Daniels v NSW State Emergency Service

NCAT Administrative and Equal Opportunity|2023-06-28

Regulatory Authority (2008) 235 CLR 286 Singh v Legal Aid Commission (No.2) [2015] NSWCATAD 5 Thomson v Commissioner of Police [2021] NSWCATAD 53 Transport for NSW v Searle [2018] NSWCATAP 93 YG and GG v Minister for Community Services [2002] NSWCA 247 Ugur v Commissioner of Police (NSW) [2022] NSWCATAD 396 Van der Wall v University of Sydney [2018] NSWADT 213 Waterford and Department of Treasury (No. 2) (1984) 1 AAR 1 Williams v Department of Industry and Investment (NSW) [2012] NSWADT 192 Wojciechowski v Commissioner of Police [2020] NSWCATAP 173 Texts Cited: NSW Public Service Commission: The Ethical Framework Category: Principal judgment Parties: James Robert Daniels (Applicant) NSW State Emergency Service (Respondent) Representation: Applicant (Self-represented) Crown Solicitor (Respondent) File Number(s): 2022/00210871 Publication restriction: Pursuant to s 64(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) the publication and broadcast of the sound recording and transcript of the confidential hearing is restricted. Only the Tribunal and the Respondent may have access to this material.

Pursuant to s 64(1)(c) and (d) of the Civil and Administrative Tribunal Act 2013 (NSW) disclosure of the contents of the confidential bundle of materials filed by the Respondent on 31 January 2023 is prohibited.

Introduction

This is an application by James Robert Daniels (the Applicant) under section 55 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) for review of a reconsidered decision of a delegate of the NSW State Emergency Service (the Agency) dated 28 November 2022 under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act, the Act) which is designated a reviewable decision by s 100 of that Act. By that decision the delegate determined pursuant to s 58(1)(a) of Act to provide the Applicant with some information that had been identified as being within the scope of his access requests; pursuant to s 58(1)(c) that some of the identified information was already available to the Applicant; and pursuant to s 58(1)(d) to refuse access to the balance of the identified information on the basis of overriding public interest considerations against disclosure. Otherwise, the delegate determined pursuant to s 58(1)(b) of the Act that the information sought by the Applicant is not held by the Agency. This application was originally made to the Tribunal on 13 July 2022 (the application).
For the reasons set out following I have determined that the Tribunal does not have jurisdiction to review the Agency's decisions to refuse access to information contained in emails identified in a Schedule of Emails produced by the Agency as an outcome of mediation. That is because those decisions were not made in relation to the remitted access application, and therefore cannot form part of the reviewable decision.
The Tribunal has affirmed the Agency's decision that it does not hold information responsive to item 2(b) of the remitted access application. It is persuaded that the Agency has conducted reasonable searches for information of that description and that there a no facts and circumstances sufficient to suggest the existence of this information.
The Tribunal has also affirmed the Agency's decision to refuse access to an Investigation Report and emails generated during an investigative and deliberative process related to allegations of misconduct against the Applicant. For the reasons set out following it is satisfied that there are four over-riding public interest considerations against the disclosure of this information that must be given decisive weight in the application of the public interest test required by s 13 of the Act.

Procedural history

The applicant originally sought review of 3 decisions made by a delegate of the Agency in relation to separate access applications under the GIPA Act made by the Applicant on 22 February 2022, 24 February 2022, and 19 May 2022 (the access applications). These access applications were not dealt with by the Agency within the decision period specified by s 57 and the Agency ultimately determined pursuant to 60(1)(a) of the GIPA Act to refuse to deal with them on the basis that dealing with them would require an unreasonable and substantial diversion of the Agency's resources.
The application first came before the Tribunal, differently constituted, for a Case Conference on 15 August 2022. The dispute could not be resolved at the Case Conference. The Tribunal directed the Agency to give to the Applicant and the Tribunal its evidence, statements, and submissions in relation to the application by 12 September 2022, and adjourned the proceeding to a further Case Conference on 19 September 2022.
The material filed and served by the Agency in accordance with the directions made on 15 August 2022 included an Affidavit by Mr Christian Marin, the Agency's Manager, Government Relations and Legal affirmed 1 September 2022.
At the Case Conference conducted on 19 September 2022, the Tribunal, as constituted on 15 August 2022, referred the proceedings for Mediation with a Tribunal Mediator on 26 October 2022.
The Mediation resulted in an interim resolution of the dispute. In brief, the parties reached agreement to narrow the scope of the information sought by the Applicant, and the Agency agreed to reconsider the matter having regard to that revised scope. The proceedings were then listed before the Tribunal to give effect to that agreement.
The matter came before the Tribunal, differently constituted, for this purpose on 31 October 2022, where the following directions were made: 1. Note that at the mediation on 26 October 2022, the parties agreed that the decision under review should be remitted to the decision maker for reconsideration, with a revised scope. 2. Pursuant to section 65 of the Administrative Decisions Review Act 1997, the decision under review is remitted to the respondent for reconsideration within the time limited by section 57 of the Government Information (Public Access) Act 2009, noting that the scope of the access application is revised by consent to include the following: a. Respondent's investigation file relating to allegations of misconduct regarding the applicant. b. Report or reports of Anthony Day relating to allegations of misconduct against the applicant. c. Travel itinerary and costs associated with any travel by Sarah Crawford in 2022, exclusively where she had face to face interaction with Stephen Patterson and/or Jennie Veitch. 3. Note the agreement of the respondent to provide the applicant, within the time referred to in the preceding order, with a schedule of the emails referred to in paragraph 34 of the affidavit of Christian Marin, including details of any attachments to the emails. 4. The respondent is to file and serve any reconsideration of its decision on or before 12 December 2022, with a request that the matter be listed for further case conference.
With respect to direction 3, paragraph 34 of Mr Marin's Affidavit affirmed on 1 September 2022 states as follows: 34. In relation to the Third Application, Ms Wilson requested that a Staff Officer assist in undertaking searches relating to the application. As a result of these searches, 1,014 records were identified as being potentially responsive to the applicant's application, consisting of 23 word, PDF or excel documents, approximately 294 emails sent to or from Ms Crawford, and the remaining 697 records being attachments to these emails.
By Notice of Decision dated 28 November 2022, the Agency determined the remitted access application.
In accordance with the direction 4 made by the Tribunal on 31 October 2022, the remitted decision was listed for a Case Conference on 12 December 2022. At that Case Conference the Applicant advised that he was dissatisfied with the outcome and wished to proceed with administrative review of that decision. Consequently, the Tribunal, differently constituted, made directions requiring the parties to serve their evidence and submissions in relation to the review of that decision, and adjourned the proceedings to a formal hearing.

Material considered and hearing

I have considered the following material in reaching my decision:

Applicant 1. Administrative review application form filed on 13 July 2022 and annexures, 2. 'Submission of Applicant' filed on 13 June 2023 with Appendices 1 and 2.

Agency 1. the Agency's 'Notice of Decision' in relation to the remitted access applications, dated 28 November 2022, 2. Affidavit of Christian Marin dated 30 January 2023, 3. Affidavit of Sarah Crawford dated 31 January 2023 and Exhibit SC-1 which is annexed, 4. Respondent's 'Open Submissions' and 'Confidential Submissions' filed on 31 January 2023, 5. Respondent's 'Confidential Bundle' filed on 31 January 2023.

The hearing was conducted in two parts. It primarily proceeded by way of public hearing in accordance with s 49(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) (the public hearing). However, a confidential hearing was also conducted with the Agency's representative alone in accordance with s 49(2) of the NCAT Act to consider material contained in the Agency's confidential bundle and confidential submissions (the confidential hearing).
The Applicant attended the public hearing via AVL and gave evidence in his own cause under a solemn promise to tell the truth. The Agency was represented at both the public and the confidential hearing by Ms K Mattes, A/Special Counsel, NSW Crown Solicitor. At the public hearing, the Agency called as a witness Ms Sarah Crawford, the Agency's Director People and Development who gave evidence under affirmation. The parties had the opportunity to present their respect cases, to ask the witnesses questions, and to make final submissions.

