respondent. The decision under review is affirmed.
Key principles
An agency may refuse to deal further with an access application under s 60(1)(b1) where the applicant has previously been provided with access to the information under the GIPA...
Clause 5 of Schedule 1 to the GIPA Act (legal professional privilege) creates a conclusive presumption of an overriding public interest against disclosure of information that...
Where documents contain communications with external legal advisors prepared for the dominant purpose of legal advice or litigation, privilege will attach and reproduction of...
Public interest considerations against disclosure in the table to s 14 — notably clauses 1(d), 1(f), 1(g), 3(a), 3(b) and 6(1) — can, when established on evidence and given...
Issues before the court
Whether the Department correctly refused to deal further with parts of the access application on the basis the Applicant had previously been...
Whether claimed client legal privilege applies to identified documents and thus creates a conclusive presumption against disclosure (Schedule 1 cl 5...
Plain English Summary
Collins sought the IAB investigation report and annexures into his 2014 Public Interest Disclosure. The Department held ~800 pages, provided some material, declined to reprocess materials already given to Collins, and refused or limited access to other materials claiming legal professional privilege, privacy/tax secrecy, and other public interest grounds. NCAT found the Department had demonstrated prior disclosure for many documents and that legal privilege applied to legal advice, creating a conclusive presumption against disclosure. On evidence the Tribunal also accepted that disclosure could reasonably be expected to prejudice supply of confidential information, the agency's investigative and tax-administration functions, breach confidences, and reveal third-party personal/taxpayer information. Balancing the public interests, the Tribunal affirmed the Department's decisions, ordered release of one document (55.8) and allowed inspection (but not copying) of some procedural-material.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
1,689 words · generated 08/08/2026
Whether public interest considerations against disclosure (clauses 1(d), 1(f), 1(g), 3(a), 3(b), 6(1) in the table to s 14) were established and...
Appropriate form of access under s 72 where full copies would be prejudicial.
Cited legislation
1 cited instrument linked from this judgment.
What happened
Ken Collins lodged a Government Information (Public Access) Act 2009 (GIPA Act) request for the final Internal Audit Bureau (IAB) investigation report and annexures into his 2014 Public Interest Disclosure (PID). The PID alleged misconduct by seven officers of the former Office of State Revenue (now Revenue NSW). The IAB investigation concluded the allegations were unsubstantiated. The Department identified an investigation report with 62 annexures (about 800 pages). It provided certain documents, consulted third parties, resisted release of other documents on grounds including client legal privilege and statutory privacy/tax secrecy, and refused to reprocess parts of the request which it said had already been provided to the Applicant in prior GIPA applications or litigation. Collins sought review in NCAT.
At hearing, the Tribunal (Senior Member S Montgomery) reviewed three strands of decision-making by the Department:
a s 60 refusal to deal further with parts of the application because those parts had previously been provided (or were substantially the same as previously provided);
claims that certain documents were subject to client legal privilege and therefore conclusively subject to an overriding public interest against disclosure (Schedule 1 cl 5, GIPA Act);
asserted public interest considerations against disclosure in the s 14 table (clauses 1(d), 1(f), 1(g), 3(a), 3(b), and 6(1)) and whether those outweighed the public interest in disclosure; and
the appropriate form of access under s 72 where disclosure in the form sought might be prejudicial.
The Tribunal affirmed the Department's decisions. One document (55.8) was ordered released. For some material the Tribunal ordered inspection only; for privileged material and taxpayer-identifying material it refused release.
Why the court decided this way
The decision rests on statutory structure and the material before the Tribunal.
s 60 refusal to deal further: The Tribunal accepted the Respondent's factual evidence (affidavit of Ms Sims) showing that large swathes of the material had previously been provided to Collins in response to earlier GIPA applications and had been annexed to affidavits in prior proceedings. The Tribunal regarded s 60(1)(b1) (previously provided access) and the efficient administration aims underlying s 60 as authorising refusal to reprocess substantially the same information, particularly where voluminous. The Tribunal considered Commissioner of Police v Danis [2017] NSWCATAP 7 and concluded the refusal to deal further was reasonable and thus to be affirmed.
Legal professional privilege (Schedule 1 cl 5): Clause 5 creates a conclusive presumption that disclosure of client legal privileged material is against the public interest unless privilege is waived. The Tribunal applied the Evidence Act tests (client-lawyer relationship; confidentiality; dominant purpose of legal advice or litigation), relying on documentary content and the identity of the advisers (Crown Solicitor's Office and external counsel). The Tribunal accepted the Respondent established privilege over particular documents (12, 55.7, 56.1.1, 56.12, 56.17, drafts and reproductions of advice, and external advice copies) and noted that privilege had not been waived. The consequence was conclusive non-disclosure for those documents.
Public interest balancing for remaining documents: The GIPA Act creates a presumption favouring disclosure (s 5) and a structured list of public interest considerations against disclosure (s 14 table, Schedule 1). The Tribunal examined evidence from agency witnesses (notably Mr Lyon on confidentiality in PID handling and Mr Phillips on taxpayer confidentiality and operational impacts). It found that disclosure could reasonably be expected to:
prejudice the supply of confidential information useful for investigations (clause 1(d));
prejudice the effective exercise of the agency's functions (clause 1(f)), specifically tax administration and investigation functions, by eroding cooperation, increasing compliance costs, and risking reduced inter-agency information sharing; and
found an actionable risk of breach of confidence (clause 1(g)), revealing taxpayers' and staffers' personal information (clause 3(a)), contravening privacy principles (clause 3(b)), and potentially breaching taxation secrecy provisions, clause 6(1) referencing s 81-83 of the Taxation Administration Act 1996.
Each of these considerations was found established on evidence and assigned either significant or reasonable weight. The Tribunal balanced them against countervailing public interest considerations favouring disclosure, including Cassidy's (Applicant's) interest in his own personal information, transparency about how the PID was investigated, and the public interest in accountability. The Tribunal concluded the adverse public interest considerations (particularly confidentiality, privilege, and taxpayer secrecy) outweighed the public interest in disclosure for much of the material.
Form of access: For material where releasing copies would be prejudicial but inspection would allow the Applicant to see procedural aspects without creating a public record that could damage third parties or the agency, the Tribunal accepted inspection-only as an appropriate alternative under s 72(2)(d). It relied on earlier reasoning (such as Cousins v Ambulance Service (NSW) [2014]) that the form of access can alter the public interest calculus.
