EIF v Legal Aid New South Wales

The Hearing

1. On 13 August 2019, the Tribunal ordered pursuant to s50 of the New South Wales Civil & Administrative Tribunals Act 2013 (the NCAT Act) that the matter was to be decided on the papers without the parties present.

The legislative regime

1. Section 5 of the GIPA Act provides: '5 Presumption in favour of disclosure of government information There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.'
2. This Tribunal has jurisdiction to conduct a review of a reviewable decision made under s.100 of the GIPA Act, read with s28 of the NCAT Act and s9 of the ADR Act.
3. In reviewing a decision of the respondent, the Tribunal may on application undertake an administrative review of that decision and determine the correct and preferable decision, having regard to any relevant factual material before it and any applicable written or unwritten law: s. 63 of the ADR Act.
4. When determining an application under s.63 of the ADR Act, the Tribunal may (see s.63(3)): (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. The time at which the Tribunal determines the correct and preferable decision is the date and time that the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247, at [55].
5. 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 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. (3) The information commissioner can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies.
6. Section 13 of the GIPA Act provides a public interest test as follows: 13 Public interest test There is an 'overriding public interest against disclosure' of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
7. Section 14 of the GIPA Act provides the following in terms of public interest considerations against disclosure: 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. (3) …
8. The respondent submits the following public interest considerations against disclosure of the information sought apply, and are identified in clauses 1(d), (f) and (g) and 3(a) and (b) in the table of section 14.
9. Clauses 1(d), (f) and (g) provide: '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 function. (g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence'
10. Clauses 3(a) and (b) provide: '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, and (b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1988 or a health privacy principle under the Health Records and Information Privacy Act 2002 …'
11. Further, in relation to document 64, the respondent submits that Clause 5 of Schedule 1 of the GIPA Act applies: '5 Legal professional privilege (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege) unless the person in whose favour the privilege exists has waived the privilege. (2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause. (3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5.'
12. Section 55 of the GIPA Act 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 ('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 information concerned could reasonably be expected to have any of the effects referred to in clauses 2 to 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 enquire into, or verify claims made by an access applicant or any other person about, personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person.'

Other Relevant Legislation

1. The Legal Aid Commission may establish panels of private legal practitioners to provide legal services to persons in receipt of Legal Aid (see Legal Aid Commission Act 1979 (the LAC Act), s50(1) (read with s4(1), definition of 'legally assisted person'). The Legal Aid Commission can establish panels for matters of a particular type or class (s50(3) of the LAC Act). Legal practitioners in private practice may apply for appointment to a panel under s51 of the LAC Act to be assigned work in the area relating to that panel. A practitioner must enter into a legal services agreement with the respondent to undertake such work, s52(3) of the LAC Act.
2. The respondent is able to set up a monitoring committee pursuant to s52A(1) for the purposes of monitoring service provision agreements. S52A of the LAC Act relevantly provides: '(3) If a legal practitioner appears to have breached a service provision agreement, the Commission or the monitoring committee may give written notice to the legal practitioner of the apparent breach and direct the legal practitioner to provide a written response to the monitoring committee by way of explanation. (4) After a legal practitioner has provided a written response to the monitoring committee or, after having been given a reasonable opportunity to provide a written response to the monitoring committee, has failed to do so, the monitoring committee may recommend to the Commission: (a) that the legal practitioner be removed from the panel, or (b) that no work be assigned to the legal practitioner for a period of between 3 months and 2 years, or (c) that no further action be taken. (5) A recommendation under subsection (4) may be unconditionally or subject to conditions. (6) On receipt of a recommendation from the monitoring committee, the Commission is to determine what action (if any) should be taken in respect of it.'
3. In addition, s51(5) of the LAC Act provides: '(5) The Commission may not: (a) refuse to appoint a legal practitioner to a panel for which the legal practitioner has made application, or … (c) suspend or remove a legal practitioner from a panel otherwise than at the legal practitioner's request, unless the Commission has given written notice to the legal practitioner of its reasons and has given the legal practitioner a reasonable opportunity to be heard in relation to the proposed refusal or removal.'
4. In relation to the interaction between GIPA Act and the Privacy and Personal Information Protection Act 1998 (the PIPA Act) the following is apposite. To 'reveal' information means to disclose information that has not already been publicly disclosed: section 4, clause 1 of the PIPA Act. 'Personal information' means information or an opinion about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion: schedule 4, clause 4(1).
5. Disclosure of personal information can contravene s18(1) of the PIPA Act which provides: 18 Limits on disclosure of personal information (1) A public sector authority 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 concern 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 other 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.

