Mr Rowan Hutchinson is the applicant in these proceedings. On 23 October 2014 the applicant requested information from the respondent Agency by way of an application under the Government Information (Public Access) Act 2009 (the GIPA Act).
Mr Rowan Hutchinson is a former employee of Walcha Shire Council, a rural council in the mid north east of New South Wales.
Walcha Shire Council is a New South Wales Local Government entity which is a council within the meaning of the Local Government Act 1993. In addition Walcha Shire Council is an agency for the purposes of the GIPA Act, in that it is a 'local authority' for the purposes of section 4 (1) of the GIPA Act. Broadly, the term agency refers to the NSW public sector and other entities of government within New South Wales including Local Government.
The GIPA Act places various obligations on agencies within New South Wales in respect of their publication and release of the information that they create and hold. The GIPA Act provides rights for natural persons to where authorised, apply for unconditional copies of this government information.
On 23 October 2014 the applicant requested the following information:
All information held by council concerning myself and in particular any notes / diary entries or similar records concerning myself held by a current Council employee Jack O'Hara. Records may be in electronic or hard copy and includes records of information received from employees of Warrumbungle Shire Council whether in an official capacity or not.
On 19 November 2014 the respondent determined the application by deciding to release some of the information and deciding to withhold some of the information. This determination took the form of a Notice of Decision whereby pursuant to section 58 (1) (a) of the GIPA Act, it provided copies of some of the information sought in the application in the manner referred to in section 72 (1) (b) of the GIPA Act, and withheld copies of some of the information requested relying on section 58 (1) (d) of the GIPA Act. In doing so, the respondent determined that there was an overing public interest against disclosure of the information in the way requested by the applicant. (The Applicant having had requested copies of the documents).
On 4 December 2014 the applicant lodged an Application for Administrative Review with the New South Wales Civil and Administrative Tribunal (NCAT). That review under Part 5 Division 4 of the GIPA Act, sought a review on the basis that the applicant disagreed with the Respondent's decision to withhold some of the information, and sought a review on the following grounds:
The information claimed to be exempt is not exempt.
The Tribunal's function on review under section 63 of the Administrative Decisions Review Act 1997 is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.
[2]
Applicable Legislation
The 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 case of Mannix v Department of Education and Communities [2014] NSWCATAD 35 provides a useful outline of the approach under the GIPA Act. At paragraph 5 Senior Member Walker provides the following outline of the provisions:
The objects of the GIPA Act as set out in s 3(1) are to advance the system and of responsible and representative democratic government by authorizing and encouraging public release of government information by agencies, giving the public an enforceable right to access to government information and providing that such access is restricted only when there is an overriding public interest against disclosure.
The term "government information" is given a wide meaning by s 4, being defined as "information contained in a record held by an agency". "Agency" is also defined in s 4 and includes "(a) a Government Department". It is not disputed that the Department of Education and Communities is such a department and is therefore an agency to which the legislation applies.
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.
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.
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".
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.
Section 14 of the GIPA Act provides the circumstances whereby public interest considerations against disclosure of government information may be applied. Relevant to this application, the Agency relied on the provisions outlined below (being public interest considerations) against disclosure of a small quantity of the information. Relevantly section 14 provides:
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).
The Table to section 14 provides the various criteria or considerations referred to in section 14 (2). The Table lists seven areas whereby relevant public interest considerations against disclosure are set out.
In its initial decision, the respondent appears to have refused access to some of the information on the basis that there was an overriding secrecy law under Schedule 1 clause (1) of the GIPA Act which prohibited release of some of the information. This information is characterised as information which the respondent considered amounted to a Public Interest Disclosure in accordance with the provisions of the Public Interest Disclosures Act 1994 .
