Lemon v Department of Planning and Environment

Lemon v Department of Planning and Environment - [2019] NSWCATAD 148 - NSWCATAD 2019 case summary — Zoe

[4]

The Third Decision

The Third Decision, which was made by Cameron Davies (Mr Davies), Acting Manager, Privacy and Information Access, contains 8 sections and a Schedule of Documents, and refers to the respondent as "OEH".
Section 4, which has the heading "The public interest test", has an introduction and 5 subsections. The introduction refers to ss 5, 9(1), 13 and 15 of the GIPA Act, and describes how Mr Davies applied the public interest test.
Subsection 4.1, which has the heading "Public interest considerations in favour of disclosure" and refers to s 12(1) and (2) of the GIPA Act, relevantly provides: I find the fact that the records contain information relating to you is a consideration in favour of disclosure. I also consider that the release of the records might reasonably be expected to demonstrate how OEH deals with incidents and discharges its duty of care to its employees as being a consideration In favour of disclosure.
Subsection 4.2, which has the heading "Personal factors of the application" and refers to s 55 of the GIPA Act, relevantly provides: … I have considered the circumstances of how the report came to be produced and the situation after the report was produced when looking at the personal factors of the application. You have raised your concerns about the accuracy of the report and the impact it has had on your business and you personally. The matter is obviously important to you and you understandably seek to understand actions taken that you believe have impacted on you. You also submitted that your firearms licence was recently renewed and asked that this be taken 'into account as it is central to this matter'. I accept that the renewal of your firearms licence goes towards demonstrating responsibility and trust in the context of firearms ownership. However, I do not think that this fact is central to the decision-maklng process here nor do I think that this fact impacts on the relevance of or weight attributable to the considerations against disclosure which are predominantly focused on the operations of OEH and individual rights of others. In relation to the issue of procedural fairness you raised, I do not believe that procedural fairness applies to you in this instance. OEH is not your employer, nor was it at the time the report was written. OEH does not, and did not, have the ability to make decisions directly about you. Therefore, · I do not see how OEH owes you procedural fairness when you are not a party directly related to decisions that OEH made. … I have taken the circumstances that led up to the development of the report and the relationships between yourself and other people who work at the Gunnedah Research Centre as factors against the release of the information.
Subsection 4.3, which has the heading "Public interest considerations against disclosure" and refers to s 14 of the GIPA Act, states that Mr Davies has identified the considerations 1(d), 1(f), 1(h), 2(d), 2(e), 3(a) and 3(b) of the table to s 14 as being relevant to the applicant's application, and discusses each of these considerations as follows: Consideration 1(d) Some of the information contained in the records that fall within the scope of your application is confidential information. It is confidential because the people who provided it were not required to provide it and there is an expectation that it will not be disclosed by OEH. This information has already been received and the Report has been written considering the information. Therefore, disclosing it is unlikely to prejudice that specific function of OEH. However, it might prejudice OEH's functions in respect of any future work that needs to be done in respect of the incidents that led to the creation of the Report and other issues such as OE H's presence at the Gunnedah Research Centre. OEH might rely on the people who provided the confidential information to do so again. They could reasonably be expected to have concerns about providing more confidential information, and might not provide such information in future if the information is released now. Also, the disclosure of the information could impact on other situations in the future. If OEH discloses confidential information in this instance it is reasonable to assume that it would do so again in the future. If that is a perception or assumption held by people they are reasonably likely to be less likely to provide confidential information to OEH In the future. This could impact on OEH's ability to conduct its functions as it will be poorly placed to collect confidential information that is crucial to completing tasks. Consideration 1(f) Similar to the reasons explained above in relation to consideration 1(d), disclosing the information is reasonably likely to have a negative effect on OEH's ability to collect or receive confidential information which would prejudice its ability to exercise its functions. This applies to the specific instance of further work in relation to the Gunnedah Research Centre and generally to other functions of OEH. Consideration 1(h) The Report contains information about work health and safety issues at the Gunnedah Research Centre. Disclosing this information would reveal the conduct of what is In effect an audit or review of those issues and the results of that activity which include protocols to protect OEH staff. As those protocols relate to safety of OEH staff at the Gunnedah Research Centre, revealing them could reasonably be expected to prejudice the effectiveness of the protocols developed in the Report. This is not to say that you would attempt to undermine the effectiveness of the protocols. However, the fact of the protocols being publicly known could reasonably be expected to provide opportunities