Burke v Health Education and Training Institute

Relevant Legislation

1. The object of the GIPA Act is to "is to open government information to the public" in stated ways "[i]n order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective" (GIPA Act, s 3(1)).
2. The GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5).
3. A person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information (GIPA Act, s 9(1)).
4. There is a general public interest in favour of the disclosure of government information (GIPA Act, s 12(1)). Other public interest considerations in favour of the disclosure of government information may be taken into account (see GIPA Act, s 12(2)). Examples listed after s 12(2) include that disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.
5. There is an overriding public interest against disclosure of government information 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 (GIPA Act, s 13).
6. It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1 (GIPA Act, s 14(1)). Where Schedule 1 does not apply, the public interest considerations listed in the table to s 14 are the only considerations that may be taken into account as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information (GIPA Act, s 14(2)).
7. The respondent relies upon the "legal professional privilege" consideration in Schedule 1 in relation to some of the information. Clause 5 of Schedule 1 provides: 5 Legal professional privilege (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege. (2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause. (3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5.
8. The respondent also relies upon the following considerations in the table to s 14 of the GIPA Act: 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): … (f) prejudice the effective exercise by an agency of the agency's functions, (g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence, (h) 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 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, …
9. In certain circumstances, an agency is entitled to take into account the "personal factors" of an application. Subsections 55(1) to (3) of the GIPA Act provide: 55 Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section: (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14. …
10. A person who is aggrieved by a reviewable decision of an agency may apply to this Tribunal for an administrative review of the decision under the Administrative Decisions Review Act 1997 (NSW) (GIPA Act, s 100). A "reviewable decision" includes a decision to refuse to provide access to information and a decision that government information is not held by the agency (GIPA Act, s 80(d) and (e)).
11. The Tribunal's function on review under s 63 of the Administrative Decisions Review Act is to decide what the correct and preferable decision is having regard to the material before it, including any relevant factual material and any applicable written or unwritten law.
12. In proceedings to review a decision made under the GIPA Act to refuse access to government information in response to an access application, the burden of establishing that the decision is justified lies on the agency (GIPA Act, s 105(1)).

Scope of application

1. Whilst the applicant initially contended that the respondent had not conducted a sufficient search for information the subject of his application, as indicated above, the respondent conducted a further search and identified further information, some of which it provided to the applicant. In his submissions of 23 November 2015, the applicant did not contend that the respondent had not identified all the information captured by his application, but rather made submissions as to why he should be granted access to the information identified by the respondent. Paragraph 30 of those submissions refers to the results of the respondent's further search, without making any allegation that the further search was inadequate.
2. In these circumstances, I have concluded that the applicant is no longer seeking review of the implicit decision made by the respondent decision that it does not hold certain information captured by the applicant's application (including the information it did not identify in its first notice of decision but subsequently identified when the proceedings were before the Tribunal).

Legal professional privilege

1. The respondent claims that the information in documents behind tabs 49, 51, 62, 97, 99 and 154 of the 1 October 2015 decision is subject to legal professional privilege and therefore that that information is subject to a conclusive presumption of an overriding public interest against disclosure (GIPA Act, s 14(1), Sch 1, cl 5).
2. The provisions of the Evidence Act 1995 (NSW) apply to the determination of the question of whether there is a conclusive presumption that there is an overriding public interest against disclosure of information within cl 5(1) of Schedule 1 to the GIPA Act (see, for example, Starr v Superannuation Administration Corporation [2015] NSWCATAD 76 at [21]-[28]; Larsson v Office of Environment and Heritage [2014] NSWCATAD 136 at [25]; P v Western NSW Local Health District [2016] NSWCATAD 109 at [45]).
3. The respondent relies upon "advice privilege," being the privilege which is the subject of s 118 of the Evidence Act. Whilst the respondent also refers to s 119 of the Evidence Act in its submissions, on a fair reading of those submissions, the respondent is not in fact claiming "litigation privilege" under s 119. In any event, it does not make any submissions as to why litigation privilege would apply.
4. Section 118 of the Evidence Act provides as follows: 118 Legal advice Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication made between the client and a lawyer, or (b) a confidential communication made between 2 or more lawyers acting for the client, or (c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person, for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
5. The term "client" is defined in s 117(1) of the Evidence Act to include "a person or body who engages a lawyer to provide legal services."
6. Mr Deady made an affidavit on which the respondent relies ("Deady affidavit"). Mr Deady's evidence is that the documents over which privilege is claimed involve communications engaged in by the Manager Human Resources and Business Services - Corporate Services as part of her role in obtaining external and internal legal advice in relation to matters associated with the investigation process. He stated that he believed that production of these documents would result in the disclosure of confidential communications or the contents of a confidential document which have the dominant purpose of the respondent being provided with legal advice.
7. The documents behind tabs 49, 51 and 99 contain legal advice given by an external lawyer to the respondent and communications for the dominant purpose of the external lawyer providing legal advice to the respondent. The document behind tab 62 contains a request from the respondent for advice from an external lawyer. The documents behind tab 97 and 154 are internal communications communicating legal advice provided by an external lawyer within the respondent. I am satisfied, from an examination of those documents and having regard to Mr Deady's affidavit, that the provision of the information in documents 49, 51, 62, 97, 99 and 154 to the applicant would result in disclosure of a confidential communication made between the respondent, as client, and a lawyer for the dominant purpose of the lawyer providing legal advice to the respondent. The respondent has not waived privilege in these documents.
8. Accordingly, I find that there is a conclusive presumption of an overriding public interest against disclosure of the information in documents 49, 51, 62, 97, 99 and 154 of the 1 October 2015 decision (GIPA Act, s 14(1), Sch 1, cl 5). I therefore affirm the respondent's decision to refuse access to this information.
9. I now turn to the other information to which the respondent has refused access. I will first identify the applicable public interest considerations in favour of disclosure and those against disclosure, then engage in a balancing exercise to determine whether there is an overriding public interest against disclosure of that information.

Public Interest Considerations in Favour of Disclosure

1. As indicated above, there is a general public interest in favour of the disclosure of government information (GIPA Act, s 12(1)).

Applicant's personal information

1. The respondent acknowledges that there is a public interest in disclosure of some of the information sought, in that it is the applicant's personal information. I accept that this is the case.

