Eastman v Nepean Blue Mountains Local Health District

Presentation of the Applicant's material

1. Much of the Applicant's material has been presented in a way that is extremely difficult to understand. As best as I can understand that material, it is an attempt to revisit issues that have already been determined in the 2022 decision in circumstances where she disagrees with the determination. Alternatively, the material does not appear to be relevant to the issues that remain to be determined. If it is relevant, I have been unable to ascertain the relevance.
2. In an order to better understand the Applicant's position I directed her to provide an outline of her case. The outline was to comprise no more than ten pages and was to identify the issues which she considered to remain outstanding following the redetermination decision. This limit was imposed because of the voluminous material that she had previously filed, much of which is not relevant to the issues to be decided.
3. The Applicant has filed further material as directed. However, that material is again in a form that is extremely difficult to understand and it far exceeded the ten page limit that was instructed.
4. As Basten JA explained in Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; 61 MVR 443 at paragraph [22], there is no obligation on the Tribunal to consider every piece of evidence presented. Some material may be irrelevant or misconceived. That appears to be the situation in this matter.
5. In the Administrative Decisions Tribunal Appeal Panel decision of University of New South Wales v McGuirk (No 1) (GD) [2005] NSWADTAP 65, the Appeal Panel stated: [25] … The Tribunal is not required to go through large quantities of material in search of evidence that could possibly support the University's claim. That point was made clear by the High Court in Gamester Pty Ltd v Lockhart (1993) 112 ALR 623 at 626 when the Court rejected a submission that a decision maker is obliged to sift through large volumes of written material in order to identify relevant submissions or evidence. The submission was described as suggesting: "... that a judge who has given a party a reasonable opportunity to state that party's claim for relief is under an obligation, without having the benefit of relevant and intelligible submissions, to extract from a mass of apparently non-supportive evidence any pieces of the evidence which could be regarded as supportive. The submission is misconceived. In court proceedings, a judge is bound to give a party a reasonable opportunity to state the party's claim for relief and to point to the evidence, which supports it. But if the opportunity is not taken, the judge is not bound to set out in search for supportive evidence to support a claim which the party has failed to articulate intelligibly."
6. The Appeal Panel found that the Tribunal did not make an error by failing to sift through the filed material to identify relevant evidence and that the Tribunal did not make an error in failing to make a particular finding on the basis of that evidence.
7. Section 38(5) of the NCAT Act provides that the Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and (b) if requested to do so - to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.
8. However, the Tribunal must not become a self-represented litigant's advocate to the disadvantage of the other party.
9. In the present matter, the Applicant was given a reasonable opportunity to provide material in relation to her claims and to point to the evidence which she contends supports those claims. In the absence of a clear and precise identification of the issues that the Applicant contends remain for determination, even after further opportunity to clarify her case, I have been unable to ascertain the relevance of much of her material. Nevertheless, I have endeavoured to sift through her material in order to identify relevant issues that need to be considered. As best as I am able to understand her case, the Applicant appears to make the following points: The rejection points listed from A to G, not only discredit the position of NBMLHD and their application for dismissal, but also serve to provide weight in favour of my position to have outstanding matters addressed by the Tribunal. Expansion of the points of rejection with multiple elements, crossing subject areas, follows. A: Outstanding issues raised in all submissions from Part A to Part J, (where J only required me to outline those issues), have been unreasonably left unaddressed B: My legally enforceable right to have the January 2023 Reconsidered Decision reviewed by NCAT would be denied if dismissal was granted without the review C: Newly discovered information from several sources tends much weight in favour for redone reasonable searches, and reconsidered release of refused documents D: Newly reported miscellaneous matters lend even more weight to the public interest test due to the expanding collection of troubling NBMLHD conduct E: Matters of law and fact affecting Decisions have not been applied accurately by NBMLHD to argue their case, nor to refute matters of law and fact in my case F: Breaches and offences by NBMLHD under legislation, reported and supported thus far, should see the people responsible for wrongdoing held to account G: Dismissal Application itself lacks merit as it rests on unreasonable grounds that I discredit in this submission, as I prove my case is NOT "lacking in substance". … I do not understand why the expert evidence of Mr Driver is being held up in such high regard where his evidence rests on a policy document that did not exist at the time of the investigation. How is that applicable? And I do not understand why so much weight is given to what is nothing more than one person's opinion. The opinion is being passed on a matter of predicting human behaviour as to whether or not someone might lie or not be forthcoming. Is Mr Driver an expert in Human behaviour! Where are the studies and the staff PMES surveys that support his opinion considering how long he has