Imielska v Northern Sydney Local Health Network [2014] NSWCATAD 216 | Case summary

Judgment (9 paragraphs)

[1]

reasons for decision 1Ms Imielska is an employee of the Northern Sydney Local Health District (the Agency). Since approximately early 2008 she has been in dispute with the Agency concerning its treatment of her as an employee. 2On 2 August 2012 Ms Imielska applied to Northern Sydney Local Health Network under the Government Information (Public Access) Act 2009 (the GIPA Act)for copies of: All emails of the following individuals which contain information regarding myself (Grazyna (Grace) Imielska); Chris Seeto, David Fenech, Nathan Emanuel, Joanne White, Stacy Pavlidis, Amanda Graham. 3In its decision of 7 September 2012, the Agency decided to:

Release some of the e-mails in full;
Release some of the e-mails in part, with redactions of the non-released contents;
Withhold some of the e-mails / documents. 4The Agency relied upon a privacy consideration in determining not to release some of the material to Ms Imielska. In its determination the Agency decided that: (a)There was an overriding public interest against disclosure because disclosure of the information could contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (clause 3 (b) of the table to section 14 of the GIPA Act); and (b)Some information is subject to legal professional privilege for which there is a conclusive presumption against disclosure under clause 5 of schedule 1 to the GIPA Act. 5The Agency located further material in respect of the e-mails of Ms C Seeto, and on 25 September 2012 wrote to Ms Imielska advising her of this development and its decision to release those e-mails to her in full. 6On 7 October 2012 Ms Imielska lodged a request to review the Agency's decision, as a reviewable decision under section 80 (d) of the GIPA Act, being a review by the Information Commissioner. 7The (Information Commissioner) review was conducted in the absence of an internal review by the Agency, and as such was reviewed in accordance with the provisions of section 89 (2) of the GIPA Act, which permitted an external review by the Information Commissioner in the absence of an internal review, if the applicant was the aggrieved access applicant. 8The Information Commissioner within the Information and Privacy Commission reviewed the matter and prepared a report dated 6 May 2013. The Information Commissioner determined that the Agency had not adequately applied the public interest test to the information it withheld from Ms Imielska. In addition, the Information Commissioner was not satisfied that the Agency had located all of the information within the scope of the application. Finally, the Information Commissioner was not satisfied that in respect of the claim of legal professional privilege that the Agency had considered whether it wished to waive that privilege in respect of the claimed documents. 9On 23 May 2013 Ms Imielska lodged an Application for a review of a reviewable decision with the Administrative Decisions Tribunal (ADT) under the provisions of section 100 of the GIPA Act. That review was lodged within the time specified by section 101(2) of the GIPA Act. 10The Tribunal's function on review under s 63 of the Administrative Decisions Tribunal Act 1997 is to make the correct and preferable decisions having regard to the material before it 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 179; (1979) 46 FLR 409. 11The matter was listed for a number of Planning Meetings in the latter half of 2013, whereby the parties and Tribunal clarified the issues that remained in dispute, and set out a timetable for submissions and the filing of material in respect of the future conduct of the proceedings (a hearing or determination on the papers). 12At a Planning Meeting on 1 August 2013 a direction was made that: 3) If the Applicant does not wish to cross-examine any of the respondent's witnesses then this matter shall be determined on the papers. If she does wish to cross-examine, it shall be fixed for hearing for one day. Included in her submissions filed 7 November 2013 was a statement at page 5 that the Applicant does not wish to examine Mr Bassett (who provided information concerning IT recovery processes). No references to the examination of any other witnesses were made by the Applicant. On the basis of those submissions the matter proceeded to be determined on the papers. 13This matter was commenced in the General Division of the Administrative Decisions Tribunal ("the ADT") pursuant to the Administrative Decision Tribunal Act 1997 ("the ADT Act"). On 1 January 2014, the ADT was abolished and its functions were taken over by the Civil and Administrative Tribunal of New South Wales ('NCAT'). The present decision is therefore a decision of NCAT. However, because the proceedings to which it relates are 'part heard proceedings' as defined in clause 6(1) of Schedule 1 of the Civil and Administrative Tribunal Act 2013, they are to be determined as if that Act had not been enacted (see clause 7(3)(b) of that Schedule). 14The GIPA Act objects are set out in section 3 of the Act. 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. 15In addition the long title of the Act provides that it is: An Act to facilitate public access to government information. 16Section 14 of the GIPA Act provides the circumstances whereby public considerations against disclosure of government information may be applied. Relevantly to this application, the Agency relied on the provisions outlined below (being public interest considerations) against disclosure of some of the information. Relevantly section 14 and the Table provides (inter alia): 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. Table

