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[2014] NSWCATAD 7
NCAT Administrative and Equal Opportunity
2014-02-04
Original judgment source is linked above.
Introduction 1Mr Gee has made an application to the Administrative Decisions Tribunal to review a decision made by the Department of Education & Communities (the agency) under the Government Information (Public Access) Act 2009 (the GIPA Act) dated 16 August 2012. 2Mr Gee has sought access to - All information, written and electronic, including minutes of meetings, interview records; phone call memos/notes; interoffice memos; emails with all person in investigation ref no 36663. All persons refer to anyone who was involved on the investigation, including but not limited to complainant(s) those interviewed, discussions with DEC & NSWTF covering the period August 2010 to September 2011. 3The agency identified 169 pages of printed documents containing information responsive to his request. It granted him full access to some of that information; but refused him access to the remainder either in whole or in part. 4On 11 February 2013 Mr Gee applied for a Tribunal review of that application decision. 5Following a number of planning meetings and the filing of evidence and submissions I determined, with the agreement of the parties, to determine the application without a hearing on the papers. I was and remain of the view that the issues requiring consideration can be adequately determined on the papers. 6On 1 January 2014, the NSW Civil and Administrative Tribunal (NCAT) was established and on its establishment the Administrative Decisions Tribunal was abolished (see s 7 and cl 3 of Schedule 1 of the Civil and Administrative Tribunal Act 2013). And by reason of cl 7 of Schedule 1 of the, this application is taken to be an application before NCAT with the provisions of the GIPA Act continuing to apply.
Factual Background 7Mr Gee was the Principal of a school. The investigation to which his request refers was with respect to allegations made against him of misconduct in the performance Of his duties. The investigation was the responsibility of the Agency's Employee Performance and Conduct Directorate (EPAC). There were a series of allegations of misconduct. The investigation was satisfied that a number of them had been made out, but that others were not. 8While it is neither necessary nor desirable to discuss the allegations and course of the investigation in detail, it is necessary to briefly outline the nature of the allegations and the methods of investigation. This is so because those allegations arose against a background in which it was alleged that Mr Gee exchanged sexually explicit communications with adult females who were employed by the Agency or otherwise associated with his school, and had sex at school premises. As a consequence of that background, some of the information is both sensitive and very personal to the individuals involved. 9The investigation was satisfied that Mr Gee -
Material before the Tribunal 11In making this determination the Tribunal has considered the following material:
The Government Information (Public Access) Act 2009 12The GIPA Act commenced operation on 1 July 2010. The objects of the Act are set out in (s 3(1) - In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. 13'Government information' is given a wide meaning (s 4) being 'information contained in a record held by an agency.' 'Agency' is also defined in s 4. 14The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5). Applicants for access to government information have a legally enforceable right to be provided with access to that information, unless there is an overriding public interest against disclosure (s 9). 15Subsection 14(1) provides that government information described in Schedule 1 of the GIPA Act is to be conclusively presumed to give rise to a public interest consideration against disclosure. Included in this Schedule is information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege): see clause 5 in Schedule 1, which provides as follows: 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. 16Also included in the schedule in clause 1 is information the disclosure of which is prohibited by s 22 of the Public Interest Disclosures Act 1994 , whether or not the prohibition is subject to specified qualifications or exceptions and whether or not a breach of the prohibition constitutes an offence: 17With respect to other government information, the Act establishes a principle that there is pubic interest in favour of disclosure (s 12(1)). Section 12(2) says that public interest considerations in favour of disclosure are not limited. It provides - Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Note. The following are examples of public interest considerations in favour of disclosure of information: (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct 18There will only be an overriding public interest against disclosure when the public interest test in s 13 is satisfied. It provides - 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. 19In considering whether there is an overriding public interest against disclosure s 16 provides that the following principles apply - (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information. 20The public interest considerations against disclosure are limited to those set out in the Table to s 14. Section 14(2) provides that - 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. The Information Commissioner may issue guidelines about public interest considerations against disclosure, to assist agencies, but may not add to the list of considerations (s 14(3)). The Office of the Information Commissioner has issued Guideline 4 - Personal information as a public interest consideration under the GIPA Act. Section 15(b) requires that decision makers have regard to guidelines. 21Personal information is defined in clause 4 of Schedule 4 - (1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion. (2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics. (3) Personal information does not include any of the following: (a) information about an individual who has been dead for more than 30 years, (b) information about an individual (comprising the individual's name and non-personal contact details) that reveals nothing more than the fact that the person was engaged in the exercise of public functions, (c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause. 22The public interest considerations against disclosure relied on by the agency in this case are to be found under the categories of "Responsible and effective government," "Law enforcement and Security" and "Individual rights, judicial processes and natural justice" in the Table to s 14. 