done this? I still do not understand how my points about lPP's do not apply to decisions about identifying personal information as it pertains to investigative functions. Some of the decisions made do not appear to be backed up by reasons that are based in law or fact, just a decision stated, or a general statement like, 'it is clear from the policy, but not stated which policy and where it is made clear. And it is stated in the GIPA Act that the Respondent is required to prove that the 'Personal Information" (of Ms A in this case) is not already disclosed yet I have actually given more than adequate proof of a range of issues being in the public arena, and the additional indications of her personal and professional tendency to be engaging in "story telling' and peer work. It is also worth mentioning that at the time of the investigation and well into 2015, she was listed on the AHPRA website with conditions next to her name stating that she couldn't work in the community, and that she had to be supervised etc. so if that type of information is being treated as unreleased personal information, it is not... check with AHPRA, it was up. Breaches and offences by NBMLHD under legislation, reported and supported thus far, should see the people responsible for wrongdoing held to account. I had a simple mission before I started this information quest, to get some answers. Along the way I have come to be confronted with unexpected problems and sustained resistance, that speak to me of a cover-up. On discovering more and more serious issues with this broad matter, it appears to be a dedicated strategy. No Records. Lost Records. Destroyed Records. Incomplete Records. Wrong Policy. Non-compliance with Policy and State Legislation, Breaches to Code of Conduct, to name just a few, even issues with this GIPA process raise compliance questions. As requested by the Tribunal, the parties have been asked to attempt to resolve some issues prior to the Hearing. My first attempt to do that was rejected. I do still wish to ask some questions, on a range of matters and in terms of my points in this section, in this submission, I feel it is important to clarify some facts so I am not saying or claiming something that is not accurate. I care about the truth. There are some very serious issues at hand here, including the one with [a named officer] that was discovered with the Reconsidered Decision. I consider all the issues with just that one aspect of that matter to be particularly important and believe I should be entitled to some answers, considering the significant breaches that occurred with privacy breaches, actions and inaction around the Carpark event in July 2015, as previously noted, involving in particular [named officers]. The Carpark Update involves issues that are substantial - honesty integrity crime. This is not just about getting access to information for me now to see what did actually happen with the investigation and all the other time-sucking hassles with the additional matter that followed due to NBMLHD actions and inaction. This is about attempting to move on in my life with no LHD loose ends or issues. And I believe that my hopes to do that should be taken into consideration as a factor in favour of not dismissing this case. I feel I deserve a chance to progress. Dismissal Application itself lacks merit as it rests on unreasonable grounds that I discredit in this submission, as I prove my case is NOT "lacking in substance". As such, I respectfully request that the Tribunal does not grant the dismissal.
10. The Applicant identified some issues that she contends were raised for consideration in the 2022 decision but remain outstanding. She submitted: The NCAT process allows for the parties to ask questions: NCAT Act 46(1)(c) (d). I had several questions since the start of this, that I wish to ask the Respondent, to elicit relevant information and to resolve issues. I seek the Tribunal's support with its powers to compel NBMLHD representatives to answer those questions. The questions are of simple factual matters that would be known, or sourced in the known documentation and would not require opinions to be formed or any assessments made about weighing up Public Interest factors around disclosure. For example: 'Who was the Decision Maker in the 2014 Ms A Investigation?' There are some leftover points made by the Respondent in 2022 submissions that are incorrect or otherwise misrepresent issues, that are minor but still important in regard to NBMLHD honesty that were not addressed, that should be corrected. For example; The Respondent has entered an incorrect answer that misrepresents the truth in the NCAT Application form … There are a couple of concerning outstanding miscellaneous issues, that I wish to note including specifically my points with 'Agency Misconduct' that seems to have been ignored. It seems odd in respect to the amount of attention I gave to this factor and the seriousness of my observations (eg. fraud HCCC). It is curious that NBMLHD has not offered any acknowledgement OR rebuttals.
11. The Respondent provided submissions in response to the Applicant's contentions in regard to these matters and asserted that no unresolved reviewable items remain. The Respondent submitted: The applicant's submission on 3 March 2023 does [not] raise any information about a reviewable decision that was not already considered by the Tribunal in the decision of 3 November 2022. Some parts as discussed above re-argue factors that were already contested in the 2022 decision. [T]he applicant references "unidentified issues" from paragraph [22] of the Tribunal's decision that were "to be determined" and that she hoped to resolve. In context, the issues to be determined were clearly identified by the Tribunal as being the issue of scope of the access application, the adequacy of searches the respondent's refusal to release withheld information. These issues were to be determined by the Tribunal and were then discussed and resolved in the decision. The balance of [the Applicant's submissions] do not appear to contest a reviewable decision or the outcome of the orders from the Tribunal.