This finding arises from the characterisation by the respondent of some of the withheld information as information relating to a Public Interest Disclosure under the Public Interest Disclosures Act 1994. The respondent (at section 4.5 of their report) relies on the provisions of section 22 of that Act to withhold the information. Section 22 provides:
22 Confidentiality guideline
(1) An investigating authority or public authority (or officer of an investigating authority or public authority) or public official to whom a public interest disclosure is made or referred is not to disclose information that might identify or tend to identify a person who has made the public interest disclosure unless:
(a) the person consents in writing to the disclosure of that information, or it is generally known that the person has made the public interest disclosure as a result of the person having voluntarily identified themselves (otherwise than by making the public interest disclosure) as the person who made the public interest disclosure, or
(b) it is essential, having regard to the principles of natural justice, that the identifying information be disclosed to a person whom the information provided by the disclosure may concern, or
(c) the investigating authority, public authority, officer or public official is of the opinion that disclosure of the identifying information is necessary to investigate the matter effectively or it is otherwise in the public interest to do so.
(2) As part of its procedures for receiving, assessing and dealing with public interest disclosures, a public authority must establish procedures for ensuring that a public official who belongs to the public authority maintains confidentiality in connection with a public interest disclosure made by the public official.
Note. These procedures are required to be the subject of a policy of the public authority under section 6D.
The report refers to two bases for withholding of the information, by reference to the schedule of documents. The schedule refers to the following 'relevant public interest consideration(s) against disclosure:
Overriding secrecy laws
Legal professional privilege
I interpret those provisions as the respondent relying on Schedule 1 clauses (1) and (5) of the GIPA Act as the basis to refuse access to the information.
The matter came before me for a preliminary Planning Meeting on 20 January 2015. At the Planning Meeting the matter was fixed for hearing and a timetable was set for the filing and serving of evidence and submissions.
On 29 January 2015 the respondent filed the confidential (withheld) documents with the Tribunal. Those documents were described as falling into two categories, public interest disclosure documents and legal professional privilege documents. This is consistent with the observations that I made at paragraph 15 (above) in respect of the basis for withholding access to the documents that gives rise to these proceedings.
On 24 February 2015 the respondents written submissions were filed and addressed matters relating to the confidential information and the approach to be taken by the Tribunal. Whilst there were detailed submissions in respect of the general operation of the GIPA Act, and the legal professional privilege (clause 5 Schedule 1) grounds, there was no reference in the submissions to the Public Interest Disclosure 'secrecy grounds'.
It appears from a detailed analysis of the respondent's written submissions that the respondent has withdrawn the Schedule 1 clause (1) basis for withholding some of the documents, and has instead relied on public interest considerations against disclosure (as set out in section 14 of the GIPA Act). In making this observation I note that whilst there is reference to the clause (1) ground at paragraph 1.2 (a) and 2.11 (a) of the respondents submissions, no further reference is made. It appears that the respondent substituted the original reliance on clause (1) of Schedule 1 with a submission based on a public interest consideration against disclosure being of sufficient weight to override the general presumption in favour of disclosure in accordance with section 14 of the GIPA Act.
In those submissions in respect of the withheld material, not subject to a legal professional privilege claim, the respondent agency relied on clause 1 (d) (f) and (g) of the Table to section 14 of the GIPA Act.
Section 14 of the GIPA Act provides the circumstances whereby public interest considerations against disclosure of government information may be applied. Relevant to this application, the respondent relied on the provisions outlined below (being public interest considerations) against disclosure of a small quantity of the information. Relevantly section 14 provides:
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).
[3]
Respondents Case / Submissions
The respondents written submissions are summarised at paragraphs 19 to 21 (above). Whilst the respondent correctly submitted that the relevant decision to be reviewed by the Tribunal in these proceedings is the Notice of Decision dated 19 November 2014, as outlined at paragraph 20 (above), it is apparent that aspects of that decision are no longer pressed by the respondent.
