Luxford v Department of Education and Communities

The material before the Tribunal

1. The matter came before me for an open session in which each of the parties presented evidence and argument in support of its case. The Applicant relied on his own evidence. The Respondent relied on the evidence of Mr Wright-Smith.

The confidential session

1. A confidential session was held in the absence of the Applicant. The confidential session gave the Tribunal an opportunity to examine the documents in the presence of the Respondent. This process is provided for by section 107 of the GIPA Act.
2. During that confidential session the Respondent provided the Tribunal with an unredacted copy of the identified documents and each of the documents was considered by reference to the table to section 14 of the GIPA Act.
3. I made an order under section 64 of the Civil and Administrative Tribunal Act 2013 that no record of the confidential session is to be released to either the Applicant or to the public. In these reasons, section 64 applies to those paragraphs identified as [not for publication] and they are not to be released to either the Applicant or to the public.
4. [not for publication]
5. [not for publication]
6. I formed the view that the Respondent had taken an unnecessarily restrictive approach to the release of the information and that many withheld documents contained information that could be released without revealing information that the Respondent considered should not be released because of an overriding public interest against disclosure.
7. [not for publication]
8. [not for publication]
9. [not for publication]
10. [not for publication]
11. [not for publication]
12. [not for publication]
13. During the confidential session I made comments in relation to the types of information that the Respondent should consider releasing. I formed the view that information could be released that would allow the Applicant to gain some understanding of the processes that had taken place in the complaint investigations, notwithstanding that he would not have the details of the steps that the Respondent had taken. I considered that the Respondent should reconsider the matter taking into account issues that I raised in the confidential session. At the conclusion of the confidential session I determined to remit the matter for redetermination by the Respondent.

The Redetermination

1. Mr Wright-Smith undertook the redetermination. He determined to release further information to the Applicant. He determined to refuse access to part of the information on the basis that there is, on balance, an overriding public interest against its disclosure.
2. In his reasons for decision Mr Wright-Smith stated: The following information was considered for release. EPAC 11/546 CPM-2011-0182 • Pages 2-9, 28-30 - running sheets - name of complainant is not released. • Page 18 - running sheets - title and time only released. • Pages 19-26 - running sheets - time and title only released. Dates, times and titles or categories have been released in pages 3, 4, 6 & 8, 18-20 and 23 - 26. Information in the running sheets that identifies the complainant is not released to you because there is no evidence that you know who the complainant is in this matter. SEC 2012-0387 • Pages 3-11 - dates and times released in some pages, (see schedule) • Pages 12-15 - draft letter. Interview dates and time are released on pages 3-11. Pages 12-15 are EPAC draft working documents and as EPAC has no evidence of the final copy being finalised and signed, the documents are not released to you. SEC 2014-0213 • Page 1 - staff member's name released. SEC 2014-0399 • Pages 4-5 - draft letter Draft letter released in full. SEC 2014-2439 Pages 1 & 2 - complainant's name released. Pages 5-6 - signed letter sent to the Applicant released. Page 10 - the information redacted under s. 74 as irrelevant is released. Pages 28-29 - a copy of this letter was released in a later GIPA. Pages 45-46 - a signed letter sent to the Applicant released. Pages 50-51 - draft investigation report - not released. Pages 2, 5, 6, 10, 28 - 29, 45 - 46 are released in full. The draft document on pages 50 and 51 is not released to you as it is a working document and disclosure would reasonably be expected to reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of the Department under s. 14, cl. 1(e). SEC 2014-2441 Pages 8-9 - WorkCover complaint released. Pages 12 - the information redacted under s. 74 as irrelevant is released. Pages 14 - Facebook page released. Pages 15 - e-mail - some further information released. Page 43 - draft letter - released in full. Page 84 - draft letter - not released. Pages 90-91 - sample letter of direction - released. Pages 8, 9, 14, 43, 90 - 91 are released in full. Further information is released in pages 12 and 15. Page 84 is not released as the draft letter is a working document and disclosure would reasonably be expected to reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of the Department under s. 14, cl. 1(e). SEC 2014-2762 • Page 1 - identity of complainant released.
3. Mr Wright-Smith's reasons for decision in relation to the withheld information rely on the same Public Interest consideration against disclosure as in the initial determination. In addition, the Respondent submits that disclosure of the withheld information could reasonably be expected to prejudice the supply to the agency of confidential information that facilitates the effective exercise of the agency's functions: clause 1(d) of the Table to section 14.
4. The Applicant was not satisfied by the outcome of the redetermination and has maintained his application for external review of the Respondent's determination.

Applicable legislation

1. The objects of the GIPA Act as set out in section 3(1) are to advance the system 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 government information and providing that such access is restricted only when there is an overriding public interest against disclosure.
2. The term "government information" is given a wide meaning by section 4, being defined as "information contained in a record held by an agency". The GIPA Act's focus is on "information", rather than the narrower concept of "documents". "Agency" is also defined in section 4 and includes "(a) a Government Department". It is not disputed that the Respondent is such a department and therefore an agency to which the legislation applies.
3. The GIPA Act establishes a presumption in favour of disclosure of government information unless there is an overriding public interest against disclosure: section 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: section 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: sections 11 and 14.
4. With respect to government information not covered by overriding secrecy laws, the GIPA Act establishes a principle that there is a public interest in favour of disclosure: section 12(1). The category of public interest considerations in favour of disclosure is not limited: section 12(2). That subsection then sets out several examples of public interest considerations in favour of disclosure.
5. There can be an overriding public interest against disclosure only when the public interest test in section 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".
6. In considering whether there is an overriding public interest against disclosure, the Tribunal is to be guided by section 15, which provides 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.
7. Section 14 of the GIPA Act relevantly 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. ... 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): … (e) reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency, (f) prejudice the effective exercise by an agency of the agency's functions, (g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence, (h) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed). 3 Individual rights, judicial processes and natural justice There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects: (a) reveal an individual's personal information, (b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002, … (g) in the case of the disclosure of personal information about a child - the disclosure of information that it would not be in the best interests of the child to have disclosed.
8. Section 105(1) of the GIPA Act provides that the burden of establishing that the decision is justified lies on the Respondent.
9. The relationship between the relevant sections of the GIPA Act that address the public interest considerations was examined in the Administrative Decisions Tribunal ("ADT") Appeal Panel case of Commissioner of Police, NSW Police Force v Camilleri [2012] NSWADTAP 19: 24. Putting to one side the cases where a conclusive presumption is relied upon, the Act envisages a two-step approach to the question of whether information has been properly refused. 25. The new Act has a more structured approach to the decision-making task than was seen under the previous legislation. The agency case for refusal must rely on one or more of the section 14 Table considerations. The Tribunal's task is then to weigh that case against the factors favouring disclosure (s 13), mindful of the injunctions that appear in both ss 12 and 15. It is important, in our view, that the Tribunal proceed in the structured way reflected by these provisions. The Table considerations are concerned with systemic features of the operation of government. 26. We agree with the agency's submission that the section 14 questions needed to be examined at a broader operational level than occurred in this case. The record in issue was generated in one of the standard services of the police force. It would not be usual, as we see it, to introduce at this stage of the process considerations connected with the particulars of the instant situation. The agency acknowledged that at the next stage of the enquiry, the section 13 stage, it would be proper to have regard to specific aspects of the instant case. 27. The approach to be adopted is similar to that commended by the Appeal Panel under the previous legislation, there in connection with cl 13(b)(ii). Clause 13(b)(ii) provided that 'a document is an exempt document if it contains matter the disclosure of which could reasonably be expected to prejudice the future supply of such information to the Government or to an agency'. Clause (b)(iii) went on to provide 'and would, on balance, be contrary to the public interest'. 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].
10. I have set out above the section 14 Table considerations on which the Respondent relies. These must be weighed against the considerations in favour of release. I agree with Mr Wright-Smith's view in regard to the considerations in favour of release that I have noted above. I also consider that personal factors of the application can be taken into account under section 55 of the GIPA Act. The Applicant only seeks information that is held in relation to himself.

