Hillyer v Rural Fire Service

NCAT Administrative and Equal Opportunity|2019-01-15

REASONS FOR decision

This is an application for administrative review of a decision of the respondent concerning access to government information under the Government Information (Public Access) Act 2009 (the GIPA Act).

Background

The applicant is a volunteer member of a local Rural Fire Brigade on the NSW Central Coast. The applicant and some of his colleagues were subject to an internal inquiry / investigation following a complaint about them arising from volunteer community liaison activities. Those activities concerned the fire truck being used to attend a Christmas event for the benefit of children in the local community. Some parts of the complaint raised serious allegations. Following the internal investigation all allegations against the applicant were found to be unsubstantiated. The applicant received an apology from the Rural Fire Commissioner about how he was treated during the process.

Relevant Legislation and Principles

The basis of the refusal to release government information concerns the application of a ground to withhold information after weighing up the competing interests to either release or withhold government information in certain circumstances having regard to specific principles under the GIPA Act.
The application of these principles arises in Part 2 Division 2 of the GIPA Act. That Division sets out how the application of the relevant principles and the weighting process is to occur.
Section 12 (1) provides: 12 Public interest considerations in favour of disclosure (1) There is a general public interest in favour of the disclosure of government information.
Section 13 and 14 go on to set out the limited instances whereby the general public interest in favour of disclosure of government information is not achieved. 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.
These matters concern the circumstances whereby public interest considerations against disclosure of government information may be applied so as to override the general public interest in favour of disclosure. These provisions are set out in the Table to s 14 of the GIPA Act, and the relevant matters relied upon at the commencement of the proceedings were: Table 1 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, (c) …, (d) prejudice the fair trial of any person, the impartial adjudication of any case or a person's right to procedural fairness, (e) ….., (f) …., (g) in the case of the disclosure of personal information about a child-the disclosure of information that it would not be in the best interests of the child to have disclosed.
The principles are conveniently summarised in the case of Mannix v Department of Education and Communities [2014] NSWCATAD 35 which provides at [7] - [10] 7. The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 5. Applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure: s 9. The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the "overriding secrecy laws" set out in schedule 1. In the case of those laws it is conclusively presumed that there is an overriding public interest against disclosure: ss11 and 14. 8. With respect to government information not covered by overriding secrecy laws, the Act establishes a principle that there is a public interest in favour of disclosure: s12(1). The category of public interest considerations in favour of disclosure is not limited: s 12(2). That subsection then sets out several examples of public interest considerations in favour of disclosure. 9. There can be an overriding public interest against disclosure only when the public interest test in s 13 is satisfied. It provides that "There is an overriding public interest against disclosure of the 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". 10. In considering whether there is an overriding public interest against disclosure, the tribunal is to be guided by s 15, which provides, relevantly for present purposes, that agencies must exercise their functions so as to promote the objects of the GIPA Act and must have regard to any relevant guidelines issued by the Information Commissioner.
The GIPA Act has an objects provision at s 3 which includes a reference at s 3 (2) (a) that the legislation be applied so as to further those objects. of the GIPA Act are as follows: 3 Object of Act (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. (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 reasonable cost, access to government information.
The respondent initially relied upon the four grounds at cl. 3(a), cl 3 (b), cl. 3 (d) and cl. 3(g) of the Table to s 14 as factors (being public interest considerations against disclosure). These were in the respondent's view, sufficient, (on balance), when applied to the whole application and the circumstances of the application, to be capable of overriding the general public interest in favour of disclosure of government information.
Further grounds were relied upon to withhold some of the information in conjunction with the four grounds outlined above. These grounds concern matters covered in cl 1 of the Table to s 14. 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): (a) ….. (b) …. (c) …. (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, (e) ….. (f) …… (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,

