Ganley v Northern Sydney Central Coast Area Health Service

CATCHWORDS: Access to documents held by an agency - confidential material

LEGISLATION CITED : Freedom of Information 1989Administrative Decisions Tribunal Act 1997

Macquarie University v Howell [2008] NSWADTAP 46 GJ v Department of Education and Training [2008] NSWADT 310 TW v TX [2005] NSWADT 262 Re Birrell & Victorian Economic Development Corporation (1989) 3 VAR 358 Re Sullivan and Department of Industry, Science and Technology [1996] AATA 610 CASES CITED: Holt & Reeves and Education Queensland [1998] QlCmr 4 McGuirk v Director General, NSW Attorney General Department [2007] NSWADT 155 McGuinness v Bathurst Regional Council [2005] NSWADT 152 WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 University of NSW v McGuirk [2006] NSWSC 1362 Cianfrano v Director General, Premier's Department [2007] NSWADT 216 University of NSW v McGuirk (No 2) [2008] NSWADTAP 8

Applicant Representative: In person REPRESENTATION: Respondent Representative: M Sullivan, solicitor

ORDERS: The decision of the Northern Sydney Central Coast Area Health Service not to release to Ms Ganley witness statements and other handwritten notes held by Mr Kilkeary is affirmed.

1 Helen Ganley has applied to the Tribunal for the review of a decision of the Northern Sydney Central Coast Area Health Service made under the Freedom of Information Act 1989 ('the FOI Act') to refuse access to documents sought by Ms Ganley on the ground that they are 'exempt documents' because they contain confidential material.

2 On 25 August 2004, Ms Ganley lodged a grievance against Andrea Taylor, the Manager of the Quality and Risk Management Unit ('QRMU') at the Royal North Shore Hospital ('RNSH') and Ryde Health Service. Ms Ganley, who was attached to the QRMU as a consultant, alleged bullying by Ms Taylor. Ms Ganley's grievance was handled by both the management of the RNSH and the Northern Sydney Area Health Service and its successor, the Northern Sydney Central Coast Area Health Service (hereafter referred to as 'the Health Service'). Ms Ganley's grievance was the subject of an external investigation conducted by Judy North of the 'OSA Group', on which Ms North prepared a report dated 22 March 2005. In that report, Ms North found that the allegations made by Ms Ganley were "not substantiated on the balance of probabilities".

3 Ms Ganley appealed against this outcome and the Health Service engaged John Kilkeary, a consultant in employment and industrial relations, to conduct a further review and submit a report. Mr Kilkeary's terms of reference were set out in a letter from Craig Landrigan, the Director of Human Resources for the Health Service, dated 16 February 2006.

4 Mr Kilkeary stated that he met with Ms Ganley in March and April 2006 and she provided him with a large number of documents. He stated that in order to make findings about the matters raised by Ms Ganley, it was necessary for him to conduct interviews with those involved. Mr Kilkeary encountered great difficulty in arranging interviews because of the reluctance of those whom he sought to interview. Ultimately, after assistance from Mr Landrigan, Mr Kilkeary was able to conduct the interviews but, in doing so, he told all the interviewees that the interview was being conducted on a confidential basis and that he would not disclose anything he was told by the interviewees without their express permission.

5 Mr Kilkeary said that because of the large number and complexity of the issues raised by Ms Ganley, he also formed the view that it would be necessary to obtain a written statement from each witness. He therefore prepared a draft statement after each interview based on his handwritten notes and any subsequent communication with the witness, and sent this to the witness for consideration, inviting amendments. Mr Kilkeary asked each witness to sign their finalised statement.

6 Mr Kilkeary had discussed the issue of confidentiality with Mr Landrigan, who agreed that while Mr Kilkeary was expected to provide sufficient supporting information to justify the observations and recommendations in his report, he was not required to provide records of the interviews conducted in the course of his investigation. Moreover, where referring to particular interviews in his report, Mr Kilkeary was required "to obtain the employee's concurrence to such matters being included in your report" (letter dated 14 November 2006).

7 Mr Kilkeary provided his report to the Health Service in December 2007 ('the Kilkeary Report').

8 On 19 December 2007, Ms Ganley applied to the Health Service for access to the following documents: "1. Final Kilkeary report and all drafts previously provided to the Area: (a) This is currently held by Craig Landrigan (b) I would like, as a matter of urgency , an electronic copy sent to me at ... (c) Please send a hard copy, by overnight mail, to my home address. (d) I do NOT require copies of the attachments which comprise the evidence I submitted to John Kilkeary. Should I subsequently require it then I will discuss this with you when I return from leave. They should be provided to me as a matter of course when I do get the report from the Area.

2. Copies of all witness statements who provided information to John Kilkeary. If these are not included in the report as an attachment then John Kilkeary will be able to supply."

9 The Health Service provided Ms Ganley with a copy of the Kilkeary Report, collected by her from the RNSH, on the basis of a direction from Mr Landrigan, contained in a letter to Ms Ganley dated 16 January 2008, "not to discuss the review with any witnesses interviewed by Mr Kilkeary", and his 'reminding' her that the review is the property of the Health Service and "any distribution of the document should be in accordance with your responsibilities in the Code of Conduct" for the Health Service. However, no determination was made in response to Ms Ganley's FOI application within 21 days, and Ms Ganley states that, on 29 January 2008, she sought an internal review of the deemed refusal.