Non-publication orders

As set out above, the Agency filed a 'Confidential bundle' of materials on 31 January 2023. This bundle contained the information responsive to the Applicant's access request to which access had been refused, or partially refused. The Agency also filed 'Confidential Submissions' on 31 January 2023 which included, at paragraph 62, discussion of some information to which access had been refused. This discussion was redacted from the Agency's 'Open Submissions' of the same date. As also set out above, a confidential hearing was conducted to consider this material in which only the Agency's representative participated.
For the reasons set out here, I have affirmed the Agency's decision. It is therefore appropriate to make non-publication orders pursuant to s 64(1)(b), (c) and (d) of the NCAT Act which will prohibit the publication of this confidential information and its disclosure to the Applicant.

The reviewable decision

The delegate of the Agency who determined the remitted access application was Mr Marin. The salient sections of his decision are set out following. The decision references a schedule of documents which is attached to it. … 1.3 In accordance with section 65 of the Administrative Decisions Review Act 1997 (ADR Act), I have set aside the initial decisions and made a new decision on the revised scope of the application. 2 Searches for information 2.1 Under the GIPA Act, NSW SES must conduct reasonable searches for the government information requested. 2.2 The NSWSES People and Development Directorate undertook a search of records responding to the revised scope using the key terms of the items requested. NSW SES considers that the 'investigation file' encompasses the key documents concerning the disciplinary matter which you were subject to up until the decision by Sarah Crawford, Director People and Development, which was made on 27 May 2022. 2.3 NSW SES has also undertaken a search of information responding to paragraph 2(b) of the Orders. However, no report of Anthony Day has been identified in relation to the allegations of misconduct against you. Schedule of emails 2.4 In accordance with paragraph 3 of the Orders, NSW SES has prepared a schedule of emails, being item 3 set out in the enclosed Schedule of Documents. 2.5 Item 3 is a record of the emails and attachments that were identified in the Director People and Development's initial search for your application SES000134 (which were referred to in paragraph 34 of my affidavit). The NSW SES GIPA still needed to review the emails and attachments to determine if they were in scope of the (previous) application terms, and to identify and apply the relevant public interest considerations against disclosure to the information in those records. 2.6 Item 3 is a new record and I have considered it as part of the public interest test below. However, I have only considered the information as it appears in item 3, not the content of each email and attachment that are described in the email schedule. I understand this to be the requirement of paragraph 3 of the Orders because the agency has previously refused to deal with your initial request for these emails and attachments on the basis that it would require an unreasonable and substantial diversion of the agency's resources. Information already available to you 2.7 Items 1(i) and 3 contain information that is already available to you. This includes emails that you have received or were copied into, and information that is readily accessible. 3 Decision … 3.2 In accordance with the GIPA Act, I have decided:

under section 58(1)(a), to provide access to some of the information in items 1(i) and 3, and all information item 2;
under section 58(1)(b), that no information is held by the agency in response to paragraph 2(b) of the Orders for the reasons set out in paragraph 2.3 above;
under section 58(1)(c), that some of the information contained in items 1(i) and 3 is already available to you for the reasons set out in paragraph 2.7 above; and
under s 58(1)(d), to refuse access to all information in items 1(a) to (g) inclusive, and some information in items 1(i) and 3. 3.3 My reasons for coming to this decision are set out below. … [the public interest test is set out] … Public interest considerations in favour of disclosure [section 12(1) is set out] 4.7 I consider that the following consider that the following considerations in favour of disclosure are relevant to your application:
Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, the policies and practices for dealing with disciplinary matters.
The information includes personal information of the person to whom it is to be disclosed. Public interest considerations against disclosure … 4.9 I have identified the following public interest considerations against disclosure in the Table to section 14 of the GIPA Act as being relevant to the reconsidered application: [clauses 1(d), (e) and (h) and 3(a) and (b) are set out] Clause 1(d) 4.10 Items 1(a) to 1(i) inclusive (as numbered in the enclosed Schedule of Documents) contain information that either details complaints or contains information provided as part of the complaint investigation process. This includes details of specific complaints, opinion, consideration and deliberation on the complaint, information provided to support deliberation of the complaints, and a file note pertaining to one of the complaints. 4.11 I consider that the information outlined above at paragraph 4.10 above (sic) was intended to remain confidential. The confidentiality of such information is required under the NSW SES Dealing with Allegations of Misconduct Procedures - Volunteer Members (Procedure), which relevantly provides: 'Non-disclosure Confidential information obtained during the investigation shall not be disclosed except for the purpose of the investigation or any action arising from the investigation, or for the purpose of obtaining advise from the NSW SES Volunteers Association/or a legal representative. This is to protect the integrity of the process and the privacy rights of the persons concerned. Similarly, all witnesses, including the member the subject of the investigation and his/her representative, should be advised that they should not discuss the matter with any person other than the investigator or their legal representative or the NSW SES Volunteers Association. If a witness informs the investigator at any time that he or she is being victimised or harassed by the member who is the subject of the investigation, the investigator is to refer them to the Manager Professional Standards so that the matter can be properly reported in writing.' 4.12 I note that the Procedure places the confidentiality obligation on all persons involved in the investigative process 'to protect the integrity of the process and the privacy rights of the persons concerned'. 4.13 I also consider that information for a disciplinary investigation is subject to an implied confidentiality. This is because an investigation is dependent on the voluntary contribution of individuals and such individuals would be unlikely to contribute if the confidentiality was not reasonably maintained. 4.14 Accordingly, all persons involved in the investigation process could reasonably expect that any information they provide would remain confidential to the full extent possible. 4.15 If individuals are reluctant to participate in disciplinary investigations, the investigative process would be prejudiced as a result. This is because it would prevent a decision from being made on the best available information. I consider that disciplinary investigations facilitate the exercise of NSW SES's function of maintaining a safe and healthy working environment for all its members. 4.16 Accordingly, I am satisfied that disclosure of the information described in paragraph 4.10 above could reasonably be expected to prejudice the supply of confidential information that facilitates the effective exercise of NSW SES's probity and standards, and work health and safety functions. Clause 1(e) 4.17 Items 1(a) to 1(i) inclusive and item 3 contain information which reveals a deliberation or consultation, opinion, advice, or recommendation. These items comprise emails and attachments including details of deliberations, consultation, opinions, advice, and recommendations. 4.18 I consider that such deliberation, consultation, opinion, advice or recommendation is subject to implied confidentiality. This is because an investigation and decision-making process is dependent on the free expression of any deliberations, consultations, opinions, advice and recommendations. 4.19 I also consider that there is a fundamental need to preserve the open expression of deliberations, opinions, advice and recommendations that occurred during the disciplinary investigation. In particular, this allows the key personnel to feely exchange their views which ultimately supports the agency's ability make (sic) a fully informed decision on the disciplinary investigation. 4.20 Accordingly, if this information were to be disclosed, this would reasonably be expected to prejudice a deliberative process of the agency, particularly the deliberative process involved in undertaking disciplinary investigations. I am satisfied that clause (e) (of the Table to s 14 of the GIPA Act) applies to the information described in paragraph 4.17 above. Clause 1(h) 4.21 As set out in paragraphs 4.15 and 4.20 above, I have identified a prejudice to the conduct of disciplinary investigation if some of the information in Items 1(a) and 1(j) inclusive and item 3 were revealed. Accordingly, I consider clause 1(h) applies to this information. Clause 3(a) 4.22 Under the GIPA Act, personal information means: [the definition is set out] 4.23 Items 1(a), 1(e), 1(i) (including attachments) and item 3 include the names and opinions of third parties. Noting paragraphs 2.5 and 2.6 above and that the Director People and Development is likely to deal with sensitive information of individuals, item 3 may also contain other information about third party individuals such as an involvement in a disciplinary matter. 4.24 I consider this information to be personal information under the GIPA Act. 4.25 Accordingly, I am satisfied that the disclosure of the information described in paragraph 4.23 above could be reasonably expected to reveal an individual's personal information. Clause 3(b) 4.26 The Privacy and Personal Information Protection Act 1998 (PPIP Act) contains a similar (but not identical) definition of 'personal information' to the GIPA Act. I consider the information described in paragraphs 4.23 to be personal information under the PPIP Act. 4.27 For the purposes of clause 3(b), the relevant information protection principle is set out under s 18(1) of the PPIP Act, which provides as follows: [s 18 of the PPIP Act is set out] 4.28 I do not consider that the exemptions in sections 18(1)(a) to (c) apply in the current circumstances. 4.29 Accordingly, I am satisfied that the release of the personal information described in paragraph 4.23 above could reasonably be expected to contravene the information privacy principle in section 18 of the PPIP Act. 5 Balancing the public interest test Personal Information 5.1 As mentioned above, the information that you have requested contains the personal information of a third party described at paragraph 4.23 above. NSW SES did not consult with the third parties regarding the release of their personal information because this consultation was not practicable. 5.2 I consider that there is a strong public interest against disclosing the personal information of third parties in the circumstances outlined above. Accordingly, I attach significant weight to this public interest consideration against disclosure. 5.3 I acknowledge the considerations in favour of disclosure of the requested information and I have considered your interest in obtaining this information. However, I have also considered the decision on your disciplinary matter provided you with the reasons and circumstances which were relevant to the decision. I have attributed moderate weight to the circumstances for disclosure. 5.4 Having weighed up the public interest considerations for and against disclosure, I consider there is an overriding public interest consideration against disclosure of the third party personal information described at 4.23 above. Responsible and effective government 5.5 I consider that there is a significant public interest against disclosing confidential information that is collected for the purposes of a disciplinary investigation. Disciplinary investigations support the management of health and safety of all members. It is important that disciplinary investigations collect as much relevant information as possible. The implied and expressed confidentiality of investigations promotes the involvement of key personnel and better informs the agency's decision on a complaint. 5.6 As above, I consider the disclosure of the deliberations, I also consider that there is a fundamental need to preserve the candour of agency deliberations that occurred during the disciplinary investigation. This allows the key persons to freely exchange their views which ultimately supports the agency's ability to make a fully informed decision on the disciplinary investigation. 5.7 For the reasons described above, the disciplinary investigation process is an important function of NSW SES and the process would be prejudiced if individuals are reluctant to provide information or openly deliberate on a disciplinary matter. 5.8 Accordingly, I attribute strong weight to the public interest considerations against disclosure. 5.9 I acknowledge the considerations in favour of disclosure of the information sought and I have considered your interest in obtaining this information. However, as above, I have also considered the decision on your disciplinary matter provided you with the reasons and circumstances which were relevant to the decision. I attach moderate weight to this consideration in favour of disclosure. 5.10 Having regard to the public interest considerations for and against disclosure, I consider that there is an overriding consideration against disclosure of the information described at paragraphs 4.10 and 4.17 above. …

