Holland-Ryan v Ambulance Service of New South Wales [2019] NSWCATAD 264 | Case summary

NCAT Administrative and Equal Opportunity|2019-09-27|Before: Clare P

Background

On 11 August 2017 the respondent received an application from the applicant under the Government Information (Public Access) Act 2009 (GIPA Act) for information held by the respondent.
The application sought access to: "1. PSU files PSCU/19378 and PSCU/19204 and any and all documents (including but not limited to emails, memos, diary notes, briefing notes, file notes etc) that pertain to me, and that pertain to my representative John Holland. 2. A copy of the Statutory Declaration submitted by IMC Emma McCarren and provided Renee Carrol in response to my grievance submitted in November/ December 2016. 3. A copy of Emma McCarren's statement in response to my grievance submitted in November/December 2016. 4. A copy of all documentation Tim Collins relied upon to make his decision regarding refusal of my reinstatement to the OCO (dispatch) position in April 2017. 5. A copy of the initial Risk Assessment completed by Jamie Vernon at the beginning of my Grievance submitted on 31/10/14, per 2.5 of the Raising a Workplace Concern Policy. 6. A copy of the multiple complaints received by Dominic Morgan since October 31, 2014, regarding my representative, John Holland. 7. A copy of all documentation Clare Pemberton relied upon (and description of action taken) in making her decision regarding outstanding grievance issues and denial of my request for a meeting with Mr Morgan (this information is referred to in an email from Ms Pemberton to Mr Holland dated 18th April 2017). 8. Handover notes and all documentation (including briefing notes, diary notes, file notes, emails, memos and reports) prepared by PSU Director Louise Clarke and other NSWA staff in December 2016/January 2017/ February 2017, relating to both of my grievances submitted 31/10/14 and 16/04/15, and subsequent management and investigation by Director Jamie Vernon. 9. A copy of the Ministerial Complaint regarding my actions as a dispatcher about a job in Sawtell in late 2009, as referred to by Winton Consulting's recent briefing note. 10. A copy of the complaint from the public regarding the Sawtell job in late 2009, that led to this Ministerial. 11. A copy of Tim Collins notes/emails/ any document pertaining to me, provided by Mr Collins to Winton Consulting between January 2017 and August 2017. 12. A copy of the complete briefing note (and any other documentation including emails) provided by Winton Consulting to NSWA (and Tim Collins) between January 2017 and August 2017."

Evidence of the respondent

Pursuant to 64(1)(b) of the Civil and Administrative Tribunal Act 2013 portions of the evidence in these proceedings were tendered on a confidential basis and may not be published by order of the Tribunal. These portions are marked "Not for publication".
Ms Kathleen Crilly, Senior Legal Officer with the respondent, provided the following evidence. The applicant is an employee of the respondent. She is employed as a communications assistant at the Northern Control Centre. She commenced employment with the respondent in 2008 as a Trainee Operations Centre Officer. In 2009 she reported interpersonal issues with another employee. In 2009 the respondent placed the applicant on a performance improvement plan which involved a number of assessments to measure her competency as an Operations Centre Officer. In 2010 she was removed from dispatch duties and reassigned to another role. In the following years the applicant lodged a number of workplace grievances against other persons and a number of grievances were lodged by other employees concerning the applicant. Allegations of bullying were raised in 2014 and investigated. Further grievances were lodged by the applicant in 2014 and 2015 including allegations of bullying and harassment against the former Control Centre Manager Ms Nicole Fletcher. The applicant lodged a workers compensation claim in 2015. In 2016 the applicant lodged a grievance against her former return to work coordinator.
In early 2017 the applicant's father, Mr Holland, was determined to be a "vexatious complainant" by the respondent and a communications protocol was put in place.
In December 2016 the applicant returned to work until February 2017 when another workers compensation claim was lodged by her. The applicant returned to work in March 2017. Mediation has been explored but has not been attempted, based on advice.
Ms Crilly stated that a review was conducted of the workplace grievances and related matters between the applicant and respondent by the Ministry of Health and this review: "identified some criticisms of NSW Ambulance's handling of Ms Holland-Ryan's grievances and complaints, it held at a global level that there has been adequate review of its processes, it has not engaged in bullying or persecution and there is no basis to suspect corruption or maladministration."
She also referred to "the considerable stress" placed on various staff by the sequence of events which had resulted in workplace injuries in some cases. These staff have been consulted as third parties. She stated: "From the consultation NSW Ambulance has been able to undertake with affected third parties, I am aware that there is strong opposition from staff members to having any of their personal information disclosed to the applicant."
She also stated that from her consultation with staff she believed that disclosure of information sought would exacerbate the stress caused by the complaints and cause additional disruption in the workplace, and that the grievances and complaints had caused significant levels of stress and disruption. Several staff have taken leave from work, citing the negative work environment as a reason. She stated that NSW Ambulance's Chief Executive had directed that some staff not be consulted about the GIPA application as it might cause them additional workplace injuries and had given a direction that all correspondence and actions relating to the applicant and Mr Holland are to go through a single nominated delegate because of the "significant psychological impact on numerous staff".
She said the applicant had lodged three previous GIPA applications and that the respondent's focus is now on trying to restore a harmonious working environment at the Northern Control Centre. She said the grievances were finalised from the respondent's perspective but the applicant was not satisfied with the outcomes of those grievances.
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
The processing charge for the GIPA application was $1860. The respondent says that the processing time amounted to 83 hours, but the first 20 hours was not charged for, in accordance with s 67 of the GIPA Act. The respondent submits that the application was processed as efficiently as possible. No charges were imposed for the internal review application. The respondent has offered to reimburse the applicant 50% of the processing fee. The applicant has rejected this offer.
Ms Alexandra Cooney, the Deputy Director Clinical Operations (Control Centres) at the Northern Control Centre gave evidence that the Centre has local staff files which are different from personnel files. Personnel files are maintained by human resources staff. Disciplinary and misconduct files are maintained by the Professional Conduct and Integrity Unit.
Local staff files contain information such as personal contact details, memos and emails to the employee, historical leave requests, file notes from managers regarding conversations with the employee, summaries of dispatch or call taking issues, welfare concerns, and performance issues and concerns.
When she arrived at the Centre in December 2018 she noticed that much of the record keeping at the Centre was paper based and there were three filing cabinets of documents. While documents were not regularly added to TRIM, TRIM only allocated a number to a document and it was not stored within TRIM. The applicant had been given access to her local files on a number of occasions including on 28 February 2018 when she was permitted to copy documents. This was evidenced by copies of a document register showing the dates on which the applicant had accessed documents.
Ms Cooney was asked about a locked back room at the Centre and she said she had been in there about a month previously and there were no files in the room. She had never seen any filing cabinets in the room. She said records that are required to be on the official personnel file are sent to HR and other records are kept locally. It was put to her that there was no way of knowing if a document was missing from a file. She said that unless a document was registered in TRIM, that was correct. She did not know who had access to local files prior to 2018. Since then they were kept in locked storage cabinets. She agreed that if the applicant's former supervisor had accessed her file after the applicant had made her grievance, there would not be a record of that.

