Eastman v Nepean Blue Mountains Local Health District

The Issues before the Tribunal

1. In her application to the Tribunal the Applicant raised a number of issues that remain in contention. She identified the following grounds: "a. Documents Released ‐ there are numerous issues of great concern with the documents that were released, which did reveal negligence (and/or interference). Access to documents refused may provide answers to the nature and impact of those issues. b. Public Interest ‐ there are several important issues at the core of the misconduct "investigation" that were not considered in the Decision, such as current public discussions on 'coercive control' and power imbalance which are at the core of abuse. c. Scope ‐ the searches were inadequate as there are a couple of issues, including for example, the admitted search time range and the search terms used, that have/may have had an impact on the non‐discovery of documents known to (have) exist(ed). d. Personal Factors ‐ there are numerous issues, such as that of 'personal information', and "privacy" that were relevant and were not considered. She contends that those issues need to be considered - that will discredit part the Decision, and that will add weight to the balance in favour of disclosure. e. Procedural Fairness ‐ there are distinct questions around the fairness of, and integrity of the processes (and people) involved in the "investigation". To be held to account, a new search for documents not included, or refused, may further reveal injustices f. Objective of GIPA Act ‐ the NBMLHD has engaged in a prolonged strategy of distressing stonewalling for years in response my attempts to gain legitimate access to information. Their lack of transparency and cooperation is contrary to the GIPA Act.
2. I agree with the Respondent that the content of the released documents and the conduct of the investigation are not reviewable decisions under section 80 of the GIPA Act. In Smith v Pittwater Council [2016] NSWCATAD 67 I stated at paragraphs [10] - [11]: 10. The Applicant raised several issues in relation to the lack of information regarding the question of whether or not the Council carried out a proper investigation of his complaint. To a large extent these issue concern the content of documents that have been produced. The way in which the investigation was conducted and the determination of the investigation cannot be addressed under the GIPA Act. The Tribunal has no jurisdiction to consider that aspect of the Applicant's case. 10. As Senior Member Lucy noted at paragraph [45] of her decision in Raven v The University of Sydney [2015] NSWCATAD 104 "proceedings under the GIPA Act, like those under the former Freedom of Information Act 1989 (NSW), should not be used "as a vehicle for the collateral review of the merits or validity of official action" (Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 at [24])".
3. Similar views have been expressed in numerous other decisions.

Scope of the access application

1. As noted above, the Respondent accepted that the access application was to be construed as requestion: "All documentation I regards to the investigation by the NBMLHD, or by any third party organization, into the misconduct of [Ms A] in my health care."
2. The Applicant has raised the issue of scope of the access application, the adequacy of the searches that were undertaken and whether or not other information should have been located. She has also challenged the Respondent's decision to refuse to release the withheld information. In my view these issues remain to be determined.
3. I will discuss the scope in detail later in these reasons.