Having reviewed the relevant provisions of the Public Interest Disclosures Act 1994 and the definition of 'corrupt conduct' as set out in section 8 of the Independent Commission Against Corruption Act 1988, and the material withheld (other than the legal professional privilege material) by the respondent, in my view it is highly unlikely that the provisions of clause (1) of Schedule 1 of the GIPA Act would apply. The material does not appear to cover matters / allegations which would fall within the definition of corrupt conduct in section 8 (1) or 8 (2) subsections (a) - (d) inclusive or (f) - (y) inclusive. Whilst some of the allegations could amount to the matters outlined in section 8 (2) (f), the allegations do not appear to link to the requirement to impact on the exercise of official functions by a public official. In addition the material does not appear to satisfy the requirements of section 12 B (1) (b) of the Public Interest Disclosures Act 1994.
As a result of the matters outlined above, on the evidence and material before me, I find that there are no grounds under clause (1) of Schedule 1 of the GIPA Act, that would apply to prevent the release of any of the material sought by the applicant. There remains however other grounds that the respondent relies upon.
The respondent's written submissions outline that the question of waiving the legal professional privilege claim was considered in accordance with clause 5 (2) of the GIPA Act, however they maintained their claim of legal professional privilege and reliance on clause 5 (1) of the GIPA Act.
The respondent sets out in submissions that the employee from Local Government NSW (a local government 'industry body') is legally qualified and holds a practising certificate issued by the Law Society of New South Wales. The submissions detail that the individual is employed as a senior industrial officer for Local Government NSW ('LGNSW') however he is regularly contacted by the respondent for the provision of legal advice in respect of the contents of draft documents prepared by the respondent in respect of workplace disputes.
The respondent submits that the LGNSW officer provides support services to councils including employment law related services. They submit that the officer is a specialist in industrial disputes and that 'as the legal officer concerned had an appropriate degree of independence required for this privilege to arise'. The respondent further submits that from the confidential documents it is clear that the nature of the advice sought was legal and not administrative or commercial information.
In addition to the legal professional privilege claim, the respondent provided submissions on clauses (1) and (3) of the Table to section 14 of the GIPA Act. (See paragraphs 23 and 24 above). Reliance was placed on the Leech v Sydney Water Corporation [2010] NSWADT 298 in determining the meaning of the words 'could reasonably be expected' as they apply to clauses 1 and 3 of the table to section 14 of the GIPA Act. At paragraph 25 of that case the Administrative Decisions Tribunal (ADT) said:
25 The term 'could reasonably be expected' has been considered in a number of cases. The words have their ordinary meaning: Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163. The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC.
In AMH v Western New South Wales Local Health District [2014] NSWCATAP 33 the appeal panel reiterated the approach to be taken when considering section 14 of the GIPA Act. Importantly they reinforce the fact that any reliance on public interest considerations against disclosure involves a two stage approach.
The Tribunal's decision and the appellant's arguments
20. At [34] of the Tribunal's decision, the Judicial Member set out the Tribunal's task in determining the appellant's application for review. Put simply, that task was to determine whether the respondent had established (s 105 of the GIPA Act places the onus on the respondent) the following:
(a) a disclosure of the information in issue would give rise to one or more of the public interest considerations against disclosure (see s 14 of the GIPA Act), and
(b) on balance, the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure of the information in issue (see ss 12 and 13 of the GIPA Act).
21. In regard to the public interest considerations against disclosure, the Judicial Member, at [39] to [41], noted that common to all the public interest considerations against disclosure in the table to subs 14(2), is that a disclosure of the information in issue 'could reasonably be expected' to have the nominated effect as set out in the table. The Judicial Member also cited the well accepted meaning of 'could reasonably be expected' in the context of the GIPA Act and other legislation proving for access to government information.
22. The Judicial Member found, at [83], that the respondent had established that public interest considerations against disclosure of the information in issue, on balance, outweighed the public interest considerations in favour of disclosure. That is, the Judicial Member found that the respondent had established that there was an overriding public interest against disclosure, in accordance with the public interest test in s 13 of the GIPA Act.
