Dennis v Department of Planning, Industry and Environment

The Issue before the Tribunal

1. The issue for determination is whether the correct and preferable decision is to release the withheld information i.e. the complete O'Connor Marsden report.

Applicable legislation

1. The object of the GIPA Act as stated under section 3(1) is to open government information to the public. The GIPA Act is to be interpreted and applied so as to further its object. The meaning of "government information" is broad. Section 4 provides that government information means information contained in a record held by an agency. Access is only restricted when there is an overriding public interest against disclosure.
2. Part 2 of the GIPA Act provides the mechanism by which a member of the public can make an access application for government information to an agency. Section 5 provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. Section 9(1) gives a person who makes a valid access application a legally enforceable right of access to government information unless there is an overriding public interest against disclosure of the information.
3. Section 12 of the GIPA Act provides that there is a general public interest in favour of the disclosure of government information and, further, that nothing in the GIPA Act limits any other public interest considerations in favour of disclosure that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Individual interests in seeking information may coincide with the public interest.
4. The term 'public interest' is not a defined or fixed concept. In Director of Public Prosecutions v Smith [1991] 1 VR 63 the Supreme Court of Victoria Appeal Division found: "The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals".
5. Section 13 of the GIPA Act sets out the "public interest test" for determining whether there is an overriding public interest against disclosure of information in the following terms: 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.
6. The test in section 13 requires the Tribunal as decision-maker to attribute weight to each consideration for and against disclosure, and determine whether the balance of the public interest lies in favour of, or against, disclosure of government information: Hurst v Wagga Wagga City Council [2011] NSWADT 307; Flack v Commissioner of Police, NSW Police [2011] NSWADT 286. The GIPA Act provides no set formula for calculating the weight of considerations for determining whether one set of considerations outweighs the other, and the Tribunal has stated that "any reasonable approach that follows section 15 principles seems to be acceptable ... it is really a matter of placing identified considerations in order of priority or importance": Place v Department of Finance, Services and Innovation [2016] NSWCATAD 278 at paragraph [96]. The balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at paragraph [17].
7. Section 14(2) of the GIPA Act relevantly provides that the public interest considerations listed in the Table to section 14 are the only considerations that may be taken into account as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.
8. The Respondent relies on the public interest considerations against disclosure in clauses 1(d); 1(e); 1(f); 1(g); 3(a); 3(b); 3(e); and 4(d) of the table to section 14 of the GIPA Act.
9. Clause 1 of the table to section 14 of the GIPA Act provides: 1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally) - … (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, (e) reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency, (f) prejudice the effective exercise by an agency of the agency's functions, (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, ...
10. Clause 3 of the table to section 14 of the GIPA Act 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, … (e) reveal false or unsubstantiated allegations about a person that are defamatory,
11. Clause 4 of the table to section 14 of the GIPA Act provides: 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 - … (d) prejudice any person's legitimate business, commercial, professional or financial interests, ...
12. "Personal information" is defined in clause 4 of Schedule 4 to GIPA Act in the following way: 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: (a) information about an individual who has been dead for more than 30 years, (b) information about an individual (comprising the individual's name and non-personal contact details, 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, (c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause.
13. The expression "personal information" is defined in section 4 of Privacy and Personal Information Protection Act 1998 ("the PPIP Act") in a manner similar but not identical to the manner in which it is defined in the GIPA Act.
14. Section 18 of the PPIP Act provides: 18 Limits on disclosure of personal information (1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless - (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person. (2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.
15. Section 55 of the GIPA Act provides for the consideration of personal factors of application. 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.
16. Section 73(1) of the GIPA Act provides: 73 Access to be unconditional (1) An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application.
17. Pursuant to section 105 of the GIPA Act the burden of establishing that the decision is justified lies on the Respondent.