Alleged breaches of procedural fairness

1. The applicant made extensive reference in his submissions to the respondent's alleged refusal to provide him with procedural fairness in each investigation, by failing to provide him with all relevant information. He contends that he was not provided with an opportunity to respond to all of the information that was used by O'Connell Workplace Relations in making its decision in respect of the first allegation (including all witness statements and all other relevant information). He says, in relation to the second allegation, that he was not provided with all the relevant information that was used by the investigator, HealthShare, to make a recommendation. He contends that all of the information regarding these two allegations should therefore be disclosed to him according to the principles of natural justice.
2. The applicant submitted in his application for Information Commissioner review (which he relies upon in these proceedings) that it is in the public interest for there to be transparency and fairness, including procedural fairness, in how the agency deals with its employees, in particular, in management and disciplinary processes. He also claims that there is an overriding public interest to ensure that where a person's livelihood is affected, that person should have access to information which may affect any decision which impacts upon that person's livelihood, as a matter of procedural fairness.
3. The applicant appears to be under a misapprehension that the rules of procedural fairness required the respondent to provide him with all of the information it had concerning the allegations against him (including witness statements). Procedural fairness ordinarily requires only that he be provided with adverse information that is credible, relevant and significant to the decision to be made: Kioa v West (1985) 159 CLR 550, Brennan J at 629.
4. I accept that it is in the public interest for an agency to comply with the rules of procedural fairness when conducting a workplace investigation, and that the circumstance that disclosure of information is required by those rules may be a public interest consideration in favour of disclosure of information to the person the subject of an investigation. However, there is not enough material before me for me to form a state of satisfaction that the rules of procedural fairness required disclosure of more information than was disclosed to the applicant in this case.
5. It is unclear from the material before the Tribunal exactly how much information was provided to the applicant about the allegations which had been made against him before the investigation reports were made. The Tribunal is therefore not in a position to make a finding that information that is credible, relevant and significant to the decision to be made was not provided to the applicant at the requisite time. The Tribunal is also mindful that its function when reviewing a decision under the GIPA Act is not to undertake a "collateral review of the merits or validity of official action": Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 at [24] (concerning the former Freedom of Information Act 1989 (NSW)); Raven v The University of Sydney [2015] NSWCATAD 104 at [45]; Smith v Pittwater Council [2016] NSWCATAD 67 at [11].
6. For these reasons, the Tribunal has not taken into account any public interest consideration concerning procedural fairness as a public interest consideration in favour of disclosure.

Disclosure required by policy

1. The applicant submits that disclosure of the withheld information is required by policy. It is unclear whether he is contending that this is a separate public interest consideration in favour of disclosure, or whether it is part of the procedural fairness consideration he proposes. I have, in any event, considered it separately.
2. The applicant submits, in his material filed on 6 August 2015, that the withheld information is required to be disclosed to him as per the policy PD2005_225 Managing Misconduct NSW Ministry of Health, cl 3.2.3 which, he says, provides that: "the person against whom the alleged breach of discipline is made has a right to access relevant information taken into consideration by the decision maker prior to the making of a decision (eg Letters of complaint, statements made by other staff members…)". The applicant has not provided the Tribunal with a copy of the policy on which he relies.
3. From the description of the policy given by the applicant, this appears to be an earlier version of the "Policy Directive" entitled "Managing Misconduct," a copy of which the respondent has provided to the Tribunal. This came into effect on 21 November 2014. The 2014 policy before the Tribunal provides only that the substance of the allegations must be put to the relevant staff member by the investigation (at cl 5.4).
4. Without a copy of the relevant policy on which the applicant relies (that is PD2005_225 Managing Misconduct), the Tribunal cannot be satisfied that it applied at the relevant time or times or that it required the provision of the withheld information to the applicant.
5. The applicant also relied upon cl 6.2 and cl 7.5.2 of the 2014 Policy Directive referred to above. However, these clauses merely provide for the provision of procedural fairness to the applicant. In cl 7.5.2 it is stated that the material provided to the person who is potentially the subject of an adverse finding "should be sufficient to enable the staff member to understand fully any alleged misconduct, but need not include all information in the possession of the decision-maker, particularly where the interests of other members of staff may need to be protected". For reasons given above, the Tribunal is not in a position to determine whether the material given to the applicant complied with the requirements of the Policy Directive.
6. Accordingly, the Tribunal is not persuaded that there is a public interest consideration in favour of disclosure, being that disclosure of the withheld information is required by agency policy, which is applicable in this case.

