Davis v Secretary, Department of Education

Davis v Secretary, Department of Education - [2022] NSWCATAD 55 - NSWCATAD 2022 case summary — Zoe

[3]

Background

The Applicant is employed by the Respondent as a teacher. He previously worked at a school operated by the Respondent ("the School") and while working at the School he was the subject of a complaint lodged by school Principal Ms Anita Mangan. In her complaint Ms Mangan expressed concerns about the Applicant's behaviour toward both her and staff at the School. The complaint was lodged with Ms Julie Kennedy, the Respondent's Director Educational Leadership.
The Applicant is no longer working at the School. He stated that he has not worked at the School since November 2020 and he will not be returning to the School in any capacity or for any reason. This change in circumstances is a personal factor of the application that can be taken into account under section 55 of the GIPA Act.
Dr Mark Carter, a retired Director with the Respondent, assisted Ms Kennedy in her investigation into the complaint. He was asked to assist by reading the material related to the complaint and gather information that would assist in the management of the complaint. The process of gathering information involved interviews with Ms Mangan, the Applicant, and members of staff who had knowledge relevant to the complaint. The Applicant seeks information provided by Mr Carter.
The reference to Stacey Exner in the access application is a reference to the Respondent's Relieving Director Educational Leadership who managed the issues that were raised by Ms Mangan using the Respondent's Complaints Handling policy. Ms Exner wrote to the Applicant and outlined the findings of the investigation. In her letter she noted: "The documentation upon which the following findings have been made includes: • The complaint lodged by Ms Mangan. • Evidence supporting the complaint that was provided by Ms Mangan. • Detailed responses you provided to each element and sub-element of Ms Mangan's complaint. • Notes taken by Dr Carter during and after meetings with individual staff members at [the School] on 23 May 2019. • Notes taken by Dr Carter during and after telephone interviews conducted with some staff members after 23 may 2019. • Department of Education Policy documents, Drugs in schools: Procedures for managing drug related incidents and Suspension and Expulsion of School Students: Procedures 2011. • [The School] policy and procedures documentation and memoranda. • Diary notations from staff members."
Ms Exner made specific reference to material that was taken into account and the Applicant's access application requested that material. He subsequently narrowed the scope of his access application as set out above. He is concerned that the process regarding the handling of the complaint was not transparent, open or fair.
A review of Ms Exner's conclusions and determinations was managed by Ms Kay Rigas, the Respondent's Relieving Executive Director, School Operations. Ms Rigas overturned one of the findings but upheld the remainder. The Tribunal does not undertake a review of the Respondent's investigation and is not concerned with the correctness or otherwise of either Ms Exner's or Ms Rigas' conclusions and determinations or the process regarding the handling of the complaint. The Tribunal's role is to determine the correct and preferable decision in relation to the Applicant's access application.
The Respondent undertook searches in relation to the access application and located a significant amount of information that it considered fell within the scope of the request. It decided to provide access to part of the information and to refuse access to the remainder of the information on the basis that there was, on balance, an overriding public interest against its disclosure. The Respondent subsequently undertook additional searches and further material was released to the Applicant.
After a confidential hearing in the matter I made orders pursuant to section 63(3)(d) of the Administrative Decisions Review Act 1997 ("the ADR Act") remitting the decision under review to the Respondent for re-consideration on the basis that the Applicant is not seeking any information that identifies individuals.
The Respondent undertook further searches in relation to the access application and located a significant amount of additional information that it considered fell within the scope of the request. A total of 243 pages were identified as relevant to the request. The Respondent made a new decision in the matter and decided to vary the decision and provided access, in part, to the information that the Applicant had requested. Along with the new determination Ms Pendergast also provided a schedule in which she identified the information to which access is not provided ("the withheld information") and the basis on which access has not been provided.
The Applicant indicated that he was not satisfied with the new decision and wished to proceed with the application for review. He has provided further submissions in support of his position.

[4]

