Ansoul v City of Sydney

NCAT Administrative and Equal Opportunity|2016-12-12

Introduction

Mr James Ansoul has applied to the Tribunal for review of a decision made by the City of Sydney (Council) under the Government Information (Public Access) Act 2009 (the GIPA Act) refusing him access to in part to documents within the Council's possession.
Mr Ansoul had originally applied for access to: 1. A copy of the Warfield Report dated 2012; 2. A copy of any recommendations made to the Council by Warfield & Associates following their investigation of the City Rangers Unit in 2012; 3. A copy of any drafts of the Warfield Report; and 4. A copy of the redacted Warfield Report referred to in a Council Meeting on 23 February 2015.
The City of Sydney initially refused access to the Warfield Report and the redacted Warfield Report that had been referred to in a Council Meeting on 23 February 2015. The recommendations made to Council as included in the Council Report dated 25 August 2014 were released to Mr Ansoul. The table of recommendations also included "actions implemented" and these were also released. No drafts of the Warfield Report were held by Council.
Mr Ansoul then sought internal review of the decision in relation to the Warfield Report. Following the review, the Warfield Report was released in part and access to the redacted Warfield Report that had been referred to in a Council Meeting on 23 February 2015 was refused.
Mr Ansoul then asked the Information and Privacy Commission to review the Council's decision. The Information and Privacy Commission recommended that Council make a new decision. On 11 March 2016 Council released a copy of the Wakefield Report which disclosed further information.

Legislation

The objects of the GIPA Act as set out in s 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.
It was not disputed that the information the subject of this application is government information that is held by an agency: s 4(1) of the GIPA Act. The definition of "agency" in the GIPA Act includes a council within the meaning of the Local Government Act 1993.
There is a presumption in favour of the disclosure of government information unless there is an "overriding public interest against disclosure": s 5 of the GIPA Act.
There is a general public interest in favour of disclosure of government information: s 12 GIPA Act. However, there can be an overriding public interest against disclosure. 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: 13 Public interest test There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interests considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure
The public interest considerations against disclosure are set out in a Table in s 14 of the GIPA Act, and, as relevant, are discussed below.
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 s 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 object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
In determining whether there is an overriding public interest against disclosure of government information, the personal factors of the applicant may be taken into account: s 55 of the GIPA Act. It is for the respondent agency to establish that its decision is justified: s 105 of the GIPA Act.

The evidence

The respondent's evidence consisted of affidavits of Leander Klohs, Susan Pettifer and Brett Warfield. Affidavits were provided to the Tribunal and Mr Ansoul in redacted form. A confidential copy of the affidavits, containing some additional information, was also before the Tribunal.
Mr Ansoul tendered an affidavit of Edward Henry Mandla, a former City of Sydney Councillor. The respondent objected to the affidavit but it was allowed into evidence and the respondent advised it could make submissions as to its relevance and weight.

Confidential hearing

A confidential session was held in the absence of the applicant and the public. The confidential session gave the Tribunal an opportunity to examine the unredacted Warfield Report and the confidential affidavits in the presence of the respondent. This process is provided for in s 107 of the GIPA Act.
I made an order under s 64 of the Civil and Administrative Tribunal Act 2013 that the material filed by the respondents 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. The order also applies to those portions of these reasons identified as [Not for publication].

The issues before the Tribunal

In deciding whether or not to release the Warfield Report, the task of the Tribunal is first, to identify the public interest considerations in favour of disclosure. Secondly, to identify the public interest considerations against disclosure. Specifically, this will require me to determine whether the redacted portions of the Warfield Report contain information which, if released, would give rise to a public interest against disclosure on the grounds that release could reasonably be expected to: 1. prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions (s 14, Table 1(d)); 2. prejudice the effective exercise by an agency of the agency's functions (s 14, Table 1(f)); 3. found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence (s 14, Table 1(g)); 4. reveal an individual's personal information (s 14, Table 3(a)); 5. 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 (s 14, Table 3(b)); 6. expose a person to a risk of harm or of serious harassment or serious intimidation (s 14, Table 3(f)); and 7. prejudice any person's legitimate business, commercial, professional or financial interests (s 14, table 4(d).
Thirdly, I must determine the weight of the public interest considerations in favour of disclosure and of those against disclosure in order to determine where the balance between those interests lies.