What the respondent decided

The respondent stated in their Notice of Decision dated 24 May 2017 that (in respect of release prejudicing the future supply of confidential information to the RFS), release could reasonably be expected to prejudice the voluntary supply of similar information in the future. They stated in respect of the cl 1 (d) provision that: The NSWRFS recognises the importance of ensuring that members of the public with grievances or complaints about NSW RFS members, as well as members, can approach the NSW RFS and be assured that the information they provide is treated with the utmost confidentiality.
In respect of the cl 1 (g) provision concerning the disclosure of information provided to the NSW RFS in confidence, the decision states: The importance of maintaining members of the public's confidence in their ability to openly discuss matters relating to RFS members they believe are acting contrary to the community's expectations of NSW RFS members The importance of maintaining members of the public's confidence in the grievance, complaint and disciplinary investigation processes of NSW RFS and ensuring their willingness to participate in these processes. The potential discord that release of this information may cause in relationships between members of the public and members of the NSW RFS.
In respect of the cl 2 (a) provisions concerning revealing or tending to reveal the identity of an informant or prejudice the future supply of information from an informant the decision states the following: Documents falling within the scope of the application contain information that will reveal or tend to reveal the identity of third parties. As noted above under section 14 (3) Table 1 (d) there is an expectation of confidentiality.
The respondent relied upon the case of Selby v Commissioner of Police [2013] NSWADT 61 in arguing that the weight to be attributed to the consideration is an 'inherently weighty consideration'.
In respect of the cl 3 (a) provisions concerning revealing an individual's personal information, the decision states the following: The names and personal details of third parties have been provided to the NSW RFS on the understanding that this information would remain confidential. … The NSW RFS considers that in the absence of advice from third parties suggesting that they would not object to the release of their personal information … significant weight must be assigned to the consideration against disclose [sic] at Section 14 (3) Table (3)(a) of the GIPA act.
In respect of the cl 3 (b) provisions concerning contravening an information protection principle under the PPIP Act, the decision states the following: It is reasonable to expect that individuals will object to the disclosure of their personal information contained in what, in their view, was a confidential process. This is particularly the case as no conditions can be imposed on the use and disclosure of this information if it is released under the GIPA Act. In my view, individuals are not reasonably likely to be aware that this information is of a kind that is usually disclosed nor is disclosure necessary to prevent or lessen a threat to the life or health of a person. It follows that it can be reasonably expected that disclosure of personal information in this context may contravene an information protection principle under the PPIP Act.
In respect of the cl 1 (h) provisions concerning prejudicing 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), the decision states the following: Premature disclosure of such information would prejudice [sic] to the conduct, effectiveness or integrity of the current investigation. … The weight to be assigned to this consideration is significant given the need to maintain integrity of the investigation.

Proceedings before the Tribunal

On 11 April 2018 the applicant filed his application for administrative review with the Tribunal. Review was sought in respect of both decisions (April 2017 and February 2018). The Tribunal extended time for the receipt of the administrative review of both matters on 19 June 2018.
The applicant sought administrative review on the basis that he disagreed with the decisions of the respondent especially having regard to his full exoneration by the investigation. The applicant stated that as the serious allegation concerned a criminal matter then for that reason he vetoed any consultation with third parties concerning his application for information.
After the applicant lodged his application to the Tribunal a mediation took place whereby the respondent decided to release a redacted version of the investigation report to the applicant. This aspect was not confidential and arose at or shortly after the conclusion of the mediation. However ultimately the agreement following mediation did not resolve the entire matter before the Tribunal.
By the time of the hearing the main items of information in dispute were the redactions from the investigation report and some matters concerning third party complainants in the matter that gave rise to the investigation.
In summary the items still in dispute at the time of the hearing were:

The emails dated 8 December 2016 - 6 March 2017,
The meeting notes of 20 March 2017,
The meeting notes of 25 November 2017; and
Those parts of the Investigation Report redacted in the version provided to the applicant on 9 July 2018.

The Tribunal needs to decide whether the remaining information withheld from release by the respondent should be released. In deciding this issue the Tribunal could conclude that none of the remaining information should be released, some of the remaining information should be released, or all of the remaining information.
Following the hearing the respondent obtained the consent of the third party colleagues of the applicant to release their personal information. ([27] point 4 above). I address this matter below.
After considering all of the evidence and submissions of the parties, and considering the specific information in dispute, I have decided to release some of the information in dispute. As a result the decision of the respondent will be set aside in part and the remainder of the decision affirmed.

Jurisdiction

As mentioned above the time for lodgement of the review was extended by the Tribunal. The decision under review is a reviewable decision in accordance with s 80 (d) of the GIPA Act. The Tribunal's jurisdiction is enlivened by s 100 of the GIPA Act.