23. In regard to the public interest considerations against disclosure of the information in issue, the respondent relied on a number of those prescribed in the table to subs 14(2) of the GIPA Act: see at [37] to [68] of the Tribunal's decision.
The case of Hurst v Wagga Wagga City Council [2011] NSWADT 307 also examines the Tribunal's task, and was referred to by the respondent in written submissions.
47. The Tribunal's task is to determine whether there is an overriding public interest against disclosure of the information in those documents in accordance with the Act, paying due regard to the principles in s 16. This requires that the public interest consideration both in favour and against disclosure be identified, so that the question of whether, on balance, the public interest considerations against disclosure outweigh those in favour of disclosure can be determined. Unless there is an overriding public interest against disclosure the presumption in favour of disclosure applies (s 5).
48. Public interests considerations in favour of disclosure are set out in section 12. The section makes it clear that those considerations are not limited.
Written submissions also canvassed the statutory meaning of the term 'reveal' (as defined in the GIPA Act), when considering the disclosure of personal information (concerning a third party) as set out in clause 3 (a) of the Table to section 14 of the GIPA Act. The respondent submits that the identity of the person who supplied confidential information to the Council has not been disclosed to the applicant.
Reliance was also placed on the position established in the case of MJ v Department of Education and Commerce [2013] NSWADT 213, which covered information requested with a provenance concerning the examination or investigation of allegations of misconduct by an employee. At paragraph 73 the ADT said:
73. It is well established that a function of an agency is to deal with and action allegations of misconduct by one or more of its officers. The effective exercise of that function is based on complaints being made voluntarily and that the making of the complaint and any action taken in regard thereto remains confidential, to the extent required by law.
74. However, in the absence of the respondent setting out in detail how it contends that the public interest consideration against disclosure in cl 1(h) of the table to subs 14(2) of the GIPA Act applies, I find that its application to the information in issue has not been established. In this regard, I find the information in dispute relates to matters that post-dated the investigation report of Ms Woodhouse.
Where does the balance lie?
75. Other than the general principles set out in ss 3, 5 and 12(1) of the GIPA Act, the Act does not set out how the public interest considerations for and against disclosure are to be weighed, in determining whether the public interest against disclosure outweighs the public interest in favour of disclosure. Accordingly, each matter is to be determined on its own facts and as pointed out by the Tribunal in, Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [70] the balancing of the competing interests 'is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation'.
76. In my view, the abovementioned public interest consideration against disclosure of the remaining disputed information (i.e. other than the mobile phone number of the Principal Investigator of EPAC) should be given considerable weight as it is personal information which has not been revealed and it is information relating to an internal misconduct allegation, for which it is accepted an agency must ensure confidentiality so as to obtain the ongoing voluntary co-operation and assistance of staff in reporting such allegations and then assisting in the investigation thereof.
The respondent submitted that in respect of the material which was captured in clauses 1 and 3 of the Table to section 14 of the GIPA Act, the information was expressly confidential and that there was a residual implied requirement that all information given in relation to an investigative process was to be given in confidence and treated in confidence.
Detailed submissions also addressed the approach taken in respect of the FOI Act and the GIPA Act by both the appeal panels of the ADT and NCAT, when considering whether an agency is able to obtain information in future. The argument being that employees would not be prepared to assist the employer / manager with addressing allegations concerning a third party if there was a risk that the identity of the person / employee assisting, would be disclosed to the third party.
[4]
Respondent's Evidence
The respondent tendered a Statement of Nadean McKenna who also gave oral evidence in the proceedings. Ms McKenna is the Human Resources Manager. Ms McKenna gave evidence in chief and was subject to extensive cross-examination by the applicant. The statement addresses the points of legal professional privilege and the issue of information provided in confidence. A copy of the respondent's Grievance Policy was obtained during the course of the hearing and tendered in support of the statement. Ms McKenna's evidence was that the normal procedure for receiving and responding to a complaint was outlined in the Grievance Policy.