17The Agency has applied the provisions of Clause 3 (a) and (b) of the Table to section 14 of the GIPA Act (as outlined above), as a public interest consideration against disclosure which (in their assessment) outweighs the general public interest consideration in favour of disclosure as outlined in section 12 of the GIPA Act. I note that there has been no analysis or other explanatory reasons provided as to how this information (when weighted) overrides the general public interest considerations in favour of disclosure as outlined in section 12 (1). 18The principles that apply to the application of the public interest considerations against disclosure (which can be taken into account when assessing whether to override the presumption in favour of disclosure), are set in section 15 of the GIPA Act. That section provides that: 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. 19In its Notice of Decision under section 58 (1) (a) of the GIPA Act dated 7 September 2012, the Agency advised at 3.1 that: I have decided, under s.58(1) (a) of the GIPA Act, to provide access to the majority of the information sought in your application. Attached to this Notice is a Schedule of documents that will be released. I have also applied the public interest test to other documents as per schedule of documents and have determined that there is an overriding public interest against disclosure of the information sought. Schedule 4 (1) of the Privacy and Personal Information Protection Act defines personal information as: (1) In this Act, personal information means information or an opinion (including information or opinion forming part of a database and whether or not recorded in a material form)about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion. I have outlined the documents that have either been redacted or refused as they apply to the above. This decision is reviewable under s. 80(d) of the GIPA Act (see part 4 of the Notice for information about your review rights). 20The Notice states earlier at 2.2 Consultation NSLHD has not been required to consult with any third persons in relation to the information sought. 21In essence, the Agency appears to have applied significant weight to the privacy of third parties in determining that there was a potential contravention of an Information Protection Principle, and as a result determined that there was sufficient weight to attach to that finding of fact, so as to override the general presumption in favour of disclosure. In addition, on the material before me, it appears that this position has been arrived at in the absence of the application of any of the principles as specified in section 15 of the GIPA Act as outlined at paragraph 16 (above). I note that no consultation took place in respect of the third parties. 22Section 15 (b) provides that in exercising this function, 'Agencies must have regard to any relevant guidelines issued by the Information Commissioner'. The Information Commissioner's GIPA Guideline 4 - Personal information as public interest consideration provides the following relevant guidance on the issue. 3.12 In the context of 3(b) of Table 14, the IPP dealing with disclosure of personal information would be the most likely one to be breached by disclosure of personal information under the GIPA Act. That IPP is contained in section 18 of the PPIP Act and provides that agencies must not disclose personal information unless: (a) the disclosure is directly related to the purpose for which the information was collected, and there is no reason to believe that the person would object to the disclosure, or (b) the individual concerned is aware, or reasonably likely to be aware, that information of that kind is usually disclosed, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person. 3.13 In determining whether disclosure of personal information would reasonably be expected to contravene the PPIP Act, agencies should ask the following questions: (a) Is the information personal information as defined in section 4 of the PPIP Act? (b) Is the information being disclosed for the same purpose for which it was collected, or a purpose directly related? (c) Has the person who is the subject of the information consented to the disclosure? (d) Would the subject of the information be likely to be aware that information of that type is usually disclosed? (e) Would disclosure of the information be likely to prevent or lessen a serious or imminent threat to someone's life or health? If the answer to any of these questions is "yes", it is unlikely that disclosure would be a breach of the PPIP Act. 3.14 If the request for the information is in the form of a formal GIPA Act access application, an agency may need to consult with the third party to see if he or she consents to the disclosure. If the third party consents, there will be no contravention of the IPP. 3.15 In establishing whether or not the public interest consideration in 3(b) is relevant, disclosure of the information need only "reasonably be expected" to breach an IPP. Agencies do not need to determine conclusively whether an IPP would in fact be contravened by disclosure of the information. 