Section 55 considerations

1. Section 55 of the GIPA Act provides that the "personal factors of the application" may be taken into account in determining whether there is an overriding public interest against disclosure of information. The Respondent submitted that the withheld information is predominantly the personal views of third parties regarding allegations against the Applicant. It further submitted that it is apparent that relationships between the Applicant and other third parties are troubled and that the potential for the release of information to exacerbate conflict within the school community is high, particularly as no limitations may be imposed on the use or disclosure of the material once it is released, and that these factors give greater weight to the public interest considerations against disclosure.
2. The Applicant gave evidence and contends that he has been subjected to bullying, harassment, discrimination and or sex discrimination: "(a) through multiple informal and formal complaints which demonstrate a course of bullying, harassment and discrimination and/or sex discrimination; or (b) by being refused access to the complaints process; or (c) by having his complaints handballed to decision-makers who were the objects of claims of bias and discrimination".
3. He alleges that he has suffered a recognised psychiatric illness as a result of his treatment. These factors form the basis of his motivation in lodging his GIPA access application.

Could reasonably be expected

1. The requirement, common to all the public interest considerations against disclosure in the Table to section 14, is that disclosure could reasonably be expected to have the nominated effect.
2. The phrase 'could reasonably be expected to' has been the subject of judicial consideration with respect to its use in the Freedom of Information Act 1989 ("the FOI Act") and the Commonwealth Freedom of Information Act 1982 ("FOI Act (Cth)"). The words in the phrase are to be given their ordinary meaning. In Attorney General's Department v Cockcroft (1986) 10 FCR 180 at 190, Bowen CJ and Beaumont JJ interpreted the term in the following way: In our opinion, in the present context, the words "could reasonably be expected to prejudice the future supply of information" were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like...
3. The word "expected" is not to be given too wide a meaning in light of the objectives of the statute: Cockcroft per Sheppard J at 112. The occurrence of the prejudice does not have to be established on the balance of probabilities but there must be something more than a possibility, risk or chance of the event occurring: Cockcroft per Bowen CJ and Beaumont J at 106.
4. In "B" and Brisbane North Regional Health Authority, Re [1994] QICmr 1; (1994) 1 QAR 279 at [154] - [160] the Commissioner analysed the meaning of the phrase "could reasonably be expected to" by reference to relevant Federal Court decisions. The Commissioner said that: The words call for the decision-maker ... to discriminate between unreasonable expectations and reasonable expectations, between what is merely possible (e.g. merely speculative/conjectural "expectations") and expectations which are reasonably based, i.e. expectations for the occurrence of which real and substantial grounds exist.
5. The words "could reasonably be expected" refer to an expectation that is based on reason, that is to say one for which real and substantial grounds exist when looked at objectively. (Searle Australia Pty Limited v Public Interest Advocacy Centre and Another (1992) 108 ALR 163 at 176.)
6. In McKinnon v Blacktown City Council [2012] NSWADT 44 Judicial Member Molony stated: 42 … the public interest consideration against disclosure in clause 1 and 3 of the Table requires an objective assessment as to whether the claimed effects could be expected to arise. Ultimately, it is a question of fact as to whether the disclosure of the information in issue could reasonably be expected to have the prescribed effect if disclosed. That fact being established to the relevant standard of proof, on the balance of probabilities. 43 In submissions the Agency argued that the suggestion that a fact had to be established on the balance of probabilities was at odds with established authority in dealing with the same phrase in the context of the Freedom of Information Act 1989. The Agency referred to the Tribunal decisions in Leech and in Neary v State Rail Authority [1999] NSWADT 107, where the President said, at [35] - .. it is not necessary that the level of risk be such that it be assessed as more probable than not. Nor is it necessary for the administrator to apply a balance of probabilities calculus similar to that used to set the burden of proof in litigation. 44 In my view the weight of authority establishes that it is necessary for the Agency to demonstrate, with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect as explained in Cockroft and elucidated in McKinnon v Secretary, Department of Treasury .
7. In my view this is the correct basis for determining whether the disclosure of a document "could reasonably be expected" to have a particular effect.
8. With respect to each public interest consideration against disclosure upon which it relies, the Respondent is to show that there is something more than a possibility, risk or chance that disclosure of the information could have the nominated effect.
9. Schedule 4 to the GIPA Act provides these definitions: "disclose" information includes make information available and release or provide access to information. "reveal" information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure ).
10. The preliminary question therefore arises as to whether or not the information in the withheld document has already been disclosed to the Applicant. This issue was discussed in the confidential session and I expressed the view that where the Applicant was already aware of information, for example the fact that a complaint had been made and/or the identity of a complainant, then the release of the information could not 'disclose' or 'reveal' that information.
11. It remains to be determined whether or not there is an overriding public interest against disclosure of any of the withheld information.

Overview of the Respondent's Case

1. As noted above, the onus is on the Respondent to justify its decision. I have been provided an unredacted copy of the withheld documents, comprising several hundred pages, with the redacted information identified. In relation to each section of the redacted information, reference is made to public interest considerations against disclosure on which the Respondent relies. I note that I have considered that material by reference to the asserted public interest consideration against disclosure.
2. The Respondent has identified numerous passages that have been redacted from the identified documents on the basis that the document contains third party identifying personal information. As noted, this issue was discussed in the confidential session and I made some recommendations in relation to the release of some of this personal information where the information was already known to the Applicant.
3. In the redetermination process, where the Respondent could not be satisfied that the Applicant knew the identity of a complainant, it decided not to release this information on the basis of subclause 1(d), (g) and (h) of the table to section 14.
4. Ms Johnson provided written submissions in relation to each of the asserted public interest considerations against disclosure.

Overview of the Applicant's Case

1. The Applicant relies on his own evidence and also provided written submissions in support of his case.
2. The Applicant is a classroom teacher employed by the Respondent. His evidence is that during his employment with the Respondent he has also performed the roles of Acting Principal and Assistant Principal. He stated that he is not aware of any complaints having been made against him in the period 1994 to 2011. However in August 2011 he received notice of an EPAC investigation into a complaint brought by the parent of a year 6 student. He denied the allegations and was subsequently cleared of any wrongdoing. He stated that during the investigation he was made aware of the complainant's name and details of the allegations. However, while he has made that assertion he has not provided evidence to support that assertion.
3. He provided background information to explain his motivation in lodging his GIPA access application. He alleged that from early 2012 he was subject to discrimination and/or sex discrimination, bullying, harassment, isolation and personal vilification by a school Principal and other staff members. He lodged several complaints in relation to the conduct of various schools staff and other officers of the Respondent and he outlined the steps that he took in pursuing those complaints. He contends that the Respondent either failed to act on his complaints or that any action that the Respondent did take in relation to his complaints was inadequate.
4. The Applicant explained that he is requesting the information from the Respondent for the following reasons: (a) to view and correct any information that is erroneous, misleading, biased or that reports unsubstantiated hearsay so as to protect his reputation and ensure his employment and/or employment prospects are not injured or impaired; and/or (b) to determine whether the Respondent has adhered to its obligations to ensure he was not subjected to discrimination; and/or (c) to evaluate whether he have been discriminated against by the Respondent or its employees and seek administrative and/or legal remedies; and/or (d) to determine whether his employment and employment prospects have been injured or impaired by the Respondent's handling of his complaints by him and complaints made about him in order that he can seek administrative and/or legal remedies; and/or (e) to enable him to provide further information to the Respondent in respect of matters in which proper investigation processes were not undertaken so as to ensure that the Respondent maintains a balanced and just record; and/or (f) to reinforce public interest requirements pertaining to the collection of accurate information and individual access to information held by the Respondent and government bodies in general; and/or (g) to protect his personal and professional reputation from persons who have engaged in intentional or negligent actions and behaviours that have inflicted personal harm and injury on him.
5. The Applicant was not satisfied with the Respondent's determination. He stated that the comprehensibility of the documents received is compromised due to the redactions. He believes that the documents in their current form reflect a negative view of him and his employment history due to an inherently biased and prejudicial process. He also believe the records are "one-sided" and not true or accurate records of the facts pertaining to his employment, complaints about him and complaints made by him.

