Moore v Southern NSW Local Health District

Materials and evidence

1. Each of the parties made written and oral submissions in relation to the application.
2. The respondent relied on: 1. A statement of Ms Karen Lee-Archer (the respondent's "District Director, People and Culture") dated 18 December 2023; 2. An open bundle of documents containing redacted copies of the responsive documents as well as various other documents including copies of the access applications and the decision; and 3. Two bundles of documents containing the withheld information. These bundles were provided to the Tribunal confidence.
3. Mr Moore cross-examined Ms Lee-Archer.
4. Mr Moore relied on a bundle of 14 documents, including copies of correspondence between Mr Moore and the respondent and between Mr Moore and HWL Ebsworth Lawyers. Mr Moore did not seek to rely on any formal witness statement or affidavit.

Jurisdiction

1. Pursuant to s 55 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act), the Tribunal only has jurisdiction to review "an administratively reviewable decision". An administratively reviewable decision is defined in s 7 of the ADR Act to be "a decision of an administrator over which the Tribunal has administrative review jurisdiction". Section 9 of the ADR Act provides that the Tribunal has administrative review jurisdiction over a decision of an administrator "if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision". Section 100 of the GIPA Act provides that applications may be made to the Tribunal for administrative review of "reviewable decisions" made by "an agency".
2. A decision to refuse to provide access to information in response to an access application is a reviewable decision: GIPA Act s 80(d).
3. There is no dispute that the respondent is an agency for the purposes of the GIPA Act.
4. I am satisfied that the Tribunal has jurisdiction to hear and determine this application.

Administrative review

1. In determining an application for review of an administratively reviewable decision, the Tribunal is to decide what is the correct and preferable decision having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law: ADR Act s 63(1). For this purpose the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision: ADR Act s 63(2).
2. The Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal: ADR Act s 63(3).

The GIPA legislative scheme

1. The GIPA Act provides for the proactive release of government information as well as for the release of information in response to both formal and informal requests.
2. The objects of the GIPA Act as set out in s 3(1) are to maintain and advance a system of responsible and representative democratic government by authorising 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.

GIPA Act

1. The GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 5.
2. Section 12 of the GIPA Act states that there is a general public interest in favour of the disclosure of government information. The Note to s 12(2) provides: The following are examples of public interest considerations in favour of disclosure of information - (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.
3. Nothing in the GIPA Act limits any other public interest considerations in favour of disclosure which may be taken into account: s 12(2).
4. However, there is an overriding public interest against disclosure of government information if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure: s 13.
5. In addition, it is conclusively presumed that there is an overriding public interest against disclosure of the government information described in Schedule 1 to the GIPA Act: s 14(1).
6. The respondent has identified cl 5 of Schedule 1 as being applicable in this instance. Clause 5(1) provides that it is to be conclusively presumed that there is an overriding public interest against disclosure that is subject to legal professional privilege (unless the person in whose favour the privilege exists has waived the privilege).
7. The public interest considerations listed in the Table to section 14 (the Table) are the only other considerations that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information: s 14(2).
8. The burden of establishing that the decision is justified lies on the respondent: s 105.
9. In this instance the respondent has identified clauses 1(d), 1(e), 1(f), 1(g), 3(a) and 3(b) of the Table as relevant considerations.
10. The Table relevantly provides: 1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally) - … (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, (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, … 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, …
11. Whether disclosure of information 'could reasonably be expected' to have the relevant effect is an objective one; that is to be approached from the view point of a reasonable decision maker and based on real and substantial grounds and not something that is purely speculative, fanciful, imaginary or contrived: Neary v State Rail Authority [1999] NSWADT 107, at [35]; Searle Australia Pty Ltd v PIAC [1992] FCA 241, at [43]; Leech v Sydney Water Corporation [2010] NSWADT 298 at [25].
12. The Tribunal is to determine where the balance lies between the public interest considerations for and against disclosure. The balancing exercise "is a question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation": Battin v University of New England [2013] NSWADT 73 at [74]; Hurst v Wagga Wagga City Council [2011] NSWCATAD 307 at [94].
13. In applying the public interest test it is necessary for the Tribunal (as it was for the respondent) to adopt a staged approach to the issue as to whether there is an overriding public interest against the disclosure of government information: see Commissioner of Police, New South Wales Police Force v Camilleri (GD) [2012] NSWADTAP 19 (Camilleri), at [23] to [30]. This involves identifying the public interest considerations in favour of disclosure, identifying the public interest considerations against disclosure, and then determining where the balance lies between these competing public interests.
14. In considering whether there is an overriding public interest against disclosure, the Tribunal is to be guided by s 15 which provides: 15 Principles that apply to public interest determination A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles - (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
15. Section 55(1) provides that in determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account: 1. the applicant's identity and relationship with any other person, 2. the applicant's motives for making the access application, 3. any other factors particular to the applicant.