Revelation or substantiation of improper conduct

1. The applicant submits that another, particular public interest in favour of disclosure of the information is that it could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. This submission is based upon the applicant's contentions that the respondent and certain of its employees acted improperly in relation to the allegations made against him and the subsequent investigations into his conduct.
2. The applicant's allegations of misconduct or negligent, improper or unlawful conduct include that: 1. Dr Boursnell gave false evidence to the investigator; 2. Dr Boursnell lied to the applicant in a meeting when she said she did not know the outcome of the first allegation; 3. Dr Boursnell and another employee lied to the investigator during the second investigation; 4. Dr Boursnell lodged a vexatious complaint against him; 5. Ms Wood lied to the investigator when she said that no direction to discuss the Behaviour Improvement Plan was given to the applicant; 6. Ms Wood, who the applicant refers to as the "decision-maker," refused to take into account relevant information favourable to the applicant in relation to the first allegation; 7. The respondent refused to entertain his request to conduct a mediation with Dr Boursnell upon his return to work; 8. The respondent refused to provide him with the allegations against him from the time of his suspension on 12 November 2014 until mid-December 2014; 9. Mr Deady's threatening the applicant not to take notes in a meeting of 12 November 2014 is in breach of PD 2014_42; 10. The respondent failed to proceed with investigation of the second allegation in breach of cl 6.6 of PD 2014_42; 11. The respondent initially failed to conduct a reasonable search of all relevant information the subject of the applicant's request under the GIPA Act and this demonstrated a wilful intention to obstruct the work of the Information Commissioner and this Tribunal.
3. To support his allegation that Dr Boursnell gave false evidence to the investigator, the applicant relies upon a document which has been provided to him, document 160 of the 1 October 2015 decision. He says that this establishes, contrary to Dr Boursnell's evidence to the investigator, that he had performance management responsibility over the complainant. Document 160 appears to have been written by the applicant. It does not satisfy me that he had performance management responsibility over the complainant. Even if it did, and even if the applicant could establish that Dr Boursnell gave false evidence to the investigator, this is not of itself improper conduct. The applicant would need to establish that there was some deliberate falsehood or negligence involved. Further, the applicant needs to show that the withheld information could reasonably be expected to reveal or substantiate the alleged impropriety. I find that it does not.
4. The Tribunal accepts the respondent's submission that the Tribunal is not in a position to determine whether Dr Boursnell gave false evidence to the investigator, lied to the applicant in a meeting, lied to the investigator during the second investigation or lodged a vexatious complaint against the applicant. It does not have sufficient information to do so, has not heard from Dr Boursnell and is not conducting a collateral inquiry into the conduct of the investigations.
5. In support of his allegation that Ms Wood lied to the investigator, the applicant relies upon documents 135, 163 and 60 of the 1 October 2015 decision (to which he has been given access). These documents, he says, support his contention that Ms Wood directed him to discuss the Behaviour Improvement Plan with Dr Boursnell. Those documents are consistent with the applicant's position that Ms Wood contemplated that he would discuss that plan with Dr Boursnell. However, this does not necessarily mean that Ms Wood lied to the investigator. Further, the question is whether the withheld information could reasonably be expected to reveal or substantiate that Ms Wood lied to the investigator (not whether other information in the applicant's possession is indicative of that). I find that it could not.
6. The applicant's allegation that Ms Wood failed to take into account relevant information does not, even if accepted, mean that the withheld information could reasonably be expected to reveal or substantiate that Ms Wood has engaged in misconduct or negligent, improper or unlawful conduct. In any event, there is insufficient material before the Tribunal for it to determine whether Ms Wood refused or failed to take into account all of the relevant information available. The Tribunal is not satisfied that any of the withheld information could reasonably be expected to reveal or substantiate that Ms Wood unreasonably, unlawfully or negligently refused to take into account relevant information.
7. Nor am I satisfied, on the information available to me, that the respondent's refusal to conduct a mediation amounted to misconduct or negligent, improper or unlawful conduct or, relevantly, that the withheld information would reveal or substantiate that this was improper conduct. As the respondent has submitted, the applicant has not provided any evidence of such a request being made or of it being refused by the respondent. There may be many reasons why the respondent decided not to conduct a mediation, and it is not the Tribunal's role to enquire into them.
8. The respondent's refusal to provide allegations to the applicant from the time of his suspension in November 2014 until January 2015 is another matter into which the Tribunal is not required to conduct a collateral inquiry. The question for the Tribunal is whether the withheld information could reasonably be expected to reveal or substantiate that the respondent has engaged in misconduct or negligent, improper or unlawful conduct. The Tribunal does not consider, on the evidence before it, that this is so.
9. The Tribunal has insufficient evidence to determine whether Mr Deady threatened the applicant not to take notes in a meeting of 12 November 2014 and, if so, whether this was in breach of PD 2014_42, and whether respondent failed to proceed with investigation of the second allegation in breach of cl 6.6 of PD 2014_42. The Tribunal is not satisfied, however, that the withheld information could reasonably be expected to reveal or substantiate that the respondent has engaged in misconduct or negligent, improper or unlawful conduct in either respect.
10. Finally, there is nothing to suggest that the respondent's initial search for information is indicative of a wilful intention to obstruct the work of the Information Commissioner and this Tribunal. The respondent conducted a further search, by consent, with the help of clarification from the applicant of what he was seeking. It is, in any event, illogical to propose that the withheld information, which came into being before the initial search, could reveal or substantiate any improper conduct in the search itself.
11. Accordingly, the Tribunal finds that the public interest consideration relied upon by the applicant -- that disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct - is not applicable in this case.

Promotion of open discussion of public affairs and enhancement of government accountability

1. In his material filed on 6 August 2015, the applicant points to the example of a public interest consideration in favour of disclosure following s 12(2) of the GIPA Act, being that "[d]isclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance". He does not, however, explain how that public interest consideration applies to his circumstances.
2. The respondent denies that this is a public interest consideration in favour of disclosure in this case, submitting that "the information in issue concerns discrete issues pertaining to the management of and associated investigation into the alleged misconduct of an agency employee".
3. I am not satisfied that the proposed public interest consideration in favour of disclosure applies, in the absence of any explanation of why it does, and in light of the respondent's submission that it does not.

That decisions affecting persons employed with the public service be transparent

1. In his application for review filed on 22 July 2015, the applicant submits that it is in the public interest that decisions affecting persons employed with the public service be transparent and are made according to law. He repeats his concern with an alleged lack of transparency in his submissions of 23 November 2015 (see at paragraph 5) and this is also implicit in his submissions about alleged breaches of procedural fairness.
2. I am satisfied that a public interest consideration in favour of disclosure of the information sought is that decisions affecting public servants be transparent. Whilst I accept that it is also in the public interest that such decisions be made according to law, I do not find that this is a public interest consideration in favour of disclosure, because neither party has presented a case as to how disclosure would affect the lawfulness of the respondent's decisions.

Personal factors of the application

1. The respondent relies upon personal factors of the application as factors against providing access to the information sought by the applicant.
2. The personal factors of the application are: 1. the applicant's identity and relationship with any other person, 2. the applicant's motives for making the access application, 3. any other factors particular to the applicant (GIPA Act, s 55(1)).
3. The personal factors of the application may be taken into account as factors in favour of providing the applicant with access to the information (GIPA Act, s 55(2)). They may also be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 of the Table to section 14 (GIPA Act, s 55(1) and (3)).
4. The respondent relies upon the following personal factors as factors against disclosure: 1. The applicant's former role as program manager and relationships with other people, specifically, the findings of the independent investigator that he had breached the NSW Health Code of Conduct by engaging in bullying and harassing behaviour towards a colleague; 2. The applicant's motives in making the access application, specifically the risk that he may be motivated to approach and take retaliatory action against those individual participants in the investigation, particularly given the reactions expressed by certain participants in the investigation in relation to his conduct including threatening, aggressive and intimidating behaviour; and 3. That the second investigation was concluded without the applicant's cooperation and that the remedial actions proposed after the first investigation included a behavioural improvement plan which could not be implemented.
5. The respondent's assessment of the applicant's motives is speculative. There is no evidence as to his motivation in bringing the application. Accordingly, I have not taken into consideration the motives attributed to the applicant, or the risk as to what his motives might be, as the respondent has characterised them.
6. The respondent has not pointed to evidence which establishes that the second investigation was concluded without the applicant's cooperation or that the remedial actions proposed after the first investigation included a behavioural improvement plan which could not be implemented. Nor has it explained why this was the case. In the circumstances, I have not taken this into account as a factor against disclosure.
7. I accept, however, that I may take into account the first of the personal factors nominated by the respondent, but only in relation to my consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects which are referred to in clause 3 of the table to s 14 of the GIPA Act and relied upon by the respondent.
8. The applicant did not seek to rely upon any personal factors of the application as factors in favour of providing him with access to the information he seeks.