3.16 If an agency establishes that disclosure of the information could reasonably be expected to contravene an IPP, the question of whether that consideration against disclosure will be an overriding one will depend on the weight given to that consideration. The weight will depend on the type of personal information being requested, the context of the request, and the extent of the breach. The effect of section 5 the PPIP Act 3.17 If an agency finds that either 3(a) or 3(b), or both, are public interest considerations against disclosure and that releasing the information would contravene the PPIP Act, it may still release the information after applying the public interest test under the GIPA Act. This is made clear by section 5 of the PPIP Act, which provides that nothing in that Act serves to lessen the obligations agencies must exercise under the GIPA Act. Therefore, if the public interest considerations in favour of disclosure outweigh those against, then the personal information can be released to the applicant. (Emphasis added). 23In addition section 54 of the GIPA Act provides the following relevant provisions in respect of consultation. 54 Consultation on public interest considerations (1) An agency must take such steps (if any) as are reasonably practicable to consult with a person before providing access to information relating to the person in response to an access application if it appears that: (a) the information is of a kind that requires consultation under this section, and (b) the person may reasonably be expected to have concerns about the disclosure of the information, and (c) those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information. (2) Information relating to a person is of a kind that requires consultation under this section if the information: (a) includes personal information about the person, or (b) concerns the person's business, commercial, professional or financial interests, or (c) concerns research that has been, is being, or is intended to be, carried out by or on behalf of the person, or (d) concerns the affairs of a government of the Commonwealth or another State (and the person is that government). Note. The requirement to consult extends to consultation with other agencies and other governments. See the definition of person in Schedule 4. ............ (4) The purpose of consultation under this section is to ascertain whether the person has an objection to disclosure of some or all of the information and the reasons for any such objection. (5) The agency must take any objection to disclosure of information that the agency receives in the course of consultation into account in the course of determining whether there is an overriding public interest against disclosure of government information. (6) If consultation establishes that a person objects to the disclosure of information but the agency decides to provide access to the information in response to the application, access is not to be provided until the agency has first given the objector notice of the agency's decision to provide access to the information and notice of the objector's right to have that decision reviewed, and is not to be provided while review rights on the decision are pending. (Emphasis added 2 (a)) 24On my assessment the Agency appears to have omitted to conduct a number of steps in the process. (1)The Agency has not consulted with the third parties in respect of whether they would consent to the release of the emails authored by each of them, and /or the third parties whose names have been redacted from the content of some of the emails. (This would appear contrary to the processes set out in both section 54 of the GIPA Act and the Information Commissioner's Guideline 4). (2)The Agency appears to have reached a position on the material, and that (notwithstanding the lack of consultation) there appears to have been a lack of consideration as to whether (if the release does contravene an IPP) how that consideration against disclosure would be an overriding consideration. That is, no real analysis or sufficiency of reasons has occurred. 25In addition, when apparently determining that there is an overriding public interest against disclosure, the Agency appears to have omitted to consider personal factors of Ms Imielska's application. From the Information Commissioner's review report which Ms Imielska annexed to her application for review by the Tribunal, the following matters are evident:

Ms Imielska is an employee of the Respondent Agency.
Ms Imielska has complained about allegations of bullying, harassment discrimination and victimisation and alleges that these complaints have not been properly addressed or dealt with.
Ms Imielska has proceedings against her employer for discrimination and believes that the information would support the case against her employer. 26On the material before me, there is no information in the review to indicate that the respondent Agency has applied these factors in applying the public interest test to the information not disclosed. I note that the Information Commissioner's Guideline 5 provides guidance on how agencies should consider the matters set out in section 55 of the GIPA Act.

The sufficiency of search issue 32The GIPA Act provides that a decision maker must be satisfied that an access application would require both an unreasonable and a substantial diversion of an agency resources, before refusing to deal with an application. This mirrors the provision in the former Freedom of Information Act 1989. 33This issue was addressed in some detail in the case of Colefax v Department of Education and Communities No 2 [2013] NSWADT 130. In that decision the previous Freedom of Information case of Cianfrano v Director General, Premier's Department [2006] NSWADT 137 was referred to by the Member. At 25 when considering criteria set out as a relevant consideration for the diversion of agency resources in responding to a FOI request (in Cianfrano) the Judicial Member said: 25 In my opinion most of those considerations are equally applicable to a consideration of whether a request under the GIPA Act constitutes an unreasonable and substantial diversion of an agency's resources. A factor that concerns me is that in (g), being the 40 hours processing time. I discuss this in more detail below. 26In addition to these factors, however, an access applicant under the GIPA Act has statutory right to access government information, and the Act instructs that discretions under it be exercised so as to enhance its objects. These legislative provisions apply with respect to applications under the GIPA Act and may result in the differing weight and importance being accorded to the Cianfrano factors. 27Further, the circumstances of this case highlight another factor of relevance to the question of whether the request requires an unreasonable and substantial diversion of resources. This is that the information sought by Ms Colefax relates to herself, and is substantially likely to be her own personal information within the meaning of definition of that term in Clause 5 of Schedule 4 of the GIPA Act. The fact that an access applicant is seeking his or her own personal information, is a factor relevant to the determination. 28With respect to the 40 hour consideration referred to by the President in Cianfrano, the Tribunal in that case accepted evidence that a request taking more than 40 hours to process would be a cause for concern to those responsible for processing it. Considerable caution needs to exercised with respect to that finding. It was made in the context of the facts and evidence in that case, and should not be taken as establishing something in the nature of a 40-hour rule. 29Indeed a review of other cases decided under the Freedom of Information Act 1989 or similar regimes reveals a broad diversity of cases, most of which required a much greater burden on agency resources, that the 40 hours in Cianfrano. Examples of this were highlighted by Hennessy DP in Chapman v NSW Police at [43-45] - 43 ... in Secretary, Department of Treasury and Finance v Kelly (2001) 18 VAR 427, Ormiston JA noted at [6] that the equivalent provision in Victoria 'should only be applied to a clear case of substantial and unreasonable diversion of a department or other agency'. 44 Circumstances in which the VCAT has held that a refusal under s 25A(1) is justified include: a request for 22,000 documents which would require the services of the equivalent of 1.75 experienced FOI officers a period of 15-16 months to complete (Re A and Department of Human Services (unreported, VCAT, Davis PM, 4 November 1998)); a request for an estimated 6,700 pages of documents that would take the only officer available between 15 and 30 weeks to process (Re Chapman and Victoria Parks (unreported, VCAT, Ball SM, 6 December 1999)); and a request that would require a manual search of at least 16,000 boxes that would take years for a team of people to carry out (Re Coulston and Office of Public Prosecutions [2001] VCAT 10). 45 Section 24(1) of the Freedom of Information Act 1982 (Cth) is in identical terms to s 25(1) of the Victorian Act. Considering this provision in Re SRB and SRC (1994) 33 ALD 171, the Administrative Appeals Tribunal affirmed a decision by an agency to refuse access on the basis that it would substantially and unreasonably divert the resources of the agency away from its other operations. The Agency estimated that the application would require scheduling of 600 documents containing 22,500 pages. In addition to consulting with third parties 30A more recent NSW case was one in which identifying and printing the information would take the only officer with access to all the documents at least a month, before any consideration was made as which documents access should be given to: Oliveri v NSW Police [2010] NSWADT 299. 31In the present case Ms Colefax' access requests are not global, but seek access to correspondence relating to her held by particular offices within the Agency. As modified, it is confined to a thirteen-month period. Because the individual concerned is Ms Colefax, the request seeks access to her personal information. Beyond the fact that the information is Ms Colefax's personal information, there is no evidence as to the obvious importance of the documents sought generally, or to her. Importantly, she has narrowed the scope of her request, but not to an extent that the Agency considers it manageable. 32The evidence establishes that processing GIPA 12-31 took 28.25 hours to discover and fully process all the information. Mr Essa's evidence established that, unlike the situation in the northern region, the EDRMS Is fully functional in the Director-Generals' office. As a consequence one would expect the process of finding and collating relevant information in the Director-Generals office to be quicker and simpler than that in the northern region. 