This is an application by CGU Workers Compensation (NSW) Ltd ("CGU" or "the Applicant") for review under section 100 of the Government Information (Public Access) Act 2009 ("the GIPA Act") in respect of a decision made by the Department of Planning and Environment ("the Respondent" or "the Department"). The Department's decision was in response to an access application made by CGU under the GIPA Act. The access application sought the following:
1. The Investigation file in relation to a complaint by Janelle Muller in relation to Lisa Morton, an employee of BHP Billiton in relation to the period from in or about 2010 to 18 May 2016 at the Mount Arthur Coal Mine site and being a complaint in respect of conduct in the nature of bullying and harassment.
2. A copy of the complaint giving rise to the investigation.
3. Copies of taped records of interview, file notes, statement and documents from witnesses in respect of the investigation.
4. All summaries in respect of the matters investigated.
5. The findings of the investigation.
6. Recommendations made in respect of the investigation.
7. Documents arising out of the investigation and recommendations including any improvement notices or other action taken in accordance with the Work Health and Safety (Mines & Petroleum) Regulations 2014 and the Work, Health and Safety Act 2011 (NSW).
8. Copies of all correspondence between the Department of Mines and parties involved in the investigation including BHP Billiton, Mount Arthur Coal Mines, Lisa Morton and Janelle Muller.
The Department's decision was to:
1. provide access to some of the information; and
2. refuse access to some of the information.
The Department subsequently sought an order varying its decision by partially releasing the information identified as documents 8, 9, 10, 12 and 29, with any names and personal details of third parties redacted. The Department contends that there is an overriding public interest against disclosure of these personal details.
These are reviewable decisions under section 80(d) of the GIPA Act.
The information refused included:
1. documents relating to the complaint;
2. documents recording the investigation of the complaint; and
3. 15 recorded interviews with various people involved in the investigation
A copy of the documents that were refused has been provided to the Tribunal, but not to CGU. That material has been received by the Tribunal on a confidential basis as provided for by section 107(2) of the GIPA Act.
[3]
Background
The State Insurance Regulatory Authority ("SIRA") is a body established under the State Insurance and Care Governance Act 2015. The functions of SIRA include regulating workers compensation insurance in NSW. Section 154I of the Workers Compensation Act 1987 ("the 1987 Act") extends the functions of SIRA to scheme agents.
CGU is scheme agent under the 1987 Act.
The Workplace Injury Management and Workers Compensation Act 1988 ("the 1998 Act") established the workplace injury management and workers compensation system in NSW. The 1998 Act sets out how scheme agents, such as CGU must administer claims for compensation.
Administration of a claim involves investigating its validity by obtaining and reviewing factual and medical evidence. With limited exceptions, section 243 of the 1988 Act imposes an obligation on scheme agents not to disclose information obtained in connection with the administration or execution of the Act.
CGU is the insurer of Ready Workforce Pty Ltd ("Ready Workforce"). Ready Workforce employed Ms Muller, who worked at Mount Arthur coal mine. Ms Muller claimed workers compensation for injury suffered as a result of workplace bullying and harassment.
Ms Muller's complaint of workplace bullying was the subject of an investigation under the Work Health and Safety Act 2011 ("the WHS Act"). The Major Investigations and Emergency Response Unit of the Resources Regulator ("the Regulator"), an agency of the Department, is responsible for monitoring and enforcing compliance across NSW's mining and petroleum industries. Mr Stephen Orr, the Manager of the Major Investigations and Emergency Response Unit of the Regulator, was responsible for the investigation of Ms Muller's complaint.
During the course of the investigation into the complaint of bullying and harassment, recorded interviews were conducted by an Inspector under the WHS Act. When conducting these kinds of investigations, an Inspector is able to compel a person to answer questions. There are penalties under the WHS Act if a person fails to answer the Inspector's questions.
CGU's access application sought information relating to that investigation. CGU subsequently agreed to exclude the Department's coordination documents such as emails organising interview times and some duplication relating to interviews.
The Department located 33 documents responsive to CGU's access application. It decided to provide access to some information and to refuse to provide access to other information. CGU applied for review of the Department's decision by the Information Commissioner. The Information Commissioner completed her review and recommended that the Department make a new decision. The Department did not accept the Information Commissioner's recommendation and CGU sought external review by the Tribunal.
