the background to her application and her submissions, accompanied by some of the same materials attached to the Application, as well as: 1. The Council's Third Decision of 21 December 2021 (the Decision which is subject of administrative review in these proceedings); 2. The Applicant's letter of 10 January 2022 confirming her wish to have administrative review of the Decision.
No reply submissions were filed by Mrs Anicic.
The documentary material from the Respondent comprised: 1. An affidavit of Mr John Vuletich dated 10 March 2022. Mr Vuletich has been employed by the Council for over 48 years. His duties involve managing around 23 employees, handling and investigating enquiries and complaints from the general public regarding issues of compliance relating to properties in the Council's local government area, handling and investigating complaints made against Council staff in accordance with the Council's Complaint Management policy and instigating performance or disciplinary action as necessary. His affidavit annexed: 1. Mr Vuletich's delegations and authorities; 2. 22 September 2020 letter from the Applicant to the Council expressing concerns about her 26 August 2020 meeting; 3. 23 September 2020 letter from Mr Vuletich to the Applicant; 4. 7 October 2020 letter from Mr Vuletich to the Applicant; 5. The Council's First Decision of 10 November 2020; 6. The redacted version of the JV Mark Up of 13 July 2020 File Note (as provided to the Applicant on 15 September 2021); 7. The redacted version of the JV Investigation Notes (as provided to the Applicant on 15 September 2021); and 8. The redacted version of the Marked Up JV Mud Map (provided to the Applicant on 15 September 2021). 1. The Respondent's written submissions of 11 March 2022. 2. Confidential information comprised of the unredacted versions of the Three Documents, for review by the Tribunal member only, not to be released to the Applicant. 3. A copy of the decision in Winn v The Hills Shire Council [2020] NSWCATAD 14 ("Winn"), relied on by the Respondent.
The Tribunal also had before it a letter dated 28 October 2021 from the IPC advising that it did not intend to appear or file submissions.
The Tribunal also had before it the complete case file from the First NCAT Proceeding (NCAT Case No. 2021/00177722).
At the hearing on 7 April 2022, the Applicant appeared for herself via telephone, accompanied by her husband for support. The Respondent appeared via telephone, represented by Ms Gigi Au of Matthews Folbigg Lawyers. Also in attendance was Ms Orr from the Council.
The Respondent's legal representative, Ms Au, informed the Tribunal that they were prepared to make Mr Vuletich available for cross-examination. The Applicant confirmed that she did not wish to cross-examine Mr Vuletich. Accordingly no witnesses were required for cross-examination.
An order was made during the hearing, pursuant to section 49(2) of the CAT Act, that a portion of the hearing be conducted in private as it was desirable to do so by reason of the confidential nature of the unredacted versions of the Three Documents. The Tribunal explained to the Applicant that section 107 of the GIPA Act also allows the hearing to go into confidential session to ensure that the Tribunal does not disclose any information for which there is an overriding public interest against disclosure. The Applicant confirmed that she understood the need to hold part of the hearing in private.
Under section 64 of the CAT Act, the material filed by the Council on a confidential basis and the record of that part of the proceedings conducted in private are not to be released to either the applicant or to the public. That order also applies to those portions of paragraph 57 of these reasons identified as "[NOT FOR PUBLICATION]".