Disclose information provided in confidence (cl 1(g))

1. The respondent relies upon the public interest consideration in cl 1(g) of the table in s 14 in relation to the information in the documents behind tabs 60, 134, 139 and 142 of the 1 October 2015 decision and tabs 13, 14, 15 and 16 of the 30 June 2015 decision (which the respondent terms, collectively, the "Investigation Information"). The respondent (which bears the onus of proof) did not make any submissions as to how disclosure of that information could found an action for breach of confidence; accordingly, I have only considered whether disclosure of the information could reasonably be expected to result in the disclosure of information provided to the respondent in confidence.
2. Mr Deady's evidence is that the Investigation Information contains information about certain participants within the investigation which was provided with an expectation of confidence (Deady affidavit at [43]). Mr Deady states that: 1. The respondent's Policy Directive: Managing Misconduct (a copy of which is annexed to his affidavit and which I will refer to as the "Policy Directive") provides that those involved a potential misconduct process have the right to confidentiality and the responsibility for maintaining confidentiality; 2. The individuals involved placed trust in the respondent to maintain their confidence during and after the investigation; 3. Disclosing some of the information is likely to breach confidentiality implied in investigative activities undertaken under the Policy Directive; 4. The respondent's practice is for investigators to note that maintenance of confidentiality is part of an investigation; 5. Participants in the investigation interviews were told not to discuss the contents of the investigation with others; 6. The allegations related to alleged intimidation of others by the applicant, which increased the sensitivity of information provided to the investigator; 7. The respondent treated all of the allegations confidentially (Deady affidavit at [45]-[46]).
3. The Policy Directive provides, on page 1, as follows: "Those involved in a potential misconduct process have both the right to confidentiality and the responsibility for maintaining confidentiality, subject always to the overriding need to be able properly to undertake any inquiries or investigation that may be necessary, and to take the action required by this Policy Direction."
4. The applicant has submitted, on the issue of confidentiality: "…this extends largely to the parties to not discuss matters with each other or third parties, and not to be given information that is not relevant to their witness statement. The right to confidentiality does not imply that the investigator can refuse to supply witness statements to the respondent when information in those statements is used as evidence. Failure to supply relevant information is a breach of procedural fairness. The argument in favour of non-disclosure of the information does therefore not apply to any of the materials subject to this GIPA application, particularly, the Primary Investigation Materials."
5. That is, the applicant accepts that the investigation was conducted confidentially, or at least that information was supplied to the investigator confidentially, but makes submissions about the limits of such confidentiality. I have addressed his submissions about the requirements of procedural fairness above.
6. I am satisfied from Mr Deady's evidence, from my examination of the Policy Directive and from the documents in question themselves, that the Investigation Information was provided to the respondent in confidence. The applicant has not submitted otherwise.
7. I find that disclosure of the Investigation Information could reasonably be expected to result in the disclosure of information provided to the respondent in confidence within cl 1(g) of the table in s 14 of the GIPA Act.

Prejudice the effective exercise by the respondent of its functions (cl 1(f))