23Before deciding an access application which, among other things, seeks access to information that includes personal information about a person, s 54 requires that the agency take such steps as are reasonable practicable to consult with that person before providing access. Any objection to disclosure must be taken into account in the course of determining whether there is an overriding public interest against disclosure of government information: s 54(5). In his case the Agency has not sought to seek the views of those persons whose personal information would be disclosed by release, but has filed a statutory declaration of Stephen Mooney that seeks to explain and justify that decision. 24Section 55 provides that personal factors relating to an applicant can be taken into account in deciding to grant access. In limited circumstances they may also be taken into account in refusing access. That section provides - (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section: (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14. (4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for. (5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information. (6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person. Note. An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73. 25An access application is to be determined in accordance with s 58 - (1) An agency decides an access application for government information by: (a) deciding to provide access to the information, or (b) deciding that the information is not held by the agency, or (c) deciding that the information is already available to the applicant (see section 59), or (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or (e) deciding to refuse to deal with the application (see section 60), or (f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact. Note. These decisions are reviewable under Part 5. (2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for. (3) If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired. 26In exercising functions under the Act s 3(2) instructs that - It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information. 27Section 73 requires that access be unconditional. Section 78 is concerned with the form of access. It provides - (1) Access to government information in response to an access application may be provided in any of the following ways: (a) by providing a reasonable opportunity to inspect a record containing the information, (b) by providing a copy of a record containing the information, (c) by providing access to a record containing the information, together with such facilities as may be necessary to enable the information to be read, viewed or listened to (as appropriate to the kind of record concerned), (d) by providing a written transcript of the information in the case of information recorded in an audio record or recorded in shorthand or other encoded format. (2) The agency must provide access in the way requested by the applicant unless: (a) to do so would interfere unreasonably with the operations of the agency or would result in the agency incurring unreasonable additional costs, or (b) to do so would be detrimental to the proper preservation of the record, or (c) to do so would involve an infringement of copyright, or (d) there is an overriding public interest against disclosure of the information in the way requested by the applicant. Note. Decisions about how to provide access are reviewable under Part 5. 28Section 80 sets out a series of decisions that are reviewable decisions under the Act. It relevantly provides - The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part: (a) ... (d) a decision to provide access or to refuse to provide access to information in response to an access application, (e) ... 29A person aggrieved may seek a review by the Tribunal (s 100). Such applications are to be made within 8 weeks of the decision (s 101(1)) or within 4 weeks of the completion of a review by the Information Commissioner (s 101(2)). The Tribunal has power to extend the time for the making of a review application under s 101(3) when it is of the opinion that the person making the application, "has provided a reasonable excuse for the delay in making the application." 30Once a decision is subject to review before the Tribunal it cannot be the subject of a review by the Information Commissioner (s 98). 31In any review of a reviewable decision s 105 places the burden of justifying the decision on the agency concerned. It provides - (1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section. (2) If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review. (3) If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review. 32The Tribunal's function on review under s 63 of the Administrative Decisions Review Act 1997 is to make the correct and preferable decisions having regard to the material before it before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409. 33Section 107 sets out the procedure to be followed by the Tribunal in dealing with public interest considerations. It relevantly provides - (1) In determining an application for NCAT review, the NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. (2) On an NCAT review, the NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of the NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. ... 34In Mr Gee's case, because it will be necessary to discuss the nature of some the information that is said to be the subject of an overriding public interest consideration against disclosure, which s 107 prohibits me disclosing, I will make orders prohibiting the disclosure of those parts of my reasons for decision to Mr Gee and to the public. My power to make such orders is found in sections 64 and 66 of the Administrative Decisions Review Act 1997 combined with s 107(2) of the GIPA Act. Those suppressed parts of my decision will be available to the Respondent and to an Appeal Panel, in the event of an appeal.