Relevant Legislation

The object of the GIPA Act, as set out in section 3, is to open government to the public. This is done by authorising and encouraging the proactive release of information by agencies and by giving members of the public an enforceable right to access government information. Access to government information is to be restricted only when there is an overriding public interest against disclosure.
The parties do not dispute that the information the subject of this application is government information that is held by an agency within the meaning of section 4(1) of the GIPA Act.
Section 5 of the GIPA Act contains a presumption in favour of the disclosure of government information unless there is an "overriding public interest against disclosure".
There is a general public interest in favour of disclosure of government information, as set out in section 12(1) of the GIPA Act. Examples of public interest considerations in favour of disclosure, which are not limited, are provided in a Note to section 12, as follows: The following examples of public interest considerations in favour of disclosure of information: (a) Disclosure of the information could reasonably be expected to promote open 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 of substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.
The term "personal information" is defined in clause 4 of Schedule 4 to the GIPA Act in the following terms: (1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion…
Section 13 of the GIPA Act sets out the test that is to be applied in determining whether there is an overriding public interest against disclosure: 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.
The public interest considerations against disclosure are limited to those set out in the Table in section 14 of the GIPA Act. The considerations on which the Council relies on in this review are clauses 1(d), 1(f), 1(h), 3(a) and 3(b) of the Table, which are extracted below: 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, … (f) prejudice the effective exercise by an agency of the agency's functions, … (h) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency be revealing its purpose, conduct or results (whether or not commenced and whether or not completed). … 3 Individual rights, judicial processes and natural justice There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects - (a) reveal an individual's personal information, (b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002…
A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the principles set out in section 15 of the GIPA Act which provides as follows: 15. Principles that apply to public interest determination A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles: (a) Agencies must exercise their functions so as to promote the objection 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.
The personal factors of the application, being an applicant's identity and relationship with any other person, their motives for making the access application, and any other factors particular to the applicant, may be taken into account as factors in favour of providing an applicant with access to information (section 55(2)). Personal factors may be taken into account as factors against providing access only if relevant to a consideration referred to in (relevantly) clause 3 of the Table to section 14 (section 55(3)).
According to section 9 of the ADR Act and sections 28 and 30 of the CAT Act, the Tribunal has jurisdiction over a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review. Section 100 of the GIPA Act gives this Tribunal jurisdiction, as it allows "a person who is aggrieved by a reviewable decision of an agency" to "apply to NCAT for an administrative review under the ADR Act of the decision".
The onus of establishing that an agency's decision is justified lies on the agency, as stated in section 105(1) of the GIPA Act.
In determining an application for administrative review, section 63 of the ADR Act provides that this Tribunal is to decide what "the correct and preferable decision" is having regard to "any relevant factual material, and any applicable written or unwritten law". The Tribunal may decide to affirm the decision, to vary the decision, to set aside the decision and make a decision in substitution, or remit the matter for reconsideration by the administrator (ADR Act, s 63(3)).
Under section 38(2) of the CAT Act, the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. The Tribunal has to consider all of the evidence in the exercise of its discretion.
Finally, section 64 of the CAT Act provides that if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence, it may make an order prohibiting or restricting the publication or the disclosure of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence, in relation to the proceedings.

The Requested Documents

The documents requested by Mrs Anicic in the present proceedings are the unredacted versions of the following Three Documents: 1. JV Mark Up of 13 July 2020 File Note (Requested Document 1). This document is a version of a contemporaneous file note taken by Mr Bono after the 13 July 2020 telephone conversation with the Applicant. The file note was retrieved by Mr Vuletich from the Council's electronic record system as part of his investigation of the Applicant's complaint and then he "scribbled some notes" on it having conducted confidential interviews with Mr Bono, Mr Donni and a number of other Council officers (JV Affidavit at [13]). Mr Vuletich states that "these notes do not represent the full account of my interviews with the Council officers." Together with his scribbled notes, this is the JV Mark Up of 13 July 2020 File Note. There are two sets of redactions which, according to the Council, reflect what Mr Vuletich considered in his assessment and determination of a complaint in relation to the 13 July 2020 Conversation. First, a portion of Mr Bono's original file note is redacted, including reference by name to certain council officers [NOT FOR PUBLICATION] . Second, some of Mr Vuletich's handwritten notes on Mr Bono's file note are redacted, blocking out the initials of the council workers with whom Mr Vuletich sought to speak with about the 13 July 2020 conversation. 2. JV Investigation Note (Requested Document 2) This is a handwritten document created by Mr Vuletich during his investigation of the Applicant's complaint in relation to the 13 July Conversation. Mr Vuletich says that during and after the interviews he conducted as part of his investigation: "I wrote some of my findings on a piece of paper, including information obtained from various Council officers". That is the piece of paper described as "JV Investigation Note". Because he had written the date and time of the conversation that was the subject of the complaint he was investigating, i.e. "13 July 2020 @ about 1:00pm", this document has been previously referred to (including by the Applicant) as "a handwritten note dated 13 July 2020". However, it is clear from Mr Vuletich's evidence that the note was in fact written by him in late September 2020. As Mr Vuletich states, "these notes do not represent the full account of my interviews with the Council Officers". Again, there are two sets of redactions. [NOT FOR PUBLICATION] and another containing identifying initials of council officers with whom Mr Vuletich would speak as part of his investigation. 3. Marked Up JV Mud Map (Requested Document 3): This is a handwritten document created by Mr Vuletich in preparation for his meeting with the Applicant on 30 September 2020. As Mr Vuletich says: "Prior to the meeting, I wrote some notes in my notebook to remind myself of the findings and outcomes of my investigations. These notes represented a mud map of my investigation enquiries and a reminder to myself as to what I planned to discuss during the scheduled meeting with the Applicant... I have always intended for the JV Mud Map to be for my own use only. I never intended for this document to be used as a record or a report for others to review. This is because they do not represent the full account of my investigations." He explains that he also marked up the Mud Map during the meeting, and that it contains information obtained in confidence from individuals as part of his investigation. The redactions include [NOT FOR PUBLICATION] and the initials of those Council Officers who supplied the information in confidence to Mr Vuletich.
According to Mr Vuletich, the unredacted content of the Three Documents that was disclosed to Mrs Anicic was information already within Mrs Anicic's knowledge (JV Affidavit at [33]).