Mr Orr has described the withheld information as follows:
"In my opinion, documents 7, 13, 14, 32 and 33 are documents that contain personal and private information concerning the complaint of bullying and harassment.
These documents are the informal counselling records against the alleged perpetrator, letters from the complainant, the complainant's statement, and photocopies of the complainant's diary.
…
Documents 11 and 15-28 in the schedule of documents are recorded interviews that were conducted during the course of the investigation into the complaint of bullying and harassment. I understand that each document comprises an audio recording of an interview with a person by an Inspector under the Work Health and Safety Act 2011."
[4]
Applicable legislation
The task of the Tribunal is to determine the "correct and preferable decision": section 63 of the Administrative Decisions Review Act 1997.
The approach to be taken in applications under the GIPA Act has been considered in numerous cases before this Tribunal. For a recent consideration see the discussion by Senior Member Perrignon in Peter Zonnevylle v Department of Education and Communities [2018] NSWCATAD 139.
The objects of the Act are set out in section 3(1):
In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:
(a) authorising and encouraging the proactive public release of government information by agencies, and
(b) giving members of the public an enforceable right to access government information, and
(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
"Government information" is given a wide meaning under section 4 of the GIPA Act being "information contained in a record held by an agency."
Schedule 4 of the GIPA Act defines the term "Personal information" as follows:
(1) In this Act,
"personal information" means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.
(2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics.
(3) Personal information does not include any of the following:
(a) information about an individual who has been dead for more than 30 years,
(b) information about an individual (comprising the individual's name and non-personal contact details) that reveals nothing more than the fact that the person was engaged in the exercise of public functions,
(c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause.
The Tribunal is to consider whether, on balance, the public interest considerations against disclosure outweigh those in favour of disclosure. Pursuant to section 5 of the GIPA Act there is a presumption in favour of disclosure of the information unless there is an overriding public interest against disclosure. In accordance with section 9(1) of the GIPA Act, CGU has a legally enforceable right to access the information requested, unless there is an overriding public interest against disclosing the information.
The general public interest considerations in favour of access to government information set out in section 12 of the GIPA Act mean that the balance is always weighted in favour if disclosure.
Section 13 of the GIPA Act provides -
There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
Section 13 of the GIPA Act requires decision makers to:
1. identify relevant public interest considerations in favour of disclosure;
2. identify relevant public interest considerations against disclosure;
3. attribute weight to each consideration for and against disclosure; and
4. determine whether the balance of the public interest lies in favour of or against disclosure of the government information.
The agency must prove that the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure.
Section 15 of the GIPA Act sets out the principles that apply to public interest determination as follows:
(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.
The table to section 14 sets out the relevant public interest considerations against disclosure. As noted, the Department determined that some of the requested information should not be released and it identified a number of public interest considerations against disclosure as relevant.
The only factors that can be taken into account are those referred to in section 14 of the GIPA Act. Section 14(2) provides that -
The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.
Section 105 of the GIPA Act provides that the onus is on the agency to justify its decision. The public interest considerations against disclosure relied on by the Department in this case are to be found under the following categories in the Table to section 14:
1. Clause 1(f) - that disclosure of the information could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions;
2. Clause 3(a) - that disclosure of the information could reasonably be expected to reveal an individual's personal information;
3. Clause 3(b) - that disclosure of the information could reasonably be expected to contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 ("the PPIP Act"); and
4. Clause 4(d) - that disclosure of the information could reasonably be expected to prejudice any person's legitimate business, commercial, professional or financial interests.
Section 18 of the PPIP Act provides:
18 LIMITS ON DISCLOSURE OF PERSONAL INFORMATION
(1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless:
(a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or
(b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or
(c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.
(2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.
Section 105 of the GIPA Act provides that the onus is on the agency to justify its decision. In relation to each of the asserted section 14 table factors the Department must establish that the disclosure of the information could reasonably be expected to have the effect outlined in the table.
Before deciding to provide access to personal information about a person in response to an access application, section 54 of the GIPA Act requires that the agency take such steps as are reasonable practicable to consult with that person before providing access. In this case the Department sought the views of the individuals who were interviewed to ascertain whether there was any objection to disclosure of some or all of the information that CGU had requested. With a single exception none of the fifteen individuals involved did not respond.
Section 55 of the GIPA Act provides that personal factors relating to an applicant can be taken into account in deciding to grant access. In limited circumstances they may also be taken into account in refusing access. Section 55 provides:
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.