Conclusive presumption- HWL Ebsworth Report

1. The respondent submits that there is a conclusive presumption of an overriding public interest against disclosure of document 12 (the HWL Ebsworth Report) as it is subject to a claim of legal professional privilege. Specifically, the respondent submits that the report is a confidential communication between a lawyer and client for the dominant purpose of the provision of legal advice.
2. Sch 1 cl 5 provides: 5 Legal professional privilege (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege. (2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause. (3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5.
3. The term "client legal privilege" is found in the Evidence Act 1995 (NSW) (the Evidence Act) and is used interchangeably with the term "legal professional privilege". The Tribunal has tended to apply the statutory formulation of privilege when considering the application of the conclusive presumption. However, as the Tribunal observed in Jackson v University of New South Wales [2019] NSWCATAD 224, the Evidence Act is not a code, and common law principles of privilege remain relevant, including in construing the meaning and operation of words and terms not defined in the Evidence Act.
4. The Evidence Act recognises two classes of legal professional privilege - "advice privilege" and "litigation privilege". In this instance "advice privilege" is of particular relevance. In this regard s 118 of the Evidence Act provides: Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of - (a) a confidential communication made between the client and a lawyer, or (b) a confidential communication made between 2 or more lawyers acting for the client, or (c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person, for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
5. Section 117 of the Evidence Act contains definitions of 'confidential communication', 'confidential document', 'client' and 'lawyer' and relevantly provides as follows: 117 Definitions (1) In this Division: client includes the following: (a) a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service), (b) an employee or agent of a client, (c) an employer of a lawyer if the employer is: (i) the Commonwealth or a State or Territory, or (ii) a body established by a law of the Commonwealth or a State or Territory, (d) … confidential communication means a communication made in such circumstances that, when it was made: (a) the person who made it, or (b) the person to whom it was made, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. confidential document means a document prepared in such circumstances that, when it was prepared: (a) the person who prepared it, or (b) the person for whom it was prepared, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. lawyer means an Australian lawyer, a foreign lawyer, or an employee or agent of either of them. …
6. The word 'dominant purpose' is not defined in the Evidence Act. However, it has been held to mean the 'ruling, prevailing, or most influential purpose' that predominates over other purposes and not the 'primary purpose' or 'substantial purpose' of the client or the lawyer: Archer Capital 4A Pty Ltd (atf Archer Capital Trust 4A) v Sage Group pic (No 2) [2013] FCA 1098 at [11].
7. The important question to be asked is "what was the intended use (or uses) of the document which accounted for it being brought into existence": Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 at [366]. This is to be determined as a question of fact: Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at [14].
8. In this case, having reviewed the HWL Ebsworth Report and considered the evidence of Ms Lee-Archer (which was unchallenged on this issue), I am satisfied that it satisfies the elements of a claim of privilege. In this regard: 1. It is apparent from the document itself that it was prepared by a solicitor who was engaged by the respondent to provide legal services to the respondent. Specifically, the solicitor was tasked to isolate and refine the nature of Mr Moore's second grievance, and to provide advice about how to address Mr Moore's key concerns. This is confirmed by Ms Lee-Archer's evidence. 2. The report is a confidential document. This is so because of the circumstances in which the report was prepared and the sensitive nature of its contents. It contains confidential legal advice. Moreover, it is clearly marked "private and confidential" and contains warnings that it is "intended only for the addressee named" and that "any unauthorised use, distribution or reproduction of this document is expressly forbidden". In addition, page 18 of the document states: "As this document has been prepared for you under the protection of legal professional privilege, we caution the [respondent] to limit its distribution and advise that it is only read and relied on by the necessary members of your team". 3. The claim of confidentiality is also supported by Ms Lee-Archer's affidavit which attests that: reports such as this are treated by the respondent as strictly confidential: that, as far as Ms Lee-Archer is aware, the confidentiality requirements in the policies of the respondent and NSW Health were observed throughout the investigation undertaken by HWL Ebsworth Lawyers; and that to her knowledge the report has not been disclosed except as required to relevant staff. 4. It is apparent from the content of the report (and reinforced by Ms Lee-Archer's evidence) that the primary reason for the creation of the report was the provision of legal advice to the respondent about Mr Moore's second grievance. I am therefore persuaded that the report satisfies the "dominant purpose" requirement.
9. I note that the respondent considered whether privilege should be waived and decided that it should not. That is not a matter that is reviewable by the Tribunal. Further, whilst the applicant has been provided with a high level overview of certain of the conclusions reached in the HWL Ebsworth Report, I am not satisfied that such disclosure is sufficient to give rise to a waiver of privilege.
10. For all of these reasons I am satisfied that the HWL Ebsworth Report is subject to a conclusive presumption of an overriding public interest against disclosure and therefore the decision to refuse access to it was the correct and preferable decision.
11. I will turn now to address the parties' submissions in respect of the balance of the withheld information.

