The following summary is largely taken from the parties' submissions to the extent that they record facts not in dispute and from parts of the evidence not in dispute.
The Applicant was attested as a probationary constable on 16 May 1997. Thereafter, she completed further education and obtained the Bachelor of Policing and was promoted to the rank of Senior Sergeant. In 2016, she underwent the Inspectors promotion recruitment process and successfully ranked number 26 in the State on the Inspectors Promotion List for 3 years commencing on the 2017 list. In 2018, following a restructure of the Respondent, the 2017 list was extended for a further period of one year.
On 16 November 2018, the Applicant commenced an approved career break. She took leave without pay to undertake the position of Deputy Director Control Centres, Northern Control Centre, Clinical Operations, which was recently retitled to "Associate Director Clinical Operations, NSW Ambulance". During that period of leave the Applicant remained eligible for promotion to the rank of Inspector.
On 6 January 2020, the Applicant received a phone call and follow up email from a member of the Police Promotions Unit to confirm that she was the highest ranked officer on the Inspector list for the position of Inspector, Duty Officer, OIC at The Hume Police District, Yass ("the Yass position") and she commenced the process of paperwork and clearances to take up that position.
On 22 April 2020, the Applicant received a phone call and follow up correspondence from Superintendent Bingham, advising her that she was deselected from the eligibility list for the Yass position due to medical reasons, as she had medical restrictions and was not operationally fit for the position. She stated that she was not aware of, and had not been advised of any medical restrictions that she was subject to, and she requested copies of that information from Superintendent Bingham. However, Superintendent Bingham was unable to further elaborate on what these restrictions were and he advised her to contact the Police Medical Officer ("PMO") to receive a copy.
The next day, the Applicant contacted the PMO to request a copy of the documents and was advised that she needed to contact the Promotions Unit. She told the PMO that the Commander of the Promotions Unit had advised her to contact them, but she was again directed to the Promotions Unit, although the PMO advised her that they would contact the Promotions Unit to clarify the matter. She again contacted the Promotions Unit and advised of her difficulties in obtaining the documentation and a few hours later she received the PMO report, but not the report of the NSWPF Staff RECON Physiotherapist report. She then requested a copy of the NSWPF Staff RECON Physiotherapist report from the Promotions Unit, as it was referred to in the PMO report, but her request was refused and she was advised that she needed to contact the physiotherapist directly. She later sought and received a copy of that report directly from the physiotherapist.
On 21 January 2021, the Applicant received a telephone call from Ms Cannock of the Promotions Unit, in which she was advised of a final decision to deselect her from the eligibility list for the Yass position. She requested a copy of the Independent Medical Examination report ("IME") during that phone call but her request was refused. Later that day she received the official correspondence from Superintendent Bingham advising of her deselection and that a recent independent medical review has been considered. As a result, she believed that the specialist orthopaedic surgeon conducting the IME had provided advice to the Respondent that she was unsuitable for both the Yass position and operational policing duties.
The Applicant stated that she decided to end her career with the Respondent as a result of that decision and the overall impact that the process had on her wellbeing and the fact that it was still unclear about her operational status and its impact on her future with the Respondent. She resigned effective from 16 January 2021. On 16 February 2021, she received a copy of the IME report.
The Respondent provided the Applicant with a Schedule of documents, which refers to documents described as "Godfrey Reports". These reports are discussed later in this decision in relation to the evidence of Mr Reid. The Respondent refused to release some of the information contained in the Godfrey Reports on the ground of legal professional privilege (LPP), but its decision not to release the majority of the information listed in the Schedule was based upon public interest considerations set out in cll (e), (f) and (h) of the Table to s 14 of the GIPA Act.
[2]
The access application
The Applicant sought access to the following information:
1. A complete copy of her personnel file/s, including but not limited to any medical report pertaining to her fitness to be employed as a Police Officer in the NSWPF;
2. A complete copy of any workers compensation and/or injury management file/s pertaining herself; and
3. A complete copy of any files pertaining to her held by the office of the PMO.
The Applicant asserted that the information that she is seeking is personal in nature and relates to her only and that she wants to obtain the information to get answers and be provided with closure as to why she was deselected from the eligibility list for the Yass position.
On 28 January 2021, the Applicant was advised by way of a Notice of Decision from the Respondent to Ms Casey Young of the NSW Police Association ("Notice of Decision") that:
…A determination has been made under section 51 (1) of the GIPA Act, that your application is invalid as the application is for information which can be obtained outside the GIPA Act…
On 24 February 2021, Ms Young wrote to the Respondent on behalf of the Applicant, submitting an application for internal review of the Notice of Decision dated 28 January 2021.
On 9 April 2001, the Applicant was advised by way of a Notice of Review Decision from the Respondent to Ms Young "'Notice of Review Decision") that:
…Pursuant to section 58 (1) (d) of the GIPA Act I have decided to provide access to the requested information except where there is an overriding public interest against disclosure of the information.
The Respondent stated that it had regard to the public interest considerations in favour of disclosure of the information sought and considered the relevant personal factors of the application, including her motives for making the application. In particular, the Respondent noted that the Applicant sought the requested information in order to seek a review of the decision to deny her a promotion on medical grounds. It gave some weight to the considerations in favour of disclosure, but gave significant weight to the public interest considerations against disclosure and decided that the possible prejudice to the exercise of its management functions, including the deliberative process relating to recruitment, outweighs any public interest in favour of disclosure, as does the expectation that agencies not reveal personal information. It concluded that there are overriding public interest considerations against disclosure of the withheld information.
[3]
Applicable legislation
The Applicable legislation is not in dispute.
In Veall v Department of Planning and Environment [2018] NSWCATAD 47 Senior Member Dinnen summarised the relevant legislative provisions and legal principles that apply to applications under the GIPA Act at [7]-[23]:
Tribunal's jurisdiction and powers
7. The Tribunal's jurisdiction to conduct this review derives from s100 of the GIPA Act read with s 28 of the Civil and Administrative Tribunal Act 2013 (NSW) and s 9 of the Administrative Decisions Review Act 1997 (NSW) ("the ADR Act").
8. In determining the application, the Tribunal is to decide what the correct and preferable decision is having regard to the material before it: ADR Act, s 63(1). The Respondent bears the onus of satisfying the Tribunal that the decision it has made is the correct and preferable decision: GIPA Act, s 105(1). The Respondent is not limited to defending the matter on the same basis as it made its original decision: Public Service Assn v Premier's Department [2002] NSWADT 277 at [57] and [59].
9. In determining the application, the Tribunal may affirm the decision, vary the decision, set aside the decision and make another decision in substitution for the decision set aside, or set aside the decision and remit the matter for reconsideration by the Respondent in accordance with any directions or recommendations of the Tribunal: ADR Act, s 63(3).
10. In determining the application, the Tribunal is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure: s 107(1) of the GIPA Act.
The GIPA Act
11. Section 3 (1) of the GIPA Act provides:
3 Object of Act
(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.
12. Section 3 (2) (a) of the GIPA Act requires that the Act be interpreted and applied so as to further that object.
13. Section 5 of the GIPA Act establishes a presumption in favour of disclosure of government information. An access Applicant has a legally enforceable right to access the information requested unless there is an overriding public interest against disclosing the information: section 9(1) of the GIPA Act.
14. Section 12 of the GIPA Act sets out the general public interest consideration in favour of access to government information. Section 12(1) of the GIPA Act sets out a general public interest in favour of disclosing government information. Section 12 (2) provides that the agency may take into account any other considerations in favour of disclosure which may be relevant.
15. 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. Before deciding whether to release or withhold information, an agency must apply the public interest test and decide whether or not an overriding public interest against disclosure exists in regard to the information sought. Section 13 requires the decision-maker 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.
16. The only public interest considerations against disclosure that can be considered are those identified in section 14 of the GIPA Act. This includes considerations set out in schedule 1 to the GIPA Act. Considerations against disclosure will only be relevant if it is established that the disclosure of the information could reasonably be expected to have the effect outlined in the table to section 14 of the GIPA Act. (Omitted).
17. Pursuant to section 105 of the GIPA Act the burden of establishing that the decision is justified lies on the Respondent.