12. In relation to the 2022 decision, it appears that the Applicant: 1. disagrees with some of the findings; 2. maintains that some points made by the Respondent for consideration in the 2022 decision were incorrect or the Respondent otherwise misrepresented the issues; 3. maintains that the scope of the access application is still unreasonably restricted.
13. The Applicant contends that the Respondent has narrowly construed the scope of the access application in that it has excluded information that she considered is within the scope, notwithstanding that it may not refer to the investigation directly. She also contends that the Respondent has construed the date range too narrowly. She argued that the Respondent has not justified its decision to exclude some documents known to exist or those expected to exist. She submits that the scope included information that concerns issues going beyond the investigation itself, in time and in subject matter.
14. In regard to the adequacy of the searches that the Respondent undertook, the Applicant contends that countless relevant documents would have been excluded because of the search terms used. She submitted that this is a consequence of the exclusion of the names of staff members who were involved in her health care. She also argued that the released records do not include expected email attachments, all details of phone calls or meetings or minutes, reports or memos etc as requested. She submits that as the search was done without the most relevant and useful search terms, it does not comply as a reasonable search.
15. 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.
16. 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].
17. In Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 the Appeal Panel stated at paragraph [53]: 53 Searches for information held by agency
18. 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.
19. 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.
20. 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.
21. 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.
22. An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.
23. In Klaric v Commissioner of Police [2020] NSWCATAD 47, Senior Member Ransome noted at paragraph [33]: In reviewing a decision that an agency does not hold information, it is appropriate to consider the sufficiency of an agency's searches to locate relevant documents. The Tribunal has generally applied the approach of the Queensland Information Commissioner in Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464. In that decision the Commissioner outlined a two-stage approach to the question of what constitutes an adequate search. The first is to consider whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency. If that question is answered in the affirmative, then to consider whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances. (See Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5; McClymont v Department of Family and Community Services [2017] NSWCATAD 202.)
24. In Webb v Port Stephens Council [2018] NSWCATAP 224 the Appeal Panel stated at paragraph [36]: Where there is relevant and credible material presented to support the decision, in practical terms, a burden will fall on the challenger to try and overcome or undermine the case from the agency.
25. The Appeal Panel stated at paragraph [37]: the applicant has what is sometimes referred to as a "practical onus" to establish the existence, or possible existence, of further information.
26. In Alam v Insurance and Care NSW [2020] NSWCATAD 148 Senior Member Higgins stated at paragraph [55]: In [my] opinion, s 53 of the GIPA Act does not require the agency to provide specific details of search engines or algorithms of its electronic data systems. Nor, in my opinion, was it necessary for the respondent to provide any information or an explanation of this kind. What is required, in order to discharge its onus that its search efforts were reasonable, an agency must identify the electronic systems and platforms on which it retains information of the kind sought by the access applicant and what searches were conducted on those systems and platforms for the information sought.
27. I have considered the Respondents submissions and the details provided by Mr Cupples, that outline the searches that were undertaken. Mr Cupples stated that the search terms included all staff who were involved in the investigation. It is apparent from the withheld information that the information from staff members who the Applicant has identified as a source of information was in fact captured by the search terms. The information that was located includes material from those officers.
28. The Respondent does not dispute that some of the information that has been located is incomplete. However, Mr Cupples stated that the Respondent does not hold a complete copy of that information and the information that has been provided to the Applicant is a copy of what is held.
29. He said that there is no indication that a complete copy is held elsewhere or that other versions are held. He further submitted that the state of the Respondent's records is not a reviewable decision. I agree with those submissions.
30. I do not agree with the Applicant's assertion that the scope of the searches that the Respondent was required to undertake is too narrow. As has been noted, I directed the Respondent to undertake further searches for information held by the agency that has a clear relationship to the investigation. I am satisfied that the Respondent has complied with that direction. I do not accept that the scope has been construed too narrowly.
31. I accept the Respondent's assertion that further searches would be unlikely to locate further information related to the investigation. In the circumstances I am satisfied that the searches undertaken are reasonable. In my view, the Respondent has satisfied its obligation to undertake reasonable searches.