Public interest considerations in favour of disclosure

1. The general public interest favouring the disclosure of government information is recognised by section 12(1) of the GIPA Act. The Respondent has identified the following public interest considerations in favour of disclosure of the withheld information: 1. the information includes some of the Applicant's personal information; 2. disclosure of the information could reasonably be expected to enhance government accountability; 3. disclosure could reasonably be expected to inform the public about the operations of the agency; 4. disclosure could reasonably be expected to contribute to procedural fairness towards the Applicant; 5. disclosure could reasonably be expected to enhance the transparency and accountability of government generally.
2. I agree that these are relevant public interest in favour of disclosure of the withheld information.
3. I also consider that the Applicant's legitimate interest in understanding how his complaint has been handled is a public interest consideration in favour of disclosure. There is a public interest in knowing whether the matters raised in the disclosure were investigated properly or adequately.
4. The Applicant contends that the version of the O'Connor Marsden report that was provided to him is so voluminously redacted that he is unable to understand clearly what the allegations referred to in the Report are and why those allegations have been dismissed. He seeks either an unredacted version of the Report, or at least a version of the Report which explains the allegations, how those allegations were distilled from the PID document and the reasons those allegations have been dismissed as unsubstantiated.
5. The Respondent submitted that the public interest considerations in favour of disclosure have been substantially met by correspondence sent to the Applicant advising him of the outcome of the investigations and the provision of the redacted copy of the O'Connor Marsden report.

Public interest considerations against disclosure

1. The Respondent has identified a number of public interest considerations against disclosure. It relies on the public interest considerations against disclosure in clauses 1(d); 1(e); 1(f); 1(g); 3(a); 3(b); 3(e); and 4(d) of the table to section 14 of the GIPA Act. It contends that there is a public interest against disclosure where disclosure could reasonably be expected to: 1. prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions - clause 1(d); 2. 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 - clause 1(e); 3. prejudice the effective exercise by an agency of the agency's functions - clause 1(f); 4. found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence - clause 1(g); 5. reveal an individual's personal information - clause 3(a); 6. 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 - clause 3(b); 7. reveal false or unsubstantiated allegations about a person that are defamatory - clause 3(e); and 8. prejudice any person's legitimate business, commercial, professional or financial interests - clause 4(d).
2. The Respondent relies on written submissions and: 1. the affidavit of Michelle Huntsman affirmed 10 February 2021; and 2. the affidavit of Simon Kempson sworn 11 February 2021.
3. Ms Huntsman attended the hearing and was cross-examined.
4. The Applicant relies on written submissions and on his own evidence.
5. The Applicant submits that in the circumstances, where there is publicly available evidence of statements which are inconsistent with the information relied on in the O'Connor Marsden report, the considerations in favour of disclosure of the redacted information in the report must outweigh the considerations against disclosure.