Documents before the Tribunal

1. The applicant has filed written submissions received 19 September 2019.
2. The respondent relies upon an Affidavit of Ms Theodora Dimos sworn 10 July 2019 and written submissions filed 10 July 2019 and written submissions in reply filed 11 September 2019.
3. The Affidavit of Ms Dimos has been tendered in two forms. The first is an open copy; the second is a confidential Affidavit in which the respondent seeks an order pursuant to s107(3) of the GIPA Act to deny access to that material to both the public and the applicant. A further bundle of the 6 documents in dispute has also been filed and marked "Confidential".

Evidence of Ms Dimos

1. Ms Dimos is the Manager, Professional Practices Branch (PPB), in the respondent's grants division. She has been employed by the respondent since 1984 and has been in her current role since 2001.
2. Ms Dimos sets out that PPB is responsible for managing the respondent's statutory functions with respect to private legal practitioners appointed to Legal Aid Panels (panel lawyers) under Division 2 of Part 3 of the LAC Act.
3. The PPB manages the process of appointing legal practitioners to panels under s51 of the LAC Act. In addition, the PPB carries out audits of panel lawyers under s52B and investigates serious complaints made about panel lawyers. Apparent breaches of service provision agreements are also referred to the monitoring committee which is established under s52A(1) of the LAC Act. Ms Dimos says she is familiar with the complaints management process and the conduct of investigations by the PPB into complaints about panel lawyers.

The General Complaints Process

1. The PPB undertakes auditing processes (under s52B of the LAC Act) and monitors publicly available information such as the Legal Services Commission Disciplinary Register, to identify any issues requiring further information with respect to panel lawyers. In addition, information is received by PPB from persons within and outside the respondent about potential issues concerning panel lawyers. This can include internal staff, external legal practitioners, judicial officers and clients.
2. Upon the PPB receiving a serious complaint, or being notified of a potential serious issue, the PPB conducts an initial assessment to determine whether further investigation is warranted. Where the PPB decides to proceed with an investigation it will often include an audit of the panel lawyer's files or obtaining objective material such as court transcripts, correspondence or online data records. Where a complaint appears to be substantiated, the PPB will often request further information on the basis of questions being put to the panel lawyer.
3. Ms Dimos says that, as a general proposition, complaints or concerns about panel lawyers are treated by the PPB confidentially. The respondent generally considers complaints or referrals of issues by staff within the agency to be confidential, unless the staff member says otherwise. As a result, Ms Dimos says that employees have an expectation that complaints or concerns will be treated confidentially. Where a complaint is made by an external source, unless already indicated, an officer within the PPB or another member of the respondent's staff may follow up with a complainant to ascertain their position about confidentiality concerning the complaint. By the respondent relying on material such as court transcripts, the PPB can convey the substance of a complaint or concern to the relevant panel lawyer and not necessarily disclose the identity of the person who brought the matter to the PPB's attention.

The Complaints Process with respect to the Applicant

1. Ms Dimos sets out that the applicant was appointed to the General Criminal Law Panel on 25 July 2013 for a period of 2 years and executed a service provision agreement on 15 August 2013. She was reappointed to the General Criminal Law Panel on 30 October 2015 for a period of 5 years. A further service provision agreement was executed on 11 November 2015. The applicant was also appointed to the Indictable Criminal Law Panel, the General Family Law Panel and the General Civil Law Panel between 2013 and 2018.
2. Ms Dimos' Affidavit annexes the correspondence passing between the applicant and the respondent with respect to complaints concerning a number of matters in which the applicant was acting for clients described as the FFF, PPP, BBB and KKK matters.
3. The applicant answered questions asked of her in relation to the respondent's investigations concerning her conduct as a panel lawyer. Ultimately, on 14 June 2019, the CEO of the respondent wrote to the applicant and advised her that he was considering removing her from all Legal Aid Panels. The CEO requested a response from the applicant by 21 June 2019. On 20 June 2019 the applicant provided a response and at the time of writing the Affidavit the CEO had not made a final decision.

