Hau v South Eastern Sydney Local Health District

External Review

1. The applicant applied to the Information Commissioner for a review of the respondent's decision. However, that review had not been completed when the applicant commenced the current administrative review proceedings.

Application for administrative review

1. On 29 May 2024, the applicant's solicitors filed the current application for administrative review, which raised the following grounds: I act for Kam Hung Hau who us also known as Joyce Hau and am instructed to apply for a review of the decision made by Legal Services Unit of SESLHS dated 19 February 2024. No actual report is provided as per our request. I attach herein the notice of decision received from LSU on 19 February 2024.
2. The applicant's solicitor also submitted a volume of documents relating to the workplace dispute between the applicant and the respondent and he asserted that these are relevant "to shed light on the history of this matter". However, in my view these documents are not relevant to the current administrative review and I have not referred to them in this decision.
3. The applicant's solicitor also stated that he was "instructed to seek assistance from you in relation to a recent workplace dispute…" between the applicant and the respondent cited that information in this decision.
4. However, this Tribunal has no jurisdiction to determine a workplace dispute between the applicant and the respondent. I have therefore not set out the applicant's submissions regarding that dispute in this decision.

Procedural matters

1. On 17 June 2024, Senior Member McAteer conducted a case conference at which Mr H Tsan appeared for the applicant and Mr S Munoch appeared for the respondent. There was no appearance by or on behalf of the Information Commissioner.
2. Senior Member McAteer ordered the respondent to file and serve its evidence by 15 July 2024. He ordered the applicant to file and serve her evidence and to give notice of any witnesses required for cross-examination by 13 August 2024. He directed the respondent to file and serve any evidence in reply by 2 September 2024. He listed the matter for hearing on 27 September 2004 and also made the relevant notation: The applicant notes and agrees that the Tribunal is unable to address and deal with the industrial workplace matters raised at paragraph [4] of Annexure 'A' to their review.
3. On 17 July 2024, Principal Member Simon amended the timetable for the filing and service of evidence, granted leave for Ms Helen Blake (the respondent's witness) to give evidence by way of audio-visual link and confirmed the hearing of the matter. However, she gave the parties an opportunity to make submissions as to whether the hearing could be dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).
4. On 15 August 2024, Principal Member Simon further extended the timetable and confirmed the hearing.
5. On 24 September 2024, Principal Member Ransome vacated the hearing and ordered that the matter be determined on the papers pursuant to s 50(2) of the NCAT Act.

The respondent's case

1. The respondent filed written submissions on 16 July 2024, in which it stated that it relies upon the following evidence: 1. Open bundle of documents; 2. Confidential bundle of documents; and 3. Affidavit of Helen Blake affirmed on 16 July 2024.
2. After providing a background to the industrial/workplace dispute that forms the basis of the GIPA request, the respondent identified relevant provisions of the GIPA Act as being ss 5, 12, 13, 14(1), 14(2), 55, 58, 80, 100 and 107.
3. The respondent referred to the approach to the public interest test under s 13 of the GIPA Act and cited the decision of the Appeal Panel of the Administrative Decisions Tribunal in The Commissioner of Police (NSW) v Camilleri (GD) [2012] NSWADTAP 19, as follows: 24. Putting to one side the cases where a conclusive presumption is relied upon, the Act envisages a two-step approach to the question of whether information has been properly refused. 25. The new Act has a more structured approach to the decision-making task than was seen under the previous legislation. The agency case for refusal must rely on one or more of the section 14 Table considerations. The Tribunal's task is then to weigh that case against the factors favouring disclosure (s 13), mindful of the injunctions that appear in both ss 12 and 15. It is important, in our view, that the Tribunal proceed in the structured way reflected by these provisions. The Table considerations are concerned with systemic features of the operation of government. 26. We agree with the agency's submission that the section 14 questions needed to be examined at a broader operational level than occurred in this case. The record in issue was generated in one of the standard services of the police force. It would not be usual, as we see it, to introduce at this stage of the process considerations connected with the particulars of the instant situation. The agency acknowledged that at the next stage of the enquiry, the section 13 stage, it would be proper to have regard to specific aspects of the instant case.
4. The appeal panel concluded that it was "not relevant to the Tribunal's task at the section 14 stage of the enquiry to take account of the circumstances that gave rise to the document or information the subject of the refusal" as "the section 14 enquiry is directed to the administrative structure and context, and its conditions, to which the document or information belonged": at [37]
5. The considerations against the disclosure in the table to s 14 arise where the disclosure of information "could reasonably be expected to" have the relevant effect. The phrase "could reasonably be expected to" was also used in Sch 1 of the former Freedom of Information Act 1982 (Cth), and it has been the subject to extensive judicial consideration. In Attorney-General's Department v Cockcroft (1986) 10 FCA 39, Bowen CJ held (at [29]) that the words: … require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like…
6. In Leech v Sydney Water Corporation [2010] NSWADT 298, the Administrative Decisions Tribunal held that: 25. … The term 'could reasonably be expected' has been considered in a number of cases. The words have their ordinary meaning: Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163. The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC.
7. The Tribunal approached this approach when considering the GIPA Act in Flack v Commissioner of Police (NSW) [2011] NSWADT 286, at [4].
8. The word 'prejudice' is given its ordinary or everyday meaning, being "to cause detriment or disadvantage" or "to impede or derogate from": see Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60].
9. The word 'reveal' is defined in Sch 4, cl 1 as follows: reveal information means to disclose information that has not already been publicly disclosed (otherwise than by lawful disclosure).
10. In Transport for NSW v Searle [2018] NSWCATAP 93 (Searle), the Appeal Panel found that the Tribunal erred by applying an overly demanding evidentiary standard, by requiring the agency to provide "factual" evidence in order to satisfy the "could reasonably be expected to" standard. The Appeal Panel was particularly critical of the Tribunal's emphasis on the need for specific evidence as to what suppliers of information would actually do if the confidentiality of information could not be assured. Given the administrative nature of the decision in issue, and the abstract and hypothetical subject matter, the Appeal Panel found that the Tribunal had overstated the importance of such evidence and been too stringent in its approach. An ordinary weighing of the material by the tribunal would give prominence to inferences drawn from the objective and otherwise established facts rather than the subjective views of witnesses.