In respect of the legal professional privilege claim, Ms McKenna's evidence was that she obtained and received advice from the LNSW officer over many years and on regular occasions. The nature of the service provided by LGNSW was in relation to advice and assistance concerning disciplinary procedures and disputes amongst employees. The nature of the communications is that they were considered confidential, and were for the purpose of obtaining legal advice. These confidential communications are stored in a confidential and secure folder in the records management system used by the respondent.
Ms McKenna also gave evidence in chief concerning the nature of the workplace, being a small 'close nit' community, and due to this and the fact that the majority of employees had been long term employees (50% with more than 20 years as employees), she had become very focused on maintaining confidentiality in the workplace. When giving evidence about the Grievance Policy (which is titled 'Grievance Procedure') she referred to the procedure providing that only people directly involved in making or investigating a complaint will have access to information about the complaint.
In cross examination the applicant focused on the legal professional privilege claims of the respondent. Ms McKenna gave evidence that she was advised by the General Manager of the respondent to obtain legal advice from LGNSW. Ms McKenna was questioned concerning the legal advice being provided by an industrial officer not employed by a law firm. Her evidence was that the officer has a practising certificate and the provision of legal advice was part of the service offered by the respondent's agreement with LGNSW.
Ms McKenna gave evidence that general complaints, if deemed not serious enough, would not be acted on by her, but nevertheless would be stored confidentially. Once a complaint was serious her role was to comply with the respondent's Grievance Policy.
[5]
Closed evidence / hearing
Pursuant to section 107 (2) of the GIPA Act, the respondent sought and was granted a confidential hearing for part of the proceedings. 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.
Having reviewed the evidence and matters that transpired during the confidential session, in my view there is no need to provide any reasons (which would require the protection of the confidentiality provided by the section) in respect of that session. The matters that transpired merely clarified or amplified some minor aspects of the respondent's case. However, importantly, as a matter arising from that session, the respondent conceded that two documents (previously withheld) could now be provided to the respondent.
In closing submissions (in open session) the respondent restated that Ms McKenna sought legal advice from a lawyer concerning matters pertaining to the management of the performance and discipline of the applicant. The respondent further submitted that they relied on the provisions outlined in clause (1) (d) (f) and (g) of the Table to section 14 in order to effectively be able to create and maintain an environment where confidential complaints can be made.
Further submission were made that in order for an agency (the respondent) to perform its functions, there must be co-operation of the employees.
[6]
Applicant's Evidence / Submissions
The applicant tendered one item of evidence in support of his application. That constituted a statement by the applicant signed and witnessed on 9 March 2015. The statement explores the applicant's concerns that material of a confidential nature had been revealed to the respondent by the officer of LGNSW. The applicant's concerns seem to arise from a belief that the respondent would seek to obtain any sensitive information that they could in order to apply it in some manner which could be adverse to the applicant. However the applicant's own evidence did not establish this, nor did any of the evidence and material provided to the Tribunal by the respondent.
Throughout his evidence in chief, and the contents of the statement, it was clear that (somewhat understandably) the applicant maintained his initial position that the 'information claimed to be exempt is not exempt'. The applicant therefore submitted that the material should be released to him in its entirety.
The applicant was subjected to cross examination by the respondent's legal representative. During evidence, matters relating to current or potential industrial proceedings between the applicant and the respondent (employer) were raised. Questions were put to him concerning how that material might be relevant to other proceedings, and available under subpoena or summons in such proceedings. A submission was put that those proceedings were the proper forum for the discovery of such material and the use of the GIPA Act was not the appropriate vehicle.
Questions were also put to the applicant concerning how he would view material provided about him by a third party, and his attitude to such a practice. The applicant indicated that as he no longer was employed by the respondent, then such a line of questioning was hypothetical as he would not have any contact with such a person(s) should they exist / be identified.