The Staff Complaint Procedure

Section 93D of the Teaching Service Act 1980 (NSW) confers on the Secretary a power to issue guidelines for the purposes of dealing with allegations of misconduct against officers as a disciplinary matter, and the taking of disciplinary action with respect to officers. Section 93D of that Act provides: 93D Issuing of procedural guidelines (1) The Secretary may, from time to time, issue guidelines for the purposes of: (a) dealing with allegations of misconduct against officers as a disciplinary matter, and (b) the taking of disciplinary action with respect to officers under this Part, including disciplinary action in relation to unsatisfactory performance, and (c) any other matter referred to in this Part. (2) The procedural guidelines must be consistent with the rules of procedural fairness. (3) Without limiting subsection (2), the procedural guidelines are to ensure that: (a) an officer to whom an allegation of misconduct relates: (i) is advised in writing of the alleged misconduct and that the allegation may lead to disciplinary action being taken with respect to the officer, and (ii) is given an opportunity to respond to the allegation, and (b) an officer against whom the Secretary is proposing to take disciplinary action under Division 3 is given a reasonable opportunity to make a submission in relation to that proposed action. (4) The Secretary may from time to time amend, revoke or replace the procedural guidelines. (5) The procedural guidelines as in force from time to time must be made publicly available in such manner as the Secretary thinks appropriate. (6) The regulations under section 100 may make provision for or with respect to any matter for which the procedural guidelines can provide. In the event of any inconsistency between a provision contained in the procedural guidelines and a provision in those regulations, the regulations prevail.
The Respondent's evidence is that at all times throughout the complaints management process, the process was conducted in accordance with the Staff Complaint Procedure January 2017 ("the Complaint Procedure"). The Complaint Procedure is issued pursuant to section 93D of the Teaching Service Act. A copy of the Complaint Procedure was provided to the Tribunal. It provides relevantly: 1. Introduction 1.1 Scope and purpose This procedure outlines the processes for staff to follow when making and managing work related complaints (referred to as staff complaints) and should be read together with the Dignity and Respect in the Workplace Charter. ... The processes are intended to address staff complaints:

effectively, impartially and confidentially at the level closest to the source
promptly and with procedural fairness
with the least possible impact on everyone's health and safety
with the least possible work disruption
without reprisal. … 4. Confidentiality, fair treatment and participation All staff involved in a complaint (e.g. complaint managers, reviewers, complainants, people being complained about, witnesses) must keep complaint information confidential and only discuss the complaint process on a 'need to know' basis. A serious breach of confidentiality relating to a complaint may amount to misconduct. Complaint managers and/or supervisors should report alleged serious confidentiality breaches to the Employee Performance and Conduct (EPAC) Directorate for assessment. Staff who raise workplace concerns or make a complaint must not be subjected to reprisal action. Complaint managers and supervisors must act immediately on any reports of unfair treatment or reprisal action linked to a complaint and refer them to EPAC for assessment. All staff must work cooperatively to resolve concerns and actively participate in any related complaint handling processes.

Part 7 of the Complaint Procedure sets out the approach to be taken in managing a staff complaint. It identifies five key stages of managing a complaint as: 1. 7.1 Acknowledge 2. 7.2 Assess, gather information and resolve 3. 7.3 Provide reasons for decision 4. 7.4 Implement outcome actions 5. 7.5 Record keeping
Part 7.3 of the Complaint Procedure states: 7.3 Provide reasons for decision At the end of the process, complaint managers should inform the complainant and any staff member who was complained about of:

the outcome of the complaint and any action that is going to be taken
the reason/s for the decision
the review option. If the complaint manager advises the complainant or other staff member of the outcome at a meeting, they should confirm the advice by email or a letter. Where a staff member is on extended leave, complaint managers should provide the outcome advice in writing. If a staff member has made a workers compensation claim contact Health and Safety before providing any outcome advice. If a staff member is on sick leave, contact them before sending the outcome advice to confirm that they are fit to receive the letter.

[7]

The material before the Tribunal

The onus is on the Respondent to justify its decision: section 105(1) of the GIPA Act. It relies on both open and confidential statements. It relies on the open and confidential evidence of Ms Julie Kennedy, Director Educational Leadership, The Beaches Network; a statement by Dr Mark Carter, a retired senior officer of the Respondent; and a confidential statement of Ms Anita Mangan, a Principal at the School. Ms Pendergast provided detailed submissions in support of the Respondent's case.
Ms Kennedy provided evidence in relation to: 1. the Respondent's procedure for management of complaints; 2. the steps that she took in relation to managing the complaint in relation to the Applicant; 3. the conditions of confidentiality that attached to the supply of the withheld information. 4. the sensitive nature of the information supplied by staff ; 5. the Respondent's duties for managing the health and wellbeing of its staff and students under the Work Health and Safety Act 2011; 6. the fact that certain staff required ongoing support and the possibility that the release of information may cause or exacerbate psychological injury; and 7. the expected detrimental impact upon staff relationships within the School.
Dr Carter provided evidence relation to: 1. the complaints handling process; 2. his role in assisting Ms Kennedy in her management of the complaint; 3. his role in conducting the interviews consistent with the provisions of the Complaint Procedure; and 4. the conditions of confidentiality that attached to the supply of the withheld information.
Ms Mangan provided evidence relation to: 1. the relationships between staff at the School; 2. the Respondent's duties for managing the health and wellbeing of its staff and students; 3. the conditions of confidentiality that attached to the supply of the withheld information; and 4. the negative effect on the School that could be expected if the withheld information is released.
The Applicant relies on his own evidence and detailed written submissions.