(1)(d) - Prejudice supply of confidential information that facilitates effective exercise of the agency's functions

Prejudice

1. Clause 1 of the table to section 14 provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to prejudice various matters.
2. "Prejudice" under the GIPA Act has been held to have the same meaning as under the FOI Act, which is its ordinary meaning, that is, " to cause detriment or disadvantage " or "to impede or derogate from": Hurst v Wagga Wagga City Council [2011] NSWADT 307 at paragraph [60].

Confidential information

1. Clause 1 of the table to section 14 also deals with issues relating to confidential information. In determining the question of whether the information in issue is confidential a number of principles apply: see Williams v Department Industry and Investment [2012] NSWADT 192: (i) The confidential quality of communications is a question of fact; (ii) To establish its confidential quality, information must have been supplied under an express or implied pledge of confidentiality; (iii) The confidential quality of the information may be inferred from the nature of the relationship between the informer and person informed; (iv) The confidential quality of the information must be determined in the light of all of the circumstances of the particular case.
2. In McKinnon v Blacktown City Council at paragraph 54 Judicial Member Molony considered the issues relating to whether information is explicitly received in confidence. 54 The Agency also relied on the decisions in Department of Education & Training v Mullet [2002] NSWADTAP 13, Alexander v University of Sydney [2008] NSWADT 214 and TW v TX [2005] NSWADT 262 to advance a proposition that "the confidentiality of information communicated by officers of agencies in the course of an internal investigation can be inferred from all of the circumstances." 55 While I accept that, in an appropriate case, confidentiality with respect on information communicated in the course of an investigation can be inferred, the factual background must justify the making of such an inference. Here it does not. While the report is labelled confidential and had been treated as confidential, the evidence indicates that this has occurred as a matter of convention, rather than on the basis of a statutory requirement, or in accordance with a policy of the Agency. Indeed a reading of the policy makes it clear it does not establish a regime of confidentiality, with the exception of circumstances to which the Protected Disclosures Act 1994 applies. That is not the case here. 56 In the open affidavit Mr Mills expressed the opinion that disclosure of the report would impede the ability of the Agency to obtain and rely on such information in the future. He explained that he considered it "reasonable to assume that other council officers will be reluctant to report misconduct or inappropriate behaviour in future, for fear of reprisal." In my view the cross-examination of Mr Mills demonstrated that he had no reasonable basis for holding this opinion, and that the assumption was not reasonably held. He had no experience of anyone withholding information that they were duty bound to disclose, whether for fear of reprisal or otherwise. 57 Additionally, Mr Mills gave evidence that all the investigations he had been associated with had been treated as and kept confidential. As a result he has no experience of investigations where confidentiality has not been maintained. A consequence is that, in the formation of his opinion, he did so from the basis of having no experience he could contrast with the confidential treatment he was used to. 58 His concern that staff will be reluctant to provide information in the future, therefore, is not based on experience or informed by fears voiced by him or other council staff. It is not based on a rational, underlying factual basis. Indeed his evidence in cross-examination points to conclusion that he has no reasonable or rational basis for the opinion he expressed. The assumption he relies on takes a very dim poor of the integrity of council staff, which is entirely at odds with his own experience. I do not accept his opinion.

The Respondent's case

1. Much of the withheld information is information supplied by third parties, predominantly staff of the Respondent, in the course of an EPAC investigation, and in the management by SECT of various complaints regarding the Applicant.
2. In regard to the Respondent's contention that this information was supplied under conditions of confidentiality, Mr Wright-Smith gave evidence that:

• • the guidelines applicable to complaints handling and management of employee conduct and performance within the Respondent make provision for maintaining a high degree of confidentiality in the handling of complaints and management of investigations by the Respondent. EPAC carries out its complaint handling and investigative functions in accordance with the terms of those policies, and draws them to the attention of complainants, persons subject to complaints, and those participating in the investigative process;
• • the third parties who provided information to the Respondent in relation to the investigation and complaints management of the alleged conduct issues in this case did so voluntarily and in confidence. They would have expected the Respondent to keep information supplied strictly confidential, except and unless required to reveal that information in disciplinary or court proceedings;
• • information held by EPAC is stored separately from other business units within the Respondent, and access is restricted to EPAC staff; and
• • as a matter of course, complainants, witnesses, persons subject to complaints and victims are advised by EPAC that records are held securely and confidentially and will only be released where compelled by law.

1. Ms Johnson submitted that disclosure of the withheld information would prejudice the future supply of information by employees in the Respondent's complaint handling and investigative processes, and would thus undermine the Respondent's ability to undertake these processes.
2. In regard to the prejudiced to the supply of information to EPAC that may follow from disclosure of the withheld information, Mr Wright Smith's evidence is that:

• confidentiality is essential to the integrity of EPAC investigations and the exercise of EPAC's functions in assisting in the management of complaints;
• the Respondent depends upon its employees and concerned members of the public to truthfully supply information and assist with its investigations;
• he has experience of situations where confidentiality has been inadvertently breached, and this led to damage to the investigative body's broader reputation, and the confidence that informants and victims hand for the agency's handling of matters;
• if EPAC were to disclose personal information about individuals without their consent, staff, students and members of the public would be reluctant to cooperate with EPAC investigations in the future; and
• if the Respondent did not handle confidential information supplied to it with sensitivity and discretion, people would be unwilling to come forward and cooperate, and sources of information would dry up.

1. In regard to the importance of the supply of this type of information to the ability of the Respondent to carry out its functions, Mr Wright-Smith gave evidence that:

• the Respondent is obliged to investigate the conduct of employees, including members of the teaching service, to ensure public confidence, and that the release of confidential material would seriously hinder the Respondent's exercise of this function; and
• if people were not willing to provide information it would severely impede the Respondent's ability to carry out a range of necessary functions, including complaint handling, employee conduct investigations and the receipt of allegations relating to the protection of children and young persons.

1. Ms Johnson submitted that the Respondent's Guidelines give assurances of confidentiality of the complaint handling process. Further, the Respondent relies on Mr Wright-Smith's evidence that in his experience assurances of confidentiality are expressly given by investigators to individual employees. Such assurances are crucial to obtaining the voluntary cooperation of witnesses in the complaint handling processes, and the disclosure of material to the Applicant would likely have a chilling effect on employees' future cooperation.