The Schedule of documents attached to the decision identifies 11 documents as responsive to the access application. The description of those documents and the Agency's decision regarding access is summarised following: 1. Item 1(a): Email with attachments from Sarah Crawford to Sean Kearns (20 April 2022, 6.30pm): access refused (clauses 1(d), (e) and (h), 3(a) and (b)), 2. Item 1(b): Email with attachments form Sarah Crawford to Sean Kearns: 20 April 2022, 8:51pm): access refused (clauses 1(d), (e) and (h)), 3. Item 1(c): Email from Sarah Crawford to Sean Kearns (20 April 2022, 8.52pm): access refused (clauses 1(d), (e), and (h)), 4. Item 1(d): Email with attachments from Sarah Crawford to Sean Kearns (20 April 2022, 9.17pm): access refused (clauses 1(d), (e) and (h)), 5. Item 1(e): Email with attachments 1 of 2 from Sarah Crawford to Sean Kearns (20 April 2022, 9.24pm): access refused (clauses 1(d), (e) and (h), 3(a) and (b)), 6. Item 1(f): Email with attachment 2 of 2 from Sarah Crawford to Sean Kearns (20 April 2022, 9:24pm): access refused (clauses 1(d), (e), and (h)), 7. Item 1(g): Email from Sean Kearns to Sarah Crawford (21 April 2022, 8.54am): access refused (clauses 1(d), (e), and (h)), 8. Item 1(i): Final Draft Investigation Report - James Daniels dated 25 March 2022: access partially provided; access partially refused (clauses 1(d), (e) and (h), 3(a) and (b)), 9. Item 1(j): Email from Sarah Crawford to James Daniels including attachments. Subject: Outcome - allegations of misconduct - final decision (27 May 2022, 9.17am): already available to Applicant, 10. Item 2: Sarah Crawford - Expense Report Northern March 2022: access provided 11. Item 3: Schedule of the emails referred to in paragraph 34 of the affidavit of Christian Marin: access partially provided; partially already available; access partially refused (clauses 1(d), (e) and (h)).

Material facts

The NSW State Emergency Service (NSW SES) is an agency to which the GIPA Act applies because it is a 'public authority' within the meaning of paragraph (c) the definition of 'agency' contained in s 4 and clause 2(1)(b) of Schedule 4 of the GIPA Act, being a body established for a public purpose under the provisions of a legislative instrument. In this respect the State Emergency Service is established under s 7 of the State Emergency Services Act 1989 (NSW). The 'public purposes' of the Agency are designated in s 8 of that Act.
The Applicant is a 'member' of the NSW SES. Until approximately May 2022, he held the position of Unit Commander of the Coffs Harbour City Unit of the NSW SES.
Between approximately January to May 2022, an internal investigation was undertaken by senior officers of the NSW SES into allegations of misconduct by the Applicant. As a result of that investigation, a disciplinary decision was taken to revoke the Applicant's appointment as Unit Commander of the Coffs Harbour City Unit.
The Applicant is aggrieved by this decision. His GIPA access application seeks the production to him of documentary records held by the Agency that relate to the complaint allegations made against him and the disciplinary investigation process.

Applicant

The Applicant submits, primarily, that he has been the victim of a serious injustice at the hands of the Agency. He contends that the Agency's investigation of the complaint allegations made against him lacked procedural fairness and transparency, that the investigation was unreasonably protracted and did not properly consider his case, and that its outcomes have ruined his reputation and record of achievement as an SES Member. He contends that he requires access to the information sought by his access application in order to clear his name and set the record straight. He submits that in conducting this review the Tribunal should review the whole of the Agency's conduct against 'The Ethical Framework' for the NSW public sector published by the NSW Public Service Commission and its core values of 'integrity', 'trust', 'service' and 'accountability'.
The Applicant contends that the Agency has reneged on its agreement reached in mediation before the Tribunal to provide him with access to the emails referred to in paragraph 34 of the affidavit of Christian Marin dated 12 September 2022, and any attachments, by providing 'significantly redacted documents'.
It is submitted, in effect, that the reviewable decision is not the correct and preferrable decision with respect to his access applications. With respect to the information identified at Item 1(a) to (h) of the Schedule of the Notice of Decision, the Applicant submits, in effect, that the correct and preferrable decision is to provide access to each of the documents to which access has been refused or partially refused. With respect to Item 2 of the Schedule, he submits, in effect, that the Agency has failed to carry out reasonable searches to identify information responsive to his access request. In this respect, in his submissions filed on 13 June 2023 the Applicant states with respect to paragraph 2(b) of the remitted access request: 13. On 31 October 2022, the NSW SES has been ordered to provide 'Report or reports of Anthony Day relating to allegations of misconduct regarding the applicant'. Section 12 of Christian Marin's affidavit states that: 'Mr Kearns advised me that he had received correspondence from Anthony Day that referenced the applicant and other individuals, but this correspondence did not result in any disciplinary proceedings or relate to the disciplinary proceedings which were conducted in relation to the applicant'. I submit that no independent oversight has been afforded to this assertion by Director Sean Kearns ad the perceived conflict of interest as the direct Line Manager for the Former Zone Commander who undertook the original disproportionate actions against me, which remain in question today. 14. It is not credible that Mr Day would not have provided input leading up to, or consulted in relation to what became the allegations against me (sic). This would be against SES policies and procedures as well as the basic chain of command. 15. Notwithstanding the above, it would be remiss of the Decision Maker to not take into consideration the line manager's views and observations. 16. It is submitted that either the Respondent has not taken into consideration important evidence from the Applicant's line manager, or the Respondent is not following principles of GIPA and withholding documents with the mediated scope. 17. Given that the applicant was requesting transparency over a decision making process about misconduct, a high threshold should be taken in terms of internal assurance. It is questionable that decisions would be restricted to Assistant Commissioner/Director Sean Kearns and Director Crawford when the conduct is relating to a volunteer Unit Commander five management levels below. It is requested that an independent review is undertaken of the correspondence received from Anthony Day referenced at Section 12 of Christian Marin's affidavit (30 January 203), by someone outsider of the investigation process to advise of relevancy…
It would follow from this, that the Applicant contends for an order remitting this aspect of his access request to the Agency for reconsideration (that is, to conduct further searches for this information).