Before and after state of the law
Before this decision, NCAT and the NSW Administrative Decisions Tribunal had developed an established framework for GIPA claims: s 5 presumption of disclosure, s 13 balancing test, Schedule 1 cl 5 privilege presumption, s 60 grounds to refuse to deal where prior access exists, and s 72 alternatives for form of access. This decision applies and reinforces those principles in a PID/investigation context and sheds further practical light on how evidence about confidentiality and operational harm is assessed and weighted.
After Collins, practitioners have a reinforced authority that:
robust documentary and witness evidence that material was previously provided supports a s 60 refusal to reprocess voluminous overlapping requests;
external legal advice and documents prepared for legal purposes will attract the conclusive cl 5 presumption if the dominant purpose is legal advice or litigation and privilege wasn't waived;
evidence of investigatory practice and operational harm (including testimony from agency officers) can establish s 14 table considerations (1(d), 1(f), 1(g)) and that these can be given significant weight in the PID context;
inspection-only access is an appropriate, protective response where procedural transparency can be afforded without public release of sensitive third-party or taxpayer information.
Key passages with plain-English translation
"I am satisfied that the information ... has already been provided ... Given the volume ... this was a reasonable decision." Translation: If the agency shows with evidence that it already gave you the same documents earlier, it can decline to process the same request again, especially when the files are large.
"It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged ... unless the person ... has waived the privilege." Translation: If a document is legally privileged (e.g. legal advice), disclosure is automatically treated as contrary to the public interest unless the client gives it up.
"I accept that ... some individuals would be less likely to provide information ... if they could not expect ... confidentiality." Translation: People cooperating with internal investigations expect confidentiality; if government agencies publish such material, sources may stop helping, harming future investigations.
"Form of access: inspection rather than copies." Translation: The Tribunal can allow you to view documents at agency premises even where handing over copies would be unsafe.
What fact patterns trigger this precedent
This decision is most directly triggered where:
an applicant seeks investigative records of a PID or similar workplace investigation involving third-party personal information and taxpayer matters;
the agency can point to prior disclosures (in earlier GIPA/FOI requests or litigation) covering a substantial portion of requested material;
the record set includes communications with in-house or external legal advisers and legal advice reproduced in documents;
agency witnesses can credibly attest to likely operational harms from public release (loss of cooperation, deterred whistleblowers, inter-agency cooperation risks, taxpayer confidentiality breaches);
the applicant requests copies but the agency can propose inspection as a protective alternative.
How later courts have treated it
The Tribunal's reasoning expressly relies on and applies prior NCAT/ADT authorities: Commissioner of Police v Danis (review approach to s 60), AIN v Medical Council (onus and evidence for privilege), Curtin v Lord Howe Island Board (Clause 1(d) analysis), Cousins v Ambulance Service (form-of-access/inspection reasoning), Woolley v Lismore (public disclosure and knowledge), and Burke (procedural fairness as a public interest consideration). Collins reinforces these lines rather than altering them. Subsequent decisions will likely cite Collins for propositions about practical application of s 60 refusals in voluminous PID contexts, the evidentiary sufficiency for privilege claims, and the weight to be given to confidentiality in investigative settings.
Still-open questions
Threshold for "substantially the same" in s 60: Collins applied s 60(1)(b1) where documentary overlap was demonstrated, but borderline cases, where documents are similar but amended, remain fact-sensitive. How minor variations affect entitlement to reprocess remains a practical question.
Waiver of privilege in investigative contexts: Collins treats disclosure to a confidential investigator as not waiving privilege; but where investigators are internal and litigation is contemplated, courts may need clearer guidance on whether and when disclosure to investigators constitutes waiver.
Granularity of inspection: The Tribunal ordered inspection where appropriate. The practical limits, whether agencies can redact on-site for sensitive passages, or permit note-taking, or allow extracts of procedural material, may arise in future disputes.
Interplay with statutory secrecy: Collins relied on the TA Act to support non-disclosure. Future cases may further define when indirect identification or contextual disclosure amounts to contravening tax secrecy, especially where procedural descriptions could indirectly identify taxpayers.
Applicant's role as former employee: The decision notes an applicant may already possess some information due to prior role, but that does not equate to public disclosure for GIPA purposes. The line between 'known due to employment' and 'previous public disclosure' could be litigated where the applicant's access was informal or under confidentiality obligations.
Final note: This analysis summarises the Tribunal's findings in Collins v Department of Finance, Services & Innovation [2018] NSWCATAD 60. It explains the Tribunal's reasoning on s 60, Schedule 1 cl 5 (privilege), s 14 public interest considerations, and s 72 form-of-access options. It does not give legal advice.
This is general legal information, not legal advice. I can make mistakes. Before you rely on this or use any draft, get a qualified Australian lawyer to check it.
Judgment (18 paragraphs)
[1]
reasons for decision
Mr Kenneth Collins ("the Applicant") applied for information from the Department of Finance, Services and Innovation ("the Department") under the Government Information (Public Access) Act 2009 ("the GIPA Act").
In his access application the Applicant requested access to the following information:
a. All documents, records and information associated with the Public Interest Disclosure made by Ken Collins in 2014. Please ensure that the documentation, records and information include, but are not limited to, ALL of the documentation, records and information prepared by, provided to, retained by, or examined by:
a. Mr Craig Miller, Principle Internal Auditor, DFS
b. Mr Mark Loves, Senior Business Consultant, IAB
c. Mr Michael Doherty, Acting Chief Audit Executive, DFS
d. Mr John Hubby, Acting Chief Executive, DFS and
e. Mr Laurie Glenfield, Secretary (Former), DFS
He subsequently reduced the scope of the request; seeking information pertaining to:
The final report and annexures associated with a Public Interest Disclosure made by Ken Collins in 2014
The reference to "a Public Interest Disclosure" ("the PID") is a reference to allegations of wrongdoing made by the Applicant in relation to a number of officers of the former Office of State Revenue ("the OSR"). The OSR is now known as Revenue NSW and is a business division of the Department. The Applicant identified seven employees of the OSR as the subject of his allegations.
The Internal Audit Bureau ("IAB") undertook an investigation in relation to the Applicant's allegations. The report of the investigation ("the investigation report") concluded that none of the individuals identified by the Applicant had engaged in misconduct and the decision was made to take no further action in relation to the allegations. The Applicant was informed of the outcome of the investigation, but was not permitted to view the investigation report.
The Department identified the investigation report and its 62 annexures as falling within the scope of the access application. This material comprises approximately 800 pages of information. The information that is in issue in these proceedings has been filed with the Tribunal on a confidential basis.
The information sought contains personal, business and/or professional information about a number of third party persons. This includes taxpayer information, including details of compliance with taxation laws, unsubstantiated allegations of misconduct and human resources information, including health information.