The Applicant's case

1. The Applicant disputes the Respondent's contention in regard to information concerning the Raglan complaint. He points to Mr Wright-Smith's evidence and the assertion that he has already been provided with sufficient information to identify the complainant and allegations in respect of the Raglan complaint. The Applicant no longer works at Raglan and he argues that as such, there is no live issue about cooperation between the Applicant and the Respondent's staff at Raglan. He further contends that further release of information is unlikely to prejudice the supply of confidential information that facilitates the effective exercise of the Respondent's functions.
2. As regards the Sunshine Bay complaints, the Applicant relies on comments by the Appeal Panel in Macquarie University v Howell (No 2) [2009] NSWADTAP 19 at paragraph [10] with respect to the evaluation process under Clause 1(d): [T]he 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.
3. The Applicant submits that EPAC has not carried out its investigative functions in accordance with its own policies. He further submits that third parties providing information would also have expected information they provided as part of an investigation to be released if the GIPA Act required or if they provided false information.
4. He relies on his own evidence in support of his submission that unsubstantiated complaints have meant that the complaints process has been used for an ulterior purpose and that he has been bullied and harassed and suffering discrimination.
5. Further, the Applicant submits that the Respondent has refused to accept or mishandled his complaints about the unsubstantiated complaints. He submits that in those circumstances any prejudice to the supply of confidential information must become a secondary consideration. He submits that this is particularly so when there are multiple unsubstantiated complaints and evidence of systemic discrimination.
6. The Applicant submits that in the circumstances of this matter he is the victim of bullying and harassment and has had false allegations levelled against him. The considerations therefore differ from those in Williams v Department Industry and Investment.
7. He contends that a complainant could not and should not have an expectation of confidentiality when a complaint is made for an ulterior purpose. An agency could not and should not be in a position to guarantee confidentiality. In circumstances where the material that the Respondent seeks to protect is false or highly questionable, and where it would support the Applicant's claims about the complaints and complaints process, it is in the public interest that the rights of complainants and witnesses must give way to the rights of the Applicant.
8. The Applicant relies on the view expressed by Judicial Member Isenberg in Fahey v NSW Office of Liquor, Gaming and Racing [2012] NSWADT 181, at paragraph [30] - [32]: I agree that there is a public interest in disclosing the identity of persons who make false complaints. Careful distinction should be made between allegations which, while based on genuinely-held beliefs are found to be erroneous and allegations which are malicious or which are made with disregard to basic facts. … As noted above, s 12(2) provides examples of public interest considerations. It is not exhaustive. There is, in my view, a general public interest in disclosing the identity of the complainant who make false complaints.
9. He submits that in the present circumstances, allowing access to the relevant documents would assist the Respondent to effectively exercise its functions by protecting against vexatious complaints of a systemic nature which are in breach of its legislative obligations.

Consideration

1. In Commissioner of Police v Camilleri the Appeal Panel held that the question as to whether information is "confidential information" is to "be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received". The enquiry "should focus on the point of receipt, and the administrative standards and community understandings which surrounded it".
2. I have considered the withheld information and I am satisfied that it was received in confidence and I accept that the Respondent's practice is to treat such information as confidential. I am satisfied that in this particular matter the Respondent's processes dealt with the information as confidential information.
3. I am in general agreement with the Respondent that its complaint handling and investigative processes depend on the supply of relevant information. If that supply was prejudiced it would undermine the Respondent's ability to undertake those processes. In the circumstances of this matter it is clear that the withheld information that was supplied by third parties, in either the course of an EPAC investigation or in the management of various complaints regarding the Applicant, was integral to those processes.
4. Clause 1(d) is concerned with the future 'supply of confidential information'. In Department of Education and Training v Mullett (No 2) [2002] NSWADTAP 29 at paragraph [50], the Appeal Panel observed that: "conscientious employees would ordinarily see it as appropriate and proper for them to co-operate with departmental inquiries. If information of the kind in issue were to be released, it is not likely in our view that all employees would withdraw all future co-operation with similar inquiries. However, there is a likelihood that some might be more inhibited and guarded in the extent of their communication than may have previously occurred; and some might withdraw co-operation completely out of fear (reasonable or otherwise) of adverse repercussions flowing from publicity. To that extent, a relevant prejudice to the future supply of information would arise".
5. In determining whether disclosure would prejudice the supply of information, the test is not whether this complainant would in future refuse to supply that information but whether information of the kind in question facilitates the exercise of the Respondent's functions and, whether the disclosure of such information could reasonably be expected to prejudice the supply of such information: Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at paragraph [52].
6. In my view it is clear from the nature of the withheld information, and from the circumstances in which the Respondent obtained it, that it is information that facilitates the effective exercise of the Respondent's functions. I am also satisfied on the basis of the Respondent's evidence that disclosure of information of this nature could reasonably be expected to prejudice the supply of such information to the Respondent as others might not be prepared to supply information if they are concerned about the information becoming publicly available. In my view this consideration should be given significant weight.
7. I note the Applicant's motives for making the access application. In particular the release of the withheld information would allow him to ascertain whether improper conduct has occurred and the processes that the Respondent has followed. This is significant in regard to complaints about him and the handling of those complaints. In my view this consideration should also be given significant weight. However, it is clear from examination of the totality of the information that falls within the scope of the access application that much of the information concerning the complaints has been disclosed.
8. In Office of Liquor, Gaming and Racing v Fahey [2012] NSWADTAP 55, the Appeal Panel accepted that there may be a public interest in disclosure of information relating to a false complaint. However, the Panel emphasised that "the mere fact that the complaint is not substantiated in whole or in most respects does not make it a 'false' complaint." Rather, "[t]he description 'false', when used in the complaint handling context, should be reserved, at the least, for a complaint that lacks any foundation."
9. In my view, minimal weight should be given to any public interest consideration in favour of disclosure that arises from the Applicant's characterisation of the withheld information as containing false allegations.
10. Where does the balance lie? In my view, the release of the withheld information has the potential to prejudice the supply of confidential information that facilitates effective exercise of the Respondent's functions. Given the extent of the information to which the Applicant has already been given access, and the actual content of the withheld information, this potential prejudice outweighs the potential benefit from the release of the withheld information.

(1)(e) - reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or any agency

The Respondent's case

1. The Respondent submits that this consideration applies to drafts of correspondence between the Respondent and the Applicant, to communications between staff in relation to those drafts, and to information reflecting internal discussions regarding the management of alleged conduct issues: (SEC-2012-0387 (Tab 3), pp 1 and 12-15; SEC-2014-0399 (Tab 4), pp 4-5; SEC-2014-2439 (Tab 7), pp 25-26; SEC-2014-2441 (Tab 8), pp 43, 84-91).
2. The Respondent contends that the documents contain information in the nature of deliberations, consultations and advice given with respect to the management of investigations and alleged conduct issues raised with respect to the Applicant. It submits that as a general rule, internal deliberations regarding issues of employee conduct and interpersonal relations between school staff will be particularly sensitive in nature. Mr Wright-Smith gave evidence of the need for principals and the school executive to be able to discuss such issues candidly and honestly. Similarly, such conditions would also be necessary for EPAC to be able to provide effective support to schools in the management of such issues.
3. The Respondent contends that the release of records revealing sensitive deliberations could be reasonably expected to hinder future communications, thus impacting on the ability of the Respondent to effectively address such issues. Staff may feel inhibited in providing frank and honest views regarding such issues, or may decline to participate in the deliberative process altogether. Staff may also feel reluctant to commit their views in writing, and may only feel comfortable participating in deliberations orally: Cameron v Commissioner of Police, NSW Police Force [2014] NSWCATAD 13.
4. It submitted that disclosure of drafts of correspondence between the Respondent and the Applicant, and communications between staff in relation to those drafts, would prejudice both ongoing, and future deliberations in such a way as to impede the ability of schools to manage issues relating to employee conduct, and to diminish the supporting role that EPAC plays in this regard. This would, in turn, impact on the exercise of the Respondent's functions of ensuring the safety, welfare and wellbeing of staff and students, and of managing breaches of the Respondent's Code of Conduct.