Applicable legislation

1. The object stated under section 3(1) of the GIPA Act is to open government information to the public by authorising and encouraging proactive public release of government information (section 3(1)(a)); and giving members of the public an enforceable right to access government information (section 3(1)(b)). It is the intention of Parliament that the GIPA Act be interpreted and applied so as to further its object: section 3(2)(a).
2. The term "government information" is defined in section 4 of the GIPA Act as information contained in a record held by an agency. The term "record" is defined in clause 10 of Schedule 4 as: 10 Meaning of "record" (1) In this Act - record means any document or other source of information compiled, recorded or stored in written form or by electronic process, or in any other manner or by any other means. (2) A reference in this Act to a record includes a reference to a copy of the record. (3) For the purposes of the definition of record in this Act, the knowledge of a person is not a record.
3. Clause 12 of Schedule 4 of the GIPA Act provides: 12 Government information held by agency (1) A reference in this Act to government information held by an agency is a reference to - (a) information contained in a record held by the agency, or (b) information contained in a record held by a private sector entity to which the agency has an immediate right of access, or (c) information contained in a record in the possession or custody of the State Records Authority (or that the Authority has in the custody or possession of some other person) to which the agency has an immediate right of access, other than a record that is withheld from public access under section 59 of the State Records Act 1998, or (d) information contained in a record that is in the possession, or under the control, of a person in his or her capacity as an officer or member of staff of the agency (including, in the case of a Minister, the personal staff of the Minister). (2) Information that would be regarded as government information held by an agency because the agency has access to a record that contains the information is not to be regarded as government information held by the agency if the public generally has access to the record (for example, because the record is available on the Internet). (3) Information contained in a record that genuinely forms part of the library material held by an agency is not government information held by the agency. (4) Information contained in a record held by the agency that is information that was unsolicited and is not relevant to the agency's business or functions is not government information held by the agency.
4. Division 3 of the GIPA Act sets out the process for dealing with access applications. Section 51 provides: 51 Initial decision as to validity of application (1) When an agency receives an application for access to government information that it appears is intended to be an access application, the agency is to decide whether the application is a valid access application and is to notify its decision to the applicant by either - (a) acknowledging receipt of the application as a valid access application, or (b) notifying the applicant that the application is not a valid access application. Note - An application is not a valid access application if it is an application for excluded information of the agency or does not comply with the formal requirements for access applications. (2) An agency's decision as to the validity of an application must be made and notified to the applicant as soon as practicable after the agency receives the application and in any event within 5 working days after the application is received. Note - The decision as to the validity of an application is reviewable under Part 5. (3) An acknowledgement of receipt of a valid access application must include the following - (a) the date by which the application is required to be decided (subject to any suspension or extension of the time for deciding an application), (b) a statement that the application will be deemed to have been refused if not decided by the required date, (c) the following statements about the inclusion of information in the agency's disclosure log (unless the agency considers it unlikely that information about the application will be included in the disclosure log) - (i) a statement that information concerning the application is likely to be included in the agency's disclosure log and that the applicant can object to this, (ii) a statement about the right of review under Part 5 of a decision by the agency to include information in its disclosure log despite the applicant's objection, (d) such details of rights of review in connection with access applications as the Information Commissioner may from time to time direct. (4) Acknowledging receipt of an application as a valid access application does not prevent the agency from subsequently deciding that the application is not a valid access application. (5) An agency's decision that an application is not a valid access application is presumed to be correct, subject to any review of the decision under Part 5.
5. Section 53 of the GIPA Act provides: 53 Searches for information held by agency (1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. (2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency. (3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically. (4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures. (5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.
6. In Walker v Roads and Maritime Services [2019] NSWCATAD 177 Senior Member Blake summarised the principles applicable to considering whether the searches undertaken by an agency are reasonable. he stated at paragraph [87]: The Tribunal has applied the following principles in considering the reasonable of searches undertaken by an agency: 1. what constitutes a sufficient search will vary with the circumstances. Key factors in making an assessment include the clarity of the request, the way the agency's recordkeeping system is organised and the ability to retrieve any documents that are the subject of the request, by reference to the identifiers supplied by the applicant or those that can be inferred reasonably by the agency from any other information supplied by the applicant: Mizzi v Commissioner of Police (NSW) [2013] NSWADT 150 at [30]; 2. that there may be weaknesses in an agency's searches or that there are failures in its recordkeeping processes do not necessarily lead to the conclusion that the search has not been reasonable, or sufficient, or adequate: Camilleri v Commissioner of Police (NSW) [2012] NSWADT 5 at [15]; 3. the fact that extra documents were located subsequently does not mean that reasonable searches were not made initially: MJ v Department of Education and Communities [2014] NSWCATAD 12 at [28].
7. Section 5 of the GIPA Act provides that there is a presumption in favour of disclosure of government information. 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.
8. 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.
9. 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. The balancing exercise set out in section 13 "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].
10. 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.
11. Access is restricted only when there is an overriding public interest against disclosure: see Taylor v Destination NSW [2020] NSWCATAD 137 at paragraph [6].
12. An agency can decide an access application in a number of different ways. Section 58 of the GIPA Act provides: 58 How applications are decided (1) An agency decides an access application for government information by - (a) deciding to provide access to the information, or (b) deciding that the information is not held by the agency, or (c) deciding that the information is already available to the applicant …, or (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or (e) deciding to refuse to deal with the application …, or (f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact. Note - These decisions are reviewable under Part 5. ...
13. Relevantly, Part 5 of the GIPA Act provides": 80 Which decisions are reviewable decisions The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part - (a) a decision that an application is not a valid access application, (b) a decision to transfer an access application to another agency, as an agency-initiated transfer, (c) a decision to refuse to deal with an access application (including such a decision that is deemed to have been made), (d) a decision to provide access or to refuse to provide access to information in response to an access application, (e) a decision that government information is not held by the agency, (f) a decision that information applied for is already available to the applicant, (g) a decision to refuse to confirm or deny that information is held by the agency, (h) a decision to defer the provision of access to information in response to an access application, (i) a decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant), (j) a decision to impose a processing charge or to require an advance deposit, (k) a decision to refuse a reduction in a processing charge, (l) a decision to refuse to deal further with an access application because an applicant has failed to pay an advance deposit within the time required for payment, (m) a decision to include information in a disclosure log despite an objection by an authorised objector (or a decision that an authorised objector was not entitled to object).
14. Section 105 of the GIPA Act provides that the Respondent bears the onus of satisfying the Tribunal that its decision is justified.
15. Section 63 of the Administrative Decisions Review Act 1997 provides: 63 Determination of administrative review by Tribunal In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
16. The question of whether all documents have been located becomes a reviewable decision by way of an agency stating it has no further documents in relation to the information sought. An implied decision under section 58(b) that information is not held, is reviewable under section 80(e). This requires consideration of whether searches for information were adequate.
17. The Respondent asserts that the scope of the application in the format received by the agency was correctly interpreted as being limited to the 2014 investigation. The Applicant contends that the Respondent has construed the scope too narrowly.

