Ms Alison Goodwin applied on 9 September 2020 under the Government Information (Public Access) Act 2009 (GIPA Act) for access to:
"…the full details of the Total Remuneration Package (TRP), broken down by all components, including all discretionary payments awarded and those awarded as an outcome to a job/role evaluation, in dollar terms and as a percentage increase on the previous year, in Financial Years (FY) 2015-16, 2016-17, 2017-18, 2018-19 and 2019-20 of
1. Sam Walker, Executive Director, Budget Division
2. Stephen Walters, Chief Economist, and
3. Joann Wilkie, Deputy Secretary, Economic Strategy and Productivity."
On 20 August 2020 the respondent determined to refuse the request but provided the applicant with the ranges of remuneration which applied to the bands of the senior executive service in which the three officers were employed.
On internal review, the respondent affirmed this decision. It confirmed that the remuneration of the three officers was within the bands of remuneration provided.
The applicant has requested review of the decision by this Tribunal. The respondent maintains that there are public interest considerations against disclosure which outweigh the public interest considerations in favour of disclosure.
[2]
Legislative context
Section 63 of the Administrative Decisions Review Act 1998 provides:
"63 Determination of administrative review by Tribunal
(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,
(b) any applicable written or unwritten law.
(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.
(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:
(a) to affirm the administratively reviewable decision, or
(b) to vary the administratively reviewable decision, or
(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or
(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal."
Section 5 of the GIPA Act provides:
"5 Presumption in favour of disclosure of government information
There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure."
Section 9 provides:
"9 Access applications
(1) A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.
(2) An agency is not subject to the direction or control of any Minister in the exercise of the agency's functions in dealing with a particular access application.
(3) The function of making a reviewable decision in connection with an access application made to an agency may only be exercised by or with the authority (given either generally or in a particular case) of the principal officer of the agency.
Sections 12 to 15 provide:
"12 Public interest considerations in favour of disclosure
(1) There is a general public interest in favour of the disclosure of government information.
(2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.
Note -
The following are examples of public interest considerations in favour of disclosure of information -
(a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.
(b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.
(c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.
(d) The information is personal information of the person to whom it is to be disclosed.
(e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.
(3) The Information Commissioner can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies.
13 Public interest test
There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
14 Public interest considerations against disclosure
(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.
(2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.
(3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section.
(4) The Information Commissioner must consult with the Privacy Commissioner before issuing any guideline about a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to this section).
Table
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) -
…
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,
…
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,
…
4 Business interests of agencies and other persons
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 -
…
(d) prejudice any person's legitimate business, commercial, professional or financial interests…"
15 Principles that apply to public interest determination
A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles -
(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."
Section 55 provides:
"55 Consideration of personal factors of application
(1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section -
(a) the applicant's identity and relationship with any other person,
(b) the applicant's motives for making the access application,
(c) any other factors particular to the applicant.
(2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information.
(3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14.
(4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for.
(5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to take reasonable steps to provide proof of his or her identity.
(6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person.
Note -
An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73."
Sections 104 and 105 provide:
"104 Right of appearance before NCAT
(1) The Information Commissioner has a right to appear and be heard in any proceedings before NCAT (and proceedings on an appeal in respect of any such proceedings) in relation to a review under this Division.
(2) The Privacy Commissioner has a right to appear and be heard in any proceedings before NCAT (and proceedings on an appeal in respect of any such proceedings) in relation to a review under this Division of a decision that concerns a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to section 14).
(3) Any person who could be aggrieved by a decision of NCAT on a review under this Division has a right to appear and be heard in any proceedings before NCAT in relation to the review.
105 Onus on agency to justify decisions
(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.
(4) If the review is of a decision to include information in a disclosure log despite an objection by the applicant for review, the burden of establishing whether the objection outweighs the general public interest to have the information included lies with the applicant for review."
Section 107 provides:
"107 Procedure for dealing with public interest considerations
(1) In determining an application for NCAT administrative review, 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 administrative review, 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 NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.
(3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of -
(a) the public and the applicant, and
(b) the applicant's representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure."
[3]
The respondent's evidence
The respondent opposed disclosure of the information.
It relied on the evidence of Mr Andrew Hubrechson-Yung, the Director, Organisational Development and Talent of NSW Treasury. Mr Hubrechson-Yung works within Human Resources and is responsible for executive staff remuneration, attracting talent and managing internal talent. He is regularly involved in recruitment and determination of the remuneration of executives within NSW Treasury. He said he negotiates all starting salaries for executive roles and advises the Treasury Secretary on salaries.