18. 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, and is a task not amenable to mathematical calculation": Battin v University of New England [2013] NSWADT 73 at paragraph [74]. In undertaking this exercise the Tribunal is to be guided by section 15 of the GIPA Act.
19. Section 54 of the GIPA Act requires an agency to take such steps (if any) as are reasonably practicable to consult with a person before providing access to information relating to the person in response to an access application.
20. Under section 55 of the GIPA Act, the Tribunal is entitled to consider the Applicant 's motives for making the application to the extent that it is relevant to whether disclosure could reasonably be expected to have any of the effects referred to in clauses 2 - 5 of the Table to section 14. 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.
"Could reasonably be expected…"
21. The words "could reasonably be expected to" have been held to require "something more than a mere risk or chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived": Leech v Sydney Water Corporation [2010] NSWADT 198 at [28], adopted in Flack v Commissioner of Police, NSW Police Force [2011] NSWADT 286 at [41]-[42] and cited in Roy v Commissioner of Police, NSW Police Force [2012] NSWADT 120 at [28]. While it must be a "real" risk, the chance of it materialising need not be more probable than not: Neary v State Rail Authority [1999] NSWADT 107 at [35]-[36] and the cases there cited. The phrase "'simply calls for an "objective assessment', on the evidence before the Tribunal, as to whether the claimed effects could be expected to arise, from the standpoint of a reasonable administrator. Ultimately, it is, of course, a question of fact": Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45].
22. In Attorney General's Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180 at 190, Bowen CJ and Beaumont JJ interpreted the term in the following way:
In our opinion, in the present context, the words "could reasonably be expected to prejudice the future supply of information" were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd, or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any 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...
23. The word "expected" is not to be given too wide a meaning in light of the objectives of the statute: Cockcroft per Sheppard J at 112. The occurrence of the prejudice does not have to be established on the balance of probabilities but there must be something more than a possibility, risk, or chance of the event occurring: Cockcroft per Bowen CJ and Beaumont J at [106].
[4]
The issues for determination
The Respondent initially relied upon cll (1) (e), (f) and (h), but by consent, cl (1) (d) was added at the commencement of the hearing. Therefore, the Tribunal is required to determine the following matters:
1. Does the conclusive presumption against disclosure of the information contained in the Godfrey Reports listed at pages 178 to 183 and 550 to 560 in the Schedule of documents apply on the grounds of legal professional privilege: Section 14 (1) and Sch 1, cl 5 of the GIPA Act.
2. Does the public interest against disclosure in cll 1 (d), (e), (f) and/or (h) in the table to s 14 (2) of the GIPA Act apply to the balance of the withheld documents and, on balance, do these considerations outweigh those in favour of disclosure.
3. Is the correct and preferable decision one that there is an overriding public interest against disclosure of the withheld information or any part or parts of it.
[5]
Burden and standard of proof
In Seremetis v Commissioner of Police; Seremetis v Department of Communities and Justice [2020] NSWCATAD 317, Senior Member Goodman SC observed at [36] that:
The onus of establishing that an agency's decision is justified lies on the agency: s 105 GIPA Act. That means the agency must, first, identify the information contained in each document which it contends should be withheld from the Applicant because the public interest considerations against disclosure of the information contained in the document outweigh those in favour; and secondly justify its decision through submissions and evidence, sufficient to satisfy the Tribunal: Taylor v Office of Destination NSW [2018] NSWCATAD 195 at [20]; Forbidden Foods Pty Ltd v Rice Marketing Board of New South Wales [2020] NSWCATAD 18 at [52].
In Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 the Appeal Panel considered the nature and probity of the evidence required to establish that disclosure of the information could reasonably be expected to have one of the effects in the Table to s 14, referring to Searle and the authorities discussed in that decision, and held:
59. Based on these authorities when considering the evidence on which it is asserted that disclosure "could reasonably be expected" to have a particular effect, the following principles should be kept in mind:
(1) a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient;
(2) there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect;
(3) prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses.
The Tribunal must base its findings of fact on "logically probative material" and not on "mere suspicion or speculation" as a corollary of its obligation to act reasonably: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 ("Pochi") at 62, 68 (Deane J); [1980] FCA 85; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCA 93 ("Sullivan") at [5]-[8], [15]-[17] (Logan J). It is an error of law for the Tribunal to make a finding of fact with no evidence, or no probative evidence, to support it. The Appeal Panel applied this reasoning in Meacham v Commissioner of Police [2020] NSWCATAP 107 at [54] and [83], respectively.
[6]
The Respondent's case
In the open hearing, the Respondent tendered the following evidence:
1. Affidavit of Andrew Reid sworn 18 June 2021 ("Reid Affidavit"); and
2. Affidavit of Superintendent Scott Bingham affirmed 29 June 2021 (Bingham Affidavit).
The Respondent relied upon its Outline of Submissions dated 30 June 2021 and Mr Watts also made oral submissions.
Mr Reid deposed that he is the Director in the Employment and Safety Law Division of the Office of General Counsel ("OGC") of the Respondent. He was not required for cross examination and his Affidavit was admitted into evidence without objection and marked as exhibit "R1".
Mr Reid stated that the OGC is responsible for providing legal advice and services to the Commissioner of Police and the NSW Police Force ('NSWPF') and also manages engagement of external legal services. The OGC comprises lawyers, legal secretaries and support staff and it is requirement of employment that lawyers of the OGC maintain a current practising certificate.
Mr Reid stated that in or about late-October to early-November 2020, he was asked to provide legal advice to the Respondent regarding a decision about appointing the Applicant to the Yass position, based on the available information. He provided his advice as a comment to a Godfrey Report, which was prepared by Workforce Capability for the purposes of deliberating on the Applicant's appointment. Access to Godfrey Reports and the comments in them are restricted to those people to whom the report is addressed for the purposes of obtaining their comments.
On 3 November 2020, Mr Reid provided written legal advice as a comment in the Godfrey Report that is contained at pages 181 and 558 of the Schedule of documents. Those documents contained a header to the effect that they are "strictly confidential" and are "subject to legal professional privilege and that they must not be disclosed outside the NSW Police Force without the consent of the General Counsel". He prepared his entries in the Godfrey Report for two reasons: (1) to provide legal advice; and (2) in anticipation of future litigation by the Applicant, noting the information that the Respondent had received from the Police Association of NSW on her behalf. Further, on or about 23 September 2020, he had a discussion with a number of representatives of the Human Resources Command, in which he provided legal advice concerning the requirement for an applicant to meet the inherent requirements of the position, adjustments, work health and safety considerations and less favourable treatment. That conversation is summarised in the Godfrey Report listed at page 550 of the Schedule of documents.
[7]
Clause 1 (e) of the Table to section 14 of the GIPA Act.
Clause 1 (e) provides that there is a public interest against disclosure where this could reasonably be expected to have the effect of revealing a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of the NSW Police Force.
Superintendent Bingham stated that it is critical that members of Workforce Capability and other individuals and stakeholders within the NSWPF are able to have frank and fulsome deliberations about an officer's suitability for appointment to a role within the NSWPF, by way of promotion or otherwise. The disclosure of deliberations and consultations, particularly to the officer who is the subject of them, carries the real potential that the individuals who are called upon to provide views, advice and feedback may not be candid in expressing those views etc., for fear that this information will get back to the officer in question. This is particularly so where the views, advice and feedback may be negative or adverse to that officer's interests. This has the potential to diminish the effectiveness of the appointments process, which in turn has the potential to have a detrimental impact upon appointments and promotions generally, in circumstances where there is not enough thorough and frank consideration of an officer's suitability for a vacant role.
In short, there is a real risk that officers who are not the most meritorious candidates for promotion will be promoted into higher ranking positions, because deliberations and decisions on the promotion will be conducted without access to complete and candid information about all the applicants for the role. This may have ramifications for the operational effectiveness of the NSWPF as a whole, as the best person is not necessarily being appointed to the vacant role. It also has the potential to prejudice such processes in the future in the sense that, if an applicant for a promotion knows how the deliberative process is conducted they may seek to tailor their applications for promotion in a manner that seeks to present themselves as the most meritorious candidate for a promotion, even though they may not actually be the most meritorious candidate.