Public interest considerations in favour of disclosure

1. In addition to the general presumption in favour of disclosure of government information set out in s 12 of the GIPA Act, the respondent identifies the following as considerations in favour of disclosure of the balance of the withheld information: 1. That disclosure could reasonably be expected to inform the public about the operations of the respondent and, in particular, its policies and practices for dealing with staff grievances; and 2. That some of the information is personal information relating to the applicant.
2. The respondent also acknowledges that there are personal factors of the application favouring disclosure of the withheld information. Namely that Mr Moore has provided information to the respondent in support of his grievances, has a personal interest in the outcome of the respondent's investigations, and seeks a greater understanding of the processes by which his grievances have been handled by the respondent.
3. Mr Moore's submissions do not clearly articulate what he says are the public interest considerations in favour of disclosure for the purposes of s 12. In this regard although the documents and submissions relied on by Mr Moore are lengthy, many of those materials relate to Mr Moore's underlying concerns about the respondent's processes and its handling of his grievances. It is not the function of the Tribunal in these proceedings to determine the substantive merits of Mr Moore's complaints against the respondent, or for these proceedings to be used as a vehicle for the collateral review of the merits or validity of the action taken by the respondent in relation his grievances: Danis v Commissioner of Police, NSW Police Force [2020] NSWCATAD 138 at [117].
4. To the extent that Mr Moore's submissions address issues which are not relevant to the administrative review of the Decision, I have not considered them or repeated them in this decision. However, I accept Mr Moore has done the best he can as an unrepresented litigant in difficult circumstances. I have, after carefully considering Mr Moore's written and oral submissions, attempted where possible to distil relevant contentions.
5. I understand Mr Moore to be saying that in addition to the public interest considerations in favour of disclosure identified by the respondent (with which he agrees), there are further public interest considerations in favour of disclosure. These are that disclosure of the information could reasonably be expected to reveal or substantiate that the agency has engaged in misconduct or negligent, improper or unlawful conduct and that disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.
6. I accept that disclosure of the withheld information could reasonably be expected to inform the public about the operations of the respondent and, in particular, its policies and practices for dealing with staff grievances, and that the withheld information includes personal information relating to the applicant.
7. I also accept that there are personal factors of Mr Moore which favour disclosure of the withheld information. Mr Moore is the subject of much of the withheld information, which relates to the grievances he lodged against the respondent. The withheld information if revealed, would provide Mr Moore with details about the respondent's response to his grievances, including its processes for investigating and responding to them. Mr Moore undoubtedly has a personal interest in this information.
8. With regard to the assertion that disclosure of the information could reasonably be expected to reveal or substantiate that an agency or a member of an agency has engaged in misconduct or negligent, improper or unlawful conduct, the applicant makes a number of allegations about the respondent's conduct including that the respondent has engaged in a "high level cover up" of systemic staff and patient safety issues within the hospital.
9. As mentioned above, it is not the role of the Tribunal in these proceedings to make findings about these allegations. The Tribunal is not conducting a collateral inquiry into the conduct of the respondent. Nonetheless, it would be a consideration in favour of disclosure if the withheld information could reasonably be expected to reveal or substantiate that the respondent has engaged in misconduct or negligent, improper or unlawful conduct in the manner alleged by the applicant.
10. The relevant question in this regard is whether the withheld information could reasonably be expected to reveal or substantiate the alleged behaviour (not whether other information in the applicant's possession, or other experiences of Mr Moore in dealing with the respondent, might be indicative of that). Having perused the withheld information I am not satisfied that anything therein could reasonably be expected to reveal such wrongdoing.
11. Similarly, with regard to expenditure of public funds, Mr Moore insinuated that the respondent has inappropriately incurred excessive legal fees in relation to his grievances. However, there is nothing in the withheld information which reveals any information at all with regard to the respondent's expenditure on legal fees or with regard to its use of public funds more generally.
12. Therefore, I am not satisfied that the public interest considerations relating to misconduct of the agency or effective oversight of the expenditure of public funds have been established in respect of the withheld information.