10 Ms Ganley discussed the ambit of her FOI application with the Health Service's FOI Officer, Carol Parker. In an email to Ms Parker dated 13 March 2008, Ms Ganley said she sought access to any witness statements, including information recorded by Mr Kilkeary contemporaneously from witnesses together with his notes. In a letter to Ms Ganley dated 31 March 2008, Julie Hartley-Jones, the Director Clinical Operations of the Health Service, notified Ms Ganley of her decision to uphold the determination that the Health Service did not hold the witness statements because these were in the possession of Mr Kilkeary.

11 In April 2008, Ms Ganley lodged a complaint with the NSW Ombudsman concerning the witness statements. On 25 June 2008, an investigations officer with the Ombudsman's Office wrote to the Health Service stating the Ombudsman's view that the Health Service did hold the witness statements for the purposes of the FOI Act and that the statements should, therefore, be the subject of a formal determination by the Health Service.

12 On 25 July 2008, Wendy Hughes, the Acting Chief Executive of the Health Service, wrote to Ms Ganley notifying her of a determination not to provide the documents sought. Ms Hughes said that to provide Ms Ganley with a copy of Mr Kilkeary's handwritten notes would be a breach of the Health Service's duties to its employees. More particularly, she said that the handwritten notes and witness statements were exempt documents pursuant to cl 13(b) of Schedule 1 of the FOI Act.

13 On 8 August 2008, Ms Ganley wrote to the NSW Ombudsman seeking a review of the decision of the Health Service and other matters. By letter dated 20 October 2008, the Ombudsman notified Ms Ganley of the outcome of a review conducted by the Assistant Ombudsman. The Ombudsman said that, having reviewed the Assistant Ombudsman's advice and reviewed the file, he declined "to intervene in the decision of the AHS not to release the witness statements under FOI". On 20 November 2008, Ms Ganley applied to the Tribunal for a review of the decisions of the Health Service and the Ombudsman.

14 Since the Tribunal has no power to review a decision of the NSW Ombudsman in these circumstances, the appeal has been limited to a review of the decision of the Health Service to refuse access to the documents sought by Ms Ganley.

15 A hearing in this matter was conducted on 21 April 2009, at the conclusion of which I gave directions for the filing of further evidence and submissions by Ms Ganley and further submissions by the Health Service.

16 The objects of the FOI Act are stated in s 5, as follows: 5 Objects (1) The objects of this Act are to extend, as far as possible, the rights of the public: (a) to obtain access to information held by the Government, and (b) to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect, out of date or misleading. (2) The means by which it is intended that these objects are to be achieved are: (a) by ensuring that information concerning the operations of the Government (including, in particular, information concerning the rules and practices followed by the Government in its dealings with members of the public) is made available to the public, and (b) by conferring on each member of the public a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government, and (c) by enabling each member of the public to apply for the amendment of such of the Government's records concerning his or her personal affairs as are incomplete, incorrect, out of date or misleading.

(3) It is the intention of Parliament: (a) that this Act shall be interpreted and applied so as to further the objects of this Act, and (b) that the discretions conferred by this Act shall be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information. (4) Nothing in this Act is intended to prevent or discourage the publication of information, the giving of access to documents or the amendment of records as permitted or required by or under any other Act or law.

17 Pursuant to s 16(1) of the FOI Act, "[a] person has a legally enforceable right to be given access to an agency's documents". The term 'agency's document' is defined in s 6(1) as meaning "a document that is held by the agency". Section 6(2)(e) states: (e) a reference to a document held by an agency includes a reference to a document to which the agency has an immediate right of access and a document that is in the possession, or under the control, of a person in his or her capacity as an officer of the agency, ...

18 Section 25(1)(a) states that an agency "may refuse access to a document" if it is an "exempt document", the onus being on the agency to establish this (s 61). Section 25(4) provides that an agency shall not refuse access to an exempt document if it is practicable to give access to a copy of the document from which the exempt matter has been deleted, and it appears to the agency that the FOI applicant would wish to be given access to such a copy.

19 Section 6(1) defines 'agency' so as to include a Health Service, and 'exempt document' as including a document referred to in any one or more of the provisions of Sch 1. The exempt documents in Sch 1 include, relevantly, those specified in cl 13, cl 13(b) being the exemption relied on by the Health Service in these proceedings. Clause 13 states:

13 Documents containing confidential material A document is an exempt document: (a) if it contains matter the disclosure of which would found an action for breach of confidence, or (b) if it contains matter the disclosure of which: (i) would otherwise disclose information obtained in confidence, and (ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency , and (iii) would, on balance, be contrary to the public interest.

20 Both parties provided the Tribunal with documents pertaining to this matter. The Health Service also provided affidavits from John Kilkeary, dated 6 March 2009, and Craig Landrigan, dated 21 April 2009. Both witnesses gave evidence at the hearing.

21 Mr Kilkeary stated that he provides consultancy services in the area of employment and industrial relations, particularly in the form of independent investigations in the public sector. He undertook an investigation at the request of Mr Landrigan for the Health Service, for which he prepared a confidential report.