Evidence of the applicant

The applicant and her father provided lengthy evidence concerning the history of the workplace disputes and their involvement in them. The applicant's father, who is also her representative in the proceedings, gave evidence that his daughter told him that she was being bullied and harassed at work in November 2014. He became concerned that the respondent was not complying with its policies and procedures regarding workplace grievances and bullying.
Mr Holland's affidavit contained lengthy hearsay evidence about what the applicant had told him about her experiences at work. He said that he observed her to be undergoing significant emotional distress and expressing disappointment about the handling of the issues at work. In January 2015 she reported to him that she had received anonymous and abusive phone calls from a male telling her to drop her grievance.
It is evident from Mr Holland's evidence that he was concerned about his daughter's psychological state, considered that the respondent's handling of her grievances and allegations was deeply unsatisfactory and feared, based on his observations and medical advice, that she was at risk of self harm. Mr Holland became increasingly involved in communications between his daughter and her employer regarding these matters. This has resulted in increasing antagonism between him and the respondent and an increasing number of serious allegations by him.
His affidavit refers to a number of recent complaints made by either him or the applicant including: 1. Allegations of corrupt conduct and maladministration against the Professional Standards Unit and various officers of the respondent which he sent to the CEO and every executive director of the respondent on 31 January 2017; 2. Allegations of bullying, harassment and intimidation against an Assistant Commissioner of the respondent made on 30 June 2018; 3. Complaints made against two Directors and a Deputy Director on 3 July 2018; 4. Complaints of bullying, harassment, intimidation, inaction, exclusion, victimisation, inadequate communication, unreasonable delays and persecution including 24 specific allegations, made by the applicant against four senior managers of the respondent on 31 August 2018, 5. A complaint against a manager on 1 September 2018; 6. Complaints made by the applicant to various persons including the Secretary for Health on 31 October 2018.
Mr Holland stated that either these complaints were not acknowledged or acted upon; or the response was inadequate. His evidence annexes a 95 page letter to a number of officials of the respondent of 31 August 2018 which states: "[the applicant] is of the intent that the treatment she has endured as an employee of NSWA over the period of employment needs to be made public to expose the alleged maladministration and coverup throughout all levels of the organisation…"
The applicant's evidence was that she commenced employment with the respondent in March 2008 as a dispatcher. From 2009 onwards she said that her former Control Centre Manager had bullied her and had decided she was incompetent. As a result of this she was placed on a performance improvement plan and demoted. She said that she was not made aware of her rights or given appropriate support or notice during these processes by the respondent.
Subsequently she said that she was accused by her Manager of timesheet fraud for attending a First Aid Course. This accusation was later withdrawn. She alleges that multiple instances of bullying and harassment followed and in 2014 she lodged a grievance to the subsequent Control Centre Manager but alleges that this was not handled effectively as required by the Standard Operating Procedure.
She states that the process continued into 2015 and she eventually lodged a workers compensation claim after eight months had passed. The Ministry of Health reviewed the grievance process four years later and noted that the complaint managing process was flawed.
She made a GIPA request in 2015 and found that more than 96 file notes or other notes had been made by the Control Centre Manager about her without her knowledge. This was also contrary to the respondent's policy.
She states her belief that there are many "unsavoury" documents on files about her and that file notes kept by the respondent are "not accurate". She is concerned that she cannot apply for a file note to be removed from her file or corrected if she does not know if it exists or its contents. It appears that this suspicion was raised by obtaining a number of file notes kept by her previous manager on her file which were not notified to her or removed from the file when there were no further performance issues as required by the relevant Standard Operating Procedure.
The applicant disputes Ms Crilly's evidence regarding her performance, the number of grievances lodged by her, and whether the grievances were resolved. Her position appears to be that her grievance lodged on 31 October 2014 remains unresolved as the Standard Operating Procedure for Raising Workplace Concerns was not followed and documentation that should have been created as part of that process has not been provided. The delays led to her making further complaints about other managers and her affidavit contains a number of allegations against various staff involved in her grievances or workers compensation matters whom she alleges lied about her or misled her.
The applicant also has complaints about the handling of her workers compensation claim and the failure to pay her for 10 weeks. She has made a number of GIPA requests. She states: "I simply am requesting a copy of every document that pertains to me, held by NSW A[mbulance]. I do not require any personal or private information about anyone else, and as previously advised to NSWA, am more than satisfied for document sections to be redacted accordingly to protect the privacy of other staff. I am greatly concerned about the accuracy of the information contained on my files, the existence of the file notes and documents and the possible resulting impact these documents may have on my personal and professional reputation. In a grievance meeting in February 2015, Mr Vernon assured me that he would assist in "cleaning up my files"… and this has never occurred. …Being provided with view access is no use to me, as, due to my work injury and subsequent diagnosis of PTSD, I have very limited recall, and extremely poor memory issues.That is why I have requested hard copies of the files.
The applicant states that she has concerns that there is inaccurate information about her on the respondent's files and in support of this, she cites a file note which she says incorrectly states that she failed to report for a shift.
With regard to the GIPA charges, the applicant stated that she was initially advised that the cost would be in the region of $900 to $1200 but was in fact more than $1800. She is concerned that there was overcharging in relation to 6 hours for processing 18 documents in one case, and the fact that the deadlines were not met in processing her application.
Ms Christy Patterson provided an affidavit for the applicant. She stated that she was a call taker employed by the respondent at the same centre as the applicant. Ms Patterson said that in January - March 2014 she observed Ms Nicole Fletcher place documents in a large filing cabinet located behind another staff member's desk at the centre. The cabinet was used to contain files relating to staff. The gist of Ms Patterson's evidence was that instead of staff records being logged using the document management system TRIM or sent to the respondent's Sydney Office, some were stored in the cabinet.
On an undated occasion Ms Patterson said that she was asked to pull the applicant's files from the cabinet and in doing so she noticed that the files relating to the applicant were multiple and quite thick, "several large files as thick as a phone book". She stated that this struck her as unusual, as did the large number of file notes on the files relating to the applicant's performance. She stated that she did not see any document in the file indicating that the applicant was aware of the file notes or had been able to respond to them.

Conclusions

The applicant and her father have made multiple allegations of misconduct and corruption against the respondent and its employees. The applicant's submissions contained serious allegations against individual officers. The merit or otherwise of those allegations are not matters which I am required to determine nor do I have jurisdiction to do so. Nevertheless the applicant has filed voluminous material addressing those matters in these proceedings. It is clear that the scope of the disagreement between the parties has gone far beyond determining whether the applicant was treated fairly and lawfully as an employee. The number of complaints and their scope has escalated, drawing in multiple individuals and multiple types of conduct.
I accept that some of the respondent's employees have concerns about their personal information being made available to the applicant and this leading to more complaints being made against them and sent to them.
I also accept, on the basis of the evidence before the Tribunal, that the applicant and her father's multiple allegations of serious misconduct have led to disruption in the workplace and implications for the wellbeing of staff which has created difficulty for the respondent in managing the workforce at its Northern Control Centre.
I also acknowledge there have been findings made by the respondent that there have been flaws in its handling of the initial complaints.