(4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for.
(5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to provide proof of his or her identity.
(6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person.
Note : An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73.
Section 243 of the Workplace Injury Management and Workers Compensation Act 1998 provides:
243 DISCLOSURE REQUIREMENTS
(cf 1926 s 66F; 1987 s 276)
(1) A person must not disclose any information obtained in connection with the administration or execution of this Act unless that disclosure is made:
(a) with the consent of the person from whom the information was obtained, or
(b) in connection with the administration or execution of this Act, or
(c) for the purposes of any legal proceedings arising out of this Act or of any report of any such proceedings, or
(d) in accordance with section 72 (Inspection of relevant claims information etc), or
(e) in accordance with the requirement imposed under the Ombudsman Act 1974 , or
(f) with other lawful excuse.
Maximum penalty: 50 penalty units or imprisonment for 2 years.
(2) The Authority may disclose any information obtained in connection with the administration or execution of this Act to:
(a) SafeWork NSW, and
(b) the Chief Commissioner of State Revenue under the Taxation Administration Act 1996 , and
(c) the Insurance and Superannuation Commissioner under the Insurance and Superannuation Commissioner Act 1987 of the Commonwealth, and
(d) any other person or body prescribed by the regulations for the purposes of this paragraph.
(3) In this section,
"this Act" includes the 1987 Act and the former 1926 Act.
(4) In this section, a reference to the Authority is taken to include a reference to the Nominal Insurer.
(5) This section does not apply in relation to protected information within the meaning of section 243AA.
Section 271 of the Work Health and Safety Act 2011 provides:
271 CONFIDENTIALITY OF INFORMATION
(1) This section applies if a person obtains information or gains access to a document in exercising any power or function under this Act (other than under Part 7).
(2) The person must not do any of the following:
(a) disclose to anyone else:
(i) the information, or
(ii) the contents of or information contained in the document,
(b) give access to the document to anyone else,
(c) use the information or document for any purpose.
Maximum penalty:
(a) in the case of an individual--$10,000, or
(b) in the case of a body corporate--$50,000.
(3) Subsection (2) does not apply to the disclosure of information, or the giving of access to a document or the use of information or a document:
(a) about a person, with the person's consent, or
(b) that is necessary for the exercise of a power or function under this Act, or
(c) that is made or given by the regulator or a person authorised by the regulator if the regulator reasonably believes the disclosure, access or use:
(i) is necessary for administering, or monitoring or enforcing compliance with, this Act, or
(ii) is necessary for the administration or enforcement of another Act prescribed by the regulations, or
(iii) is necessary for the administration or enforcement of another Act or law, if the disclosure, access or use is necessary to lessen or prevent a serious risk to public health or safety, or
(iv) is necessary for the recognition of authorisations under a corresponding WHS law, or
(v) is required for the exercise of a power or function under a corresponding WHS law, or
(d) that is required by any court, tribunal, authority or person having lawful authority to require the production of documents or the answering of questions, or
(e) that is required or authorised under a law, or
(f) to a Minister.
(4) A person must not intentionally disclose to another person the name of an individual who has made a complaint in relation to that other person unless:
(a) the disclosure is made with the consent of the complainant, or
(b) the disclosure is required under a law.
Maximum penalty:
(a) in the case of an individual--$10,000, or
(b) in the case of a body corporate--$50,000.
Clause 702 of the Work Health and Safety Regulation 2017 provides:
702 CONFIDENTIALITY OF INFORMATION--EXCEPTION RELATING TO ADMINISTRATION OR ENFORCEMENT OF OTHER LAWS
The following Acts are prescribed for the purposes of section 271 (3) (c) (ii) of the Act:
…
(aa) Workers Compensation Act 1987,
…
(ad) Workplace Injury Management and Workers Compensation Act 1998.
[5]
Issues for Determination
The parties are in general agreement in regard to the issues for determination. In respect of information that has been withheld these are:
1. What are the public interest considerations in favour of disclosure?
2. What are the public interest considerations against disclosure?
3. Is there an overriding public interest against disclosure?
4. Should the Tribunal affirm, vary or set aside the Department's decision?
[6]
The Material before the Tribunal
The Department relies on open and confidential tender bundles, the Statement of Mr Stephen Orr dated 16 March 2018 and its written and oral submissions. Mr Orr has been responsible for conducting regulatory investigations, across a range of regulatory settings, since 2001. He has been responsible for the management of 17 major investigations into bullying and harassment in the mining industry since 2014. He was not involved in the investigation of Ms Muller's complaint but is aware of the investigation methodologies used to undertake these types of investigations.