[8]

Applicable legislation

The Applicant applied to the Tribunal under section 100 of the GIPA Act. The burden of establishing that there is an overriding public interest against disclosure of information lies on the Respondent.
Pursuant to section 63(3) of the ADR Act the Tribunal may decide to: (a) affirm the reviewable decision, (b) vary the reviewable decision, (c) set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) set aside the reviewable decision and remit the matter for consideration by the administrator in accordance with any directions or recommendations of the Tribunal.
The reviewable decision is in relation to the access application as clarified. That is, the Applicant's request for "All records upon which the investigation decision maker, Stacey Exner, relied upon when making a determination in relation to the complaint made by Anita Mangan on 14 February 2019 regarding Evan Davis. Also all records which form part of the investigation record for that matter."
Section 5 of the GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
Section 9 of the GIPA Act provides that Applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure.
Section 12 of the GIPA Act provides that there is a general public interest in favour of the disclosure of government information that is not covered by overriding secrecy laws. The category of public interest considerations in favour of disclosure is not limited. Subsection 12(2) sets out several examples of public interest considerations in favour of disclosure.
Section 13 of the GIPA Act provides that 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(1) of the GIPA Act provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1 to the GIPA Act. The public interest considerations listed in the Table to section 14 of the GIPA Act 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.
Under section 55 of the GIPA Act the personal factors of an application can be taken into account. Section 55 provides: 55 Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section - (a) the Applicant's identity and relationship with any other person, (b) the Applicant's motives for making the access application, (c) any other factors particular to the Applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the Applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14. (4) An Applicant is entitled to provide any evidence or information concerning the personal factors of the application that the Applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for. (5) An agency may, as a precondition to providing access to information to an Applicant, require the Applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the Applicant to 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. Note. An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73.
As noted, the Respondent identified a number of public interest consideration against disclosure of the withheld information. It relies on subclauses 1(d), 1(f), 1(g), and 1(h) of the Table to section 14 of the GIPA Act.
The Respondent's decision also makes reference to subclauses 3(a), 3(b), 3(f) and 3(g) of the Table to section 14 of the GIPA Act. The decision states: I have varied the decision and have released your personal information in pages outlined in the comparison schedule. The remainder of the personal information outlined in the comparison schedule has been upheld as it contains personal information of third parties. Such information has been deleted from the records released to you.
Clause 1 of the table provides: 1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally) - … (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, ... (f) prejudice the effective exercise by an agency of the agency's functions, (g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence, (h) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).
Clause 3 of the table provides: 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, … (f) expose a person to a risk of harm or of serious harassment or serious intimidation, (g) in the case of the disclosure of personal information about a child - the disclosure of information that it would not be in the best interests of the child to have disclosed.
The principles to be applied in determining whether there is a public interest against disclosure of government information are set out in section 15 of the GIPA Act.
Section 113 of the GIPA Act provides for protection in respect of actions for breach of confidence as follows: 113 Protection in respect of actions for defamation or breach of confidence (1) If government information is disclosed pursuant to a decision under this Act, and the person by whom the decision is made believes in good faith, when making the decision, that this Act permits or requires the decision to be made - (a) no action for defamation or breach of confidence lies against the Crown, an agency or an officer of an agency by reason of the making of the decision or the disclosure of information, and (b) no action for defamation or breach of confidence in respect of any publication involved in, or resulting from, the disclosure of information lies against the author of a record containing the information or any other person by reason of the author or other person having supplied the record to an agency. (2) Neither the giving of access to information pursuant to a decision under this Act nor the making of such a decision constitutes, for the purposes of the law relating to defamation or breach of confidence, an authorisation or approval of the publication of a record containing the information or its contents by the person to whom the information is disclosed.
In Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 ("Camilleri") the Administrative Decisions Tribunal Appeal Panel stated at paragraph [26] that the Tribunal must first assess the effect of the claimed public interest consideration in the Table to section 14 of the GIPA Act at a "broader operational level" and at paragraph [37] that "the section 14 enquiry is directed to the administrative structure and context, and its conditions, to which the document or information belonged". Subject to this assessment, the Tribunal is to carry out the balancing exercise provided for in section 13 of the GIPA Act.
In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 and Hurst v Wagga Wagga City Council [2011] NSWADT 307, the Tribunal confirmed that the "public interest test" under section 13 requires agencies to: 1. Identify the public interest considerations in favour of disclosure; 2. Consider whether the information in issue, if released, would give rise to a public interest against disclosure on the grounds that release of the information could reasonably be expected to have the effect as contended; and 3. If so satisfied, consider where the balance lies between the public interest considerations in favour of disclosure and those against disclosure, having attributed weight to each consideration, and taking into account the personal factors identified under section 55.
The balancing of the competing interests "is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation": Hurst v Wagga Wagga City Council at paragraph [70].
In relation to each public interest considerations against disclosure that the Respondent has identified the Tribunal must consider whether the disclosure of information could reasonably be expected to have one or more of the relevant effects. If not then the particular item does not apply. If it does apply, then the Tribunal determines the weight it carries and conducts the balancing exercise against the weight of factors in favour of disclosure.