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 general public interest in favour of disclosure of government information. 2. Some of the information in issue is personal information of the applicant. 3. Persons involved in complaints made to and considered by government agencies have an interest in the information prepared in connection with that complaint and the outcome of any review or investigation of the complaint 4. The disclosure of the information captured by the scope of the application could reveal the reason for the agency decision in relation the investigation and any background or contextual information that informed the decision 5. The disclosure of the information could reasonably be expected to promote openness and transparency and accountability regarding misconduct policy, complaints management and investigation processes and allow members of the public to be informed regarding decision-making process in relation to complaints management.
2. I accept that these considerations are relevant in this matter. I am satisfied that the issues that the Applicant has raised can be regarded as falling within these considerations. In my view, these considerations should be given reasonable weight.

Public Interest Considerations against disclosure

1. The Respondent relies on several public interest considerations listed in the Table to section 14 of the GIPA Act. The Respondent relies on the overriding public interest considerations against disclosure in clauses 1(d), 1(f), 3(a), and 3(b) of the table.
2. 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, … (f) prejudice the effective exercise by an agency of the agency's functions, ...
3. 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 …
4. "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.
5. 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.
6. 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.
7. 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.
8. It is apparent that the Applicant is concerned about lack of transparency within the agency. She submitted: Right from the beginning of my interactions with NBMLHD, initially with the investigation and then also in relation to the subsequent "Additional" matters, I have experienced what I firmly believe to be stonewalling. Whether it is me simply and reasonably seeking action or seeking information, with the aim to be to resolve various issues, from minor to major, all have come about from the … situation in regards to my healthcare, and aligned matters … and also subsequently from the NBMLHD's own mismanagement of me and the situation itself.
9. As I have noted above, the need for transparency is a consideration in favour of release of the withheld information.
10. The Applicant has provided a significant amount of material and has made detailed submissions in relation to issues to be determined. Much of her material is focused on the background to the investigation into Ms A's conduct. She has expressed her concerns in regard to the approach adopted by the Respondent, the flaws that she perceives in the processes and her dissatisfaction with the outcome of the investigation. This material provides a useful context for her access applications, and I have taken it into account as provided for by section 55 of the GIPA Act.
11. 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.
12. The public interest considerations against disclosure need to be examined at a broad operational level and that many of those considerations are concerned with systemic features of the operation of government: Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5.
13. The words 'could reasonably be expected to' require the Tribunal to determine whether the effect that is alleged to occur with disclosure of the information could reasonably be expected.
14. The term 'prejudice' has its ordinary meaning, that is, "to cause detriment or disadvantage" or "to impede or derogate from": see Hurst v Wagga Wagga City Council [2011] NSWADT 307 at paragraph [60].