Michelle Huntsman

1. Ms Huntsman is Director Ethics, in the Respondent's Legal and Governance branch. She is the Respondent's Public Interest Disclosure Co-ordinator and she is responsible for co-ordinating the assessment of PIDs. She also oversees staff and organisational compliance in relation to ethical and professional standards as well as legislative and regulatory compliance. Her team undertakes preliminary reviews of allegations relating to maladministration, corrupt conduct, serious and substantial waste and maladministration.
2. She is aware that an investigation was undertaken into the Applicant's PID but she was not directly involved in the oversight or management of that particular investigation. However, she has reviewed the O'Connor Marsden report.
3. She said that, in addition to the Applicant, a total of four Land and Housing Corporation employees were interviewed as part of the investigation. The investigation also took a number of signed statements from staff and sought email responses from staff in relation to specific questions.
4. Ms Huntsman gave evidence in regard to the Respondent's policies and practices in relation to PIDs. Her evidence is that, when the Respondent receives a PID, a member of the Ethics Branch will conduct a preliminary assessment. This is followed by a risk assessment as to the risk of reprisal to the person making the complaint and a preliminary assessment of whether there are reasonable grounds to believe that the information reported shows or tends to show the alleged wrongdoing, and whether further action should be taken. The preliminary assessment may involve confidential discussions with potential witnesses, review of relevant documents and correspondence and the identification of key questions and issues for further investigation.
5. If it is determined that a formal investigation is warranted, the Respondent will often seek assistance from an external consultant to conduct that investigation and produce a report.
6. Ms Huntsman annexed to her affidavit a copy of the Respondent's Public Interest Disclosure Policy" ("the PID Policy"). In relation to the confidentiality of PID assessments and investigations she stated: Confidentiality in the PID assessment and investigation process is both a legislative requirement and a key objective of the PID Policy. Section 22(1) of the [the Public Interest Disclosures Act 1994] requires the Department to protect the identity of a person making a public interest disclosure, with limited exceptions. Section 22(2) requires the Department to establish procedures for receiving, assessing and dealing with PIDs in a manner which preserves the confidentiality of the person making the disclosure. The PID Policy extends that objective to preserving the confidentiality of all staff and witnesses involved in a preliminary assessment or investigation. For example, the PID Policy specifies (at p. 14): "Any staff involved in the investigation or handling of a report, including witnesses, are also required to maintain confidentiality and not disclose information about the process or allegations to any person except for those people responsible for handling the report." The PID Policy also expressly deals with the confidentiality of employees who are the subject of an allegation made in a PID. The PID Policy states (at p. 17): "If it is determined an investigation is to be undertaken as a result of a report, we are committed to ensuring that the relevant employee subject to any wrongdoing allegations is treated fairly and reasonably. This includes keeping the identity of the relevant employee confidential, where practical and appropriate. Where the reported allegations have been investigated and unsubstantiated, support will be provided to the relevant employee. Where possible and practical, steps to keep the details of the allegations and any investigation will be kept confidential." It is my experience that staff and other witnesses typically participate in the assessment and investigation of PIDs in the expectation that, where possible, their contributions will treated as confidential, and that the process will be managed confidentially. Both the legislative requirements and the PID policy are implemented by the Ethics Branch in several ways when conducting a preliminary assessment or a formal investigation. Where the identity of the reporter is known, the Department will write to them requesting that they not discuss the report with other employees or potential witnesses, and providing a link to the PID Policy. Ethics Branch staff members conducting an assessment or investigation will advise prospective witnesses to keep the matter confidential. All documents relating to a PID assessment or investigation are digitally quarantined and secured in the Department's record management system so that limited persons responsible for handling the investigation have access to them, even within the Ethics Branch. It is my experience that PID assessments and investigations are handled confidentially as a matter of practice, and that information is not shared outside that process except to the extent required by law. External agencies retained to conduct formal investigations are referred to the PID Policy in the terms of reference for their report, and are expected to uphold the same standards of confidentiality. All reports of investigations into PIDs are treated as strictly confidential. Only Ethics Branch staff and limited senior staff of the Department have access to the reports of investigations. In accordance with the PID Policy, persons making a PID are notified once a matter has been finalised and advised of any action that has been taken or is proposed to be taken. However, persons making a PID are not typically provided with the investigation report. In my experience, the nature of allegations made in PIDs is often such that making a disclosure or participating in the process could invite reprisal from other staff within the Department. It is my experience that participation in the PID process is often a source of anxiety for both persons making disclosures and other potential witnesses. The confidentiality requirements of the PID Policy as implemented in the Department's procedures for conducting assessments and investigations ensure that staff can be confident of participating in the PID process without reprisal. In my experience, maintaining confidentiality throughout the PID process is essential for securing open and honest staff participation in a PID assessment or investigation. A PID assessment or investigation may address serious allegations concerning the conduct of individuals within the Department that have not been substantiated, or consider information that is otherwise prejudicial to the reputation and wellbeing of persons involved in an investigation, including those that are not directly the subject of a PID. In my experience, the confidentiality requirements of the PID Policy as implemented in the Department's procedures for conducting assessments and investigations ensure that the professional reputation and personal wellbeing of persons involved in the PID process are not unjustly impacted by the investigation of a PID.
7. Ms Huntsman identified the type of information that has been redacted from the O'Connor Marsden report as including: 1. the names of persons alleged to be involved, at least indirectly, in conduct the subject of the PID, including persons who were unable to be interviewed by the investigation; 2. the names, and summaries of the evidence, of persons approached by the investigation in relation to the allegations; and 3. the names of persons involved in Code of Ethics and Conduct complaints concerning the Applicant said to be inappropriate and in the nature of reprisal action, regarding which the report ultimately made no conclusive finding.
8. In Ms Huntsman's view, the redacted information is of the type which could damage the professional reputation or personal wellbeing of the individuals concerned, and which participants in a PID assessment or investigation would typically expect to be kept confidential pursuant to the PID Policy.
9. Ms Huntsman's evidence was not varied in any material sense under cross-examination.