[9]

"could reasonably be expected"

Each of the relevant clauses of the table to section 14 of the GIPA Act contains the expression "could reasonably be expected" to have the specified effect. The words 'could reasonably be expected to' require the Tribunal to determine whether the result that is alleged to occur with disclosure of the information is reasonable, as distinct from irrational, absurd, or ridiculous: McKinnon v Secretary, Department of Treasury [2006] HCA 45 per Hayne J at paragraph [61].
The "reasonable basis" for the expectation must be grounded in the experience of the person deposing to the belief. In McKinnon v Blacktown City Council [2012] NSWADT 44 Judicial Member Molony dealt with the question of whether there was a prejudice to the supply of information. He stated at paragraphs [56] - [57]: 56. In the open affidavit Mr Mills expressed the opinion that disclosure of the report would impede the ability of the Agency to obtain and rely on such information in the future. He explained that he considered it "reasonable to assume that other council officers will be reluctant to report misconduct or inappropriate behaviour in future, for fear of reprisal." In my view the cross-examination of Mr Mills demonstrated that he had no reasonable basis for holding this opinion, and that the assumption was not reasonably held. He had no experience of anyone withholding information that they were duty bound to disclose, whether for fear of reprisal or otherwise. 57. Additionally, Mr Mills gave evidence that all the investigations he had been associated with had been treated as and kept confidential. As a result he has no experience of investigations where confidentiality has not been maintained. A consequence is that, in the formation of his opinion, he did so from the basis of having no experience he could contrast with the confidential treatment he was used to.
In Leech v Sydney Water Corporation [2010] NSWADT 298 I stated at paragraph [25]: 25 The term 'could reasonably be expected' has been considered in a number of cases. The words have their ordinary meaning: Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163. The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority [1999] NSWADT 107]. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC.

[11]

Clause 1(d) of the table to section 14 of the GIPA Act

To make out this public interest against disclosure, it is necessary to prove that: 1. the information is "confidential"; 2. a supply of information will be prejudiced; and 3. the information facilitates the effective exercise of the agency's functions.
Comments by the Appeal Panel in Camilleri at paragraph [37] suggest that it is incumbent on an agency to identify the matters relied upon to demonstrate each of these matters. Having said that, however, this is a task which is to be undertaken at a "relatively abstract" level of analysis.
In Macquarie University v Howell (No 2) [2009] NSWADTAP 19 the Appeal Panel said at paragraph [10]: "In our view, the Tribunal is required to engage in a relatively abstract analysis. The Tribunal needs to characterise the nature of the material sought to be protected on the present occasion; identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; and consider the extent to which guarantees of confidentiality may be necessary. It is then necessary to evaluate the effect on the agency's ability in future to obtain similar information."
In Raven v University of Sydney [2015] NSWCATAD 104 at paragraph [62], the Tribunal held that the words "confidential information" do "not connote information which may not be disclosed in any circumstances. The term captures information which is not to be disclosed in ordinary circumstances. This could be the case for example, where the information has been supplied under an express or implied pledge of confidentiality.
In Luxford v Department of Education and Communities [2016] NSWCATAD 118 at paragraph [70] I dealt with the approach to be taken when determining the question of whether the information in issue is confidential. I found that a number of principles apply: Clause 1 of the table to section 14 also deals with issues relating to confidential information. In determining the question of whether the information in issue is confidential a number of principles apply: see Williams v Department Industry and Investment [2012] NSWADT 192: (i) The confidential quality of communications is a question of fact; (ii) To establish its confidential quality, information must have been supplied under an express or implied pledge of confidentiality; (iii) The confidential quality of the information may be inferred from the nature of the relationship between the informer and person informed; (iv) The confidential quality of the information must be determined in the light of all of the circumstances of the particular case.
Those principles are applicable to both clause 1(d) and 1(g) of the table to section 14.
In Camilleri the Appeal Panel stated at paragraph [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 more that is publicly known about a subject the less likely it may be that confidentiality can be inferred. However, this will be a question of fact and degree.
Labelling and treatment of information as confidential are not conclusive of this question. In McKinnon v Blacktown City Council Judicial Member Molony stated at paragraph [55]: While I accept that, in an appropriate case, confidentiality with respect on information communicated in the course of an investigation can be inferred, the factual background must justify the making of such an inference. Here it does not. While the report is labelled confidential and had been treated as confidential, the evidence indicates that this has occurred as a matter of convention, rather than on the basis of a statutory requirement, or in accordance with a policy of the Agency. Indeed a reading of the policy makes it clear it does not establish a regime of confidentiality, with the exception of circumstances to which the Protected Disclosures Act 1994 applies. That is not the case here.
Similarly, a failure by an agency to inform the community of the statutory limitations placed on any implied or express confidentiality assurances because of the GIPA Act does not limit the application of those obligations: see Taylor v Destination NSW at paragraph [40].
Furthermore, the question of whether or not the information was provided "voluntarily" is relevant to the question of whether the requisite relationship of confidentiality can be inferred: see Williams v Department Industry and Investment at paragraph [53].
The fact that a person may be under some obligation to provide the information, may make it less likely that the relevant prejudice will be established: see Applicants v Commissioner of Police (NSW) [2015] NSWCATAD 22 at paragraphs [122] - [123].
Similarly, in Forbidden Foods Pty Ltd v Rice Marketing Board of New South Wales [2020] NSWCATAD 18 the Tribunal held that the supply of information that was required to be provided pursuant to a contractual obligation could not reasonably be expected to be prejudiced by the disclosure of that information. The Tribunal did, however, find it possible that the detail and quantity of information that would be provided may be reduced.
The absence of any coercive powers requiring that the information be provided may be relevant to assessing prejudice. This is because a person may be less likely to provide information "voluntarily" as distinct from circumstances where the person is obliged to do so: see Ansoul v City of Sydney at paragraph [38]; Mclnnes v NSW Department of Education and Communities [2013] NSWADT 219 at paragraph [37].
In this matter the Respondent refers to possible reluctance of staff to provide information in the future if the information in issue is released. The Respondent relies on the evidence Ms Kennedy in support of this submission. In her opinion, release of the withheld information would serve to potentially discourage staff from future involvement in a complaints management process.