Executive roles fall into one of a number of bands. The bands applicable to the three officers were Bands 1, 2 and 3. The remuneration for the bands is predetermined. He stated that the total remuneration package (TRP) of a executive is determined on the consideration of several key factors which include the role's scope, the Work Value Points assigned to the role, and the capability and suitability of the preferred candidate. Work Value Points are determined by an accredited assessor based on the dimensions of the role. The TRP consists of the base salary plus superannuation; there are no discretionary bonuses or other components.
TRPs are not disclosed within NSW Treasury, except for reporting and compliance purposes or when a TRP outside the applicable WVPs is approved. They are not disclosed outside NSW Treasury. He said that the three officers' TRPS were inside the relevant range for their role during the financial years specified by the applicant.
It was the practice to publish TRPs when they fell outside the corresponding band, to provide transparency. Executives were counselled in advance that seeking a TRP above the band would result in the salary being disclosed.
His opinion was that disclosure of the exact TRPs for the officers would limit Treasury's ability to negotiate with candidates on salary because it would provide a reference point for candidates to use in such negotiations. In his experience candidates already used the figures for the relevant remuneration bands as reference points in salary negotiations. If they knew the exact TRPs of a person in the same or similar role it would limit his ability to start negotiations at a lower figure, regardless of the individuals capability.
Also disclosure would lead to existing Treasury employees comparing their TRPs to others and this could lead to perceptions of inequitable pay and claims regarding pay. If an officer discloses their TRP to someone within the organisation he finds regularly that another officer will ask why they are not being paid the same. He reminded officers on such occasions that the information was confidential.
He also said that if the TRPs were made public this would cause damage to Treasury's desirability as an employer to quality candidates who would not want their salaries exposed.
[4]
The third parties submissions
The reasons for the original decision disclosed that all three officers were consulted and objected to the disclosure of their TRPs. It stated that disclosure would breach their privacy because the TRP is determined by their experience, skills and specialisation. It would also affect their ability to negotiate remuneration outside of government in the future.
Ms Wilkie and Ms Walters appeared at the hearing seeking to be heard on the issues. They were heard pursuant to s 104(3) of the GIPA Act.
Ms Wilkie stated that she had experienced criticism in the media where her salary was identified incorrectly and on the basis of her salary she was labelled a "fat cat" by a politician who disagreed with comments she had made on diversity and inclusion. This led to her experiencing "trolling" on social media and to other news reports. She preferred that her TRP not be revealed. She said disclosure would also affect her ability to negotiate salaries in future. She said it may also discourage women from seeking senior roles in government.
Mr Walters stated that he had concerns about his TRP being disclosed as his skills were very transferable to the private sector. It may also compromise the outcome of past legal proceedings. If a future potential employer knew his TRP it would put an upper limit on what he could successfully negotiate.
[5]
The respondent's submissions
The respondent submitted that public interest considerations against disclosure applied to the information, under clauses 1(f), 3(a), and 4(d) of s 14 of the GIPA Act.
[6]
1(f) - disclosure could reasonably be expected to prejudice the exercise of the agency's functions
The functions of attracting or recruiting quality senior executives and negotiating remuneration with them would be adversely affected in the manner described by Mr Hubrechson-Yung. Negotiated salaries would be less commercially competitive and would lead to unnecessary claims for salary review internally as well as dissatisfaction among employees.
[7]
3(a) - disclosure could reasonably be expected to reveal an individual's personal information
The respondent submitted that it was not in dispute that the TRP information for each officer was personal information, which was defined as information or an opinion about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion (cl.4, Sch. 4 of the GIPA Act).
The impact on the individual's privacy would be significant if it were disclosed. This would also discourage quality applicants for applying for senior roles within Treasury. The individuals concerned objected to their TRPs being disclosed.
The respondent relied on HV and Department of Finance [2015] AICmr 84 in which the applicant applied for employment contracts, salary and conditions for an individual during the course of their employment in the offices of two members of Parliament. The Information Commissioner noted that the release of the information would cause stress on the third party and could reasonably be expected to prejudice the protection of an individual's right to privacy. He gave greater weight to the factor against disclosure.
[8]
4(d) disclosure could reasonably be expected to prejudice any person's legitimate business, commercial, professional or financial interests
The respondent submitted that it was apparent that disclosing the TRP of these individuals could prejudice their legitimate professional or financial interests by limiting their ability to negotiate future remuneration, particularly in the private sector.
The respondent agreed that there was a public interest in disclosing senior executive remuneration to provide insight into public expenditure, but contended that this was satisfied by disclosing the remuneration bands.