22 Mr Kilkeary stated that in conducting his investigation, it was necessary to interview relevant individuals, and he immediately encountered difficulties in arranging these. A number of employees initially refused to talk to him about the matter because of how they were treated in relation to the first investigation. He said his investigation proved to be one of the most emotionally charged exercises in which he has been involved. Ultimately, it was only with Mr Landrigan's assistance that he was able to interview all the witnesses, and Mr Landrigan confirmed that the Health Service would not require him to produce records of interview provided his report contained sufficient supporting information to justify his observations and recommendations. Mr Landrigan also stated that where Mr Kilkeary referred to interviews, he "was required to obtain the employee's concurrence to such matters being included in my report" (letter from Mr Landrigan dated 14 November 2006).

23 Mr Kilkeary said when interviewing witnesses, he told them the interview was being conducted on a confidential basis. After the interview, he prepared a draft statement based on his notes, which he sent to the witnesses for consideration, inviting them to amend the statement as appropriate. Mr Kilkeary said his notes not only recorded what occurred in the interviews, they also included his other observations, and notes he made for himself as an aide memoire for the purposes of his investigation. The Health Service told him that he was not required to keep his notes.

24 Mr Kilkeary said that his reputation and ability to work as a consultant would be damaged if information obtained by him in confidence were to be released. Witnesses would be reluctant to participate in interviews or provide him with information, which would adversely affect his ability to conduct such investigations.

25 Mr Landrigan stated that he is the Director of Human Resources for the Health Service, a position he has held since 1 August 2005. Mr Landrigan recalled that after engaging Mr Kilkeary to conduct an investigation into Ms Ganley's allegations in mid-February 2006, he was contacted by Mr Kilkeary on many occasions to discuss the difficulties Mr Kilkeary was experiencing in arranging interviews with witnesses. People involved in the matter felt threatened and were very reluctant to be participate in the investigation.

26 In particular, three witnesses refused to meet with Mr Kilkeary, and Mr Landrigan decided that it was necessary to assure them of the confidentiality of their discussions with Mr Kilkeary and to allow them to approve what information provided by them in the interview might be included in the report. Mr Landrigan discussed this approach with Mr Kilkeary who agreed to adopt it. Accordingly, on 13 July 2006, Mr Landrigan wrote to each of the three witnesses with this assurance. Ultimately, only one witness had to be directed by the Chief Executive of the Health Service to participate in an interview with Mr Kilkeary.

27 Mr Landrigan said he informed Mr Kilkeary that the Health Service did not require written statements obtained from witnesses to be provided in conjunction with the report. He clarified this in a letter to Mr Kilkeary dated 14 November 2006.

28 Mr Landrigan said it is the ordinary practice of the Health Service to respect the wishes of an employee who provides information confidentially. The Health Service has a duty to maintain a relationship of trust with its employees. If it were to release information obtained in confidence, this would almost certainly become known amongst the employee's internal networks, with the result that employees would cease to trust assurances of confidentiality given by the Health Service. This would seriously inhibit the ability of the Health Service to investigate workplace matters.

29 Mr Landrigan said that after the delivery of Mr Kilkeary's report, the Health Service reviewed the report to ensure that Mr Kilkeary's conclusions were supported by the detail of the report. The Health Service was satisfied that it did so, including providing protection to those involved in the matter. Mr Kilkeary did not provide copies of the confidential witness statements to the Health Service.

30 The Health Service filed an 'Outline of Submissions' on 6 March 2009 and 'Further Submissions' on 19 May 2009. During the course of the hearing, Mr Sullivan said the Health Service is no longer pressing a cl 13(b) exemption in relation to the Kilkeary Report, which has been provided to Ms Ganley. However, it maintains that the witness statements obtained by Mr Kilkeary and his written notes in relation to his investigation are exempt under this provision.

31 Mr Sullivan noted Mr Kilkeary's evidence that when interviewing witnesses, he told them that anything said to him would not be disclosed without their express permission. Thus, his notes of what was said must contain information obtained in confidence, and the witness statements he drafted based on his notes from the interviews clearly arose from the interviews, so that witnesses must be taken to have understood that both the notes and statements were confidential. This was made clear by one of the witnesses who added a notation to this effect at the conclusion of the statement. Mr Sullivan said the extent of the disclosure agreed with the witnesses was that Mr Kilkeary could rely on the witness statements in preparing his report, but would not release any statement without first obtaining the consent of the witness. He did not obtain any such consent. Mr Sullivan said the fact that the Kilkeary Report has been released to Ms Ganley does not detract from the confidentiality that continues to attach to the witness statements and Mr Kilkeary's notes.

32 Mr Sullivan referred to Mr Kilkeary's oral evidence about the emotionally charged nature of the investigation. He also referred to Mr Landrigan's evidence about the Health Service's need to balance its responsibility to employees who felt threatened by the investigation and were unwilling to participate, with its responsibility to obtain a fair outcome. This explains its motivation in permitting Mr Kilkeary to give undertakings of confidentiality.

33 Mr Sullivan referred to the decision in Macquarie University v Howell [2008] NSWADTAP 46 ('Howell'), at [77], where the Appeal Panel commented: "77. It is difficult, on first impression, to see how the Tribunal could have reached the conclusion that these documents did not contain confidential information. On an ordinary understanding, an investigation of allegations of improper conduct by an employee would involve an express or implied mutual understanding that any information would be treated as confidential. It may be that a different position applies to some of the working documents created by the investigator for his own guidance."