The Respondent consulted a number of third parties in relation to the information and received a number of objections to the release of their personal information. In its decision regarding the access application the Department decided to provide access to some information in part and to refuse access to some information in full.
The Respondent made the following decisions:
1. a determination under section 58(1)(e) not to deal further with the access application due to information already available to the Applicant under section 60;
2. a determination that some information is subject to an overriding public interest against disclosure; and
3. a decision to grant the Applicant access to some information by way of inspection at its premises.
A schedule to the Internal Review decision dated 11 August 2017 ("the schedule") sets out a summary description of the documents that were identified as falling within the scope of the access application, the decision taken in relation to each documents and the relevant provisions in the GIPA Act on which the Respondent relies.
[2]
Issues for determination
The issues for determination are whether the decisions that the Respondent has made are the correct and preferable decisions.
[3]
Applicable legislation
The Applicant has a legally enforceable right to access the information that he requested unless there is an overriding public interest against disclosing the information. Section 5 of the GIPA Act establishes a presumption in favour of disclosure of government information.
General public interest considerations in favour of access to government information are set out in section 12 of the GIPA Act. The balance is always weighted in favour of disclosure. The Agency may take into account any other considerations in favour of disclosure which may be relevant.
The public interest balancing test for determining whether there is an overriding public interest against disclosure is set out in section 13 of the GIPA Act. Before deciding whether to release or withhold information, the Agency must apply the public interest test and decide whether or not an overriding public interest against disclosure exists for the information.
The only public interest considerations against disclosure that can be considered are those in schedule 1 and section 14 of the GIPA Act. In order for the Respondent to establish the asserted considerations against disclosure set out in the table to section 14 of the GIPA Act it must establish that the disclosure of the information could reasonably be expected to have the effect outlined in the table.
The Agency must apply the public interest test in accordance with the principles set out in section 15 of the GIPA Act.
[4]
Summary of material
The Respondent relies on the evidence of:
1. Mr Matthew Lyon, the Respondent's Manager, Government and Corporate Services, Internal Audit;
2. Mr Daniel Bushe, the Respondent's Acting Director, People Partnerships, People and Culture;
3. Mr Ian Phillips, the Respondent's Acting Executive Director, Technical and Advisory Services;
4. Ms Jenefer Plummer, the Respondent's Senior Project Officer, Privacy and GIPA Compliance, Ministerial Services; and
5. Third party evidence and submissions.
Ms Sims also provided written and oral submissions on behalf of the Respondent.
The Applicant relies on his own evidence and submissions in support of his case.
[Not for publication]
[Not for publication]
[Not for publication]
[Not for publication]
[5]
Determination not to deal further with the access application
The Respondent refused to deal with some aspects of the access application on the basis that the information was already available to the Applicant. The Respondent found that a considerable amount of material had been provided to the Applicant in response to pervious GIPA applications and in other proceedings.
The Applicant seeks copies of all the withheld information, including the information that has been provided already.
The schedule identified documents numbered 1, 2, 3, 4, 7.1, 8, 10, 11, 15, 16, 17, 19.2, 19.3, 19.4, 19.5, 19.6, 20.2, 21.2, 22.1, 23, 25, 25.2, 25.3, 25.4, 25.5, 25.6, 25.7, 25.8, 25.9, 26, 26.1, 28, 29, 30, 30.1, 30.2, 30.3, 30.4, 30.5, 30.6, 30.7, 30.8, 31, 31.1, 31.2, 31.3, 31.4, 31.5, 31.6, 31.7, 33, 39, 40, 40.1, 40.2, 40.3, 40.4, 40.5, 40.6, 40.7, 40.8, 40.9, 40.10, 41, 41.1, 41.2, 41.4, 41.5, 41.6, 41.7, 41.8, 41.9, 41.10, 41.11, 41.12, 41.13, 41.14, 41.15, 42, 55.2, 56.15 and 57 as having already been made available to the Applicant. The reviewer determined not to consider these documents.
Ms Sims provided an affidavit in which she gave evidence that she had examined the Respondent's files to determine which documents had already been provided to the Applicant. She concluded:
As a result of my review I identified that the following documents within the scope of the Applicant's current application had previously been provided to him:
Documents 19.2 (duplicate of 28), 19.3 (duplicate of 19.5 and 41.10), 19.4 (duplicate of 31.1 and 31.7), 25.5, 30, 30.1, 30.2, 30.3, 30.4, 30.5, 30.6, 31, 31.2, 31.3, 31.4, 31.5, 31.6, 40, 40.1, 40.2, 40.2.1, 40.2.2, 40.3, 40.4, 40.6, 40.10, 41, 41.2, 41.4, 41.6, 41.7, 41.8, 41.9, 41.10 (duplicate of 19.3), 41.12, 41.13, 41.14 and 41.15. These documents were disclosed to the Applicant in response to his 2013 GIPA Act access application and/or annexed to affidavits filed in his subsequent review proceedings in the Tribunal. The affidavits were filed in accordance with an order of the Tribunal requiring both parties to file evidence dated 23 April 2014.
Documents 1, 19.2 (duplicate of 28), 19.3 (duplicate of 19.5 and 41.10), 19.4 (duplicate of 31.1 and 31.7), 21.1, 25.5, 30, 30.1, 30.2, 30.3, 30.4, 30.5, 30.6, 31, 31.2, 31.3, 31.4, 31.5, 31.6, 40, 40.1, 40.2, 40.2.1, 40.2.2, 40.3, 40.4, 40.6, 40.10, 41, 41.2, 41.4, 41.5, 41.6, 41.7, 41.8, 41.9, 41.10, 41.12, 41.13, 41.14, 41.15, and 56.15. These documents were attached to affidavits filed in the IRC proceedings. The affidavits were filed in accordance with an order of the IRC requiring both parties to file evidence dated 7 January 2016.
[6]
Public interest considerations in favour of disclosure
Section 12(1) of the GIPA Act notes that there is a general public interest in favour of disclosing government information. Section 12(2) provides some examples of other public interest considerations in favour of disclosure. The Respondent has also identified further public interest considerations in favour of disclosure. The Respondent noted that the information includes the Applicant's own personal information and also noted that the information may be expected to inform or assist the Applicant in his enquiries into possible misconduct within the agency. The Respondent accepts that there is a strong public interest in favour of disclosing the Applicant's own personal information to him.
The Respondent also accepts that release of the information would be reasonably expected to enhance government accountability in showing how the investigation of the Applicant's public interest disclosure was run and the issues taken into account, as well as the investigation report's conclusions. I note that the Applicant has asserted that some aspects of his complaints were not included in the investigation. The release of the information would allow the Applicant to ascertain whether or not he is correct in that view.