Agency

With respect to item 2(b) of the remitted access request, the Agency submits that its decision that it does not hold information responsive to this item is correct. In this respect it is submitted that the delegate who determined the remitted access request made reasonable enquiries of appropriate Agency personnel as to the existence of such information and, in effect, that these enquiries constituted "reasonable searches" for the purposes of s 53(2) of the Act. It is submitted that no responsive information was identified in response these enquiries and that there is no reason to believe that any further searches would produce any different result. It submits that its decision that this information is not held ought to be affirmed by the Tribunal.
Leaving aside the Schedule of Emails referred to in direction/order 3 of the Orders made on 31 October 2022, the Agency submits that its decision to refuse access, or partially refuse access, to the information identified at in items 1(a) to (i) of the Schedule to the Notice of Decision is the correct and preferrable decision with respect to the access request which ought to be affirmed by the Tribunal. That is because there are overriding public interest considerations against the disclosure of this information being the considerations identified in clauses 1(d), 1(e), 1(h) and 3(a) and (b) of the Table to s 14. It is submitted that these considerations decisively outweigh any public interest in the Applicant being provided with access to this information.
With respect to the schedule of emails arising from paragraph 34 of Mr Marin's 12 September 2022 affidavit, the Agency submits: 27. The Schedule of Emails is not part of the revised scope of the application, as defined by the orders of Senior Member Perrignon dated 31 October 2022. Rather, Senior Member Perrignon noted "the agreement of the respondent to provide the applicant, within the timeframe referred to in the preceding order, with a schedule of the emails referred to in paragraph 34 of the affidavit of Christian Marin, including details of any attachments to the emails". 28. The respondent treated the Schedule of Emails as a record created under the GIPA Act (see Marin Affidavit, para 18; Notice of Decision para 2.6). Mr Marin gave evidence that he treated the Schedule of Emails as a new record created under s 75 of the GIPA Act because the agreement to create a Schedule of Emails was made in the context of narrowing the scope of the applicant's GIPA Act application, and of the applicant primarily requesting access to sensitive information: Marin Affidavit at [18] 29. The respondent considers that strictly, under the terms of the ADR Act and the GIPA Act, the Tribunal does not have jurisdiction to review the respondent's decision in relation to the Schedule of Emails. 30. … It is the respondent's submission that the decision to provide partial access to the Schedule of Emails was not in response to an access application, but rather in response to a separate agreement of the parties noted by the Tribunal. If this is accepted ss 80(d) and 100 of the GIPA Act do not confer jurisdiction on the Tribunal to review the respondent's decision to refuse access to some parts of the Schedule of Emails, unless the applicant files a further application under the GIPA Act in relation to this document. …
In the alternative to that submission, if the Tribunal does determine it has jurisdiction to review the Agency's decision with respect to the Schedule of Emails, it is submitted that its decision to refuse access to the redacted parts of these emails is the correct and preferrable decision on the basis that there is an overriding public interest against disclosure of this information for the same reason as access to other information sought by the Applicant has been refused.

Jurisdiction

Section 9 of the ADR Act provides that the Tribunal has administrative review jurisdiction over a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under that Act of such a decision.
In this respect, section 80 of the GIPA Act sets out what decisions are reviewable decisions for the purposes of that Act. They include, relevantly: 80. Which decisions are reviewable decisions The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part - … (d) a decision to provide access or to refuse to provide access to information in response to an access application, (e) a decision that government information is not held by the agency, …
The Tribunal's role in the conduct of an administrative review is prescribed in s 63 of the ADR Act: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) the applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
The Tribunal's role in undertaking this administrative review is to reach its own conclusion as to what is the correct and preferrable decision by conducting its own assessment of the factual issues and public interest considerations. This is, in essence, to do again what the original decision-maker did. In this respect the Tribunal stands in the shoes of the original decision maker for the review process. The Tribunal's role is to make the correct and preferrable decision on the material before it as it stands at the date of the hearing. This may include consideration of material that was not considered by the original decision maker: Shi v Migration Agents Regulatory Authority (2008) 235 CLR 286; YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].

Applicable law

The starting point for analysis of the legislative scheme to be applied in this administrative review is found in the object of the GIPA Act in s 3 which states, relevantly: (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: … (b) by giving members of the public an enforceable right to access government information, and …
This object is amplified with a statutory command, contained in section 3(2), which provides: (2) It is the intention of Parliament - (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest possible cost, access to government information.
Part 2 of the GIPA Act establishes general principles for open government information. Division 1 of that Part establishes the ways of accessing government information. This includes, in s 5, a presumption in favour of disclosure of government information: 5 Presumption in favour of disclosure of Government Information There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
Section 9 in Division 1 deals with access applications for government information. It provides, in s 9(1): 9 Access applications (1) A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information. …
Part 4, Division 2 deals with public interest considerations governing the disclosure of government information. Section 12 in that Division provides that there is a general public interest in favour of the disclosure of government information: 12 Public interest considerations in favour of disclosure (1) There is a general public interest in favour of the disclosure of government information. (2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purposes of determining whether there is an overriding public interest against disclosure of government information. [Note: The following are examples of public interest considerations in favour of disclosure of information: (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is disclosed. (e) Disclosure of the information would reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. …
Section 13 contains the 'public interest test' that is to be applied in determining if the public interest in favour of the disclosure of government information is outweighed by any overriding public interest against its disclosure: 13 Public interest test There is an "overriding public interest against disclosure" of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
Section 14 sets out the overriding public interest considerations against disclosure of government information. It provides, relevantly: 14 Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. … Table [Note: 1 Responsible and effective government: There is a public interest 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, … (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] … [Note: 3 Individual rights, judicial processes and natural justice: There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects: (a) reveal an individual's personal information, (b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002 ….]
Section 15 sets out principles that apply in determining the public interest with respect to the prospective disclosure of government information: 15 Principles that apply to public interest determination A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles: (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that the disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
Part 4, Division 3 of the Act sets out the process for dealing with access applications.
Section 53 sets out an Agency's obligation to conduct searches for information held by it that is responsive to an access request. It provides, relevantly: 53. Searches for information held by the agency … (2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency. (3) The obligations of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically. …
Section 55 concerns consideration of personal factors of the application. It provides: 55 Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the "personal factors of the application") into account as provided by this section: (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14. (4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for. (5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information, and for that purpose, require the applicant to take reasonable steps to provide proof of his or her identity. (6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person.
Part 4, Division 4 of the Act deals with how access applications are decided. In this respect s 58 provides, relevantly: 58 How applications are decided (1) An agency decides an access application for government information by: (a) deciding to provide access to the information, or (b) deciding that the information is not held by the agency, or (c) deciding that the information is already available to the applicant … (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information …
Part 5, Division 4 of the Act concerns administrative review of decisions by NCAT. Section 105(1) in that Division provides, relevantly, that in any administrative review conducted by the Tribunal under Part 5, Division 4 of the Act concerning a decision made by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by section 105. None of the exceptions are relevant in this case.
Schedule 4, clause 4 of the Act contains the definition of "personal information" for the purposes of the Act. It provides, relevantly: 4 Personal information (1) In this Act, "personal information" means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion. (2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics. (3) Personal information does not include any of the following: … (b) information about an individual (comprising the individual's name and non-personal contact details, including the individual's position title, public functions and the agency in which the individual works) that reveals nothing more than the fact that the person was engaged in the exercise of public functions, …
Part 2, Division 1 of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) sets out the "information protection principles" prescribed by that Act. Section 18 is relevant to the Agency's case in these proceedings. It provides, relevantly: 18 Limits on disclosure of personal information (1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless - (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person. …
The term "personal information" is defined in s 4 of the PPIP Act, relevantly, as follows: 4 Definition of "Personal Information" (1) In this Act, "personal information" means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion. …

Preliminary point on jurisdiction

The Applicant's submission that the Tribunal has jurisdiction at large, including by reference to The Ethical Framework published by the NSW Public Service Commission, to scrutinise the Agency's complaint investigation process is misconceived. The Tribunal exercises limited statutory jurisdiction only. This is a proceeding under the GIPA Act. The only jurisdiction capable of being exercised by the Tribunal in this context is the review of the agency's decision concerning the remitted access request.