1. The respondent contends that disclosure of certain information sought by the applicant could reasonably be expected to prejudice the effective exercise by it of its functions (GIPA Act, s 14, table, cl 1(f), which I will refer to as "cl 1(f)").
2. The information which it claims that this consideration applies to is the information contained in documents behind: 1. Tabs 13, 14, 15 and 16 of the 30 June 2015 decision (which the respondent terms "Primary Investigation Materials"), which are said to contain personal opinions provided by witnesses during the course of the investigation; 2. Tabs 1, 37, 41, 42, 43, 45, 46, 47, 50, 52, 53, 54, 55, 57, 59, 83, 90, 91, 95, 100, 155 and 156 of the 1 October 2015 decision (which the respondent terms "Investigator Communications"), which are said to contain the content of management discussions with an external investigator concerning issues arising out of the external investigation; 3. Tabs 27, 78 and 134 of the 1 October 2015 decision (which the respondent terms "Management Observations"), which are said to contain direct management opinions, observations or comments about the applicant; and 4. Tabs 13, 14, 25, 30, 31, 44, 48, 58, 64, 66, 70, 71, 72, 76, 77, 78, 79, 80, 81, 82, 85, 86, 92, 94, 98, 107, 118, 120, 121, 122, 123, 137, 138, 141, 144, 145, 152 and 157 of the 1 October 2015 decision (which the respondent terms "Strategic Management Discussions"), which are said to contain internal management discussions with key internal stakeholders about the management of the investigation and the applicant's employment.
3. The respondent relies upon Mr Deady's evidence that: 1. The respondent's primary function is to provide leadership in education and training to those agencies which comprise NSW Health; 2. The respondent must ensure that it maintains a workplace culture consistent with the NSW Health Code of Conduct ("Code of Conduct") and the respondent's core values which appear within the Code of Conduct ("Core Values"); 3. The respondent has the associated function of conducting and/or managing the outcome of investigations into possible breaches of the Code of Conduct consistent with policy directives, procedures and guidelines maintained by NSW Health; and 4. The respondent has a duty to maintain a safe working environment for its employees.
4. Mr Deady's evidence, as set out in the above paragraph, was unchallenged. I accept it.
5. One of the main bases on which the respondent relies upon cl 1(f) to support its decision in respect of the Primary Investigation Materials is that information was provided to the investigator confidentially and that it could reasonably be expected that disclosure of that information would prejudice the effective exercise of the respondent's functions, in that disclosure would make others reluctant to freely provide information to an investigator in the future. Interestingly, the respondent chose not to rely upon cl 1(d) of the table in s 14 of the GIPA Act, which applies where disclosure of the relevant information could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions. Nevertheless, where the respondent is relying upon the confidentiality of information as the source of prejudice for the purposes of cl 1(f), the matters it must establish are generally similar to those applicable to cl 1(d).
6. The Primary Investigation Materials form part of the Investigation Information. As I have found above in relation to cl 1(g), information in the Primary Investigation Materials was provided to the respondent in confidence. I also accept that the policy framework and practices surrounding investigations conducted by or on behalf of the respondent are such that there is a general expectation on the part of employees that information given to an investigator will be treated confidentially.
7. Mr Deady's evidence is that it is reasonable to expect that the respondent's employees would be reluctant to participate in a full and frank manner in future investigations if the Primary Investigation Materials were disclosed. There are a number of decisions of this Tribunal and the former Administrative Decisions Tribunal which have recognised that, where information is supplied to an agency in confidence, disclosure of that information may prejudice the supply of the information in future (some of which dealt with cl 1(g)): see, for example, Williams v Department Industry and Investment [2012] NSWADT 192 at [86]; Bourke v Roads and Maritime Services [2012] NSWADT 272 and Luxford v Department of Education and Communities [2016] NSWCATAD 118. I find that, in the circumstances of this case, it could reasonably be expected that disclosure of the Primary Investigation Materials (in full) would inhibit the supply of information to the respondent in future investigations.
8. The respondent also claims that the Investigator Communications, Management Observations and Strategic Management Discussions are subject to a confidentiality requirement arising out of the Policy Directive. I am satisfied from my review of the Policy Directive and from Mr Deady's evidence that this is the case, except in relation to the information behind tab 27 (for reasons given below).
9. I accept that the respondent has a function of conducting and/or managing the outcome of investigations into possible breaches of the Code of Conduct, as the respondent submitted. It is necessary that it performs this function to ensure a safe workplace and a healthy workplace culture, and so its employees effectively fulfil the agency's other functions. I also find that the supply of information of the kind provided to the investigator by employees in the two investigations into the applicant's conduct is necessary for the effective exercise of the respondent's functions. Further, the maintenance of confidentiality at a management level about the conduct of a workplace investigation, and the maintenance of confidential communications with the investigator, is generally necessary to ensure that an investigation is conducted effectively.
10. Much of the information the respondent has termed "Investigator Communications" is information between the respondent's staff and an investigator, disclosure of which could reasonably be expected to deter free communication with an investigator in the future, and thus to prejudice the effective exercise by the respondent of its functions. However, some of the communications are of a routine nature, and I am not satisfied that there is a reasonable expectation of prejudice to the effective exercise of the respondent's functions in the case of disclosure of these communications, as disclosure of them is unlikely to deter future communications of a similar kind. The information within the Investigator Communications to which the consideration in cl 1(f) does not, in my view, apply is the information behind tabs 41, 42 (in the two-page email only), 43 and 91 (in the two-page email only). As no other public interest considerations against disclosure are relied upon, this information is not subject to an overriding public interest against disclosure and access should be provided to the applicant.
11. The "Management Observations," insofar as they relate to an investigation, are generally subject to confidentiality requirements (see Deady affidavit at [32]). Subject to my comments about the information behind tab 27, I find that disclosure of this information could reasonably be expected to deter frank communications in a similar context in the future.
12. The information behind tab 27 is information concerning the applicant's return to work, not information concerning an investigation into his conduct. I am not satisfied that disclosure of this information to the applicant could reasonably be expected to prejudice the effective exercise by the respondent of its functions for any of the reasons given by the respondent, particularly in circumstances where the applicant no longer works for the respondent. Accordingly, the respondent has not discharged its onus in relation to the information behind tab 27 and access to this information should be provided to the applicant.
13. I am satisfied from my examination of the Strategic Management Discussions that their disclosure could reasonably be expected to prejudice the effective exercise by the respondent of its functions, for reasons given by the respondent, except in relation to the information behind tab 93. This information is of a routine kind of limited sensitivity and disclosure of it could not reasonably be expected to prejudice the making of similar communications in the future.
14. The respondent has established its case that cl 1(f) applies to the Primary Investigation Materials, the Investigator Communications (other than the information behind tabs 41 and 43 and in the two-page emails behind tabs 42 and 91), the Management Observations (other than the information behind tab 27) and the Strategic Management Discussions (other than the information behind tab 93).
15. I will also consider the alternative bases on which the respondent contends that cl 1(f) applies to some of the withheld information. There is utility in doing this because the additional reasons for the application of cl 1(f) are relevant to the weight to be attributed to this consideration against disclosure. Further, it is a useful exercise in case I am wrong in finding that the consideration applies because disclosure would likely inhibit the supply of confidential information and thereby prejudice the exercise of the respondent's functions.
16. A further basis upon which the respondent contends that cl 1(f) applies to the Primary Investigation Materials, the Investigator Communications, the Management Observations and the Strategic Management Discussions relates to its function of maintaining a workplace culture which is consistent with the Code of Conduct and Core Values.
17. Mr Deady's evidence is that the respondent's staff members are expected to identify and confront serious conduct issues consistently with upholding the Core Values, and that this will only occur where they feel comfortable and supported. He also states that the Investigator Communications are necessary to assist in addressing workplace issues that detract from performance and culture and that, if there were a risk of disclosure of these communications, the respondent's management would be deterred from communicating with independent investigators in future investigations. Further, the respondent relies upon Mr Deady's evidence that discussions between management and internal stakeholders to manage misconduct and associated investigations occur so as to promote a workplace culture consistent with the Code of Conduct, and says that such information is contained within the Management Observations and Strategic Management Discussions. The respondent submits, again in reliance upon Mr Deady's evidence, that disclosure of this information would have the effect of prejudicing the management of investigations and the implementation of investigation outcomes.
18. Whilst the respondent has presented compliance with the Code of Conduct as a separate basis for the application of cl 1(f) to the relevant information, in my view this does not take the respondent's case much further than the case based upon the confidentiality of the information. The respondent contends, in effect, that the confidentiality of withheld information is important to ensure compliance with the Code of Conduct and to promote adherence to Core Values. Whilst I accept that this is so, the maintenance of confidentiality for the purposes of an investigation into workplace conduct in respect of an alleged breach of the Code of Conduct (the first basis for the cl 1(f) claim) is closely related to this second basis for claiming that cl 1(f) applies. This does not alter my findings in relation to the information to which the clause does not apply, which are set out above.
19. The final basis upon which the respondent contends that cl 1(f) applies is that disclosure of the information could reasonably be expected to prejudice the effective exercise of the respondent's function of maintaining a safe working environment for employees.
20. An examination of the relevant documents confirms the respondent's submissions that a number of individuals involved in the investigation expressed concerns about their personal health and safety. However, contrary to Mr Deady's evidence and the respondent's submissions, I did not find any such concerns expressed in documents behind tabs 50, 52, 53, 59 or 155 of the 1 October 2015 decision or in the document behind tab 27 of the 1 October 2015 decision, which forms part of the Management Observations. I accept that such concerns were expressed in documents 54, 55 and 57 of the 1 October 2015 decision and in the Primary Investigation Materials and Management Observations (with the exception of tab 27).
21. The respondent submitted that the respondent's exercise of its functions as employer would be impeded by the disclosure of personal opinions of individuals where health and safety concerns exist. It relied upon Mr Deady's statement that he considered that the respondent has a duty to maintain the health and safety of its employees and that the discharge of this duty would be prejudiced by the disclosure of the Primary Investigation Materials.
22. It is not entirely clear whether the respondent is submitting that it is just the employees' expressions of concerns about their health and safety which should be protected on this basis, or whether all of the Primary Investigation Materials should remain confidential for health and safety reasons. In any event, the respondent has not explained how the disclosure of any of this information would, in its view, affect an employee's health or safety. The health and safety concerns expressed in the withheld materials relate to the applicant's behaviour towards other employees, and not to the disclosure of the concerns themselves. In these circumstances, the respondent has not discharged its burden of establishing that disclosure of the relevant information could reasonably be expected to prejudice the effective exercise of the respondent's function of maintaining a safe working environment for its employees.