Conclusive presumptions 35In its schedule of documents the Agency claimed that a number of documents were the subject of a conclusive presumption that there is an overriding public interest consideration against their disclosure. I propose to consider them first.
Legal Advice privilege 36The Agency claimed legal advice privilege with respect to pages 149 and 156 to 157 of the documents. In his submissions said that he - ...does not accept the characterisation given the whether the documents are privileged or not and does not press for their reaction to be removed. 37As Mr Gee does not press for their release, I have not considered that issue further.
Public Interest Disclosure 38The Agency submitted that the information on pages 38-43 and 113-117 contains details of a public interest disclosure by third parties and as such is the subject of a conclusive presumption of an overriding public interest consideration against disclosure. The Agency' submissions assert that - This information was provided to EPAC on the understanding that it would be confidential under s 22 of the Public Interest Disclosures Act 1994. The third party specifically mentions the protections afforded to individuals who provide information under that legislation. It is the Respondent's submission that, having established that the records contain information over which there is a presumption of an overriding public interest consideration against disclosure, the Respondent is required under the GIPA Act to refuse access. 39In response Mr Gee argued that there was no evidence that demonstrated that the information in issue is protected, and that statements of belief and submission, without evidence, were insufficient to satisfy the onus on the Agency. 40Section 22 of the Public Interest Disclosures Act 1994 provides - (1) An investigating authority or public authority (or officer of an investigating authority or public authority) or public official to whom a public interest disclosure is made or referred is not to disclose information that might identify or tend to identify a person who has made the public interest disclosure unless: (a) the person consents in writing to the disclosure of that information, or it is generally known that the person has made the public interest disclosure as a result of the person having voluntarily identified themselves (otherwise than by making the public interest disclosure) as the person who made the public interest disclosure, or (b) it is essential, having regard to the principles of natural justice, that the identifying information be disclosed to a person whom the information provided by the disclosure may concern, or (c) the investigating authority, public authority, officer or public official is of the opinion that disclosure of the identifying information is necessary to investigate the matter effectively or it is otherwise in the public interest to do so. (2) As part of its procedures for receiving, assessing and dealing with public interest disclosures, a public authority must establish procedures for ensuring that a public official who belongs to the public authority maintains confidentiality in connection with a public interest disclosure made by the public official. Note. These procedures are required to be the subject of a policy of the public authority under section 6D. 41A disclosure is not a public interest disclosure just because a person says it is. There are explicit requirements set out in the Act that must be satisfied before the protection attaches to a disclosure. Thus section 14 relevantly provides - (1) To be protected by this Act, a disclosure by a public official to the principal officer of, or officer who constitutes, a public authority must be a disclosure of information that the person making the disclosure honestly believes, on reasonable grounds, shows or tends to show corrupt conduct, maladministration, serious and substantial waste of public money or government information contravention by the authority or any of its officers or by another public authority or any of its officers. (2) To be protected by this Act, a disclosure by a public official to: (a) another officer of the public authority to which the public official belongs, or (b) an officer of the public authority to which the disclosure relates, in accordance with any procedure established by the authority concerned for the reporting of allegations of corrupt conduct, maladministration, serious and substantial waste of public money or government information contravention by that authority or any of its officers must be a disclosure of information that the person making the disclosure honestly believes, on reasonable grounds, shows or tends to show such corrupt conduct, maladministration, serious and substantial waste of public money or government information contravention (whether by that authority or any of its officers or by another public authority or any of its officers). 42Subject to suppression order 43Subject to suppression order 44Subject to suppression order 45In the present case pages 38-43 do not on their face relate to a protected disclosure. There is no evidence before me as to precisely whom the disclosures were made to, and as to whether they were made in accordance within the established procedure for making such reports. The Agency has not placed before the Tribunal any evidence as to what that procedure involves. 46In those circumstances I am not satisfied that the information in pages 38 to 43 is conclusively presumed to be the subject of an overriding public interest consideration against disclosure. 47Subject to suppression order 48Given the contents of the information on pages 113 to 117 I am satisfied that , in the absence of evidence that shows they relate to a public interest disclosure, they do not contain protected information.