Discussion and findings

In accordance with the principles established in Commissioner of Police, NSW Police Force v Camilleri [2012] NSWADTAP 19, in determining this application, the Tribunal is required to: (1) Identify the public interest considerations in favour of disclosure of the information; (2) Consider whether the information in issue, if released, would give rise to a public interest against disclosure on the grounds that release of the information could reasonably be expected to have the effect as contended by the respondent; and (3) If so satisfied, consider where the balance lies between the public interest considerations in favour of disclosure and those against disclosure, having attributed weight to each consideration, and taking into account the personal factors identified under, and as permitted by s.55.
While that process requires a broad value judgment to be made, it is not made in a vacuum, but having regard to the objects of the legislation, the general presumption in favour of disclosure of government information, and the principles set out in section 15 of the GIPA Act (Transport for NSW v Searle [2018] NSWCATAP 93 ("Searle") at [104]).
The Tribunal will now apply these principles to the question of whether the Council should disclose the unredacted portions of the Three Documents.

Public interest considerations in favour of disclosure:

In its Decision, the Council identified, in addition to the general public interest in favour of disclosing government information, the following public interest considerations in favour of disclosure of the unredacted Three Documents: • promote open discussion of public affairs, enhance government accountability or contribute to positive and informed debate of issues of public importance (section 12(2)(a) of GIPA Act); • 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 (section 12(2)(b) of the GIPA Act); • disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds (section 12(2)(c)).
Mrs Anicic cited the same three factors and pointed also to considerations that: • the information is personal information of the person to whom it is to be disclosed; (section 12(2)(d)); and • revealing or substantiating that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct (section 12(2)(e)).
As to the personal factors that might be taken into account in favour of disclosure pursuant to section 55 of the GIPA Act, the Council has noted that the information that Mrs Anicic seeks access to relates to a conversation she had with a Council officer arising from a complaint that she lodged with Council in relation to her property. However, the Council submitted that some information was previously released to Mrs Anicic following the First GIPA Application (and settlement of the First NCAT Application) and additional information was also communicated to her via other correspondence from the Council.
In her written submissions, Mrs Anicic did not specify the personal factors favouring disclosure beyond stating that "it's important for me to obtain these three documents with redactions removed and no conditions attached as they will reveal the truth that no threats were made." At the hearing, she reiterated that she was most concerned about any accusation that she had made "threatening comments" (Council's letter of 14 August 2020). She added that she was concerned to protect herself against other litigation as it is an offence to threaten someone which can attract penalties including a fine.
The Council observed that such concerns were unfounded. There was no mention of her making threatening comments at any time after the reference in the 14 August 2020 letter. There is no accusation, no litigation and no evidence of any concern or action presently against Mrs Anicic. The only follow-up action taken by the Council was in fact with respect to the conduct of Council's own staff members, not Mrs Anicic. The investigation to which the Three Documents relate was about the conduct of the staff members, it was not an investigation about Mrs Anicic or her conduct. An apology was already issued to Mrs Anicic and nothing in the subsequent correspondence of the Council contained any accusation about her conduct.
The Tribunal accepts that the first two bullet points in paragraph 62 above are relevant public interest considerations in favour of disclosure, and that disclosure might also facilitate public scrutiny of and promote transparency in the Council's decision-making processes including in respect of its handling of complaints against staff. The Tribunal is not convinced that disclosure of the redacted information in the Three Documents in the present case could itself have any bearing on the effective oversight of the expenditure of public funds.
The Tribunal also accepts that there is a degree of personal information involved insofar as the Three Documents stemmed from complaints by Mrs Anicic herself about stormwater near her property, and complaints about her treatment by officers of the Council when she raised them. She also has a personal curiosity in understanding the perception by others of the conversation she had with a Council officer two years ago.
The Tribunal notes, however, that most of the content of the Three Documents in question has already been disclosed to the Applicant and such disclosure largely fulfilled the public interest considerations above. In this proceeding, the Tribunal needs to determine how any public interest factors in favour of disclosure of the redacted portions of the Three Documents are to be balanced with the public interest considerations against disclosure. It is to those considerations that the Tribunal now turns.