34 In that case, Macquarie University engaged an external consultant to investigate a complaint that a boy attending a special school run by the University had been mistreated. The documents referred to in the first sentence of the above paragraph were witness statements or file notes recording witness statements, which the Tribunal, at first instance, found were not obtained in confidence. The Appeal Panel came to a different conclusion.

35 Mr Sullivan also referred to the decision in GJ v Department of Education and Training [2008] NSWADT 310 ('GJ'), at 23, where the Judicial Member found that an obligation of confidentiality could be inferred from the circumstances in which the information was obtained.

36 Mr Sullivan noted that Mr Kilkeary had not been asked to prepare or provide witness statements to the Health Service. He submitted that, in the present case, confidentiality could be inferred from the circumstances in which the information from witnesses was obtained. Mr Kilkeary's evidence is that he told all the witnesses the interview was being conducted on a confidential basis. Moreover, the three witnesses who initially refused to participate in interviews with Mr Kilkeary were informed by letter dated 13 November 2006 that should Mr Kilkeary wish to include any information provided by them in his report, he would contact them to obtain permission to do so.

37 Mr Sullivan said the Health Service only required Mr Kilkeary to provide sufficient information to support his findings. Unlike in GJ, where the investigator was an employee, Mr Kilkeary was an independent, external investigator who was under no obligation to keep copies of the witness statements.

38 With regard to whether disclosure could reasonably be expected to prejudice the future supply of such information to the Health Service (cl 13(b)(ii)), Mr Sullivan noted Mr Landrigan's evidence of the adverse effect that release of the witness statements would be expected to have. Mr Landrigan referred to the Health Service's preference for obtaining information through the voluntary participation of employees. As in TW v TX [2005] NSWADT 262 ('TW'), it is open to the Tribunal to conclude that disclosure of the witness statements, or of Mr Kilkeary's written notes from the interviews, would prejudice the ability of the Health Service to obtain information from employees through their voluntary participation in an investigation.

39 Finally, with regard to the public interest (cl 13(b)(iii)), Mr Sullivan contended that in circumstances where the Health Service employs a large number of people who work in what are often stressful environments, it is in the public interest to be able to investigate allegations of inappropriate or unlawful behaviour through voluntary co-operation in an atmosphere of trust and confidence. Disclosure of the witness statements would be likely to inhibit such co-operation and would be contrary to the public interest. He noted that the Kilkeary Report is a detailed document and contains information in support of the conclusions reached by Mr Kilkeary. Thus Ms Ganley, who has a copy of the Kilkeary Report, knows the basis for Mr Kilkeary's conclusions; she is not in a position where she has no knowledge of the information relied on. In these circumstances, the public interest warrants the maintenance of the confidentiality of the witness statements and Mr Kilkeary's notes.

40 Mr Sullivan concluded by submitting that the cl 13(b) criteria were satisfied in this case and the witness statements should not, therefore, be released.

41 Ms Ganley provided lengthy written submissions with attachments, filed on 31 March 2009, 4 May 2009, 25 May 2009 and 26 May 2009. In her submissions filed on 31 March 2009, she described the background to this matter, which I have summarised above. Ms Ganley's submissions also provided detail as to the nature of her grievance, the Health Service's grievance procedures and how her grievance was handled, and as to a previous FOI application and investigation by the NSW Ombudsman, all of which, in my view, is not strictly relevant to the current proceedings and to which I have not therefore referred. Ms Ganley also referred to the personal affairs exemption in cl 6 of Sch 1 and to the exemption for documents affecting financial or property interests in cl 16, which were not relied upon by the Health Service and are not therefore relevant. In her later submissions, Ms Ganley ranged widely over the conduct of the Health Service in relation to her grievances, referring to many instances where, she contended, the Health Service failed to comply with its policies and those of the Department of Health. In my summary of Ms Ganley's submissions, below, I have only referred to those parts of her submissions that, in my view, are relevant to the matter under review by the Tribunal.

42 Ms Ganley said the Health Service has used the FOI process to bully and obstruct her in her quest for justice. The Health Service has not even provided a schedule of documents falling within the ambit of her FOI request, so that she has no way of knowing who did or did not provide information to Mr Kilkeary. She contended that Mr Kilkeary's position was akin to that of a public official who was subject to instructions from the Health Service. While the Health Service contends that he was under no obligation to comply with a request to produce witness statements, his reputation would be compromised if he did not have information on which he could later rely. Ms Ganley said Health Service policy is that information relating to a grievance should only be provided on a 'need to know' basis. She has such a need so that, like the Health Service, she can respond to the issues raised in the Kilkeary Report.

43 Ms Ganley said the Health Service is contractually bound by their policies to prevent harassment and bullying, to institute fair grievance procedures and to provide a healthy and safe workplace. She contends that the parties to a grievance have a right to be fully aware of all the information a manager takes into account when determining the outcome of a grievance. In this instance, she is unable to assess whether Mr Kilkeary investigated all the allegations because she does not know what he asked the witnesses. Ms Ganley said she is being denied natural justice because it is likely she has been the subject of adverse comments without knowing about it. Procedural fairness requires that a person should be informed of such adverse comments so that they can respond.