The issues in the proceedings

The matters now in issue are: 1. The public interest considerations against disclosure claimed in respect of the 81 documents now in dispute; 2. The sufficiency of the searches conducted by the respondent; and 3. The processing charges of $1860 being 62 hours at $30 an hour.

Relevant legislation

The GIPA Act has the following objects: "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."
Section 5 provides: "5 Presumption in favour of disclosure of government information There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure."
Sections 12 to 15 provide: "12 Public interest considerations in favour of disclosure (1) There is a general public interest in favour of the disclosure of government information. (2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Note. The following are examples of public interest considerations in favour of disclosure of information: (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. (3) The Information Commissioner can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies. 13 Public interest test There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. 14 Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. (3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section. (4) The Information Commissioner must consult with the Privacy Commissioner before issuing any guideline about a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to this section). Table 1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally): (a) prejudice collective Ministerial responsibility, (b) prejudice Ministerial responsibility to Parliament, (c) prejudice relations with, or the obtaining of confidential information from, another government, (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, (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, (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, … 15 Principles that apply to public interest determination A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles: (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information."
Section 55 provides: "55 Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section: (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14. (4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for. (5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to take reasonable steps to provide proof of his or her identity. (6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person. Note. An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73."
Section 53 provides: "53 Searches for information held by agency (1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. (2) 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. (3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically. (4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures. (5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources."
Section 64 provides: "64 Processing charge for dealing with access application (1) An agency may impose a charge (a processing charge) for dealing with an access application at a rate of $30 per hour for each hour of processing time for the application. Note. The decision to impose a processing charge is reviewable under Part 5. (2) The processing time for an application is the total amount of time that is necessary to be spent by any officer of the agency in: (a) dealing efficiently with the application (including consideration of the application, searching for records, consultation, decision-making and any other function exercised in connection with deciding the application), or (b) providing access in response to the application (based on the lowest reasonable estimate of the time that will need to be spent in providing that access). (3) The application fee of $30 paid by an applicant counts as a payment towards any processing charge payable by the applicant. (4) Access to government information granted in response to an access application may be made conditional on payment of any processing charge imposed for dealing with the application. (5) A processing charge must not be discounted under section 65 or 66 by more than 50% even if both sections apply."
Section 80 provides: "80 Which decisions are reviewable decisions The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part: … (d) a decision to provide access or to refuse to provide access to information in response to an access application, (e) a decision that government information is not held by the agency, … (j) a decision to impose a processing charge or to require an advance deposit, …"
Section 105 provides: "105 Onus on agency to justify decisions (1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section. (2) If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review. (3) If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review. (4) If the review is of a decision to include information in a disclosure log despite an objection by the applicant for review, the burden of establishing whether the objection outweighs the general public interest to have the information included lies with the applicant for review."
Section 107 provides: "107 Procedure for dealing with public interest considerations (1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. (2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. (3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of: (a) the public and the applicant, and (b) the applicant's representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure."
Clause 5 of Schedule 1 provides: "5 Legal professional privilege (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege. (2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause. (3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5."
Section 63 of the Administrative Decisions Review Act 1997 provides: "63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal."

The public interest considerations against disclosure

The respondent submits that its decision should be affirmed and its searches and processing charges found to be reasonable. In refusing access to the remaining information it relies on the following grounds. In considering whether the below factors apply, the respondent seeks that the Tribunal consider the context of the proceedings and the history between the parties summarised above.

Clause 5 of Schedule 1 of the GIPA Act - legal professional privilege

This applies to document 6 only. The respondent submits that it is clear on the face of this document that its dominant purpose was the request for and communication of legal advice by independent legal advisers. The respondent has not waived the privilege. That being the case, if the information would be privileged from production in legal proceedings on the ground of client legal privilege, it is to be conclusively presumed that there is an overriding public interest against disclosure.
The applicant has not addressed this consideration in her submissions.

Clause 1(d) and (f) of the Table to s 14 - disclosure could reasonably be expected to prejudice the supply of confidential information to an agency that facilitates the effective exercise of that agency's functions; or prejudice the effective exercise of the agency's functions.

The respondent submits that in relation to clause 1(d) Ms Crilly's evidence that the respondent had policies at the relevant time which provided that information relating to workplace grievances, allegations of misconduct and matters coming under the respondent's Complaints Management Policy should be handled confidentially should be accepted. The respondent also submits that I should accept the evidence of Ms Crilly that in her view disclosure of this confidential workplace information would discourage staff from providing similar information in the future and have a detrimental effect on the respondent's ability to respond to such issues as an employer. The respondent referred to a number of cases where the Tribunal has accepted that the effective performance of an agency's employer functions requires that complaints relating to employee misconduct are handled confidentially (MJ v Department of Education and Commerce [2013] NSWADT 213 and Ansoul v City of Sydney [2017] NSWADTAD 65.)
Ms Crilly stated that at the time of the grievance being lodged, the Standard Operating Procedure (2009) concerning "Raising Workplace Concerns" applied. This states under "Confidentiality": "All parties involved in a grievance that is staff and managers must maintain confidentiality of the identity of those involved, as well as the subject matter. Breaches of confidentiality may result in the concern deteriorating to a point where prompt resolution may not be possible and have a significant impact on the staff involved…. The inappropriate release of information relating to a grievance or a person involved with a grievance… will be referred for the assessment of the Serious Allegatiosn Advisory Committee."
The 2018 Operating Procedure headed "Raising and Resolving Workplace Concerns" does not contain a similar requirement apart from a section on Security which states: "Grievance records must be stored securely eg lockable cabinet to ensure confidentiality".
NSW Health's policy PD2016-046 Resolving Workplace Grievances policy directive dates from 18 October 2016. It is stated by Ms Crilly to also apply to the respondent, and the document states on its title page that it applies to the NSW Ambulance Service. The document states that the need for confidentiality is a mandatory requirement and all managers are required to "manage issues in confidence, ensuring that only those directly involved are provided with information necessary for resolution". All staff are required not to "release information relating to a grievance to any third party who has not legitimately involved [sic] in the process."
The test is whether the agency will be able to obtain such confidential information from employees in the future if the information in question is disclosed (Selby v Commissioner of Police (NSW) [2013] NSWADT 61) and is to be determined at a broad operational level (Camilleri v Commissioner of Police (NSW) [2013] NSWADT 80).
The respondent also submitted that the effective performance of functions requires that staff be able to engage in frank exchanges of information to determine how to manage workplace matters and those documents which relate to assessment, management and escalation of internal issues could impact on the effectiveness of the respondent as a provider of emergency services.
The applicant's submissions were mainly concerned with her complaints regarding her employment. She submitted that the respondent and its individual officers have breached the law multiple times with respect to her employment, the respondent has not complied with the GIPA requirements in the past and the information should be released to the applicant in the public interest.

Clause 1(e) - disclosure could reasonably be expected 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.