Further, if written deliberations are disclosed under the GIPA Act and oral communications remain confidential, officers involved in the deliberative processes will be less inclined to record their comments in writing and may only provide their opinion, advice or recommendation orally. However, the provision of an opinion etc. in writing ensures that proper and accurate records of deliberations are maintained, whereas oral accounts may later be recalled inaccurately. Also, if written accounts are released for public scrutiny, officers may feel reluctant to submit a written account, to the detriment of the deliberative processes as a decision maker may be denied access to relevant information.
[8]
Clauses 1 (d) and (1) (f) of the Table to section 14 of the GIPA Act.
Clause 1 (d) provides that there is public interest against disclosure if disclosure could reasonably be expected (whether in a particular case or generally) to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions.
Clause 1 (f) provides that there is public interest against disclosure if disclosure could reasonably be expected (whether in a particular case or generally) to prejudice the effective exercise by an agency of the agency's functions.
Superintendent Bingham stated that his functions and responsibilities are assisted greatly by people being able to candidly consider and assess applications for promotion and appointment and to provide a written record of their deliberations, views and advice. If this information is disclosed to the world at large, he expected that those people would be less likely to be forthright in the written information provided about their colleagues. A lack of information provided through the promotion process would adversely impact upon his ability to ensure that the most suitable candidates are appointed to vacant roles and that the NSWPF is operating at its greatest and most operationally-effective level of capacity.
[9]
Clause 1 (h) of the Table under s 14 of the GIPA Act.
This provides that there is a public interest against disclosure of government information where disclosure could reasonably be expected to prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of the NSWPF by revealing its purpose, conduct or results.
Superintendent Bingham stated that the information in the withheld documents is of a kind that relates to the management of the NSWPF, including the proper management of staff and the capabilities required for sworn operational positions. In particular, it includes information pertaining to the review of the Applicant's application for the vacant Yass position and the subsequent review of the decision to deselect her from the eligibility list. Revealing this information to the world at large would reduce the effectiveness of the deliberation processes associated with promotions and appointments and affect the integrity of future recruitment, including both internal and external recruitment.
In cross-examination, Mr Guy asked Superintendent Bingham whether he agreed that in the promotion process it is important that people understand why they have been promoted? He replied to the effect that police officers are selected from an eligibility list and if they are next on that list they will be selected for the vacant role. Applicants are given a ranking only, but if they are deselected they are told why they have been deselected. The Applicant's deselection was based upon his recommendation and that decision was taken in consultation with others by reference to the information contained in the withheld Godfrey Reports. He maintained that if the Godfrey Reports are released to the public at large, his primary concern is that this may involve negative relations between applicants and their colleagues. In any event, the Applicant was given the opportunity to challenge the decision to deselect her and she did so.
Superintendent Bingham stated that currently Godfrey Reports are confidential. Nobody audits what is written in these reports and there is no opportunity for an officer to interrogate the report for accuracy. These reports are never released to an individual officer.
In re-examination, Superintendent Bingham referred to his letter to the Applicant dated 22 April 2020, which formally advised her of her deselection from the eligibility list and that in view of the role's requirements and her current medical work restrictions, her placement in the eligibility list was not operationally viable and would place her at risk of injury.
[10]
The Applicant's case
The Applicant relied upon her Affidavit affirmed on 28 July 2021, which was admitted into evidence and marked exhibit "A1".
The Applicant relied upon an Outline of Submissions dated 29 July 2021 and Mr Guy also made oral submissions during the open hearing.
During cross-examination, the Applicant agreed with Mr Watts that on 22 April 2020, she was advised that she was deselected for medical reasons and that she did not agree with those reasons. She agreed that she received the report from RECON Physiotherapy and the report from the PMO before she made the application under the GIPA Act. She also agreed that Superintendent Bingham provided her with an opportunity to provide further information before a final decision was made regarding her deselection and that the Police Association of NSW made lengthy submissions on her behalf on 17 August 2020.
Mr Watts asked the Applicant whether she agreed that none of the documents sought in her application under the GIPA Act expressly are records that relate to the Yass position. The Applicant agreed that none of the categories of documents set out in the application expressly refer to the Yass position or to the promotions process and she did not expressly seek access to any of the deliberative documents. She agreed that based upon the volume of documents that the Respondent released, she has received a substantial amount of the information that she requested in the application.
The Applicant also stated that she has filed a complaint of unlawful discrimination against the NSWPF and that her complaint is currently the subject of separate litigation before the Tribunal.
[11]
Conclusive presumption against disclosure: Legal professional privilege
[12]
Respondent's submissions
The Respondent argued that there is a conclusive presumption against disclosure of some of the information contained in the Godfrey Reports, which are described in the Schedule of documents at pages 178 to 183 (inclusive) and pages 550 to 560 (inclusive), on the basis of legal professional privilege.
The Respondent noted that in Betzis v Commissioner of Police [2020] NSWCATAD 71 at [31], the Tribunal stated:
The consequence of information being subject to a conclusive presumption against disclosure is that an agency is not required to balance the public interests in favour of or against disclosure before refusing access to it and the Tribunal is precluded from considering the public interest test in relation to that information.
Further, in Webb v Port Stephens Council (No 3) [2018] NSWCATAP 286 at [85]-[86], the Appeal Panel observed that:
[85] Legal professional privilege is a long-standing rule of law. At common law, the privilege protects confidential communications between legal practitioners and their clients from disclosure under compulsion of a court or statute. The privilege protects two kinds of confidential communication between a client and his or her lawyer. These are confidential communications that are made for the dominant purpose of seeking or being provided with legal advice (advice privilege) and confidential communications that are made for the dominant purpose of existing or reasonably contemplated legal or quasi-legal proceedings.
[86] Sections 118 and 119 of the Evidence Act 1975 (NSW) are a reflection of the common law doctrine of legal professional privilege. However, the terminology that is used in these sections is "client legal privilege", which is an appropriate description as the privilege, or right is that of the client and not the lawyer. In this case, the right to make a claim for privilege was that of the respondent, who bore the onus of establishing that the information for which it sought to make that claim was a confidential communication made with its lawyers for the dominant purpose of seeking or for the dominant purpose of existing or reasonably contemplated legal or quasi-legal proceedings and that privilege had not been waived.
The weight of authority is that privilege under the GIPA Act refers to the concept of client legal privilege as defined in the Evidence Act 1995: NuCoal Resources Ltd v Department of Premier and Cabinet [2017] NSWCATAD 245 at [15]. The Tribunal has also accepted that, for the purposes of proceedings under the GIPA Act, the principles under the Evidence Act are effectively the same as those that apply under the common law: Transport for NSW v Robinson [2018] NSWCATAP 123 at [43].
[13]
Applicant's submissions
The Applicant did not expressly dispute that some of the withheld information may be subject to legal professional privilege, but she disputed the amount of information so protected and argued that if the Tribunal upheld the privilege claim she should be provided with redacted documents.
[14]
Discussion and findings - Legal Professional Privilege
Clause 5 of Sch 1 to the GIPA Act provides for a conclusive presumption against disclosure if the information would be privileged from production in legal proceedings on the ground of legal professional privilege, unless the privilege has been waived. In these reasons, legal advice privilege and legal professional privilege will be referred to as "privilege" or "LPP".
The Tribunal must determine whether the presumed conclusive overriding public interest against disclosure applies to the advice provided by Mr Reid and the OGC that is recorded in the Godfrey Reports that are listed in the Schedule of documents.
The Respondent bears the onus of establishing the privilege claims and there are three matters that it must establish for the relevant information to be protected by LPP, namely: (1) The existence of a client/lawyer relationship in relation to the communications and that the lawyers were acting with sufficient independence; (2) The relevant communications are confidential in nature; and (3) The relevant communications were created, prepared or brought into existence for the dominant purpose of requesting, receiving or providing legal advice.
I am satisfied that Mr Reid's Affidavit adequately sets out the primary facts regarding: (a) the context and circumstances upon which the Respondent's claim for privilege is based; (b) the lawyer/client relationship that exists between the legal officers employed in the OGC and the Respondent; and (c) the confidential nature of communications between the OGC and its internal client in relation to legal advice that is requested or provided.