the balance of the information in issue 49The Agency has approached this matter on the basis that all of the information which it has denied Mr Gee access to - with the exception of that subject to a claim of legal advice privilege - is uniformly the subject of the same public interest considerations against disclosure. The schedule of documents relied on by the Agency demonstrates this. 50A cursory examination of the information in issue reveals that no reasonable argument could be advanced that each of these considerations applies to all the information concerned. The Agency's schedule of documents therefore appears to contain global objections that have been applied to all the information in issue, without proper consideration. This is contrary to the spirit and intention of the Act, and makes the task of the applicant and of the Tribunal in dealing with and considering the Agency's case unnecessarily complex and lengthy
Public interest consideration in favour of disclosure 51The Tribunal's task is to determine whether there is an overriding public interest against disclosure of the information in those documents in accordance with the Act, paying due regard to the principles in s 16. This requires that the public interest consideration both in favour and against disclosure be identified, so that the question of whether, on balance, the public interest considerations against disclosure outweigh those in favour of disclosure can be determined. Unless there is an overriding public interest against disclosure the presumption in favour of disclosure applies (s 5). 52Public interests considerations in favour of disclosure are set out in section 12. The section makes it clear that those considerations are not limited. 53In my view the following public interest considerations in favour of disclosure apply when considering Mr Gee's access application -
Public interest considerations against disclosure 54The public interest considerations against disclosure are limited to those set out in the Table to s 14. Because the agency bears the onus of justifying its decision to refuse Mr Gee access to the information, it has the burden of establishing that the public interest considerations against disclosure it relies on apply. It also bears the burden of establishing that, on balance, they outweigh the public interest considerations in favour of disclosure. 55The public interest considerations against disclosure on which the Agency relies are - 1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally): ... (f) prejudice the effective exercise by an agency of the agency's functions, (g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence, (h) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed). ... 2 Law enforcement and security 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): (a) reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant, ... 3 Individual rights, judicial processes and natural justice There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects: (a) reveal an individual's personal information, (b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002, ... 56Reveal is defined in Clause 1 of Schedule 4 - reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure). 57The only evidence the Agency has filed to support its public interest contentions is the statement of Mr Moore, which is primarily addressed to the issue of why no consultation has occurred with persons whose personal information might be released by disclosure. There are no statements of departmental officers with respect to the circumstances in which the information in issue was generated or obtained, or demonstrating the existence of the public interest on which it relies. Rather the agency has relied on the information itself, and its submissions and policies. As will become apparent in many instances I consider this is inadequate to discharge the burden on the Agency. 58It is apparent from reading the material that has been disclosed to Mr Gee that in the course of the EPAC investigation, the investigators made full use of the resources available to it including accessing relevant email accounts and seizing Mr Gee's work computer. 59Against that background I turn to consider the public interest considerations against disclosure relied on by the Agency. In doing so I propose to briefly consider and comment upon each of the public interest considerations against disclosure and to then to discuss its application to the information in issue.