Simon Kempson

1. Mr Kempson is the Respondent's Executive Director People and Performance. He gave evidence in relation to the investigation of the Applicant's allegations of bullying, intimidation and victimisation by a number of current and former staff of the Land and Housing Corporation and the BDI report.
2. Mr Kempson's evidence is that confidentiality is a central concern of the preliminary assessment and investigation process into complaints against staff and is maintained as a matter of practice. The guiding principle is that confidentiality should be maintained as far as possible, balanced against providing a complainant a reasonable understanding of the outcome of an investigation. That concern with confidentiality is reflected in the Respondent's guidelines. He stated: The expectation of confidentiality is implemented and reiterated in several ways in the assessment and investigation process. All formal communications with involved parties will include a reminder than confidentiality should be maintained. ... External agencies commissioned to undertake investigations are expected to maintain the same standards of confidentiality. The expectation of confidentiality is set out the terms of reference when commissioning external investigations. As noted, the Department does not, as a matter of course, provide the report of an investigation to a complainant, as opposed to an outcome letter setting out the findings and recommendations and reiterating the expectation of confidentiality. … all information and records held by the Department in relation to a complaint will be securely retained on a separate confidential file, and cannot be accessed except by those members of the People and Performance team directly involved in the investigation and, where appropriate, a senior line manager. In my experience, investigations into complaints against staff may address serious allegations concerning staff members which are ultimately not sustained. Further, investigations may explore sensitive information that affects persons other than the subject of a complaint or the complainant. Staff interviewed in relation to a complaint may use the opportunity to express other concerns or discuss separate allegations or conflicts not directly related to the matter under investigation. In my experience, the confidentiality of the process protects the professional reputation and personal wellbeing of participants from being unjustly impacted. It is my experience that staff participating in the assessment and investigation process have an expectation of confidentiality. Staff have previously expressed particular concerns with confidentiality where there is a fear of reprisal or harassment from other persons known to be involved in the complaint.
3. Mr Kempson was not required for cross-examination. As noted, the Applicant does not press his request for access to the BDI report.

Submissions

1. Mr Burston provided written submissions on behalf of the Respondent in which he addressed the various public interest considerations for and against disclosure of the withheld information.

Discussion - Public Interest Considerations against disclosure

The Table to section 14

1. The Respondent has identified a number of clauses in the table to section 14 as relevant public interest considerations against disclosure. It is submitted that the considerations against disclosure at clauses 1(d), 1(e), 1(f), 1(g), 3(a), 3(b), 3(e), 3(g) and 6 of the Table to section 14 apply with respect to the withheld information. That is, the disclosure could reasonably be expected to: 1. prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions - clause 1(d); 2. 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 - clause 1(e); 3. prejudice the effective exercise by an agency of the agency's functions - clause 1(f); 4. found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence - clause 1(g); 5. reveal an individual's personal information - clause 3(a); 6. 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 - clause 3(b); 7. reveal false or unsubstantiated allegations about a person that are defamatory - clause 3(e); and 8. prejudice any person's legitimate business, commercial, professional or financial interests - clause 4(d);.
2. In contrast, the Applicant submitted that the considerations against disclosure are outweighed by those public interest considerations favouring disclosure.

Clauses 1(d) and 1(f) - prejudice supply of confidential information; prejudice effective exercise of agency's functions.

1. 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 an agency's functions (clause 1(d)). Relatedly, it is also a public interest consideration against disclosure where disclosure could reasonably be expected to prejudice the effective exercise of an agency's functions (clause 1(f)). It is therefore convenient to address those considerations together.
2. The relevant elements of clause 1(d) are that: 1. the information was obtained in confidence; 2. the information facilitates the effective exercise of the agency's functions; and 3. disclosure of the information could reasonably be expected to prejudice the supply of such information to the agency in the future.
3. With respect to the first limb of clause 1(d), in Commissioner of Police (NSW) v Camilleri [2012] NSWADTAP 19 ("Camilleri"), the Appeal Panel outlined the general approach to determining whether or not information is confidential information.
4. The Panel held: "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."
5. The Tribunal has accepted regularly 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 conducted an investigation into workplace bullying and harassment. At paragraph [82], the Tribunal accepted that information supplied orally to the investigators, and recorded in transcripts, was supplied in confidence.
6. In MJ v Department of Education and Commerce [2013] NSWADT 213 the Tribunal held at paragraph [73]: "It is well established that a function of an 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 the complaint and any action taken in regard thereto remains confidential, to the extent required by law."
7. It is not in dispute that the withheld information was supplied as part of the Respondent's assessment and investigation of the Applicant's PID. The Respondent relies on the evidence of Ms Huntsman that high standards of confidentiality are observed throughout this process. Ms Huntsman's evidence is that, in her experience, employees and other witnesses will typically participate in an investigation in the expectation that their contributions will be treated as confidential wherever possible. This is reflected in the Respondent's PID Policy.
8. In my view, there can be no doubt that the withheld information is information that was obtained in confidence.