44 Ms Ganley noted that the letters attached to Mr Landrigan's affidavit bear the private addresses/email addresses of a number of individuals, which, she suggested, was contrary to the Health Service's FOI Manual. The Health Service has no problem with providing personal information without permission when it suits it. Ms Ganley said it took five months for the Health Service to provide a copy of the Kilkeary Report for the NSW Nurses Association when she asked for this.

45 Ms Ganley said the Health Service erred in affording confidentiality to witnesses while breaching its duty to her by not affording her confidentiality and using the documents she supplied without authorisation and not returning these to her when she requested this. Ms Ganley contended that the evidence provided by the witnesses to Mr Kilkeary, which was likely to be purely about work practices, was not sensitive or of a confidential nature.

46 With regard to cl 13(b)(ii), Ms Ganley said the Health Service had provided no evidence that release of information provided by an employee would become known among the employee's internal network and would prejudice the future supply of information to the Health Service. The Health Service's contentions are "vague notions" and purely speculative.

47 With regard to the public interest (cl 13(b)(iii)), Ms Ganley said there is a public interest in ensuring all parties have equal rights. She contended that the Health Service did not afford her procedural fairness. She was not afforded the same rights as the other witnesses and, without knowing the evidence upon which Mr Kilkeary based his findings and recommendations, for example as to whether he was provided with false or misleading information by witnesses, she has not had a proper opportunity to respond. There is a public interest in her being provided with all relevant information. There is also a wider public interest favouring the disclosure of information about the difficulties being experienced in an organisation, in exposing bullying, and in the public being reassured that there is no discrimination in the grievance process. Ms Ganley submitted that the public interest in disclosure of the documents sought outweighs any claim to a public interest in preserving their confidentiality.

48 Ms Ganley referred to the Tribunal's residual discretion to release documents that are otherwise exempt. She submitted there are strong grounds to justify overriding the exemption: Mr Kilkeary's meetings with witnesses were not private consultations; the public interest in exposing bullying and having an informed debate on this issue outweighs the public interest in confidentiality; and the restriction on access to the documents sought is not reasonably necessary for the proper administration of government.

49 Ms Ganley submitted that the duty of confidence is not absolute and the courts have recognised that there are circumstances where confidential material may be disclosed: for example, (1) disclosures with consent, (2) disclosures required by law, and (3) disclosures where there is an overriding public interest. Ms Ganley said she requires access to the documents sought in order to prepare evidence for her workers compensation case. With regard to the public interest, the task is to weigh "the good of society against the importance of preserving confidences" (submissions filed on 4 May 2009, p 6).

50 Ms Ganley contended that the assurance of confidentiality given to witnesses in the Kilkeary investigation was contrary to Health Service and Departmental Policy, which requires that there can be no absolute assurance of confidentiality given in relation to an investigation of grievances, and also contrary to the principles of natural justice. She said that internally generated information, such as that given by witnesses to Mr Kilkeary, who acted as an officer of the Health Service, "cannot be protected by the duty of confidence that is relied upon" (submissions filed on 4 May 2009, p 7). Ms Ganley said the Health Service culture is one of secrecy. Other reports into the management practice and organisational culture at the RNSH have "raised major concerns about the way staff grievances were managed and indicated significant bullying and harassment behaviour by managers and supervisors at RNSH" (submissions filed on 4 May 2009, p 12).

51 Ms Ganley contended that the Health Service has failed to provide her and the Tribunal with policies and other information it relies on its submissions, such as its grievance policies, and with regard to respect and dignity in the workplace.

52 Ms Ganley said the behaviour of the Health Service and some witnesses were referred to in oral evidence before the inquiry into the RNSH and are in the public domain and a matter of community concern or interest. She noted that the events in question took place some five years ago in 2004. Any adverse consequences flowing from disclosure of the documents sought are likely to be outweighed by the public benefit. For example, the adverse effect on the relationships between those involved would have already occurred.

53 Ms Ganley concluded that cl 13(b) is not satisfied and the correct and preferable decision is that the witness statements and other documents, such as Mr Kilkeary's contemporaneous notes during the course of the investigation and any documents supplied to him by the witnesses, should be released. In the alternative, documents should be released with any exempt material deleted. She also seeks an electronic copy of the Kilkeary Report. Further, Ms Ganley asked the Tribunal to exercise its power under section 58 of the FOI Act to bring to the attention of the Minister the improper conduct of two officers of the Health Service, Mr Landrigan and Jenny Becker. In particular, she alleges that the delays and failure to follow the proper FOI process had "an intentional improper basis". Finally, Ms Ganley seeks a refund of FOI fees she claims to have been erroneously charged, and her costs in these proceedings.

54 Ms Ganley's submissions range widely over her grievances with the Health Service and its officers/employees, including, in particular, how the Health Service has dealt with those grievances. Pursuant to s 53(1) of the Administrative Decisions Tribunal Act 1997 ('the ADT Act'), the Tribunal's role in this matter is confined to reviewing the determination of the Health Service to deny her access to documents. The Tribunal does not have jurisdiction to address the broader issues to which Ms Ganley's grievances may give rise, and it is not the Tribunal's role to review the Kilkeary Report or the process undertaken by Mr Kilkeary in preparing his report. I note that the Health Service is no longer pressing its earlier submission that the Report is exempt pursuant to cl 13(b) and has provided Ms Ganley with a copy of the Report.