Public interest considerations in favour of disclosure

1. The respondent argued that when applying the public interest test, the Tribunal must make findings as to what public interest considerations favouring disclosure that it considers apply to the information in issue, and the weight to be attributed to those considerations: see Snape v Commissioner of Police [2022] NSWCATAP 244 at [41] and Bailey v Commissioner of Police [2023] NSWCATAP 103 at [92].
2. Section 12 of the GIPA Act provides that there is a general public interest in favour of disclosure of government information. Section 12(2) confirms that an agency is not limited as to what other public interest considerations favouring disclosure it may consider. In addition to the general public interest favouring disclosure, the respondent considered the fact that some of the information was personal information of the applicant and the fact that the applicant had an interest in the outcome of the respondent's misconduct investigation.

Public interest considerations against disclosure

1. The respondent relied upon cll 1(d), 1(e), 1(h) and 3(a) of the table to s 14(2) of the GIPA Act. These provide relevantly: 1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally) - … (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, (e) reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency, (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). … 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,…

Clause 1(d)

1. The respondent argued that cl 1(d) applies in relation to information responsive to items 2, 3, 6 and 10 of the GIPA request, as it contains information that supplied confidentially to the respondent in the course of responding to and managing the applicant's workplace conduct. The respondent stated, relevantly: 41. The question of whether the consideration in cl 1(d) is established involves a relatively abstract analysis, as the issue to be decided is predictive about a future consequence from unspecified persons based on a hypothetical scenario: Camilleri at [26] and Searle at [56]. As the Tribunal observed in Collins v Department of Finance, Services & Innovation [2018] NSWADTAD 60 (Collins) at [61], the relevant elements of cl 1(d) are that: (i) the information was obtained in confidence; (ii) disclosure of the information could reasonably be expected to prejudice the supply of such information to the agency in the future; and (iii) the information facilitates the effective exercise of the agency's functions. 42. With respect to the first limp of cl 1(d), the Appeal Panel outlined the general approach to determining whether or not information is confidential in Camilleri at [33], and stated: 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. In our view, the Tribunal did not adequately explain why it rejected the agency's case on this point.
2. The respondent argued that applying that approach to the current matter, he tribunal should find that cl 1(d) applies to the information sought in items 2, 3, 6 and 10 of the GIPA request and that this includes confidential information.
3. The respondent referred to and relied upon an Affidavit of Helen Blake affirmed on 18 July 2023. Ms Blake deposed that she is the Manager, Employee and Industrial Relations and she provided evidence regarding the applicable misconduct management policies and procedures and a number of distinct issues that were raised by the current GIPA request. Ms Blake stated that the receipt and management of concerns about staff members are dealt with in accordance with the relevant NSW Health and SESLHD policies and directives, which emphasise the confidential nature of the grievance management process. In particular, it is a policy requirement that: 1. Persons involved in the misconduct management process have both the right to confidentiality and a responsibility for maintaining confidentiality; 2. Persons involved in the misconduct management process be advised of the reasons for interview and that its content must remain confidential; 3. Persons involved in the misconduct management process be advised of the outcome "in so far as it relates to them", but "having regards to the confidentiality of other persons involved in the matter"; and 4. At the conclusion of the process, all records of all stages of the process be maintained on a dedicated and confidential file, separate to the staff member's personnel file.
4. Ms Blake also deposed that it is her experience and expectation that confidentiality will be maintained at all stages of a misconduct management process and that this is manifested in practice: (1) by limiting the distribution of material and information relating to those who have a genuine "need to know" and limiting the amount of information provided to that which is necessary; (2) asking the parties not to discuss the process among themselves, nor share nor distribute materials; and (3) materials held by persons involved in the grievance management process being securely stored at all times.
5. The respondent argued that the information sought in items 2, 3, 6 and 10 of the GIPA request is confidential information having regard to the framework described by Ms Blake and the documentation contains information that was supplied to the respondent in confidence.
6. The Tribunal has accepted that complaints regarding alleged misconduct are made in confidence. In MJ v Department of Education and Communities [2013] NSWADT 213 (MJ) at [73], the Tribunal held: It is well established that a function of an agency is to deal with and action allegations of misconduct by one or more of its officers. The effective exercise of that function is based on complaints being made voluntarily and that the making of the complaint and any action taken in regard thereto remains confidential, to the extent required by law.
7. In AMH v Western New South Wales Local Health District [2013] NSWADT 282, the Administrative Decisions Tribunal accepted that information provided by employees in an internal investigation into allegations of bullying and harassment was given in confidence. There was evidence that each witness had been advised in writing that the investigation process was confidential, that the relevant policy governing the disciplinary process allowed for access to information to be limited, and that the employees spoke only on the understanding that what they said would be treated confidentially (at [44]-[48]).
8. Similarly, in Amos v Western NSW Local Health District [2017] NSWCATAD 359, the Tribunal was satisfied the investigation process was confidential in nature; that witnesses had an expectation that the information they provided would be treated confidentially and disclosed only on a strict "need to know" basis (at [49]).
9. More recently, in Pillinger v Northern Sydney Local Health District [2021] NSWCATAD 14 (Pillinger), the tribunal was satisfied that information within an investigation report was "confidential information" having regard to the confidential nature of the complaints management and investigative process and the specific assurances of confidentiality of information provided to the interviewees (at [64]).
10. The respondent argued that the second limb of cl 1(d) is not concerned with whether a particular interviewee, whose comments are disclosed, would in future refuse to supply that information. Rather, the question is to be determined at a broader operational level: see Director-General, Department of Education & Training v Mullett [2002] NSWADTAP 13 at [58], which was approved in Camilleri at [28]-[29].
11. Ms Blake deposed that the respondent relies upon the voluntary participation of staff in an investigative process and that staff can be reluctant to raise concerns about other staff and are more-generally reluctant to participate in internal investigations, likely due to concerns about the impact that their participation will have on workplace relationships and the work environment. Further, she stated that on occasion, staff will only participate in an investigation based on a condition of anonymity and maintaining confidentiality is essential to maintaining the confidence that staff have in the process. If information provided during such a process were released under the GIPA Act, it is reasonable to expect that staff would be unwilling or reluctant to participate in future investigations.
12. In Robinson v Department of Health [2002] NSWADT 222 at [71], the tribunal observed that the effective performance of an agency's investigative functions depended to a large extent on the cooperation of those who had relevant information. The tribunal held that if information obtained confidentially was to be provided to an applicant under the predecessor to the GIPA Act, then that disclosure could reasonably be expected to have a substantial adverse effect on the effective performance by an agency of the agency's functions.
13. In Alexander v University of Sydney [2008] NSWADT 214 at [33]-[35], the Administrative Decisions Tribunal considered that the absence of confidential channels of communication would seriously inhibit the University's capacity to identify possible employee misconduct and it would compromise the ability of the University to continue to conduct investigations in a fair and effective manner.
14. The third limb of cl 1(d) involves consideration of the effect of disclosure on the effective exercise of the agency's functions. The respondent argued that the supply of confidential information of the nature sought in items 2, 3 6 and 10 of the GIPA request is necessary for the efficient exercise of the respondent's misconduct management and investigative functions and its human resources functions.
15. On that basis, the Tribunal would be satisfied that cl 1(d) applies to the information sought in items 2, 3 6 and 10 of the GIPA request and that this consideration should be afforded considerable weight.