The Applicant contends that because the complaint concerned serious allegations of fraud and corruption, the nature of the complaint warrants that considerations regarding confidentiality should be given less weight than considerations in favour of disclosure
I note that the Applicant raised issues of procedural fairness in relation to the investigative process. He also asserted that the Respondent's policy provided that he be given a copy of the investigation report and given the opportunity to comment on it and that it was procedural unfair that he not be given that opportunity.
I also note that as a senior prosecutions officer with the Respondent it is likely that the Applicant will have become aware of some of the withheld information. However, I do not consider that the information has been revealed through that process. Even if the information was available to the Applicant in his role as an employee with the Respondent, it has not been publicly disclosed. In my view it does not follow that the information has been revealed for the purposes of the GIPA Act: see Woolley v Lismore City Council [2013] NSWADT 10 from paragraph [83].
[7]
Clause 5 of schedule 1 to the GIPA Act
Section 14(1) of to the GIPA Act provides that 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 to the GIPA Act.
Clause 5 of schedule 1 to the GIPA Act 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.
The Tribunal has considered this provision in numerous matters. See for example the discussion by Senior Member McAteer in Webb v Port Stephens Council [2017] NSWCATAD 348 from paragraph [54].
Client legal privilege protects confidential communications between a lawyer and a client made for the dominant purpose of the lawyer providing legal advice or professional legal services to the client or for use in current or anticipated litigation.
In order for client legal privilege to attach to information, each element of client legal privilege must be satisfied. The essential elements of client legal privilege are set out below:
1. the existence of a client and lawyer relationship; and
2. the confidential nature of the communication or document, and
3. the communication or document was brought into existence for the dominant purpose of either:
1. enabling the client to obtain, or the lawyer to give legal advice or provide legal services, or
2. for use in existing or anticipated litigation.
These provisions have a current statutory authority within sections 118 and 119 of the Evidence Act 1995.
It is not only the primary record of the advice that is privileged. Summaries of the advice and documents recording instructions to provide legal advice attract the privilege if they are prepared or made for the purpose of providing advice to a client: see discussion by Senior Member Lucy in Tebbutt v Minister for Lands and Water [2015] NSWCATAD 95 at paragraph [34].
[8]
Public interest considerations against disclosure
The table to section 14 sets out the relevant public interest considerations against disclosure. Where there is no conclusive presumption of an overriding public interest against disclosure a balancing exercise must be conducted between public interest considerations in favour of disclosure and those against disclosure.
Much of the information in issue relates to the PID investigation. The Applicant was a senior prosecutions officer with the Respondent. He recommended prosecutions and his recommendations were not accepted. His PID alleged corruption in relation to that process. The PID was investigated under the PID Act, the Government Sector Employment Act 2013, Government Sector Employment Regulations 2014, Government Sector Employment Rules 2014 and the OSR's "Fraud and Corruption Internal Reporting Policy".
The Applicant contends that because of the nature of the complaint, any considerations against disclosure are outweighed by considerations in favour of disclosure.
The Respondent relies on the evidence given by Mr Lyon in regard to the highly sensitive nature of investigations into allegations of fraud and misconduct and the importance of confidentiality of the investigation process. The OSR Fraud and Corruption Policy required that all reasonable steps be taken to maintain confidentiality in relation to PIDs. Where an investigation finds the allegations to be unsubstantiated, the fact the inquiry/investigation has been carried out and, where practical, the results of the inquiry/investigation and the identity of the person who is the subject of the disclosure are to be kept confidential. In addition, a significant amount of sensitive personal information was collected as part of the investigation into the PID.
The Respondent also noted that one of the Applicant's allegations related to the handling of an investigation into the actions of taxpayers. It contends that disclosure of this information could reasonably be expected to contravene provisions of the Taxation Administration Act 1996 ('the TA Act") which prohibit the unauthorised disclosure of taxpayer information.
The Respondent has identified a number of public interest considerations against disclosure as relevant in this matter:
[9]
Clause 1(d)
Clause 1(d) of the table to section 14 of the GIPA Act provides that there is a public interest consideration against disclosure of information if disclosure of the 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.
The relevant elements of Clause 1(d) are:
1. the information was obtained in confidence;
2. disclosure of the information could reasonably be expected to prejudice the supply of such information to the Agency in future; and
3. the information facilitates the effective exercise of the Agency's functions.
The Respondent contends that Clause 1(d) applies to the investigation report and to the withheld documents identified in the schedule to the redetermination as documents numbered 5, 6, 9, 18, 19, 19.1, 20, 20.1, 20.3, 24, 24.1, 24.2, 24.3, 24.4, 24.5, 24.6, 34, 34.1, 34.2, 34.3, 34.4, 34.5, 34.6, 47, 48, 50, 51, 52, 53, 54, 55, 55.3, 55.4, 55.5, 55.11, 56, 56.1, 56.1.1, 56.1.2, 56.10, 56.11, 56.13, 56.14, 56.16, 56.17, 59, 60, 61, 61.1, 61.2, 61.3, 61.4, 61.5, 61.6, 61.7, 61.8, 61.9, 61.10, 61.11, 62,
I recently considered Clause 1(d) of the table to section 14 of the GIPA Act. In Curtin v Lord Howe Island Board [2017] NSWCATAD 86 at paragraphs [68] - [77] I discussed various decisions in which the provision had been considered. Those decisions suggest that the Tribunal is to engage in a relatively abstract analysis. The Tribunal is to ask whether, as a matter of reasonable expectation, if material of the kind sought to be protected were released, could it prejudice the supply of similar material to government in the future. In this context the word 'prejudice' is to be given its ordinary meaning, namely: 'to cause detriment or disadvantage'. It is not necessary that the decision-maker be satisfied that the release of the information will in fact prejudice the future supply of information.
The Tribunal is to consider the nature of the material sought to be protected, the extent to which material of that kind can only reasonably be obtained by confidential communication and the extent to which guarantees of confidentiality may be necessary. That is, would disclosure of the information sought damage the ability of the agency to obtain similar information in future? The agency's evidence is examined in regard to the conditions under which it conducts the service within which the information was received and the extent to which the information in issue facilitates the effective exercise of that agency's functions. The experience of the witnesses who expressed the relevant opinions is a significance factor.
[10]
Clause 1(f)
Clause 1(f) of the table to section 14 of the GIPA Act provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions.