The decision that information responsive to item 2(d) of the remitted access application is not held

To determine the outcome of this application insofar as it concerns item 2(d) of the remitted access application, the Tribunal must pose and answer the following questions: 1. Has the agency discharged the onus imposed on it by s 105 of the Act of establishing that no information is held by it that falls within the scope of item 2(d)? 2. In this respect, has the agency discharged the onus imposed on it by s 105 of the Act of establishing that it has conducted reasonable searches for such information? 3. If the answer to (b) is "no" should this aspect of the reviewable decision be set aside, and the access application remitted to the agency for reconsideration? 4. If the answer to (c) is "yes" what directions or recommendations, if any, should be given to the agency in relation to its' reconsideration of the access application?
Whether the agency's decision that it does not hold further information that falls within the scope of the applicant's access application is correct and preferrable ultimately depends upon whether it is able to discharge its onus of establishing that it has conducted reasonable searches for that information.
In this respect, in Klaric v Commissioner for Police [2020] NSWCATAP 153 an Appeal Panel of the Tribunal considered the extent of the Tribunal's power to review an agency decision pursuant to s 58(1)(b) that it does not hold government information, stating at [33]: 33. The question of whether government information is held by an agency is distinct from the question of whether the agency has conducted reasonable searches. The Tribunal has the power to review a decision that information is not held, but it has no power to review the sufficiency of an agency's search.
The Appeal Panel in Wojciechowski v Commissioner of Police [2020] NSWCATAP 173 (Wojciechowski) concurred with that statement, but added at [41]: 41. … Nonetheless, whether an agency has complied with the obligation imposed by s 53 of the GIPA Act is plainly a relevant factor in determining whether an "information is not held" decision is the "correct and preferable decision". … stating at [42] to [44]: 42. The role of the Tribunal in reviewing an "information not held" decision (ss 58(1)(b), 80(e)) is "to decide what the correct and preferable decision is having regard to the material then before it": s 100(1) of the GIPA Act and s 63(1) of the Administrative Decisions Review Act. The "burden of establishing that the decision is justified lies with the agency": s 105(1) of the GIPA Act. In summary, the burden is on the agency to prove that the decision that the government information applied for is not held by the agency, is the correct and preferable decision. 43. In the context of a decision made under s 58(1)(b) of the GIPA Act, the issues of fact which an agency must establish on the balance of probabilities will depend on the reasons given by the agency that it does not hold the requested information. If the stated reason is that the agency has searched for the information but is unable to find the requested information, a factual issue will be whether the agency has undertaken "such reasonable searches as may be necessary to find any government information applied for that was held by the agency when the application was received": s 53(2) of the GIPA Act. A further relevant issue may be whether material has emerged since the search was undertaken which suggests that the requested information exists and is held by the agency. Other relevant factual issues may include whether any search information would require an unreasonable and substantial diversion of the agency's resources: s 53(5) of the GIPA Act. 44. In summary, the task for the Tribunal when reviewing a decision that the requested information is not held by the agency, is to: (1) identify on the basis of the agency's reasons and the applicant's submissions, any relevant factual issues including those derived from s 53(1) - (5); (2) determine whether the agency has proved any relevant factual issues on the balance of probabilities; (3) consider any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency; (4) applying those findings, decide what the correct or preferable decision is; (5) affirm, set aside or vary the agency's decision: s 63(3) of the Administrative Decisions Review Act.
As I have said elsewhere on a number of occasions, s 53 imposes a "reasonableness" standard in relation to the searches required to be undertaken by an agency, rather than any absolute or strict standard. Such searches must therefore be "logical", "sensible", "appropriate" and "fair" but are not required to be "extreme" or "excessive" (to illustrate using synonyms and antonyms. The reasonableness standard is an objective one. It is what a fair minded person possessing reasonable knowledge of the agency's obligations and the circumstances of the case would consider reasonable. It is not the standard of an obsessive, mistrustful, perseverative, or belligerent observer (CLT v Secretary, Department of Education [2022] NSWCATAD 34 at [40]; Ugur v Commissioner of Police (NSW) [2022] NSWCATAD 396 at [52].)
It thus falls to the agency to establish pursuant to s 105 of the Act that it has carried out searches for government information within the scope of the access application in a logical way that has been fair to the applicant having regard to the object of the GIPA Act and the applicant's section 9(1) right to government information.
The starting point for analysis is to recognise that the GIPA Act legislative scheme places a high onus on agencies to identify and provide access to government information (see ss 3, 5, 9 and 12). That obligation operates subject to limitations. However, leaving aside information that is excluded from the operation of the Act, this requires an agency to identify all information that falls within the scope of an application such that it is able to determine if it is to be disclosed or a limitation on disclosure applies. The searches conducted by the agency must therefore be robust enough to identify such information.
Item 2(d) is expressed in quite specific terms: when read with the chapeau, it calls for access to "only" "[r]eport or reports of Anthony Day relating to allegations of misconduct against the applicant".
Mr Christian Marin, the Agency's Manager, Government Relations and Legal was the delegate of the Agency who dealt with the Applicant's remitted access request. At paragraphs 7 to 13 of his Affidavit dated filed on 31 January 2023, Mr Marin states the following in relation to the searches he conducted for information responsive to item 2(d): Searches conducted in relation to report of Anthony Day 7. Paragraph (b) of the Revised Application sought the following information: "Report or reports of Anthony Day relating to allegations of misconduct against the applicant". 8. Anthony Day is a Deputy Zone Commander in the Northern Zone for NSW SES. The Northern Zone includes the Coffs Harbour City Unit, of which the applicant was formerly the Unit Commander. I am aware that the Deputy Zone Commanders are responsible for certain units within an area, and therefore may manage issues that arise in units within their zone. 9. On 1 November 2022, Ms Alana Paine, Coordinator Legal of the Government Relations and Legal Team sent an email to Ms Sarah Crawford, which requested Ms Crawford to search for a report or reports of Anthony Day relating to allegations of misconduct against the applicant. Ms Crawford is the Director of People and Development at NSW SES, and in this role had delegated decision making responsibility in relation to the allegations of misconduct against the applicant. I therefore expected Ms Crawford to be aware of any reports relating to the misconduct allegations against the applicant. 10. On the same day, Ms Crawford replied to Ms Paine's email indicating that she was "not clear on what if any reports of misconduct have been made by Anthony Day", and requested my office to make further enquiries about this report. 11. On 23 November 2022, I spoke to Mr Sean Kearns, the Assistant Commissioner, Director of Regional Operations. As a Director of Regional Operations, Mr Kearns had oversight of the Coffs Harbour City Unit, and was involved in the disciplinary proceedings regarding the applicant. I am aware that Mr Kearns would have a good understanding of all correspondence and reports relating to disciplinary matters involving the applicant, and the context in which these documents were used, including whether the documents related to any allegations of misconduct against the applicant. 12. Mr Kearns advised me that he had received correspondence from Anthony Day that referenced the applicant and other individuals, but this correspondence did not result in any disciplinary proceedings or relate to the disciplinary proceedings which were conducted in relation to the applicant. 13. Following these conversations, I was satisfied that no information was held in response to paragraph (b) of the Revised Application.
Ms Sarah Crawford is the Agency's Director People and Development. In her affidavit dated 31 January 2023, she states that she has delegated responsibility in relation to allegations of misconduct against NSW SES employees and volunteers. She also outlines the investigation process that was undertaken by the Agency between January and May 2022 in relation to the complaint allegations made against the Applicant. For present purposes it is sufficient to note the following from her evidence: 1. on 11 February 2022 Ms Crawford wrote to the Applicant to inform him of the allegations of misconduct that had been made and that she had requested a Mr Bevan of the Agency's Probity and Standards Unit to investigate the allegations, 2. on 25 March 2022 Mr Bevan produced to her an Investigation Report regarding the allegations of misconduct against the Applicant, 3. After receipt of the Investigation Report, Ms Crawford considered Mr Bevan's findings to determine whether or not the conduct engaged in by Mr Daniels constituted "misconduct" and the appropriate disciplinary action that she would propose, if necessary, in response to the any finding of misconduct, 4. On 21 April 2022, Ms Crawford wrote to the Applicant to inform him that she had determined that the substantiated conduct in relation to one allegation constituted misconduct, and that the substantiated conduct in relation to a second allegation did not constitute misconduct. She also advised the Applicant that her preliminary view was to recommend revoking his appointment as Unit Commander in response to her finding of misconduct in relation to the first allegation. Ms Crawford invited the Applicant to make a submission in relation to her preliminary view as to the disciplinary outcome, 5. On 25 May 2022, Ms Crawford wrote to the Applicant to inform him that she had determined to revoke his appointment as Unit Commander. 6. Subsequent to 25 May 2022, the Applicant lodged an internal appeal from this decision. The outcome of the internal appeal was to affirm the decision to revoke the Applicant's appointment as Unit Commander.
I have set out at paragraph 25 above the facts and issues the Applicant contends indicate that the Agency has failed to conduct reasonable searches for information responsive to item 2(b) of the remitted access request. Those facts and issues ultimately distil to two propositions: 1. Mr Kearn's characterisation of correspondence he had received from Anthony Day that referenced the applicant as being unrelated to the Agency's disciplinary proceedings against the Applicant should not be accepted, 2. it is not credible that Mr Day would not have provided "input" or have been "consulted" about the disciplinary allegations made against the Applicant.
The remitted access application is of relatively narrow scope. Its four walls are information related to the allegations of misconduct that gave rise to the Agency's disciplinary investigation, and the investigation and its outcomes. I have reviewed the whole of the material contained in the Agency's confidential bundle and have been unable to identify any information that is indicative that Mr Day made or produced a "report" or "reports" to any person in relation to the allegations or the disciplinary investigation. It is clear from the open and confidential information that this involved other persons.
If Mr Day did have "input" to or was 'consulted" during the disciplinary investigation due to his line management role (and I cannot see any indication of this in the material), this did not result in an independent information record that is capable of being captured by item 2(b) of the access request.
It is curious that Mr Marin did not inquire of Mr Day directly if he held any information that could constitute a 'report' by him in relation to the complaint allegations. That seems to me to be a reasonable search step for the Agency to have taken in the performance of its s 53 obligations. I have considered if item 2(d) of the access request ought to be remitted for this specific purpose. However, weighing the whole of the evidence in the balance I will not take this step. The evidence is sufficient to persuade me that the allegations and the investigation process did not involve Mr Day, such that there is an unlikelihood that he would hold a 'report' or 'reports' authored by him in relation to these matters that would not otherwise appear in the Agency's records if they did exist. Remittal of this item would be a futility in these circumstances, and unreasonably prolong finalisation of the access request.
Other than in relation to this issue, I am satisfied that the searches conducted by the Agency were reasonable on the basis that they involved direct inquiries of the Officers who dealt with the complaint allegations and managed the disciplinary investigation and outcomes. It is logical that these officers would be able to identify any report or reports made by Mr Day in relation to the allegations and the investigation if such information existed.
For the foregoing reasons, the Agency's decision that it does not hold information responsive to item 2(b) of the remitted access application is affirmed.