The applicant maintained his general position that as the information was about him, then he had a right to the information, especially as the respondent had used the information against him, in both placing conditions on his work, and ultimately terminating his employment with the respondent. Whilst he agreed that he had received written details and confirmation about (what the applicant maintained were alleged) concerns with his performance, his basis for the information was that in his view it was inaccurate and open to challenge.
In many ways the applicant maintained that he was asserting his right to challenge the information and thereby the respondent's decision both in respect of his employment and the decision to withhold some of the information under the GIPA Act.
[7]
Consideration
I note that section 55 of the GIPA Act provides that the personal factors of the application can be taken into account in determining whether there is an overriding public interest against disclosure of the material. The section provides that:
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 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.
Under section 55 (3) of the GIPA Act, the personal factors of the applicant can only be taken into account in respect of the Clause 3 (a) consideration (reveal an individual's personal information). Other grounds submitted at the hearing concerning clause (1) of the Table to section 14 of the GIPA Act, are not impacted by a consideration of section 55. In addition I note that the application of section 55 is discretionary rather than mandatory in any consideration to release material under the GIPA act.
[8]
Legal Professional Privilege (Sch 1 Cl 5)
The general provisions relating to the existence of legal professional privilege are as follows. The material must be:
In the context of a client and lawyer relationship,
That there is a confidential nature to the communication or the document(s),
The communication or the documents was brought into existence for the dominant purpose of either: (a) assisting the client in obtaining, or the lawyer to give or provide legal advice or services, (b) for use in either existing of proposed / contemplated proceedings / litigation.
These provisions have a current statutory authority within sections 118 and 119 of the Evidence Act 1995 (NSW).
I note the applicant's repeated assertion that the employee of LGNSW whilst holding a practising certificate, was not employed as legal officer or a solicitor by LGNSW, the evidence being that he was an industrial officer. However I note that whilst the industrial officer's practising certificate is 'restricted', in that it has conditions attached to it, there is a lawyer employed in LGNSW who holds an unrestricted practising certificate. In this regard, legal work performed by an officer with a restricted practising certificate, would be supervised and covered by the unrestricted certificate of the more senior officer.
During both the open hearing and the confidential session, no evidence arose which would indicate that any of the communications between the respondent and the employee of LGNSW related to any issue other than the apparent provision of legal advice. Whilst the applicant maintained that other persons (such as the General Manger) should have been available to give evidence and be subject to cross examination by the applicant on this issue, this did not eventuate. As no statement or affidavit had been tendered in that regard, and notice had not been given of witnesses required (in accordance with the directions of 20 January 2015), only the applicant and Ms McKenna gave evidence.
Having reviewed the material for which the claim of legal professional privilege is made, and having regard to the written submissions and in particular the evidence of Ms McKenna, in my view the claimed material falls within the definition and description of material which can be subject to a valid claim of legal professional privilege.
As a result there is a conclusive presumption of an overriding public interest against disclosure of the material subject to the legal professional privilege claim.
[9]
The Personal Information Claim (Cl 3 (a) )
The case of Commissioner of Police NSW Police Force v Camelliri [2012] NSWADTAP 19 provides authority for the correct reasoning process in respect of the application of section 14 of the GIPA Act to the relevant consideration being relied upon and the evidence. Citing the case of Director General, Department of Education & Training v Mullett & anor (GD) [2002] NSWADTAP 13 in respect of the former (FOI) Act, the appeal panel made the following observation:
28. In Director General, Department of Education & Training v Mullett & anor (GD) [2002] NSWADTAP 13 (Mullett), the Appeal Panel said:
58 In our view cl 13(b)(ii) requires the Tribunal to engage in a relatively abstract analysis. It must ask whether material of the kind sought to be protected on the present occasion would, if released, prejudice the supply of similar material to government in the future, as a matter of reasonable expectation. That requires the Tribunal to characterise the nature of the material sought to be protected on the present occasion; to identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; the extent to which guarantees of confidentiality may be necessary. We agree with the dicta of Young CJ in Ryder v Booth [1985] VR 870 as to how a similar question arising under the Victorian FOI Act's in-confidence exemption (whether disclosure would be reasonably likely to impair the ability of an agency to obtain information communicated in confidence) should be approached. His Honour said at 872:
`The question then is, would disclosure of the information sought impair (i.e. damage) the ability of the [agency] to obtain similar information in future. ... It may be noted that it is the ability of the [agency] that must be impaired. The paragraph is not concerned with the question whether the particular doctor whose report is disclosed will give similar information in future but with whether the agency will be able to obtain such information. ...'