CGU relies on the Affidavit of its solicitor Mr Robin Young dated 13 April 2018 and its written and oral submissions.
[7]
Public interest considerations in favour of disclosure
Section 5 of the GIPA Act provides that there is a presumption in favour of disclosure of the information unless there is an overriding public interest against disclosure. A number of public interest considerations in favour of disclosure are set out in section 12 of the GIPA Act. The balance is always weighted in favour if disclosure.
As noted, CGU is scheme agent under the 1987 Act. Scheme agents have an ongoing duty to manage claims and also have an obligation to conduct investigations into whether a worker's injury may have been caused by a third party who may be liable to indemnify the scheme for compensation payments made to a worker. Ms Muller was loaned on hire by Ready Workforce to BHP at the Mt Arthur Mine. Ms Muller's injury occurred whilst she was at a BHP workplace and is alleged to have involved BHP employees. CGU contends that it is important that it be able to investigate whether it has grounds to bring a claim against BHP for indemnity and/or recovery for the benefit of the scheme. It says that it seeks the withheld information to enable it to perform its function as a scheme agent.
CGU contends that there is a strong public interest in favour of disclosure of the information in that it would enable the workers compensation scheme to operate effectively and for scheme agents to have access to relevant information to make decisions in line with their statutory obligations.
It is not in dispute that section 271 of the WHS Act permits the disclosure of information with the person's consent. Recorded interviews were undertaken with 15 people and the Department attempted to determine whether any of them objected to the release of their information. The Department only received one objection to the release of the information.
CGU submits that it is reasonable to infer that all but one person has consented to the release of the information. This is an exception to the confidentially obligations in the WHS Act and is a factor that weighs heavily in favour of disclosure under the GIPA Act. The Department disputes that in can be inferred that 14 of the 15 persons interviewed consented to the release of their information.
CGU notes that if any of the information is disclosed it would be information obtained by CGU in connection with the administration or execution of the workers compensation Acts. The confidentiality requirements in section 243 of the 1998 Act would restrict use of the information and provide protection.
CGU also contends that the following particulars weigh in favour of disclosure:
1. The events that were the subject of Ms Muller's claim took place in late 2015 to August 2016;
2. The Department's investigation is complete and its function under the WHS Act has been discharged;
3. The statutory limitation to prosecute any duty holder under the WHS Act has expired.
The Department contends that these interests in favour of disclosure should not carry significant weight. It does not dispute that the investigation was conducted by a public body and therefore the information is captured by the GIPA access application. However, it submits that CGU should not be placed in a better position merely because of that fact than it would have been if a private organisation had conducted the investigation. It submits that if that had been the case, CGU would have been left to the usual means of obtaining documents in the course of litigating Ms Muller's claim.
I do not agree with CGU's contention that it can be inferred that interviewees who did not respond to the Department's consultation have consented to the release of their information. There could be many reasons for their non-response. For example, they may not have received the Department's email or they may have received it but been unable to respond. I agree that lack of response is a factor to be taken into account. However, I do not give it significant weight.
In the circumstances I agree with CGU that the factors it has identified are relevant considerations. However, I also consider that the comparative circumstances that are referred to by the Department should be taken into account in deciding what weight is to be given to these factors.
[8]
Public interest considerations against disclosure
The Department has categorised the withheld information as:
1. Documents relating to the complainant (Documents 7, 13, 14, 32 and 33); and
2. Recorded interviews of other workers (Documents 11, 15-28);
The Department has the onus of proving that the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure. The Department submits the decision not to release information should be affirmed because there is an overriding public interest against disclosure.
Each of clauses 1(f), 3(a), 3(b) and 4(d) of the table to section 14 has been considered in matters before this Tribunal. In relation to each of the asserted section 14 table factors the Department must establish that the disclosure of the information "could reasonably be expected to" have the effect outlined in the table.
The words "could reasonably be expected to" have been the subject of considerable judicial consideration with respect to their use in the Freedom of Information Act 1989 (NSW) and the Freedom of Information Act 1982 (Cth). They are to be given their ordinary meaning: Attorney-General's Department v Cockcroft [1986] FCA 35; (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."