The second limb - prejudice supply of future information

1. The second limb of clause 1(d) is not concerned with whether a particular person would in future refuse to supply the type of information that is in issue. Rather, the question as to prejudice is to be determined at a broader operational level. Clause 1(d) is concerned with the question of whether disclosure of this type of information would impair the general ability of the agency to obtain that type of information in the future: see Director General, Department of Education & Training v Mullett [2002] NSWADTAP 13 at paragraph [58], cited with approval in Camilleri at paragraphs [28] - [29].
2. The Tribunal has accepted that disclosure of material arising from agencies' investigative processes could prejudice the supply of future information essential for those processes to function. In Sheehy v Commissioner of Police (NSW) [2018] NSWCATAD 73 the Tribunal found that clause 1(d) applied with respect the disclosure of confidential information obtained by officers in the course of an investigation under Part 8A of the Police Act 1990. In Transport for NSW v Searle [2018] NSWCATAP 93, the Appeal Panel disagreed that no prejudice to the supply of information would or could occur because of the duties of honesty of public servants.
3. However in Applicants v Commissioner of Police (NSW) [2015] NSWCATAD 22 Senior Member Lucy did not accept that police officers would not give full and frank responses if confidentiality was not assured.
4. In the circumstances of this matter I am satisfied that disclosure of the redacted information could reasonably be expected to prejudice the supply to an agency of confidential information. In my view it is likely that the Respondent's ability to obtain similar information in the future could be impaired.

The third limb - effective exercise of an agency's functions

1. The Tribunal has found in a number of cases that disclosure of information given in relation to an investigation could reasonably be expected to prejudice the effective exercise by the agency of its functions. The Tribunal has recognised that agencies will be less likely to receive information of this kind if there were not some assurance of confidentiality: see for example Mansfield v Department of Family and Community Services (NSW) [2014] NSWCATAD 43; Jenkinson v Department of Education and Communities (NSW) [2013] NSWADT 280.
2. In DDT v Charles Sturt University [2017] NSWCATAD 329, the Tribunal concluded at paragraphs [48] - 49]: "The fact that a report into a complaint may be disclosed to the complainant at the complainant's request is not likely in my view to discourage future complaints from being made. However that does not mean that the clause 1(d) and 1(f) factors are not relevant or of significant weight in this case. It is important to the investigation of academic misconduct that any persons communicating with the investigators can be assured, if appropriate, that their communications will be treated confidentially. The disclosure of the report will disclose confidential communications from persons other than the applicant himself."
3. In the circumstances of this matter I am satisfied that disclosure of the redacted information could reasonably be expected to prejudice the effective exercise by the agency of its functions because the agency's ability to obtain information would be affected. It is reasonable to expect that staff would be less likely to assist with an investigation in the absence of an assurance of confidentiality.
4. Clause 1(f) concerns situations where disclosure of information which was not provided in confidence might still prejudice the effective exercise of the agency's functions. Similar considerations apply as in regard to clause 1(d). In the circumstances of this matter I am satisfied that disclosure of the redacted information could reasonably be expected to result in this type of prejudice.

The weight to be given to clauses 1(d) and 1(f)

1. In the circumstances of this matter, the information has been provided in circumstances in which there is a reasonable expectation of confidentiality. In my view it is probable that the response to an investigation is more likely to be honest, full and frank and would not conceal relevant information if confidentiality is assured. It could reasonably be expected that disclosure of such information would impede frank communication and that, as a result, the agency's function would be adversely affected.
2. I agree with the Respondent's submission in regard to these considerations. In my view, clauses 1(d) and 1(f) of the Table to section 14 should be given significant weight.