The specific public interest considerations against disclosure in this matter

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."

Was the withheld information was obtained in confidence?

1. It is not in dispute that the withheld information was supplied as part of the Respondent's assessment and investigation of Ms A's conduct. The Respondent contends that the information was supplied confidentially, and the supply of that information facilitates the effective exercise of a function of the agency. It relies on the evidence of Mr Gregory Driver. Mr Driver is the Manager, Workforce Services and Performance in the Respondent's Directorate of Workforce People and Culture ("WPC"). He has been employed in various roles in human resources management since 1989. He has been employed by the Respondent since March 2020.
2. Mr Driver gave evidence of the Respondent's practice in regard to procedure for investigations into allegations of misconduct involving employees. In his affidavit dated 27 April 2022 he stated (excluding notations): Role of Workforce People and Culture WPC provides expert strategic advice and operational support on a wide range of employment and industrial issues. WPC may lead an investigation into misconduct or may support line or divisional managers that undertake the investigation. An investigation into alleged misconduct is to be conducted in accordance with the applicable NSW Health Policy Directive. The current applicable policy is PD2018_031 Managing Misconduct. WPC is to ensure the rights and responsibilities of all parties to a complaint are upheld as prescribed by the policy directive. Rights of the staff member / clinician subject to an allegation PD2018_031 is supplemented by information sheets on various aspects related to the overarching policy of Managing Misconduct. Information Sheet 3 concerns the rights and responsibilities of all parties to a complaint. In relation to the respondent to an investigation, the information sheet includes the right of that person to be informed of the substance of the allegations and to be treated in a fair, impartial and appropriately confidential manner. It is common for the aggrieved party (often known as the complainant) to be informed of the outcome of the investigation insofar as it relates to them whether the allegations were or were not substantiated. It is not standard practice to disclose further personal information or evidence supplied by other witnesses or respondents. Such provision of information would breach the principles of confidentiality outlined in the policy and supporting documentation. Information Sheet 3 further states managers and/or investigators have a responsibility to maintain confidentiality with a view to minimising risk of harm to any person involved and to ensure the integrity of any investigation. In addition to the evidence supplied by a respondent, the nature of disciplinary action taken against the respondent is not disclosed as standard practice. The nature of disciplinary action, if any, would constitute personal information of the respondent. WPC must adhere to the information protection principles of the Privacy and Personal Information Protection Act 1998 and avoid actions that would result in the unreasonable disclosure of an individual's personal information.
3. The Applicant disputes the Respondent's assertions regarding confidentiality. However, Mr Driver's evidence was not challenged.
4. The Applicant notes that the subject of an investigation is not guaranteed 100% confidentiality. She maintains that the policy reference to confidentiality is a reference to the need to ensure that all records of the investigation are stored securely. That is, it is a reference to the physical protection and privacy of all records. She submitted that this physical act is totally different from what might happen legitimately in regard to the use and disclosure of the information with other aspects of the investigation.
5. She submitted that a distinction must be drawn between physical security and possible unlawful disclosure as distinct from the lawful, procedural disclosure of the information. She says that procedural fairness would allow for a complainant to be given insight and/or a chance to respond to the subject's response to allegations made against them.
6. She argues that the Respondent's policies do not include 'confidentiality' in their definitions, and the term does not appear in the "key" principles of the investigation process where "procedural fairness" "respect" "cultural sensitivity" and "probity of process" are identified. The words "the process is confidential" and "the matter is confidential" are used. She contends that these are references to the integrity of the overall investigation process.
7. The Applicant also asserts that Ms A was instructed to maintain confidentiality but that she breached confidentiality several times. She disputes that Ms A would not expect that the information she provided in confidence could be disclosed. She points to the fact that Ms A was informed that her testimony might be cross-checked for verification and she argues that this indicates that disclosure of the information was a distinct and reasonably expected possibility.
8. Therefore, she submits that clause 1(d) of the Table to section 14, is not a valid point of refusal for this particular case.
9. As noted, the Applicant also contends that multiple failures and unexplained issues have plagued this investigation, and this warrants scrutiny. By opening up access to this terribly flawed situation that was the investigation into [redacted] misconduct, the agency would have the opportunity to learn from their mistakes by means of a thorough analysis of what has happened. She submits that if the hypothetical employee was reasonable, then they would not dismiss any disclosure of information as unfair.
10. In the circumstances I accept that employees and other witnesses will typically participate in an investigation in the expectation that their contributions will be treated as confidential wherever possible. I am satisfied that the withheld information is information that was obtained in confidence.