Hayne J pointed out in McKinnon v Secretary, Department of Treasury [2006] HCA 45 at paragraph [61] that:
"... when their Honours said, as they did, that the words required 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 certain consequences, they are not to be understood as having used the latter expression as a paraphrase of the former. Rather, they are to be understood, and have since been understood, as doing no more than drawing an emphatic comparison. To do more would have been, as their Honours correctly said, "to place an unwarranted gloss upon the relatively plain words of the Act". And the same approach should be taken to the expression "reasonable grounds"."
Clauses 1(f) and 4(d) of the table to section 14 contain the term "prejudice". That term is to be given its ordinary meaning, that is, "to cause detriment or disadvantage" or "to impede or derogate from": see Hurst v Wagga Wagga City Council [2011] NSWADT 307 at paragraph [60].
The Department needs to show more than a mere possibility, risk or chance of prejudice. It must be based on real and substantial grounds. It will not be sufficient for the decision-maker to proffer the view. It must be supported in some way: Transport for NSW v Searle [2018] NSWCATAP 93 at paragraph [68].
The Appeal Panel in Transport for NSW v Searle adopted the views expressed in Commissioner of Police NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 that the question as to prejudice to future supply is not to be determined by reference to the particulars of the immediate situation. It is not necessary to show that it could reasonably be expected to occur on every occasion. It is to be determined at a broader operational level. Hence, the fact that in the present situation the specific individuals supplying the information were unlikely to be inhibited even if there was disclosure was not determinative against the agency.
CGU submits that the requested documents are necessary for the administration of the workers compensation Acts. It contends that the Department is not bound by the confidentiality obligations in section 271(1) and (2) of the WHS Act and may disclose the information under section 271(3)(c)(ii), but it has elected not to do so.
[9]
Clause 3(a) - reveal an individual's personal information.
[10]
Clause 3(b) - contravene an information protection principle under the Privacy and Personal Information Protection Act 1998
Clauses 3(a) and 3(b) both concern the disclosure of an individual's personal information. These will only be relevant considerations against disclosure if the information in issue is 'personal information' for the purposes of the GIPA Act.
I do not understand there to be any dispute between the parties on this issue but for completeness I note that it is my view that the information contained in the withheld counselling and complaint records and in the recorded interviews is the personal information of the individuals who are directly concerned. It may also be the personal information of individuals who are referred to in the information. It follows that the disclosure of that information could reasonably be expected to reveal an individual's personal information.
I am also satisfied that the withheld personal information was collected by the Regulator in the exercise of its investigative functions. Disclosure of the personal information would contravene section 18 of the PPIP Act unless one or more of the conditions for permitted disclosure under section 18(1) of the PPIP Act applies. Those conditions are set out above.
I agree with the Department that none of the conditions for permitted disclosure under section 18(1) of the PPIP Act applies. It follows that the disclosure of that information could reasonably be expected to contravene an information protection principle under the PPIP Act.
However, these findings are not conclusive. It is necessary to weight the public interest considerations in favour of release and the considerations against release.
In Mr Orr's view confidentially should be maintained in regard to documents that contain personal and private information concerning the complaint of bullying and harassment. These documents are the informal counselling records against the alleged perpetrator, letters from the complainant, the complainant's statement, and photocopies of the complainant's diary. Mr Orr believes that counselling records are extremely sensitive. He believes that they form part of an employee's personnel files and that it is important to protect those records.
Mr Orr is concerned that if the investigation of complaints is not conducted in a confidential manner, prospective complainants may not feel confident enough to make a complaint. If that were the case, conduct that may amount to a breach of the WHS Act would go unreported and without investigation. He stated that the mining industry is a tight knit industry, and if such information were to be released to the public, it would not take long for workers in the industry to become aware that their confidentiality had been lost. He believes that the release of these records would prejudice the Regulator's ability to investigate potential offences and to monitor and enforce compliance with the work health and safety laws effectively.
CGU contends that there is a strong public interest in favour of disclosure of the information as it would enable the workers compensation scheme to operate effectively and for scheme agents to have access to relevant information to make decisions in line with their statutory obligations.