In Cameron v Commissioner of Police (NSW) [2014] NSWCATAD 13, it was held that the deliberative processes of an agency are: "… its thinking processes - including those by which it seeks internal input and discussions as to possible courses of action, evaluates the wisdom of them, and the relative benefits and detriments of them".
In relation to clause 1(e) the respondent relied upon Luxford v Department of Education and Communities [2016] NSWCATAD 118 to submit that staff may be inhibited from participating in deliberative processes if sensitive deliberations were released.
The respondent must establish that disclosure of the information could reasonably be expected to have the consequence of prejudicing its ability to deliberate upon issues.
The applicant did not specifically address this consideration in her submissions but I infer that she believes that the respondent's deliberations are tainted by its breaches.

Clause 1(h) - disclosure could reasonably be expected to 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).

The respondent submits that a number of the documents were prepared by internal investigators and have been used in investigations of the complaints laid by the applicant and her father. This consideration is said to apply particularly to documents 60 and 64.
It is the effectiveness and integrity of the audit or investigation in issue, not some other or future audit, which is relevant when applying this consideration (Hurst v Wagga Wagga City Council [2011] NSWADT 307).
The applicant did not specifically address this consideration in her submissions but I infer that she believes that the respondent's investigations were inadequate and/or did not comply with its own procedures.

Clause 3(a) and (b) - disclosure of the information could reasonably be expected to reveal an individual's personal information, or 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.

The respondent submits that a number of documents contain not just personal information about the applicant (which is the subject of her application) but also other people. I agree that some of the information falls into both categories. Those persons who have been consulted have objected to their personal information being disclosed.
The respondent submits that personal information in this case includes opinions, being opinions about the applicant and information about the individual expressing the opinion. Information and opinions about the conduct of employees is personal information (McKinnon v Blacktown City Council [2012] NSWADT 44).
Personal information is defined in clause 4 of Sch 4 as: "information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion."
It does not include an individual's name and non-personal contact details, position title, public functions and the agency in which the individual works that reveals nothing more than the fact that the person was engaged in the exercise of public functions.
Much of the information in dispute contains personal information relating to employees of the respondent who have been involved in managing, responding to or investigating grievances, workers compensation claims and complaints lodged by the applicant or her father. This personal information includes information about their wellbeing, their opinions, concerns and grievances.
It is apparently the case that some of the information withheld may be known by the applicant. The respondent agrees that she knows the identities of the persons who are the subject of her complaints and potentially some additional information affecting her. However it relies on certain decisions of this Tribunal concerning the meanings of "disclose" and "reveal" in its submission that information is not "revealed" if it is known to the applicant, and something more is required.
Clause 1 of Sch. 4 defines "disclose" as: "disclose information includes make information available and release or provide access to information."
"Disclose" is used in clause 1(d) - "reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given".
It defines "reveal" as follows: "reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)."
"Reveal" is used in clause 3(a) of s 14 - "reveal an individual's personal information". It could be argued that because the applicant may know some of the personal information it could not be said that granting access would "reveal" it to her.
The respondent submitted firstly, that information provided to the applicant on a confidential or otherwise non-public basis could not be said to be revealed in that sense (Commissioner of Police v Camilleri [2012] NSWADTAP 19 at [33-34]; Woolley v Lismore City Council [2013] NSWADT 10). Also information would not be publicly disclosed just because it concerned something that happened in a public place (Commissioner of Police (NSW) v Field [2016] NSWADTAP 59). I agree with those submissions.
The applicant stated at the hearing and in her submissions that she does not seek the personal information of other individuals. This has helped to narrow the scope of the material to be considered. Where I am satisfied that the document contains personal information I have assumed that it may be withheld or redacted unless it also comprises her own personal information. In that case, it has been necessary to balance the factors for and against disclosure in accordance with s 13.

Personal factors of the applicant

The applicant is employed by the respondent and is concerned that there are file notes about her kept by the respondent which she has not seen. Where the information includes personal information of the applicant this should be taken into account as a consideration in favour of release of personal information under s 55. As a general principle people should be entitled to access to their own personal information.
There have been significant interpersonal issues between herself and other employees who have expressed concern about her gaining access to their personal information, and which the release of further information may exacerbate. I accept that this personal factor should be taken into account as a consideration against release under s 55(1) and (3).

The age of the information

Some of the information goes back a number of years. On the one hand this may be a factor indicating that disclosure would not reasonably be expected to have the effects claimed by the respondent. However the respondent submits that the respondent has put effort into resolving the grievances and their consequences, and yet the issues remain alive, so that the age of information does not necessarily mean it relates to matters which are completed. The ongoing nature of complaints going back a number of years was apparent from the submissions and evidence of the applicant also.

Processing charge decision

Under s 80 the Tribunal may review: "(j) a decision to impose a processing charge or to require an advance deposit, (k) a decision to refuse a reduction in a processing charge,"
The processing charges were assessed at $1860.00 on 9 October 2017.
A table provided with the decision listed the time spent. This included 15.5 hours for "typing document names in schedule". This seems excessive. I would allow 6.5 hours for this.
The respondent has offered to refund 50% of the fees. The applicant refused this offer.
The applicant drew attention to a claim for 6 hours processing of 8 documents. She submitted that she was being punished for drawing attention to the failings of the respondent. Also the small number of documents provided was disproportionate to the cost.
In my view the decision to impose the charge of $1860 was not the correct and preferable decision in this case and the amount of the processing charge should be discounted by 12 hours to reflect an appropriate amount of time for preparing the schedule and considering the 8 documents.

Adequacy of searches

The applicant's belief that there are more documents held by the applicant about her than have been identified, relies to a large extent on her discovery of 96 file notes about her as a result of a previous application and the evidence of Ms Patterson, an employee of the respondent concerning storage at the NCC of a number of files.
Ms Patterson's evidence of her observations of large numbers of files in filing cabinets related to a period some years prior to the lodging of the GIPA application which is the subject of these proceedings and therefore I consider it had minimal relevance. The evidence of Ms Cooney was that in December 2018 she noticed that much of the record keeping at the Centre was paper based and there were three filing cabinets of documents. There was also evidence in a document register that the applicant had been given access to her local files on a number of occasions including on 28 February 2018.
Ms Cooney was asked about a locked back room at the Centre and she said she had been in there about a month ago and there were no files in the room. She had never seen any filing cabinets in the room. She agreed that was no way of knowing if a document was missing from a file unless a document was registered in TRIM. She did not know who had access to local files prior to 2018. Since then they were kept in locked storage cabinets.
The Tribunal does not have jurisdiction to review adequacy of searches for information. Under s 80(e) it has jurisdiction to review a decision that the agency does not hold information.
There is authority to the effect that the Tribunal may review an implied decision that an agency does not hold information, as outlined in Amos v Central Coast Council [2018] NSWCATAD 101. If the Tribunal has jurisdiction to review an implicit decision that an agency does not hold information, the approach to reviewing the sufficiency of an agency's search is as follows: 1. The Tribunal must be satisfied that there are reasonable grounds on which to believe that the requested information exists; 2. If so satisfied, the Tribunal must then determine whether the search efforts made by the agency to locate such information were reasonable in the circumstances of the case. (Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5 at [11]-[12] and Templeton v Office of Environment & Heritage [2016] NSWCATAD 312 at [21]-[22].)
There is no convincing evidence of information being withheld or located in places other than those searched by the respondent and therefore I am not satisfied that there are reasonable grounds to believe that the information specified exists.