55 As stated above, where a person applies to the Tribunal for a review of a decision by an agency to deny access to its documents, the burden of proof lies on the agency to establish that the determination is justified (s 61).

56 Section 6(1) defines the term 'agency's document' as meaning "a document that is held by the agency", and 'document' as including "any paper or other material on which there is writing". Section 6(2)(e) states: "a reference to a document held by an agency includes a reference to a document to which the agency has an immediate right of access and a document that is in its possession, or under the control, of a person in his or her capacity as an officer of the agency".

57 In these proceedings, the Health Service has not questioned the opinion expressed by the Ombudsman's Office that, for the purposes of the FOI Act, the witness statements were documents 'held' by the Health Service because they were documents over which it had control and a right of immediate access as they had been obtained by the investigator (Mr Kilkeary) exercising investigatory functions on behalf of the Health Service: letter from the Ombudsman to Ms Ganley dated 20 October 2008. This is, nevertheless, an issue that I should address.

58 Mr Kilkeary's and Mr Landrigan's evidence indicates that Mr Kilkeary was engaged as an independent consultant by Mr Landrigan to undertake an investigation into the complaint made by Ms Ganley of workplace bullying and prepare a report (letter dated 16 February 2006). It appears that Mr Kilkeary was not an employee of the Health Service and was not, therefore, an officer of the Health Service. Rather, he entered into a contract with the Health Service to undertake the investigation, his terms of reference being confirmed by Mr Landrigan in a letter to Mr Kilkeary dated 14 November 2006. In this letter, Mr Landrigan stated: "The Health Service does not require you to provide records of interview for the investigation. We do require that you provide sufficient supporting information obtained through your interview process to justify any and all observations and recommendations. In such instances where you are referring to interviews carried out by you we will require you to obtain the employee's concurrence to such matters being included in your report.

Subject to your compliance with these directions, Northern Sydney Central Coast Health indemnifies you from prosecution pursuant to the provisions of Clause 11 of Part 2 of Schedule 5 of the Health Services Act 1977."

59 Mr Kilkeary did not therefore provide the Health Service with copies of the written statements he obtained from the witnesses he interviewed. He retained these, and also his notes from the investigation, which he said the Health Service told him he did not need to keep.

60 I have reviewed relevant authorities as to the meaning of documents 'held' by an agency: see, for example, Re Birrell & Victorian Economic Development Corporation (1989) 3 VAR 358 (Freedom of Information Act 1982 (Vic)); Re Sullivan and Department of Industry, Science and Technology [1996] AATA 610 (Freedom of Information Act 1982 (Cth)); Holt & Reeves and Education Queensland [1998] QlCmr 4 (Freedom of Information Act 1992 (Qld)); McGuirk v Director General, NSW Attorney General Department [2007] NSWADT 155. The material facts of those cases are different from those of the present case and do not, in my view, greatly assist.

61 I also note The NSW FOI Manual (August 2007), at [3.3.7], recognises that where an agency, "contracts out a particular function, a question may arise whether documents held by the contractor are documents covered by the FOI Act. Such issues should be addressed in the contractual arrangements between the agency and the contracting party, which should provide that the agency has a right of access to documents in circumstances where it cannot be assumed that routine access would be available in the normal course of events..."

62 In my view, in the present case, the ordinary meaning of the words of s 6(2)(e) is sufficient to resolve this issue. Pursuant to the terms of Mr Kilkeary's engagement, the witness statements and his notes from the investigation are not documents that he was required to produce to the Health Service and to which it has "an immediate right of access". They have never been in the physical 'possession' of the Health Service or its officers and, nor, in my view, have they been in its constructive 'possession' or 'under the control' of a person in his or her capacity as an officer of the Health Service. They were not, therefore, documents 'held' by the Health Service. That being so, Ms Ganley had no right of access to those documents under the FOI Act. This, in itself, is sufficient to conclude the Tribunal's review.

63 However, as I have stated, the Health Service has not questioned the opinion expressed by the Ombudsman that the written statements and Mr Kilkeary's notes were 'held' by the Health Service. Instead, the Health Service has contended that the documents are exempt under cl 13(b) of Sch 1. It is, therefore, appropriate that I examine the application of this exemption in this case.

64 The exemption conferred by cl 13(b) applies if three requirements are satisfied. First, the information must be obtained in confidence. Second, disclosure of that information could reasonably be expected to prejudice the future supply of such information to the Government or to an agency. In McGuinness v Bathurst Regional Council [2005] NSWADT 152 ('McGuinness'), at [8], Deputy President Hennessy said: "Whether or not disclosure could reasonably be expected to prejudice the future supply of such information does not necessarily depend on whether the informant herself could reasonably be expected to refuse to supply such information in the future. While that evidence is relevant, the Tribunal must answer a broader question, that is whether disclosure could reasonably be expected to prejudice the future supply of such information from a substantial number of the sources available or likely to be available to [the agency] ... ( Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279 at 341)."