Clause 1(e)

1. The respondent argued that cl 1(e) also applies to the information sought in items 2, 3, 6 and 10 of the GIPA request, as disclosure of the information would be reasonably likely to reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency.
2. In Fire Brigade Employees Union v Fire and Rescue NSW [2014] NSWCATAD 113 at [58], the Tribunal adopted the analysis of the Administrative Appeals Tribunal in Re Waterford and Department of Treasury (No 2) (1984) 1 AAR 1, in which it was eld that the deliberative processes involved in the functions of an agency are: As thinking processes - the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action.
3. The Tribunal has applied this analysis in the decisions of Else v Ministry of Health [2021] NSWCATAD 381 at [39]; Rock v Legal Aid NSW [2021] NSWCATAD 308 at [120]-[121]; and Dennis v Department of Planning, Industry and Environment [2021] NSWCATAD 377 at [74].
4. In Ryan v NSW Minister for Planning and Open Spaces [2021] NSWCATAP 221, the Appeal Panel made the following observations regarding cl 1(e) at [34]: 1. cl 1(e) contemplates that the deliberative process that may reasonably be expected to be prejudiced may be a "particular case or generally". Thus, the focus of this clause goes beyond particular deliberative processes; 2. there is no requirement that the deliberative process that may reasonably be expected to be prejudiced is the same as the deliberation which could be expected to be revealed by disclosure of the information (where it is a deliberation rather than a consultation, opinion advice or recommendation that would be revealed by disclosure of the information). This is clear from the use of the phrase "a deliberative process"; 3. the existence of a deliberative process which might reasonably be expected to be prejudiced by disclosure will turn upon the evidence before the Tribunal in each case. Whilst the parties referred in their submissions to particular cases in support of their preferred interpretation, those cases turn on their particular facts. For example, in AQJ, the Tribunal found that the deliberative process had concluded, whereas in Owen the Tribunal found that there was an ongoing deliberative process.
5. The respondent argued that its ability to conduct future investigations into misconduct complaints would be prejudiced by the release of the information sought in items 2, 3, 6 and 10 of the GIPA request, as if staff were aware that information that they supplied in the course of an investigation could subsequently be disclosed to the person(s) concerned, it is reasonable to infer that they would be less forthcoming in their responses or be unwilling to participate in the process. The full and frank participation of staff in an investigation is necessary to ensure that internal deliberations are fully informed and based on all available evidence, the absence of which would significantly impact the respondent's ability to effectively conduct the deliberative process.
6. The respondent also argued that the release of information sought in items 6 and 10 of the GIPA request would prejudice the ability of People and Culture or staff to freely exchange opinions on sensitive workplace matters, which may extend to assessing of evidence during misconduct processes or the risks to other staff or patients arising from complaints of misconduct or other workplace conduct. The respondent's ability to effectively manage and deliberate on this would be significantly impacted if persons involved in the making of management decisions were unable to deliberate and express concerns freely and in confidence. Ms Blake addresses this in her Affidavit.
7. In Luxford v Department of Education and Communities [2016] NSWCATAD 118, the tribunal accepted that staff may feel inhibited in providing frank and honest views on issues relating to complains about staff, or may decline to participate in the deliberative process altogether, if sensitive deliberations were released. Staff may also feel reluctant to do so in written form, in circumstances where oral communications would remain confidential.
8. Similarly, in Miskelly v Secretary, Department of Education [2019] NSWCATAD 48, the Tribunal considered that in order to manage and investigate incidents, the respondent needed to be able to freely discuss privately, and frankly, how to best manage and resolve sensitive issues affecting the operations of schools, and the release of records of internal discussions concerning students or parents would impair the ability of the agency to undertake its day to day functions (at [54]).
9. In Pillinger (supra), the Tribunal was satisfied that the complaints management and investigative process required the full and frank participation of staff and, to the extent that disclosure of information relating to an investigation could dissuade staff in future from participating, that could prejudice the deliberative process of the Local Health District in responding to and addressing complaints about staff (at [73]).
10. On that basis, the respondent argued that cl 1(e) applies to the information sought in items 2, 3, 6 and 10 of the GIPA request and that the Tribunal should afford this considerable weight.