[12]

Clause 1(g) of the table to section 14 of the GIPA Act

The words "found an action for breach of confidence" should be interpreted as referring to a legal action for breach of an obligation of confidence. In Lock the Gate Alliance v Department of Planning and Environment and Anor [2019] NSWCATAD 6 Senior Member Ransom stated at paragraph [139]: In considering the first limb of cl (1)(g) the Tribunal has referred to Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279 where it was held that the words "for an action of breach of confidence" in the Queensland freedom of information legislation should be taken to refer to a legal action brought in respect of an alleged obligation of confidence in which reliance was placed on one or more of the following causes of action: 1. a cause of action for breach of an obligation of confidence; 2. a cause of action for breach of a contractual obligation of confidence; 3. a cause of action for breach of a fiduciary duty of confidence and where account is taken of the recognised defences to an action for breach of confidence.
In Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Premier's Department [2002] NSWADT 277 at paragraph [53] , the Tribunal identified five matters to be established for a hypothetical equitable action for breach of confidence: 1. the information must be capable of being specifically identifiable as information which is secret rather than generally available; 2. the subject matter of the obligation of confidence must not be trivial or useless or generally known; 3. the information must have been communicated in circumstances such as to fix the recipient with an equitable obligation not to use the information in an unauthorised way; 4. it must be established that disclosure of the information would constitute an unauthorised disclosure; and 5. it must be established that the giver of the information would suffer a detriment, not necessarily pecuniary, such as loss of privacy or embarrassment.
In Hopson v Commissioner of Police, NSW Police Force [2017] NSWCATAD 379 the Tribunal observed at paragraphs [70] - [71]: 70. There is an apparent tension between cl 1 (g) and s 113 of the GIPA Act. Section 113 provides: 113 Protection in respect of actions for defamation or breach of confidence (1) If government information is disclosed pursuant to a decision under this Act, and the person by whom the decision is made believes in good faith, when making the decision, that this Act permits or requires the decision to be made - (a) no action for defamation or breach of confidence lies against the Crown, an agency or an officer of an agency by reason of the making of the decision or the disclosure of information, and (b) no action for defamation or breach of confidence in respect of any publication involved in, or resulting from, the disclosure of information lies against the author of a record containing the information or any other person by reason of the author or other person having supplied the record to an agency. (2) Neither the giving of access to information pursuant to a decision under this Act nor the making of such a decision constitutes, for the purposes of the law relating to defamation or breach of confidence, an authorisation or approval of the publication of a record containing the information or its contents by the person to whom the information is disclosed. 71. On the other hand the GIPA Act contemplates (by the fact that cl (1)(g) sits outside of Sch (1), that there will be circumstances whereby irrespective of the fact that the release of information could found an action for breach of confidence etc., that information will be invariably released. If it is released after a proper consideration of the application, the agency is quarantined from any legal repercussion arising by the operation of section 113.

[15]