65 The third requirement is that the disclosure would, on balance, be contrary to the public interest. I note that in WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84, at [151], the NSW Court of Appeal, referring to the objects of the FOI Act set out in s 5(2)(a) and (b), recognised that the right to be given access to documents held by an agency is subject to such restrictions as are reasonably necessary for the proper administration of the Government: "Determining whether documents should be disclosed involves balancing those two matters. Thus, ... testing whether disclosure of documents would be contrary to the public interest requires the decision-maker 'to weigh the public interest in citizens being informed of the processes of their Government and its agencies on the one hand against the public interest in the proper working of Government and its agencies on the other': Harris v Australian Broadcasting Corporation [(1983) 78 FLR 236] (at 246)."

66 In Ms Ganley's case, I have examined the witness statements claimed to be exempt which were provided to the Tribunal by Mr Sullivan, noting that he obtained these from Mr Kilkeary and that the Health Service has never held these documents. Mr Kilkeary stated that he prepared these witness statements following the interviews he conducted in the course of his investigation. The witness statements were approved, or in some cases amended and subsequently approved, by the witnesses. The Tribunal has not been provided with Mr Kilkeary's handwritten notes recording what was said in the course of his interviewing the witnesses and which formed the basis for the draft statements he prepared following the interviews. Mr Kilkeary stated that these handwritten notes also contain his observations and the notes he made for himself as an aide memoire for the purposes of his investigation.

67 Mr Kilkeary gave evidence that he encountered difficulty in arranging interviews because of the reluctance of a number of employees to participate in what was a second enquiry into the grievance lodged by Ms Ganley. He said it was an emotionally charged exercise and it was only with Mr Landrigan's assistance that he was able to interview all the witnesses.

68 Mr Landrigan stated that those involved felt threatened and were very reluctant to participate in the investigation. On 11 July 2006, following a request from one of the witnesses, Mr Landrigan wrote to all the witnesses formally notifying them of the process. Even so, three witnesses refused to meet with Mr Kilkeary. Mr Landrigan therefore wrote to those witnesses to assure them of the confidentiality of their discussion with Mr Kilkeary and stating that information they provided would only be included in his report if he had first obtained their permission.

69 Mr Landrigan had first discussed this approach with Mr Kilkeary who had agreed to it. Mr Kilkeary said that when interviewing witnesses, he told them the interview was being conducted on a confidential basis. In his letter to Mr Kilkeary dated 14 November 2006, Mr Landrigan confirmed that the Health Service did not require him to provide records of interview for the investigation. However, the Health Service did require him "to provide sufficient supporting information obtained through your interview process to justify any and all observations and recommendations" in his report. Moreover, where in his report he referred to interviews he had conducted, "we will require you to obtain the employee's concurrence to such matters being included in your report".

70 In terms of the requirements of the cl 13(b) exemption relied on by the Health Service, I am satisfied from the above evidence that the information obtained by Mr Kilkeary and recorded in his handwritten notes and in the witness statements, was obtained by him in confidence. See also Howell and GJ, referred to by Mr Sullivan and cited above.

71 With regard to whether disclosure of the information could reasonably be expected to prejudice the future supply of such information to the Health Service, I note Mr Kilkeary's and Mr Landrigan's evidence of the reluctance of the witnesses to participate in the investigation. In my view, the evidence indicates that participation might not have taken place without the assurance of confidentiality. For the Health Service to release the witness statements or information recorded by Mr Kilkeary in his notes during the course of the interviews, would, in such circumstances, be a clear breach of trust. I also accept Mr Landrigan's evidence that the release of such witness statements obtained in confidence would be likely to become known to other employees who might cease to trust assurances of confidentiality, thereby seriously inhibiting the ability of the Health Service to investigate workplace matters by prejudicing the future supply of relevant information.

72 The third requirement of cl 13(b) is that the disclosure would, on balance, be contrary to the public interest. In my view, it is clearly in the public interest for the Health Service and other agencies to be able to investigate allegations of workplace malpractice, including, for example, workplace bullying or harassment. Investigations of this kind will always be facilitated if the co-operation of those involved can be achieved rather than a more heavy handed approach involving employer directions. It is contrary to the public interest to undermine a co-operative approach by prejudicing the future supply of relevant information: TW, at [39].

73 Ms Ganley submitted that the benefit from obtaining access to the documents and reviewing what the witnesses said to Mr Kilkeary in the course of his investigation, outweighed the detriment from breaching any assurances of confidentiality. I do not agree. While I accept that the witness statements and Mr Kilkeary's notes may be of value to Ms Ganley in pursuing her claim in respect of her grievances against the Health Service, I am not satisfied that there is a broader public interest in these documents that outweighs the public interest in not prejudicing the future supply of relevant information where agencies investigate workplace malpractice.

74 Thus, I am satisfied that Mr Kilkeary's handwritten notes and the witness statements are exempt documents pursuant to cl 13(b). In relation to section 25(4), referred to above, in my view, it is not practicable to give Ms Ganley partial access to these documents.

Should the residual discretion be exercised? 75 By virtue of s 63(2) of the ADT Act and s 25(1)(a) of the FOI Act, the Tribunal has a residual discretion to release documents otherwise found to be exempt pursuant to Sch 1 of the FOI Act, and, in such a case, must consider whether to exercise its discretion to do so: University of NSW v McGuirk [2006] NSWSC 1362, at [102] (per Nicholas J).