The schedule of emails referred to in paragraph 34 of Mr Marin's affidavit of 1 September 2022

It is clear from the structure of the orders/directions made by the Tribunal, differently constituted, on 31 October 2022 that the agreement reached by the parties in mediation concerning the provision to the Applicant of a schedule of the emails referred to in paragraph 34 of Mr Marin's affidavit of 1 September 2022 did not form part of the access application that was remitted to the agency for consideration by those orders. The access application is encapsulated in order/direction 2. The parties' 'agreement' with respect to the schedule of emails is "noted" in order/direction 3 in terms that make it clear that it operates independently of the remitted access request.
It follows from this that the agency's submission that the Tribunal does not have jurisdiction under ss 80(d) and 100 of the Act to review the Agency's decision to refuse to provide the Applicant with access to some of the information contained in documents identified in the schedule must be accepted. Those decisions were not made in response to an access request.
I note the Applicant's contention that the Agency has reneged on the agreement reached in mediation to provide all of the information referred to in paragraph 34 of Mr Marin's affidavit of 1 September 2022. The agreement recorded by the Tribunal in its directions/orders of 31 October 2022 is to the effect that the Agency had undertaken to provide the Applicant with a "schedule" of the emails referred to in paragraph 34 of Mr Marin's affidavit. As expressed by the Tribunal, that agreement did not relate to the unredacted provision to the Applicant of the emails to be identified in the schedule.
In any event, as I have said, the Tribunal has no power in this proceeding to deal further with this issue.

Decisions to refuse to provide access to certain information

Review of the Agency's decisions to refuse to provide the Applicant with information that falls within the scope of his access applications involves the Tribunal standing in the shoes of the Agency's delegate and remaking these decisions with the objective of giving authentic effect to the GIPA statutory scheme. This involves the application of the public interest test contained in section 13 of the Act to determine if the public interest considerations in favour of disclosure of this information are outweighed by any Table to s 14 overriding public interest considerations against disclosure, also considering any personal factors of the application. In this respect, in Commissioner of Police (NSW) v Camilleri [2012] NSWADTAP 19 an Appeal Panel of the Tribunal stated at [25]: 25. The … Act has a … structured approach to the decision making task … The agency case for refusal must rely on one or more of the section 14 Table considerations. The Tribunal's task is then to weigh that case against the factors favouring disclosure (s 13), mindful of the injunctions that appear in both ss 12 and 15. It is important, in our view, that the Tribunal proceed in the structured way reflected by these provisions. The Table considerations are concerned with systemic features of the operation of government.
The considerations against disclosure in the Table to s 14 crystalise where the disclosure of information "could reasonably be expected" have the relevant effect. In Attorney-General's Department v Cockcroft (1986) 10 FCR 180 at [106] the Federal Court (per Bowen CJ and Beaumont J) stated with effect to an analogous provision of the Freedom of Information Act 1982 (Cth) that these words: 106. … require a judgement to be made by the decision maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of those words. In particular it is undesirable to consider the operation in terms of probabilities or possibilities and the like.
In Leech v Sydney Water Corporation [2010] NSWADT 298, the Administrative Decisions Tribunal held with respect to these words at [25] (citations omitted): 25. The term 'could reasonably be expected' has been considered in a number of cases. The words have their ordinary meaning. The test to be applied is an objective one, approached from the viewpoint of the reasonable decision-maker. Something which could reasonably be expected is something which is more than a mere possibility, risk or chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginery or contrived.
The word "prejudice" as it appears in the Table to s 14 is also to be given its ordinary or everyday meaning, which is "to cause detriment or disadvantage" or "to impede or derogate from": Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60]. This involves an ordinary weighing of the material giving prominence to inferences that may be drawn from the objective and otherwise established facts rather than the subjective views of particular witnesses: Transport for NSW v Searle [2018] NSWCATAP 93.

Applying the public interest test in the circumstance of this case

Public interest considerations in favour of disclosure of the information

There is a general public interest in favour of the disclosure of government information which is recognised in s 12(1) of the Act.
Disclosure of the information sought under the access request would also be reasonably expected to inform the public about the operations of the agency, its policies and practices for dealing with allegations of misconduct by SES Members.
The information sought by the Applicant is also substantially personal information of the Applicant in that it relates to complaint allegations made against him and a disciplinary process to which he was subject. There is a public interest in the disclosure of personal information to an access applicant.