Hearing

The applicant gave evidence as well as a witness for the respondent. Under the GIPA Act the onus rests with the respondent agency to establish that the decision was the correct and preferable decision.
The third party objectors (the complainants in the Rural Fire Service Conduct complaint) were represented at the hearing and tendered a document titled Confidential submission pursuant to s 104 (3) of the GIPA Act. Section 104 (3) states the following: 104 Right of appearance before NCAT … (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.
The third party objectors sought an order that their submission and their names not be published in any reasons and a prohibition on publishing or broadcasting their names in the media be maintained by the Tribunal. Their Solicitor made oral submissions on the matters raised in the written submissions.
The applicant's responded to these written submissions by way of a reply on 31 January 2019. The reply in my view addresses the balance between maintaining confidentiality and providing fairness to a person under investigation. Some other matters concern the final orders of the Tribunal at the conclusion of the hearing. I take these matters into consideration below in deciding what information to release from the withheld documents.

Respondent's Evidence

The respondent provided one witness N Koteff who affirmed an affidavit on 2 November 2018. That officer is responsible for professional standards within the Rural Fire Service (RFS) and as such is responsible for complaint management. The witness stated that the complaints were not considered serious enough for the Professional Standards Unit (PSU) to deal with and were referred out to Regional Services for management.
The remainder of the evidence concerned the complaints management policies and protocols and particularly how the RFS balances the request or expectation of confidentiality with practical matters relating to fairness.
The respondent summarised this issue in the following manner within their affidavit at [14]. 14. In my experience, it can be difficult to protect the identity of complainants while also observing the requirements of natural justice, particularly where complaints involve interpersonal matters. Procedural fairness requires that the nature and substance of allegations are conveyed to the individual who is the subject of a complaint. Often, the identity of the person making the allegation is apparent from this information. However, even if the identity of a complainant is known to those involved in the complaint's management process, there is still an expectation that the process will be conducted confidentially as far as it is possible to do so.'
The remainder of the respondent's evidence focused on the potential erosion of public confidence in the RFS' complaints management processes were confidential information (received with an expectation of confidentiality) is marked for release under the GIPA Act.
Written submissions also addressed the personal information provisions and noted the lack of any meaningful ability to consult on those matters. The relevant section of the GIPA Act that requires consultation (s-54) covers these type of personal information concerns. It is applicable initially to both the third party objectors and the applicant's colleagues as it concerns personal information. Section 54 relevantly provides: 54 Consultation on public interest considerations (1) An agency must take such steps (if any) as are reasonably practicable to consult with a person before providing access to information relating to the person in response to an access application if it appears that: (a) the information is of a kind that requires consultation under this section, and (b) the person may reasonably be expected to have concerns about the disclosure of the information, and (c) those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information. (2) Information relating to a person is of a kind that requires consultation under this section if the information: (a) includes personal information about the person, or (b) concerns the person's business, commercial, professional or financial interests, or (c) concerns research that has been, is being, or is intended to be, carried out by or on behalf of the person, or (d) concerns the affairs of a government of the Commonwealth or another State (and the person is that government). (2A) … (a) …, (b) ... (3) … (4) The purpose of consultation under this section is to ascertain whether the person has an objection to disclosure of some or all of the information and the reasons for any such objection. (5) The agency must take any objection to disclosure of information that the agency receives in the course of consultation into account in the course of determining whether there is an overriding public interest against disclosure of government information. (6) If consultation establishes that a person objects to the disclosure of information but the agency decides to provide access to the information in response to the application, access is not to be provided until the agency has first given the objector notice of the agency's decision to provide access to the information and notice of the objector's right to have that decision reviewed, and is not to be provided while review rights on the decision are pending. (7) Review rights on a decision are pending while the objector is entitled to apply for a review of the decision under Part 5 (ignoring any period that may be available by way of extension of time to apply for review), or any review duly applied for is pending.
The respondent's main arguments focussed on the same grounds as made out in the decision under review as summarised at [16] - [22] above.

Applicants Evidence

The applicant essentially made a statement at the hearing which set out the basis for his application and his reasons why he disagreed with the decision.
In summary his position was that the process was unfair, he and his family had suffered enormously due to the impact of the allegations and RFS NSW had acknowledged that impact and apologises for the handling of the matter.
Much of the material did not focus on the basis of the decision or the respondents submissions but did identify that matters involving the complaints were well known to him and that nothing would be revealed by releasing this information fully.

Where does the balance lie with weighting of the information?