The Applicant's case

1. The Applicant repeated his allegations of bullying, harassment and discrimination by the Respondent and its employees via complaints and complaints procedures. He submits that encouraging participation and forced or voluntary cooperation in an investigation is not a relevant issue in these circumstances.
2. He submitted that the cases that the Respondent cited could only apply when there is no evidence a government agency has acted on the basis of false allegations. He contends that the Respondent has not come to the present proceedings with clean hands and that it should not be entitled to deny the Applicant full access to the documents sought. He further submits that it is no defence for the Respondent to rely upon its Code of Conduct in circumstances where it systematically breached that Code.

Consideration

1. For the public interest consideration against disclosure in clause 1(e) to apply, the Respondent must establish that the information in issue could reasonably be expected to 'reveal a deliberation' in such a way to 'prejudice a deliberative process' of the Respondent. That is, a relevant connection must be established between the deliberation as contained in the withheld information and the Respondent's 'deliberative processes': see Fire Brigade Employees' Union v Fire and Rescue NSW [2014] NSWCATAD 113 at [57] - [58].
2. The meaning of the term 'deliberative process' was considered by the Administrative Appeals Tribunal ("the AAT") in Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588 at [58] to [61], in the context in which it appeared in section 36 of the FOI Act (Cth), as it applied at that time. Although clause 1(e) of the GIPA Act and section 36 of the FOI Act (Cth) are not the same, they both deal with the disclosure of information concerning the 'deliberative process' of government or an agency. Hence, the following comments of the AAT, in Re Waterford, remain instructive: 58 As a matter of ordinary English the expression "deliberative processes" appears to us to be wide enough to include any of the processes of deliberation or consideration involved in the functions of an agency. "Deliberation" means "The action of deliberating: careful consideration with a view to decision": see The Shorter Oxford English Dictionary. The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes - the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action. … 59 It by no means follows, therefore, that every document on a departmental file will fall into this category. … Furthermore, however imprecise the dividing line may first appear to be in some cases, documents disclosing deliberative processes must, in our view, be distinguished from documents dealing with the purely procedural or administrative processes involved in the functions of an agency. A document which, for example, discloses no more than a step in the procedures by which an agency handles a request under the FOI Act is not a document to which s 36(1)(a) applies. 60 It is documents containing opinion, advice, recommendations etc relating to the internal processes of deliberation that are potentially shielded from disclosure - documents that might, perhaps, have been more aptly described in the headnote as "Internal Thinking Documents". … 61 In order to test the application of s 36(1)(a) to particular documents, it is helpful, in our view, to endeavour to identify what are the "deliberative processes" involved in the functions of the particular agency or Minister or the Government of the Commonwealth to which the requested documents are said to relate. …
3. There must be an objective assessment as to whether the claimed effects could be expected to arise. It is necessary for the Respondent to demonstrate that disclosure could reasonably be expected to have the nominated effect.
4. I accept that some of the withheld information concerns the Respondent's processes of deliberation or consideration. I also accept that some staff may feel inhibited in providing frank and honest views regarding such issues, or may decline to participate in the deliberative process altogether if sensitive deliberations are released.
5. Officers should be able freely to do in written form what they could otherwise do orally, in circumstances where any oral communication would remain confidential. Such written communications relating to decision-making and policy formulation processes ensure that a proper record is maintained of the considerations taken into account. If they were to be released for public scrutiny, officers may in the future feel reluctant to make a written record, to the detriment of these processes and the public record: McKinnon v Department of Treasury [2006] HCA 45. Callinan and Heydon JJ. Stated at paragraph [121]: 121. The second ground, which speaks of jeopardy to candour, and the desirability of written communications, obviously cannot readily be dismissed ...
6. I accepted that there is a public interest consideration against disclosure of this information, as it could be expected to prejudice the deliberative processes of the agency. However, in my view this factor warrants limited weight in the circumstances of this matter. The information in issue adds little to the information that has already been released to the Applicant and in my view the risk that the release would have the nominated effect is small.
7. I am not satisfied that the potential prejudice outweighs the potential benefit from the release of the withheld information. Nevertheless, it is necessary to consider other considerations against disclosure that the Respondent has asserted in relation to the information that has been withheld on the basis of clause 1(e).

(1)(f) - prejudice the effective exercise by an agency of the agency's functions

The Respondent's case

1. In addition to its contention regarding the prejudicial impact on its complaint handling and investigative functions, the Respondent submitted that the disclosure of disputed material in this case could reasonably be expected to:

• have a detrimental impact on the wellbeing of a student whose personal information is reflected in the disputed material;
• have a detrimental impact on interpersonal relationships of employees and the day-to-day functioning of Sunshine Bay Public School; and
• compromise the capacity of the Respondent to exercise its responsibilities with respect to the health and wellbeing of staff.

1. File CPM-2011-0182 relates to an investigation of allegations involving a year 6 student. Mr Wright-Smith's evidence is that the information redacted from this file is the personal information of the student, the student's parents, and staff who supplied information to EPAC in relation to the investigation. Mr Wright-Smith expressed concern that disclosure of this information would not be in the best interests of the child. Further, the Respondent submitted that the release of material of this nature, both in this case, and generally, would substantially prejudice the Respondent's ability to fulfil its function of ensuring the safety and wellbeing of its students.
2. Mr Wright-Smith also gave evidence that the release of information provided by staff in the course of complaints management would have a negative impact on staff relationships. The Respondent submitted that, as a general rule, information supplied by staff in such circumstances will be sensitive in nature and likely to touch on interpersonal relationships within a school community. The release of information could reasonably be expected to impact on staff relations at the School, and to undermine the ability of the school executive to manage issues arising.
3. Mr Wright-Smith stated: In a school context, the principal and the school executives need to be able to discuss candidly and honestly about how to best manage various issues relating to employee conduct that are presented to them. If the records of discussions or file notes regarding concerns about other staff members, students or parents were released, the school's ability to perform its day-to-day functions may be seriously impaired and staff relationships would also be negatively affected. Department is obliged to investigate the conduct of employees, including members of the teaching service to ensure that there is public confidence in the Department. The release of the redacted material would seriously hinder the Department's exercise of its important functions of ensuring the safety, welfare and wellbeing of staff and students and the appropriate management of breaches of the Department's Code of Conduct.
4. He further noted that if the records of such discussion or file notes regarding concerns about student(s) or parent(s) are released, the school's ability to perform its day-to-day functions may be seriously impaired.
5. Further, the Respondent submitted that prejudice would arise to the Respondent's responsibilities for managing the health and wellbeing of its staff and students. Mr Wright-Smith gave evidence of his concerns as to the distress that may arise from the mere fact of consulting with third parties regarding the potential release of the information, particularly having regard to the time that has now passed, the fact that a number of third parties have indicated that they feel intimidated by the Applicant, and the possibility that the release of information may cause or exacerbate psychological injury. Prejudice would also flow from impact of disclosures on the Respondent's ability to conduct its investigative and complaint handing and conduct management functions.

The Applicant's case

1. The Applicant points to Mr Wright-Smith's evidence that he has already been provided with sufficient information to identify the complainant and allegations in respect of the Raglan complaint. He submitted that there is no evidence that there has been "a detrimental effect on the wellbeing" of the student whose personal information is reflected in the disputed material as a result of the Applicant discovering this information during the investigation. Further, he argued that as the complaint was lodged in 2011, the complainant and any witnesses of similar age would now be well into their teenage years.
2. The Applicant also points to his own evidence that the relationships between him and many staff members have already broken down and that it is unlikely the day-to-day functioning of Sunshine Bay Public School would be negatively impacted by the release of the relevant information. He submits that in these circumstances the release of the withheld information is unlikely to prejudice the effective exercise of the Respondent's functions.