29. This approach was endorsed in many subsequent Tribunal and Appeal Panel decisions. The same approach is required, as we see it, in relation to many of the s 14 Table considerations. They squarely focus on considerations relating to the conduct of the business of government. Under the first five clauses of the section 14 Table there are a total of 35 possible 'effects' listed (clause 1, nine; clause 2, nine; clause 3, seven; clause 4, five; clause 5, five). Each of the five clauses is introduced by the words:
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:.
30. The Tribunal is called on to examine whether the effect is established and then to ask whether the disclosure 'could reasonably be expected' to have the specified effect.
31. In this case the Tribunal was required to form an opinion on whether disclosure of the information could reasonably be expected to have the effect of prejudicing the supply to an agency of confidential information that facilitates the effective exercise of the agency's functions (cl 1(d)); or, if not seen as 'confidential information', would nonetheless prejudice the effective exercise by an agency of the agency's functions (cl 1(f)). As to the different spheres of operation of cl 9(d) and cl 1(f) and their connection to the provisions of the previous legislation, see generally, Robinson, New South Wales Administrative Law (NSWAL service) [50.6890] and [50.6930].
In my view on the evidence and material before the Tribunal, it is clear that the effect of revealing an individual's personal information would be established. In evidence the respondent provided information that the material was provided in confidence. In this regard it was inferred that the individual would not wish for their personal information to be released. This proposition was placed before the Tribunal in the absence of any evidence of formal or informal consultation with the individual in respect of their views on release under the GIPA Act.
Whilst not formally raised by the respondent, there was some discussion that the respondent's submissions go to the issue that on the material that they have submitted in support of their submissions, that the disclosure of the information in their view could reasonably be expected to expose the person(s) to a risk of harm or serious harassment or serious intimidation. However, no evidence was adduced on this point, in respect of what the real or perceived risk might be. In fact, no evidence was put concerning the applicant on this point. Perhaps this issue was not ventilated further due to the fact that the applicant was not currently employed by the respondent.
[10]
The Confidentiality Provisions (Cl (1) (d) (f) (g) )
In my view there is a link between the 'personal information' provisions and the 'confidentiality' provision because of the matters outlined above. The revealing of the information would either directly or constructively identify the third party who had provided information in confidence concerning the applicant. Such a release in circumstances outside of a setting directly related to the circumstances of the generation of the information could lead to a compromising of that information, which is held by the respondent.
The information could be used for any purpose, unlike the caveat which might apply to such information if it was obtained through a formal or informal discovery process in legal proceedings. In such a process the information could be obtained lawfully and coercively if there was a legitimate forensic purpose to its production. In addition there would be grounds to have objections adjudicated upon and any claims for privilege made.
Finally, the use of that information in such a context would be conditional, in that it could not be used for a collateral purpose, but only used in the context of any such litigation.
The respondent submitted that the prejudice which would attach to the respondent by the release of the information in the context of the need to maintain and manage an information flow of confidential material, is a strong one. This it was submitted is due to the fact that that there is a pending 're-instatement' issue which embroils the respondent, due to the legal actions or avenues open to the applicant. In addition the small nature of the respondent agency makes it more difficult to manage confidentiality than would be the case in a larger organisation.