In my view the background knowledge of the applicants and the third party complainants provide an understanding of where the weighting should fall. This is because most of the information contained in the records that remain withheld is objectively known to those persons. I make this observation due to the content of the material filed by those persons and the submissions that they provided at hearing. It appears that little of the details of the grievances and difficult history between them is otherwise unknown.
At hearing many issues were raised which were not relevant to the matters in issue in these proceedings but were illustrative of those persons views of the other. I observe that matter at the heart of the application, and what caused the workplace investigation involved a complaint by persons whose identity is well known to the applicant. The applicant and his wife were present for the entire hearing over one day and for much of that time one of the third party complainants was present in the hearing room whilst the matter was heard. Their identity is uncontroversial between the various players in this matter. Their Solicitor sought leave to appear and was allowed to make oral and written open submissions in the hearing.
There is a concern about their specific identities being provided in the documents covered by the application. That is because the release of such information under the GIPA Act is unconditional. The third party complainants have concerns that this material might become public, and for that reason they have objected to its release.
The other matters that the third party complaints sought to have withheld concerned the 'background material' to their complaint. Whilst such matters (the history between the applicant and the complainants) are well known to the applicant and his wife, again the concern is that this information might be used adversely. Due to the specific allegations it is clear to me that the applicant and to some extent his co-accused identified who had made the allegations of complaint. Whilst the identities of the complainants are in all likelihood already revealed, the concern about the unconditional release of the recorded information remains a valid consideration. (s-14 T1 cl 1 (d) (g) Cl 3 (a) (b) ).
It is clear that (for reasons best understood by the complainants) they provided detailed background information to the RFS officers tasked with responding to their compliant. Initially serious allegations were levelled at the applicant and police involvement was initiated. Suffice to say that all allegations (serious or otherwise) against the applicant have been settled with no adverse findings against him. I set this information out in confidential reasons.

Confidential Paragraphs Not for publication

[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]

End of confidential paragraphs

The information as summarised at [52] is information for which in my view, on balance the public interest considerations against disclosure in this instance operate sufficiently to override the general public interest consideration in favour of disclosure of government information and I so find. The release of such information would have significant consequences for the respondent and like agencies when receiving information at an early stage with no real ability to reject information that may be irrelevant to the process and potentially prejudicial to the agency or third parties. The 'background information' provided by the complainants as set out in the confidential reasons is the type of information that is highly likely to have the effect described in clause 1 (d) and (g) of the Table. If it was to be routinely released in similar circumstances by agencies, then in my view - quoting the clause in the Table and noting the confidential paragraphs: disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally) and I so find.
I believe that the complainant's names and contact details should be redacted from the material. The same weighting against of those matters applies to that information when the s 64 order is taken into account. This position is arrived at similar to the s 64 order having regard to the fact that any information released under the GIPA Act is released unconditionally.
I make this finding in the full knowledge that at all times the applicant and his wife know the identity of the complainants and some of their contact details (such as at least one physical address). However to provide this information formally under GIPA would tie the information released directly to the complainants. As the applicant already possesses this knowledge I cannot see any benefit having regard to the public interest considerations against disclosure relied upon by the respondent in allowing the information to be provided in an unconditional manner. I accept that in the complaints management process not all information should be divulged to the world and that there is considerable weight to attach to the notion that the disclosure of such information could reasonably be expected to have that desired (adverse) effect as set out at clauses 1 (d), (g) and 3 (a), (b) of the Table to s 14.
However the detail of the complaint based information concerning the specific allegations (emails 8/12/2016 - 6/3/2017 less background information) and the RFS investigation and addressing of those matters should in my view be released. It appears that a proper consideration of that aspect was to some extent thwarted by the applicant's initial decision to refuse to agree to any consultation with third parties.
However it became clear during the course of the hearing, and in the period post hearing where the parties were complying with the 'follow up' orders issued at the conclusion of the hearing, that once the respondent consulted with various third parties, the respondent's position changed significantly. With this change of position the basis for withholding nearly all of the remaining (withheld) information from the Investigation Report in my view falls away.
In correspondence after the hearing and in response to the Tribunal's Order (2) of 14 January 2019 the respondent's solicitors advised that in accordance with the Tribunal's direction following the confidential aspect of the hearing they had consulted with the persons referred to in the confidential material (Investigation Report Tab 4 Exhibit RC 1). Two of the three third parties had no objection to their personal information being provided to the applicant. The third only sought for their residential address and telephone number to be redacted from the documents (the investigation report).
Based on this concession by the third party colleagues of the applicant, and noting the agreement following mediation, it seems appropriate that the investigation report (Tab 4 of Confidential Exhibit) now be released to the applicant less the following redactions:

All references to the complainant's names and addresses as already redacted on pages: 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 of the Investigation Report.
All references to Mr Williams's residential address and telephone number.