I have had the opportunity to examine, read and consider each of the entries relating to advice from Mr Reid and the OGC in the Godfrey Reports listed in the Schedule of documents that are subject to the privilege claim. I am able to infer and discern the following matters from them: (a) that those communications reveal, on their face, the circumstances and context in which each communication occurred, (b) that the reason or reasons that each document was brought into existence was for a predominately legal purpose; and, relatedly, (c) that the documents tend to disclose the nature and content of confidential legal advice provided or the nature and content of the privileged communication may be inferred.
[15]
Respondent's submissions
The Respondent stated that it considered a number of the factors set out in the Table to s 14 of the GIPA Act and concluded that the public interest considerations against disclosure outweighed those in favour of disclosure. Broadly, the factors that weighed against disclosure go to the undesirability of revealing the internal deliberations relating to the Applicant's application for promotion to the Yass position and her subsequent deselection from the eligibility list. Superintendent Bingham addressed these factors in detail.
The Respondent noted that the Applicant appeared not to challenge the public interest factors against disclosure that it raised, but that she takes issue with the weight that the Tribunal should give to those factors.
The Respondent argued that the evidence clearly indicates that the promotions process was not conducted in darkness. The Applicant was deselected from the eligibility list in April 2020 and she was advised of the reason for deselection and gave evidence that she understood what that reason was and that she was able to seek a review of the decision. Therefore, the Applicant was afforded procedural fairness and she applied for internal review and supplied further information in support of that review. This speaks to the transparency and fairness of the process. The Applicant also commenced separate proceedings against the Respondent in this Tribunal alleging unlawful discrimination.
In Hansen v Commissioner of Police [2020] NSWCATAD 89, the Tribunal considered whether the applicant should be given access to deliberative documents. The Tribunal stated, relevantly:
76 The Tribunal notes that cl 1 (d) is concerned with the future supply of confidential information. In Department of Education and Training v Mullett (No 2) [2002] NSWCATAP 29 at paragraph [50]. The Appeal Panel observed that:
…conscientious employees would ordinarily see it as appropriate and proper for them to co-operate with departmental inquiries. If information of the kind in issue were to be released, it is not likely in our view that all employees would withdraw all future co-operation with similar inquiries. However, there is likelihood that some might be more inhibited and guarded in the extent of their communication than may have previously occurred; and some might withdraw co-operation completely out of fear (reasonable or otherwise)… To that extent, a relevant prejudice to the future supply of information would arise.
77. In determining whether disclosure would prejudice the supply of information, the test is not whether the third parties in this case would in future refuse to supply information but whether information of the kind in question facilitates the exercise of the NSWPF's functions and, whether the disclosure of such information could reasonably be expected to prejudice the supply of such information: Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [52].
78. The Tribunal accepts that, if the identities of third parties are revealed, it may discourage third parties raising such concerns in the future. It has formed the view it is clear from the nature of the withheld information, and from the circumstances in which it was provided, that it is information that facilitates the effective exercise of the NSWPF's functions. It is satisfied the information supplied by third parties, is integral to the exercise of its human resource processes and management of stakeholder relationships. It is also satisfied disclosure of information of this nature could reasonably be expected to prejudice the supply of such information as others might not be prepared to supply such information if they are concerned about it being revealed. This is at stake even if the third parties' names are redacted.
[16]
Applicant's submissions
The Applicant argued that the following public interest considerations weigh heavily in favour of the grant of disclosure:
1. The information sought is personal to her and relates to her health and wellbeing. As far as she can discern, the sole reason advanced for her deselection was her inability to perform operational tasks based on the opinion of the Chief Medical Officer employed by the Respondent. She has a genuine desire to understand all of the reasons that led to her being deselected from the eligibility list for the Yass position.
2. The information will enable her knowledge of whether the Respondent complied with its own policies and procedures in respect of her promotion. The disclosure of the information will assist in determining whether the Respondent complied with his own obligations under their internal promotions policies. Disclosure will also assist in determining whether the Respondent complied with his obligations under the Police Act 1990 (NSW) particularly in relation to whether she was the officer with the greatest merit, and therefore the person who should have been promoted
3. The information could reasonably be expected to enhance government accountability. The Respondent must be accountable in all facets of its operations, including but not limited to its promotions systems and processes. Such accountability is important to ensuring that both the people who work for the Respondent, as well as the public more generally, have confidence that the Respondent is discharging its duties in an accountable fashion.
4. The release of the information is critical to ensure a strong, transparent and fair promotions system is maintained by the Respondent. The release of the information sought will assist in ensuring that the public generally, and employees of the Respondent, have confidence that a strong, transparent and fair promotions system exists and is in operation. Failing to release the information sought lends itself to a closed process which is opaque, unclear and prone to being infected by irrelevant considerations and matters that should not be considered in the Respondent's promotions process.
The Applicant argued that the public interest considerations against disclosure under cll 1 (e), (f) and (h) of the Table to s 14 of the GIPA Act, which the Respondent raised in its written submissions, are insufficient to outweigh the considerations in favour of disclosure.
[17]
Respondent's submissions in reply
The Respondent's arguments in reply are summarised as follows:
1. While the information sought is personal to the Applicant, this does not weigh heavily in favour of disclosure. Rather the decision in Owen at para [65] makes it clear that this factor should not be given substantial weight and that it is a fact or that should be balanced against the significant public interest factors against disclosure set out in cll 1 (d), (e), (f) and (h) of the Table to s 14 of the GIPA Act.
2. Whether the Respondent complied with its policies and procedures regarding promotion is irrelevant, as there are no policies or procedures in evidence before the Tribunal. In any event, the Applicant sought information that is specific to herself and she would not be in a position to conduct a review about whether the most meritorious candidate was appointed to the Yass position if the withheld information was disclosed.
3. The information that the Applicant sought does not enhance government accountability. Section 12 (a) of the GIPA Act delineates between government accountability and accountability of agencies and there has been accountability by the Respondent by way of the internal review process that the Applicant utilised.
4. As to ensuring a strong, transparent and fair promotions system, when the Government Sector Employment Act was repealed in 2013, and a new regime was introduced, one of the consequential amendments was to amend the Industrial Relations Act 1966 to remove Div 2 of Pt 7 to Ch 2. Until February 2014, this permitted promotion appeals to be made to the Industrial Relations Commission, but this jurisdiction was removed and not replaced and an internal mechanism was put in place. This strongly suggests that Parliament has ruled on the level of transparency that is required. The Applicant did not succeed in her internal review and is pursuing other avenues through the current discrimination proceedings against the Respondent.
[18]
Consideration and findings
I will now consider whether there is an overriding public interest against disclosure of the information contained in the following documents listed in the Schedule of documents pursuant to cll 1 (d), (e), (f) and (h) of the Table to s 14 of the GIPA Act:
1. The balance of the Godfrey Report listed at pages 178 to 183 (inclusive);
2. Handwritten notes listed at pages 294 to 297 (inclusive);
3. The Godfrey Report listed at pages 409 to 414 (inclusive);
4. The Godfrey Report listed at pages 427 to 431 (inclusive);
5. The Godfrey Report listed at pages 450 to 453 (inclusive);
6. The Godfrey Report listed at pages 465 to 469 (inclusive);
7. The Godfrey Report listed at pages 496 to 500 (inclusive);
8. The Godfrey Report listed at pages 515 to 520 (inclusive);
9. The Godfrey Report listed at pages 532 to 534 (inclusive);
10. The balance of the Godfrey Report listed at pages 550 to 560 (inclusive);
11. The Godfrey Report listed at pages 764 to 769 (inclusive); and
12. The Godfrey Report listed at pages 782 to 784 (inclusive).
[19]
Public interest considerations in favour of disclosure - section 14 of the GIPA Act
There is a general public interest in favour of the disclosure of government information and s 12 of the GIPA Act provides some examples of considerations in favour of disclosure.
In this matter, the Applicant argues that the information sought is personal to her and relates to her health and wellbeing and that its provision will enable her to understand all of the reasons that led to her being deselected from the eligibility list for the Yass position. Further, that information will enable her to know whether the Respondent complied with its policies and procedures in respect of her promotion and its obligations under the Police Act 1990 (NSW). She also argued that the withheld information could reasonably be expected to enhance government accountability, which is important to ensuring that both the people who work for the Respondent, as well as the public more generally, have confidence that the Respondent is discharging its duties in an accountable fashion and its release is critical to ensure that a strong, transparent and fair promotions system is maintained by the Respondent.