Clause 3(a) of the table to section 14

Personal information is defined in Schedule 4(4) of the GIPA Act as: "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."
Section 4(1) of the Privacy and Personal Information Protection Act 1998 ("the PPIP Act") defines 'personal information' in broadly the same terms as in clause 4 of Schedule 4 of the GIPA Act.
The Applicant is not seeking any information that identifies individuals. In his submissions he referred to correspondence that he sent to the Respondent in which he stated: As I have previously stated, this GIPA application is not intended or designed to reveal any identity or personal information. This application only concerns itself with what was said, not who said it.
He further stated: The Respondent may redact personal information, restricted to only names, phone numbers, email addresses and job titles.
As the Applicant is not seeking any information that identifies individuals, any personal information of third parties that comprises names, phone numbers, email addresses and job titles would not be within the scope of the access application.
In Turnbull v Strange [2018] NSWCA 157 at paragraph [5] it was said: "It may be that the content of a telephone conversation, including statements made by one party, will constitute "opinions" about the other party to the conversation. However, statements by the relevant individual will not constitute opinions about himself or herself, in most circumstances. On the other hand, statements made by the individual may identify "information" about that individual, in that they may reveal that he or she held a particular opinion or knew certain things at a particular time."
Whether the identity of a person can "reasonably be ascertained" will depend on the type of information and the context in which it is being used. It is not necessary that the identity of the person be widely known: it will be sufficient to satisfy the definition of personal information if the information is communicated to someone who is able to identify the person. For example, a government employee may talk to a group of colleagues about a member of the public who visits them frequently, noting the person's gender, approximate age and physical appearance. Although the person is not named, the combination of information and the context enable the people hearing the information to identify the subject: see the Information Commissioner's Guidelines 4.
For example, in WL v Randwick City Council [2007] NSWADTAP 58 the Administrative Decisions Tribunal Appeal Panel found that a photograph of a residential apartment, when taken together with information from a local Council's files, was sufficient to enable the apartment's owner to be identified.
It is possible that persons working at the School would be able to identify the person who was the source of information, for example from the subject matter of the information and the contained context in which it was provided. If that were the case, the identity of a person who had provided information as part of the investigation might "reasonably be ascertained". The information could remain the personal information of the person who had provided it notwithstanding the redaction of names, phone numbers, email addresses and job titles.
Clause 3(a) of the table to section 14 of the GIPA Act provides that there is a public interest consideration against disclosure if disclosure of the information could reasonably be expected to reveal an individual's personal information.
The term "reveal" is defined as: reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).
Issues under clause 3(a) tend to be determined on the particular facts of the case.

[17]

Clause 3(f) of the table to section 14

Clause 3(f) of the table to section 14 of the GIPA Act provides that there is a public interest consideration against disclosure if disclosure of the information could reasonably be expected to expose a person to a risk of harm or of serious harassment or serious intimidation.
In Zonnevylle v Department of Education and Communities [2018] NSWCATAD 139 the Tribunal noted at paragraph [49] that: The issue for determination is whether release of the redacted names of departmental officers would expose them to a 'risk of harm or of serious harassment or serious intimidation'. It is not necessary to decide whether such harm is likely. It is sufficient that there is a risk of it. In circumstances where, as here, accusatory correspondence continues to be sent on a regular basis, which is well capable of causing upset to the officers who receive it in the course of their duties, I am satisfied that there is such a risk.
In DTB v Commissioner of Police, NSW Police Force [2019] NSWCATAD 114, Senior Member Blake SC reviewed and summarised a number of authorities that have considered clause 3(f) of the table to section 14 as follows: 77. It is not necessary to decide whether such harm is likely. It is sufficient that there is a risk of it: Zonnevylle v Department of Education and Communities [2018] NSWCATAD 139 at [49]; Miskelly [v Transport for NSW [2017] NSWCATAD 75] at [94]. 78. "Harm", "serious harassment", and "serious intimidation" are not defined in the GIPA Act. Their meaning received extensive judicial consideration by the Tribunal in AEZ v Commissioner of Police, NSW Police Force [2013] NSWADT 90. Each is to be seen as a separate matter to be considered: AEZ at [89]; Miskelly at [95]. 79. As to "harm", the Tribunal has held that the meaning of harm should be confined to a real and substantial detrimental effect on a person, rather than on their business interests. A detrimental effect may be to a person's physical, psychological, or emotional wellbeing: AEZ at [85]; Miskelly at [96]. Mere discomfort or tension is not ordinarily enough: Ermel v Department of Finance and Services [2013] NSWADT 183 at [90]; Miskelly at [105]. 80. As to "harassment", the Tribunal has held that "harassment" requires a consideration of how the conduct complained of is experienced by the person alleged to be harassed, and is concerned with whether that person was offended, worried, tormented, distressed or harassed by the conduct. The assessment of the impact of the conduct on the individual concerned is an objective one, although particular circumstances and vulnerabilities relating to that individual may be taken into account when making that assessment: AEZ at [89]; Miskelly at [98]. 81. As to "intimidation", the Tribunal has held that "intimidation" is closely related to the concept of "harassment" and is "to make timid, or inspire with fear, overawe, cow": AEZ at [91]; Miskelly at [99]. 82. The requirement that the "intimidation" or "harassment" be "serious" means the decision-maker must be satisfied that release of the information could reasonably expose a person to intimidation or harassment that is "heavy, weighty or grave, and not trifling or transient": AEZ at [94];.Miskelly at [100].