Public interest considerations against disclosure

The public interest considerations against disclosure on which the Council relies are framed in terms of whether disclosure of the information "could reasonably be expected" to have the relevant effect. The principles to be applied in considering that test were summarised as follows in Searle at [68] (internal citations omitted): The words "could reasonably be expected" are to be given their ordinary meaning. They require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that disclosure would have the relevant effect… In order to discharge the onus, [the agency] needed to show more than a mere possibility, risk or chance of prejudice. It must be based on real and substantial grounds… It will not be sufficient for the decision-maker to proffer the view. It must be supported in some way... "Prejudice" is to be given its ordinary meaning, that is, to cause detriment or disadvantage, or to impede or derogate from…
Whether disclosure of the information "could reasonably be expected to" have the stated effect is a question of fact to be established to the relevant standard of proof, on the balance of probabilities (Winn at [46]).
Mrs Anicic did not in her oral or written submissions directly address how each of the public interest considerations against disclosure should apply to the requested documents. She did, however, submit that in applying the public interest test, agencies are not to take into account that:

disclosure might cause embarrassment to, or loss of confidence in, the government or an agency;
any information disclosed might be misinterpreted or misunderstood by any person; and
disclosure cannot be made subject to any conditions on the use or disclosure of the information.

Mrs Anicic also stated that she relies on the First and Second IPC Review Reports. In that respect, the Tribunal observes that the IPC recommended that the Council follow a particular method and provide greater justification for each of the public interest considerations claimed. The IPC did not recommend actual disclosure or any particular outcome for Mrs Anicic's GIPA Application.

Clause 1(d) - whether disclosure could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions

Clause 1(d) applies if the Tribunal is satisfied that (1) the information was obtained in confidence, (2) that the disclosure of information could reasonably be expected to prejudice the supply of information to the agency in the future and (3) that the information facilitates the effective exercise of the agency's function.
The Council submits that Clause 1(d) is applicable to all of the unredacted Three Documents. It submits that they all contain information that was obtained in confidence, disclosure could reasonably be expected to prejudice the supply of such information in the future, and the information facilitates the effective exercise of the following functions of the Council:

Internal investigative functions in relation to the Respondent's staff;
Management and employment of the Respondent's staff
Complaint handling in relation to the Respondent's staff