Clause 1(f)

1. The respondent argued that cl 1(f) also applies to the information sought in items 2, 3, 6 and 10 of the GIPA request, for the reasons set out in relation to cll 1(d) and 1(e).

Clause 1(g)

1. The respondent argued that cl 1(g) also applies to the information sought in items 2, 3, 6 and 10 of the GIPA request, for the reasons set out in relation to cll 1(d) and 1(e).

Clauses 3(a) and 3(b)

1. The respondent argued that it is a public interest consideration against disclosure of information where disclosure could reasonably be expected to reveal an individual's personal information (cl 3(a)) and/or where disclosure could reasonably be expected to contravene an Information Privacy Principle (IPP) under the Privacy and Personal Information Protection Act 1998 (NSW) (the PPIPA) or a Health Privacy Principle (HPP) under the Health Records and Information Privacy Act 2002 (the HRIPA).
2. In McKinnon v Blacktown City Council [2012] NSWADT 44 at [73], the Administrative Decisions Tribunal confirmed that information and opinions about the conduct of employees or contractors of the agency in the course of undertaking their duties was "personal information" within the meaning of the GIPA Act: See also Singh v Legal Aid Commission (No 2) [2015] NSWCATAD 5 at [49] and Bannister v Department of Finance, Services and Innovation [2018] NSWCATAD 33 at [82].
3. The respondent argued that the information responsive to items 2, 3, 6 ad 10 of the GIPA request name a number of individuals (including staff and patients) and disclose other forms of sensitive information. In so far as the documents reveal information that has been supplied by those individuals in the course of the misconduct management process, or is of the nature of an opinion about that information, it is personal information of those individuals. While it is possible to redact the names of their persons and/or other information, the respondent argued that the identity of those individuals could reasonably be ascertained on the basis of the information contained in those documents. Therefore, disclosure would reveal the personal information of those individuals.
4. The respondent also argued that disclosure of this information would contravene s 18(1) of the PPIPA, as disclosure under the GIPA Act does not fall within any of the stated exceptions in ss 18(1)(a), (b) or (c) of the PPIPA. Further disclosure of information sought in items 2, 3 and 6 of the GIPA request would also require disclosure of health information belonging to the patient in relation to whom the concerns about the applicant were raised. This would contravene HPP 11 of the HRIPA. Disclosure of that health information under the GIPA Act is not necessary for the respondent's investigation of the matter or reporting its concerns to relevant persons or authorities (cl 11(1)(ii) of Sch 1 to the HRIPA). This is evident from the fact that the formal investigation and delivery of remedial action to the applicant has concluded.
5. The respondent concluded that cll 3(a) and 3(b) of the GIPA Act should be afforded considerable weight.
6. Ultimately, the respondent argued that the public interest considerations in favour of disclosure of the information sought in items 2, 3 6 and 10 of the GIPA request are outweighed by the public interest considerations against disclosure. Therefore, the correct and preferable decision for the Tribunal to make is to affirm the decision under review.