Mr Young's evidence is that in the course of executing its statutory functions CGU commonly seeks access to information relating to an investigation undertaken by a work, health and safety regulator. He stated that he has acted for scheme agents of the Nominal Insurer and workers compensation insurers for approximately 23 years and has made numerous GIPA and freedom of information requests of government agencies in relation to workplace accidents and investigations. He stated that it is his experience that agencies provide the vast majority of their investigation files including records of interview, inspectors' notebooks and investigation summaries. Minor redactions are made to protect personal information of third parties such as names and addresses. He provided examples of applications where that had been the outcome.
In the course of administering the claim, CGU appointed an investigator to undertake a factual investigation. A copy of the investigation report is attached to Mr Young's affidavit. The report shows that the investigator was not able to verify Ms Muller's allegations because BHP did not grant access to its employees. The only persons the investigator was able to speak to were Ms Muller and her partner. Each provided statements and those statements are annexed to Mr Young's affidavit.
Ms Muller also provided consent to the release of her personal information to CGU. A copy of her consent is also annexed to Mr Young's affidavit.
CGU reiterated that the use of any of the information that it is seeking is restricted and protected by the confidentiality requirements in section 243 of the 1998 Act.
[11]
Clause 1(f) - prejudice the effective exercise by an agency of the agency's functions
[12]
Clause 4(d) - prejudice any person's legitimate business, commercial, professional or financial interests.
It is common ground that the Department is charged with the function of the investigation of complaints made under the WHS Act. This includes investigation of complaints of bullying and harassment in a workplace.
The Department contends that the release of the complainant's documents or the recorded interviews could reasonably be expected to prejudice the effective exercise by the Department of its functions because it would impede the Regulator's ability to conduct timely and efficient investigations.
Mr Orr's evidence is that investigations regarding allegations of bullying and harassment are highly sensitive matters that involve highly confidential material. He said that the material must be carefully managed in order to maintain confidence in the regulatory framework and the methodologies used to investigate these types of complaints. Confidentiality of material is also of paramount importance to eliminate or minimise the potential for reprisals against complainants and witnesses.
Mr Orr's evidence is that interviews conducted by an Inspector during an investigation are generally recorded. Interviewees are advised that their interviews will be conducted in a confidential setting and that recordings of the interviews will not be released to the public. This enables and encourages the interviewee to speak openly with the Inspector. Mr Orr stated that while penalties may be imposed if a person fails to answer the Inspector's questions, this rarely happens because interviewees understand that the information they provide will remain confidential.
It appears that in the investigation of Ms Muller's complaint there was cooperation on the part of those being interviewed. Nevertheless, Mr Orr's evidence is that he is aware from his experience in dealing with complainants and witnesses that complainants are often reluctant to make complaints because they fear that there will be reprisals for making a complaint. He said that this issue is alleviated by the fact that complaints are made confidentially.
In Mr Orr's view an understanding that confidentiality will be maintained is critically important to the investigation process as many interviewees are reluctant to speak to Inspectors and fear reprisal for speaking out and telling the truth. He believes that the release of the recorded interviews would prejudice the effective exercise of an Inspector's powers and functions to investigate complaints effectively and confidentially. His concern is that if people who have information that could assist the Regulator are aware that their recorded interview could be released to the public, they will be less willing to cooperate with an investigation in the future.
He believes that some people providing information to an Inspector or the Regulator may be less forthcoming than they would otherwise be. They may simply answer the questions put to them and not provide additional information that might be relevant to the investigation. This would make the exercise of the powers and functions under the Act more difficult.
The Department submits that if a person is less willing to cooperate, it may mean that investigations would take longer to conduct and information would be harder to obtain. It says that in an industry as large as the mining industry, timely and efficient investigations are essential to the Regulator's ability to monitor and enforce compliance with the law.
CGU disputes the Department's assertion that people may be discouraged from coming forward with complaints if the withheld information is released. It submits that it is not reasonable to expect that a complaint to the Department will remain confidential. It submits that if the Department found a complaint to be substantiated it would be compelled to take action in order to discharge its statutory function. That action would result in the disclosure of information obtained in the course of the investigation. A complainant would be aware that this might be an outcome of the investigation of the complaint.
It further contends that the Department has the power to compel persons to attend interviews and answer questions. A failure to comply is an offence. It is also an offence for a person who is compelled to answer questions to give information that is false or misleading. Interviewees are made aware of their duty to cooperate and provide information that is not false or misleading. They are aware that the interview is recorded and that it may be used in public court proceedings.