Public interest considerations in favour of disclosure

Section 12 of the GIPA Act sets out the general presumption in favour of disclosure of government information and lists examples of public interest considerations that favour disclosure. Both parties referred to the statutory presumption. The respondent also referred to the general right of the public to have access to government information held in agencies.
The applicant contended that there is considerable public interest in disclosure of the report. This is because the City Rangers unit and the Council in general perform important functions within the City of Sydney which are relevant to the daily lives of the people who are affected by them. There is therefore a public interest in having its affairs as open as possible to scrutiny. This is particularly the case where the results of such scrutiny may not be flattering.
I accept that issues of the management of the City Rangers unit are a matter of public importance. Indeed, this was a matter referred to by Ms Klohs in her evidence to the Tribunal. I therefore accept that this consideration applies as a public interest consideration in favour of disclosure.

Public interest considerations against disclosure

Each of the considerations against disclosure set out in the table to s 14 of the GIPA Act have the requirement that disclosure of the information could reasonably be expected to have the nominated effect.
The words "could reasonably be expected to" are to be given their ordinary meaning (Attorney-General's Department v Cockcroft (1986) 10 FCR 180). In that case, Bowen CJ and Beaumont J explained, at 190, that the words: ... 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 those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like.
In Leech v Sydney Water Corporation [2010] NSWADT 298 the Tribunal referred to a number of cases which had considered the term "could reasonably be expected to" and stated at [25]: "[25] … The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC."
The public interest considerations against disclosure require an objective assessment as to whether the claimed effects could be expected to arise. This is ultimately a question of fact to be established to the relevant standard of proof, on the balance of probabilities (Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42].

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

Clause 1 of the table to section 14 provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to prejudice various matters. The respondent submitted that disclosure of a significant portion of the withheld information could reasonably be expected to prejudice the supply to it of confidential information that facilitates the effective exercise of its functions.
The applicant's representative argued that 1(d) (and clause 1(f) discussed below) have no application in the present matter because the management of employee complaints is not a function of Council. The applicant argues that the Council is the agency for the purposes of the GIPA Act and the Council's functions are set out in the Local Government Act 1993 but nowhere in the Local Government Act is the management of employee complaints prescribed as a function of Council.
The respondent referred to a number of provisions in Chapter 5 of the Local Government Act which set out the functions of a council. Section 21 of that Act states that a council has "the functions conferred or imposed on it by or under this Act". Section 23 states that a council also has functions "conferred or imposed on it by or under any other Act or law". Importantly, a note to s 22 refers to s 50(1)(e) of the Interpretation Act 1987 which provides that a statutory corporation 'may do and suffer all other things that bodies corporate may, by law, do and suffer and that are necessary for, or incidental to, the exercise of its functions".
In addition, s 23 of the Local Government Act specifically provides that a council "may do all such things as are supplemental or incidental to, or consequential on, the exercise of its functions". Furthermore, the note to Chapter 5 of the Local Government Act states that among a council's functions are "administrative functions" which include the employment of staff.
I am satisfied that the employment and therefore management of staff, including the ability to deal with complaints and allegations of misbehaviour, harassment and bullying, form part of the Council's functions. Therefore, clauses 1d) and 1(f) are applicable to this application.
"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": Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60].
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".
In Macquarie University v Howell (No 2) [2009] NSWADTAP 19 at [10] the Appeal Panel said: "In our view, the Tribunal is required to engage in a relatively abstract analysis. The Tribunal needs to characterise the nature of the material sought to be protected on the present occasion; identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; and consider the extent to which guarantees of confidentiality may be necessary. It is then necessary to evaluate the effect on the agency's ability in future to obtain similar information."
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: Flack v Commissioner of Police, New South Wales Police Force [2011] NSWADT 286 at [52].
The evidence given by the respondent's witnesses was that relevant Council policies relating to staff grievances and allegations of harassment and bullying provide that complaints are treated confidentially. In relation to the particular investigation by Warfield & Associates into such allegations, assurances were given by Council's Manager of Human Resources, Operations and by Mr Warfield that any discussions staff had with Mr Warfield would be confidential.
The effective performance of an agency's functions depends to a significant extent on the performance and management of its staff. Where concerns are raised about issues which may impede the effective functioning of a unit within the agency, management may well undertake investigations into the behavior and actions of staff in order to understand the issues and develop solutions. As part of this process they may rely on the cooperation of those who have relevant information to come forward with information concerning complaints about staff behaviour and performance. In the absence of any coercive powers with respect to obtaining information from staff members in relation to such matters, agencies rely on the voluntary cooperation of those individuals.
The Tribunal has regularly recognised that staff may be reluctant to provide information if there were not some assurance of confidentiality. In that context, the disclosure of information that was received in confidence may prejudice the agency from performing its functions efficiently and effectively.
In Williams v Department of Industry and Investment [2012] NSWADT 192, the Tribunal affirmed the agency's decision not to disclose transcripts of interviews between staff who had been interviewed by a consultant who had been engaged to conduct an investigation into the work performance of staff. In that case the Tribunal stated that disclosure of the transcripts could discourage future victims of workplace bullying or harassment from coming forward. The Tribunal accepted that the supply of information of that kind was necessary for the effective exercise of the respondent's functions.
Mr Warfield's report does not contain a verbatim transcript of interviews with staff. It does, however, refer to a number of staff by name or by role and at times uses direct quotes from information given at the interviews. I accept the evidence given by the respondent's Director of Workforce and Information services that many of the comments made and examples cited in the report could also readily be attributed to individuals or the identity of individuals would be known from the context within which the information in the report is presented.
Employees were advised that the information they provided to Mr Warfield would be kept confidential and, as a consequence, they were encouraged and assisted to provide information about their experiences and concerns about the workplace, mangers and colleagues. Once the report was provided to Council access to it was restricted.
I am satisfied on the basis of the evidence provided by the respondent that the withheld information contained in Mr Warfield's report was given and received in confidence. I am also satisfied that the respondent's practice in dealing with information of the sort contained in the report is to treat such information as confidential.
Ms Klohs and Ms Pettifer gave evidence that there may be a need in the future to undertake investigations into the behaviour and actions of staff as part of effective management and governance of the Council. They said that, if information in the report which is currently withheld were to be released, staff would be discouraged in the future from participating in similar sorts of exercises as assurances could not be given that that information provided by staff would remain confidential.
The respondent depends on staff to supply relevant information so that it can deal with complaints and conduct investigations into matters of concern. I do not accept the applicant's contentions that, rather than discouraging people from coming forward with their concerns, release of the withheld information would in fact encourage them to do so because they would know that their complaints would be taken seriously. I am of the view that, if the withheld information supplied to it in confidence were to be released, it is likely that, in future, staff would be more guarded in providing information and some may be reluctant to participate in any investigation altogether (see similar conclusions in Director-General, Department of Education and Training v Mullett (No 2) [2002] NSWADTAP 29 at [50]). I am satisfied that this would prejudice the supply to the Council of confidential information that facilitates the effective exercise by the Council of its functions.