Are there Issues identified for consideration in the 2022 decision that remain outstanding?

1. The Applicant noted that paragraph [22] of the 2022 decision made reference to issues that were to be determined. The issues to be determined were identified as (a) the issue of scope of the access application, (b) the adequacy of searches and (c) the Respondent's refusal to release withheld information. Those issues were discussed and resolved in the 2022 decision.
2. I do not agree with the Applicant that issues that were identified in the 2022 decision remain for determination.

Section 46(1) of the NCAT Act

1. I note that the Applicant expressed the view that section 46(1) of the NCAT Act allows for the parties to ask questions. She stated that she wanted to ask questions of Mr Cupples in order to elicit relevant information and to resolve issues.
2. Section 46(1) of the NCAT Act provides: 46 Powers in relation to witnesses (1) The Tribunal may - (a) call any witness of its own motion, and (b) examine any witness on oath or affirmation or require evidence to be verified by a statutory declaration, and (c) examine or cross-examine any witness to such extent as the Tribunal thinks proper in order to elicit information relevant to the exercise of the functions of the Tribunal in any proceedings, and (d) compel any witness to answer questions which the Tribunal considers to be relevant in any proceedings. …
3. Section 46(1) of the NCAT Act does not allow for the parties to ask questions as the Applicant contends. Further, the GIPA Act is a process through which a request can be made with an agency to obtain information held by the agency. It is not an avenue to challenge the accuracy of information that is released by the agency.

Should the withheld information be released?

1. As noted above, the further searches that were undertaken identified about 500 additional documents. Mr Cupples decided to release 232 documents and refused access to a further 262 documents.
2. Section 14 of the GIPA Act provides: 14 Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