Consideration

1. Clause 1(f) requires an agency to establish that the release would prejudice the effective exercise of its functions. This provision has been considered in a number of Tribunal decisions. As with Clause 1(d) above, this provision has often been considered in relation to an agency's assertion as to the importance of obtaining confidential information in order to effectively exercise its functions. Clause 1(f) does not require that the information in issue had been provided in confidence. Nevertheless, the agency asserts that the disclosure of the information could reasonably be expected to prejudice the effective exercise of its functions. In Cousins v Ambulance Service (NSW) [2014] NSWCATAD 48 the Tribunal was not satisfied that recorded communications between the Service's employees were confidential for the purposes of Clause 1(d) but it accepted that Clause 1(f) applied as disclosure of these communications in the form sought by the applicant could reasonably be expected to prejudice the exercise of the Service's functions.
2. In Camilleri v Commissioner of Police (NSW) [2013] NSWADT 80 the Tribunal was satisfied that both Clause 1(d) and Clause 1(f) applied. Judicial Member Isenberg stated at paragraph [38}: "38. … On the basis of the Appeal Panel's decision, the test is not whether a particular person whose confidential information is being considered for disclosure could reasonably be expected to refuse to supply such information in future, but whether the agency will be able to obtain such information in future. … I find that disclosure of the information could reasonably be expected to prejudice the supply to the Police of confidential information that facilitates the effective exercise of the Police's functions and that disclosure of the information could reasonably be expected to prejudice the effective exercise by the Police of the Police's functions".
3. In AMH v Western New South Wales Local Health District [2013] NSWADT 282 the withheld information related to the investigation of a complaint of bullying and harassment. The Tribunal accepted that the disclosure of information in that case would prejudice the agency's future management of human resource issues requiring disciplinary investigations and on the day to day operations of the agency.
4. In Jenkinson v Department of Education and Communities [2013] NSWADT 280 the Tribunal accepted that disclosure of information in question could reasonably be expected to prejudice the effective exercise by the Respondent of its functions in respect of the health and wellbeing of staff.
5. In this matter, the Respondent has identified a number of functions that it contends could reasonably be expected to be prejudiced by the disclosure of the information. It is not necessary that the Respondent prove beyond doubt that the prejudice will occur. It must show that it could reasonably be expected. For the expectations to be reasonably based real grounds must be seen to exist when looked at objectively.
6. I am satisfied on the basis of Mr Wright-Smith's evidence that the asserted prejudice is a possibility. I am satisfied that it could reasonably be expected that disclosure could detrimentally impact on the wellbeing of the Raglan complainant. However, given the time that has passed since the complaint and the fact that the Applicant is now far removed from that school, I regard the prejudice to the effective exercise of the Respondent's functions as no more than a possibility. In the circumstances I am not satisfied that clause 1(f) applies to the information relating to the Raglan complaint.
7. However, in my view the likelihood of a detrimental impact on interpersonal relationships of employees and the day-to-day functioning of Sunshine Bay Public School is stronger. The Applicant has given evidence of his relationship with the school staff and other officers of the Respondent. His evidence is that the relationships between him and many staff members have already broken down. Clearly that is his understanding of the situation but this factor is to be viewed objectively. The Respondent has not merely identified the relationships as a relevant issue. It has also identified the day-to-day functioning of the School and the capacity of the Respondent to exercise its responsibilities with respect to the health and wellbeing of staff as relevant considerations.
8. In the circumstances I accept that the disclosure of the information relating to the Sunshine Bay Public School could be reasonably expected to prejudice the effective exercise of that aspect of the Respondent's functions. It could cause detriment to or disadvantage those functions. Accordingly I am satisfied that clause 1(f) applies to that information.

(1)(g) - found an action for breach of confidence or otherwise result in the disclosure of information provided in confidence

The Respondent's case

1. The Respondent submits that the information provided to EPAC and SECT in the course of their investigations and complaint handling functions was provided in confidence. In this regard the Respondent relies on Mr Wright-Smith's evidence, referred to above, as establishing that the information was supplied under conditions of confidentiality.

The Applicant's case

1. The Applicant submits that the confidential quality of information sought must be determined in light of all of the circumstances of the particular case. He repeated the submission that he made in relation to clause 1(d) and argued that a complainant could and should not have an expectation of confidentiality when a complaint is made for an ulterior purpose; that is, a purpose other than the subject matter of the complaint reveals - a false complaint. Further, an agency could not and should not be in a position to guarantee confidentiality in such circumstances.

Consideration

1. As I have indicated above, I have considered that withheld information and I am satisfied that it was received in confidence and I accept that Respondent's practice is to treat such information as confidential. I am also satisfied that in this particular matter the Respondent's processes dealt with the information as confidential information.
2. In Re B and Brisbane North Regional Health Authority [1994] QICmr 1; (1993) 1 QAR 279 it was held that the words "for an action of breach of confidence in the Queensland FOI Act should be taken to refer to a legal action brought in respect of an alleged obligation of confidence in which reliance was placed on one or more of the following causes of action: (i) a cause of action for breach of an obligation of confidence; (ii) a cause of action for breach of a contractual obligation of confidence; (iii) a cause of action for breach of a fiduciary duty of confidence and where account is taken of the recognised defences to an action for breach of confidence.
3. This case was followed in Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Director General, Premier's Department [2002] NSWADT 277 - an application under the FOI Act.
4. However, the possibility of an action for breach of confidence is restricted by section 113 of the GIPA Act which provides: 113 Protection in respect of actions for defamation or breach of confidence (1) If government information is disclosed pursuant to a decision under this Act, and the person by whom the decision is made believes in good faith, when making the decision, that this Act permits or requires the decision to be made: (a) no action for defamation or breach of confidence lies against the Crown, an agency or an officer of an agency by reason of the making of the decision or the disclosure of information, and (b) no action for defamation or breach of confidence in respect of any publication involved in, or resulting from, the disclosure of information lies against the author of a record containing the information or any other person by reason of the author or other person having supplied the record to an agency. (2) Neither the giving of access to information pursuant to a decision under this Act nor the making of such a decision constitutes, for the purposes of the law relating to defamation or breach of confidence, an authorisation or approval of the publication of a record containing the information or its contents by the person to whom the information is disclosed.
5. In the circumstances of this matter, it is for the Respondent to establish that the disclosure would found an action for breach of confidence. It does not appear that the Respondent relies on this aspect of clause 1(g). The Respondent relies on Mr Wright-Smith's evidence as establishing that the information was supplied under conditions of confidentiality. As noted, I have accepted that evidence and it follows that disclosure of any of the withheld information that was supplied under conditions of confidentiality would "otherwise result in the disclosure of information provided in confidence". This is a public interest factor against disclosure to be weighed
6. As with clause 1(d) it is my view that this consideration should also be given significant weight. Given the extent of the information to which the Applicant has already been given access, this potential prejudice outweighs the potential benefit from the release of the withheld information.

(1)(h) prejudice the effectiveness of investigation by revealing its purpose, conduct or results

The Respondent's case

1. The Respondent submitted that disclosure of the withheld information in this case would prejudice future investigations by the Respondent as employees (and other potential witnesses) will be reluctant to participate in such investigations if the confidentiality of their information cannot be assured: McInnes v Department of Education and Training [2013] NSWADT 219, at paragraphs [28] - [41].

The Applicant's case

1. The Applicant repeated the submission that he made in relation to clause 1(d) and argued that this case can be distinguished from cases such as McInnes v Department of Education and Training because of its unique facts and his evidence of systemic bullying, harassment and discrimination.