Information that is not held by the respondent

1. The respondent argued that while the applicant appears to seek a review of its decision that it does not hold information responsive to items 1, 4, 7, 9, 10 and 11, this consideration only applies to item 1 of the GIPA request.
2. Section 53(1) of the GIPA Act provides that the obligation of an agency to provide information in response to an access application is limited to information held at the time the application is received. Pursuant to subs (2) and (5), an agency is required to undertake reasonable searches as may be necessary to find any of the information applied for, using the most efficient means available to it which does not involve an unreasonable and substantial diversion of its resources.
3. The respondent stated, relevantly: 89. The Tribunal has jurisdiction to review a decision that information is not held by an agency (s 80(e)), but it has no power to review the sufficiency of an agency's searches. However, the Tribunal has found that it will be a relevant consideration as to the correctness of the determination that information is not held: see Wojciechowska v Secretary, Department of Communities and Justice [2021] NSWCATAD 298 at [73]. Dinnen SM (sic) described a two-stages process for reviewing such a determination in Amos v Central Coast Council [2019] NSWCATAD 226 as follows (at [12]): 1. The tribunal is to first ask whether there are reasonable grounds to believe that the requested information exists and is information of the agency. 2. If the answer to question (1) is "yes", the Tribunal must then ask itself whether the efforts made by the agency to locate the information have been reasonable in the circumstances of the case.
4. The applicant bears a practical onus of demonstrating that there are reasonable grounds for believing that further information that falls within the scope of the GIPA request exists and that this has not been disclosed: Stanley v Roads and Maritime Services (NSW) [2014] NSWCATAD 123 at [57]. This onus requires her to file some credible evidence or submissions in the proceedings.
5. In Miriani v Commissioner of Police, NSW Police Force [2005] NSWADT 187, the Administrative Decisions Tribunal identified the following relevant considerations when determining whether reasonable searches have been conducted by an agency on review (at [30]). See also Amos at [14]: … "the clarity of the request, the way the agency's record keeping system is organised, and the ability to retrieve any documents that are the subject of the request, by reference to the identifiers supplied by the applicant or those that can be inferred reasonably by the agency from any other information supplied by the applicant"…
6. The respondent argued that Ms Blake gave evidence about the respondent's retention of CCTV footage and its installation of CCTV in patient areas of the Sydney/Sydney Eye Hospital and that the respondent's policies for retention disclose a very short period of time, subject to limited exceptions. She stated that CCTV is not installed in the areas that the events that are the subject of the applicant's misconduct occurred. Nevertheless, she conducted searches and gave evidence that nothing was located in response to item 1 of the GIPA request.
7. On that basis, the respondent argued that the Tribunal should be satisfied that it conducted reasonable searches and that there is no reason to believe that the information sought in item 1 of the GIPA request is not held by the respondent. The applicant has been notified of this on not less than two occasions and she has not provided any credible material or submission that gives rise to a legitimate doubt as to whether the CCTV footage exists.

Information already available to the applicant

1. The respondent noted that Ms Blake gave evidence of occasions on which the applicant was provided with correspondence providing reasons why certain actions were or were not taken in the course of the respondent's investigation in response to workplace issues that the applicant raised. She annexed the letters that are responsive to those categories of information to her Affidavit.
2. For these reasons, the respondent's decision pursuant to s 59(1)(f) of the GIPA Act, that the information sought in items 4, 7, 8, 9 and 11 of the GIPA request is already available to the applicant, should be affirmed. There is no reason for the Tribunal to believe that this correspondence is no longer in the applicant's possession.

The applicant's case

1. The applicant filed submissions on 20 August 2024 and an affidavit that she affirmed on 20 August 2024.
2. The applicant's submissions indicate that she no longer presses hr claims for access to information under items 1, 4, 5, 7, 8, 9 and 11 of the GIPA Act. Accordingly, the issue for determination by the Tribunal is whether disclosure of the information sought in items 2, 3, 6 and 10 of the GIPA request qould be against the public interest.

Clauses 1(d) and 1(e)

1. I note that the applicant's submissions regarding these public interest considerations against disclosure are confusing in that they assert that the "respondent" (not the applicant) submits that whilst the respondent acknowledges that items 2, 3, 6 and 10 may be confidential information, the disclosure will not prejudice future supply of information because the respondent has never intended that such information, if disclosed, will affect the respondent 's functions.
2. The applicant's solicitor asserts that the exchange of correspondence between the respondent and himself "clearly demonstrates that participation in the investigation is not voluntary, but mandatory". He also argued that cl 4.3.8 of the Code of Conduct provides that "staff must comply with all lawful and reasonable directions given by their managers or other members of staff authorised to give them". He asserted: In other words, if a staff member is directed to give evidence or participation (sic) in an investigation, the staff member cannot reject or refuse to do so because the refusal may amount to a breach of the Code of Conduct which may result in disciplinary action.
3. The applicant also disagreed with Ms Blake's evidence that some staff will only participate in an investigation on the condition of anonymity and she asserted that the two fact-finding letters issued to her by the respondent disclosed the name and position of the witnesses or complainants. On that basis, she argued that disclosure of the information sought in the GIPA request will not have an impact or affect the effective functions of the respondent.

Clause 1(f)

1. The applicant's solicitor argued that the respondent is under a responsibility to maintain and advance a system of responsible and representative democratic government that is open, accountable, fair and effective pursuant to section 4 of the GIPA Act.
2. However, with all due respect to the applicant's solicitor, this is a stated goal of the GIPA Act and not a function of the respondent.
3. The applicant's solicitor then made submissions referring to the applicant's evidence as to unfair treatment etc. in the workplace. However, I note that by reason of the applicant's agreement at the case conference that the tribunal lacks jurisdiction in relation to industrial/workplace issues, I consider that these submissions are not relevant to the current administrative review.