CGU submits that in circumstances where the Department has coercive powers to compel persons to attend interviews and provide information, it could not reasonably be expected that disclosure would impede the Department's ability to conduct timely and efficient investigations. It further submits that it is a legal reality that penalties may be imposed for non-cooperation and that it is irrelevant that the Department may rarely impose penalties or bring a prosecution for such a breach.
[13]
Discussion
I have considered the nature of the withheld information, the context in which the information was supplied and the rationale for confidentiality.
[14]
The recorded interviews
I agree with CGU that the Department has coercive powers to compel persons to attend interviews and provide information. I also agree that those being interviewed would be aware that the interview was being recorded and that it may be used in public court proceedings.
However, in my view it is reasonable to expect that the release of the recorded interviews could result in some hesitation on the part of future interviewees to provide information. I accept Mr Orr's evidence in this regard. The knowledge that the information would be released outside of public court proceedings is reasonably likely to have a chilling effect on the extent of the willingness of future interviewees to engage with the investigative processes. It is reasonable to think that due to mistrust or the desire to avoid reprisals, some might limit their cooperation in such a way as to only answer the questions asked and to not provide additional information that could assist in an investigation.
In contrast, the maintenance of confidentiality provides an environment in which an interviewee is more likely to speak openly with the Inspector. I accept that this is an important consideration in an industry where there is genuine concern regarding reprisals.
In my view the release of the recorded interviews might be reasonably expected to prejudice the effective exercise by the Department of its functions. This is a public interest consideration against disclosure which deserves considerable weight as it goes to the maintenance of and confidence in the administration of the workers compensation Acts.
I also accept that if a person is less willing to cooperate, it may mean that investigations take longer to conduct, and information would be harder to obtain. This would prejudice the Department's interests in ensuring that the workers compensation scheme is able to operate effectively. This is a public interest consideration against disclosure which deserves considerable weight.
I have taken account of the public interest considerations in favour of release, including the role that CGU plays as a scheme agent. In the circumstances of this matter it is my view that greater weight should be given to the public interest consideration against disclosure of the recorded interviews. The Department's determination should be affirmed insofar as it concerns the recorded interviews.
[15]
Document 7
Document 7 is an informal counselling record, created during the counselling of the person who was the subject of Ms Muller's complaint. I am satisfied that this document contains information and opinions about that individual. She has not consented to the release of the information.
The investigation did not find Ms Muller's complaint to be substantiated and no formal action was taken against the subject of the complaint.
I accept Mr Orr's evidence that the informal counselling record would form part of the person's personnel file, and contains highly sensitive personal information.
I also agree with the Department that the disclosure of that information would disclose personal information and could reasonably be expected to contravene an information protection principle under the PPIP Act.
In the circumstances of this matter it is my view that greater weight should be given to the public interest consideration against disclosure insofar as they relate to document 7. This is the case notwithstanding the fact that CGU would be bound by the confidentiality requirements in section 243 of the 1998 Act.
The Department's determination should be affirmed insofar as it concerns document 7.
[16]
Documents 13, 14, 32 and 33
Each of these documents relate to Ms Muller. I am satisfied that these documents contain information and opinions about Ms Muller and other individuals.
As I have noted above, Ms Muller provided consent to the release of her personal information to CGU. CGU has also provided copies of information that Ms Muller has provided to it.
The GIPA Act is concerned with information and not documents. While documents 13, 14, 32 and 33 have not been released to CGU the redacted information that is contained in those documents is largely a duplication of the information that Ms Muller has provided to CGU. For the most part, the release of these documents would only release information that has already been revealed.
In the circumstances where Ms Muller has consented to the release of her personal information and the other information has already been released, I do not agree that the release of these documents could reasonably be expected to result in workers being less willing to make complaints in the future. My view may have been different if Ms Muller had not consented to the release of her personal information and if the other information had not already be revealed.
In the circumstances I am satisfied that the public interest consideration in favour of disclosure should be given greater weight than those against disclosure. The determination should be set aside insofar as it concerns documents 13, 14, 32 and 33.
[17]
Orders
1. The determination of the Department of Planning and Environment that is under review is affirmed insofar as it concerns document 7 and the recorded interviews.
2. The determination of the Department of Planning and Environment that is under review is set aside insofar as it concerns the remainder of the withheld information.
[18]
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: 03 August 2018