Clause 1(e) - prejudice a deliberative process of government or an agency -;

1. In regard to clause 1(e) of the Table to section 14 of the GIPA Act the Respondent must establish that disclosure of the information could be reasonably expected to reveal a deliberation or consultation conducted, or an opinion, or an advice or recommendation given; and prejudice a deliberative process.
2. A relevant connection must be established between the deliberation as contained in the withheld information and the Respondent's 'deliberative processes': see Fire Brigade Employees' Union v Fire and Rescue NSW [2014] NSWCATAD 113 at paragraphs [57] - [58].
3. The meaning of the term 'deliberative process' was considered by the Administrative Appeals Tribunal in Re Waterford and Department of the Treasury (No 2) [1984] AATA 67; (1984) 5 ALD 588 at paragraphs [58] to [61], in the context in which it appeared in section 36 of the Commonwealth Freedom of Information Act 1982 as it applied at that time. Although clause 1(e) of the GIPA Act and section 36 of the Commonwealth FOI Act are not the same, they both deal with the disclosure of information concerning the 'deliberative process' of government or an agency. Hence, the following comments of the AAT, in Re Waterford, remain instructive: 58. As a matter of ordinary English the expression "deliberative processes" appears to us to be wide enough to include any of the processes of deliberation or consideration involved in the functions of an agency. "Deliberation" means "The action of deliberating: careful consideration with a view to decision": see The Shorter Oxford English Dictionary. The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action. In short, the deliberative processes involved in the functions of an agency are 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. ... 59. It by no means follows, therefore, that every document on a departmental file will fall into this category. ... Furthermore, however imprecise the dividing line may first appear to be in some cases, documents disclosing deliberative processes must, in our view, be distinguished from documents dealing with the purely procedural or administrative processes involved in the functions of an agency. A document which, for example, discloses no more than a step in the procedures by which an agency handles a request under the FOI Act is not a document to which s 36(1)(a) applies. 60. It is documents containing opinion, advice, recommendations etc relating to the internal processes of deliberation that are potentially shielded from disclosure - documents that might, perhaps, have been more aptly described in the headnote as "Internal Thinking Documents". ... 61. In order to test the application of s 36(1)(a) to particular documents, it is helpful, in our view, to endeavour to identify what are the "deliberative processes" involved in the functions of the particular agency or Minister or the Government of the Commonwealth to which the requested documents are said to relate. ...
4. 'Prejudice' has its ordinary meaning, namely - 'to cause detriment or disadvantage' or 'impede or derogate from': McLennan v University of New England [2013] NSWADT 113. It is the deliberative process of the agency more generally which must be disadvantaged or impaired by the disclosure of the information in issue: Mullett at paragraph [58].
5. The Respondent submits that future deliberations regarding PIDs would be prejudiced by the release of the O'Connor Marsden report. Ms Huntsman attested to the expectation of confidentiality accompanying the investigation and the likelihood that undermining that expectation will result in staff being unwilling to participate.
6. The Tribunal has accepted that clause 1(e) applies with respect to deliberations and consultations regarding the management of human resources issues, and complaints management in a number of cases: see including Luxford v Department of Education and Services [2016] NSWCATAD 118; Miskelly v Secretary, Department of Education [2019] NSWCATAD 48.
7. I agree with the Respondent that it is apparent from the face of the O'Connor Marsden report that its disclosure would reveal: 1. Consultations conducted with staff at the Land and Housing Corporation with respect to the allegations made by the Applicant; and 2. Advice and recommendations given to the Respondent.
8. In my view the expression "deliberative processes" is wide enough to include these processes.
9. I accept that the release of the Report would impede the full and frank participation of staff in investigative processes. The full and frank participation of staff in an investigation is necessary to ensure that deliberations are fully informed, and based on all available evidence. To the extent that there would be prejudice to future investigations arising from disclosure of the report, this would also prejudice the related deliberative processes required to conduct and take action on those investigations.
10. I agree with the Respondent that clause 1(e) of the Table to section 14 should be given significant weight.