Result in the disclosure of information provided to the Agency in confidence 60In Commissioner of Police NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [33] the Appeal Panel outlined the general approach to be adopted in determining whether or not information is confidential information. In our view, the question of whether the information supplied is 'confidential information' must be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received. The agency's case is that all information received by the triple zero service at the point of receipt is treated as confidential. The agency's case is that members of the community expected the triple zero service to be a confidential service. 61This immediately brings to light one of the difficulties that has flowed from the Agency's failure to present evidence going to the circumstances of the EPAC investigation and of the confidentiality said to attach to it. The Agency at paragraphs 11 to 15 of its submission made a series of assertions of fact going to the nature of confidentiality said apply to information provided to the investigation by individuals; the importance of confidentiality to the trust and integrity that agency employees have in the process, and to the provision of relevant information in the future.. The Agency did not file any evidence supporting these contentions, which were not accepted by Mr Gee in his submission. 62The Agency also did not provide any evidence, aside from the information itself, which identified what information it claimed had been supplied on a confidential basis, and what information it had obtained by other means. For example, in many cases the emails could either have been obtained from an individual or by means of accessing the email system or Mr Gee's computer. 63The only material provided by the Agency, apart from the information itself, that is of any assistance is the Agency's Guidelines for the Management of Conduct and Performance (PD/2006/0335). Contrary to the Agency's submission it does not contain a definition of "confidentiality" but does contain the following relevant provisions which provide some context as to the place of confidentiality in the Agency's conduct and performance processes. 64Paragraph 7.8.2.2 provides - 2. The investigation should be conducted in a confidential manner. Confidential information obtained during the investigation should not be disclosed except for the purpose of the investigation or any action arising from the investigation, or for the purpose of obtaining advice from the relevant union and/or a legal representative. This is to protect the integrity of the process and where child protection principles or any other legal requirement permit, the privacy rights of the person concerned. Similarly, all witnesses, including the officer or permanent employee the subject of the investigation and his or her support person, should be advised that they should maintain confidentiality and not discuss the matter except for the purposes of the investigation or to meet their personal health or support needs. If a witness informs the investigator at any time that he or she is being victimised or harassed by the officer who is the subject of a misconduct investigation, the investigator should refer them to the Department's Complaints Handling Guidelines policy and report the allegation in writing to the appropriate delegated officer. 65In addition that policy contains requirements that the Agency must -
66A consideration of that policy leads to the conclusion that the Agency's operates its conduct and performance policy on the basis that confidentially will usually be afforded to witnesses and employees who provide relevant information, subject to the rules of procedural fairness. As paragraph 4.2 of the Policy points out procedural fairness certainly requires that an officer know the allegations made against him of her, but does not necessarily require that they be advised of the source of the allegation. 67In the present case the source of many documents in issue is not clear. Some have obviously been provided by persons to one could reasonably expect confidentiality attaches under the Agency's policies and procedures. Given that the Agency bears the burden in this case I have only found that confidentiality attaches to that information which is obviously confidential. The Agency has not discharged its burden with respect to the balance. 68Subject to suppression order 69 The documents that I accept attract the confidential public interest with respect are those marked with an √ in column 1(g) of that Table to these reasons. The confidential information public interest consideration against disclosure applies to the entire contents of all those documents.
Prejudice the effective exercise by an agency of the agency's functions 70The Agency has not presented any evidence to support the contention that release of the information Mr Gee seeks could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions. It has made submissions that release of confidential information could cause persons to be reluctant to come forward in later investigation (i.e. a chilling effect) thereby affecting its misconduct and performance systems in the future. It relied on the decision in Department of Education and Training v GH [2009] NSWADTAP 33 at [70] and [80] to support that proposition. 71In his submissions Mr Gee took issue with those of the Agency. 72In my view, where confidential information is provided to an agency in circumstances such as those that exist in this case, there is a reasonable expectation that release might affect the ability of the Agency to obtain similar information from individuals in the future. This correlates with the point made by the Appeal Panel in Department of Education and Training v GH [2009] NSWADTAP 33. 73As a result I accept that it could be reasonably expected that release of the confidential information to which Mr Gee seeks access could prejudice the effective exercise by an agency of the agency's functions. 74The documents that I accept contain the information that attracts this public interest are those marked with an √ in column 1(f) of that Table to these reasons. The confidential information public interest consideration against disclosure applies to the entire contents of all those documents
Prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed). 75Once again the Agency had filed no evidence supporting this contention, and has made no submissions explaining its reliance on it. The public interest it claims is not obvious or evident. In those circumstances the Agency has not satisfied that burden of demonstrating that the public interest consideration against disclosure exists.
Reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant (whether in a particular case or generally) 76The Appeal Panel in New South Wales Office of Liquor, Gaming and Racing v Fahey (GD) [2012] NSWADTAP 55 discussed this public interest consideration against disclosure and said, at [47 - 49] - 47... For reasons given in Appeal Panel and Tribunal decisions made under the FOI Act in relation to a like provision, we do not think that the term 'informant' is restricted to 'police informers' or people who might be seen as themselves involved in the conduct of interest and are ready to 'inform' on their comrades. In our view, the word 'informant' bears a wider connotation of the kind submitted by the agency, that is, a person who gives information. 48The interests listed in the Table are ones intended, as we see it, to be applied across the wide range of government functions. The 'Law enforcement and security' (the heading to clause 2) functions of government extend well beyond the prevention and detection of the crimes that engage the attention of police forces. The word 'informant' should not be so read as only to apply to persons who give information in that particular context. 49In our view, revelation of the identity of a complainant in circumstances of the present kind could reasonably be expected to prejudice the future supply of information from that informant or other informants. 77In that decision the Appeal Panel found that the informant's identity could be protected by reliance on this public interest and that related to the maintenance of confidentiality. 78I have previously outlined my reasons for concluding that confidentiality gives rise to a public interest consideration against disclosure in respect to the information contained in the documents I have already identified. Each of the persons whose identity is so protected, is also an informant to whom this public interest consideration against disclosure applied. 79As a consequence identifying information, including information from which the identity of an informant can be inferred, is the subject of this public interest consideration against disclosure. Having examined all of the information I am satisfied that those pages marked with an √ in column 2(a) of that Table to these reasons attract that public interest.
Reveal an individual's personal information 80In his submissions Mr Gee made it clear that he does not seek the address, phone numbers or email addresses of individuals. I accept that is the case and will proceed on the basis of his agreement that those details should be redacted. He does not concede that the names of complainants should be redacted. 81There can be no doubt that the names of individuals constitute their personal information, with the exception of the names and contact details of persons, "that reveals nothing more than the fact that the person was engaged in the exercise of public functions." See s 4(3(b). 82In the present case some of the information is contained in emails between Departmental officers that relate entirely to exchanges of information and opinions concerning operational matters and have no bearing on personal issues. It is not personal information; see Donnellan v Kuring-gai Council [2013] NSWADT 33. Similarly, the identity of those officers who exchanged that information is not personal information in that context. 83There is other information - some contained in emails - that is clearly of a highly personal nature concerning both Mr Gee and others. 84As a result I accept that release of some of the information would result in the disclosure of personal information. I am satisfied that those pages marked with an √ in column 3(a) of that Table to these reasons attract that public interest. In a number of those pages the personal information is identifying information only and does not extend, or require the non-disclosure of, to the other content of the pages. This is so with respect to the following pages: 7 to 22 inclusive, 63 to 65, 96. Pages 113-1-7 contain quotes from legislation - this is not personal information.
To contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 85The definition of personal information in the Privacy and Personal Information Protection Act 1998 (PPIPA)relevantly is - (1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion. (2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics. (3) Personal information does not include any of the following: (a) ... (j) information or an opinion about an individual's suitability for appointment or employment as a public sector official, (ja) ... (4) For the purposes of this Act, personal information is held by a public sector agency if: (a) the agency is in possession or control of the information, or (b) the information is in the possession or control of a person employed or engaged by the agency in the course of such employment or engagement, or (c) the information is contained in a State record in respect of which the agency is responsible under the State Records Act 1998. (5) For the purposes of this Act, personal information is not collected by a public sector agency if the receipt of the information by the agency is unsolicited. 86Section 18 of PPIPA contains the information protection principle relating to disclosure. It provides - (1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless: (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person. (2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it. 87I found that the information indicated in the Table to these reasons contains a mixture of personal information under the GIPA Act relating to Mr Gee and other individuals. I reach the same conclusion with respect to personal information under PPIPA. I am satisfied that release of the information, insofar as it relates to persons other than Mr Gee could reasonably be expected to reveal an individual's personal information. I am satisfied that those pages marked with an √ in column 3(b) of that Table to these reasons attract this public interest the same extent as does the public interest consideration against disclosure relating to personal information. 88I am satisfied that those pages marked with an √ in column 3(b) of that Table to these reasons attract that public interest.
Personal factors to be taken into account 89Section 55 relevantly provides that I can take into account defined personal factors of Mr Gee when considering whether there is an overriding public interest consideration against disclosure to the extent that they are relevant to the consideration of the public interest considerations against disclosure in clauses (2)a) and 3(a) and (b) the Table to s 14.. Those factors are:
Balancing the public interests 93The fact that some of the information in issue includes Mr Gee' personal information is a public interest consideration in favour of disclosure meriting considerable weight. The public interest in the administration of justice is also a factor deserving of similar weight, given the generally accepted right of a person to know who their accuser are. I should add, however, that it is clear from the evidence before me that Mr Gee was advised of the nature of the allegations made against him, and was heard with respect to those issues. 94The other public interest considerations in favour of disclosure that I have discussed such as the public interest in the management of government employees, an in ensuring the lawfulness of agency conduct also deserve weight. In the context of the present case however, I do not attach to them the same weight as I have to that relating to Mr Gee accessing his own personal information etc. This is so because the Agency has released the primary documents concerning its decision making with respect to Mr Gee. 95Those public interest considerations in favour of disclosure are to be weighed against each of the public interest considerations against disclosure I have found above. Insofar as it the information concerns identifying information relating to others, Mr Gee seeks to know the identity of all persons concerned, but does not press for their contact information. Many of the individuals whose identity is in issue are informants who have provided the investigation with information. The substance of much of that information has already been disclosed to Mr Gee in the letter advising him of the misconduct allegations made against him. The public interest considerations against disclosure relating to the protection of informants and confidential information, and with respect to the associated functions of the Agency, each require that great weight be given to the protection of the identity of informants, including the protection of information that might result in their identity being inferred. 96As I have previously pointed out the weighing of these competing public interest is not a matter capable of mathematical calculation: Hurst v Wagga Wagga City Council [2011] NSWADT 307. In some cases the tasks of balancing those tasks is a comparatively simple one. In others it is complex and difficulty tasks. 97In this case I have concluded the balance of the public interest requires that the protections of the identity of informants who provided confidential information to the investigation is such that it requires that all of the documents that I have found fit the criteria in points (1)(g) and 2(a) of the Table 1o s 14 not be disclosed. 98With respect to those pages to which only the public interest considerations against disclosure in points (3)(a) and (b) apply, I concluded that the balance of public interest requires that the personal information of persons other than Mr Gee be protected. 99There is one exception to this. I do think the public interest considerations against disclosure of personal information require the non-disclosure of the information in pages 85 to 86. Consultation should be undertaken to see if the individual other than Mr Gee whose personal information would be disclosed object to release.
Conclusion 100Given the complexities involved in this matter I think that the correct and preferable decision is to set aside the decision under review and to remit to the Agency for reconsideration in accordance with these reasons, such reconsideration to be completed within 45 days of the publication of these reasons.
Order 101The Tribunal makes the following orders:
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 25 March 2014 - 25 March 2014Amendments : paragraph 79 typographical error 1(f) to be 2(a)Paragraph 98 text deleted to resolve unintended internal inconsistencies Amended paragraphs: paragraph 79 and 98 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: 25 March 2014
Gee
Department of Education and Communities
(1979) 46 FLR 409