The relevant principles to be applied in considering clause 1(d) were summarised in Ansoul v City of Sydney [2017] NSWCATAD 65 in the following terms (internal citations omitted) (see also Winn at [51]): 33. "Prejudice" under the GIPA Act has been held to have the same meaning as under the repealed Freedom of Information Act 1989, which is its ordinary meaning, that is, " to cause detriment or disadvantage " or "to impede or derogate from... 34. In Commissioner of Police, New South Wales Police Force v Camilleri [2013] NSWADT 80 the Appeal Panel stated that the question as to whether information is "confidential information" is to "be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received". The inquiry "should focus on the point of receipt, and the administrative standards and community understandings which surround it"… 36. In determining whether disclosure would reasonably be expected to prejudice the supply of information, the test is whether information of the kind in question facilitates the exercise of the respondent's functions and, whether the disclosure of such information could reasonably be expected to prejudice the supply of such information...
In respect of Requested Document 1, the Council submits that disclosing the information could reveal to the public the Respondent's method of assessment and the matters considered by the Respondent in an investigation. This in turn could adversely affect the Respondent's effective exercise of its investigative functions, complaint handling functions and unfettered discretion. It could result in unnecessary criticism of the Respondent's investigation process which is not in the public interest. The Respondent submits that internal investigative functions should remain independent and impartial without fear of the public's interference. It is also argues that it is reasonable to expect that the disclosure of such information would prejudice the Respondent's ability in exercising its discretion with regards to staff discipline and management.
The Tribunal notes that Mr Vuletich has almost half a century of experience working for the Council, with increasing responsibilities, including as to investigations of complaints from the public. His statement was unchallenged. The Tribunal accepts his unchallenged evidence that he "advised each interviewee that all information collected would be kept confidential and would be used for my investigation and assessment of the Complaints only" (JV affidavit at [37]) as well as his stated concerns "that if information collected in confidence is released to a third party, including members of the public, this will discourage staff members from cooperating and providing information in future investigations." (JV Affidavit at [38]). The Tribunal agrees with Mr Vuletich that disclosure of information collected on the undertaking of confidence could "adversely impact the effective management of staff and staff performance" (JV Affidavit at [38]) because a breach of that undertaking would deter staff from assisting in future investigations of complaints, making it more difficult for Council to carry out its function of effective management of staff performance.
The Tribunal accepts that the redacted handwritten notes taken by Mr Vuletich on Requested Document 1 show the identities of which staff he wished to interview in the investigation of the Council officers. That information was provided to him in the course of interviewing others. All interviews were, according to Mr Vuletich, conducted confidentially. He assured his interview subjects that he would "not communicate the information collected to others." In these circumstances, the Tribunal accepts that disclosure of the handwritten notes on Requested Document 1 could reasonably be expected to have an adverse impact on the willingness of staff to supply confidential information that facilitates the effective exercise of the Council's function with respect to investigating staff complaints. The same consideration, albeit in a slightly different context, applies to the other redacted portion of Requested Document 1, concerning an original typed portion of Mr Bono's file note. While those redacted words were not written by Mr Vuletich in the context of his investigation into Mr Bono, they were made by Mr Bono in connection with his own investigation into Mrs Anicic's original complaint about the stormwater and his reaction to her complaints about his behaviour in responding to her. Mr Bono had sought the contemporaneous input of other Council officers in connection with the Applicant's complaints. The Tribunal accepts that the input provided by the Council officers at the time, which was incorporated into the 13 July 2020 File Note, was also supplied in confidence, albeit at an earlier time and in a different context from Mr Vuletich's handwritten notes. The context was for purposes of recording and responding to complaints by a member of the public about the conduct of a Council officer. The Tribunal finds that the disclosure of that redacted information could also reasonably be expected to prejudice the effective exercise of the complaint handing functions of Council.
With respect to Requested Document 2, the Tribunal accepts that these handwritten notes were taken by Mr Vuletich as part of his investigation into Mrs Anicic's complaints about Mr Bono and Mr Donni. The redacted portions of the document contain information Mr Vuletich obtained in confidence from Council employees as part of his investigation into the complaint, and also information about the identity of those staff members. The notes were created for the personal use of Mr Vuletich only and not intended to record a full account of the investigation process. The Tribunal accepts that disclosing such information could discourage employees providing information in the future to assist with the investigation of complaints, if information provided in confidence could potentially be released or disclosed to the public or other members of staff. This would lead, in turn, to the inability of the Council to exercise its internal investigation and complaint handling functions effectively. Disclosure would also reveal methods of assessment, and thus adversely impact on the Council's investigative functions, complaint handling functions and discretion in handling complaints from the public about staff.
Similar reasoning applies to Requested Document 3. The document contains information considered relevant by Mr Vuletich during his investigations of the complaint, and reveals the method of his investigative process. The investigation including the redacted information, which obtained in confidence from Council officers. It also contains information about their identity.
The Tribunal accepts, based on Mr Vuletich's evidence as to his consultations and methods of investigations, that information was from staff members was provided on the understanding that it would be kept confidential.
The Tribunal accepts that managing complaints about behaviour and actions of staff is a part of dealing with issues that may affect the effective functioning of the Council's administrative functions, including effective management of staff. As was noted in Ansoul and Winn [57], the absence of any coercive powers with respect to obtaining information from staff members in relation to such matters, an agency may need to rely on the cooperation of its staff members to come forward with relevant information; and staff may be reluctant to do so without some assurance of confidentiality. The Tribunal is satisfied that in that context, disclosure of information received in confidence may prejudice the agency from performing its functions effectively and efficiently. That is applicable to redacted portions in all Three Documents which contain information provided to Mr Vuletich on the expectation of confidentiality.
In relation to redacted portions in all Three Documents which contain names or initials of Council officers, the Tribunal is likewise satisfied that if such information were to be released, it is likely that in future staff would be more reluctant to provide information about complaints from members of the public. That would prejudice supply to the Council of confidential information that facilitates the effective exercise of the agency's functions.