Public interest considerations against disclosure of the information

The Agency submits that each of the clause 1(d), (e), (h) and 3(a) and (b) in the Table to s 14 public interest considerations against disclosure of information are engaged in the circumstances of this case.
Clause (1)(d) provides that it is a public interest consideration against disclosure where disclosure of information could reasonably be expected to prejudice the supply of confidential information necessary for the effective exercise of the agency's functions.
The question of whether the c 1(d) consideration is engaged involves a relatively abstract analysis as the issue to be decided is predictive about a future consequence from unspecified persons based on a hypothetical scenario: Camilleri at [26] and Searle at [56]. In Collins v Department of Finance, Services and Innovation [2018] NSWCATAD at [61] the Tribunal held that the necessary elements of clause 1(d) are that: 1. the information was obtained in confidence, 2. disclosure of the information could reasonably be expected to prejudice the supply of such information to the agency in the future, and 3. the information facilitates the effective exercise of the agency's functions.
With respect to the first of these elements, in Camilleri an Appeal Panel of the Tribunal outlined the general approach to determining whether or not information is confidential information as follows at [33]: 33. In our view, the question of whether the information supplied is 'confidential information' must be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received. The agency's case is that all information received by the triple zero service at the point of receipt is treated as confidential. The agency's case is that members of the community expected the triple zero service to be a confidential service.
The information in issue in this case is an Investigation Report which compiled information supplied to the Agency in the course of an investigation regarding complaints and concerns raised in relation to the Applicant. The refused emails relate directly to the Investigation Report or the complaints and concerns which gave rise to the disciplinary investigation.
In her Affidavit filed on 31 January 2023 Ms Crawford gives the following evidence as to the confidentiality of this information (as summarised by the Agency's legal representative: 1. the management of complaints and allegations of misconduct relating to NSW SES members is dealt with in accordance with internal policies and procedures, including the "Dealing with Allegations of Misconduct Procedures - Volunteer Members" policy and the "NSW SES Code of Conduct and Ethics". Each of these policies emphasise the confidential nature of the complaints management and investigative processes (see paragraphs [13] and [21]-[22] of the affidavit), 2. Subject to the requirement that a member who is the subject of an investigation must be provided with sufficient information about the allegations made against them to ensure they have a reasonable opportunity to respond to the allegations, NSW SES aims to ensure that information relating to the allegations is kept confidential (see paragraph 20 of the affidavit), 3. It is necessary to maintain the utmost levels of confidentiality in relation to disciplinary proceedings to ensure that NSW members are comfortable in reporting any alleged misconduct and willing and forthright to participate in these investigations. In Ms Crawford's experience, individuals who participate in disciplinary proceedings have an expectation that the information they provide will be kept confidential (paragraphs [25] - [26] of the affidavit), 4. It is NSW SES's usual practice to inform individuals who participate in disciplinary proceedings that the information they provide to the investigation will be kept confidential, to the extent that confidentiality can be maintained while ensuring that the Member has a reasonable opportunity to respond to the allegations made against them (paragraph 27 of the affidavit), 5. The Investigation Report is marked in bold red text "PERSONNEL IN CONFIDENCE". NSW SES does not provide a copy of the investigation report to the volunteer who is subject of any disciplinary investigation (paragraph [28] of the affidavit).
In has been accepted by the Tribunal, differently constituted, in a number of cases that complaints regarding alleged misconduct are made in confidence. In Williams v Department of Industry and Investment (NSW) [2012] NSWADT 192, the Department's Internal Audit Bureau investigated workplace bullying and harassment. In that case the Tribunal accepted, at [82], that information supplied orally by witnesses to investigators and recorded in transcripts was supplied in confidence. In MJ v Department of Education and Commerce [2013] NSWADT 213, the Tribunal held at [73]: 73. It is well established that a function of the agency is to deal with and action allegations of misconduct by one or more of its officers. The effective exercise of that function is based on complaints being made voluntarily and that the making of a complaint and any action taken in regard thereto remains confidential, to the extent required by law.
The second element of clause 1(d) (prejudice future supply of information) is not concerned with whether a particular complainant whose complaint is disclosed would in future refuse to supply similar information. Rather, the question as to prejudice is to be determined at a broader operational (or systemic) level. That is, clause 1(d) is concerned with the question whether disclosure of this type of information would impair the general ability of the agency to obtain that type of information in the future: Director General, Department of Education & Training v Mullett [2022] NSWADTAP 13 at [58]; Camilleri at [28]-[29].
Having regard to Ms Crawford's evidence, as summarised above, the Agency submits that the Tribunal should accept that a "natural implication" is that disclosure of the Investigation Report would be likely to adversely affect the future flow of such information. It is submitted that such a finding is consistent with the objective facts about the nature of this information. It is further submitted that a conclusion that the disclosure of the Investigation Report would prejudice the future supply of such information to the Agency is consistent with various other Tribunal decisions that have involved consideration of agency complaint handling and investigative functions.
In particular, the Agency relies on the Tribunal's decision in McInnes v NSW Department of Education and Communities [2013] NSWADT 219 at [37]-[38] where a central issue was the Agency's reliance upon voluntary participation in its complaint process: 37. Unlike some agencies, the Respondent has no power to compel non-staff - including former employees - to participate in investigations. It therefore must rely upon their goodwill, I accept that to encourage people to participate, it is important that the Respondent can offer people no longer connected to it an undertaking of confidentiality to the maximum extent allowable by law. 38. Although theoretically a staff member could be compelled to participate in an investigation, the Respondent usually relies on the voluntary cooperation of staff. I accept that it is important that for its investigations [the agency] can offer staff an undertaking of confidentiality to the maximum extent allowable by law to encourage staff members to participate.
The Agency submits: It is vital that NSW SES members feel able to make complaints or raise concerns about other volunteers and employees so that risks can be identified, issues investigated and, where necessary, and appropriate, action taken. Furthermore, it is vital that members feel comfortable participating in any investigation so that sufficient information may be gathered to allow for full consideration and assessment of the issues arising. Any reluctance on the part of NSW SES members to raise concerns or participate in investigations would have a negative impact on the flow of information, and consequently, the ability of the [agency] to adequately investigate and respond to issues and concerns. By employing a general policy preventing the release of all investigation reports regarding misconduct, NSW SES ensures that members can trust that any correspondence regarding alleged misconduct in future will be kept confidential.
The Applicant does not squarely address the Agency's case in relation to whether the clause 1(d) consideration is engaged in the circumstances of this case. Rather, as I understand it, his case is that the public interest in disclosure of this information, including the consideration of the personal factors of his application, should override the clause 1(d) consideration. I will consider that following.
However, at this stage I conclude on the evidence and submissions before me that the clause 1(d) consideration is properly engaged in this case. I am satisfied that the information at issue is confidential information which facilitates the agency's complaint handling functions. I am also satisfied that the agency's future ability to obtain this confidential information would be prejudiced if persons who are in a position to supply such information were to apprehend that it would be disclosed to a person in the position of the Applicant in a manner that would reveal their identity and opinions.
Clause 1(e) of the Table to s 14 provides that there is a public interest consideration against disclosure of information if it would reveal deliberation or consultation conducted, opinion, advice or recommendations given in such a way as to prejudice a deliberative process of government or an agency.
The Agency submits, and I accept, that it is apparent from the face of the Investigation Report that its disclosure would reveal consultation conducted by Mr Bevan regarding allegations of misconduct relating to the Applicant, and advice and recommendations given to Ms Crawford by Mr Bevan regarding whether the Applicant had engaged in misconduct.
The Agency also submits that a review of the refused emails indicates that their disclosure would reveal Ms Crawford's deliberative process and the opinions given to Ms Crawford in relation to the allegations of misconduct by the Applicant. I accept that that is so based on my own perusal of these emails.
For the clause 1(e) consideration to apply, the Agency must establish that disclosure of this information could reasonably be expected to prejudice its relevant deliberative process. A 'deliberative process' has been described as the Agency's "internal thinking" on an issue, its "thinking processes - the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action": Fire Brigade Employees' Union v Fire and Rescue NSW [2014] NSWCATAD 113 at [58]; Re Waterford and Department of Treasury (No 2) (1984) 1 AAR 1; Miskelly v Transport for NSW [2017] NSWCATAD 207 at [72]. There is a "relevant connection" between the deliberation contained in the information in dispute and the "deliberative process" it contends would be subject to prejudice if the information were to be disclosed: Van der Wall v University of Sydney [2018] NSWADT 213 at [36].
In this respect the Agency submits that future deliberations regarding allegations of misconduct would be prejudiced by the release of the Investigation Report and refused emails essentially for the same reasons cited in relation to clause 1(d). Additionally, it is submitted that if a decision-maker was aware that their consultation, deliberations and opinion, and advise received and communicated with others during the decision-making process would be made available to the subject of the misconduct allegations, it is reasonable to infer that they would be less likely to consult and deliberate with others, or at least to commit the results of consultation and deliberations to writing, which would be detrimental to the decision-making process.
The Agency submits that the present case is analysis to the respondent's position in Luxford v Department of Education and Communities [2016] NSWCATAD 118, where the Tribunal accepted that staff may feel inhibited in providing frank and honest views on issues relating to complaints about staff or may decline to participate in the deliberative process altogether if sensitive deliberations were released. Staff may also feel reluctant to do in written form what they would otherwise do orally, in circumstances where any oral communication would remain confidential. It is also submitted that the present case is analogous to the respondent's position in Miskelly v Secretary Department of Education [2019] NSWCATAD 48 where the Tribunal held that the ability of the agency to manage and investigate incidents depended on it being able to freely discuss privately and frankly how best to manage and resolve sensitive issues affecting the operation of schools, and the release of records of discussions concerning students or parents would impair the ability of the agency to undertake those functions.
Having regard to the evidence and submissions before me I am satisfied that the clause 1(e) consideration is engaged. The Investigation Report and refused emails clearly contain information related to consultation and deliberation conducted in relation to the complaint allegations and disciplinary process. The disclosure of this information would prejudice the proper exercise of the Agency's complaint handling functions by deterring people with relevant information from participating in these processes lest their identity and opinions be exposed to a person whose conduct has been the subject of complaint. It would also inhibit officers with responsibility for conducting complaint investigations and disciplinary processes from obtaining advice and 'thinking through' issues with other relevant persons in writing because of the potential that these preliminary steps to a final outcome decision would be exposed to the person subject to the investigation/disciplinary process.
Clause 1(h) of the Table to s 14 provides that there is a public interest consideration against disclosure of information where the disclosure could reasonably be expected to prejudice the conduct, effectiveness or integrity of (relevantly) any investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results.
There is a divergence of principle in Tribunal decisions concerning clause 1(h). In Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [75] the Tribunal proceeded on the basis that the respondent had to show potential prejudice to the conduct, effectiveness, or integrity of the particular audit, test, investigation or review to which the information relates. If this were to be the test to be applied, it is not apparent to me how there could now be such prejudice in this case because the relevant investigation has concluded. However, in some more recent cases, differently constituted Tribunals have proceeded on the basis that it is also open to an agency to establish that clause 1(h) is engaged because of the potential prejudice that disclosure of such information may have in relation to the effectiveness of future audits, tests, investigations and reviews: Johnson v Secretary, Department of Communities and Justice [2020] NSWCATAD 23 at [68]; Davis v Secretary, Department of Education [2022] NSWCATAD 55 at [77]; Thomson v Commissioner of Police [2021] NSWCATAD 53 at [130].
I am of the view that clause 1(h) refers to a specific investigation (in this case) to which the access request relates rather than to any investigation that the Agency may conduct in the future that is unrelated to the access applicant. That is because of the words in parenthesis at the end of the clause "(whether or not commenced and whether or not completed)" which denote that a specific investigation is contemplated. The clause also appears to me to be referring to a specific investigation because of the use of the possessive pronoun "its" in relation to the purpose, conduct or results of the investigation (in this case).
As I have stated, I cannot see how revealing the purpose, conduct or results of the Agency's disciplinary investigation now could prejudice the conduct, effectiveness, or integrity of that investigation. That is because it has long since concluded. I am thus not satisfied that clause 1(h) is engaged in the circumstances of this case.
Clause 3(a) and (b) of the Table to s 14 provides that there is a public interest consideration against disclosure of information where that disclosure would reasonably be expected to reveal an individual's personal information, and/or where it would reasonably be expected to contravene an information protection principle (IPP) under the PPIP Act. The definition of 'personal information' for the purposes of the PPIP Act is set out above. It is capable of including complaints made about a person and the opinions or the person making the complaint. Information of this kind will be personal information of both the person subject to the complaint and the person who made the complaint: McKinnon v Blacktown City Council [2012] NSWADT 44 at [73]; Sigh v Legal Aid Commission (No. 2) [2015] NSWCATAD 5 at [49].
The Agency submits that the Investigation Report contains personal information about individuals in addition to the Applicant, including complaints made by some individuals, and the views expressed by individuals consulted about the allegations of misconduct against the Applicant or who have otherwise expressed an opinion about the Applicant in the context of the Investigation. It submits that this is also the case with respect to the emails itemised at 1(a) and (e) of the Schedule of Documents attached to the Notice of Decision. Based upon my perusal of the Investigation Report and those emails I accept that is the case. The Agency further submits, and I accept, that merely redacting the names of the individuals contained in this information would not prevent their identity from being ascertained because the contextual information surrounding their name would reveal their identity to someone with knowledge of the organisation and its paid and volunteer personnel, such as the Applicant.
With respect to clause 3(b) of the Table to s 14, the Agency contends that disclosure of this personal information would contravene s 18(1) of the PPIP Act because it would not fall within any of the exceptions to the prohibition on the disclosure of personal information contained in that section. In particular that is because the disclosure of this personal information under the GIPA Act would be for a purpose unrelated to the purpose for which the information was collected.
I accept the Agency's submissions that clauses 3(a) and (b) of the Table to s 14 are engaged by the Applicant's access request.