76 In Cianfrano v Director General, Premier's Department [2007] NSWADT 216, at [24], O'Connor P summarised the relevant principles: "the following principles to guide the exercise of the discretion have emerged: (1) The Tribunal must first ascertain whether the matter is exempt matter. (2) The Tribunal should only exercise the power to decline to refuse disclosing exempt matter where there are strong grounds justifying the overriding of the exemption. (3) The question of whether there are strong grounds should take account of the objects of the FOI Act as expressed in section 5. (4) ... (5) ..."

77 The President noted that the objects clause of the Act (s 5) now has a greater degree of prominence than previously in Tribunal decisions. He said, at [27]: "Practical circumstances that might influence the Tribunal to exercise the discretion include: - whether the exempt matter was, by other means, in the public domain - whether the circumstances that had made the exempt matter sensitive at the time it was refused remain current or significant - the nature of the government activity under scrutiny, and the extent of public or community concern or interest in having a fuller knowledge of that activity - the public interest in an informed debate on issues of significance to the community - whether there were adverse consequences for the proper administration of government, and their extent - whether any adverse consequence is remote or innocuous."

(See also University of NSW v McGuirk (No 2) [2008] NSWADTAP 8, at [18].)

78 Applying these principles in the current matter, and bearing in mind the objects of the FOI Act stated in s 5, I am not satisfied there are strong reasons justifying overriding the exemption. The witness statements, which are dated June to November 2007, are of relatively recent origin, are not in the public domain and, in my view, remain sensitive. Whilst I accept there is a public interest in informed debate on such issues as workplace bullying and harassment, I do not accept that this outweighs the public interest in maintaining the confidentiality of the documents in question in the particular circumstances of this case. Nor, in my view, are there any adverse consequences for the proper administration of Government by not releasing these documents. Thus, I am not satisfied that I should exercise the Tribunal's residual discretion to release the exempt documents.

79 I note that while acknowledging that the Health Service has provided her with a copy of the Kilkeary Report, Ms Ganley seeks a further copy of the Report in electronic form. The Health Service states that it does not have a copy of the Report in electronic form. In my view, once an agency has provided a person with access to a document, the Tribunal has no power to order that access be granted in a different form - for example, in electronic as opposed to paper form. Providing Ms Ganley with a copy of the written document is sufficient for the Health Service to comply with its obligations under the FOI Act.

80 Ms Ganley submits that the Tribunal should exercise its power under s 58 of the FOI Act to bring the improper conduct of two Health Service officers to the attention of the Minister. The Tribunal's power under s 58 arises where "the Tribunal is of the opinion that an officer of an agency has failed to exercise in good faith a function conferred or imposed on an officer by or under this Act". If the Tribunal is of such an opinion, it "may take such measures as it considers appropriate to bring the matter to the attention of the responsible Minister for the agency".

81 The two officers referred to by Ms Ganley are Jenny Becker, the Director of Workforce Development for the Health Service, and Craig Landrigan, the Director of Human Resources. Ms Ganley refers to Ms Becker briefly in her submissions. A letter from Ms Becker to Ms Ganley, dated 13 September 2006, is also attached to Ms Ganley's submissions. Her involvement appears to have been in relation to the internal review Ms Ganley requested for the determination on her earlier FOI application, which is not the subject of these proceedings. Ms Ganley has provided very little information about Ms Becker and, in my view, there is insufficient evidence for me to form an opinion for the purposes of section 58.

82 With regard to Mr Landrigan, Ms Ganley is critical of his conduct in connection with her grievance and the handling of her FOI applications. Mr Landrigan provided a statement and gave evidence in these proceedings. I am not satisfied there is evidence to support a finding that he failed to act in good faith in exercising his functions.

83 Thus, I am not satisfied there is evidence of a lack of good faith or improper conduct which might form the basis for an opinion under s 58. I therefore decline to exercise the Tribunal's power under this section.

84 The Tribunal has power to award costs pursuant to s 88 of the ADT Act. This states: 88 Costs

(1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section.

(1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as: (i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or (ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or (iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or (iv) causing an adjournment, or (v) attempting to deceive another party or the Tribunal, or (vi) vexatiously conducting the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) any other matter that the Tribunal considers relevant.

(2) The Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis. (3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs.

(4) In this section, "costs" includes: (a) costs of or incidental to proceedings in the Tribunal, and (b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.

85 In accordance with s 88(1), the Tribunal's normal expectation is that the parties in Tribunal proceedings should bear their own costs. The Tribunal does not follow the usual approach in adversarial proceedings whereby the successful party can expect an order for costs. Pursuant to s 88(1A), the Tribunal can only award costs if it satisfied that it is fair to do so having regard to the matters set out in paragraphs (a) to (e). The costs in respect of which the Tribunal may make an award are those in connection with the FOI application.

86 Ms Ganley claims costs in relation to research and preparation of her submissions and attendance at the ADT, but has not otherwise supported her claim. Having considered the matters set out in paragraphs (a) to (e), and, in the light of the outcome of her application for review being in favour of the Health Service, I am not satisfied that there is a basis for an award of costs to Ms Ganley.

87 The decision of the Health Service not to release to Ms Ganley witness statements and other handwritten notes held by Mr Kilkeary is affirmed.

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.