The Information

The numbering in the section below is the tab number in the folder presented at the hearing with the "NCAT Document Number" in parentheses.
Sections of these reasons which would disclose information which is subject to an overriding public interest against disclosure is marked "Not for publication" pursuant to s 107 of the GIPA Act and may not be disclosed to the public or the applicants.

Document 1(1)

This is a briefing note to the Chief Executive of the respondent dated 15 February 2017 concerning the behaviour of Mr Holland.
[NOT FOR PUBLICATION]
With reference to clause 1(d), this applies where disclosure could reasonably be expected to prejudice the supply of confidential information to an agency that facilitates the effective exercise of that agency's functions. I am not satisfied that the document contains or refers to any confidential information or the names of any persons who have provided confidential information, and cannot see how its disclosure could otherwise discourage or prejudice the supply of confidential information.
[NOT FOR PUBLICATION]
With regard to 1(f), it could reasonably be expected that if the note contained a strategy for managing Mr Holland's behaviour and protecting the wellbeing of its employees, that disclosure would prejudice this strategy and thus the functions of the agency in managing external criticism in a safe manner. There is one element of strategy which if disclosed in my view could reasonably be expected to prejudice the functions of the agency in managing external complaints in a safe manner.
[NOT FOR PUBLICATION]
With regard to 1(h) there is no evidence of any audit, test, investigation or review which could be prejudiced. This consideration has no apparent relevance to the document.

Document 2(2)

This is a draft undated letter to Mr Holland with handwritten amendments. A version of this letter was sent to Mr Holland. For similar reasons to those stated above, I consider that the only relevant consideration is 1(f). I am satisfied that it could reasonably be expected that disclosure of a draft of the letter which was later sent in the final form could prejudice the effective exercise of the agency's management of Mr Holland's behaviour and protection of the wellbeing of its staff. I am satisfied that 1(f) applies.

Document 3(3)

[NOT FOR PUBLICATION]
I consider that the employee would have expected it to be treated confidentially because of its content, moreover it relates to a staff complaint . For that reason I am satisfied that 1(d) applies. I am not satisfied that any of the other claimed considerations apply as there is no evidence of any of the matters relevant to those considerations.

Document 4(4)

[NOT FOR PUBLICATION]
I consider it could reasonably be expected that if this information were disclosed it would prejudice the same functions of the agency as would disclosure of Document 1. Therefore 1(d) applies. I am not satisfied that any of the other considerations apply as there is no evidence of this.

Document 5(5)

[NOT FOR PUBLICATION]
I am satisfied that the sender of the email would have expected that it would be treated confidentially based on its content, and the policies identified above. In my view discIosure of this sort of email could reasonably be expected to prejudice the supply of information from employees about such matters, which an agency needs in order to manage its interactions with third parties. It is in the public interest in my view that employees not be discouraged from providing their employer with this sort of information so that the employer can manage their work health and safety obligations and compliance obligations. Therefore clause 1(d) and (f) apply in my view. I also consider that the disclosure of the document would reveal sensitive personal information of the staff member concerned and therefore 3(a) applies. I am not satisfied that the other considerations apply as there is insufficient evidence of the claimed effects.

Document 6(6)

This is a file note which contains a summary of legal advice from an independent legal adviser to the respondent. I am satisfied that the dominant purpose of this document was to provide independent legal advice and therefore it comes within clause 5 of Schedule 1. Therefore there is an overriding public interest consideration against disclosure.

Documents 7 and 8(7 and 8)

[NOT FOR PUBLICATION]
I am satisfied that it could reasonably be expected that disclosure of recommendations as to strategy could prejudice the effective ongoing process of managing Mr Holland's interactions with the agency and its officers. Therefore I am satisfied that 1(f) applies to these documents. I am not satisfied that the grounds for the other claimed considerations are substantiated on the available evidence.

Document 9(9)

[NOT FOR PUBLICATION]
The disclosure of this information could reasonably be expected to prejudice the supply of confidential information from employees about such matters. It is in the public interest in my view that employees not be discouraged from providing their employer with this sort of information in order that the employer can manage their work health and safety obligations. I also consider that the disclosure of the document would reveal personal information of the staff member concerning his opinions about other named individuals, personal information of other as it relates to conduct of other named persons.
I am therefore satisfied that clause 1(d) and 3(a) apply.

Document 10(10)

Disclosure of this email in my view could reasonably be expected to reveal personal information about two staff members' wellbeing. For that I am satisfied that reason 3(a) applies to the email.

Document 11(11)

[NOT FOR PUBLICATION]
I am satisfied that the persons named in the briefing note would have expected the information they reported to be treated confidentially, particularly given their nature. It could reasonably be expected that disclosure of these reports could prejudice the supply of confidential information from such persons in the future by discouraging people from making such reports. I am satisfied that clause 1(d) applies.
I am also satisfied that clause 1(f) applies as it could reasonably expected that disclosure could prejudice the ongoing process of managing the applicant and Mr Holland's ongoing interactions with the agency.

Document 12(12)

[NOT FOR PUBLICATION]
I am satisfied that there is some information which falls within 1(f) namely paragraphs 4 and 8 on page 1 and paragraphs 1, 3 and 4 on page 2. Disclosure of this and other information in the letter could reasonably be expected in my view to prejudice the integrity of the investigation referred to in the letter, which comes within 1(h).
I consider that a letter of this kind would normally be treated as confidential as it provides a response to a concern which is in the nature of a workplace grievance and such information comes within 1(d) . In addition disclosure would reveal personal information about the staff member concerned.

Document 13(15)

This is an email containing a draft letter dated 25 January 2017. I infer that this is the letter referred to in Document 1. On that basis I consider that it could reasonably be expected that disclosure of the draft would have the effect of prejudicing the functions of the agency in managing the ongoing interactions between the applicant and her father and the agency and I am satisfied that clause 1(f) applies.

Document 14(16)

[NOT FOR PUBLICATION]
I am satisfied that disclosure would reveal personal information of a sensitive nature and clause 3(a) would clearly apply to this information.

Document 15(20)

[NOT FOR PUBLICATION]
I am satisfied that disclosure of this document would disclose information which could prejudice the effective management of interactions between Ms Holland-Ryan and the agency and that clause 1(f) applies to the document.

Document 16 (23)

[NOT FOR PUBLICATION]
The respondent submits that this would disclose the nature of an investigation. It is not clear that an investigation occurred. It is not clear that it is confidential. In my view however it would disclose information that could prejudice the effective functions of the agency in particular its internal management of notifications of this kind and therefore comes within 1(f). I am also satisfied that it contains personal information in the nature of opinions about individuals.

Document 17(24)

This was partially disclosed to the applicant but is now stated to be outside the scope of the application. Having reviewed the contents, I agree that it does not come within the scope of the application.

Document 18(25)

[NOT FOR PUBLICATION]
In my view it would disclose information that could prejudice the effective functions of the agency in particular its internal management of notifications of this kind and therefore comes within 1(f). I am also satisfied that it would disclose personal information in the nature of opinions about individuals. In my view clause 3(a) and 1(f) apply.