[11]
Further Consideration
This is an application whereby the applicant is merely trying to obtain copies of information concerning himself. However that information is by nature classified as a number of things in addition to the 'personal information of the applicant'. It contains mixed personal information in that there is also the personal information of the authors of the information, and third parties referred to in that data. In addition some of the data / information has an additional classification under the GIPA Act, in that it is information which constitutes (inter alia): legal material which falls within the definition of legal professional privilege, and confidential information.
It is clear that the applicant's case was not assisted by the respondent's initial reliance on matters relating to Public Interest Disclosures, in that much of his own preparation focused (understandably) on rebutting those submissions and that initial position.
In respect of the matters discussed at paragraphs 60 - 66 (inclusive), I note that there was minimal evidence provided by the respondent as to how the weighting under section 14 of the GIPA Act should be applied. Leaving to one side the evidence and submissions concerning the issue of the prejudice which would attach to the respondent, little material was lead as to how the personal information issue should be given any significant weight. In addition whilst the confidentiality provisions were addressed in some detail, it appears that they are bolstered by various undertakings given (prior to the GIPA Act application), whereby on the evidence before the Tribunal it appears that the respondent has 'guaranteed' confidentiality. Clearly undertakings and overtures are subject to law, and it is not possible for an agency to give a binding guarantee about matters to which it is both subject to external scrutiny, or legal requirements.
In my view an agency should make such 'undertakings' or advice to individuals in a practical and straightforward manner. I am not suggesting in any way that the respondent made inappropriate or misleading overtures and guarantees to individual(s) who provided information in confidence, but that it would be more realistic to inform an individual that the matters would remain confidential (subject to law). In this instance there appears to be a small suite of information provided internally, on a confidential basis, whereby it could be inferred that the respondent (or another agency in similar circumstances) is seeking to opt out of the provisions of the GIPA Act. However I make no findings in this regard.
Agencies need to be mindful that all data is subject to the GIPA Act, and on assessment, only the material in schedule 1 is 'presumed' to be subject to an overriding public interest against disclosure.
External professionals and senior officers within agencies and government are intuitively aware when creating information or data, what provisions may apply to its release or unconditional availability. However this would not be the case (or to a similar extent) with less senior public sector employees when dealing with material that might be described as falling within the provisions of the Table to section 14 of the GIPA Act. As such agencies need to balance carefully the objects of the GIPA Act when creating and collecting information, especially the provisions of section 3 (1) (c )
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.
(Emphasis added)
Whilst the data may not be available in all instances to an applicant such as Mr Hutchinson, it is understandable that a citizen would ordinarily infer that such information could be accessed under those provisions.
[12]
Conclusion
I make a finding in accordance with paragraph 59 (above) that there is a conclusive presumption of an overriding public interest against disclosure of the material subject to the legal professional privilege claim.
I make a finding that in respect of the other material, there is sufficient weight to attach to the material under clause (1) (d) (f) and (g) of the Table to section 14, such as to provide public interest considerations against disclosure that override the general public interest provisions in favour of disclosure.
In respect of the personal information grounds, (Cl 3 (a) of the Table), I find that whilst the grounds have not been made out to the extent required under section 14, as that information is captured within clause (1) (d) (f) and (g), that material is withheld.
It follows that the correct and preferable decision is to affirm the decision of the respondent.
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: 26 June 2015
The Table to section 14 provides the various criteria or considerations referred to in section 14 (2). The Table lists seven areas whereby relevant public interest considerations against disclosure are set out. As previously noted, other than the material subject to the legal professional privilege claim, the respondent agency relied on clause 1 (d) (f) and (g) and attached significant weight to the provisions.
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):
(d)
prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions,
(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,
In addition the respondent provided submissions in respect of clause 3 (a) of the table to section 14, in that:
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,