33I accept Mr Essa's evidence that due to the size and nature of the Agency's network, the patchy implementation of EDRMS throughout the Agency, and the variety of record keeping systems operating in the northern region, that one cannot compare the Agency's records management system with that at a smaller agency like Marrickville Council. As a consequence, Mr Blunt's evidence of the time it took him to process comparative searches in his place of work is not a fair comparison. 34With respect to GIPA 12-30 Ms Simmons advised her in a memo dated 17 July 2012 that to find, print, collate and cross reference the information (435 pages), both electronic and hard copy, relating to documents received for the months January to April 2011 had taken one person 25 hours to complete could be completed. Whether the same time would be taken in finding documents dispatched in the period is unclear, but the Agency has proceeded on the assumption that it would take the same time. In making that assumption the Agency has not done a search of the electronic system to see what relevant documents it contains. 35Assuming similar times would be required to process the information for the balance of the requested period, then a total of approximately 285 hours would be spent locating and collating all the records. This conclusion is disputed by Ms Colefax who puts a figure of 13.5 hours. The Agency's conclusion is dependent on the untested assumption that similar times will be required in the search for the remainder of the information requested, as was spent in locating documents received for the months January to April 2011. Consideration of those materials for the purpose of release under the GIPA Act would take a further significant period time. 36To that one must add 28.25 hours the Agency says was spent processing GIPA 12-31. This too, is disputed by Ms Colefax who puts a figure of 8.5 hours. 37If one accepts the assumptions inherent in the Agency' submissions, this means that the workload in processing Ms Colefax access applications would conservatively be 340 hours. If those unverified assumptions are wrong, then the processing time will be less, arguably by as much as half. 38In submissions Ms Colefax drew attention to the Agency's failure to identify the likely volume of information within the scope of the access request, as had occurred in cases such as Cianfrano and Chad v Railcorp (2009) NSWADT 44. She also noted that the Agency has not specified how it reached the assumptions it relies on. 39With respect to the time taken to process GIPA 12-31, I think that the Agency's evidence as to the time it actually took to process that claim (28.25 hours) is the best evidence relating to that issue, and is to be preferred over that of Mr Blunt. 40With respect to the time likely to be taken to process GIPA 12-30, I agree with Ms Colefax's criticism that some of the assumptions relied on by the Agency are not supported by evidence. On the other hand, the fact that 35 hours was spent retrieving documents received for the months January to April 2011, leads me to reject Mr Blunt's estimate of 13.5 hours as the total time necessary to process GIPA 12-30. 41I am satisfied that substantially more than 35 hours, by a factor of three of more, would be required to fully to process GIPA 12-30. Combined with the time spent processing GIPA 12-30, I am satisfied that the time likely to be taken in processing both applications is a minimum of 140 hours. I also accept that a large amount of that time is required as a consequence of the fact that the Agency's northern region has not fully implemented the EDRMS. 42Given that the information Ms Colefax seeks is her personal information, whether or not the 135 hours plus required to meet her access request requires an unreasonable and substantial diversion of the Agency's resources within the meaning of s 60 is problematical. If Ms Colefax had applied for access to this personal information under s 14 of the Privacy and Personal Information Protection Act 1998 (the PPIP Act), then the Agency would not be able to refuse access on the basis that the request would require an unreasonable and substantial diversion of the agency's resources. On the other hand the Agency would have longer to process the request, and may be able to exclude some of the information to which the GIPA Act applies due to the differences in the definition of personal information between the two Acts. 43While the PPIP Act does not affect the operation of the GIPA Act, the fact agencies are unable to refuse to deal with requests for personal information under the PPIP Act on the basis of an unreasonable and substantial diversion of resources, points to the importance of the distinction between applications seeking access to government information that includes their personal information, and those seeking access to other government information. That distinction in my view, is a relevant factor when deciding whether or not an access request is unreasonable. 44The Agency is a large department, which like the rest of government is suffering constraints of budget and personnel. The call on its resources to process the requests will require the devotion of a significant number of employee hours, and will place a substantial call on its available resources. The minimum time likely to be taken by one officer in processing GIPA 12-30 (20 seven hour days) equals the time the GIPA Act allows for the processing of the application. 45When one adds the time already spent processing GIPA 12-31, I am satisfied that the burden the requests have and will place on the Agency's resources are both unreasonable and substantial. 34In this instance I note that the Agency's estimate is that to retrieve or recover the outstanding emails would take approximately in excess of 100 hours of time over an 80 day period. Depending on the size of the e-mails it may take longer. It is not necessary to go into the technical evidence on this issue as the statement is before both the Parties. I note that the agency has provided further e-mails from Ms Seeto to the Applicant during the course of this GIPA application. I find that when considering the time already taken by the Agency in complying with the GIPA request, I am satisfied that the burden that the outstanding request concerning recovering the e-mails will have on the Agency's resources are both unreasonable and substantial.

Imielska v Northern Sydney Local Health Network

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Judgment (9 paragraphs)

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