It is common ground that some of the withheld information is the personal information of the Applicant. There is a public interest in individuals being able to have access to their own personal information and I agree that this is a relevant considerations in favour of disclosure of the withheld information. This consideration should be given considerable weight.
I have decided that the other factors raised by the Applicant in favour of disclosure of the information should be given moderate weight. However, the Applicant did not seek access to information regarding the Respondent's appointment and promotions process and release of the withheld information could not achieve the aims raised by the Applicant in this matter.
[20]
Public interest considerations against disclosure - section 14 of the GIPA Act
The withheld information relates to the workforce capability and human resources operations of the NSWPF and its approach to dealing with that information. Superintendent Bingham gave evidence regarding the NSWPF's workforce capability and human resources processes and its use of Godfrey Reports. As a former police officer the Applicant will be familiar with many of these processes.
The available evidence provides a useful context in which the withheld information can be viewed and supports the Respondent's contentions regarding the application of the various clauses under the Table to s 14 of the GIPA Act.
Superintendent Bingham gave evidence in both the open and confidential hearings, but the Applicant has not been given a copy of the closed Affidavit, which contains references to specific information that has been withheld from the material that has been released.
[21]
Clause 1 (d) of the Table to s 14 of the GIPA Act
Clause 1 (d) provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have the effect of prejudicing the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, whether in this case or generally. In this matter, the dispute directly concerns deliberative documents which are described as "Godfrey Reports".
I have considered the concerns raised by the Respondent against disclosure of the information contained in the withheld documents listed in the Schedule of documents and the Applicant's arguments in favour of disclosure. I have also considered the relevant case law.
I note that in Hansen, the Appeal Panel applied a previous Appeal Panel decision in Department of Education and Training v Mullett (No 2) [2002] NSWCATAP 29 at [50]. The Appeal Panel observed that if information of the kind in issue were to be released, a relevant prejudice to the future supply of information would arise. The Appeal Panel held that in determining whether disclosure would prejudice the supply of information, the test is not whether the third parties in this case would in future refuse to supply information, but whether information of the kind in question facilitates the exercise of the NSWPF's functions and, whether the disclosure of such information could reasonably be expected to prejudice the supply of such information: Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [52].
The Appeal Panel accepted that the information supplied by third parties is integral to the exercise of the NSWPF's human resource processes and management of stakeholder relationships. If the identities of third parties are revealed, it may discourage third parties from raising concerns in the future, which could reasonably be expected to prejudice the supply of such information, and that this is at stake even if the third parties' names are redacted.
I also note that in Owen, the Tribunal accepted the Respondent's evidence that the information is confidential to all persons (including the Applicant) except the managers and senior officers of the NSWPF who are involved in its placement processes, and it held that the withheld information was confidential for the purposes of cl 1 (d). While this matter concerns the NSWPF's promotions process, rather than its functions in finding a suitable placement for an injured officer, I consider the decision in Owen to be directly relevant.
[22]
Clause 1 (e) to the table in s 14 of the GIPA Act
Clause 1 (e) to the Table provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency.
There is no dispute that the withheld documents listed in the Schedule of documents contain information regarding deliberations, consultations, opinions, advice and/or recommendations in relation to the NSWPF's workforce capability and human resources processes. I accept that these documents were generated in response to the Applicant's application for promotion to the Yass position.
I am satisfied that the release of the withheld documents would reveal sensitive deliberations and could reasonably be expected to hinder future communications, which would impact on the Respondent's ability to effectively manage its workforce capability and human resources functions. Staff may feel inhibited in providing frank and honest views or may decline to participate in the deliberative process altogether or that may feel reluctant to commit their views in writing and may only feel comfortable participating in deliberations orally.
In my view, officers should feel free to do in written form what they could otherwise do orally, particularly in circumstances where any oral communication would remain confidential. Written communications regarding decision-making processes ensure that a proper record is maintained of the matters that are considered and this is particularly important given the Respondent's statutory obligation to only appoint officers to vacant positions where they are the most meritorious candidate: see s 66 of the Police Act 1990 (NSW).If these communications were to be released for public scrutiny, officers may in future feel reluctant to make a written record to the detriment of these processes and the public record: see discussion in McKinnon v Department of Treasury [2006] HCA 45.
In my view, the public interest consideration against disclosure in clause 1 (e) of the Table to s 14 of the GIPA Act is applicable to the withheld information in these documents and should be given significant weight.
[23]
Clause 1 (f) of the Table to section 14 of the GIPA Act
Clause 1 (f) relates solely to the reasonable expectation of prejudice to the effective exercise of the agency's functions concerning the information sought to be disclosed. The clause requires the Respondent to establish that the release of that information would prejudice the effective exercise of its functions.
Clauses 1 (d) and (f) are often considered together and establishing a basis for clause 1 (d) will also establish cl 1 (f): Transport for NSW v Searle [2018] NSWCATAP 93 at [91].
The Applicant argued that there is a greater public utility in having an open, fair and transparent appointments process than there is in an unrealised concern that some persons involved in that process may be reluctant to share views for fear of having them known. However, in the circumstances of this matter, where the Applicant did not seek access to information relating to the Respondent's appointment processes and policies, I have decided that this factor should be given minimal weight.
In my view, the decision in Hansen is directly relevant to this matter. In Hansen, the Appeal Panel considered cl 1 (f), although in relation to a dispute concerning the withholding of Ministerial briefing papers, and found that such information will at times be sensitive in nature and include information provided by third parties who may have given it in confidence. The Appeal Panel also accepted that it may be detrimental to the NSWPF's functioning if briefing papers excluded relevant information because of fear of disclosure and that this could impact on the NSWPF's ability to make effective human resources decisions and prejudice its ability to manage its human resources.
I have decided that the public interest considerations against disclosure in cl 1 (f) of the Table to s 14 of the GIPA Act is applicable to the withheld information in these documents and should be given significant weight.
[24]
Clause 1 (h) of the Table to section 14 of the GIPA Act
Clause 1 (h) provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).
Superintendent Bingham stated that the withheld information is of a kind that relates to the management of the NSWPF, including the proper management of staff and the capabilities required for sworn operational positions. In particular, it includes information relating to the review of the Applicant's application for the Yass position and the subsequent review of the Respondent's decision to deselect her. Revealing this information to the world at large would reduce the effectiveness of the deliberation processes associated with promotions and appointments and affect the integrity of future recruitment, including both internal and external recruitment.
Superintendent Bingham stated that the Respondent's decision to deselect the Applicant from the eligibility list for the Yass position was based upon his recommendation and this decision was taken in consultation with others by reference to the information contained in the withheld Godfrey Reports. He stated that his primary concern is that the release of these reports to the public at large may result in negative relations between applicants and their colleagues.
Superintendent Bingham also gave evidence that his letter to the Applicant dated 22 April 2020, formally advised her of her deselection from the eligibility list for the Yass position and that given the position's requirements and her current medical work restrictions, placement in that position was not operationally viable and would place her at risk of injury. The Applicant was given the opportunity to challenge that decision and she did so by way of an internal review. In my view, these concerns are valid and should be given considerable weight in determining the current dispute.
The Applicant argued that the factors raised by Superintendent Bingham cannot outweigh the public interest in open, transparent and honest government decision-making, but she did not specifically address the factors raised by the Respondent. However, in the circumstances of this matter, where the Applicant did not seek access to information relating to "Government decision-making", I have decided that this factor should be given minimal weight.
[25]
Where does the balance lie?
Where the withheld information is not subject to a conclusive presumption against disclosure pursuant to section 14 (1) of the GIPA Act, regard must be had to the "public interest test" set out in section 13. It is necessary to identify the public interest in favour of disclosure, identify the public interest against disclosure and determine where the balance lies.
I have previously set out the public interest considerations in favour of disclosure that I consider to apply to this matter and I have also discussed in some detail the relevant public interest considerations against disclosure.
I agree with the Respondent that, in the circumstances of this matter, less weight should be placed on the considerations in favour of disclosure. Further, having regard to the information that has been released to the Applicant to date and the factual circumstances, it is my view that greater weight should be given to the various public interest considerations against disclosure.