Applying the public interest test

It is now necessary to weigh the public interest considerations in favour of and against disclosure of the disputed information in balance to determine which interest is to prevail in the circumstances of this case.
The statutory presumption that there is a general public interest in the disclosure of government information contained in s 12(1) of the Act is to be given significant weight in accordance with the GIPA Act legislative scheme and the Parliamentary intention in enacting that section.
There is also a public interest in the transparency of agency functions related to complaint investigation and disciplinary process. Such transparency serves the public interest of building confidence in the integrity of government institutions and their processes and exposing any malfeasance. I give significant also weight to this consideration.
There are personal factors of the application in this case which weigh both in favour of, and against, disclosure of the information. The Applicant has a strong personal interest in knowing what complaints have been made about him and what opinions have been expressed about him in relation to the allegations of misconduct and in the disciplinary process. He believes that the provision of access to this information will assist him to defend himself against these allegations and clear his name. However, the Agency's submission that the Applicant was notified of the complaint allegations and an outline of the evidence relating to those allegations and the opportunity to respond to them must also be considered. Having regard to that his objective in obtaining access to this information should be given moderate rather than significant weight.
It is also clear from the Applicant's written and oral submissions that he is highly motivated to know specifically who made complaints and/or expressed adverse opinions about him in the Agency's complaint investigation process. In these circumstances there is a potential that disclosure of this information could lead to the Applicant seeking to take some form of retaliatory action against particular persons based on this information. There is, however, no evidence before me that the Applicant has ever made any threat of this nature. Weighing those factors in the balance I am satisfied the personal factors of the application against disclosure should also be given moderate weight.
The result is that the personal factors of the application weigh equally in favour of and against disclosure of the information and therefore cannot play a decisive role in the application of the public interest test in the circumstances of this case.
I have found that the public interest considerations against disclosure contained in clauses 1(d), (e), 3(a) and (b) of the Table to s 14 are each engaged in the circumstances of this case. For the reasons set out above, each of these considerations should be given significant weight. In short summary, it is an essential function of an agency that it is able to receive and act on complaints of misconduct made against paid and volunteer staff in a manner which not only accords fairness to the subject of the complaint but also protects the privacy of any complainant or witness, and guards against the potential for retaliatory or some other form of adverse action to be taken against the complainant or witness by the subject person or others. If an agency could not protect information received or created during its investigative and deliberative processes from full exposure to a person subject to a misconduct inquiry there is a reasonable likelihood that this would deter complainants from raising allegations of misconduct which may be in the public interest, and witnesses from providing relevant information in relation to those allegations. At the least there is a risk they would be more guarded, and less candid, in doing so.
An agency also reasonably requires the freedom to obtain advice and feedback during the deliberative phase of an investigation to assist it to formulate a final position. There is a reasonable likelihood that the potential for exposure of information created during such a deliberative process, as distinct from its final outcome to the person subject to the investigation would inhibit and deter deliberation, potentially compromising the quality of decision-making on issues of organisational, and potentially, public importance.
The public interest test incorporated into s 13 of the Act requires the decision-maker to make a principled choice between competing values, where those values are incapable of reconciliation. In this case values related to the transparency of government information must be held subordinate to values related to the integrity of internal, and ultimately public, accountability processes.

Orders

For the foregoing reasons I make the following orders: 1. Insofar as the application applies for review of the Agency's access decisions in relation to the information identified in the 'Schedule of Emails' it is dismissed on the basis that the Tribunal does not have jurisdiction to deal with it. 2. The Agency's decision that it does not hold information that is responsive to item 2(b) of the remitted access application is affirmed. 3. The Agency's decisions to refuse access to the information identified at item 1(a) to (i) of the Schedule to the Notice of Decision is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 May 2024

State Emergency Services Act 1989(NSW)

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Judgment (24 paragraphs)

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Legislation Cited (6)

Cases Cited (17)