Document 19(29)

[NOT FOR PUBLICATION]
In my view disclosure of this document would reveal personal information about individuals and therefore clause 3(a) applies. In addition, clause 1(f) applies to the information and the effect disclosure could reasonably be expected to have on the effective exercise of the agency's human resources functions.

Documents 20 and 21(30 and 31)

[NOT FOR PUBLICATION]
It is not clear that disclosure of this information would prejudice the supply of similar information in the future. However the information relating to the agency's management of the relevant issues, if disclosed, in my view could reasonably be expected to prejudice the effective management of similar conflicts and this conflict in particular, and therefore would come within 1(f).

Documents 22, 23 and 24(33, 35 and 36)

These documents relate to strategy and management of staff issues. . In my view it would disclose information that could prejudice the effective functions of the agency, in particular its internal management of notifications of this kind and therefore comes within 1(f).

Document 25(37)

[NOT FOR PUBLICATION]
While this is mainly procedural in nature it does refer to individuals involved in managing the applicant's complaint and their role in doing so. Some of those have had complaints made against them. I am satisfied that 1(f) applies to this document as it could reasonably be expected that disclosure of how this process was managed could result in further complaints which could prejudice the agency's HR functions.

Document 26(38)

[NOT FOR PUBLICATION]
This relates to strategy and management of grievances by staff. In my view it would disclose information that could reasonably be expected to prejudice the effective functions of the agency, in particular its internal management of notifications of this kind and therefore comes within 1(f).

Document 27(39)

[NOT FOR PUBLICATION]
This deals with how the agency is managing a grievance and canvasses options. In my view disclosure would disclose information that could reasonably be expected to prejudice the effective functions of the agency, in particular the effective management of this and other grievances. I am satisfied that 1(f) applies.

Document 28(54)

[NOT FOR PUBLICATION]
This is part of an investigation into a grievance and contains information about a person who is not the applicant. Disclosure of such information would disclose confidential information obtained as part of an investigation. It could reasonably be expected that if this information were disclosed it would prejudice the conduct of such investigations because staff would be unsure if information could be provided confidentially and what investigation material might be disclosed. I am satisfied that clauses 1(d) and (f) apply.

Document 29(61)

[NOT FOR PUBLICATION]
I am satisfied that such a communication would normally be treated as confidential under the respondent's workplace policies and that if such communications were to be disclosed it could reasonably be expected that it would prejudice the supply of confidential information from persons against whom grievances are made. For that reason I consider that 1(d) applies.

Document 30(63)

[NOT FOR PUBLICATION]
This is a summary of the applicant's grievance dated November 2014. It contains a very brief list of issues. I am not satisfied that any of the claimed considerations apply, except for 1(f) which applies to a certain part of the information. That is because that information would normally be treated confidentially by the agency in accordance with its policies.

Document 31(64)

I accept that this letter would normally be treated as confidential in accordance with the respondent's policies. I am satisfied that such a communication would normally be treated as confidential under the respondent's workplace policies and that if such communications were to be disclosed it could reasonably be expected that it would prejudice the supply of confidential information from persons against whom grievances are made. For that reason I consider that 1(d) applies

Document 32(65)

I accept that this letter would normally be treated as confidential in accordance with the respondent's policies as it relates to the process for managing a grievance. I am satisfied that such a communication would normally be treated as confidential under the respondent's workplace policies and that if such communications were to be disclosed it could reasonably be expected that it would prejudice the supply of confidential information from persons against whom grievances are made. For that reason I consider that 1(d) applies.

Document 33(66)

[NOT FOR PUBLICATION]
In my view disclosure of this information could reasonably be expected to prejudice the supply of future such information which the agency needs to manage its HR and work health and safety functions, and therefore falls within 1(f).

Document 34(67)

[NOT FOR PUBLICATION]
I understand that all the investigations into the applicant's grievances are complete. However information that a person was interviewed as part of an investigation would be treated as confidential under the respondent's policies. Persons might reasonably be expected to be less cooperative if they knew that their cooperation could be disclosed in relation to certain grievances. In my view this means that disclosure of this information could reasonably be expected to prejudice the conduct, effectiveness or integrity of the investigation and therefore the public interest consideration against disclosure in 1(d) is substantiated. None of the other claimed considerations are relevant to this information in my view.

Document 35(68)

This is the reply to Document 34(67).
[NOT FOR PUBLICATION]
I am satisfied that disclosure of this document could reasonably be expected to prejudice the future supply of confidential information of this nature to the agency, which it requires in order to manage its workforce and therefore 1(d) applies.

Document 36(69)

[NOT FOR PUBLICATION]
I am satisfied that disclosure of this document could reasonably be expected to prejudice the future supply of confidential information of this nature to the agency, which it requires in order to manage its workforce and therefore 1(d) applies.

Document 37(70)

This is a handwritten chronology of events created in the Professional Standards Unit concerning the handling of the applicant's grievances between 2014 and 2015. The Unit is responsible for investigating and reviewing grievances. However there is nothing to show whether this is part of an investigation or merely someone's aide memoire.
There is some information which relates to the applicant, with other information that relates to other persons and contains their personal information. In my view the parts of this document which relate to the applicant could be released as they appear to relate to matters of which she has knowledge and concern her personal information.

Document 38 (72)

[NOT FOR PUBLICATION]
Disclosure of this information could reasonably be expected to prejudice the respondent's functions relating to HR and managing the relationship with the applicant's father because it reveals different options and strategies. In my view therefore clause 1(f) applies.

Document 39(77)

[NOT FOR PUBLICATION]
Disclosure of this information could reasonably be expected to prejudice the respondent's functions relating to HR and managing the relationship with the applicant's father. In addition, persons might reasonably be expected to be less cooperative if they knew that their cooperation could be disclosed in relation to certain grievances. In my view this means that disclosure of this information could reasonably be expected to disclose confidential information and prejudice the conduct, effectiveness or integrity of the investigation and therefore 1(d) and 1(f) apply.

Document 40(78)

This is the same as 39(77) but sent to a different employee. For the same reasons I consider that 1(d) and 1(f) apply.

Documents 41 and 42 (79 and 80)

Disclosure of this information could reasonably be expected to prejudice the respondent's functions relating to HR and managing the relationship with the applicant's father. In my view therefore clause 1(f) applies. In addition it contains information which would normally be treated as confidential under the respondent's workplace policies and disclosure would in my view be reasonably expected to prejudice the future supply of such information under 1(d).

Document 43 and 44(81 and 82)

[NOT FOR PUBLICATION]
These documents contain sensitive personal information about the applicant and a number of third parties. Ms Holland Ryan makes a number of allegations against one of the third parties in her submissions and also states she has made a complaint against that person in July 2018. This provides grounds for not disclosing the personal information, even though some of it relates to her, as information of this kind could cause further complaints to be made. In addition, disclosure could reasonably be expected to disclose information obtained in confidence, which could also be reasonably expected to prejudice the future supply of such confidential information which is necessary for the agency to manage its work health and safety responsibilities. In my view clause 3(a) and 1(d) apply to this document.

Document 45(87)

This is a handwritten file note of a conversation concerning actions regarding the applicant's workers compensation claim, dated April 2016. I consider that this is a procedural document and I am not satisfied that the claimed considerations apply.