for them to be undermined. I have also considered the fact that OEH staff may lose confidence in the protocols if they are publicly known. Consideration 2(d) As noted above in the examination of consideration 1(h), the Report contains information relating to work health and safety, specifically an investigation that led to the implementation of protocols designed to ensure the safety of OEH staff. This is a system designed to protect health and safety. Revealing that information could reasonably be expected to prejudice the effectiveness of that system because it may lead to circumstances where they are compromised either deliberately, or inadvertently by staff who do not believe that they will be effective because they are publicly known. Consideration 2(e) For reasons similar to those explained in relation to consideration 2(d), disclosing information about safety protocols could reasonably be expected to prejudice that system which is designed to protect a place, property and vehicles. Consideration 3(a) I have re-examined the records that fall within the scope of your application and determined that they contain personal information of people other than yourself. I note that information can be personal information of two people, for example in circumstances where a person is giving an opinion about another person. The records contain a mixture of your personal information and the personal information of other people. I have considered the nature of the personal information in the records, whether any exemptions to the definition of personal information found in schedule 4 of the GIPA Act apply, and whether any of the personal information has already been disclosed. I find that the exemptions to the definition do not apply and there is no information before me that suggests the personal information has already been disclosed. I am satisfied that if the personal information of third parties was disclosed through this access application it would be revealed and that consideration 3(a) is a relevant consideration. Consideration 3(b) Section 18 of the PPIP Act prohibits a public-sector agency from disclosing personal information unless an exemption applies. This is an information protection principle. Having established that the personal information would be revealed if it was disclosed through this access application I have turned my mind to whether any of the exemptions in these circumstances. I find that none of the exemptions contained in subsections 18(1)(a), (b) or (c) of the PPIP Act apply and that if the personal information of third parties were disclosed it would be in breach of section 18 of the PPIP Act.
Subsection 4.4, which has the heading "Consultation" and refers to s 54 of the GIPA Act, relevantly provides: Information that is the subject of your application relates to third parties. OEH consulted with those third parties to determine whether there was an objection to the release of the information … As there was no new information identified as being relevant to your application during the course of this internal review, I did not conduct further consultation. Instead I have considered the results of the consultation conducted as part of the original decision. The results of the consultation were that one party did not object to the release of their information and one party did object to their information being released. I have taken these responses into account when making my decision.
Subsection 4.5, which has the heading "Balancing the public interest test", relevantly provides: Significant weight can be attributed to the considerations in favour of releasing the information. The information relates to an issue that you have been involved in and it is obviously of great importance to you. I also note the general public interest in favour of disclosing information. However, there are compelling public interest considerations against the disclosure of some of the information. While the information relates to a situation that you have been involved in, there is information in the records that is not directly about you. It can be characterized as being primarily about other people or forward looking in terms of about how OEH will conduct its business. OEH owes its employees a duty of care that extends to providing a safe workplace and protecting their privacy. The commissioning of the report and actions taken as a result of the report were in pursuit of discharging that duty of care. Disclosing certain information could reasonably be expected to have the effect of prejudicing OEH's ability to meet Its duty of care. That is, the release of the information could reasonably be expected to prejudice a system for projecting the life, health and safety of its employees as well as property and assets. That duty of care is exceptionally important, of such importance that it overrides the reasons for releasing information. This applies to information that could reasonably prejudice OEH's exercise of its functions in relation to the Gunnedah Research Centre specifically but also more generally looking forward. OEH must take a long-term view of this matter in terms of the potential flow on consequences of the release of Information.
Section 5, which has the heading "Access", states that Mr Davies has decided to release additional information to the applicant from that which was previously provided to him when his application was originally decided, and that the information released is set out in the accompanying Schedule of Documents.
The Schedule of Documents provides: No. Description of record that contains the information Released or withheld Relevant public interest consideration(s) against disclosure Report* Incident Investigation Report: Aggression, conflict and other safety matters at the Gunnedah Research Centre Release in part s 14 Table GIPA Act (1(d),·(f) and (h), 2(d) and (e), 3(a) and (b))