Conclusive presumption against release

1. As noted, 89 of the documents ("the HCCC information") were identified as subject to a conclusive presumption against release as they related to the complaint handling functions of the Health Care Complaints Commission ("the HCCC").
2. Section 14(1) of the GIPA Act provides that it is to be conclusively presumed that there is an overriding public interest against disclosing any of the government information described in Schedule 1 to the Act.
3. Clause 1 of Schedule 1 to the GIPA Act provides: 1 Overriding secrecy laws (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information the disclosure of which is prohibited by any of the following laws (which are referred to in this Act as "overriding secrecy laws"), whether or not the prohibition is subject to specified qualifications or exceptions and whether or not a breach of the prohibition constitutes an offence: ... Health Care Complaints Act 1993
4. Clause 6 of Schedule 1 to the GIPA Act provides: 6 Excluded information (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that is excluded information of an agency, other than information that the agency has consented to the disclosure of. (2) Before an agency decides an access application by refusing to provide access to information on the basis that it is excluded information of another agency, the agency is required to ask the other agency whether the other agency consents to disclosure of the information. (3) A decision that an agency makes to consent or to refuse to consent to the disclosure of excluded information of the agency is not a reviewable decision under Part 5.
5. 'Excluded information' is defined in Schedule 4 as follows: "excluded information" of an agency specified in Schedule 2 means information that relates to any function specified in that Schedule in relation to the agency.
6. Clause 2 of Schedule 2 provides: Schedule 2 Excluded information of particular agencies Note - Information that relates to a function specified in this Schedule in relation to an agency specified in this Schedule is excluded information of the agency. Under Schedule 1 it is to be conclusively presumed that there is an overriding public interest against disclosure of excluded information of an agency (unless the agency consents to disclosure). Section 43 prevents an access application from being made to an agency for excluded information of the agency. ... 2 Complaints handling and investigative information ... The Health Care Complaints Commission-complaint handling, investigative, complaints resolution and reporting functions (including any functions exercised by the Health Conciliation Registry and any function concerning the provision of information to a registration authority or a professional council (within the meaning of the Health Care Complaints Act 1993) relating to a particular complaint). ...
7. I have reviewed the information that the Respondent contends is captured by these provisions. It is apparent from the face of the documents that the information in the documents relates to the Health Care Complaints Commission-complaint handling, investigative, complaints resolution and reporting functions. The HCCC does not consent to disclosure of the information. In the circumstances I am satisfied that it is to be conclusively presumed that there is an overriding public interest against disclosure of the HCCC information.
8. It follows that the Respondent's decision to refuse to release the HCCC information is the correct and preferable decision and it is to be affirmed.

Considerations in favour of release

1. As noted above, the Respondent has refused to release 173 documents on the basis that they were subject to an overriding public interest against disclosure.
2. Section 12 of the GIPA Act provides: 12 Public interest considerations in favour of disclosure (1) There is a general public interest in favour of the disclosure of government information. (2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Note - The following are examples of public interest considerations in favour of disclosure of information - (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.
3. In addition to considerations identified in section 12 to the GIPA Act, the Respondent has identified the following considerations in favour of release of the information:

• Some of the information in issue is personal information of the Applicant;
• Persons involved in complaints or investigations 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;
• 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;
• 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 such complaints management.

1. Pursuant to section 55 of the GIPA Act personal factors of the application may be considered. I agree with the Respondent that that some of the information is the Applicant's own personal information and that this is a relevant considerations in favour of release.
2. I am satisfied that each of the considerations in favour of disclosure should be afforded significant weight.

Public interest considerations against disclosure

1. The Respondent identified the considerations against disclosure in clauses 1(d), 1(f), 3(a) and 3(b) of the table to section 14 of the GIPA Act as being relevant to the withheld information.
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. Clause 4 of schedule 4 to the GIPA Act defines personal information as follows: 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. As I have noted, the purpose of the further searches that were undertaken by the Respondent was to locate information that related to the investigation. It follows that all of the withheld information should related to the investigation. If it does not, it would be out of scope of the further searches and the access application.

Does the information contain an individual's personal information?