Clause 1(g) - disclosure of information provided to an agency in confidence

1. Clause 1(g) provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence.
2. 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.
3. 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.
4. 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.
5. The Respondent submitted that information within the O'Connor Marsden report was supplied to the Respondent in confidence. The Respondent relies on the evidence of Ms Huntsman that the policies and procedures for the investigation of PIDs place strong emphasis on all parties to those investigations maintaining confidentiality, and include practical mechanisms such as securely storing and providing limited access to investigation documents, and constraining the distribution of final investigation reports. Those procedures are consistent with the experience of Ms Huntsman as to the expectation of confidentiality by staff participating in investigations of this type. I accept this evidence.
6. In the circumstances of this matter the redacted information meets each of the characteristics identified in Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Premier's Department.
7. I am satisfied that clause 1(g) applies as a consideration against disclosure and should be afforded significant weight.

Clauses 3(a) and 3(b) - disclosure would reveal personal information and contravene privacy legislation

1. The expression "personal information" refers to information about an individual whose identity is apparent or can reasonably be ascertained from the information.
2. It is apparent from the face of the O'Connor Marsden report that disclosure of the withheld information would reveal the identity of individuals who participated in the investigation process. It would also reveal the facts and circumstances that are the subject of the investigation as well as the opinions expressed by those concerned.
3. In McKinnon v Blacktown City Council [2012] NSWADT 44 the Tribunal held that information and opinions about the conduct of employees or contractors of the agency in the course of undertaking their duties was 'personal information' within the meaning of the GIPA Act.
4. The opinions and other personal information of the individuals concerned are clearly captured by the GIPA Act definition of 'personal information'. The information about other individuals is also their personal information. That information has not been publicly disclosed and disclosure to the Applicant would 'reveal' personal information.
5. In my view the release of the personal information contained within the withheld documents would contravene section 18(1) of the PIPA Act. None of the exceptions in subsections 18(1)(a) to (c) are engaged and therefore section 18(1) applies.
6. The release of information under GIPA is unconditional and effectively it is release to the whole world. Notwithstanding that some of the withheld information may already be known to the Applicant, these considerations may apply if it has not otherwise been publicly disclosed. In DQN v University of Sydney [2019] NSWCATAD 159 Senior Member Higgins said at paragraphs [68] - [71]: 68. Having read the information in issue (the redacted information), I am satisfied that the information is personal information of a person other than the applicant and a disclosure of the information would reveal that person's personal information. That is, I am satisfied that the information which names the persons against whom the applicant has made his complaint, the responses of these persons to the allegations made against them by the applicant and the summary of the evidence (other than what has been disclosed) is information about such person, whose identity is apparent or can reasonably be ascertained from the information in issue: GIPA Act, Sch 4, cl 4. While the responses relate to the specific allegations that were made by the applicant they are nevertheless information or an opinion about that staff member whose identity is apparent or can reasonably be ascertained from that information if disclosed. 69. The word 'reveal' is defined in cl 1 of Sch 4 of the GIPA Act to mean: 'to disclose information that has not already been publically disclosed (otherwise than by unlawful disclosure)'. 70. Although the applicant knows the names of those staff members who were the subject of his complaint, there is no evidence that this information has been publicly disclosed. As noted in the evidence of Ms Dickson, in accordance with the respondent's Resolution of Complaints Policy, the preliminary assessment reports of Ms Buchanan were only circulated to those staff members responsible for determining how the complaint was to be resolved. 71. Accordingly, I am satisfied that the respondent has established that a disclosure of the information in issue could reasonably be expected to reveal the personal information of the staff members the subject of the applicant's complaint.
7. In my view it is likely that anyone who knows the context of the issues that are the subject of the withheld information would be able to identify some of the individuals concerned.
8. In my view, there is public interest against disclosure of the redacted O'Connor Marsden report information on the basis that the disclosure of the information would reveal personal information and contravene privacy legislation. I am satisfied that clauses 3(a) and 3(b) apply as considerations against disclosure and should be afforded significant weight.

Clause 3(e) - reveal false or unsubstantiated allegations about a person that are defamatory

1. The public interest consideration in clause 3(e) involves a two limb test: firstly, the allegations must be false or unsubstantiated; and secondly, the allegation must be defamatory.
2. A defamatory publication is one which tends, in the minds of ordinary reasonable people, to injure a person's reputation either by disparagement; causing others to shun him or her, or subjecting him or her to hatred, ridicule or contempt: Hurst v Wagga Wagga City Council at paragraph [83].
3. Pursuant to section 73(1) of the GIPA Act disclosure of the information cannot be made subject to conditions and therefore the disclosure would potentially reveal the allegations more widely than to the Applicant alone.
4. The O'Connor Marsden report includes unsubstantiated allegations regarding mismanagement and identifies individuals who were alleged to have knowledge of the issues. Further, where individuals are not directly identified there is a risk that those individuals could nevertheless be identified by other staff.
5. I accept the Respondent's submission that the formality of the PID process carries a heavier risk to the reputation and wellbeing of persons involved than a typical investigation of misconduct. In my view the release of this information would tend to injure the reputation of the individuals concerned.
6. I am satisfied that clause 3(e) applies as a consideration against disclosure and should be afforded significant weight.