Public interest considerations against disclosure

1. As mentioned earlier in these reasons, the respondent relies on the public interest considerations in cll 1(d), 1(e), 1(f), 1(g), 3(a) and 3(b) of the Table.
2. In Camilleri at [26], the Appeal Panel held that examination of whether there is a public interest consideration against disclosure needs to be done at a broader operational level of the relevant agency, rather that introducing particulars of the 'instant situation' that is before the Tribunal, which should nevertheless be taken into account in the next stage of the enquiry in determining where the balance lays between the competing public interest considerations.

Clause 1(d) prejudice the supply to the agency of confidential information that facilitates the effective exercise of the agency's functions;

1. It is a public interest consideration against disclosure where disclosure of information could reasonably be expected to prejudice the supply of confidential information necessary for the effective exercise of an agency's functions.
2. The respondent submits that this public interest consideration applies in respect of documents 3, 6 and 11, each of which the respondent asserts contain information supplied confidentially to the respondent in the course of responding to and managing Mr Moore's grievances.
3. The relevant elements of cl 1(d) are that: 1. The information was obtained in confidence; 2. Disclosure of the information could reasonably be expected to prejudice the supply of such information to the agency in the future; and 3. The information facilitates the effective exercise of the agency's functions.

Confidentiality

1. For information to come within clause 1(d), it must have been obtained in confidence. In Camilleri the Appeal Panel stated at [33] 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 inquiry "should focus on the point of receipt, and the administrative standards and community understandings which surround it".
2. Ms Lee-Archer's evidence addresses these issues. She gives evidence that the receipt and management of grievances and concerns about staff members are dealt with in accordance with the relevant policies and directives of NSW Health and the respondent. These policies emphasis the confidential nature of the grievance management process.
3. Requirements of these policies and directives include: 1. Persons being interviewed as part of an investigation are required to be advised that the reason for the interview and its content must remain confidential. 2. All persons involved in the complaints management process are required to be advised of the outcome "in so far as it relates to them" but "having regard to the confidentiality of other persons involved in the matter". 3. At the conclusion of the process all records of all stages of the process are required to be "locked down" on a dedicated and confidential file, separate to the staff member's personnel file. The respondent has a separate file management system which has restricted access for this purpose.
4. Ms Lee-Archer also provides testimony that it is her experience and her expectation that confidentiality will be maintained at all stages of a grievance management process. This is demonstrated in practice by: 1. Limiting the distribution of material and information relating to those who have a genuine "need to know", and limiting the amount of information provided to that which is necessary; 2. Asking that parties not discuss the process among themselves, nor share or distribute materials; and 3. Materials held by persons involved in the grievance management process being securely stored at all times.
5. Documents 3 and 11 are internal emails between employees of the respondent and document 6 is a file note prepared by an employee of the respondent. It is apparent from the contents of the documents that they record information gathered during the respondent's investigation of Mr Moore's grievances.
6. Having regard to the circumstances in which such information was supplied, and the administrative procedures governing their storage and use, I am satisfied that the information in those documents is confidential information for the purposes of cl 1(d).