  SafeWork Australia definition of Workplace Bullying                                                           Release

2.* WHS document Release 3. Statements from OEH Staff 3a Statement from staff member Refuse in full s 14 Table GIPA Act (1(d) and (f), 3(a) and (b)) 3b Statement from staff member Refuse in full s 14 Table GIPA Act (1(d) and (f), 3(a) and (b)) 3c Statement from staff member Refuse in full s 14 Table GIPA Act (1(d) and (f), 3(a) and (b)) 4. Statement from Water NSW staff 4a Statement from staff member Refuse in full s 14 Table GIPA Act (1(d) and (f), 3(a) and (b)) 5.* Email trail about a misappropriated OEH ladder Release 6. Initial Risk Assessment Release in part s 14 Table GIPA Act (1(d),·(f) and (h), 2(d) and (e), 3(a) and (b)) 7. Water NSW protocol Release in part s 14 Table GIPA Act (1(h), 2(d) and (e))

[18]

The respondent's Work Health and Safety system

The WHS Procedure which was in force as at 1 May 2017 required incidents to be reported in the WorkSafe Online system (WSO) within 24 hours of the incident occurring. WSO would then determine the level of investigation required into the incident, being level 1, 2 or 3, and assign an investigator from within the WHS Section of the Corporate Services Cluster within the respondent. In the case of a level 2 incident, the assigned investigator would draft an incident investigation report using a standard level 2 template. Once complete, the report would be sent to a senior manager for review and endorsement. The process would then culminate by loading recommendations from the report into WSO and tracking actions arising from those recommendations.
The WHS Procedure, which has 13 sections, includes the following provisions: 1. Introduction and Scope This procedure applies to all OEH workplaces, employees, volunteers, contractors and visitors. The organisation is committed to; providing a safe and healthy working environment for its employees, contractors and other persons that may be affected by its undertaking; protecting the environment, preventing pollution and promoting environmentally sustainable practices complying with WHS legislation Despite these intentions incidents sometimes occur and need to be managed to mitigate loss and meet legal requirements. Therefore incidents involving staff, volunteers, contractor or other persons or property damage as a result of, or in connection with the organisations activities must be reported, recorded and investigated. Investigation is done to identify the cause(s) and contributing factors to enable appropriate corrective action to be determined and taken so as to eliminate, or at least minimise, the risk of a recurrence. Incidents often require ongoing management to mitigate loss and/or meet legal requirements. … 2. Legislation … 2.1 Notifiable incidents includes the death of a person; a serious injury or illness of a person; or a dangerous incident. 