Does the information facilitate the effective exercise of the 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. The Applicant contends that the Respondent's assertion that the ability to investigate allegations of misconduct thoroughly is a "key" function of the agency is incorrect. She says that while this task is undeniably important, it is not a key function of the agency. The most important and bulk of the agency's functions are centred on patient matters, clinical activity, and patient outcomes, not investigations.
4. The Applicant submits that the Respondent's functions are ultimately aimed at achieving good outcomes for patients and the public. The protection of its patients and clients is to be the primary consideration when managing and making decisions related to potential and substantiated misconduct. She argues that the balancing test of factors for and against disclosure should not be weighted towards how the decisions helps the agency and/or employee, but towards ways of serving the main function of the agency's existence.
5. The function of managing investigations is important but it is not more important than other patient-centred functions.
6. Further, she says that employers are limited in what kind of personal information they are legally allowed to request of employees. If the supply of information is voluntary, not mandatory, it cannot be relied on for any particular purpose or function and so, it cannot be deemed to be essential to the effective functioning of the agency.
7. In the circumstances of this matter, I accept Mr Driver's evidence that the Respondent relies on the cooperation of all staff to gain the best understanding of whether misconduct has occurred. I am satisfied that the withheld information facilitate the effective exercise of the agency's functions.

Whether disclosure of the withheld information would prejudice supply of future information