1. The Respondent contends that clauses 3(a) and 3(b) of the table to section 14 apply to the information in documents identified as Tranche 2.
2. Tranche 2 is described as information generated within the timeframe of the investigation and includes correspondence to and from Ms A, including coordination of interviews, submission of statements, and updates on the progress of the investigation. It also includes correspondence about Ms A between the investigation panel and the Respondent's management. The outcome of the investigation insofar as it relates to Ms A is included.
3. Tranche 5 is described as containing information that was generated after the investigation and relates to Ms A's work performance and personal circumstances.
4. I am satisfied that these documents all contain an individual's personal information. I accept that while the documents contain personal information of in individual other than the Applicant, some of this information concerns also concerns the Applicant and therefore it is also the Applicant's personal information. It follows that the disclosure of these documents would reveal personal information.

Would disclosure of the withheld information contravene privacy legislation?

1. I am satisfied that the personal information in these documents is not the kind of information that is usually disclosed. As the personal information was collected to enable the Respondent to carry out and finalise its investigation, disclosure would not be directly related to the purpose for which it was collected.
2. Further, it is unlikely that Ms A would have been told that her personal information would be disclosed to the Applicant, nor has consent been given 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.
3. Section 18 of the PPIP Act is set out above. In my view, none of the exceptions in subsections 18(1)(a) to (c) are engaged and therefore section 18(1) applies to the personal information. It follows that the release of the personal information contained within these withheld documents could reasonably be expected to contravene an information principle under the PPIP Act.
4. In my view, there is public interest against disclosure of the withheld information in Tranche 2 and Tranche 5 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.
5. It is necessary that I undertake a balancing exercise in relation to the considerations in favour of release of the withheld information and those considerations against its release. I consider that greater weight should be attributed to the considerations against release.
6. On balance, I am not satisfied that the public interest considerations in favour of disclosure of this information outweigh those considerations against disclosure.
7. Accordingly, the Respondent's decision to refuse to release this information is affirmed.

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. Clause 1(d) of the table to section 14 of the GIPA Act provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions,
3. 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.
4. With respect to the first limb of clause 1(d), the Appeal Panel in Camilleri outlined the general approach to determining whether or not information is confidential information.
5. The Panel held at paragraph [33]: "In our view, the question of whether the information supplied is 'confidential information' must be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received."
6. 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.
7. The evidence of Mr Driver, as discussed in the 2022 decision, confirms the Respondent's approach to the investigation of alleged misconduct.
8. 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 obtained in confidence?