To the extent that the withheld information contains the Applicant's personal information, I agree with the Respondent that limited weight should be given to this consideration. In the circumstances of this matter, it would be extremely difficult to separate the withheld information that contains the Applicant's personal information from that to which the public interest considerations against disclosure apply.
[26]
Sections 55 (1) (b) and 60 (1) (e) of the GIPA Act
Section 55 (1) of the GIPA Act provides, relevantly:
Consideration of personal factors of application
(1) In considering 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 the section -
… (b) the applicant's motives for making the access application, …
Section 60 (1) of the GIPA Act provides, relevantly:
(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) -
… (e) the agency reasonably believes the applicant, or a person acting in concert with the applicant, is -
(i) a party to current proceedings before a court, and
(ii) able to apply to that court for the information…
The Respondent argued that the Tribunal should consider the Applicant's motivation for making her access application . At para 28 of her Affidavit, the Applicant stated that she wanted answers and to get closure about why she was deselected from the eligibility list for the Yass position. However, the Applicant , has known the reasons for that decision since April 2020 and she sought an internal review of that decision and has commenced separate proceedings against the Respondent for unlawful discrimination in the Tribunal. Therefore, the information sought in the access application could be sought by way of discovery processes in the concurrent proceedings.
However, I note that s 55 (3) provides that the applicant's motives can be taken into account as factors against providing access if and only to the extent that those factors are relevant to the NSWPF's consideration of whether disclosure of the information 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 s 14. In this matter, the Respondent considered cl 1, but not cll 2-5.
In view of my decision in relation to the access application, it was not necessary for me to consider the Respondent's argument under s 60 (1) (e) of the GIPA Act.
[27]
Conclusion
On balance, it is my view that the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure of the withheld information. It follows that the correct and preferable decision is to affirm the decision under review.
[28]
Order
The Tribunal orders that the decision under review is affirmed.
[29]
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
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: 22 September 2021
1999] NSWADT 107 at [35]-[36]
Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254
NuCoal Resources Ltd v Department of Premier and Cabinet [2017] NSWCATAD 245 at [15]
Owen v Commissioner of Police [2020] NSWCATAD 296 at [65]
Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357; (2004) 207 ALR 217; 56 ATR 128; [2004] FCAFC 122 at [87]
Public Service Assn v Premier's Department [2002] NSWADT 277 at [57], [59]
Roy v Commissioner of Police, NSW Police Force [2012] NSWADT 120 at [28]
Seremetis v Commissioner of Police; Seremetis v Department of Communities and Justice [2020] NSWCATAD 317 at [36]
Seven Network Ltd v News Ltd [2005] FCA 142
Sullivan v Civil Aviation Safety Authority 184 CLR 23; (2014) 226 FCR 555; (2014) 322 ALR 581; (2014) 64 AAR 120; (2014) 141 ALD 540; [2014] FCAFC 93 at [5]-[8], [15]-[17]; (1990) 22 FCR 527 at 555
Taylor v Office of Destination NSW [2018] NSWCATAD 195 at [20]
Tebbutt v Minister for Lands and Water [2015] NSWCATAD 95
Transport for NSW v Robinson [2018] NSWCATAP 123 at [43]
Transport for NSW v Searle [2018] NSWCATAP 93 at [91], [104]
Veall v Department of Planning and Environment [2018] NSWCATAD 47
Webb v Port Stephens Council (No 3) [2018] NSWCATAP 286 at [85]-[86]
Category: Principal judgment
Parties: Alexandra Cooney (Applicant)
Commissioner of Police (Respondent)
Representation: Counsel:
A Guy (Applicant)
M Watts (Respondent)
The Applicant applied to the Tribunal for external review of the decision and asserts that the decision-maker incorrectly applied the principles against disclosure in their reasoning and/or placed too much weight against on the principles against disclosure in their decision.
The term 'public interest' is not a defined or fixed concept. In Director of Public Prosecutions v Smith [1991] 1 VR 63 the Victorian Court of Appeal held:
The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals.
The Respondent puts its case on two grounds: (1) that some of the information is subject to the conclusive presumption against disclosure on the basis of privilege; and (2) that the public interest considerations against disclosure set out in the Table to s 14 (2) of the GIPA Act outweigh those factors in favour of disclosure of the other withheld information.
Under s14 (1) of the GIPA Act, an overriding public interest against disclosure is conclusively presumed in respect of government information described in Sch 1. Relevantly, cl 5 of Sch 1 provides:
(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.
Clause 1 of the Table to s 14 (2) of the GIPA Act relevantly provides:
1 Responsible and effective government
There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally) -
…
(d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions,
(e) reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency,
(f) prejudice the effective exercise by an agency of the agency's functions, …
(h) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).
While a very broad value judgment must be made, it is not to be made in a vacuum and consideration must be given to the objects of the legislation, the general presumption in favour of the disclosure of government information and the principles set out in s 15 of the GIPA Act: Transport for NSW v Searle [2018] NSWCATAP 93 ("Searle") at paragraph [104]. Subsections 15 (a)-(d) operate to promote disclosure of information and promotion of the object of the GIPA Act notwithstanding any embarrassment to Government or potential misinterpretation. Only section 15 (e) identifies a principle that mitigates the pro-disclosure ambition of the GIPA Act.
Section 55 of the GIPA Act permits a decision-maker to take into account the following personal factors of the application in determining whether there is an overriding public interest against disclosure of information in response to an access application: (1) the applicant's identity and relationship with any other person, (2) the applicant's motives for making the access application, and (3) any other factors particular to the applicant.
Section 107 of the GIPA Act provides:
107 Procedure for dealing with public interest considerations
(1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure.
(2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.
(3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of:
(a) the public and the applicant, and
(b) the applicant's representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.
In this matter I accepted that it was necessary to receive evidence and information on a confidential basis. Accordingly, evidence has been admitted that has not been given to the Applicant and this has been useful in providing details of the context in which the information was created and I have given weight to it.
I appreciate that section 107 provides for the denial of procedural fairness to the Applicant and that she is in a substantially disadvantaged position in that regard. For this reason, care must be taken to limit the disadvantage that she might incur and I note that the Applicant is aware of most of the Respondent's material.
However, any information that is released in response to a GIPA access application is effectively disclosed to the world at large. Section 73(1) of the GIPA Act provides:
73 Access to be unconditional
(1) 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.
Superintendent Bingham's Affidavit was admitted into evidence and marked "R2". He attended the hearing and was cross-examined. He stated that he has been the Commander, Workforce Capability, since July 2019. Workforce Capability is one of the three arms within the Human Resources Command and he reports to an Assistant Commissioner, who oversights that Command, and he has three persons who report directly to him. He is responsible for oversighting transfers, the correct payment of entitlements in relation to transfers, internal mobility, external secondments, pre-qualifying and promotions selections and appointments.
Superintendent Bingham stated that the Yass position was advertised internally on/about 10 December 2019 and the Applicant indicated that she wanted to apply for a promotion into that role. She was placed on the eligibility list and when the advertisement closed, it was Workforce Capability's responsibility to consider whether she was the most meritorious candidate on the eligibility list for promotion to that role. However, in March 2020, he formed the view that the Applicant was not suitable for the position and that she should be deselected from the eligibility list, so that the position could be re-advertised and she could apply for other positions. He made a recommendation to that effect to the Assistant Commissioner.
In considering whether the Applicant was suitable for the role, he consulted and deliberated with a number of other officers and employees of the Respondent and he canvassed the views and advice of various officers and employees. His consultations, deliberations and recommendations were recorded in writing in a Godfrey Report, which is a style of report used to report information up and down the chain of command. He sought medical advice and an opinion from the Police Medical Officer ('PMO') to assist with his deliberations and whether the PMO considered the Applicant was medically fit to undertake that role. He recorded the PMO's advice in the Godfrey Report.
Superintendent Bingham said that the persons who receive a Godfrey Report are asked to comment upon it and their comments are recorded in writing so that there is a complete written record of their views and the deliberations and decisions made by the entire chain of command. These reports are stored electronically within the Respondent's records management system ('RMS') and access within the RMS is limited in order to ensure privacy. Workforce Capability records, medical information and information regarding promotions are stored very securely in the RMS to ensure that it is not available to anyone other than members of the Promotions Team who require access in order to perform their duties.