1. The second limb of clause 1(d) is not concerned with whether in the future a particular person would 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 this matter Mr Driver stated: The effect of not maintaining confidentiality Staff are given assurances that information provided in response to allegations of misconduct will be held in confidence and not disclosed beyond those with a reasonable need to access the information. This is generally limited to the investigation panel and any delegate required to make a decision on the outcome of the investigation. NBMLHD relies on the cooperation of all staff to gain the best understanding of whether misconduct has occurred. This gives NBMLHD the best opportunity of maintaining a high performing workforce which contributes to better outcomes and high quality patient care, the fundamental objectives of the District. If NBMLHD does not demonstrate it treats investigation material with the same confidence it claims to within policy documents, the willingness of staff to openly and honestly participate could be adversely affected. In my professional opinion it can be reasonably expected that future misconduct investigations, or complaints handling processes would be undermined by the release of submissions provided in this 2014 matter. The consequence of a compromised investigative function for NBMLHD may include a diminished ability to maintain a high performing workforce. PD2018_031 cites, as the first mandatory requirement of the policy directive, the protection of patients and clients as a primary consideration when managing and making decisions related to misconduct. In my professional view a failure to maintain confidentiality may adversely impact the investigative process, and it can be expected that such deficiencies will not maintain the aim of a high performing workforce. This can have a corresponding negative effect on the delivery of high quality care to patients and consumers, which would be unacceptable to NBMLHD.
5. The Applicant submits that the weight afforded to confidentiality should not be greater than that afforded to the functions of the agency with greater importance such as patient care.
6. She asserts that any reasonable employee's perceptions and future actions about supplying confidential information would not necessarily be negatively impacted by a disclosure, as it should be accepted by staff that there are provisions in the policies, under which investigations are conducted where such disclosures are permitted.
7. In regard to the effect of a disclosure on the future supply of confidential information to the agency the Applicant contends that the impact of the release should not be viewed in isolation and that any hypothetical future employee would have a flexible, open perspective. For example, she submits that matters concerning a patient and a clinician where no ongoing relationship exists are to be regarded differently to matters where only staff are involved and unease may develop between staff who need to continue to work together. She submits that in accordance with policy, patients should be prioritized above staff.
8. Further, she submits that where there is proven dishonesty on the part of the person who is under investigation, the disclosure of confidential information might be warranted if the information is likely to be dishonest.
9. The Applicant suggests that the withheld information may not be genuinely identified as "personal information". She submits that the information is likely to be of the kind that belongs in the part of the investigation where Ms A was offered a chance to provide information of mitigating circumstances in regard her misconduct. It is unlikely to have been provided in response to the allegations. She submits that if the supply of that information was not mandatory, and not essential for the effective functioning of the agency, any questions about the impact of the disclosure of information is irrelevant.
10. In the circumstances of this matter, I accept Mr Driver's evidence. I do not agree that the issues that the Applicant has raised remove the potential impact of disclosure of the withheld information.
11. 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.
12. 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.
13. I am satisfied that disclosure of the withheld 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 maintenance of confidentiality.

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

1. In the circumstances of this matter, the withheld 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.

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. I do not agree with the Applicant's contention that the withheld information might not be personal information.
3. It is apparent from the face of the withheld documents 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 were the subject of the investigation as well as the opinions expressed by those concerned. The withheld information contains sensitive personal information provided by Ms A and information about her work performance. Ms A is identifiable from the information.
4. In McKinnon v Blacktown City Council [2012] NSWADT 44 the Tribunal held that information and opinions about the conduct of employees of the agency in the course of undertaking their duties was 'personal information' within the meaning of the GIPA Act.
5. The opinions and other personal information of the individuals concerned are clearly captured by the GIPA Act definition of 'personal information'. The information about individuals is also their personal information.
6. I am satisfied that the withheld information is personal information for the purposes of clauses 3(a) and 3(b) of the Table to section 14 the GIPA Act.
7. The term "reveal" is defined in clause 1 of Schedule 4 of the GIPA Act as: "to disclose information that has not already been publicly disclosed".
8. It is apparent that the Applicant has a great deal of knowledge about Ms A's personal circumstances. However, as I have noted, the fact that the Applicant may possess that knowledge does not lead to the conclusion that Ms A has disclosed the information publicly.
9. Sensitive personal information was collected due to the nature of the investigation and such information would not be currently available to the general public by any other means. Even if already known to some extent by the Applicant, this information is not currently publicly disclosed.
10. I am satisfied that the investigation material contains personal information of Ms A and that it is information that would not be generally available in the public domain. I am satisfied that the withheld information has not already been publicly disclosed.
11. 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 publicly 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.
12. 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. Therefore, disclosure of the withheld information under the GIPA Act could reasonably be expected to reveal personal information which has not been previously publicly disclosed.