The public interests in favour of disclosure were limited because:
1. The TRPs concerned were all within the relevant band and band information was readily available to the public;
2. The TRPs consisted only of salary and superannuation, there were no hidden bonuses or other discretionary payments;
3. When an employee's TRP fell outside the band, it was published by the agency.
[9]
Applicant's case
The applicant did not dispute that the public interest considerations identified by the respondent existed, but she submitted that the decision maker placed too much weight on them as against the public interest considerations in favour of disclosure.
In relation to personal information, counsel for the applicant submitted that the case of Lower Burdekin Newspaper Company Pty Ltd v Lower Burdekin Shire Council [2004] QICmr 2 was relevant where it was said that:
"Some kinds of information about an individual's personal affairs are deserving of greater weight than others, in terms of the relative importance of the privacy interest to be protected." (at [23])
"Information about the gross salary paid to an employee of a government agency has a dual character. It is both information about the income of an identifiable individual… and information about the cost of having the duties of the relevant position performed for the benefit of the public… The public has a strong, legitimate and abiding interest in having access to sufficient information to enable scrutiny of whether funds raised by government are expended efficiently and effectively… I consider that there is a strong public interest consideration favouring disclosure to any interested member of the public, of information as to the total cost in salary and related expenses of any job for which a government decides to allocate funding, and that it is even stronger in the case of senior management positions…."[27-28]
Public servants ought to be accountable for their decisions, advice and actions which were reflected in their TRP. Transparency and accountability are fundamental to government operations and public service. The officials in question hold significant positions in relation to decision making for major projects, implementing strategic wage determinations and delivering on performance expectations.
The applicant also relied upon McLennan v University of New England [2013] NSWADT 113 in which the applicant sought salaries, KPIs and bonuses of a University's Senior Executive Staff, Directors and Heads of School. The University released all the information except for the actual bonuses paid although it provided information on the potential bonuses. The Tribunal determined that the balance favoured disclosure of the bonus information.
The remuneration ranges for each salary band are already available and therefore assumptions can be made about where the individuals fall within those bands in any event. It would allow gender gaps in remuneration to be identified. Future employers would have access to the band and the upper limit of that band would affect negotiations.
The detriment argued for by the respondent concerning disgruntled employees was minimal and not prejudicial to the agency's functions.
The applicant submitted that the public interest in the accountability and transparency of public expenditure exceeded the weight that should be given to individual difficulties in negotiation or prejudice to the agency in attracting quality candidates and negotiating competitive salaries.
[10]
Consideration
Information about an individual's remuneration has been held to be personal information - Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [104]. It is evident, therefore that the public interest consideration in 3(a) is established.
The applicant accepts, and I am satisfied, that disclosing the remuneration of persons in specific roles could reasonably be expected to cause some prejudice to the functions of NSW Treasury in attracting and negotiating salaries with candidates for senior roles, for the reasons stated by Mr Hubrechson-Yung. Therefore the public interest against disclosure in cl 1(f) is established.
With regard to cl. 4(d), "prejudice" under the GIPA Act has been held to mean "to cause detriment or disadvantage" or "to impede or derogate from": Hurst at [60]. The primary question is whether disclosure could reasonably be expected to cause prejudice to the employees in negotiating future remuneration should they seek employment outside NSW Treasury. The applicant disputed this, as their prospective employers were able to ascertain the upper limit of the TRP band currently. The respondent and the third parties contended that disclosure of the TRP would limit their ability to negotiate future salaries particularly in the private sector, where their skills are very transferable. Mr Walters said he spent much of his career in the private sector.
It is true that information has already been released about the remuneration but the available information is within a range of amounts.
As noted above, each TRP will fall somewhere in the range set for the senior executive band which applies to the individual executive role. Section 40(1) of the Government Sector Employment Act 2013 provides:
"(1) The remuneration package of a Public Service senior executive must be within the range determined under the Statutory and Other Offices Remuneration Act 1975 for the band in which the executive is employed."
These bands were set by the Government Sector Employment (Senior Executive Bands) Determination 2014 as follows:
1. Band 4 - Secretary level
2. Band 3 - Deputy Secretary level
3. Band 2 - Executive Director level
4. Band 1 - Director level
For example it was stated by Mr Hubrechson-Yung that the Band 2 range in 2019-20 which applied to Mr Walker and Mr Walters was $274,701 - $345,550 and the Band 3 range which applied to Ms Wilkie was $337,101- $475,150.
It is clear from Mr Hubrechson-Yung's evidence that Treasury seeks to negotiate starting salaries with its senior executives within the relevant band, A former Treasury employee seeking to negotiate a salary outside the public sector would, even if the band was known to their employer, be able to negotiate a figure higher than their actual TRP. If the exact TRP was known, that option would not be available to them.