Consideration

1. This public interest consideration requires the decision maker to take account of the impact of disclosure on the agency's functioning generally, rather than in relation to the particular issue being considered by the Tribunal: Commissioner of Police v Camilleri at [29].
2. In McInnes v Department of Education and Training Judicial Member Isenberg accepted the Respondent's evidence and submissions that: ● because of the nature of EPAC's investigations it often reveals highly sensitive personal information which is inherently of a confidential nature. ● Although confidentiality cannot be guaranteed, the Respondent is obliged to use its best endeavours to maintain confidentiality over such information. ● the Respondent's Code of Conduct and Guidelines requires that EPAC carry out investigations in accordance the Respondent's complaints handling policy ● the Guidelines state, in part, "Investigations should be conducted in a confidential manner". 'Confidentiality' is defined in the policy as, "information provided by a person on a confidential basis which is not to be disclosed e.g. the identity of the provider and/or the details of the information are not to be disclosed except as agreed to by the provider". ● an undertaking of confidentiality can encourage people to provide intimate details and sensitive information. ● staff members and other people providing information in response to an investigation understand that information provided to EPAC or to senior management will be kept confidential, where possible. ● there is a necessary and implied confidentiality associated with many of EPAC records. ● if information of this kind were to be made publicly available, people would be reluctant to come forward in the future to provide facts, opinions and other information about the investigation. ● had the ex-teachers and others anticipated the information they provided in circumstances of confidentiality would be available for release to the public, they may well have declined to provide information. ● the Respondent has no power to compel non-staff - including former employees - to participate in investigations.
3. Judicial Member Isenberg accepted that to encourage people to participate, it is important that the Respondent can offer people no longer connected to it an undertaking of confidentiality to the maximum extent allowable by law.
4. In the present matter, Mr Wright-Smith's evidence is consistent with that considered in McInnes v Department of Education and Training. The Applicant did not challenge that evidence but relies on the facts of this case to distinguish the decision in McInnes v Department of Education and Training. I do not agree with that argument. I am satisfied that the disclosure of the withheld information could 'prejudice the effectiveness of investigation by revealing its purpose, conduct or results'. I agree that confidentiality can be a significant factor in encouraging people to provide intimate details and sensitive information. Without it, people may be reluctant to come forward in the future to provide facts, opinions and other information about an investigation. If that were the case, it is reasonable to expect that the effectiveness of investigations would be prejudiced.
5. It is my view that this consideration should also be given significant weight. I note that this consideration also applies to the material that I have referred to in relation to the clause 1(e) consideration. Given the extent of the information to which the Applicant has already been given access, this potential prejudice outweighs the potential benefit from the release of the withheld information.

(3)(a) and (b) - reveal a person's personal information and contravene an information protection principle

1. clause 4(1) of Schedule 4 to the GIPA Act provides: 4 Personal information (1) In this Act, "personal information" means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion. ...
2. Section 4 of the PPIP Act defines 'personal information' differently to that in the GIPA Act. It provides: 4 Definition of "personal information" (1) In this Act, "personal information" means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion. (2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics. (3) Personal information does not include any of the following: (a) information about an individual who has been dead for more than 30 years, (b) information about an individual that is contained in a publicly available publication, (c) information about a witness who is included in a witness protection program under the Witness Protection Act 1995 or who is subject to other witness protection arrangements made under an Act, (d) information about an individual arising out of a warrant issued under the Telecommunications (Interception) Act 1979 of the Commonwealth, (e) information about an individual that is contained in a public interest disclosure within the meaning of the Public Interest Disclosures Act 1994 , or that has been collected in the course of an investigation arising out of a public interest disclosure, (f) information about an individual arising out of, or in connection with, an authorised operation within the meaning of the Law Enforcement (Controlled Operations) Act 1997 , (g) information about an individual arising out of a Royal Commission or Special Commission of Inquiry, (h) information about an individual arising out of a complaint made under Part 8A of the Police Act 1990, (i) information about an individual that is contained in Cabinet information or Executive Council information under the Government Information (Public Access) Act 2009 , (j) information or an opinion about an individual's suitability for appointment or employment as a public sector official, (ja) information about an individual that is obtained about an individual under Chapter 8 (Adoption information) of the Adoption Act 2000 , (k) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subsection. (4) For the purposes of this Act, personal information is "held" by a public sector agency if: (a) the agency is in possession or control of the information, or (b) the information is in the possession or control of a person employed or engaged by the agency in the course of such employment or engagement, or (c) the information is contained in a State record in respect of which the agency is responsible under the State Records Act 1998 . (5) For the purposes of this Act, personal information is not "collected" by a public sector agency if the receipt of the information by the agency is unsolicited.
3. Section 18 of the PPIP Act provides: 18 Limits on disclosure of personal information (1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless: (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, 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. (2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.
4. Section 25 of the PPIP Act provides: 25 Exemptions where non-compliance is lawfully authorised or required A public sector agency is not required to comply with section 9, 10, 13, 14, 15, 17, 18 or 19 if: (a) the agency is lawfully authorised or required not to comply with the principle concerned, or (b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998 ).
5. Section 22 of the HRIP Act provides: 22 Government Information (Public Access) Act 2009 not affected (1) Nothing in this Act affects the operation of the Government Information (Public Access) Act 2009 . (2) In particular, this Act does not operate to lessen any obligations under the Government Information (Public Access) Act 2009 in respect of a public sector agency. (3) Without limiting the generality of subsection (1), the provisions of the Government Information (Public Access) Act 2009 and the Privacy and Personal Information Protection Act 1998 that impose conditions or limitations (however expressed) with respect to any matter referred to in HPP 6 (Information about health information held by organisations), HPP 7 (Access to health information) or HPP 8 (Amendment of health information) are not affected by this Act, and those provisions continue to apply in relation to any such matter as if those provisions were part of this Act.

The Respondent's case

1. The Respondent submitted that the withheld information in this case is predominantly in the nature of personal information. Furthermore, the Respondent contends that disclosure would contravene the information protection principle in section 18 of the PPIP Act as it would disclose the information without consent for a purpose other than that for which the information was collected.
2. Mr Wright-Smith gave evidence that the withheld information includes the names, dates of birth, home addresses, email addresses, phone numbers and signatures of third parties, including staff and students. The Respondent submitted that this is all "personal information" as it is "information ... about an individual ... whose identity is apparent or can reasonably be ascertained".
3. The withheld information also contains the personal opinions of third parties, provided in the course of the investigation and complaints management processes. The Respondent submitted that while such information may be characterised as the Applicant's personal information, insofar as it is "information or an opinion" about him, it is also the personal information of each respective third party, as it is an expression of his or her opinions and views: Singh v Legal Aid Commission (No. 2) [2015] NSWCATAD 5.
4. The Respondent further submitted that none of the exceptions provided in section 18 of the PPIP Act would apply to permit disclosure in this case:

• release of information under the GIPA Act is not a purpose directly related to the purpose for which the information was collected (section 18(1)(a));
• the individuals concerned would not have been aware that information of this kind would usually be disclosed to the Applicant, having regard to the Respondent's policies governing investigations and complaints management which emphasise the confidentiality of the process, and assurances given to third parties participating in the investigation and complaints management processes (section 18(1)(b)); and
• there is no suggestion that disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of anyone (section 18(1)(c)).