Would disclosure of the withheld information contravene privacy legislation

1. As noted above, the Respondent treats personal information provided as part of misconduct investigative processes with confidentiality. It is not the kind of information usually disclosed as part of the process, other than disclosure of the outcome of the investigation to the other party where relevant.
2. Disclosure would not be directly related to the purpose for which it was collected, as the personal information was collected to enable the investigation decision-maker to make their decision based on all relevant evidence, capable of affecting the assessment of the allegations in issue.
3. Further, Ms A was not told as part of the investigation that the personal information she provided would be disclosed to the Applicant, nor has she given consent for the information to be disclosed. Further, disclosure is not necessary to prevent a serious and imminent threat to any person's health and safety.
4. The Applicant notes that sections 22 to 28 of the PPIP Act detail specific exemptions to the IPPS. Common exemptions include personal information used for law enforcement or investigative purposes.
5. She notes that under section 25 of the PPIP Act, the agency may not be required to comply with IPP's if lawfully authorised or required to do so. Section 25 provides: 25 Exemptions where non-compliance is lawfully authorised or required A public sector agency is not required to comply with section 9, 10, 13, 14, 15, 17, 18 or 19 if - (a) the agency is lawfully authorised or required not to comply with the principle concerned, or (b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998).
6. The Applicant submitted that some relevant exemptions where compliance with the IPPs may not be required include:

• When collecting information during investigation or management of a complaint or a matter that could be made or referred to an investigative agency, or which has been referred to NSW Health by an investigative agency;
• When the disclosure is made in connection with proceedings for an offence, or for law enforcement purposes; and
• Where sensitive information is required to be disclosed for law enforcement purposes where there are grounds to believe an offence may have been or may be committed.

1. She submits that in collecting, using, and disclosing and storing her sensitive personal information in the course of the investigation without following proper protocols, the agency has breached IPP's and HPPs with her information and sensitive testimony. It is not clear to me how these assertions are relevant to the issues to be determined.
2. In my view, none of the exceptions in subsections 18(1)(a) to (c) are engaged and therefore section 18(1) applies. It follows that the release of the personal information contained within the withheld documents could reasonably be expected to contravene an information principle under the PPIP Act.
3. In my view, there is public interest against disclosure of the withheld information on the basis that the disclosure of the information would reveal personal information and contravene privacy legislation. I am satisfied that subclauses 3(a) and 3(b) apply as considerations against disclosure and should be afforded significant weight. I am not satisfied that this outcome could be avoided by redacting the personal information. I agree with the Respondent that if parties were de-identified by redacting names, other personal information would remain. The Applicant would be able to re-identify from that personal information.

Balancing of the public interest considerations

1. In determining the application the Tribunal must decide what weight is to be given to the competing public interest considerations and balance the public interest considerations in favour of disclosure of the information and the public interest considerations against disclosure of the withheld Information. The Tribunal must then determine where the balance lies.
2. I have accepted that the public interest considerations in favour of disclosure of the withheld Information should be given reasonable weight. However, I have found that each of the public interest considerations against disclosure of the withheld Information should be given significant weight.
3. In my view when the considerations are balanced the public interest considerations against disclosure outweigh those in favour of disclosure. It follows that the Respondent's decision to refuse to release documents 1, 2 and 4 should be affirmed.