2.2 A serious injury or illness as defined in Sec 36 of means a person with an injury or illness requiring the person to have: (a) immediate treatment as an in-patient in a hospital, or (b) immediate treatment for: (i) the amputation of any part of his or her body, or (ii) a serious head injury, or (iii) a serious eye injury, or (iv) a serious burn, or (v) the separation of his or her skin from an underlying tissue (such as degloving or scalping), or (vi) a spinal injury, or (vii) the loss of a bodily function, or (viii) serious lacerations, or (c) medical treatment within 48 hours of exposure to a substance, and includes any other injury or illness prescribed by the regulations … 3. Objectives 3.1 All incidents must be promptly reported to the immediate supervisor and in WorkSafeOnline. This allows for contemporaneous recording of accurate incident details and facilitates a degree of internal communication. This must be as soon as possible and within 24hrs of the incident occurring … 4. Key Concepts 4.4 An incident is any event which causes an injury or disease, or has the potential to cause an injury, death or disease, such as a near miss. The term can also be applied to significant property or plant damage. In this context the incident must involve or relate to the activities and operations of the organisation, which could include workers and visitors (including the public) to our properties or work locations. … 5. Procedures 5.1 Initial response and internal notification 5.1.1 Employees, contractors and volunteers must immediately inform their supervisor of any incident they are involved in or observe where injury, illness or significant damage occurs. … 5.2 Level 1 Safety Incidents (Minor near misses, first aid & medical treatment injuries with no lost time) 5.2.1 This level of investigation reflects the actual or likely consequence of the incident. The supervisor, as soon as practicable after the incident and with the assistance of the injured worker, shall determine the causes and contributing factors of the incident and record them on the WSO Incident Investigation section. Refer to Checklist 1 and Checklist 2 for investigation prompts. Incidents in this category that hold a potential risk of high or extreme should be investigated as per level 2. 5.2.2 The workplace manager reserves the right to request a higher level of incident review such as a level two investigation. … 5.3 Level 2 Safety Incidents (Serious near misses and lost time injuries) 5.3.1 The workplace manager (Region/Area/Section) shall arrange for an investigation to be undertaken as per the elements of Level 2 Safety Incident Investigation Template (available via the WSO documents tab or the WHS intranet) to ensure a thorough analysis of the incident and that the causative and contributing factors are identified and corrected. … 5.3.4 The causes, findings and recommendations arising from the Level 2 Safety Incident Investigation shall be entered into the WSO Incident Investigation template (Att 1) for that incident and the completed Level 2 Investigation document attached to the WSO Incident page. The incident investigation report must be peer reviewed by the workplace manager (Region/Area/Section) having regard to the causes and preventative or risk reducing recommendations. … 12. Definitions … … Incident An event which causes an injury, disease or major damage, or has the potential to cause an injury or disease, such as a near miss. … … Near Miss A near miss is an incident that, had it occurred either earlier or later, would have had real potential to cause an injury or illness. … … Serious Near Miss A near miss which has a reasonable potential to cause death or serious injury as defined in the Notifiable Incidents. (Level 2 Incident) … …

[24]