In April 2020, Assistant Commissioner McCusker advised Superintendent Bingham that she had accepted his recommendation and decided to deselect the Applicant from the eligibility list for the Yass position. The Applicant was advised of that decision and the reasons for it.
The Applicant then sought a review of that decision and supplied additional information for consideration and the review was conducted by the Deputy Commissioner for Corporate Services, who was then the senior ranking officer to Assistant Commissioner McCusker.
Superintendent Bingham identified the following public interest considerations concerning the undesirability of revealing information about internal deliberations conducted by the NSWPF in relation to promotions to the world at large under the GIPA Act:
During the private hearing, the Respondent provided the Tribunal with a copy of the withheld documents and it tendered a "confidential" Affidavit of Superintendent Bingham affirmed 29 June 2021. The Affidavit was admitted into evidence and marked Exhibit "A3" and the Tribunal also heard oral evidence from Superintendent Bingham and oral submissions from Mr Watt.
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
The Respondent argued that the dominant purpose test applies. In AWB Ltd v Cole [2006] FCA 571, Young J stated at [106]:
[106] Kenny J also said at 478 [30] (in Commissioner of Taxation v Pratt Holdings Pty Ltd [2005] FCA 1247) that where two purposes are of equal weight, neither is dominant in the relevant sense; hence a document is not privileged from production where one purpose for its creation is to obtain legal advice, but there is another equally important purpose. I agree.
Further, in Holman v Warringah Council [2015] NSWCATAD 215, Senior Member Walker stated at [86]:
[86] The "legal advice" referred to in s 118 is a broad concept understood in a pragmatic sense. It is not confined to a lawyer's telling the client the law, while acting in a professional capacity; it must also include advice as to what should prudently and sensibly be done in the relevant legal context (ibid.) The dominant purpose of the communication must be determined objectively, having regard to all the circumstances in which the communication was made, and its nature. If the document or information would have been prepared irrespective of the intention to obtain professional legal services, it will not satisfy the test laid down in Grant v Downs (1976) 135 CLR 674, 688. The existence of an ancillary purpose is not fatal to a claim for privilege, but if there are two purposes of equal weight, it is unlikely that one would dominate the other: Southland Coal at [14]. A claim for privilege will not succeed if it appears that the document is a commercial document or was brought into existence in the ordinary course of business (ibid.).
Where information is passed between lawyer and client as part of a continuum aimed at keeping both informed, so that advice may be sought and given as required, privilege may attach: Balabel v Air India 1988] Ch 317, 330; Commissioner of Taxation v Pratt Holdings Pty Ltd [2004] FCAFC 122 at [87]; DSE (Holdings) Pty Ltd v InterTAN Inc [2003] FCA 1191 at [38].
In AIN v Medical Council (NSW) [2015] NSWCATAP 241, the Appeal Panel emphasised the importance of agencies producing sufficient evidence to support a claim of privilege, especially with respect to communications of in-house lawyers.
The Applicant did not assert that the relevant communications were tainted by an improper or unlawful purpose.
The Respondent argued that the Tribunal (and a Court) has power to inspect and examine documents in respect of which a claim for privilege has been made: Grant v Downs [1976] HCA 63; Howell v Macquarie University [2008] NSWCA 26 at [72].
The provision of advice by in-house lawyers in a government department has been held to be within the terms of s 117 of the Evidence Act where it is established that the in-house lawyers possess the requisite independence in respect of the advice being given: Seven Network Ltd v News Ltd [2005] FCA 142; Tebbutt v Minister for Lands and Water [2015] NSWCATAD 95; Gauci v Commission for Fair Trading NSW [2015] NSWCATAD 218).
The Applicant did not argue that Mr Reid lacked the necessary independence in respect of his legal advice to the Respondent. Based upon Mr Reid's evidence, I am satisfied that the OGC is an independent professional service unit of the NSWPF, which employs him as a legal practitioner, and that he is entitled to practise law in NSW. I accept his evidence that lawyers employed within the OGC report to the General Counsel and that the OGC reflects a structure to establish the necessary professional relationship between a legal practitioner and their internal clients.
I also accept that to the extent that I am satisfied that each of the relevant communications in issue is privileged, which I will discuss below, the communications were provided on the basis of a lawyer/client relationship and were made or received by them in their professional capacity as lawyers.
The Respondent bears the onus of proving that each of the communications that are subject to the privilege claim is a confidential communication. Section 117 of the Evidence Act defines "confidential communication" as a communication made in such circumstances that when it was made, the person who made it (or the person to whom it was made) was under an express or implied obligation not to disclose its contents. Whether a communication is confidential in nature, is a question of fact that can be determined on the evidence; Generate Group Pty Ltd v Sea-Tech Automation
The Respondent must also prove that each of the relevant communications was prepared for the dominant purpose of receiving or providing legal advice. I accept that Mr Reid formed the opinion that each of the relevant communications were confidential and that they were created for the dominant purpose of giving legal advice to the Respondent regarding the Applicant's deselection from the eligibility list for the Yass position and/or in anticipation of the future litigation of which notice was given by the Police Association of NSW.
I accept the Respondent's argument that each of Mr Reid's opinions contained in the withheld Godfrey Reports amount to his professional judgment, based on his personal review of the documents concerned and his understanding of the context from instructions that he received from the Respondent and his familiarity with the matter generally. I am satisfied that these communications were received and sent in confidence for the following reasons: (1) Some of the documents are marked "privileged and confidential" and contain a warning in the header that asserts privilege; (2) The documents for which privilege is claimed are stored in a secure environment within the OGC's office and the Respondent's document management system and access is restricted. This supports an inference that the documents are confidential; and (3) Confidentiality can be inferred where the evidence shows that the communications were made between lawyer/client: Gaynor v Chief of Defence Force (No 2) [2015] FCA 817.
Based upon the evidence before me, I am satisfied that Mr Reid's independence was not compromised and there was no conflict between his obligations as an employee of the Respondent and his duties as a legal practitioner.
It follows that I am satisfied that the following withheld documents are protected by LPP and that there is a conclusive presumption against disclosure under cl 5 of sch 1 of the GIPA Act:
1. The legal advice from Mr Reid contained in the Godfrey Report listed at pages 71 to 76 and 77 to 87 (inclusive) of the Schedule of documents;
2. The legal advice from Mr Reid contained in the Godfrey Report listed at pages 178 to 183 (inclusive) in the Schedule of documents; and
3. The legal advice from Mr Reid contained in the Godfrey Report listed at pages 550 to 560 (inclusive) in the Schedule of documents.
Applying the principles in Betzis and Holman, I am satisfied that the balancing test in s 13 and the personal factors referred to in s 55 do not apply to privileged documents.
In Owen v Commissioner of Police [2020] NSWCATAD 296, the Tribunal considered held that the disputed information was confidential for the purposes of cl 1 (d) of the Table. Senior Member Lonsdale stated, relevantly:
41. In my view, the ordinary circumstances of the collection of the disputed information are that it is confidential to all persons (including confidential to the injured employee) excepting, of course, the managers and senior officers with involvement in the placement processes. The evidence of Cl McGregor states that information about placements that may be considered, but rejected, is not provided to the injured employee. In circumstances where there may be numerous issues or factors under consideration in a particular team or area at the time each possible placement is discussed (and in view of the need to manage the expectations and particular circumstances of each injured employee) such confidentiality supports the placements process and is consistent with the evidence that it is all of the information, including the agency's consideration as to whether there is a suitable placement would (sic) not, that is confidential.
42. For the reasons stated above, I consider that the Disputed Information is confidential for the purposes of cl 1 (d) of the Table…
61. The Disputed Information in this matter is a complex mix of information provided by senior officers and managers that necessarily comprises an individual assessment of factors relevant to the possible success of a placement. The evidence of Cl McGregor is not that these senior officers and managers would be untruthful or not provide the information at all. Rather, the evidence if Cl McGregor is that the information would be more circumspect, less frank and less candid. Based on the evidence before me, I consider that such an effect is reasonable, as distinct from something that is irrational, absurd or ridiculous.