The FFF and PPP matters

1. Ms Dimos states that the complainants in the PPP matter communicated concerns to the respondent on 14 November 2013. Whilst the complainant's email does not contain a statement about confidentiality, an officer of the respondent on 26 November 2013 called the complainant to discuss confidentiality. The claimant did not agree to the complaint being released and the respondent's officer informed the complainant that it would not take any steps that would involve disclosure of the complaint to the applicant unless consent was forthcoming.
2. The complainant in the FFF matter included in the email to the respondent in April 2015 'In confidence for purpose of the professional practice complaint'.
3. Ms Dimos states that at all times the FFF and PPP complaints have been treated by the respondent confidentially. The complainants' names and information about the complaint have at all times been restricted to persons within the PPB and the Director of the grants division.
4. Annexed to the respondent's submissions in reply, is a letter from Gilbert & Tobin, Solicitors, dated 11 September 2019. The said solicitors act for the complainant in the FFF and PPP matters. The solicitors set out that the complainant supports the respondent's decision to refuse disclosure of the information sought by the applicant for reasons set out in the respondent's submissions. In addition, four matters are also cited as further reasons against disclosure, including: '(a) the referrals to Legal Aid New South Wales occurred on a strictly confidential basis, and our client considers any disclosure made by the respondent of those referrals and of our client's identity would be a breach of confidence; (b) our client has never consented to disclosure of the referrals in question or of any details that may reveal their identity to the applicant; (c) our client considers that disclosure of the referrals and their identity may result in damage to their professional relationships and expose them to social and professional "backlash" as identified at paragraph [29] of the Affidavit of Theodora Dimos dated 10 July 2019; and (d) our client notes that under s18(1)(a) of the Privacy and Personal Information Protection Act 1998 (NSW) (PIPA Act), disclosure of personal information must not be made by a public sector agency unless 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. Our client objects to the disclosure of their personal information.'
5. The solicitors conclude by stating there is no prejudice to the applicant in refusing to disclose the information sought and that their client reserves all rights pursuant to s104 of the GIPA Act to seek and appear to be heard in proceedings should their client be aggrieved by the Tribunal's decision.

The BBB matter

1. On 8 January 2018, the respondent was notified by an email to the PPB regarding Ms Story applying for extensions to a grant of Legal Aid in the matter of BBB. Whilst not classifying this email as a conventional complaint, the officer referred the matter to the PPB as an issue that arose on the face the respondent's file from Ms Story's own applications to the grants division.
2. Ms Dimos sets out that legal practitioners within Legal Aid operate in the general context of confidentiality and client legal privilege. By conducting the agency's business in such a way, confidentiality encourages staff to report concerns to the PPB. Ms Dimos says that it is the expectation by officers within Legal Aid that any serious complaints or concerns regarding panel lawyers, especially where such concerns arise in the context of legal services being provided, the complaints will be treated confidentially. Ms Dimos states that the information contained in this email (8 January 2018) has at all times been treated in confidence.

The KKK matter

1. An email of 7 March 2016, between the complainant and Counsel seeks advice with respect to sentencing proceedings. The email was sent to the grants division within Legal Aid for consideration concerning the issues outlined therein. An officer within the grants division forwarded the email to the PPB for consideration.
2. Ms Dimos deposes that the expectation of the officers within the respondent is that any complaints or concerns regarding panel lawyers will be treated confidentially and at all times the PPB has treated the email of 7 March 2016 in confidence.

Effects of Disclosure

1. Ms Dimos says that the disclosure of verbatim complaints and the identity of complainants without their consent could have a detrimental effect on the ability of the PPB to obtain such information in the future. The PPB relies on the voluntary disclosure of concerns by internal staff and those external to the agency to raise concerns. She says that often in regional communities there is a small pool of practitioners, and if one practitioner makes a complaint or brings a particular matter to the PPB's attention about another practitioner, there is a high likelihood that the two practitioners may need to work against or with each other in the future. There is a concern that individuals would be much less likely to come forward if they consider that there is a risk their identities could be released by the PPB in making similar complaints in the future.
2. The PPB is reliant upon individuals notifying it of legal practice anomalies without fear of their information being publicly disclosed. Specifically she states 'Legal Aid is heavily reliant on receiving such communications in order to effectively carry out Legal Aid's statutory functions with respect to Panel Lawyers. The PPB relies on being notified of concerns to be able to address any issues regarding the delivery of legal services.'
3. On 8 July, Ms Cherie Pittman, Manager Inhouse Counsel Unit at Legal Aid New South Wales, emailed the KKK complainant to notify of this application. The complainant responded to Ms Pittman with words to the effect of 'I do not want to be embroiled in recrimination.' However, the complainant conceded that the emails could be released to the applicant.
4. Ms Pittman emailed the BBB complainant to notify of the NCAT proceedings, however, no response has been received.