[21]

The Respondent's case

The Respondent submits that disclosure of the withheld information would prejudice the future supply of information by employees in the complaint handling and investigative processes, and would thus undermine its ability to undertake these processes.
Much of the withheld information is in the nature of information supplied by third parties, predominantly staff of the School, in the course of a complaint investigation. The Complaint Procedure which is applicable to the Respondent's complaint handling makes provision for maintaining confidentiality in the handling of complaints and management of investigations. There is evidence before the Tribunal that the withheld information was supplied under conditions of confidentiality.
The Respondent relies on the evidence of both Dr Carter and Ms Kennedy in support of its submission that information was supplied under conditions of confidentiality. This evidence is supported by that of Ms Mangan. The evidence is that third parties who provided information in relation to the investigation and complaints management did so voluntarily and in confidence. The evidence is that they expected the Respondent would keep the information as strictly confidential, except and unless required to reveal that information in disciplinary or court proceedings.
The Respondent points to a number of Tribunal decisions in which the Tribunal has recognised the application of the public interest consideration against disclosure in 1(d) to information gathered by the Respondent in its investigative and complaint handling functions in a number of cases: Troskie v NSW Department of Education and Communities [2014] NSWCATAD 155 at paragraph [54]; Luxford v Department of Education and Communities; Jones v NSW Department of Education [2017] NSWCATAD 51 at paragraph [61].
The Respondent submits that the Tribunal has recognised that maintaining the confidentiality of information supplied in the course of an investigation into a complaint serves to encourage participation and cooperation in the process, even where such participation could, theoretically, be compelled. This facilitates the effective exercise of the agency's functions.

[22]

The Applicant's case

The Applicant disputes the Respondent's assertion that the withheld information is the kind of information that attracts confidentiality. He says that for clause 1(d) to apply there must have been a mutual understanding of confidentiality. If only one party believed that the information was to be kept confidential, and the other party did not, then the information cannot be exempt from release under the clause. He further submits that the Respondent's claim that information was obtained in confidence needs to be supported by evidence. He says that the Respondent's reliance on the Complaint Procedure document as providing investigation participants with the protection of confidentiality is not sufficient. The Respondent has a policy of procedural fairness which provides for the right to be fully informed of the allegations and any other information which will be taken into account in making a decision and the right to have a reasonable opportunity to respond.
The Applicant says that the investigator advised him of the names of some staff who would be providing information to the investigation but the investigator did not discuss any issues relating to confidentiality nor the confidentiality of the statements. He contends that the investigator did not have the authority to provide assurances of confidentiality, didn't have an understanding of confidentiality, and therefor there was no basis for any understanding or expectation of confidentiality.
The Applicant also says that it is evident that Dr. Carter disclosed the evidence and statements that he made and that notes made by Dr. Carter confirm that the investigation was not kept confidential. He says that Dr. Carter's interviews were conducted at the School, during work hours, and that there was considerable discussion and gossip amongst staff in relation to the interviews. He submits that the Respondent cannot rely on confidentiality when it voluntarily adopted these procedures in preference to procedures and resources that may have provided confidentiality.
The Applicant noted comments by Judicial Member Molony in McKinnon v Blacktown City Council at paragraph [55] that in an appropriate case, confidentiality with respect on information communicated in the course of an investigation can be inferred. He submitted that the factual background must justify the making of such an inference and that here it does not.
The Applicant submits that, in the circumstances, the Respondent cannot rely on clause 1(d) of the table to section 14.

[23]

Consideration

I do not agree with the Applicant's contention that the Respondent has not provided evidence to support its claim that the information was obtained in confidence. Both Dr Carter and Ms Kennedy have provided evidence that the information was supplied under conditions of confidentiality. This evidence is supported by that of Ms Mangan.
I am satisfied that the supply of confidential information facilitates effective exercise of the agency's functions in that it aids the agency in gathering information that is essential to the conduct of the investigation and complaints management.
I am satisfied that the investigation was conducted in accordance with the Complaint Procedure. This procedure clearly provides for both procedural fairness and confidentiality. I am satisfied that all those participating in the process were made aware of the Complaint Procedure and it is reasonable to expect that they accepted the terms of the Complaint Procedure by agreeing to participate in the investigation process. It follows that confidentiality with respect on information communicated in the course of an investigation can be inferred.
The Applicant also says that it is evident that Dr. Carter disclosed the evidence and statements that he made and that notes made by Dr. Carter confirm that the investigation was not kept confidential. I do not agree. I accept that the investigation was conducted in accordance with the Complaint Procedure and that confidentiality is a significant aspect of the conduct of the investigation and complaints management.
In my view it is clear from the nature of the withheld information, and from the circumstances in which the Respondent obtained it, that it is information that facilitates the effective exercise of the Respondent's functions. I am also satisfied on the basis of the Respondent's evidence that disclosure of information of this nature could reasonably be expected to prejudice the supply of such information to the Respondent in the future. This is because others might not be prepared to supply information if they are concerned about the information becoming publicly available.
In my view this consideration should be given significant weight.