1(f) prejudice the effective exercise by an agency of the agency's functions

Unlike clause 1(d), clause 1(f) of the table does not require that the information in issue was supplied in confidence. There is, however, a requirement that disclosure of the information could reasonably be expected to prejudice the exercise of the respondent's functions.
Largely for the reasons set out above, I am satisfied that release of the withheld information could reasonably be expected to prejudice the exercise of the respondent's functions in respect of the management of its staff and the appropriate investigation of complaints. I am mindful that the subject matter of Mr Warfield's investigation concerned allegations of bullying, harassment and coercion. I also accept the respondent's evidence and submissions that release of the withheld information in the Warfield report is likely to have a detrimental impact on interpersonal relationships within the City Rangers unit (particularly as many staff are still employed in the unit) and therefore on the day to day operations of that unit.

1(g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence

The applicant states that he is not seeking the information which was provided by persons interviewed by Mr Wakefield in that he is not seeking access to any records of interview or similar, but access to the report itself. However, it is apparent that the information contained in the withheld parts of the report, while not being transcripts of interviews, contains direct and indirect quotes from the interviews or is a summary of information provided in confidence for the purposes of the investigation. As stated above, I am satisfied that the information was provided in confidence. I am also satisfied that release of withheld information would result in the disclosure of information provided in confidence.

3(b) contravene an information protection privacy principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002

These two clauses concern the release of personal information. The definitions of "personal information" in the GIPA Act and in the Privacy and Personal Information Protection Act 1998 (PPIP Act) are similar. Both relevantly provide that personal information means information about an individual whose identity is apparent or can reasonably be ascertained from the information (GIPA Act Sch 4 cl 4; PPIP Act s 4).
Section 18 of the PPIP Act sets out limits on the disclosure of personal information. I have not found it necessary to address 3(b) in detail as I am satisfied that significant portions of the withheld information, if disclosed, would reveal an individual's personal information (3(a)). This is because the report contains individual names and other information which would lead to the identity of an individual being relatively easily ascertainable. This would particularly be the case if the reader of the information was a person familiar with the City Rangers unit personnel. Simply redacting the names of individuals, as suggested by the applicant, would not be sufficient.