Documents 46, 47 and 48(88, 89 and 90)

[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
The documents contain information relating to the management of her workers compensation and her complaint about her compensation. The management of this matter is an internal function of the agency. The documents contain numerous extracts from other documents which are confidential and some which potentially are not. It should be seen as a work in progress and for that reason I consider that disclosure could reasonably be expected to prejudice the management of the complaint and claim referred to. I am satisfied that clause 1(f) applies.

Document 49(91)

[NOT FOR PUBLICATION]
I consider it could reasonably be expected that disclosing this letter would disrupt the agency's attempts to resolve the issues it deals with which are part of its HR functions. Therefore 1(f) applies.

Document 50 (92)

[NOT FOR PUBLICATION]
For the same reasons as applied to document 37(70) I consider that the entries from the document which relate to the applicant are not covered by any public interest consideration against disclosure.

Document 51(93)

[NOT FOR PUBLICATION]
In my view, it could reasonably be expected that disclosure of this document would prejudice the effective management of the issues raised by the applicant and the ability of the agency to manage the staff involved. I am satisfied that 1(f) applies.

Document 52 and 53 (94 and 95)

[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
This information would normally be confidential under the respondent's workplace policies. The full disclosure of the information in my view could reasonably be expected to prejudice the effective management of the applicant's grievances and the supply of confidential information from persons about whom complaints are made, particularly in view of the number of complaints made by the applicant and her father. I am satisfied that the public interest considerations in 1(d) and (f) are substantiated.

Documents 54, 55, 56, 57, 58 (96 - 100))

[NOT FOR PUBLICATION]
With regard to 1(f), it could reasonably be expected that disclosure would prejudice the effectiveness of the management of the review and the grievances and subsequent dealings between the parties. I am not satisfied that any of the other considerations apply.

Document 59(105)

This is a version of Documents 37 and 50. For the same reasons as given for those documents, the same entries only should be released.

Document 60(110)

This is a confidential Staff Grievance Report on the applicant's grievance of November 2014. The report is dated 12 January 2015.
[NOT FOR PUBLICATION]
Attachments 1,3, 5, 6, 8, 10 and 12 were disclosed to the applicant. I have considered the remaining attachments.
[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION] 1. [NOT FOR PUBLICATION] 2. [NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
The report itself is a confidential document. It contains information provided for the purpose of grievance and workforce management, which contains opinions about individuals and extracts from information provided in confidence. In my view to release this report could reasonably be expected to: 1. prejudice the supply of confidential information to an agency that facilitates the effective exercise of that agency's functions (clause 1(d)); 2. prejudice the frank exchange of information to determine how to manage workplace matters and the assessment, management and escalation of internal issues particularly those relating to the respondent's provision of emergency services (clause 1(f)); and 3. reveal personal information (clause 3(a).
With regard to Attachment 2, I consider that some information, if disclosed, could reasonably be expected to prejudice the ability of the respondent to properly assess performance because of a concern about complaints and grievances.
I am satisfied that Attachment 4 is part of the investigation process and a confidential document to which clause 1(d) would apply.
I am satisfied that attachment 7 is in the nature of a management record which was created for the purpose of managing workforce and performance issues. In my view disclosure would prejudice the frank exchange of information to determine how to manage workplace matters and the assessment, management and escalation of internal issues particularly those relating to the respondent's provision of emergency services, and therefore clause 1(d) applies to it.
I am not satisfied that any of the claimed public interest considerations against disclosure apply to attachments 9 and 13 of the report except that attachment 9 contains some personal information in the form of opinions relevant to 3(a) which would be revealed if disclosed.

Document 61(112)

[NOT FOR PUBLICATION]
I am not satisfied that disclosing this memo would have the claimed effects of prejudicing the supply of confidential information that facilitates the effective exercise of that agency's functions (1(d)) or prejudice the conduct, effectiveness or integrity of any investigation or review by revealing its purpose, conduct or results (1(h)).

Document 62(113)

[NOT FOR PUBLICATION]
I am not satisfied that any of the claimed considerations apply to pages 1 to 3 of this document, due to insufficiency of evidence. Page 4 contains personal information including names and phone numbers and on its face page 5 is not within the scope of the application.

Document 63(114)

I am not satisfied that any of the claimed considerations apply to this document with the possible exception of the last paragraph.
[NOT FOR PUBLICATION]
I am satisfied that clause 1(f) applies to the last paragraph of the document.

Document 65 and 66 (120 and 122)

[NOT FOR PUBLICATION]
I am satisfied that clause 1(f) applies to document 66 but not to document 65.

Document 67(126)

[NOT FOR PUBLICATION]
I am satisfied that this document contains personal information to which 3(a) applies in relation to named individual staff members and their wellbeing, other than the applicant. While it contains advice and opinions I am not satisfied that these, if revealed, could be expected to prejudice a deliberative process, as the document is more than 4 years old. Nor am I satisfied that it could prejudice the effective functions of the agency in some other way so as to come within clause 1(f).

Document 68(134)

[NOT FOR PUBLICATION]
This document has been disclosed to the applicant apart from the second paragraph. I am satisfied that release of this paragraph would reveal personal information of a third party and therefore 3(a) applies. Furthermore it would reveal advice concerning a process which is usually confidential and is based on information provided by the parties in confidence. I am satisfied that disclosure of such information could reasonably be expected to prejudice the future supply of such information in such situations, so that 1(d) would also apply.

Document 69(135)

[NOT FOR PUBLICATION]
This was disclosed to the applicant apart from the first bullet point on the basis that it would reveal personal information. I am satisfied that clause 3(a) applies.

Document 70(147)

[NOT FOR PUBLICATION]
It was disclosed with the name of a third party redacted on the basis that it would reveal personal information. I am satisfied that clause 3(a) applies.

Document 71(162)

[NOT FOR PUBLICATION]
This was disclosed with the second, third and fourth bullet points redacted on the basis that it would reveal personal information. I am satisfied that clause 3(a) applies.

Document 72(169)

This is the same as document 33 (66) and my findings there apply.

Documents 73 and 74(173 and 174)

[NOT FOR PUBLICATION]
Given the brevity of the emails it is difficult to establish how any of the claimed public interest considerations apply. There is no evidence that they would disclose confidential information, no evidence of any ongoing deliberation or investigation to which it relates or personal information apart from information concerning the applicant. I am not satisfied that disclosure would otherwise prejudice the effective HR or other operations of the agency.

Document 75(177)

[NOT FOR PUBLICATION]
Disclosure of this document would reveal personal information of third parties for which I am satisfied, based on the evidence, they have either objected or would object to release because of the history of the applicant's grievances against them. I am satisfied that clause 3(a) applies.

Document 76(178)

[NOT FOR PUBLICATION]
The only one of the claimed public interest considerations which appears to be relevant in this case is clause 1(e) as the email does not fall under the confidential matters in the workplace policies referred to, and I am not satisfied that release would prejudice the effectiveness of an agency function . However it does disclose advice given which if disclosed could prejudice an ongoing deliberation about the matters it relates to.