Submissions of the Applicant

1. The applicant consents to the Affidavit of Ms Dimos remaining confidential. However, she seeks that the entire contents of that Affidavit be disclosed to her but not released to the public. The applicant refers to the objects of the ADR Act and principles of natural justice seeking an order that the respondent be compelled to provide the confidential information redacted in Ms Dimos' Affidavit.
2. The applicant says that in the matters of PPP, FFF, KKK, BBB and Buxton, those matters have been resolved and s13 considerations do not apply. It is further submitted that s14 considerations also do not apply as there would be no detriment or disadvantage to the respondent as discussed in Commissioner of Police & New South Wales Police Force v Camilleri [2012] NSWADTAP 19 as the matters that were that the subject of the complaint were 3 or 4 years old and now finalised. The applicant says the facts of Commissioner of Police & New South Wales Police Force v Camilleri can be distinguished as they relate to complaints to ICAC, which is a very different situation to the matters subject to this complaint. The applicant makes similar submissions in terms of clauses 1(d) and (f) as set out in the table at s14 of the GIPA Act. She says that all matters considered by the respondent in terms of the substantive complaints have been finalised and the provisions are not activated. The applicant further submits that clause 1(d) and (f) of s14 of the GIPA Act should be read in line with the overarching purpose of the Act as set out in s5 and that the situation subject to this Tribunal's determination does not afford the protection of Schedule 1 of the GIPA Act.
3. The applicant submits there is no evidence that if there was disclosure there would be a failure of interested or aggrieved parties to make complaints in future to the respondent. She says that an accused is entitled to know who their accuser is and this is a basic principle of law and of natural justice. The applicant goes on to contrast complaints being made to bodies such as the Law Society and the Legal Services Commissioner where a person subject to a complaint has disclosed to them the details of the complainant. The applicant sets out that a panel lawyer is not an employee of the respondent and cases such as Williams v Department of Industry and Investment (NSW) (2012) NSWADT 192 can be distinguished as they relate to alleged internal misconduct of an employee. Similarly, MJ v Department of Education and Commerce (2013) NSWADT 213, McInnes v NSW Department of Education and Communities (2013) NSWADT 219, Robinson v Department of Health (2002) NSWADT 222 and Burke v Health Education and Training Institute (2016) NSWCATAD 194, all relate to employees of the respective respondent. The applicant submits that these cases can be distinguished on the basis that she is not an employee of the respondent.
4. In respect of the matters contained in clauses 3(a) and (b) of s14 of the GIPA Act, the applicant submits the respondent's submissions are baseless. She says legal professionals are meant to behave with professionalism at all times and the submissions of the respondent relate to situations where there is an ongoing employment relationship. The applicant says this is not the case in relation to complaints made by third parties, clients or Legal Aid staff against a person who is accused of lack of professional conduct and who is not an 'employee' by any definition of the word.
5. Generally, the applicant submits that she cannot properly answer a complaint made against her if there is no information as to how the complaint arose and the substance of that complaint. She says it is easy to ascertain from the documentation who the complaint makers were and no action has been taken by her in relation to this as it would be unprofessional. She says the concerns regarding disclosure of personal information are baseless when regard is had to the fact that disclosure was eventually made by the encouragement of this Tribunal at a case conference.
6. The applicant refers to the dire consequences upon her financial viability and reputation in being unable to continue as a Panel Lawyer for the respondent. She complains that the bar would appear to be 'infinitum' and she has not been granted procedural fairness in this regard.

The Submissions of the Respondent

1. The respondent submits that the Tribunal should affirm its decision to refuse access in full to the complainants being found in documents 13, 49, 51, 57, 64 and 67. It says the public interest considerations against disclosure identified in clauses 1(d), (f), (g) and 3(a) and (b) in the table to s14 apply. Further, clause 5 of Schedule 1 of the GIPA Act applies to document 64, in that it is a communication between an inhouse lawyer of the respondent requesting legal advice from counsel in relation to sentencing proceedings, which was forwarded by the lawyer to the grants division for consideration.
2. In relation to clause 1(d) and (f), the respondent submits that the PPB handles serious complaints and concerns about Panel Lawyers pursuant to an expectation of confidentiality. The PPB treats complaints or grievances by Legal Aid employees confidentially and says that employees expect such confidentiality. Specifically in relation to the BBB, FFF, KKK and PPP matters, consent for disclosure of confidential information has been refused.
3. When examining the first limb of clause 1(d), the respondent refers to Williams v Department of Industry and Investment and MJ v Department of Education and Commerce and notes that whilst lawyers are not employees of Legal Aid, in light of the functions of both the respondent and the monitoring committee under Division 2 of Part 3 of the LAC Act, the same considerations apply. It says that the nature of information contained in the complaints and the circumstances of disclosure indicate that information was provided in confidence to the PPB: see MJ v Department of Education and Commerce at [70].
4. In relation to the second limb of clause 1(d), the question as to prejudice is to be determined at a broader operational level rather than with respect to a specific complaint. Ms Dimos states that disclosure of complaints could have a detrimental effect on the ability of the PPB to obtain such information in the future and that disclosures by staff and non-staff are voluntary and important to the PPB's role of monitoring and managing serious complaints about Panel Lawyers. The respondent relies upon the decision of McInnes v NSW Department of Education and Communities in that the Tribunal considered the importance of confidentiality where an agency relies on voluntary participation.
5. Further, the respondent relies upon the decisions of Robinson v Department of Health (2002) NSWADT 222 at [71] and Alexander v University of Sydney (2008) NSWADT 214 at [33]-[35] where the Tribunal held the importance of maintaining confidential communications to ensure the effective performance of an agency's investigative functions. The respondent submits that the Tribunal should accept the 'natural implication' that the disclosure of the complaints in this matter is likely to adversely affect the future flow of information.
6. The third limb of clause 1(d) involves consideration of the effect of disclosure on the agency's function. The respondent provides legal services to disadvantaged and vulnerable persons in the community. In regional areas the respondent assigns work to Panel Lawyers. To ensure appropriate persons are assigned to this kind of work the PPB handles serious complaints about Panel Lawyers and investigates compliance with the service provision agreements.
7. The respondent relies upon Ms Dimos' evidence that the respondent depends on voluntary disclosures by staff and other persons to ensure that complaints and potential breaches of service provision agreements can be brought to the PPB's attention. Disclosure of verbatim complaints and the identity of complainants will have, in the respondent's submission, a detrimental impact on the willingness of individuals to come forward and notify the PPB of concerns with respect to the conduct of panel lawyers.