The written submissions of the applicant

The applicant, after referring to ss 12, 14 and 97 of the GIPA Act and the meaning the expression "could reasonably be expected to" in the table to s 14, makes the following submissions to the Tribunal: 1. public interest considerations in favour of disclosure include that disclosure of the Report could reasonably be expected to ensure effective oversight of the expenditure of public funds by the respondent in view of the time and expenditure wasted in its creation because it was authorised by the WHS Procedure; 2. he was required to be afforded procedural fairness in relation to the investigation of the 1 May 2017 incident in accordance with the principles in The State of Victoria v The Master Builders' Association of Victoria [1995] 2 VR 121; 3. he had a legitimate expectation that his business reputation would not be tarnished by a blacklisting, and the publication of a Report that otherwise damaged his business reputation resulting in JML Environmental being black listed by the respondent as indicated by the following letters: 1. the letter dated 7 February 2019 from James Hebron, General Counsel of the Department of Planning and Environment, which relevantly states: You expressed concern that you have been advised that neither you nor your company are to be given any work or work contracts by OEH. After further investigations I understand that at the time of the dispute at Gunnedah Research Centre, Science Division determined not to engage you further while this dispute was outstanding. No direction was issued to OEH as whole. I have discussed this matter with the OEH Chief Executive and in a show of good faith he is prepared to issue you with a letter advising there is no impediment to you undertaking work on behalf of the OEH on the condition that you adhere with the OEH Code of Conduct. This would allow you to compete on merit for any future contracts for which you have the suitable skills. Contracts involving staff at the Gunnedah Research Centre would need to be assessed on a case by case basis. 1. the letter dated 19 March 2019 from Anthony Lean, Chief executive of the respondent, which relevantly states: Further to Mr Hebron's letters of 7 February and 6 March 2019, I wish to confirm that moving forward there is no impediment to you or your business tendering for or undertaking work on behalf of the Office of Environment and Heritage (OEH). It should be noted, however, that any future contracts involving staff at the Gunnedah Research Centre would need to be assessed on a case by case basis. 1. he was not afforded procedural fairness in relation to the investigation of the 1 May 2017 incident on the basis that he is not an employee of the respondent, and the respondent does not have the power to take actions that affect him for the following reasons: 1. there is evidence in his affidavit that, immediately after the 1 May Incident, the respondent attempted to influence the termination the applicant's lease with SCS; 2. the effect of the Report, especially when considering the exclusion zone at page 12, is to make further performance of the work of JML Environmental, and indeed any further work in the area of the GRC, impractical, which directly impacts on the applicant's livelihood; 3. since the publication of the Report, there has been a marked decrease in the amount of work from NSW Government agencies that has been available to JML Environmental, to the extent of approximately $50,000 per year; which have had the consequence that it undermines the public interest considerations against disclosure relied upon in the Third Decision, or alternatively the Third Decision is flawed; 1. the WHS Procedure did not apply to the 1 May 2017 incident because it does not fit the criteria of a Level 2 incident that should trigger its application. The investigation and publication of the Report was an inappropriate mechanism to deal with allegations of workplace bullying. Accordingly, the respondent cannot rely on the process of generation of the Report as a consideration against its disclosure; 2. as to the consideration in cl 1(d) of the table to s 14 of the GIPA Act: 1. with the possible exception of information provided by Person A, the respondent has failed to discharge the onus of proof that the information contained in the Report was provided in confidence. The "level 2 template for incident investigation reports" in the WHS Procedure does not contain any provisions regarding to confidentiality; 2. any information that was provided in confidence may have been disclosed by the respondent such that it is no longer confidential. This happened because a representative of the respondent spoke with NSW Police regarding the 1 May 2017 incident who turn spoke to the applicant; 3. the respondent has failed to discharge the onus of proving not just that the information was provided in confidence, but that its disclosure is reasonably likely to prejudice the supply to the respondent of confidential information that facilitates the effective exercise of its functions; 1. as to the considerations in cll 1(f), 1(h) and 2(d) of the table to s 14 of the GIPA Act: 1. the respondent was not properly exercising those functions in the preparation of and publication of the Report due to its failure to afford procedural fairness to the applicant and its failure to comply with the WHS Procedure; 2. the preparation of the Report was not a proper exercise of a system or procedure for protecting the life, health or safety of any person and not a proper audit, test, investigation or review because there is no reasonable basis in the circumstances for a determination that the applicant was a risk to the health of the respondent's employees; 1. as to the considerations in cl 3(a) and 3(b) of the table to s 14 of the GIPA Act, in the circumstances the redaction of names from the Report should be sufficient to protect the individual contributors, while still allowing the applicant to understand the allegations that have been made against him; 2. with the exception of specific personal information as the Tribunal may order, the appropriate decision of the Tribunal is to release an unredacted copy of the Report to the applicant.