Clause 1(f) - whether disclosure could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions

The Council submits that disclosure of Requested Documents 2 and 3 would prejudice the Council's functions for all the same reasons as identified above with respect to Clause 1(d), in particular its complaint handling functions with regards to the alleged conduct of its employees and internal investigative functions and management of staff.
The Tribunal agrees that the ability to obtain information (including, but not limited to, sensitive and confidential information) is crucial to the effective exercise of in the Council's investigative functions in relation to complaints against staff. As set out in relation to clause 1(d), disclosure of the unredacted portions of the requested documents could undermine the confidence of staff in the complaints management and investigation process and inhibit cooperation in future investigations. That would adversely impact the Council's effective exercise of its complaint-handling and staff management functions. As the redacted portions of the JV Investigative Note and Marked Up JV Mud Map reflect information provided in the context of an investigation, their disclosure could reasonably be expected to prejudice the supply of information of this kind in the future, adversely affecting the Council's ability to identify and deal with incidents of alleged staff misconduct and staff management generally.

Clause 1(h) - whether disclosure could reasonably be expected to prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced or whether or not completed)

The Respondent submits that disclosure of the unredacted portions of all Three Documents would prejudice the conduct, effectiveness or integrity of the investigation conducted by the Respondent by revealing its purpose, conduct or results even when the investigation is completed. The Respondent submits that although the investigation of the complaint is complete and a letter was sent to the Applicant on 7 October 2020 advising the outcome of the assessment, the substance of the evidence and information obtained during investigations, including the identity of the Respondent's employees who provided information in confidence during the course of the investigation, details of the information, the consideration of the information during the assessment process and the reasoning of the outcome, were not disclosed to the Applicant or other employees of the Council.
The Council repeated its arguments with respect to clauses 1(d) and (f) and pointed out that the requested documents should not be disclosed because: (1) They contain information relating to workplace investigations, which are conducted confidentially to encourage witnesses to supply information relevant to the complaint. These factors warrant protection and it is desirable that witnesses can come forward with confidence that their personal details will not be disclosed. Disclosure could discourage witnesses from providing information in the future which could in turn adversely impact on the effectiveness of workplace investigations for the Respondent. (2) The information contained in Documents 2 and 3, if disclosed, would reveal the methodology in which an internal (possibly disciplinary) matter is investigated. It would also reveal the conduct and results of the investigation. It is reasonable to expect the disclosure to prejudice the conduct, effectiveness and integrity of Councils internal investigation functions in the future, harm the integrity and effective exercise of its staff management function. The Respondent claims it is essential to the maintenance of the integrity of the Respondent and for overall benefit of the public, that the public not know the internal workings of such investigations.
In his affidavit, Mr Vuletich expressed "concerns that releasing information collected during an investigation will jeopardise and compromise the integrity of the investigation and unnecessarily inform Council staff of information that should only be known to the management level of Council." (JV Affidavit at [39]).
As discussed above in relation to clauses 1(d) and (f), the confidentiality of the complaints management and investigation process is fundamental to the proper conduct of that process. The Tribunal accepts the evidence of Mr Vuletich, and finds that disclosure of the redacted information in all Three Documents could be reasonably expected to prejudice the conduct, effectiveness or integrity of investigations or review of staff conduct conducted by or on behalf of the Council, by revealing its purpose, conduct or results.

Clause 3(a) - whether disclosure could reasonably be expected to reveal an individual's personal information

Personal information is defined in Schedule 4(4)(1) of the GIPA Act as: Information or an opinion … about an individual (whether living or dead), whose identity is apparent or can reasonably be ascertained from the information or opinion.
The Tribunal finds that redacted portions of all Three Documents contain the initials or names of Council officers (who provided information in confidence during the investigation process) from which the identity of the individuals is apparent and can reasonably be ascertained.
As such, the release of the information could reasonably be expected to expose the identity of the employees who assisted during the investigation of this complaint. The Tribunal also notes that their identity is irrelevant to the outcome of the investigation and of the Applicant's complaints (both the initial stormwater complaint and the complaints against Mr Bono and Mr Donni).
The Tribunal recalls that Mrs Anicic has made complaints to the Council about stormwater issues on more than one occasion, remains a resident of the area, and that there are a limited number of officers employed by the Council. While the Respondent and Mr Vuletich expressed "concerns that releasing the information with regards to the identity(s) of the officers who had assisted during the investigation process could expose these officers to possible intimidation or harassment", the Tribunal need not make that finding for purposes of establishing the criteria in clause 3(a) is met in the present case.