Clause 1(g)

1. In relation to documents 13, 49 and 51 relevant to the PPP and FFF complaints, the respondent submits that the documents were given to the PPB in confidence. In that regard it repeats most of the submissions made with respect to 1(d) and (f) above and submits that consideration against disclosure is engaged.

Clauses 3(a) and (b)

1. The respondent relies on McKinnon v Blacktown City Council [2012] NSWADT 43 at [73], where the Tribunal held that information and opinions about the conduct of employees or contractors or of the agency in the course of undertaking their duties was 'personal information' within the meaning of the GIPA Act. The respondent submits that this section is relevant and cites clause 3(a) in that the disclosure of the complainants would reveal the identity of them, the fact that those persons made complaints about or referred concerns to the PPB, and the opinions expressed by the complainants with respect to the applicant's conduct. As such, disclosure of the complainants it is said by the respondent would reveal their personal information.
2. Further, it says that the provisions of s18(1) of the PIPA Act apply and none of the exclusions found at 18(1)(a) and (2)(c) are engaged.
3. The respondent acknowledges that there is a general public interest consideration in favour of disclosure of government information and that I may take into account the personal factors of the applicant, acknowledging that the applicant has a personal interest in disclosure because she is the subject of the complaints. However, when undertaking an exercise of weighing the public interest considerations the respondent submits that no (or very little) weight should be given to the personal factors of the applicant in this case. This is because, in the respondent's submission, disclosure of the complaints is not necessary to fulfil its procedural fairness obligations.
4. The respondent relies on a decision of Mason J in Kioa v West (1995) 159 CLR 550 (Kioa) at 582 where the following was said: 'Generally speaking, procedural fairness entitles a person 'to know the case sought to be made against him and to be given an opportunity of replying to it'. However precise content of the obligation is not fixed; Kioa at 615 (Brennan J), Gageler J in CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 at [367]: Procedural fairness as implied in some contexts can have a flexible, chameleon-like, content capable of varying according to the exigencies of the existing power between nothingness at one extreme and a full blown trial at the other. To imply procedural fairness as a condition of the lawful exercise of a statutory power is therefore not necessarily to require a hearing in every case in which the power might be exercised. Ordinarily, procedural fairness does not require providing a person whose interests are likely to be affected by an exercise of statutory power any greater opportunity to be heard than his reasonable in all the circumstances.'
5. The respondent submits that it follows that the scope of the obligation to provide procedural fairness may be informed by the rights afforded to other persons within the context of a particular administrative decision.
6. The respondent goes on to make the following submission which I set out below: 'In Burke v Health Education and Training Institute [2016] NSWCATAD 194, the Tribunal considered an application for access to information about a workplace investigation. The applicant was a subject of that investigation. The applicant submitted that disclosure of information about the allegations and investigation was required in order to correct a failure by the agency to afford him procedural fairness. The Tribunal accepted that the fulfilment of procedural fairness requirements may be a relevant public interest weighing in favour of disclosure to the person the subject of an investigation; at [44]. However, the Tribunal considered the applicant to be under a 'misapprehension' that 'rules of procedural fairness required the respondent to provide him with all the information it had concerning allegations against him (including witness statements); at [43]. By reference to Kioa, the Tribunal noted that '[P]rocedural fairness ordinarily requires only that he be provided with adverse information that is credible, relevant and significant to the decision to be made'; at [43]. The Tribunal concluded that the evidence did not support a finding that the rules of procedural fairness require a disclosure of information the subject of the access application. However, the Tribunal also observed that it must be cautious in making such findings, because its function in reviewing decisions under the GIPA Act is not to undertake a 'collateral review of the merits or validity of official action'; at [45].'
7. The respondent submits that all credible, relevant and significant information has been provided to the applicant. It says that the applicant has been provided details of the apparent breaches according to s52A(3) of the LAC Act, accompanied by supporting documentation, including Court transcripts, extension applications and correspondence.
8. In conclusion, the respondent submits that significant weight should be given to the considerations against disclosure as found in clauses 1(d) and (f) and 3(a) and (b) and that moderate weight should be given to the consideration against disclosure in clause 1(g). In doing so the respondent submits that the public interest considerations against disclosure outweigh those in favour of disclosure and its decision under review should be affirmed.