[25]

The written submissions of the respondent

The respondent, after setting out relevant provisions of the GIPA Act and the applicable legal principles under the GIPA Act, makes the following submissions: 1. it no longer relies on cl 2(e) of the table to s 14 of the GIPA Act as an applicable consideration against disclosure 2. it did not owe any obligations of procedural fairness to the applicant in conducting the WHS investigation, as the investigation could not have the effect of depriving the applicant of any right, interest or legitimate expectation of a benefit in circumstances where it was not the applicant's employer (either now, or at the time the Report was written), and did not have the ability to make decisions directly about the applicant. Accordingly, this is not a factor favouring disclosure; 3. as to the consideration in cl 1(d) of the table to s 14 of the GIPA Act: 1. the evidence of Mr Davies as to his conversations with Persons A and B, and the evidence of Dr Wilson that the Report has been treated as confidential by the respondent, and that access to the Report has been limited to senior management, support a finding by the Tribunal that the witness statements appended to the Report, and the discussion of information within these statements in the body of the Report, is confidential information; 2. the evidence of Dr Wilson of her concern that the release of information would impact the ability of the respondent to manage WHS issues, and in particular would erode confidence in the ability of the WHS system to deal with issues confidentially and expeditiously, particularly with issues involving interpersonal conflict and complaints of conduct, support a finding by the Tribunal the disclosure of information in issue to the applicant could reasonably be expected to prejudice the supply of such information in future and that this, in turn, would prejudice the effective exercise by the respondent of its WHS and human resources functions; 1. as to the consideration in cl 1(f) of the table to s 14 of the GIPA Act, for the same reasons as in the case of consideration in cl 1(d) of the table to s 14 of the GIPA Act, the disclosure of information would prejudice the effective exercise of the respondent's WHS and human resources functions because it could have the effect of discouraging staff from making statements and cooperating in future WHS investigations, particularly in matters involving issues of interpersonal conflict or allegations of bullying; 2. as to the consideration in cl 2(d) of the table to s 14 of the GIPA Act, the respondent's WHS functions constitute a "system or procedure for protecting the life, health or safety of any person"; 3. as to the consideration in cl 1(h) of the table to s 14 of the GIPA Act, the disclosure of the information could reasonably be expected to prejudice the effectiveness of the respondent's WHS investigation into the applicant: 1. by revealing the results of the investigation which include protocols put in place to protect the respondent's staff from risk of harm in future incidents whose effectiveness could be undermined if they were disclosed; 2. by jeopardising the mental health and wellbeing of individuals whose identities would be apparent from the release of the Report, particularly in circumstances where they have objected to this information being disclosed; 1. as to the considerations in cl 3(a) of the table to s 14 of the GIPA Act, the Report contains personal information of individuals other than the applicant which has not been publicly disclosed by reason of its treatment as confidential, and access to it having been controlled, by the respondent; 2. as to the considerations in cl 3(b) of the table to s 14 of the GIPA Act, the Report contains personal information of individuals other than the applicant within the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) and the disclosure of the information in issue to the applicant does not fall within the scope of any of the permitted disclosures under s 18(1)(a)-(c); 3. as to the application of the public interest test: 1. the public interest considerations against disclosure outweigh the considerations favouring disclosure and there is an overriding public interest against disclosure of the redacted Report; 2. the public interest considerations favouring disclosure have been addressed, to some extent, by the release of the Report in its redacted form; 3. the considerations against disclosure applicable to the Report are compelling and should be accorded considerable weight in applying the public interest test having regard to the context and circumstances in which the information was supplied, the likely prejudice that would flow to the respondent's systems and procedures for reporting and investigating WHS incidents, as well as other workplace management functions, and the objection of third parties to the release of their personal information to the applicant, and the associated concerns of Dr Wilson for the health and well-being of the officers concerned; 1. the correct and preferable decision is for the Tribunal to refuse access to the redacted information in the Report and affirm the Third Decision.