Prejudice the conduct of an investigation (cl 1(h))

1. The respondent relies upon the public interest consideration in cl 1(h) of the table in s 14 in relation to the Investigation Information. It submits that the Investigation Information includes unredacted versions of the investigation reports and information obtained during the investigations and that the release of the information would prejudice the integrity of the investigations by revealing information obtained in confidence and the content of investigation reports which has otherwise been redacted.
2. This public interest consideration applies, relevantly, where disclosure of the information could reasonably be expected to prejudice the integrity of an investigation of the respondent by revealing its purpose, conduct or results. The respondent has not directly addressed the question of how disclosure of the withheld information would reveal the purpose, conduct or results of the investigation.
3. It does not appear that the purpose of the investigation is confidential or something unknown to the applicant which could thereby be "revealed" to him. Nor does it appear that the applicant is unaware of the results of the investigation, at least in broad terms. He has the substance of both investigation reports. The respondent did not refer me to any authorities on the meaning of the phrase "conduct … of the investigation" and the cases I have identified from my own research in which cl 1(h) has been raised have not considered this. I am not persuaded, in the absence of any submissions on the matter, that the disclosure of any of the information provided to the investigator could reasonably be expected to prejudice the conduct, effectiveness or integrity of an investigation by revealing its "conduct". The applicant already knows, in broad terms, how the investigation was conducted.
4. The respondent has the burden of establishing that its decision is justified (GIPA Act, s 105(1)), and has not addressed key issues concerning the application of cl 1(h). In the circumstances, it has not established that cl 1(h) applies to the Investigation Information or to any other information.

Reveal personal information and contravene privacy principle (cl 3(a) and (b))

1. The respondent relies upon the public interest considerations in cl 3(a) and (b) of the table in s 14 in relation to the information in the document behind tab 59 of the 1 October 2015 decision and in the documents behind tabs 13, 14, 15 and 16 of the 30 June 2015 decision (which the respondent terms "Personal Information") and in relation to tabs 33 and 153 of the 1 October 2015 decision (which the respondent terms "Unrelated Personal Information").
2. The documents referred to above do contain the personal information of individuals who were witnesses in the investigation. I accept the respondent's submission, supported by Mr Deady's evidence, that this personal information has not been publicly disclosed, meaning that granting access to it could have the effect of "revealing" it under cl 3(a) (see definition of "reveal" in GIPA Act, Sch 4, cl 1). This is consistent with Mr Deady's evidence concerning the confidentiality of the investigation and the applicant has not suggested that there has been any public disclosure of the information.
3. As indicated above, I am entitled to take into account the applicant's former role as program manager and relationships with other people, specifically, the findings of the independent investigator that he had breached the NSW Health Code of Conduct by engaging in bullying and harassing behaviour towards a colleague (GIPA Act, s 55(1)). This is a personal factor of the application which may be considered insofar as it is relevant to whether the disclosure of the information concerned could reasonably be expected to reveal an individual's personal information (GIPA Act, s 55(3)).
4. It has not been necessary to consider this personal factor in order to conclude that the disclosure of the relevant information could reasonably be expected to reveal an individual's personal information.
5. The respondent has not identified the privacy principle it says would be contravened by disclosure of the information within cl 3(b) of the table to s 14 of the GIPA Act. Presumably, the respondent relies upon a non-disclosure principle (see Privacy and Personal Information Protection Act 1998 (NSW), s 18; Health Records and Information Privacy Act 2002 (NSW), Sch 1, HPP 11). However, in order to discharge its burden of establishing that its decision is justified (insofar as that decision relied upon cl 3(b)), the respondent must do more than simply state that disclosure could reasonably be expected to contravene an information protection principle or a health privacy principle. It must identify the principle in question and explain why there could be a reasonable expectation of a contravention. Notwithstanding that this was pointed out by the Information Commissioner in her review report, the respondent has not justified its position that cl 3(b) applies.
6. I am satisfied that disclosure of the personal or health information referred to above could reasonably be expected to reveal an individual's personal information within cl 3(a). However, the respondent has not discharged its burden of establishing that disclosure could reasonably be expected to contravene an information protection principle or a health privacy principle within cl 3(b).

Balancing of public interest considerations

1. Having identified the public interest considerations applicable to the information in each category of documents identified by the respondent, the Tribunal's next task is to determine whether, on balance, the public interest considerations against disclosure outweigh those in favour of disclosure (GIPA Act, s 13). I have considered this question in relation to each category of documents and in relation to the specific information in the documents in each category. That is, whilst I have used the general categories of documents identified by the respondent as a convenient starting point, I have also examined the information in each document to determine whether access should be granted to any particular information upon applying the public interest test in s 13 of the GIPA Act.
2. The relevant public interest considerations in favour of disclosure are: 1. the general public interest in favour of the disclosure of government information; 2. that it is (in many cases) the applicant's personal information; and 3. that decisions affecting public servants be transparent.
3. The applicable public interest considerations against disclosure are that disclosure of the information could reasonably be expected to: 1. prejudice the effective exercise by the respondent of its functions within cl 1(f) (for the Primary Investigation Materials, the Investigator Communications, the Management Observations and the Strategic Management Discussions, other than the information to which I have held that this consideration does not apply); 2. result in the disclosure of information provided to the respondent in confidence within cl 1(g) (for the information in the documents behind tabs 60, 134, 139 and 142 of the 1 October 2015 decision and tabs 13, 14, 15 and 16 of the 30 June 2015 decision); and 3. reveal an individual's personal information within cl 3(a) (in relation to the information in the documents behind tabs 33, 59 and 153 of the 1 October 2015 decision and in the documents behind tabs 13, 14, 15 and 16 of the 30 June 2015 decision).