Document 77 and 78(179)

[NOT FOR PUBLICATION]
These clearly contain information provided for the purpose of an investigation which would be treated confidentially under the respondent's policies and if disclosed could reasonably be expected to prejudice the supply of future similar information. The respondent also relied on clause 3(f) which applies to information which, if disclosed, could reasonably be expected to expose a person to a risk of harm or of serious harassment or serious intimidation, I infer that this is relied upon because of the content and the evidence regarding the history of the conflict between the parties. The respondent did not make any submissions on this point but it was listed in the Schedule. In AEZ v Commissioner of Police [2013] NSWADT 90 it was held that the exemption requires that the intimidation or harassment is to be serious and the decision maker must be satisfied that release of the information could reasonably expose a person to intimidation or harassment that is heavy, weighty or grave. There have been four complaints against various persons made in a two year period recently made on the applicant's behalf. There is insufficient evidence that disclosure could reasonably be expected to expose the person to a risk of serious harassment.
I am satisfied that the public interest consideration under clause 1(d) only is substantiated.

Document 79(181)

[NOT FOR PUBLICATION]
As well as personal information the information because of its content would normally be required to be treated confidentially under workplace policies. If disclosed I am satisfied that it could reasonably be expected to prejudice the supply of similar information as well as adversely affecting the ability of the agency to manage its work health and safety obligations in this context. I am satisfied that clause 3(a) and 1(d) and (f) apply.

Document 80(182)

[NOT FOR PUBLICATION]
This comprises a frank exchange of information and advice about the effective exercise of the respondent's functions including its core emergency services functions. It is in the public interest in my view that an agency in the role of the respondent is able to effectively communicate and consider such information in order to reach a view on appropriate action. With respect to clause 3(a) the respondent submits that the opinions stated in the document if disclosed, would reveal personal information about the persons who expressed the opinion. The applicant also relies on clause 3(f) which applies to information which if disclosed could reasonably be expected to expose a person to a risk of harassment or intimidation. Because of the content and based on the evidence regarding the history of the conflict between the parties I am satisfied that this consideration applies to this information.

Document 81(184)

[NOT FOR PUBLICATION]
Mediation is a confidential process. The respondent relies on clauses 3(a),(b) and 3(f). It is evident that the documents contain personal information of third parties. In my view it is also evident that disclosure of the information could reasonably be expected to disclose personal information about third parties and could also reasonably be expected to breach an Information Protection Principle. The relevant principle is s 18(1) which provides that personal information held by an agency must not be disclosed to another person unless one of the exemptions in that section applies. None of the exemptions applies in this case, as the disclosure is for another purpose than that for which it was collected, there is reason to believe that the person would object, and the person is not reasonably likely to have been made aware that information of that kind is normally disclosed. There is also no serious and imminent threat to the life or health of the individual concerned or another person. I am satisfied that the public interest considerations against disclosure under 3(a) and (b) are substantiated.
I am not satisfied that 3(f) applies for the reasons expressed in relation to documents 77 and 78.

Document 82(185)

[NOT FOR PUBLICATION]
The respondent relies on clause 4(d) which claims that disclosure could reasonably be expected to prejudice a person's legitimate business, commercial, professional or financial interests. Winton Consulting is a consultancy and the document contains information about their fees and methodology which could reasonably be expected to prejudice their business interests if it were disclosed to business rivals.
There is also some personal information relating to the other party to the mediation.

The balancing exercise

The applicant submitted that there is a public interest in the public being made aware that NSW Ambulance did not comply with its own standard operating procedures in relation to the timeframes for managing workplace grievances and had taken 96 days to respond to her grievance. It was evident from the evidence and submissions that the applicant already has information in support of this claim and it has been admitted that the management of her grievance was did not follow procedure. In my view disclosure of the information in question would not disclose additional information of that nature that was in the public interest. Therefore I have not given this much weight as a factor in favour of disclosure.
I am satisfied that there is a public interest in favour of disclosure on the basis of the applicant gaining access to information concerning herself and her employment. In addition, as the respondent submits, disclosing the information would allow members of the public to understand how NSW Ambulance handles personal grievances and allegations of misconduct, including bullying. The applicant's evidence included sections from a NSW Parliamentary inquiry into bullying and other matters in the emergency services. The existence of such an inquiry indicates that this is a matter of public interest.
The applicant submits that the respondent has not acted within the law and the information it seeks to withhold is associated with unlawful acts. It is not the role of the Tribunal to conduct "a collateral review of the merits or validity of official action": Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 at [24] (concerning the former Freedom of Information Act 1989 (NSW)); Raven v The University of Sydney [2015] NSWCATAD 104 at [45]; Smith v Pittwater Council [2016] NSWCATAD 67 at [11]. I have not taken these allegations into account.
The public interest considerations against disclosure which have been established in relation to the information are1(d), 1(e), 1(f) , 3(a) and (b).
I consider that significant weight should be given in this case to the public interest in 1(d) against disclosing information which is confidential in nature and which if disclosed may prejudice the supply of such information in the future. It is important that internal workplace investigations have access to the best information on which to make findings and take action. The Tribunal has recognised in a number of cases that agencies rely on the cooperation of staff in this regard - Ansoul v City of Sydney and MJ v Department of Education and Commerce. I have considered that the public interest against disclosure outweighs the public interest in favour of disclosure with respect to this consideration.
The public interest consideration in 1(e) was only relevant to one document and in this case I considered that the public interest against disclosure outweighed the public interest in favour of disclosure as the deliberative process concerned was important to the applicant's future employment and the work health and safety of the respondent's workforce.
Where I am satisfied that disclosure may prejudice the effective exercise by an agency of the agency's functions (1(f)), it has pertained to HR or WHS functions or the management of interactions with third parties. The ability of the agency to manage conflict and grievances is important to maintain an effective and efficient workforce and minimise risk to employees and others. I have considered that the public interest against disclosure outweighs the public interest in favour of disclosure with respect to this consideration.
In relation to 3(a) and 3(b), where personal information of others is contained in information which also contains personal information of the applicant, I have considered in each case where the greater public interest lies. I consider that the public interest is in favour of disclosure in the case of documents 18(25) and Attachment 9 to document 60(110). In relation to the other documents I have determined that the public interest is against disclosure because of the sensitive nature of the information or reputational implications.

Conclusions

I have determined to vary the decision under review. The document numbers in the orders and the Confidential Annexure refers to the tab number in the folder presented at the hearing.

Orders 1. The decision under review is varied as follows: 1. Documents 1, 30, 37, 50, 59, 60 (Attachment 2 only), 62, 63, 67, and 82 are to be released to the applicant with redactions as specified in the Confidential Annexure to these reasons. 2. Documents 45, 60 (Attachments 9 and 13 only), 61, 65, 73 and 74 are to be released to the applicant. 3. The processing charge imposed is set at $1500. 1. The decision under review is otherwise affirmed.

CONFIDENTIAL ANNEXURE 1 - NOT FOR PUBLICATION I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 December 2019

Freedom of Information Act 1989(NSW)

Holland-Ryan v Ambulance Service of New South Wales

At a glance

Court

Decision date

Before

Source

Judgment (86 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (7)