62. While the applicant submitted in oral submissions that the information may be expressed differently rather than not supplied, the issue for the purposes of cl 1 (d) of the Table is whether disclosure of the Disputed Information could reasonably be expected to prejudice the supply of the information. For the reasons outlined above (including the comments of the Appeal Panel in Mullett at [50]) information that expressed differently may be less relevant for the purposes of the evaluative or other processes required to assess placements. Information that is less relevant in the context of the function in this matter represents a detriment, disadvantage or derogation to that which may otherwise be supplied.
63 For the reasons set out above, I consider that the disclosure of the Disputed Information could reasonably be expected to prejudice the supply of confidential information for the purposes of cl 1 (d) of the Table.
While the applicant argued that the withheld information may be expressed differently, rather than not supplied, the issue for the purposes of cl 1 (d) of the Table is whether disclosure of the Information could reasonably be expected to prejudice the supply of the information. However, information that is expressed differently may be less relevant for the purposes of the evaluative or other processes required to assess placements. Information that is less relevant in the context of the function in this matter represents a detriment, disadvantage or derogation to that which may otherwise be supplied.
The disclosure of the views, advice and recommendations, and resultant deliberations, particularly where it is disclosed to applicants, plainly has the potential to diminish the provision of candid information in the future. It can readily be expected that colleagues and supervisors, who may need to have working relationships with the applicant in the future, will be hesitant to provide candid feedback if they know it may be revealed to the individual at some later time. Likewise, persons called on to provide advice and recommendations may be more hesitant, or will provide advice and recommendations that are attenuated. This, in turn, has the potential to detrimentally impact on how human resources are allocated and utilised by the Respondent.
This must be considered through the prism of the obligation on the Respondent to only appoint officers to vacant positions where they are the most meritorious candidate: s 66 of the Police Act 1990 (NSW). It can readily be envisaged that the Respondent may not succeed in this statutory task if the information and views given during deliberations on the promotion and appointment decision is not forthright, complete and accurate. Plainly, there is a strong public interest in fostering an environment where such information can be given, and deliberations undertaken in confidence, without the information being relayed back to the subject officer.
The Tribunal has previously held that cl 1 (e) of the Table applies to internal communications about human resources matters: see Cameron v Commissioner of Police (NSW) [2014] NSWCATAD 13. At [71], the Tribunal concluded that the withholding of information obtained during deliberative human resources processes of the Respondent, which was information supplied in the expectation it would not be subject to public scrutiny, was justified on the basis that disclosure could prejudice those deliberative processes in the future.
The Respondent relied upon s 6 (2) of the Police Act 1990 (NSW), which provides:
(2) The NSW Police Force has the following functions -
(a) to provide police services for New South Wales,
(b) to exercise any other function conferred on it by or under this or any other Act,
(c) to do anything necessary for, or incidental to, the exercise of its functions.
(emphasis added).
The Respondent argued that the workforce capability and human resources functions of the NSWPF are necessary to ensure that it is effectively staffed and operationally effective. The Tribunal has previously held that, "[t]he effective performance of an agency's functions depends to a significant extent on the performance and management of its staff": Ansoul v City of Sydney [2017] NSWCATAD 65 at [38]. It argued that disclosure of the Godfrey Reports could reasonably be expected to prejudice its ability to carry out its statutory functions.
In Hansen, the Appeal Panel considered cl 1 (f) and stated, relevantly:
88. …the Tribunal accepts that it is important that briefing papers of this nature include the relevant material and at times this will be sensitive and include information provided by third parties who may have given it in confidence. It also accepts that it may be detrimental to the NSWPF's functioning if such briefing papers exclude relevant information because of fear of disclosure. In this case the Tribunal accepts that this could impact on the NSWPF's ability to make effective human resources decisions and could have a prejudicial effect on the NSWPF's ability to manage its human resources.
The Respondent argued that the Tribunal must determine whether or not the discretionary balancing exercise that it undertook in respect of the public interest factors for and against disclosure resulted in the correct and preferable decision to withhold the information and that the balancing exercise plainly favours withholding that information.
In oral submissions, Mr Watts referred to the personal factors under s 55 of the GIPA Act, which include the Applicant's motivation for making the current application. He noted that the Applicant said that she wants answers and to get closure about why she was deselected from the eligibility list for the Yass position, but the Applicant has known the reason for that decision since April 2020. This predates her access application under the GIPA Act.
The Respondent also argued that the information that the Applicant seeks under the access application could be obtained by means of the discovery processes available in her concurrent unlawful discrimination proceedings. This is a relevant personal factor for the purposes of s 55 of the GIPA Act.
The Respondent also argued that s 60 (1) (e) of the GIPA Act provides that 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) -
(e) the agency reasonably believes the applicant, or a person acting in concert with the applicant, is -
(i) a party to current proceedings before a court, and
(ii) able to apply to that court for the information.
For the purposes of s 60 (1) (e), Sch 4 of the GIPA Act defines "Court" to include a "Tribunal". Therefore, the Tribunal would be entitled to refuse the GIPA application as the Applicant can apply to have the withheld information produced in the current discrimination proceedings. This suggests that the GIPA Act should not be used as an alternative to the discovery mechanisms in litigation.
In relation to cl 1 (e), the Applicant argued that while there may be some concern about whether internal deliberations should be made public, this should not outweigh the need for the Respondent to be open and honest about its appointment and promotions processes. Further, keeping internal deliberations of appointment and promotions processes secret does not assist in open and transparent government decision-making processes and it diminishes public trust and confidence in such processes.
In relation to cl 1 (f), the Applicant argued that there is a greater public utility in having an open, fair and transparent appointments process than there is in an unrealised concern that some persons involved in the process may be reluctant to share views for fear of having them known.
In relation to cl 1 (h), the Applicant argued that this factor cannot outweigh open, transparent and honest government decision making.
In relation to the balancing exercise that the Tribunal must undertake, the Applicant argued that the benefit to herself and the community at large in ensuring honest, open and transparent government decision-making processes far outweighs the concerns advanced by the Respondent. Accordingly, the Tribunal should set aside the Respondent's decision and make a decision in substitution that allows her access to the documents sought, with the exception of any parts of the documents that are privileged.
In this matter, I am satisfied that the withheld information is information that facilitates the effective exercise of the Respondent's functions. Clearly, information that is relevant to the Respondent's workforce capability and human resources functions is information that can be categorised in that way.
I am also satisfied that it can be implied from the circumstances in which the information was provided that it was obtained in confidence and that it would be reasonable for those who provided the information to expect that their communications would be treated confidentially. I accept Superintendent Bingham's evidence that deliberations regarding promotions must be treated confidentially and that the NSWPF has procedures in place to ensure that this type of information is kept confidential.
I am satisfied that the release of information of this kind would have the potential to undermine the confidence of those who are in a position to provide information regarding a candidate's suitability for promotion and that the effective exercise of the Respondent's workforce capability and human resources functions relies upon their disclosure of information.
The test to be applied is whether the agency will be able to obtain such information in the future. In my view, undermining the confidence of those who possess information relevant to a candidate's suitability for promotion has the potential to make them reluctant to come forward with the information that they possess. This would likely lead to a scenario where the most meritorious candidate may not be promoted. I also accept that frank and honest deliberations could be hindered if information of this kind were disclosed. It could clearly inhibit candid discussion and offering of opinions, which may have a detrimental effect upon the NSWPF's statutory functions.
In my view, the public interest consideration against disclosure in cl 1 (d) of the Table to s 14 of the GIPA Act is applicable to the information in the withheld documents and should be given significant weight.
I accept Superintendent Bingham's evidence that the withheld information is a complex mix of information provided by senior officers and managers and the PMO, all of whom are involved in the chain of command within the Workforce Capability arm of the Human Resources Command of the NSWPF, and that only those within the chain of command have access to it.
I am satisfied that this information is confidential in nature and that its disclosure could reasonably be expected to have the effect of prejudicing the supply of confidential information that facilitates the exercise of the NSWPF's workforce capability and human resources functions.
In my view, the confidentiality of the Respondent's investigation or review conducted process is fundamental to the proper conduct of those processes and the disclosure of specific information provided and discussed in the conduct of those processes could prejudice the conduct or effectiveness of future investigations or reviews.
In my view, the public interest consideration against disclosure in clause 1 (h) of the Table to s 14 of the GIPA Act is applicable to the withheld information in these documents and should be given significant weight.