Clauses 3(a) and 3(b)

1. The applicant's solicitor stated that the applicant disputes that disclosure of the information sought in items 2, 3, 6, and 10 would reveal personal information of an individual, on the basis that the names and positions of the witnesses and complainants have already been disclosed to her.
2. With all due respect to the applicant's solicitor, this submission does not properly address cll 3(a) and 3(b) of the GIPA Act.

Decision that information is not held

1. The applicant's solicitor stated: 26. With respect to the paragraph 25 above, the applicant does not wish to provide extensive submissions on this point but wish to comment that if a determination is reached by the respondent to take disciplinary action against, there has been some explanation and reasons as to why such a determination is concluded. Similarly, if the respondent decided not to initiate any investigation or take actions against any persons that the applicant had made complaints about, there must be a proper reason given and on what basis that no investigation ever initiated. The reason provided in the respondent's correspondence dated 9 Augus 2023 sent to the applicant is inadequate.
2. The applicant concluded that the tribunal should grant her access to information sought in items 2, 3, 4, 6, 7, 8, 9, 10 and 11, or if other documents are not held, it should grant her access to information sought in items 2, 3, 6 and 10. In the alternative, the Tribunal should grant her access to the information sought in a redacted form.
3. In her affidavit affirmed on 20 August 2024, the applicant focussed on the workplace/industrial process that was conducted by the respondent, with respect to which this Tribunal lacks jurisdiction. She concluded: 24. I understand that the Tribunal is the last resort that I will be given the chance to uphold my right to access certain documents concerning myself and the answers as to how the respondent conducted the investigation against me.
4. However, the applicant did not provide any relevant evidence or submission that provide any sound basis for disputing the respondent's decision that information sought in the GIPA request is not held by the respondent.

Respondent's case in reply

1. The respondent filed written submissions in reply on 3 September 2024, in which it sought to make a correction to Ms Blake's evidence, so that her reference to "grievance management process" should actually refer to "misconduct management process". I note that the applicant's solicitor did not take issue with this correction in any correspondence to the Tribunal.
2. The respondent noted that the applicant sought to raise wider workplace issues including bullying and a "political and unhealthy work environment" in which "incidents or complaints go unreported and un-investigated because of the non-transparent system that the respondent has in place". It responded as follows 7. The respondent submits that the tribunal does not have sufficient evidence permitting it to find that the respondent's workplace is attended with these supposed wider-scale issues. Indeed, Ms Blake provides evidence in relation to the processes followed by the respondent when handling complaints of misconduct, which includes practices that ensure that all employees are given a fair opportunity to respond to allegations against them and an initial assessment on the risks facing the respondent's patients and/or staff. Ms Blake's evidence is entirely consistent with the respondent's policies for managing complaints and instances of misconduct, which are freely available to all staff (including the applicant). The process can hardly be described as opaque. 8. Moreover, the applicant's affidavit asserts instances of bullying or failure on the respondent's part to adequately address complaints of misconduct which are wholly devoid of surrounding information or context, difficult to follow and scandalous. The applicant's belief as to the manner in which the respondent has handled her misconduct investigation against her is just that. She has not provided the Tribunal (or, indeed, the respondent, in the course of its investigation) with any real basis for saying that she has been the victim of workplace bullying. 9. The respondent really only has evidence before it that the investigation conducted against the applicant was conducted in accordance with the respondent's policies, which included multiple opportunities on her part to respond to allegations that were appropriately particularised against her. The process cannot be described as lacking transparency or one-sided. The applicant was provided with reasons why the various allegations she raised against other employees were not pursued further by the respondent. Immediately before this, she (by her solicitor) briefly engaged with the substance of the misconduct complaints communicated to her by the respondent, but proceeded to make broad and collateral complaints against other employees (including some employees entirely unrelated to the allegations communicated to her, who were involved in grievance handling some years prior). The present allegations I AS further reflect a pattern of behaviour on the applicant's behalf to raise systemic or collateral issues with the respondent, rather than engaging with the misconduct or complaints made against her.
3. The respondent concluded that the Tribunal should dismiss the current application for administrative review.

The disputed information

1. The respondent decided to withhold the following documents on the basis that they were subject to an overriding public interest against disclosure: No. Description Relevant Public Interest Consideration against Disclosure from table to s 14(2) of the GIPA Act
2. Email from witness to People & Culture 3(a), 1(d), 1(e) & 1(h)
3. Confidential investigation report 3(a), 1(d), 1(e) & 1(h)
4. Transcript of witness interview 3(a), 1(d), 1(e) & 1(h)
5. Correspondence and letters regarding the "Training Pathway Issue" 3(a), 1(d), 1(e) & 1(h)

1. I note that in its written submissions, the respondent relied upon cll 1(d), 1(e), 1(f), 1(g), 3(a) and 3(b) of the Table to the GIPA Act and the applicant addressed (or purported to address) those considerations in her case.
2. Accordingly, I am satisfied that there is no prejudice to the applicant in considering whether cll 1(d), 1(e), 1(f), 1(g), 3(a) and 3(b) of the table to s 14(2) apply to this matter and, if so, the weight to be given to those considerations.