Clause 4(d) - prejudice legitimate business, commercial, professional or financial interests

1. Clause 4(d) of the table to section 14 of the GIPA Act provides: 4 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 - … (d) prejudice any person's legitimate business, commercial, professional or financial interests, …
2. In order to establish this contention the Respondent must identify a particular legitimate business, commercial, professional or financial interest: Camilleri at paragraph [37]. It must also demonstrate a basis on which the finding can be made that disclosure of the information could reasonably be expected to prejudice that interest.
3. The Respondent points to views expressed by Senior Member Ludlow in DDL v Mid-Western Regional Council [2018] NSWCATAD 2. She stated at paragraph [60]: I accept that adverse impacts upon a person's professional reputation which could disadvantage their future employment prospects come within "professional and financial interests" (Pemberton v Macquarie University [2014] NSWCATAD 76).
4. Similarly, in Bannister v Department of Finance, Services and Innovation [2018] NSWCATAD 33 I stated at paragraph [90]: In my view, the nature of the discussion in the investigation report in relation to a number of individuals is such that release of the information could prejudice their employment or professional interests.
5. The Respondent submits that in the present matter the Tribunal may be satisfied that the allegations made in the O'Connor Marsden report could prejudice the professional or financial interests of the persons named. It is therefore submitted that clause 4(d) applies as a consideration against disclosure and should be afforded significant weight.
6. I agree with that submission. In my view parts of the O'Connor Marsden report that have been withheld could reasonably be expected to make it more difficult for the persons named to retain or obtain new employment in certain roles. I am satisfied that clause 4(d) applies as a consideration against disclosure and should be afforded significant weight.

Balancing the public interests for and against disclosure

1. Section 13 of the GIPA Act requires the Tribunal to identify the public interest considerations against disclosure of the information and those in favour of disclosure, and then determine the weight to be attributed to each, before determining whether the balance favours disclosure or non-disclosure.
2. The balancing exercise "is a question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation": Battin v University of New England [2013] NSWADT 73 at paragraph [74].
3. I note that the O'Connor Marsden report reported the findings of an investigation into a PID made by the Applicant which alleged serious and substantial waste of public money. In weighing up the competing interests I have considered the fact that the public interest in open discussion and promotion of the integrity and accountability of government agencies and government officials are important public interests.
4. The Applicant stated that he could discern that there were inconsistencies in the Report from the information that was not redacted. However, I note that the GIPA Act is not the correct avenue to challenge the contents or findings of the O'Connor Marsden report.
5. The Applicant maintains that he is unable to understand the reasons for the report's conclusions because of the extent of the redactions. I accept that there is a public interest in informing him of the details of the investigation and the basis for its findings.
6. I have also taken into account the other public interest considerations in favour of disclosure that have been identified at paragraphs [28] - [30] above and the fact that the Respondent has already released a significant amount of information.
7. However, as will be apparent from the considerations above I have determined that each of the identified public interest considerations against disclosure of the withheld information should be give significant weight.
8. In my view there is a greater public interest against disclosure than in favour of disclosure.

Conclusion

1. Taking into account the factors in favour of disclosure set out above and the operation of clauses 1(d); 1(e); 1(f); 1(g); 3(a); 3(b); 3(e); and 4(d) of the table to section 14 of the GIPA Act, I finds that the considerations in favour of disclosure are outweighed by those against disclosure. This is because the release of the redacted information could reasonably be expected to have the effect anticipated by each of those clauses.

What is the correct and preferable decision?

1. For the reasons set out above, I find that the correct and preferable decision is to refuse the Applicant access to the withheld information that is the subject of this application.
2. Accordingly, the appropriate order is to affirm the Respondent's decision.

Order 1. The decision under review 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: 22 December 2021