Primary Investigation Materials

1. The relevant public interest considerations against disclosure of the Primary Investigation Materials are those referred to in cl 1(f), (g) and 3(a) in the table to s 14 of the GIPA Act.
2. Document 13 of the 30 June 2015 decision is the report into the investigation of allegations against the applicant made by Ms Lincoln, provided by O'Connell Workplace Relations under cover of a letter dated 8 August 2014. This has been released to the applicant with some information redacted. The only redactions from the full report are the list of annexures and most of the annexures (which comprise document 14 of the 30 June 2015 decision).
3. Document 14 of the 30 June 2015 decision comprises the annexures to the O'Connell Workplace Relations report, being transcripts of interviews with witnesses, written statements by witnesses and the respondent's minutes of meeting with staff members. These have been withheld from the applicant.
4. Document 15 of the 30 June 2015 decision is the main body of the investigation report by HealthShare into allegations of misconduct by the applicant, made by Dr Boursnell. The main body of the report has been provided to the applicant, with the following information redacted: information identifying the persons who provided statements to the investigator, an individual's personal information (about three lines of text) and the title of four attachments to the report.
5. Document 16 of the 30 June 2015 decision contains witness statements and interview recordings which were attached to the HealthShare report.
6. The public interest considerations in favour of disclosure of the information are significant, and I note the presumption in favour of the disclosure of government information (GIPA Act, s 5). However, I am satisfied that there is an overriding public interest against disclosure of the information in the Primary Investigation Materials which has been withheld by the respondent for the following reasons.
7. I give significant weight to the public interest considerations that the disclosure of the information could reasonably be expected to reveal information provided to the respondent in confidence and to prejudice the effective exercise of its functions. The witnesses to the investigations provided information to the investigator and to the respondent concerning the subject matter of the investigations in confidence. Much of the information is of a sensitive nature. Should this information be provided to the applicant in full (by way of interview transcripts, for example), it is reasonable to expect that the supply of information to the respondent in future investigations would be prejudiced. The effective exercise of its functions would thereby be prejudiced, for reasons given above.
8. It is also significant that the information in question is largely the personal information of witnesses to the investigation. It includes information about their opinions and mental and psychological states. I give a reasonable amount of weight to the public interest consideration against disclosure in cl 3(a).
9. The public interest considerations in favour of disclosure are, in my view, adequately dealt with by the provision of the substance of each investigation report to the applicant (in documents 13 and 15). Each report provides the applicant with information about the allegations against him, the findings of each investigation, recommended action and key evidence given by witnesses. This gives adequate expression to the public interest in the applicant gaining access to his personal information (including the expression of others' opinions about him and his conduct) and in the transparency of government decision-making concerning public servants.
10. I am satisfied that there is an overriding public interest against the disclosure of the information in the Primary Investigation Materials to which the applicant has been refused access. Accordingly, I affirm the respondent's decision in respect of that information.

Tabs 60, 134, 139 and 142 of 1 October 2015 decision

1. The respondent contends that disclosure of the information behind tabs 60, 134, 139 and 142 of the 1 October 2015 decision, which has not been provided to the applicant, could reasonably be expected to result in the disclosure of information provided to the respondent in confidence. It also contends that disclosure of the information behind tab 134 of the 1 October 2015 decision, which has not been provided to the applicant, could reasonably be expected to prejudice the effective exercise by it of its functions.
2. The document behind tab 60 is an email from one of the respondent's staff members to another enclosing a letter to the applicant dated 22 September 2014 and the O'Connell Workplace Relations report. The covering email has been provided to the applicant. The information in the report and letter has been provided to the applicant, with the exception of redacted information discussed above in relation to the Primary Investigation Materials. I have already found that there is an overriding public interest against disclosure of the redacted information.
3. The document behind tab 134 is an email from one of the respondent's staff members to another, enclosing information which forms part of document 16 of the 30 June 2015 decision, and in respect of which I have already held that there is an overriding public interest against disclosure. It appears that information in the covering email has been provided to the applicant.
4. The document behind tab 139 is again a covering email with attachments. It appears that the covering email has been provided to the applicant. The attachments comprise confidential information provided by witnesses to an investigation. I am satisfied, for reasons given in relation to the Primary Investigation Materials concerning confidential material provided to the respondent, that there is an overriding public interest against disclosure of information in the attachments.
5. The information behind tab 142 comprises an email from one of the respondent's staff members to another attaching a large number of documents concerning allegations about the applicant and the investigations into those allegations. Some of this information has been provided to the applicant and the applicant has been refused access to some of it. I have already held that there is an overriding public interest against disclosure of information which forms part of document 16 of the 30 June 2015 decision and which is reproduced here. For reasons given in relation to the Primary Investigation Materials concerning confidential material, I find that there is an overriding public interest against disclosure of all of the withheld information behind tab 142.
6. For the reasons given above, the respondent's decision is affirmed in respect of the information in the documents behind tabs 60, 134, 139 and 142 of the 1 October 2015 decision.