Consideration of confidential documents

1. The respondent lodged copies of documents numbered 1, 2, 3 and 4 in the Schedule of Documents with the Tribunal on a confidential basis.
2. In applying the public interest test, it was necessary for the Tribunal to consider these documents pursuant to s 107 of the GIPA Act, which provides: 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. I duly perused these documents and my findings are set out below.

Administrative Decisions Review Act 1997 (NSW) (ADR Act)

1. Section 63 of the ADR Act 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 that the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) the 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.

GIPA Act

1. Section 3 of the GIPA Act provides, relevantly: (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: … (b) by 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.
2. This object is amplified with a statutory command, contained in s 3(2), which provides: (2) 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 possible cost, access to government information.
3. The object of the GIPA Act is operationalised by various 'machinery' provisions of that Act.
4. Part 2 of the GIPA Act contains general principles relating to open government information.
5. Division 1 of that Pt 2 of the GIPA Act concerns ways of accessing government information. This includes, in s 5, a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
6. It also confers, in s 9(1), a legally enforceable right on a person who makes an access application 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.
7. Division 2 of Pt 2 of the GIPA Act concerns public interest considerations related to access to government information. This includes, in s 12(1), a prescription that there is a general public interest in favour of the disclosure of government information.
8. Section 13 contains a "public interest test" which is to be applied in determining whether access is to be provided to government information. It provides that there is an overriding public interest against disclosure of government information 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.
9. Section 14(2) of the GIPA Act provides: (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…
10. The relevant provisions of the Table to s 14(2) 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) - … (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, (e) reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency, (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,… 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,…

Does the respondent hold further information

1. Under s 53 of the GIPA Act, an agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency.
2. The question of what constitutes an adequate search has been considered in numerous decisions under the GIPA Act and similar legislation.
3. The Tribunal's jurisdiction in relation to whether adequate searches have been conducted has generally been considered to arise under s 58(1)(b), which provides that an agency may decide an access application by deciding that the information is not held by the agency, and s 80(e) which states that this is a reviewable decision.
4. The cases have applied the approach of the Queensland Information Commissioner in Shepherd v Department of Housing, Local Government and Planning (1994) 1 QAR 464. In that decision the Commissioner outlined a two-stage approach to the question of what constitutes an adequate search. The first is to consider whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency. If that question is answered in the affirmative, then to consider whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances.
5. Under this approach, in the context of the GIPA Act, the Tribunal must form a view as to whether there may be some further information that falls within the scope of the access application and, if so, whether the efforts that the agency concerned made to find the information were sufficient.
6. In McClymont v Department of Family and Community Services [2017] NSWCATAD 202, Senior Member Lucy took a different approach and held that while the Tribunal has jurisdiction to review a decision that an agency does not hold information, it does not have jurisdiction to review an alleged failure by the agency to comply with the obligation under s 53(2) of the GIPA Act to conduct reasonable searches. In this case, the respondent decided that the information was not held and this is not a matter where an implied decision arises.
7. In Amos v Central Coast Council [2018] NSWCATAD 101, Senior Member Lucy canvassed that question and examined the relevant case law and the history of recent legislative changes. She referred to the decision of the Appeal Panel in Robinson v Commissioner of Police [2014] NSWCATAP 73 where the Appeal Panel stated at [8] that a decision that government information is not held by an agency "may be said to be an implied decision in any decision responding to an access application". Implicit in the Appeal Panel's findings in Robinson is that such an implied decision is reviewable under the GIPA Act. I have therefore proceeded on the basis that it is and have approached the issue in line with the findings in Robinson and Amos.
8. Ms Blake's Affidavit clearly outlines the searches that the respondent undertook in response to the GIPA request and addressed the specific matters contained in the request. I accept her evidence, which was not challenged by the applicant, and am satisfied that the applicant has not discharged her practical onus of establishing that there is a reasonable basis for finding that the respondent holds further information that is within the scope of the GIPA request.
9. Accordingly, I find that item 1 of the GIPA request is not held by the respondent.

Public interest considerations in favour of disclosure

1. I agree with the public interest consideration that the respondent identified in the reviewable decision, namely that: (1) there is a general public interest in favour of disclosing government information; (2) there are examples of other public interest considerations in s 12(2) of the GIPA Act; and (3) the information sought is personal information of the applicant. The respondent gave these considerations significant weight.
2. In my view, these considerations should be given strong weight.

Public interest considerations against disclosure

1. I agree with the public interest considerations identified by the respondent in the reviewable decision and its written submissions and I will discuss them individually below.

Clause 1(d)

1. I have applied the principles set out in the decisions in Simring v Commissioner of Police [2009] NSWSC 270 McMahon, Director-General, Department of Education & Training v Mullett [2002] NSWADTAP 13, Martin v Commissioner of Police, NSW Police [2005] NSWADT 23 and Camilleri to this matter.
2. I am satisfied that cl 1(d) has been properly relied upon by the respondent in relation to items 2, 3, 6 and 10 of the GIPA request and that the relevant question of whether information is confidential information for the purposes of cl 1(d) is "to 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" and "should focus on the point of receipt, and the administrative standards and community understanding which surrounded it".
3. Based on Ms Blake's evidence, I am satisfied that information was provided to the respondent in relation to a misconduct investigation in circumstances where the respondent's policies required confidentiality to be maintained. I accept the respondent's argument that persons who provided information to the respondent during that investigation did so in an expectation that their evidence would remain confidential. Ms Blake's evidence was not challenged by the applicant.
4. In my view, this consideration should be given significant weight.