The Respondent contends that this applies to the investigation report and to the withheld documents identified in the schedule to the redetermination as documents numbered 5, 6, 12, 13, 14, 24, 24.1, 24.2, 24.3, 24.4, 24.5, 24.6, 27, 47, 48, 50, 51, 52, 53, 54, 55, 55.3, 55.4, 55.5, 55.7, 55.8, 55.9, 55.10, 56, 56.1, 56.1.1, 56.1.2, 56.9, 56.10, 56.11, 56.13, 56.14, 56.16, 56.17, 58, 61, 61.1, 61.2, 61.3, 61.4, 61.5, 61.6, 61.7, 61.8, 61.9, 61.10, 61.11, and 62.
The Respondent subsequently conceded that it no longer opposed the release of document 55.8 and an order was made for its release to the Applicant.
The Respondent contends that this consideration is applicable to information demonstrating the Agency's decision making process in relation to the administration of taxation law. The Respondent also contends if a tax payer has access to this information they may be able to get an understanding of how the Respondent makes decisions for prosecutions, including thresholds for prosecution, and use this information in an attempt to avoid prosecution.
Mr Phillips gave evidence about the confidential nature of taxpayer investigations and how that confidentiality underpins the efficient administration of taxation laws and revenue recovery operations. He explained the Respondent's processes for ensuring the confidentiality of taxpayer information. In Mr Phillips' opinion, the Respondent's ability to efficiently and effectively administer taxation laws will be prejudiced by disclosure of information connected with a taxpayer investigation. In his affidavit he explained:
In my view, disclosure of information relating to a taxpayer investigation would have a detrimental effect on the ability of Revenue NSW to perform its functions. The confidence of taxpayers and grants recipients would be reduced, the scope for early resolution of disputes would also be reduced and the costs of compliance would be increased in both time and money. It would not take long for the culture of cooperation which has been cultivated by Revenue NSW for many years to be negatively impacted. In addition, the supply of information by other States, the ATO and other agencies could reasonably be expected to be at risk if it was considered by those agencies that the information they provided was at a high risk of being publicly disclosed.
In addition, I note that the information sought by the applicant includes allegations of corruption and improper conduct against senior officials of (then) OSR. The personal integrity and reputation of Tax Officers is an essential component to the ability of these officers to negotiate compliance outcomes without lengthy and costly litigation or prosecutions, which is essential to the cost effective management of tax system in NSW. In my view, public release of this information would have the effect of raising doubt in taxpayers' minds as to the integrity of the staff managing their information, and reluctance to supply that information to Revenue NSW in future.
[11]
Clause 1(g)
Clause 1(g) of the table to section 14 of the GIPA Act provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence.
The Respondent contends that this applies to the investigation report and to the withheld documents identified in the schedule to the redetermination as documents numbered 5, 6, 9, 18, 19, 19.1, 20, 20.1, 20.3, 24, 24.1, 24.2, 24.3, 24.4, 24.5, 24.6, 34, 34.1, 34.2, 34.3, 34.4, 34.5, 34.6, 47, 48, 50, 51, 52, 53, 54, 55, 55.3, 55.4, 55.5, 55.11, 56, 56.1, 56.1.1, 56.1.2, 56.8, 56.10, 56.11, 56.13, 56.14, 56.16, 56.17, 59, 60, 61, 61.1, 61.2, 61.3, 61.4, 61.5, 61.6, 61.7, 61.8, 61.9, 61.10, 61.11, and 62.
As I have noted above, the policies and procedures relating to grievance resolution and PID investigation processes emphasise the need for confidentiality over the collection, use and storage of the information provided to the Respondent.
Mr Lyons' evidence addresses the importance of maintaining confidentiality in relation to PIDs. The Respondent's staff members who were involved in the investigative process were asked to minimise risks to the confidentiality by limiting discussion of PID subject matter.
[Not for publication]
I am satisfied that information was provided to the Respondent in confidence in relation to the PID and the grievance resolution processes. The disclosure of the information could expose the Agency to an action for a breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence.
I am satisfied that this public interest consideration against disclosure is established. It should be given reasonable weight.
[12]
Clause 3(a)
Clause 3(a) of the table to section 14 of the GIPA Act provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to reveal an individual's personal information.
The expression "Personal information" is defined in Schedule 4(4)(1) to the GIPA Act as:
"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.
This consideration does not apply to information that is personal information of the Applicant. This is because his personal information is information already known to him and so it would not be revealed to him through disclosure. In addition, any personal information that is already known to the Applicant would not be revealed to him through disclosure. This includes any personal information contained in correspondence sent to or from the Applicant or evidence provided by the Applicant.
The Respondent contends that clause 3(a) applies to the investigation report and to the withheld documents identified in the schedule to the redetermination as documents numbered 5, 6, 7, 9, 12, 13, 14, 18, 19, 19.1, 20, 20.1, 20.3, 20.4, 24, 24.1, 24.2, 24.3, 24.4, 24.5, 24.6, 26, 26.1, 27, 32, 34, 34.1, 34.2, 34.3, 34.4, 34.5, 34.6, 37, 38, 43, 44, 45, 46, 47, 48, 50, 51, 52, 53, 54, 55, 55.3, 55.4, 55.5, 55.7, 55.9, 55.10, 55.11, 56, 56.1, 56.1.1, 56.1.2, 56.8, 56.10, 56.11, 56.13, 56.14, 56.16, 56.17, 59, 60, 61, 61.1, 61.2, 61.3, 61.4, 61.5, 61.6, 61.7, 61.8, 61.9, 61.10, 61.11, and 62.
A significant amount of sensitive personal information was collected as part of the investigation into the PID. I am satisfied that some of the withheld information concerns personal information of taxpayers and Respondent's staff members and that it has not been publicly released.
The Respondent acknowledges that the Applicant will be aware of some personal information of taxpayers, however at the time he would have become aware of the information due to his position with the Respondent, he was subject to a strict obligation of confidentiality and he remains under that obligation.
[13]
Clause 3(b)
Clause 3(b) of the table to section 14 of the GIPA Act provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to 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.
The Respondent contends that this applies to the investigation report and to the withheld documents identified in the schedule to the redetermination as documents numbered 5, 6, 7, 9, 12, 13, 14, 18, 19, 19.1, 20, 20.1, 20.3, 20.4, 24, 24.1, 24.2, 24.3, 24.4, 24.5, 24.6, 26, 26.1, 27, 32, 34, 34.1, 34.2, 34.3, 34.4, 34.5, 34.6, 37, 38, 43, 44, 45, 46, 47, 48, 50, 51, 52, 53, 54, 55, 55.3, 55.4, 55.5, 55.7, 55.9, 55.10, 55.11, 56, 56.1, 56.1.1, 56.1.2, 56.8, 56.10, 56.11, 56.13, 56.14, 56.16, 56.17, 59, 60, 61, 61.1, 61.2, 61.3, 61.4, 61.5, 61.6, 61.7, 61.8, 61.9, 61.10, 61.11, and 62.