1. As was noted in Williams v Department of Industry and Investment (NSW) the Tribunal has accepted regularly that complaints regarding alleged misconduct are made in confidence. In the circumstances of this matter, I am satisfied that the information that was collected to enable the Respondent to carry out its investigation was probably obtained in confidence. This is consistent with the evidence that Mr Driver gave.
2. In relation to the contention that clause 1(d) of the table to section 14 of the GIPA Act is applicable to the remaining withheld information, the Respondent relies on the evidence of Mr Driver, as discussed in the 2022 decision. Mr Driver is the Manager, Workforce Services and Performance in the Respondent's Directorate of Workforce People and Culture. In his redetermination decision reasons, Mr Cupples stated summarised the Respondent's position: There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have the effect (whether in a particular case or generally) of prejudicing the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions (s 14(1)(d) GIPA Act). In this matter the relevant functions are NBMLHD's human resources management functions and clinical safety functions, as evidenced by policy documents dealing with incidents, grievances, misconduct and complaints about health care professionals. In exercising its human resource management and clinical safety functions, NBMLHD relies on open and frank communications and provision of information from staff when handling complaints, reviewing incidents, and conducting investigations into such matters. This can include information provided by persons on the understanding that it will be treated as confidential. The investigation in this matter was conducted in line with applicable policy documents at the time … These policies re-enforce that, given the sensitivity, and potential contentious nature, of issues related to managing discipline and alleged misconduct, consistent and well managed disciplinary policy and practices are essential for maintaining an ethical culture and behaviour consistent with organisational values and goals, and also for promoting confidence, trust and good communication. Specifically, alleged breaches relating to misconduct, serious performance issues or inappropriate behaviour involving staff of NBMLHD need to be addressed and resolved within the context of relevant legislation, industrial Instruments and the principles of procedural fairness, respect, cultural sensitivity, natural justice, and probity of process. The process of natural justice provides confidentiality for all parties even in situations that require the involvement of other parties. Staff members who are subject to an alleged breach of discipline are assured that the process is confidential, and there is a requirement for the investigator to ensure that records of the investigation process are stored securely to maintain confidentiality. As instructed by policy, a separate dedicated and confidential investigation file is maintained separate to the staff member's personnel file. Correspondence with parties involved in investigations related to allegations of misconduct stress the need for confidentiality in the matter and staff are further advised that any breaches of confidentiality may result in disciplinary action. In addition, policy indicates that the investigation report should be marked 'confidential' in recognition that it may contain a range of information about different patients and staff, and care should be taken in responding to any requests for access to the report. NBMLHD, in accordance with policy, treats information gathered and created for the purpose of alleged misconduct investigations as confidential and discloses it on a 'need to know' basis as far as parties to the investigation were concerned. Outcomes of the process are advised only insofar as it related to them. This process supports confidentiality being maintained whilst enabling relevant facts and decisions to be openly communicated while protecting confidentiality and personal privacy. It is clear from reading the relevant policies in place at the time of the investigation in 2014, and also the various 'Managing Misconduct' policies enacted since 2014, that it is intended that information provided in the course of a misconduct investigation be treated as confidential. All these policy documents stress that grievance and disciplinary procedures are designed to be a confidential process that afford the principles of natural justice to all parties. Investigations are to be conducted in a confidential manner. Policy also requires that information disclosed by staff in the context of a misconduct investigation, subject to the requirement of procedural fairness, not be disclosed. This intent is well articulated in Information Sheet 3 to the Managing Misconduct policy titled Rights and Responsibilities of Parties to a Misconduct Allegation. This information sheet outlines the rights and responsibilities of all parties involved in managing misconduct, and instructs, amongst other things, that everyone involved in an investigation needs to maintain appropriate confidentiality throughout the process and ensure confidentiality of communications (including of documents). In relation to the meaning of confidentiality it states; 'All parties involved in a misconduct matter must maintain appropriate confidentiality throughout the process. Confidentiality minimises the risk of harm to any of the persons involved. It also helps ensure the integrity of any investigation. Matters related to an allegation of misconduct (including the identity of those involved) must only be discussed with people who have a specific role in relation to the allegation, and such discussion must be restricted to matters relevant to that role. No information is to be provided to third parties, unless this is necessary for the effective management of the issue, or required by other policies or legislation.' It is evident to the reviewer, from the material contained in the investigation file for the matter at issue, that the confidential nature of the investigation and its outcome was advised to both parties. It is also clear that the staff member in this alleged misconduct matter had an expectation that the information she provided would be treated with strict confidentiality. ... I am satisfied that the investigation process was confidential in nature and that information provided in connection with the investigation by the staff member was provided in confidence The staff