[27]

GIPA Act

The object of the GIPA Act is to open government information to the public. This object is to be realised by agencies authorising and encouraging proactive public release of government information (s 3(1)(a)), giving members of the public an enforceable right to access to government information (s 3(1)(b)), and restricting access to government information only when there is an overriding public interest against disclosure (s 3(1)(c)).
There is a presumption in favour of disclosure of government information unless there is an overriding public interest against such disclosure: s 5. A person who makes an application to access government information has a legally enforceable right to be provided with such access unless there is an overriding public interest against disclosure: s 9.
There is a general public interest in favour of the disclosure of government information: s 12. The Note to this section contains examples of public interest considerations in favour of disclosure, including: (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.
There is an overriding public interest against disclosure if and only if there are public interest considerations against disclosure which on balance outweigh the public interest considerations in favour of disclosure: s 13. The public interest considerations against disclosure are set out exhaustively in s 14 in a Table, which relevantly includes: 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, … (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). 2 Law enforcement and security 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) endanger, or prejudice any system or procedure for protecting, the life, health or safety of any person, … 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 …
"Personal information" relevantly means information about an individual whose identity is apparent or can reasonably be ascertained from the opinion: s 4(2) and Sch 4, cl 4. "Reveal information" means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure): s 4(2) and Sch 4, cl 4.
A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the principles in s 15.
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 the information includes personal information about the person, the person may reasonably be expected to have concerns about the disclosure of the information, and 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: s 54(1) and (2)(a).
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 into account specified factors, which are defined as the personal factors of the application, and which relevantly include the applicant's identity and relationship with any other person: s 55(1)(a). The personal factors of the application can be taken into account as factors in favour of providing the applicant with access to the information: s 55(2). 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 cll 2 to 5 (but not cl 1, 6 or 7) of the table in s 14.
An agency may decide an access application for government information by deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information: s 58(d). Notice of an agency's decision to refuse to provide access to information because there is an overriding public interest against disclosure of the information must relevantly state the agency's reasons for its decision, and the findings on any material questions of fact underlying those reasons, together with a reference to the sources of information on which those findings are based: s 61(a) and (b).
An agency can delete information from a copy of a record to which access is to be provided in response to an access application (so as to provide access only to the other information that the record contains) where relevantly the agency has decided to refuse to provide access to the deleted information: s 74.
The decision of an agency in respect of an access application to refuse to provide access to information is a reviewable decision: s 80(d).
If the decision is not the subject of review by the Information Commissioner, an application for administrative review to the Tribunal can be made at any time up to 40 working days after the applicant is notified of the decision: s 101(1).

[33]

"prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions" and "prejudice the effective exercise by an agency of the agency's functions" in cll 1(d) and (f) of the table in s 14

In relation to the consideration now set out in cl 1(d) of the table in s 14 of the GIPA Act, the Appeal Panel in Macquarie University v Howell (No. 2) [2009] NSWADTAP 19 at [10] stated: [10] In our view, the Tribunal is required to engage in a relatively abstract analysis. The Tribunal needs to characterise the nature of the material sought to be protected on the present occasion; identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; and consider the extent to which guarantees of confidentiality may be necessary. It is then necessary to evaluate the effect on the agency's ability in future to obtain similar information.
The term "prejudice" is to be given its ordinary meaning, that is, "to cause detriment or disadvantage" or to "impede or derogate from": Hurst v Wagga Wagga City Council at [60].
In Robinson v Department of Health [2002] NSWADT 222 at [71], the Tribunal held that the effectiveness of an agency's investigative functions depend on the co-operation of those who have information relevant to the investigation. This in turn may depend on the information they provide being kept confidential, if that is legally possible. The Tribunal found that disclosure of information obtained confidentially could reasonably be expected to have a substantial adverse effect on the effective performance by an agency of the agency's functions.
In Alexander v University of Sydney [2008] NSWADT 214 at [33]-[35], the Tribunal considered reasons put forward by the University why it endeavours to maintain confidentiality of information obtained, in that case, in regard to allegations of employee misconduct. The Tribunal accepted evidence that if confidentiality could not be guaranteed many people within the University would be much more reluctant to come forward with information or concerns and this in turn would adversely affect the ability of the University to conduct investigations. Similar conclusions were reached by the Tribunal in Williams v Department of Industry and Investment [2012] NSWADT 192.