The Respondent has identified information relating to taxpayers and various staff members as personal information for the purposes of this consideration. I am satisfied that the Respondent's assertion is correct. The release of that information to the Applicant would disclose personal information in potential contravention of section 18 of the Privacy and Personal Information Protection Act 1998.
I am satisfied that this public interest consideration against disclosure is established. It should be given reasonable weight.
[14]
Clause 6(1)
Clause 6(1) of the table to section 14 of the GIPA Act provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule that prohibits the disclosure of information.
The Respondent contends that this applies to the investigation report and to the withheld documents identified in the schedule to the redetermination as documents numbered 7, 9, 12, 13, 14, 18, 19, 19.1, 20.3, 24.6, 26, 26.1, 27, 32, 34, 34.1, 34.2, 34.3, 34.4, 34.5, 34.6, 37, 38, 43, 44, 45, 46, 47, 48, 50, 51, 52, 53, 54, 55, 55.3, 55.4, 55.5, 55.7, 55.9, 55.10, 59, 60, 61, 61.1, 61.2, 61.3, 61.4, 61.5, 61.6, 61.7, 61.8, 61.9, 61.10, 61.11, and 62.
The Respondent relies on section 81 of the TA Act which provides:
A person who is or was a tax officer must not disclose any information obtained under or in relation to the administration of a taxation law, except as permitted by this Division.
Section 83 of the TA Act provides:
The Chief Commissioner may disclose information obtained under or in relation to the administration of a taxation law unless that information will or is likely to:
(a) directly or indirectly identify a particular taxpayer, or
(b) disclose matters concerning the personal affairs of a particular taxpayer.
Some of the withheld information concerns the affairs of tax payers. This information includes tax payer's names, their legal representatives' names and the process followed to determine if these individuals had acted contrary to taxation law. The information is about assessment and processing of duty payments for property transactions that were the subject of a PID.
The Respondent contends that the release of the taxpayer's information will directly contravene section 81 of the TA Act. In addition, it contends that the release of information about the investigation of the PID may indirectly identify or disclose matters concerning the personal affairs of a particular taxpayer. The Respondent relies on Mr Phillips' evidence in support of this position.
I am satisfied that this public interest consideration against disclosure is established in regard to the withheld information that concerns the affairs of tax payers. It should be given significant weight.
[15]
Form of Access
Section 72 of the GIPA Act provided:
72 Forms of access
(1) Access to government information in response to an access application may be provided in any of the following ways:
(a) by providing a reasonable opportunity to inspect a record containing the information,
(b) by providing a copy of a record containing the information,
(c) by providing access to a record containing the information, together with such facilities as may be necessary to enable the information to be read, viewed or listened to (as appropriate to the kind of record concerned),
(d) by providing a written transcript of the information in the case of information recorded in an audio record or recorded in shorthand or other encoded format.
(2) The agency must provide access in the way requested by the applicant unless:
(a) to do so would interfere unreasonably with the operations of the agency or would result in the agency incurring unreasonable additional costs, or
(b) to do so would be detrimental to the proper preservation of the record, or
(c) to do so would involve an infringement of copyright, or
(d) there is an overriding public interest against disclosure of the information in the way requested by the applicant.
Note : Decisions about how to provide access are reviewable under Part 5.
The Tribunal considered the operation of section 72(2)(d) at some length in Cousins v Ambulance Service (NSW) [2014] NSWCATAD 48. Principal Member Higgins stated at paragraphs [60] - [64]:
Paragraph 72(2)(d) of the GIPA Act
I am not persuaded by the respondent's arguments as to the proper construction and application of para 72(2)(d) of the GIPA Act. In this regard the respondent argued that my construction as to the meaning and application of this paragraph, as described in Warren v NSW Trustee and Guardian [2013] NSWADT 178 at [59] and [60], was unfounded. It contended that it was correctly construed and applied by Judicial Member, Montgomery, in Turner v Corrective Services NSW (No 2) [2013] NSWADT 232 at [32] to [36].
In my opinion, the reasoning of the Tribunal in Turner is consistent with my reasoning in Warren. I note, in Turner, the decision the subject of review was the respondent agency's determination, under s 58 of the GIPA Act, to refuse the access applicant access to the information sought. What the applicant sought, was a copy of specified CCTV footage held by the respondent agency. The respondent agency, as it was required to do, identified the relevant competing public interest considerations for and against disclosure of a copy of the information sought. In this exercise, it identified that the public interest consideration against disclosure, in cl 2(e) of the table to subs 14(2) of the GIPA Act applied to a disclosure of a copy of the information sought: see Turner at [19]. The respondent agency then weighed the identified competing public interest considerations and found, on balance, that the public interest consideration against disclosure outweighed the public interest consideration in favour of disclosure the disclosure of a copy of the information sought. On review, the Tribunal found that the respondent's concerns (i.e. the overriding public interest against disclosure) would be addressed if the access applicant were to be given access to the CCTV footage in an alternative form (i.e. access by viewing the CCTV footage). Implicit in the Tribunal's reasoning is a finding that the decision of the respondent agency about the 'disclosure' of a 'copy' of the requested CCTV footage was correct.
Hence, I remain of the view that the circumstances set out in para 72(2)(d) of the GIPA Act are only applicable after an agency has identified any public interest consideration against the disclosure of the information in the form sought and where a public interest consideration against disclosure is identified, weighing that public interest consideration against the public interest consideration in favour of disclosure in the form sought (i.e. the s 13 test). In weighing the competing public interests the agency can take into account any relevant factor falling within s 55 and the inability to grant conditional access (see 73(1)).
If the s 13 test is not satisfied, then subs 9(1) provides that the access applicant has a legally enforceable right to be provided with the information in the form sought.
On the other hand, if the s 13 test is satisfied and there is an overriding public interest against disclosure of the information in the form sought, in my view, para 72(2)(d) makes provision for the agency to consider whether disclosure of the information sought, in a form, other than that requested by the access applicant, would alter the balance between the competing public interests so that the public interest considerations against disclosure no longer outweigh the public interest considerations in favour of disclosure if access is granted in an alternative form. This approach, in my view, is also consistent with the structured approach to decision making, under the GIPA Act, as noted by the Appeal Panel, in Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19, at [25].