member, having been made aware of the framework under which the investigation was to be conducted and participating on the expectation that the principle of confidentiality would be adhered to, had a reasonable expectation that further release of Information relating to her would not occur. Further, it is my opinion that if it were to become practice that such information provided on the understanding that it was provided in confidence is subsequently released there exists a reasonable expectation that such disclosure may affect the provision of such confidential information in the future. This opinion is supported by the affidavit of Mr Greg Driver dated 27 April 2022 which was supplied to the Tribunal in the course of the external review. It is believed that staff will be less likely to be candid, frank and open in an investigation process if the information they provide is not treated in a confidential manner, and less likely to participate in any incident reporting and complaints management/investigation processes in the future. The lack of such involvement by employees would consequently impact the future supply to NBMLHD of confidential information that facilitates the effective exercise of its human resource management, complaints management and clinical safety functions. It would impede the ability of Nepean Blue Mountains LHD to take any appropriate resolution action to achieve a return to a functional and safe workplace for patients and staff, given the lack of information and involvement of others. I give this consideration a considerably strong weighting.
3. I accept that this is an accurate reflection of the Respondent's approach to investigations of the type to which the withheld information relates. In the circumstances I am satisfied that clause 1(d) of the table to section 14 of the GIPA Act applies to the withheld information that was obtained in the course of the investigation. I am satisfied that the information was obtained in confidence; the information facilitates the effective exercise of the agency's functions; and disclosure of the information could reasonably be expected to prejudice the supply of such information to the agency in the future.
4. In my view, this consideration is to be given significant weight.
5. Clause 1(f) of the table to section 14 of the GIPA Act provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions.
6. Information that is within the scope of the access application, but which was not obtained in the course of the investigation will not be subject to the same policies as those that were obtained in the course of the investigation. In some circumstances it is not apparent that the information was obtained in confidence. If the information was not obtained in confidence, clause 1(d) will not apply.
7. Documents in tranche 4 are related to processes that occurred outside of the Respondent's investigation. Tranche 5 contains information that was generated after the investigation.
8. Unlike clause 1(d), clause 1(f) of the table to section 14 does not contain the element of confidentiality. Mr Cupples provided the following explanation for the application of clause 1(f): For the reasons outlined in relation to Clause 1(d) above. It is believed that disclosure of the information requested by the applicant could reasonably be expected to have a detrimental Impact on the effective exercise of NBMLHD's functions in relation to human resource management, complaints and staff disciplinary management. Any full release of investigation material including a respondent's information, into the public domain, is not in line with either policy or staff expectations. Full release would reveal deliberations and decision-making that contributed to this specific investigation outcome. Without assurances regarding confidentiality of the processes and decision-making involved in such investigations (as required by policy), there is a reasonable expectation that staff would be reticent to fully co-operate in the process, and be open and frank, thus making it difficult for NBMLHD to effectively carry out its complaints management and misconduct/disciplinary functions. It is believed this would have a chilling effect on the effective exercise of NBMLHD's human resource management and complaint handling/clinical safety functions. I give this a significant weighting.
9. I have considered each of the remaining documents. I have also held a confidential hearing with Mr Cupples in the absence of the Applicant. I am satisfied that the withheld information was provided to assist in the effective exercise of the Respondent's functions. I accept the Respondent's evidence that the release of this information could have a detrimental affect on the agency's ability to obtain information of this kind in the future.
10. In my view, disclosure of the information could reasonably be expected to prejudice the effective exercise of the agency's functions. Further, for completeness I note that it is my view that clause 1(f) to the table of section 14 of the GIPA Act applies to each of the withheld documents. This is the case in addition to the findings that I have made with respect to clauses 1(d), 3(a) and 3 (b) of the table.
11. In my view, this consideration is to be given significant weight.
12. With respect to the remaining withheld information, it is necessary that I undertake a balancing exercise in relation to the considerations in favour of release of the information and those considerations against release. I consider that greater weight should be attributed to the considerations against release.
13. On balance, I am not satisfied that the public interest considerations in favour of disclosure of this information outweigh those considerations against disclosure.
14. Accordingly, the Respondent's decision to refuse to release this information is affirmed.

Conclusion

1. In regard to the dismissal application, I am not satisfied that the matter should be dismissed pursuant to section 55(1)(b) of the NCAT Act as frivolous or vexatious or otherwise misconceived or lacking in substance. In matters where an applicant does not know the content of withheld information, to some extent their case is always going to be speculative. While the Applicant has not succeeded in the matter, her case was not totally without merit.
2. I have formed the view that current and preferable decision is that the information that has been withheld should not be released. It follows that the redetermination decision should be affirmed.

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 2023