1. The Respondent relies on Mr Wright-Smith's evidence in support of its submission that it was not reasonable or practicable to consult with each of the third parties whose personal information is in issue for the purposes of section 54 of the GIPA Act. There are approximately 20 persons who would need to be consulted regarding the potential release of their information. Furthermore, Mr Wright-Smith had concerns that the consultation process could lead to some third parties becoming anxious and distressed.
2. The Respondent submits that, even in the absence of consultation, having regard to the nature of the information in issue, and the circumstances in which it was supplied to the Respondent, the Tribunal can be satisfied that the third parties could reasonably be expected to object to the disclosure of their personal information to the Applicant.
3. For these reasons, the Respondent submitted that the public interest against disclosure of the redacted personal information is compelling.
4. As noted, the Respondent identified a number of public interest considerations in favour of disclosure. The Respondent acknowledges that much of the information in issue is the personal information of the Applicant, and that this is typically a compelling public interest consideration in favour of disclosure. However, it contends that the public interest has already been largely met by the release of material to the Applicant. It is submitted that the Applicant has been provided with ample material to enable him to understand the investigative and complaints management processes in which EPAC has been involved, and the manner in which the Respondent has reached its decisions in response to the allegations and complaints that have been made.
5. The Respondent acknowledges the Applicant's claims that the withheld information contains "false, persecutory and malicious accusations". However, it does not accept this characterisation of the information, and submits that there is no evidence that would allow the Tribunal to conclude that it is correct.
6. The Respondent also denies the Applicant's claims that the Respondent breached its policies in relation to complaint handling. It submits that it is not enough for the Applicant to simply say that the Respondent breached policies and procedures and refer to these policies by title. It further submits that the Applicant has not identified with any specificity the policies and procedures which he says the Respondent has breached, or any evidence that these breaches have occurred.
7. The Respondent acknowledges the Applicant's claims that he needs to be provided with complete copies of the relevant documents so that he may be afforded procedural fairness and natural justice. However, it submitted that the requirements of procedural fairness have already been met in this case. It argues that its policies for investigations and complaints management expressly accommodate the requirements of procedural fairness, insofar as they ensure that the person who is the subject of a complaint is advised of the nature of allegations made, has an opportunity to be heard and respond to these allegations, and is fully apprised of the Respondent's findings with respect to the allegations, and any recommendations taken. The Respondent submitted that there is no suggestion that it has not complied with these measures in this case. Furthermore, it submits that the Applicant has been provided with a substantial body of material, both as part of the complaints management process, and in response to his GIPA application. It says that that material demonstrates who made particular allegations, and how the Respondent relied on the material collected to reach its determination.
8. Accordingly, for these reasons, the Respondent submitted that the identified factors in favour of release should be given limited weight when balancing the public interest for the purposes of section 13.

The Applicant's case

1. The Applicant presses for access to all names and email addresses and all opinions expressed by third parties that is contained within the withheld documents. He submits that opinions about him are his personal information. He further submits that section 18 of the PPIP Act permits disclosure to "the individual to whom the information relates" and therefore he is entitled to the information.

Consideration

1. In McKinnon v Blacktown City Council at paragraph [73], the Tribunal accepted that "information and opinion about the conduct of employees or contractors of the Agency in the course of undertaking their duties, whether authorised or not, is personal information within the meaning of the GIPA Act".
2. I followed that approach in Singh v Legal Aid Commission (No 2) and at paragraph [49] I found that information about work performance, complaints about other staff members, and misconduct allegations concern the personal information of the public servant making the complaint, and the person who is the subject of the complaint.
3. In the present matter, opinions expressed by third parties about the Applicant are his personal information. They are also the personal information of the person who expressed the opinion.
4. Clauses (3)(a) and (b) have been considered in a number of decisions of this Tribunal and the ADT. Those decisions show that the nature of the personal information that is under consideration is relevant to the weight placed on these factors in the balancing process. For example, the Tribunal has placed considerable weight on the fact that the personal information in question related to the individuals' private and family affairs and not directly related to the matters in issue: McKinnon v Blacktown City Council at paragraph [95]. In Cheney v Mid North Coast Local Health District [2014] NSWCATAD 220, the Tribunal attached significant weight to the fact that the majority of information was health information, that it was information concerning a child, and that it related to extremely sensitive and serious matters. In Leda Developments Pty Limited v Tweed Shire Council [2013] NSWADT 121, the Tribunal gave less weight to this consideration as the communications in issue were of a "professional nature".
5. Sections 18 and 19 of the PPIP Act deal with disclosure of information. Section 18 provides that personal information is not to be disclosed unless the disclosure is directly related to the purpose for which the information was collected, or the individual concerned is reasonably likely to have been aware that information of that kind is usually disclosed to that other person. Section 19 imposes prohibitions on the disclosure of personal information which relates to "an individual's ethnic or racial origin, political opinions, religious or philosophical beliefs, trade union membership or sexual activities". The HRIP Act contains similar provisions.
6. Disclosure under the GIPA Act will not be a breach of those provisions covered by section 25 of the PPIP Act and section 22 of the HRIP Act. In my view clause 3(b) has limited application in this matter.
7. As noted, some withheld information is the personal information of both the Applicant and of others. Given the context in which that information is contained, I am satisfied that disclosure of that information could reasonably be expected to reveal the personal information of the other persons.
8. In my view, the circumstances of this matter are such that considerable weight should be placed on the fact that the personal information such as the identity and contact details of the complainants related to the individuals' private and family affairs. I note that this view also relates to individuals concerned with the Raglan complaints.
9. I also note that some of the withheld information concerns children. Clause (3)(g) provides that there is a public interest consideration against disclosure of information if disclosure of the personal information about a child would not be in the best interests of the child. In Mansfield v Department of Family and Community Services (NSW) [2014] NSWCATAD 43 the Tribunal attached "significant weight to privacy issues in respect of the children as to aspects of their conduct at school and observations about their parents' relationship breakdown". The Respondent has not presented evidence in regard to Clause (3)(g) other than Mr Wright-Smith's expressed concern that disclosure of this information would not be in the best interests of the child.
10. To the extent that information is personal information of both the Applicant and third parties, the situation is complex. However, as I have noted above, it is my view that minimal weight should be given to any public interest consideration in favour of disclosure that arises from the Applicant's characterisation of the information as containing false allegations. I accept that the disclosure of the opinions would allow the Applicant to form his own view in regard to that issue and this is a consideration in favour of release. In weighing these considerations I have taken into account the extent of the information to which the Applicant has already been given access and the content of the withheld information. In the circumstances it is my view that greater weight should be given to clause 3(a) as a consideration against disclosure than to the fact that the Applicant is requesting access to his own personal information that has been withheld.

Weighing the public interest

1. Section 105 of the GIPA Act places the burden of establishing that the decision is justified on the Respondent. As I have noted above, the Respondent has provided a copy of the unredacted documents with an indication of the basis on which parts of those documents have been withheld. This material was considered in a confidential session in which the Respondent was able to explain its reasoning in regard to each item of withheld information and it was able to provide clarification in regard to issues that I raised. In the confidential session I also indicated to the Respondent that I agreed with some aspects of their determination and did not agree with other aspects. I remitted the matter for reconsideration and made some recommendations in regard to the reconsideration. As a result of that reconsideration the Respondent released further information to the Applicant. I note that it appears that the Respondent has largely followed my recommendations.
2. The Applicant was not satisfied with the outcome of the reconsideration and this has given the parties the opportunity to present further arguments and for the Tribunal to take the totality of the material into account.
3. I have considered the withheld information and the arguments relating to that information and my findings are set out above. I have given an indication of my view in relation to those considerations against disclosure that the Respondent has identified. For the most part I have agreed with the Respondent in regard to the weigh to be given.
4. The GIPA Act requires that the public interest considerations against disclosure be weighed against the public interest considerations in favour of disclosure. 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 set out in section 15.
5. In my view, the Respondent has satisfied the burden placed upon it by section 105. In regard to the withheld information I am satisfied that the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure. Accordingly, it is my view that the Respondent's decision to refuse access to that information is the correct and preferable decision. The decision should therefore be affirmed.

Orders 1. The decision under review is affirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 17 June 2016