I am satisfied that the factor in 4(d) applies to the information. It is not unreasonable or fanciful to expect that their future salary negotiations would be affected if their previous salary was public knowledge, particularly in the private sector.
With relation to 3(a), it was not disputed that the information was personal information, the issue was how this should be weighed against the factors in favour of disclosure.
The applicant relied on McLennan and Hurst. I note that in McLennan there was no objection by the persons whose remuneration details were sought. The case was determined solely on whether release of information relating to staff bonuses could be reasonably expected to prejudice the University's legitimate business interests in the proper and orderly management of staff performance under cl. 4(d).
In Hurst, also, while access to the remuneration information was granted, that case was only determined on the application of cl 3(a).
In HV, the considerations under the Freedom of Information Act 1982 were different. The Acting Information Commissioner found that the information was not publicly available and the release of the documents would cause stress on the third party and it was therefore unreasonable to disclose it. In balancing the public interest factors favouring and against disclosure he placed greater emphasis on the individual's right to privacy. The decision does not state why this was given greater weight.
The GIPA Act does not refer to a right to privacy as such. The public interests against disclosure are limited to those specified in the Act (s 14(2)).
In the Lower Burdekin Newspaper Company case, the Information Commissioner held at [27-28]:
"Information about the gross salary paid to an employee of a government agency has a dual character. It is both information about the income of an identifiable individual (and hence information concerning that individual's personal affairs) and information about the cost of having the duties of the relevant position performed for the benefit of the public… The public has a strong, legitimate and abiding interest in having access to sufficient information to enable scrutiny of whether funds raised by government are expended efficiently and effectively in furtherance of the wider public interest. This extends to scrutiny of whether the public is obtaining value for money from performance of the duties of particular positions for which a government has decided to allocate funding. This public interest is even stronger in the case of senior officers who have responsibility for devising and/or implementing strategic and operational plans, and delivering key performance outcomes.
I consider that there is a strong public interest consideration favouring disclosure to any interested member of the public, of information as to the total cost in salary and related expenses of any job for which a government decides to allocate funding, and that it is even stronger in the case of senior management positions of the kind under consideration in the present case."
He also referred to "a trend of decision-making in other Australian tribunals" (at [31]) whereby the above public interest considerations outweigh the privacy interests of a public sector employee as to the total amount of their salary package. The case has been approved in Polden v University of Sydney [2016] NSWCATAD 201 at [91]; as well as Hurst and McLennan.
There is a general public interest in favour of the disclosure of government information and I am also satisfied that disclosure of the information could reasonably be expected to inform the public about such remuneration and increase transparency and accountability regarding remuneration of senior executives within NSW Treasury.
The applicant submits that the remuneration of the three officers is of public interest because of their roles. There was no evidence available to me on their roles, apart from their titles, but I infer from these that they perform significant roles within NSW Treasury and it is common knowledge that the Treasury is responsible for matters relating to the NSW economy and public expenditure.
The main difference between this case and the cases cited is that the agency has disclosed the salary range which applies to the employees. Disclosing the range alone does not provide full transparency, however, because the range is quite wide. Where the individual's remuneration may fall within the band will depend on a number of factors, some of which may be available to the public (such as the nature and size of the agency they are employed in) and others which are not.
[11]
Conclusion
I am required to decide what is the correct and preferable decision based on the relevant law and the material before me. In conducting the balancing exercise required by the legislation, I have weighed the public interest considerations against disclosure and those in favour of disclosure. I consider that it is well established that there is a strong public interest in transparency and accountability regarding remuneration of senior executives in government where this is paid from public funds. It is important that the public can be satisfied that such funds are being expended responsibly. I consider that this outweighs the extent of the established prejudice to the functions of the agency in recruiting suitable employees.
I have considered the matters raised by Ms Wilkie and Mr Walters. I cannot consider the possibility that disclosure of information might be misinterpreted or misunderstood by any person, including the media or legal parties, however (s 15(d) GIPA Act). While Ms Wilkie raised that disclosure might discourage women from seeking senior roles because of uninformed criticism, I agree with the applicant that it may also have a positive effect by exposing any unmerited distinctions between the TRP of male and female executives.
I accept that the interests of individuals in being able to negotiate a competitive salary outside Treasury is a significant public interest; however, as the bands are already available I think that this public interest is outweighed by the public interest considerations in favour of disclosure referred to above.
Accordingly I find that the public interest considerations in favour of disclosure outweigh those against disclosure and that access to the relevant information should be provided.
[12]
Orders
The decision under review is set aside and in substitution a decision is made providing access to the information sought by the applicant within 28 days of the date of publication of these reasons.
[13]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 22 June 2021