Clause 1(e)

1. I am satisfied that cl 1(e) has been properly relied upon by the respondent in relation to items 2, 3, 6 and 10 of the GIPA request and that the relevant question of whether disclosure of the information could reasonably be expected to reveal a deliberation or consultation conducted, opinion, advice or recommendation given, or prejudice a deliberative process must be considered at a broad operational level.
2. In Ryan v NSW Minister for Planning and Open Spaces [2021] NSWCATAP 221, the Appeal Panel stated: 31. The Tribunal's interpretation of cl 1(e) was set out at Reasons [33] and [34]: 33. In relation to table item 1(e) there are two elements. First one must look to see whether information involves or contains a deliberation, consultation, opinion, advice or recommendation. Then the second element is that one looks to see whether the revelation of such information could be reasonably expected to prejudice a deliberative process of government or an agency. Use of the expression "in such a way" in the item leaves open the possibility that there may be some way of disclosing information which would not be prejudicial e.g. by appropriately redacting the document. 34. Also, there must be an appropriate connection established between the information in the deliberation, consultation etc and the prejudice to the deliberative process Wall v University of Sydney (2008) NSWADT 213 at (36).
3. The Appeal Panel was not persuaded that the Tribunal erred in its interpretation of cl 1(e). However, it made the following observations at [34]: 1. cl 1(e) contemplates that the deliberative process that may reasonably be expected to be prejudiced may be a "particular case or generally". Thus, the focus of this clause goes beyond particular deliberative processes; 2. there is no requirement that the deliberative process that may reasonably be expected to be prejudiced is the same as the deliberation which could be expected to be revealed by disclosure of the information (where it is a deliberation rather than a consultation, opinion advice or recommendation that would be revealed by disclosure of the information). This is clear from the use of the phrase "a deliberative process"; 3. the existence of a deliberative process which might reasonably be expected to be prejudiced by disclosure will turn upon the evidence before the Tribunal in each case. Whilst the parties referred in their submissions to particular cases in support of their preferred interpretation, those cases turn on their particular facts. For example, in AQJ, the Tribunal found that the deliberative process had concluded, whereas in Owen the Tribunal found that there was an ongoing deliberative process.
4. The evidence supports a finding that the misconduct investigation that the respondent conducted has concluded. While the process in Ryan was continuing at the date of the decision, I am satisfied that the principles set out by the Appeal Panel nevertheless apply to this matter.
5. In my view, this consideration should be given significant weight.

Clause 1(f)

1. I am satisfied that cl 1(f) has been properly relied upon by the respondent in relation to items 2, 3, 6 and 10 of the GIPA request and that the question of whether disclosure of the information could reasonably be expected to prejudice the effective exercise of the respondent's functions must be considered at a broad operational level.
2. For the reasons set out in relation to cl 1(e), I reject the applicant's submission to the effect that there can be no prejudice because the misconduct process between the respondent and herself has concluded.
3. I have decided that this consideration should be given substantial weight.

Clause 1(g)

1. I am satisfied that cl 1(g) has been properly relied upon by the respondent in relation to items 2, 3, 6 and 10 of the GIPA request.
2. I have found that in relation to the misconduct process between the respondent and the applicant, that information was supplied to the respondent in confidence. In my view, that information does not cease to be confidential because the misconduct process has concluded.
3. In my view, this consideration should be given substantial weight.

Clauses 3(a) and 3(b)

1. I am satisfied that cll 3(a) and 3(b) have been properly relied upon by the respondent in relation to items 2, 3, 6 and 10 of the GIPA request.
2. In my view, disclosure of the information sought in those items would reveal an individual's personal information and would reasonably be expected to contravene s 18 of the PPIPA. I also find that disclosure of the information under the GIPA Act is not a permitted exception set out in s 18(1) of the PPIPA.
3. It is accepted law that personal information extends beyond the name, address and contact details of individuals and that it includes information and opinions about the conduct of employees or contractors of an agency in the course of conducting their duties: see Singh (No. 2) at [49] and Bannister v Department of Finance Services and Innovation [2018] NSWCATAD 33 at [82].
4. While the names and positions of witnesses in the misconduct process were disclosed to the applicant during the misconduct process in accordance with its policy, that alone is insufficient to negate the operation of cll 3(a) and 3(b).
5. I am not satisfied that the impact of cll 3(a) and 3(b) can be overcome by redacting the names this issue can be overcome by way of redaction.
6. In my view, these considerations should be given significant weight.

Balancing the public interest

1. I have applied the public interest test to this matter as required by the decision in Leech.
2. Having done so, I am satisfied that the public interest considerations against disclosure of the withheld information outweigh those in favour of its disclosure and that there is an overriding public interest against its disclosure.

Conclusion

1. I am satisfied that the correct and preferable decision is to affirm the decision under review.

Order 1. The decision under review is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the 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 29 November 2024 - Case title amended from 'au v South Eastern Local Health District' to 'Hau v South Eastern Local Health District'. 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: 29 November 2024