Clause 3(b) - whether disclosure could lead to contravention of an information protection principle under the Privacy and Personal Information Protection Act 1998

Part 2 of the PPIP Act sets out the information protection principles. Section 18 prescribes the limits on disclosure of personal information as follows: (1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless: (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware of, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.
"Personal information" has the same meaning in the PPIP Act as it does in the GIPA Act. As with clause 3(a), the Tribunal accepts that all Three Documents contain redacted initials and names of Council officers who provided information in the Council's investigation of Mrs Anicic's complaints, contain personal information covered by the information protection principle under section 18 of the PIPP Act. The Tribunal finds that none of the exceptions in section 18 are applicable in the present case.
As such, disclosure of redacted information in all Three Documents will contravene an information protection principle under the PIPP Act and the public interest consideration against disclosure in clause 3(b) applies to those portions of the Three Documents containing the personal information of the named or identifiable individuals.

Whether the public interest considerations against disclosure, on balance, outweigh the public interest considerations in favour of disclosure

The redacted information in the Three Documents contains information provided by Council officers in the context of complaints handling as well as personal information about some of those who provided information.
As noted at paragraph 41 above, the redacted information was addressed in a confidential session. Having considered the requested documents, the Tribunal gives significant weight to the public interests against disclosure in clause 1(d) of the Table to section 14(2), that is, that disclosure could reasonably be expected to prejudice supply to an agency of confidential information that facilitates the effective exercise of that agent's functions, as well as to the public interests against disclosure in clauses 1(f) and 1(h), particularly concerning the integrity of investigations. Mr Vuletich's unchallenged evidence confirms that the Council staff members who provided information did so on the understanding that the information would be treated as confidential.
The Tribunal is satisfied that effectively managing complaints about the behaviour and actions of staff outweighs the public interests in favour of disclosure in the present case. This is particularly so when the Applicant has already been provided with documents as a result of her First and Second GIPA Applications and settlement of the First NCAT Proceeding. The public interest considerations against disclosure of the remaining detail in the redacted portions of the Three Documents outweigh those considerations in favour of disclosure, particularly as some of that information contains personal information of Council employees. Further, while acknowledging that the documents contain personal information of Mrs Anicic, the documents contain personal information of others, and the Tribunal is satisfied that given the nature of the documents, and the context, redaction of the names and initials of the persons concerned is appropriate and should be maintained in order to protect their personal information.
As to the concerns expressed by Mrs Anicic at the hearing about further action being taken against her for any allegedly threatening remarks she made in July 2020, in circumstances where there has been no action taken or interest expressed by Council in pursuing it, the Tribunal is not persuaded that these concerns are realistic or well-founded. The Council already apologised to her and focused on investigating its own staff members, not Mrs Anicic. The Tribunal considers that her continued personal curiosity in that regard is insufficient to outweigh the significant public interest considerations against disclosure set out above.
The Tribunal is satisfied that the public interest considerations against disclosure of the unredacted portions of the Three Documents outweigh those in favour of disclosure. The Council has thus satisfied the burden placed on it by section 105 in relation to all the redacted portions in all Three Documents.

Conclusion

Based on all the considerations set out above, and having regard to the material before me, I am satisfied that the correct and preferable decision is to affirm the Decision of the Council not to disclose to the Applicant the redacted portions of the Three Documents.

Orders

The Tribunal makes the following orders: 1. The Decision under review is affirmed. 2. Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013, disclosure of (a) the material filed by the Respondent on a confidential basis, (b) those portions of paragraph 57 of these reasons identified as [NOT FOR PUBLICATION], (c) the submissions made in private before the Tribunal, and (d) the record of that part of the proceedings conducted in private pursuant to section 49 of the Civil and Administrative Tribunal Act 2013, is prohibited. That material is not to be released to the Applicant or the public.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 June 2022

Privacy and Personal Information Protection Act 2002(NSW)

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Judgment (23 paragraphs)

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Legislation Cited (5)

Cases Cited (3)