Prejudice the future supply of information

1. The test for the second limb of cl 1(d) is whether disclosure of the information of the kind in question would impair the general ability of the agency to obtain that kind of information in the future, as a matter of reasonable expectation: see Director General, Department of Education & Training v Mullett & anor (GD) [2002] NSWADTAP 13, cited with approval by the Appeal Panel in Camilleri at [28]-[29].
2. Ms Lee-Archer's evidence addresses this issue. Her role is within the respondent's executive team and includes oversight of the management and investigation of complaints and resolution of conflict. Through her current and previous roles she has had extensive experience in the management and investigation of workplace grievances. I am satisfied she has the necessary skills and expertise to give evidence in relation to this issue.
3. Ms Lee-Archer gives evidence that: 1. Whilst participation in investigation of grievances is expected, the respondent relies on the voluntary participation of staff in the grievance management process. Even in the limited circumstances where staff are required to participate, she would expect their willingness or otherwise to participate in the process to impact the level of detail and quality of information they might provide during the investigation. 2. In Ms Lee-Archer's experience staff may be reluctant to participate in investigations, particularly where they have an ongoing working relationship with others involved in the investigation, and given the close environment and high pressure situations in which health professionals are typically required to work. 3. Often staff will only participate in an investigation on the condition of anonymity, or an assurance that confidentiality will be maintained. In Ms Lee-Archer's experience the ability to give such assurances is essential to securing the participation of staff in an investigation. 4. Maintaining confidentiality of the grievance management process is thus essential to maintaining the confidence that staff have in the process, and to securing their cooperation. 5. In Ms Lee-Archer's view, if information was released under the GIPA Act, it is reasonable to expect that staff would be unwilling or reluctant to participate in future investigations.
4. Ms Lee-Archer was not challenged in relation to these aspects of her affidavit and I accept her evidence in relation to these matters. Further, it is appropriate for the Tribunal to rely on the "natural implication" that the flow of future information is likely to be adversely affected if the established confidentiality of the information gathering process was undermined by disclosure of information obtained pursuant to that process: Transport for NSW v Searle [2018] NSWCATAP 93 at [63] - [65] and [69].
5. For these reasons I am satisfied that disclosure of the information in documents 3, 6 and 11 could reasonably be expected to prejudice the future supply to the respondent of information acquired during investigation of grievances.

The information facilitates the effective exercise of the agency's functions.

1. The third limb of cl 1(d) involves consideration of the effect of disclosure on the effective exercise of the agency's functions.
2. In this regard, as the former Administrative Decisions Tribunal (the ADT) said in MJ v Department of Education & Commerce [2013] NSWADT 213 at [73]: It is well established that a function of an agency is to deal with and action allegations of misconduct by one or more of its officers. The effective exercise of that function is based on complaints being made voluntarily and that the making of the complaint and any action taken in regard thereto remains confidential, to the extent required by law.
3. In Robinson v Department of Health [2002] NSWADT 222 the ADT observed at [71]: the "effective performance" of [the agency's investigative] function depends, to a large extent, on the co-operation of those who have information relevant to the investigation. The co-operation of some people will depend on the information they provide being kept confidential, if that is legally possible. If information obtained confidentially is provided to an applicant under the FOI Act, then that disclosure could reasonably be expected to have a substantial adverse effect on the effective performance by an agency of the agency's functions.
4. In this case Ms Lee-Archer's evidence establishes that the voluntary disclosures provided by staff when investigating grievances are an essential element of the complaints handling process. Responding to complaints and grievances is a function of the respondent. It is manifestly clear that confidential information gathered during such an investigation facilitates the effective exercise of that function.
5. For these reasons I am satisfied that the third limb of clause 1(d) is established in relation to documents 3, 6 and 11 and overall, I am satisfied that the public interest consideration in clause 1(d) applies to documents 3, 6 and 11.