In respect of the other material addressed above the following information should be withheld or redacted from release.

Attachment 1 to the report - redact the name of the complainant's only.
Attachment 2 to the report - the Public Complaint Review - redact the complainant's names and addresses and references to the background information as referred to in the confidential paragraphs as it is not specifically relevant to the complaint, and for that reason (and those stated in the confidential paragraphs above) attract significant weight against release.
Attachment 3 to the report - redact the complainant's names and addresses and references to the background information as referred to in the confidential paragraphs as it is not specifically relevant to the complaint, and for that reason (and those stated in the confidential paragraphs above) attract significant weight against release.
Attachment 4 to the report - redact the complainant's names, contact details and any other identifiers (All pages). Redact entire email of 12 January 2017 from complainants issued: 8:02pm, Redact entire email of 11 January 2017 issued 12:37pm from complainants.
Attachment 6 to the report - redact reference to complainant's names at beginning of photo montage.
Attachment 7 to the report - redact reference to the complainant's names.
Attachment 8 - redact in entirety.

It is apparent that other tabs in the confidential Exhibit 'RC -1' relate to the material in Tab 4. Tab 3 is in part a reproduction of the material complied at Tab 4 (attachment 7) which is addressed in detail in the above paragraph. That information is essentially a duplication of some of the information at Tab 4 and appears to be responsive only to preparing the documents in some different practical form for hearing. As on my assessment that information is extraneous or a duplication of the scope of the GIPA request, and it has only been complied for the hearing, there is no need for it to be assessed further. In practice the information will be available in the form approved for Attachment 7 of Tab 4. Tab 1 contains some material by way of emails, being another version of the same information as referred to in Order 2 of these reasons, being background information. As a result the same assessment would apply to that material. Where that material equates to the descriptors set out at [63] and [64] it cannot be released for identical reasons. Some material at Tab 2 contains un-redacted versions of the meeting notes (as redacted in Tab 4) and background information of the type referred to in [57] above. For the reasons set out there this information should be withheld. Clearly where information has been approved for release under Tab 4 and otherwise withheld, as it replicates what is in Tab 4, then the same approach to that information should apply.

Conclusion

The correct and preferable decision is that in respect of the documents described at [63] and [64] the decision will be set aside. The remainder of the decision of the respondent will be affirmed.
I note that the objector's rights under s 54 of the GIPA Act do not apply to any decision concerning the release of information by order of the Tribunal. In this regard I note that the third party objectors were given leave for their legal representative to appear and be heard in the proceedings.
Having regard to that matter and the absence of any specific requirement on the Tribunal anywhere in Division 4 of Part 5 of the GIPA Act, I cannot see any basis to stay the operation of these orders.
I therefore make the following orders:

Orders 1. The decision of the respondent is set aside in part. 2. The respondent is to release all information within scope other than the following information contained within the Confidential Exhibit: • All references to the complainant's names and addresses as already redacted on pages: 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 of the Investigation Report. • All references to Mr Williams residential address and telephone number. • Attachment 1 to the report - redact the name of the complainant's only. • Attachment 2 to the report - the Public Complaint Review - redact the complainant's names and addresses and the 'background information' as identified in the confidential paragraphs - only. • Attachment 3 to the report - redact the complainant's names and addresses and the 'background information' as identified in the confidential paragraphs - only. • Attachment 4 to the report - redact the complainant's names, contact details and any other identifiers (All pages). Redact entire email of 12 January 2017 from complainants issued: 8:02pm, Redact entire email of 11 January 2017 issued 12:37pm from complainants. • Attachment 6 to the report - redact reference to complainant's names at beginning of photo montage. • Attachment 7 to the report - redact reference to the complainant's names. • Attachment 8 - redact in entirety. 1. The decision is otherwise affirmed.

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 03 May 2019 - Amendment to order 2, paragraph 64 and 65 made pursuant to section 63(3) of the Civil and Administrative Tribunal Act 2013 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: 03 May 2019

At a glance

Court

Decision date

Source

Judgment (17 paragraphs)

Parties

Cases Cited (1)