[27]

Consideration

Contrary to the Applicant's submission, the Respondent has provided evidence to support its contentions regarding functions that might be affected by the release of the withheld information. Ms Kennedy provided evidence relation to the Respondent's duties for managing the health and wellbeing of its staff and students under the Work Health and Safety Act 2011. This evidence is supported by that of Ms Mangan.
Both Ms Kennedy and Ms Mangan provided evidence in regard to expected impact of the release of the withheld information on the Respondent's ability to manage the School's day to day functions.
In Luxford I accepted that the health and wellbeing of staff and the capacity of the Respondent to exercise its responsibilities with respect to the day to day functioning of a school were relevant considerations. I accepted that disclosure of information that related to the investigation of a complaint of bullying and harassment could be reasonably expected to prejudice the effective exercise of the Respondent's functions.
In Jones v NSW Department of Education I accepted that the disclosure of a statement by a staff member about an incident involving Ms Jones could detrimentally impact on the wellbeing of the staff member who provided the statement.
In my view, the circumstances of this matter support a similar finding.
Notwithstanding the fact that the Applicant is no longer working at the School, it is reasonable to expect that some of those who provided information to the investigation would be detrimentally affected if their information was released. It could have the effect of raising issues that had apparently been resolved and the need to revisit the issues could potentially affect the wellbeing of some staff members.
I note that the Applicant has asserted that he has been aware of the identity of most of the individuals who made statements and the general nature of the information provided. Even if this is true, the mere fact that he knows these details does not mean that the information has been disclosed for the purposes of the GIPA Act. Disclosure under the GIPA Act is effectively disclosure to the world as no restrictions can be placed on its use.
I am satisfied that the disclosure of the withheld information could reasonably be expected to prejudice the effective exercise of the Respondent's functions, particularly in regard to managing the health and wellbeing of its staff and students. In my view this consideration should be given significant weight.

[35]

Consideration

As I have indicated above, I am satisfied that the investigation was conducted in accordance with the Complaint Procedure. Part 7 of the Complaint Procedure identifies five key stages of managing a complaint. It requires that reasons are to be given for the decision that is taken but it does not require that information of the type that has been withheld is to be disclosed.
Part 4 of the Complaint Procedure specifically provides for confidentiality in the process. It states: All staff involved in a complaint (e.g. complaint managers, reviewers, complainants, people being complained about, witnesses) must keep complaint information confidential and only discuss the complaint process on a 'need to know' basis.
The general nature of the investigation process is apparent from the Complaint Procedure but the specific detail of how this investigation was conducted has not been disclosed.
In Mclnnes v Department of Education and Training Judicial member Isenberg accepted the prejudicial effect that disclosure of information could have on future investigations. She stated at paragraphs [40] - [41]: 40. … I accept that there is some reliance by the Respondent on the co-operation of employees and former employees and others in investigating allegations. Further, I accept there is a risk that members of the public may be reluctant to report matters to the Respondent about allegations of impropriety if the Respondent were unable to protect their privacy. 41. I accept that the release of information in this case could reasonably be expected to prejudice the future supply to the Respondent of confidential information that facilitates the effective exercise of the Respondent's functions.
I agree with that view. I accept that in the circumstances of this matter the release of the withheld information could reasonably be expected to prejudice the future supply to the Respondent of confidential information that facilitates the effective exercise of the Respondent's functions. If that were to occur it would prejudice the effectiveness of the investigation.
However, it is difficult to see how it would do so "by revealing its purpose, conduct or results". I am not satisfied that the Respondent has established that Clause 1(h) applies in these circumstances.

[44]

Where does the balance lie?

Section 13 of the GIPA Act requires the Tribunal to consider where the balance lies between the public interest considerations in favour of disclosure and those against disclosure, having attributed weight to each consideration, and taking into account the personal factors identified under section 55.
I agree that there is a general public interest in favour of disclosure and that other additional considerations in favour of disclosure also apply. As I have indicated, I am satisfied that several of the public interest considerations against disclosure that the Respondent identified are applicable to the withheld information. In each case I have indicated that the consideration against disclosure should be given significant weight. I have agreed with the Respondent that: 1. the personal information in issue is of a sensitive nature and that the information was supplied under conditions of confidentiality; 2. the likely prejudice that would flow should information of this nature be disclosed; and 3. the effects this would have on the ability of the Respondent to protect the welfare and wellbeing of students and staff.
In the circumstances the Respondent has already disclosed a large volume of material to the Applicant and the Applicant has indicated that he is already aware of the general nature of the withheld information. In my view, the release of the withheld information would do little to further promote the public interest.
When a balancing exercise is undertaken between the factors in favour of disclosure and the factor against disclosure of the information, it is my view that greater weight should be given to the public interest consideration against disclosure. I am not satisfied that the withheld information could be redacted in a way that would reduce the weight to be given to the factors against disclosure of the information to allow the withheld information to be released.
It follows, that the correct and preferable decision is to refuse to grant the Applicant access to the requested information.

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Judgment (46 paragraphs)

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Cases Cited (20)

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