Consideration

1. There is no dispute that the documents which are the subject of the scope of this review relate to those marked 13, 49, 51, 57, 64 and 67 in the confidential bundle. The Tribunal has jurisdiction to review the decision of the respondent not to release those documents to the applicant. The decision under review is the decision taken by the respondent on 14 June 2019. There is no dispute that the Tribunal has jurisdiction to review that decision.

Affidavit of Ms Dimos

1. The respondent seeks an order pursuant to s107(3) of the GIPA Act for the Tribunal to receive this material in the absence of the public and the applicant. The applicant seeks that the entire contents of the Affidavit of Ms Dimos be disclosed to her but not to the public.
2. I have considered the discretion to be exercised which is found pursuant to section 107 of the GIPA Act. It is my view that it is necessary to make an order that that part of Ms Dimos' Affidavit which has been marked confidential not be disclosed to the applicant, or to the public, as there is an overriding public interest against disclosure.
3. Generally, the applicant in her submissions refers to her removal as a panel lawyer with the respondent. In administrative review proceedings under the GIPA Act, the role of the Tribunal is not to review the respondent's decision to remove the applicant from its panel. The obligation of the Tribunal is to undertake a review of the agency's decision to refuse access to information to the applicant and determine the correct and preferable decision that ought to be made in that regard.
4. Each of the clauses relied upon by the respondent in refusing the disclosure of information to the applicant, namely, 1(d) and (f) and (g) and 3(a) and (b) of the table found at s14 of the GIPA Act, require a consideration of whether disclosure of the information 'could reasonably be expected to' have one or more of the effects set out in the relevant clause. The Tribunal has previously considered the words 'could reasonably be expected to' as to mean 'something which is more than a mere risk or chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived'; Leech v Sydney Water Corporation [2010] NSWADT 198 at [28], adopted in Flack v Commissioner of Police, New South Wales Police Force (2011) NSWADT 286 at [41]-[42]. While there must be a 'real' risk, the chance of it materialising need not be more probable than not - Neary v State Rail Authority [1999] NSWADT 107 at [35]-[36]. An objective assessment must be undertaken by the Tribunal on the evidence before it as to whether the claimed effects could be expected to arise from the standpoint of a reasonable administrator. This ultimately is of course a question of fact; see Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45].

Clause 1(d) and (f) - prejudice a supply to an agency of confidential information that facilitates the effective exercise of the agency's functions and prejudice the effective exercise by an agency of the agency's functions.