[16]
The weighing process
As I have stated above, it is my view that the determination to not deal with the further request pursuant to section 60 of the GIPA Act, in circumstances where the information has already been made available to the Applicant, should be affirmed as the correct and preferable decision.
As I have noted above, I have agreed that document 55.8 should be released and an order was made to that effect.
I have also found that the considerations in clause 5 of schedule 1 to the GIPA Act apply to those documents over which legal privilege has been claimed. Therefore, it is conclusively presumed that there is an overriding public interest against disclosure of that material.
In regard to the form of access, I am satisfied that while there is an overriding public interest against disclosure of the information in the way requested by the Applicant, to allow the Applicant to access some of the information by way of inspection would remove my concerns about the public release of this information. I agree that this approach permits the Applicant to have access to information regarding the investigation process while also protecting the interests of other individuals named in the documents. In my view that is the correct and preferable decision in relation to this aspect of the application.
In relation to the remaining withheld information, the Tribunal is to determine where the balance lies between the public interest considerations for and against disclosure. The balancing exercise is a question of fact and degree, requiring the weighing of competing matters.
Section 5 of the GIPA Act establishes a presumption in favour of disclosure of government information unless there is an overriding public interest against disclosure. Therefore, the requested information must be released unless there is an overriding public interest against disclosure.
I have set out above a number of public interest considerations in favour of disclosure that I consider are relevant in this matter. Section 13 of the GIPA Act sets out the public interest balancing test for determining whether there is an overriding public interest against disclosure. The balance is always weighted in favour of disclosure. The public interest considerations against disclosure listed in the Table to section 14 are the only considerations that may be taken into account.
[17]
Order
1. The decision under review is affirmed.
[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
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: 19 March 2018
The Respondent submits that the correct and preferable decision is to refuse to deal further with the access application insofar as the information has already been released to the Applicant.
Section 60 of the GIPA Act provides:
60 Decision to refuse to deal with application
(1) An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason):
(a) dealing with the application would require an unreasonable and substantial diversion of the agency's resources,
(b) the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision on the application,
(b1) the applicant has previously been provided with access to the information concerned under this Act or the Freedom of Information Act 1989,
(c) the applicant has failed to pay an advance deposit that is payable in connection with the application,
Note : See section 70.
(d) the information is or has been the subject of a subpoena or other order of a court for the production of documents and is available to the applicant as a result of having been produced in compliance with the subpoena or other order.
(2) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency is not required to have regard to any extension by agreement between the applicant and the agency of the period within which the application is required to be decided.
(3) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency is entitled to consider 2 or more applications (including any previous application) as the one application if the agency determines that the applications are related and are made by the same applicant or by persons who are acting in concert in connection with those applications.
(4) Before refusing to deal with an access application because dealing with it would require an unreasonable and substantial diversion of an agency's resources, the agency must give the applicant a reasonable opportunity to amend the application. The period within which the application is required to be decided stops running while the applicant is being given an opportunity to amend the application.
(5) Notice of an agency's decision to refuse to deal with an access application must state the agency's reasons for the refusal.
(6) An applicant is not entitled to a refund of the application fee when the agency refuses to deal with the application.
In Commissioner of Police v Danis [2017] NSWCATAP 7 the Tribunal's Appeal Panel considered the approach to be taken when reviewing a section 60 decision and observed at paragraph [43] - [45]:
43. Section 60 is clearly designed to give agencies some flexibility in the administration and processing of access-to-information requests. Each of the grounds has at its core the sensible and efficient of deployment of agency resources. Access applicants generally are assisted if agencies are not tied down by voluminous applications (see (a)) or by having to reprocess applications that have already received attention either through previous determinations (the focus of (b) and (b1)) or by other official means (the focus of (d)). An agency may refuse to deal with a request on one of the grounds found in s 60(1)(d), and thereby avoid the need to make a final decision as to the merits of the request. Read together it can be seen that the grounds listed in s 60(1) have as an aim the avoidance of wasteful use of administrative resources (see especially (a)) or situations where the applicant has already obtained a practical result (b), (b1), and, arguably (d)).
44. Provisions like this work to the benefit of access applicants who only have a GIPA Act application as their means of getting access to government information of interest to them. They tend also work to the benefit of first-time or new applicants over repeat applicants.
45. For these reasons, it can be said that the objectives of the GIPA Act are advanced, in particular the object set out at s 3(2)(b):
It is the intention of Parliament:
…
(b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
The relevant question for consideration in regards to section 60 is whether or not the Applicant has previously been provided with access to the information. It is apparent from the material before me that this is the case. I am satisfied that the information that is the subject of this aspect of the determination has already been provided to the Applicant. This has either been provided directly by the Respondent in response to a GIPA access application or through litigation. The Respondent therefore has discretion in regard to whether it will deal with the further request. It has refused to deal with the request on this basis. Given the volume of the material that falls within this category, this was a reasonable decision. In my view that determination should be affirmed as the correct and preferable decision.
As noted in Burke v Health Education and Training Institute [2016] NSWCATAD 194 at paragraph [44]:
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.
Mr Lyon was cross-examined in relation to the Respondent's approach to affording procedural fairness during the investigative process. His evidence was that the subject of the complaint is afforded procedural fairness whereas the complainant is provided with support in order to ensure that they are not subject to reprisal.
In the present matter, the Applicant was the complainant. He was not the subject of the investigation and did not stand to be the subject of disciplinary action. There was a need to afford natural justice to the subjects of the disclosure and associated investigation. However, as the complainant the Applicant was not required to be afforded the same rights. In any event there is no basis for a finding that there was any failure by the Department to afford the Applicant procedural fairness. His disclosure was acknowledged in writing and he was notified of the outcome of the disclosure as required by the Public Interest Disclosure Act 1994 ("the PID Act").
In those circumstances I am not satisfied that the public interest in complying with the rules of procedural fairness provide an additional a public interest consideration in favour of disclosure to the Applicant.
The Applicant relies on the Appeal Panel decision in AIN v Medical Council of New South Wales [2015] NSWCATAP 241. At paragraph [25] the Appeal panel stated:
…[T]he Tribunal can only make findings of fact on the basis of evidence or, more broadly, on the basis of the "relevant factual material" before it (Administrative Decisions Review Act 1997 (NSW), s 63(1)). Where an agency claims that certain information would be privileged from production in legal proceedings on the ground of client legal privilege, it has the onus of establishing this (see GIPA Act, s 105 and Sch 1, cl 5). This means it is required to establish the factual matters necessary to found a claim under s 118 or s 119 of the Evidence Act, including that relevant persons are a client and a lawyer, that a document or communication is confidential and that the dominant purpose for which a communication was made or a document was prepared is one contemplated by the provision relied upon. Whilst some of these matters can, in some cases, be found in or inferred from the document the subject of the privilege claim, it is almost always necessary to provide some evidence relevant to the privilege claim before it can be concluded that s 118 or s 119 applies. It is not uncommon in GIPA Act proceedings for an agency to underestimate the need for evidence to establish privilege. That occurred, to some extent, in this case.