[40]

The considerations in cll 1(d) and (f) of the table to s 14

I am satisfied that "providing a safe and healthy working environment for its employees, contractors and other persons that may be affected by its undertaking" referred to in section 1 of the WHS Procedure form part of the respondent's functions. Therefore, cll 1d) and 1(f) of the table in s 14 are applicable to this application.
The effective performance by the respondent of "providing a safe and healthy working environment for its employees, contractors and other persons that may be affected by its undertaking" depends to a significant extent on the cooperation of those who have relevant information to come forward with information concerning complaints about the behaviour and performance of staff and other persons. In the absence of any coercive powers with respect to obtaining information from staff and other persons in relation to such matters, the respondent must rely on the voluntary cooperation of those individuals.
The Tribunal has regularly recognised that staff may be reluctant to provide information if there were not some assurance of confidentiality. In that context, the disclosure of information that was received in confidence may prejudice the agency from performing its functions efficiently and effectively.
I accept the evidence of Dr Wilson as to her concerns for the mental health and wellbeing of those individuals whose identities would be apparent from release of the Report, and that this concern has been strengthened by the objection of some of the individuals who provided statements to Mr Burton to their personal information being disclosed. I also accept her evidence as to her concerns as to the effect that the release of the information could have on the ability of the respondent to manage WHS issues, and that the applicant's application has lowered her confidence in the ability of the WHS system generally to deal confidentially and expeditiously with WHS issues in the respondent, particularly in managing workplace issues involving interpersonal conflict, and complaints of conduct. I further accept her evidence that the Report has been treated as confidential by the respondent, and that access to the Report has been limited to senior management.
I am satisfied that full disclosure of the redacted Report other than Appendix 7 could reasonably be expected to prejudice the supply to the respondent of confidential information that facilitates the effective exercise of its functions, and to prejudice the effective exercise by the respondent of its functions. I find that these considerations against full disclosure of the Report should be given strong weight. I reject the applicant's submission that information in the Report has been disclosed to other NSW Government departments and so is no longer confidential.

[43]

The considerations in cll 3(a) and (b) of the table to s 14

I have read the statements from three members of the respondent's staff and one member of the staff of Water NSW which are Appendices 3a, 3b, 3c and 4 and am satisfied that they contain personal information of those individuals. I accept the evidence of Mr Davies of the objections of Persons A and B to the provision of their personal information to the applicant.
I am satisfied that full disclosure of the redacted Report other than Appendices 6 and 7, even with redactions of names, would identity other persons at GRC. I am also satisfied that full disclosure of Appendices 6 and 7 with redactions of names would not identity other persons at GRC.
I am satisfied that full disclosure of the redacted Report other than Appendices 6 and 7, even with redactions of names, would not fall within the scope of any of the permitted disclosures under ss 18(1)(a)-(c) of the PPIP Act. The information was collected for the purpose of an internal WHS investigation. Disclosure to the applicant in response to his access application would not be directly related to this purpose: PPIP Act, s 18(1)(a). As set out in the evidence of Dr Wilson it is not usual practice of the respondent to disclose personal information collected in an internal WHS investigation to a third party, but rather to reserve access to investigation reports: PPIP Act, s 18(1)(b). There is no relevant serious and imminent threat to the life or health of any individual that would be prevented or lessened by disclosure: PPIP Act, s 18(1)(c).
I am satisfied that full disclosure of the Report could reasonably be expected to reveal an individual's personal information and contravene the information protection principle in s 18 of the PPIP Act. I find that these considerations against full disclosure of the Report should be given strong weight. I reject the applicant's submission that information in the Report has been disclosed to other NSW Government departments, and so would not reveal personal information of persons other than the applicant.

At a glance

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Judgment (47 paragraphs)

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Legislation Cited (6)

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