Clause 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 an agency

1. It is a public interest consideration against disclosure where disclosure of information could reasonably be expected to reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency.
2. The respondent submits that this public interest consideration applies in respect of documents 3, 6, 11 and 14, each of which the respondent asserts reveal "consultations" conducted with staff of the respondent with respect to the issues arising in the grievance management process.
3. To rely on clause 1(e) it must be shown first that the information could reasonably be expected to reveal a "deliberation, consultation, opinion, advice or recommendation" and secondly that disclosure of such information could reasonably be expected to prejudice an "associated deliberative process": South Dural Residents and Ratepayers Group Inc. v Roads and Maritime Services [2019] NSWCATAD 83 at [45] - [46].
4. The words "in such a way as to" in cl 1(e) require that there be a connection between the revelation of the deliberation, consultation, opinion, advice or recommendation and the "prejudice" to a "deliberative process" of the agency (citations omitted): Seremetis v Commissioner of Police; Seremetis v Department of Communities and Justice [2020] NSWCATAD 317 at [88].
5. In Ryan v NSW Minister for Planning and Open Spaces [2021] NSWCATAP 221 (Ryan) at [32], the Appeal Panel was not persuaded that the Tribunal at first instance erred in its interpretation of the expression "in such a way" where the Tribunal said "[u]se of the expression 'in such a way' leaves open the possibility that there may be some way of disclosing information which would not be prejudicial e.g. by appropriately redacting the document".
6. I agree that each of documents 3, 6 and 11 reveal consultations conducted with staff of the respondent with respect to issues arising in the grievance management process. In documents 3 and 11 such consultations are recorded in email exchanges between staff members. In document 6 they are recorded in an internal file note. Therefore the first element of clause 1(e) is satisfied in relation to documents 3, 6 and 11.
7. Document 14 is an undated chronology of Mr Moore's first grievance. Its author is not apparent but it appears to have been prepared by personnel involved in managing and investigating Mr Moore's grievances. Some of the information in document 14 reveals consultations with, or opinions of, staff of the respondent with respect to Mr Moore's first grievance. The first limb of cl 1(e) applies to that information. However, much of the information in document 14 is generic, factual information about the timeline of Mr Moore's complaints, and the respondent's responses to them. It is information of an administrative or procedural nature. The respondent has not explained how, and I am not satisfied that, such factual information might reveal a deliberation or consultation conducted, or an opinion, advice or recommendation. I am therefore not satisfied that the first limb of cl 1(e) applies to all of the information in document 14.
8. I turn now to consider the second element of clause 1(e). In Miskelly v Transport for NSW [2017] NSWCATAD 207 the Tribunal said at [72]: The 'deliberative process' of an agency has been described as its 'thinking processes…including those by which it seeks internal input and discussions as to different courses of action, evaluates the wisdom of them, and the relative benefits and detriments of them: Cameron v Commissioner of Police (NSW) [2014] NSWCATAD 13 at 66, or its 'internal thinking': Fire Brigade Union v Fire and Rescue (NSW) [2014] NSWCATAD 133.
9. In Ryan the Appeal Panel observed at [34]: 1. cl 1(e) contemplates that the deliberative process that may reasonably be expected to be prejudiced may be a "particular case or generally". Thus, the focus of this clause goes beyond particular deliberative processes; 2. there is no requirement that the deliberative process that may reasonably be expected to be prejudiced is the same as the deliberation which could be expected to be revealed by disclosure of the information (where it is a deliberation rather than a consultation, opinion advice or recommendation that would be revealed by disclosure of the information). This is clear from the use of the phrase "a deliberative process"; 3. the existence of a deliberative process which might reasonably be expected to be prejudiced by disclosure will turn upon the evidence before the Tribunal in each case.
10. The respondent submits that the ability of the respondent to conduct future investigations into staff grievances or complaints would be prejudiced by the release of the information in documents 3, 6, 11 and 14.