Tabs 33, 59 and 153 of 1 October 2015 decision

1. The public interest consideration relied upon by the respondent in respect of the information behind tabs 33, 59 and 153 of the 1 October 2015 decision is that disclosure could reasonably be expected to reveal an individual's personal information within cl 3(a). The respondent also relies upon the consideration that disclosure could reasonably be expected to prejudice the effective exercise by it of its functions in respect of the information behind tab 59.
2. Most of the information behind tab 33 has been provided to the applicant, with some information in two emails redacted. In my view, the information in the email of 13 October 2014 sent at 2.53pm which has been redacted is not information captured by the applicant's application for information under the GIPA Act. Accordingly, the applicant is not entitled to access to that information.
3. I am satisfied that the information in the email of 13 October 2014 sent at 3.23pm which has been redacted is an individual's personal information and has no bearing upon the substance of the investigation concerning the applicant. In these circumstances, I am satisfied that the public interest against disclosure of this information (being that it could reasonably be expected to reveal an individual's personal information) outweighs the public interest considerations in favour of disclosure. I affirm the respondent's decision not to provide access to the redacted information behind tab 33.
4. The information behind tab 59 is part of the category of information the respondent has termed "Investigator Communications". It consists of email communications between staff members of the respondent and staff members of the external investigator.
5. The first page of this email chain contains a third party's personal information (email of 22 September 2014 sent at 11.20am, indented material). This personal information does not relate to the applicant's matter. For this reason, I find that this public interest consideration against disclosure of this information (in cl 3(a)) outweighs the relevant public interest considerations in favour of disclosure.
6. I have found that disclosure of the remainder of the information behind tab 59 could reasonably be expected to prejudice the effective exercise of the respondent's functions. This is because, if managerial staff members fear that their communications with an external investigator will be disclosed, they may not communicate freely, and this is likely to impact upon the effective conduct or oversight of an investigation. I give this consideration against disclosure considerable weight, because I consider that there is a strong public interest in the effective conduct of workplace investigations.
7. In my view, this consideration outweighs the general public interest in favour of the disclosure of government information, the public interest consideration that this is the applicant's personal information (where it applies) and the public interest in ensuring that decisions affecting public servants be transparent, taken together. Much of the information in document 59 is not the applicant's personal information. Further, I do not think that transparency in decision-making requires that all communications between management and an investigator be disclosed.
8. For these reasons, I uphold the respondent's decision in respect of the information behind tab 59.
9. Most of the information behind tab 153 has been provided to the applicant, with the exception of one redaction, consisting of less than a line of text. Whilst this is the personal information of an individual, it is personal information which is not of any great sensitivity.
10. The respondent has not established that there is an overriding public interest against disclosure of this information. I order, accordingly, that the applicant be given access to all of the information in tab 153 of the 1 October 2015 decision.

Investigator Communications, Management Observations and Strategic Management Discussions

1. The only relevant public interest consideration against disclosure in relation to the Investigator Communications, the Management Observations and the Strategic Management Discussions (other than in respect of information about which I have already made a decision) is the "prejudice to functions" consideration in cl 1(f).
2. In relation to the Investigator Communications, as indicated above, I am of the view that there is a strong public interest in the effective conduct of workplace investigations and in management being able to communicate freely with an external investigator. Disclosure of these communications could reasonably be expected to prejudice the effective exercise by the respondent of its functions within cl 1(f) by impeding such free communication in the future.
3. This public interest against disclosure is greater, in the circumstances of this case, than the general public interest in favour of the disclosure of the relevant government information, the public interest in an individual having access to his or her own personal information, and the public interest in decisions affecting public servants being transparent (taken together). Sufficient transparency has been achieved by the provision of the substance of both investigation reports to the applicant. Similarly, the Investigator Communications are often only incidentally about the applicant, and the public interest in the applicant having access to his own personal information has been served by him being given a copy of the substance of the reports and other material. Accordingly, I find that there is an overriding public interest against the disclosure of the information in the Investigator Communications, other than the information to which I have held that the consideration in cl 1(f) does not apply (that is, the information behind tabs 41 and 43 and the information in the two-page emails behind tabs 42 and 91).
4. In relation to the Management Observations, as I have indicated above, I accept that these are confidential and disclosure could reasonably be expected to deter frank communications in the future (except in the case of the information behind tab 27). For the reasons given in relation to the Investigator Communications, I find that the public interest against disclosure of the information is greater than the public interest in favour of disclosure and that there is therefore an overriding public interest against the disclosure of this information.
5. If I am wrong in my conclusion that the public interest consideration in cl 1(f) does not apply to the information behind tab 27, then I would find that the public interest in favour of disclosure of this information outweighs the public interest against such disclosure. I give particular weight to the consideration that this is the applicant's personal information and, given that he is no longer working for the respondent, the level of sensitivity of the information has decreased.
6. I also find that the public interest against disclosure of the Strategic Management Discussions outweighs the public interest in favour of disclosure of this material, with the exceptions set out in the following paragraphs. This is because the public interest in maintaining the confidentiality of that information, so as not to prejudice the effective exercise by the respondent of its functions as an employer, is greater than the public interest considerations in favour of disclosure referred to above.
7. The exceptions to this finding are as follows.
8. The document behind tab 64 contains the applicant's personal information, and is not, strictly speaking, about the conduct of the investigation, although it broadly relates to the respondent's handling of the outcome of the investigation. In my view, the public interest in the applicant having access to his personal information outweighs the public interest in maintaining confidentiality of this communication on the basis that disclosure could reasonably be expected to prejudice the effective exercise by the respondent of its functions.
9. The information behind tab 107 is the same as the information behind tab 64 and should be provided to the applicant.
10. The information in the document behind tab 144 is largely the applicant's personal information and, with the exception of the first four paragraphs on the last page of the document, access to this information should be granted to the applicant. The public interest in the applicant having access to his own personal information outweighs the reasonable expectation of prejudice to the effective exercise by the respondent of its functions. The potential prejudice is diminished by the fact that the information is generally known to the applicant, is of a non-sensitive nature and is provided to him after he has left his employment with the respondent. The information in the first four paragraphs on the last page of the document is personal information of a third party provided to the respondent by an individual in confidence. The public interest against disclosure outweighs the public interest in favour of disclosure of this information.
11. The information behind tab 152 that is not already known to the applicant is that his emailed letter has been forwarded from the recipient of his email to another staff member. In the circumstances, I do not give the public interest considerations against disclosure of this information a lot of weight, and I find that there is not an overriding public interest against disclosure of this information. Accordingly, access to this information should be provided to the applicant.
12. For the above reasons, I decide that the correct and preferable decision is the following: 1. The respondent's decision to refuse access to information behind tabs 27, 41, 42, 43, 64, 91, 93, 107, 144, 152 and 153 of the 1 October 2015 decision is varied. The respondent is to provide the applicant with access to: 1. all of the information behind tabs 27, 41, 43, 64, 93, 107, 152 and 153; 2. the information in the 2 page email (but not the attachments) behind tab 42; 3. the information in the 2 page email (but not the attachments) behind tab 91; 4. the information in the document behind tab 144 with the exception of the first four paragraphs on the last page of the document; and access to the remainder of the information behind these tabs is refused. 1. The respondent's decision to refuse to provide access to information is otherwise 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: 12 June 2018