3(f) expose a person to a risk of harm or of serious harassment or serious intimidation

There is no definition in the GIPA Act of harm, serious harassment or serious intimidation. The Tribunal has previously stated that the decision maker must be satisfied that release of the information could reasonably expose a person to intimidation or harassment that is heavy, weighty or grave, and not trifling or transient (see AEZ v Commissioner of Police [2013] NSWADT 90 at [83-84] and Zonneyville v Department of Education and Communities [2015] NSWCATAD 10 at [99]).
As evidence that releasing the report may expose staff members to a risk of serious harassment or intimidation the respondent referred to a number of pages in the unredacted report. [Not for publication]
On the basis of the information provided I am satisfied that release of the withheld information could reasonably expose a person to harm, intimidation or harassment. It is difficult, however, to ascertain whether the risk of harm, harassment or intimidation would meet the requisite level of seriousness. The applicant states, and I agree, that the respondent has not advanced any evidence as to the seriousness of any harassment or intimidation people may be exposed to. However, I am inclined to think that, given: 1. the nature of the allegations which led to the investigation (coercion, intimidation, harassment and bullying); 2. that there still appears to be a good deal of interest in the report some four years on from its publication which indicates an ongoing concern with matters which led to the investigation by Mr Warfield; and 3. while some staff have moved on, a number of staff involved with the allegations remain with the City Rangers unit, that release of the information could reasonably be expected to expose a person to intimidation or harassment that is heavy, weighty or grave, and not trifling or transient.

4(d) prejudice any person's legitimate business, commercial, professional or financial interests

Mr Warfield objects to the release of the report due to the potential impact on his business interests. His major concern, as expressed at the hearing, is that release of the report would affect the ability of Warfield & Associates to present themselves as independent investigators who are able to take into account their duty of care to all concerned. He said the no-one would have confidence that their information would remain confidential and this would affect the integrity of the investigation process. Mr Warfield also said he was concerned that release of the report would also expose Warfield & Associates to potential litigation, in particular, defamation.
Mr Warfield has a legitimate business, commercial, professional and financial interest in his role with Warfield & Associates. He states that Warfield & Associates provides forensic accounting, financial, factual, fraud and corruption risk investigation services as well as education and training services and risk management. It is apparent that they also undertake investigations of the kind which led to the creation of the report the subject of this application.
The major concern for Mr Warfield appears to be the effect upon the reputation of Warfield & Associates if information given in confidence is released. If Wakefield & Associates reputation is damaged, there would then be a consequential flow on effect to its business, commercial, professional and financial interests.
In my view it is highly unlikely that release of the report would have the effect contended by Mr Warfield and the respondent. It is clear that neither Mr Warfield himself nor Warfield & Associates could be held responsible for the release of information supplied in confidence as part of the investigation of issues at the City Rangers unit. If the information was released, the release would be a function of the laws of New South Wales with respect to access to government information and nothing to do with Warfield & Associates. That would be a fact known to those agencies (and private companies) who may in the future engage Warfield & Associates to undertake similar investigations. I am not satisfied that release of the withheld information could reasonably be expected to prejudice Mr Warfield's legitimate business, commercial, professional or financial interests.

Conclusion

The next question to determine is whether the public interest considerations against disclosure of the withheld information, on balance, outweigh the public interest considerations in favour of disclosure.
Section 105 of the GIPA Act places the burden of establishing that the decision is justified on the respondent. The respondent provided the Tribunal with a copy of the unredacted Warfield report with an indication of the basis on which parts of those documents have been withheld. This material was considered in a confidential session in which the respondent was able to refer to confidential portions of the affidavits provided by its witnesses and to explain its reasoning in regard to each item of withheld information.
I have considered the withheld information and the arguments relating to that information and my findings are set out above. The GIPA Act requires that the public interest considerations against disclosure be weighed against the public interest considerations in favour of disclosure. 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.
In my view, the respondent has satisfied the burden placed upon it by section 105. In relation to the withheld information I am satisfied that the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure. Accordingly, it is my view that the respondent's decision to refuse access to that information is the correct and preferable decision. The decision should therefore be affirmed.

Order

The decision under review is affirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 02 March 2017

At a glance

Court

Decision date

Source

Judgment (16 paragraphs)

Parties

Cases Cited (2)

Cited By (14)