Scope of the access application

1. As I have noted above, the Respondent interpreted the scope of the access application narrowly. It accepted that the scope of the December request was the same as that of the August request. The Applicant had left blank the space on the application form that sought details of the request. In those circumstances it was not clear that the Applicant intended that the scope of the December request was to be the same as that of the August request.
2. The Respondent determined that the scope was to include only searches for information that came within the time range of the investigation itself. The Applicant disputes this interpretation of the scope of the access application.
3. It appears that Ms A had arranged with the Respondent to self-report her misconduct in March 2014. The Respondent considered that the end of the investigation was when the Applicant was sent the Outcome Letter dated 06 November 2014. The Respondent adopted this date range as defining the scope of the access application.
4. The Applicant contends that the agency has misinterpreted her request and that it unreasonably disregarded the request for information "to the present". She contends that the position adopted by the Respondent was not a reasonable response to the request.
5. The Applicant contends that she had provided sufficient detail to warrant a search beyond 2014 "to the present". She provided examples of the types of documents that she was seeking such as "letters", "requests by email"; and "enquiries... since March 2020".
6. The Applicant also questions whether the search terms that were used to locate the requested information were sufficient to locate all information held by the Respondent that is captured by the request. She says that documents that are either known to exist, or reasonably believed to exist were not found or released, and this give cause to question the adequacy of the search terms used. The Applicant also noted the absence of emails in the documents released. She submits that a reasonable search for information that includes emails, should include any known relevant email addresses as search terms. She contends that a reasonable search has not been made in this matter if the search excluded emails.
7. The Applicant stated that third party individuals and organisations were involved in the investigation. She submits that the likely third-party organisations include AHPRA, HCCC, HPCA, CEC and the Ministry of Health. She further submits that the information held by the Respondent should include records related to some of those third parties.
8. She believes that other information should have been located by the Respondent. She noted that she included the expression "my healthcare" in the scope of the access application. Therefore, the search should have included the file of that nature held by the Respondent. She considers that it is likely that her healthcare file would most likely have been considered by the investigators and that the healthcare record would contain relevant information resulting from the investigation. She further contends that the search should have included Ms A's employee file and Audio Recordings of Ms A's Investigation interviews.
9. The Applicant referred to the two-step approach in Shepherd v Department of Housing, Local Government and Planning [1994] QICmr 7, (1994) 1 QAR 464 regarding the adequacy of a search. That is, considering: 1. whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency and, if so, 2. whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.
10. She submits that the searches were not adequate in this case. This submission is based on the view that there are documents that exist that that have not been located; and the Respondent did not undertake searches that should have been conducted.
11. In response to these contentions, the Respondent asserts that the scope of the application was correctly interpreted as being limited to the 2014 investigation.

Consideration

1. The Respondent formed the view of the time range applicable to the scope of the access application based on the narrow construction of the expression "in regards to". I do not agree with that construction.
2. The GIPA Act is beneficial legislation. Beneficial legislation is to be construed generously to ensure that an applicant is not denied the benefit offered by the legislation.
3. As noted, the Respondent accepted that the relevant scope was that of the August request. That is, the Applicant was requesting: "All documentation in regards to the investigation by the NBMLHD, or by any third party organization, into the misconduct of [Ms A] in my health care."
4. In my view, once the Respondent had formed that view, it was bound to process the access application with that scope. It is clear from the August request that the Applicant was not limiting her request to the investigation period i.e. from the commencement of the investigation to 6 November 2014. She was clearly seeking information that was held by the Respondent up to the date of the August request. This is apparent from the inclusion of the expression "Feb 2014 to present".
5. The Applicant has sought "all documentation in regards to the investigation". This is a much broader scope that merely the investigation information. The expression "in regards to" is to be given its ordinary meaning. It is a comparable expression to "in relation to". The expression has an expansive meaning.
6. In my view the access application should be construed as a request for information where there is a clear connexion between the information and the investigation. This might for example include email or other correspondence that makes reference to the investigation. The time range is defined by the words "Feb 2014 to present". As noted, section 53 of the GIPA Act provides that an agency is only required to provide access to held by the agency when the application is received. The words "to present" should be construed as meaning the date on which the December request was received. It is unlikely that relevant information would be held for the period February 2014 up until the time that Ms A self-reported.
7. It appears to me that the searches undertaken by the Respondent did not include the whole of the period covered by the scope of the access application. I am therefore unable to be satisfied that no other information that falls within the scope of the access application is held by the agency.
8. I am satisfied that the Respondent's decision should be affirmed insofar as it concerns documents 1, 2 and 4. However, the application should be returned to the Respondent for reconsideration in light of the scope that I have identified.

Orders 1. The decision under review is affirmed insofar as it concerns documents 1, 2 and 4. 2. The Tribunal otherwise sets aside the decision under review and remits the matter for reconsideration by the Respondent in accordance with the reasons for this decision, within 28 days. 3. The matter is listed for a case conference at 10:30 am on 5 December 2022. 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

Amendments 03 November 2022 - Redaction 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: 03 November 2022