The Respondent has identified a number of documents which it contends are captured by Clause 5 of schedule 1 to the GIPA Act. The Respondent submitted:
Documents 12, 55.7, 56.1.1, 56.12 and 56.17 are communications of legal advice and/or correspondence in relation to contemplated or commenced prosecution action between a legal practitioner and a client, or extracts of such advice or correspondence. Document 24.6 is a letter requesting legal advice from the Crown Solicitor's Office in relation to a proposed prosecution. Documents 55.7 and 55.9 are drafts of the same letter.
…
Documents 55.10, 56.9 and 58 … reproduce legal advice obtained from external legal advisors.
I am satisfied that this is a case in which matters can be found in or inferred from the document the subject of the privilege claim, The Respondent correctly noted that these documents are communications with external legal advisors, namely the Crown Solicitor's Office and barristers.
Having reviewed the material for which the claim of legal professional privilege is made, I am satisfied that the claimed material falls within the definition and description of material which can be subject to a valid claim of legal professional privilege. I am also satisfied that the reproduction of legal advice is subject to legal professional privilege. The privilege has not been waived.
While the advice and communications were disclosed to the IAB investigator as part of his investigation, I accept that the investigation was undertaken on a confidential basis and that the investigation report and its annexures were issued to the Department on a confidential basis. In my view, confidentiality has been maintained.
As a result there is a conclusive presumption of an overriding public interest against disclosure of the material subject to the legal professional privilege claim.
Section 6E of the PID Act requires that agencies have a PID policy and a designated officer who is responsible for receiving PIDs on behalf of the agency. I agree that dealing with PIDs is a relevant function of the Respondent.
I accept that part of the Respondent's functions includes the conduct or commissioning of investigations in response to grievances and PIDs. In this matter, there is clear evidence of the Respondent's procedure in dealing with PIDs and grievances. The approach taken to PIDs was governed by legislation and the OSR's Fraud and Corruption Internal Reporting Policy.
Mr Lyons gave evidence in regard to the nature of investigations into allegations of fraud and misconduct. This involves balancing a number of competing interests. These include the public interest in ensuring allegations are thoroughly investigated, ensuring the individual who lodged the disclosure does not face retaliation and, where an allegation is prove to be unfounded, protecting staff from serious reputational and professional damage. Mr Lyons gave evidence about the importance of confidentiality of the investigation process.
I am satisfied that some individuals would be prepared to provide information to assist the investigation of a PID regardless of whether or not the information that they provided would be kept confidential. However, I accept that it is likely that some individuals would be less likely to provide information for investigations of PIDs in the future if they could not expect that this type of information would be kept confidential. This in turn would affect the Respondent's ability to carry out these investigations.
[Not for publication]
I am satisfied that this public interest consideration against disclosure is established. It should be given significant weight.
I accept the Respondent's argument that the effective performance of its investigative functions depends to a large extent on the cooperation of those who have relevant information. If information obtained confidentially is provided to an applicant under the GIPA Act, then that disclosure could reasonably be expected to have a substantial adverse effect on the effective performance of those functions.
I also accept that the absence of confidential channels of communication would inhibit the Respondent's capacity to identify possible employee misconduct and it would compromise the Respondent's ability to continue to conduct investigations of this nature in the same manner that it has been able to do to date.
I am satisfied that this public interest consideration against disclosure is established. It should be given significant weight.
I agree with the Respondent that the information about taxpayers, including their names, identifying details and the fact they were subject to an investigation, is personal information. A decision was made not to prosecute these individuals and their identities and other personal information has not been publicly released.
The release of this information to the Applicant would be unrestricted and effectively it would be release to the world. Therefore, disclosure of the document containing that information could reasonably be expected to reveal an individual's personal information. I am satisfied that this public interest consideration against disclosure is established.
However, I note that some of the Respondent's staff members to whom the personal information relates have not objected to its release. I would give it minimal weight insofar as it concerns the personal information of those individuals. Significant weight should be given to the information of the other individuals and to the tax payers.
The Respondent contends that the information in issue includes material which, if publicly circulated, is likely to cause significant prejudice to both the Department's ability to perform its functions and individuals who were the subject of the PID, taxpayer and personal grievance investigations.
In relation to the transcripts of interviews, documents subject to legal privilege and the taxpayer information, the Department does not consider there to be any form of access which satisfactorily addresses the risks of disclosure of the information. I agree with that view.
However, the Respondent submits that information about the procedural aspects of the investigation into the public interest disclosure may be accessed by way of inspection only. It submits that this approach protects the privacy and personal interests of the individuals named in those documents, while also allowing the Applicant to view information as to how the investigation into his allegations was carried out.
The Respondent acknowledges that the Applicant has a strong interest in the conduct of the investigation. Accordingly, it submits that the correct and preferable decision is to allow the Applicant to inspect information as to how the investigation was conducted.
The Respondent otherwise remains of the view that the supply of copies of the previously undisclosed information to the Applicant would be highly prejudicial to both the future ability to investigate public interest disclosures and to the subjects of the public interest disclosure, against whom the allegations were determined to be unfounded. I also agree with that view.
The identified considerations against disclosure will only be relevant if it is established that the disclosure of the information could reasonably be expected to have the asserted effect. In any event, the mere fact that disclosure of the withheld information could reasonably be expected to lead to the identified outcome is not sufficient to allow the consideration against disclosure to override the presumption in favour of disclosure. It is necessary to determine what weight should be given to the various criteria having regard to the general terms of the GIPA Act, and the presumption in favour of disclosure.
In each of the categories of information that I have referred to above I have indicated that I am satisfied that this public interest consideration against disclosure is established and I have also indicated the weight to be given to the public interest consideration against disclosure. With one exception, I have indicated in each case that the public interest consideration against disclosure is established and should be given either significant or reasonable weight. The exception is in relation the personal information of individuals who have not objected to its release. I am nevertheless of the view that the personal information should not be released to the Applicant because of the application of the other considerations against disclosure. In particular Clause 1(d) and clause 6(1) of the table to section 14 of the GIPA Act.
I have agreed with the Respondent's position in regard to each category of the withheld information. It follows that the Respondent's decision to refuse to release the information should be affirmed.