1. The test in 1(d) is whether the agency will be able to obtain such confidential information from relevant persons in the future if the information which is the subject of the administrative review is disclosed - Selby v Commissioner of Police. The Tribunal in Collins v Department of Finance, Service and Innovation (2018) NSWCATAD 60 at [61] cited the three steps the Tribunal should consider in determining the application of clause 1(d). The first being that the information was obtained in confidence, the second the disclosure of information could reasonably be expected to prejudice the supply of information to the agency in the future and, third, the information facilitates the effective exercise of the agency's function. Clause 1(f) relates solely to the reasonably expectation of prejudice to the effective exercise of the agency's functions concerning the information sought to be disclosed.
2. In determining the first limb 'confidential information' the Appeal Panel in Commissioner of Police & New South Wales Police Force v Camilleri said: is to 'be examined, primarily at least, by the relevance to the agency's evidence as to the conditions under which it conducts a service within which the information was received.' The inquiry 'should focus on the point of receipt, and the administrative standards and community understandings which surrounded it'.
3. I accept the respondent's submission that the PPB handles serious complaints made to it where there is a reasonable expectation by the complainants that the information provided will be confidential. At paragraph 22 of Ms Dimos' Affidavit the complaint in relation to the FFF matter is stated is made in confidence. At paragraph 22 of Ms Dimos' Affidavit the information contained in the PPP complaint was that the complainant did not agree to the disclosure. Indeed, in the letter received from Gilbert & Tobin, Solicitors, who act on behalf of the complainant in the FFF and PPP matters, it states 'Their referrals to Legal Aid New South Wales occurred on a strictly confidential basis, and our client considers any disclosure made by Legal Aid New South Wales of those referrals and of our client's identify would amount to a breach of confidence'. In relation to the BBB and KKK matters, the PPB's investigations arose as a result of an internal referral. Ms Dimos at paragraphs 25 and 28 of her Affidavit set out the expectation of officers within the respondent that any complaints or concerns regarding, amongst other things, Panel Lawyers, will be treated confidentially. I note the comments of the complainant in the KKK matter regarding disclosure of confidentiality, however in my view this does not outweigh the general expectation of confidentiality referred to by Ms Dimos.
4. The applicant submits that the Tribunal should distinguish the cases of MJ v Department of Education and Commerce, McInnes v NSW Department of Education and Communities, Robinson v Department of Health and Burke v Health Education and Training Institute as she is not an 'employee' and therefore the authorities should not be applied. I reject her submissions in this regard. It is accepted that panel lawyers are not employees of the respondent. However, in considering the functions of the respondent as set out in Division 2 of Part 3 of the LAC Act, the same considerations apply in my view. The respondent can assign work to panel solicitors and in doing so place conditions on members of panels, investigate breaches of service provision agreements and undertake audits with respect to the work carried out by those panel lawyers. Those functions are analogous in my view to the way in which information is provided relevant to investigations with respect to what could be expected of an employee/employer relationship as discussed in Williams v Department of Industry and Investments and MJ v Department of Education and Commerce. I accept that the effective exercise of such functions are based on complaints being made voluntarily, and that the making of the complaint and any action taken in regard thereto, should remain confidential.
5. The second limb of clause 1(d) relates to prejudice. 'Prejudice under the GIPA Act has been held to have its ordinary meaning, that is, 'to cause detriment or disadvantage' or 'to impede or to derogate from'; see Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60]. Clause 1(d) is concerned with the future supply of confidential information, in determining whether disclosure would prejudice the supply of information. The test is not whether the particular person would, in future, refuse to supply that information but whether information of the kind in question facilitates the exercise of the respondent's functions, and, where the disclosure of such information could reasonably be expected to prejudice the supply of such information; see Flack v Commissioner of Police, New South Wales Police (2011) NSWADT 286 at [52]. Prejudice is to be determined at a broader operational level and whether disclosure of the type of information would impair the general ability of the agency to obtain that type of information in the future - Commissioner of Police & New South Wales Police Force v Camilleri.
6. The respondent is not necessarily required to provide direct evidence from the providers of relevant information in order to satisfy the Tribunal that clause 1(d) is engaged; see Transport for New South Wales v Searle at [61]-[65]. The following was said about matters the Tribunal may have regard to in examining the application of clause 1(d): 'The considered and understandable confidentiality to the process, the rationale for such confidentiality and the natural implication for future supply if such confidentiality was to be undermined' - see Transport for New South Wales v Searle at [63].
7. I accept Ms Dimos' evidence in terms of her experience in processing complaints within the respondent's PPB Division. She is aware of concerns of the complainants and the requests for confidentiality. She states that disclosure of complaints could indeed have a detrimental effect on the ability of the PPB to obtain similar information in the future. Ms Dimos states that disclosures by staff and non-staff are very important contributions to the PPB's role of monitoring and managing serious complaints about panel lawyers. The inability of the PPB to ensure confidentiality in this regard, in my view, is vitally important to it facilitating the exercise of its function. Disclosure of such information, in my view, could reasonably be expected to prejudice the supply of that information in the future. The absence of the various sources of confidential information obtained by the respondent to investigate complaints would, in my view, compromise its ability to continue to conduct investigations in a fair and effective manner in the future - see Alexander v University of Sydney (2008) NSWADT 214 at [33]-[35].
8. The third limb in considering the application of clause 1(d) involves an evaluation of the effect of disclosure on the agency's functions. Ms Dimos clearly sets out the reliance by the respondent on voluntary disclosures by staff and non-staff members regarding its investigations concerning panel lawyers. She says that without these disclosures, potential breaches of service provision agreements would not be brought to the PPB's attention. I accept her unchallenged evidence. I find that the respondent would not reasonably be able to carry out its functions effectively should the disclosure of verbatim complaints and the identity of complainants not remain confidential. The prejudice which flows from such disclosure, in my view, would significantly negate the effective exercise of its function. In these circumstances, disclosure of this information would reasonably be expected to prejudice the effective exercise of the respondent's functions and in so finding clauses 1(d) and (f) apply.

Clause 1(g) - found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence.

1. The respondent submits that the PPP and FFF complaints (documents 13, 49 and 51) were given to the PPB in confidence. I have taken into consideration the letter from Gilbert & Tobin which relates to the complainant in the FFF and PPP matters. I find that the criteria in clause 1(g) is engaged. In my view, there is public interest against disclosure of the information contained in those documents on the basis that the disclosure of the information provided to the agency was in confidence.

Clauses 3(a) and (b) - reveal an individual's personal information, and contravene an information protection principle under the PIPA Act.

1. I find that disclosure of the complaints would, reveal the identity of the complainants, the facts and circumstances that those persons made complaints about or referred the complaints to the PPB. The opinions expressed by the complainants with respect to the applicant's conduct is also contained in that information. In applying the decision of McKinnon v Blacktown City Council, the Tribunal held that information and opinions about the conduct of employees or contractors of the agency in the course of undertaking their duties was 'personal information' within the meaning of the GIPA Act. The personal information has not been publicly disclosed and disclosure to the applicant would 'reveal' the individual's personal information; see Schedule 4, clause 1 of the GIPA Act.
2. I also find that the personal information would contravene s18(1) of the PIPA Act. As referred to above, I accept that the complaints were made in confidence to the respondent and, as such, should be treated confidentially by it. None of the exceptions in s18(1)(a) to (c) are engaged and the application of s18(1) applies.

Legal Professional Privilege

1. In relation to the complaint regarding the matter of KKK (document 64), the information is comprised of an email from an inhouse lawyer of the respondent seeking legal advice from counsel. I have considered s25 of the LAC Act which relevantly provides: '25 Solicitor client relationship (1) The relationship existing by virtue of this Act between a solicitor, whether the solicitor is the chief executive or a member of staff of the Commission or a private legal practitioner to whom work is assigned under this Act, and an applicant for legal aid or a person to whom legal aid is granted shall be the relationship as between a solicitor acting in the solicitor's professional capacity and in the course of the solicitor's professional employment and the solicitor's own client … (2) The like privileges as those which arise from the relationship of a solicitor acting in the solicitor's professional capacity and in the course of the solicitor's professional employment and the solicitor's own client shall arise between the Commission or a committee established under this Act and an applicant for legal aid or a person to whom legal aid is granted.'
2. It is evident to me that the person in whose favour privilege exists is Mr KKK. Mr KKK has not waived privilege in any way which would be inconsistent with the maintenance of privilege. As document 64 is a communication between two or more lawyers, who are acting for the dominant purpose to provide legal advice, I am satisfied that the communication is subject to such privilege. As such, I am satisfied that there is an overriding public interest against disclosure. In my mind s25 clearly addresses the relationship between the various functions to be carried out within the respondent and how those functions relate to the application for legal professional privilege.

Personal factors

1. The applicant makes various submissions as to whether she has been afforded procedural fairness in the complaint handling process by the respondent. Considerations of procedural fairness relate solely to the personal factors of the applicant which can be taken into consideration by the Tribunal as a consideration in favour of disclosure. I have considered the applicant's submissions in this regard. I have considered the reasoning in Kioa and the associated cases. Indeed, the verbatim complaints and identity of complainants are not mandatory factors to be disclosed to the applicant to afford procedural fairness in understanding the complaint being made against her - see Kioa. I have placed limited weight on the applicant's submissions concerning this aspect as being a factor which weighs in favour of the public interest consideration in disclosing the information sought.
2. In weighing the public considerations against disclosure, on balance, the consideration concerning clauses 1(d) and (f) and (g) outweigh the public interest considerations in favour of disclosure. Similarly, I make the same findings in relation to clauses 3(a) and (b).

Document 13

1. I am satisfied, having reviewed the contents of this document that clauses 1(d) and (f) and (g) and 3(a) and (b) apply to this document.

Document 49

1. I am satisfied, having reviewed the contents of this document that clauses 1(d) and (f) and (g) and 3(a) and (b) apply to this document.

Document 51

1. I am satisfied, having reviewed the contents of this document that clauses 1(d) and (f) and (g) and 3(a) and (b) apply to this document.

Document 57

1. I am satisfied, having reviewed the contents of this document that clauses 1(d) and (f) and 3(a) and (b) apply to this document.

Document 64

1. I am satisfied, having reviewed the contents of this document that clauses 1(d) and (f) and 3(a) and (b) apply to this document. I am satisfied, having reviewed the contents of this document that the application of Clause 5 of Schedule 1 applies.

Document 67

1. I am satisfied, having reviewed the contents of this document that clauses 1(d) and (f) and 3(a) and (b) apply to this document.
2. The decision of the respondent which is subject to this review application is affirmed.

Order 1. The decision of the respondent made 14 June 2019 is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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 14 May 2020 - Non publication of names 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: 14 May 2020