11. I agree with this proposition with respect to documents 3, 6 and 11. For reasons canvassed in some detail above, I am satisfied that if staff are aware that information they supply in the course of an investigation could subsequently be disclosed to the person(s) concerned, they are likely to be less forthcoming in their responses, or unwilling to participate in the process altogether. It is axiomatic that full and frank participation of staff in the investigation of a complaint is necessary to ensure that internal deliberations by those charged with investigating and resolving the complaint are fully informed and based on the best available evidence. The absence of such evidence is thus likely to significantly impede the respondent's ability to conduct that deliberative process effectively.
12. For these reasons I am satisfied that cl 1(e) is established in respect of documents 3, 6 and 11.
13. With regard to document 14, the respondent says that release of the information contained therein would prejudice the ability of the respondent's "People and Culture" team to freely exchange opinions on sensitive matters, including workplace grievances. Ms Lee-Archer's evidence supports this proposition. I agree with the respondent that the ability of the respondent to effectively manage and deliberate on workplace grievances may be seriously impacted if persons involved in the making of management and strategy decisions feel they are not able to deliberate and express opinions freely and in confidence.
14. However, I do not agree that this concern applies to document 14. Document 14 is divided into three sections. The first and second sections contain mainly factual information about the timing and nature of Mr Moore's first grievance and the respondent's responses to it. To the limited extent that those sections contain opinions of, or consultations conducted with, staff, the information is of a high-level nature. It does not contain detail about the respondent's deliberations or thinking processes. More significantly, the relevant opinions and consultations have already been revealed in substance to Mr Moore in formal communications from the respondent to Mr Moore in response to his grievances, and also in documents provided in response to his access application. The respondent's submissions do not convince me that the release of high-level information about the outcome of Mr Moore's grievances, which the respondent has previously provided in substance to Mr Moore, could reasonably be expected to impact the respondent's future deliberative processes. I am thus not satisfied that clause 1(e) applies to the first and second sections of document 14.
15. Like the first and second sections of document 14, the third section of document 14 contains mainly factual and procedural information about the timeline of Mr Moore's complaints. To a limited extent it also contains information which could be described as the opinion of personnel of the respondent. I am not aware that those opinions have previously been provided to Mr Moore. However, the opinion information is incidental to the procedural and factual information contained in section 3 of document 14. It is high-level information about Mr Moore's grievance. It does not include sensitive information about the investigation of Mr Moore's complaints and does not reveal in any substantive way the thinking processes or deliberations of the respondent or another agency. The respondent's submissions do not adequately explain how the release of that information is reasonably likely to prejudice the respondent's deliberative processes of government or an agency.
16. For these reasons I am not satisfied that the second limb of clause 1(e) applies to the third section of document 14.
17. Accordingly, the public interest consideration in clause 1(e) is not established in respect of document 14. I would add that even if I was wrong in this regard, I would not have afforded significant weight to the public interest consideration in clause 1(e). The information in document 14 is primarily factual and procedural in nature. To the limited extent that the document contains opinions of, or consultations with, staff, any prejudice resulting from the disclosure of that information is not likely to be significant. This is because the opinions are high-level in nature, have largely already been provided to Mr Moore, and do not reveal in any substantive way the respondent's thinking processes or deliberations in relation to Mr Moore's grievances.

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

1. It is a public interest consideration against disclosure of information if disclosure could reasonably be expected to prejudice the effective exercise of an agency's functions.
2. The respondent submits that this public interest consideration applies in respect of documents 3, 6, 9, 11 and 14 because disclosure of the information contained in those documents could reasonably be expected to prejudice the respondent's complaint management functions.
3. Unlike clause 1(d), clause 1(f) does not require that the information in issue was supplied in confidence. There is, however, a requirement that disclosure of the information could reasonably be expected to prejudice the exercise of the agency's functions. Whilst clause 1(d) focuses on future supply of information, in clause 1(f) the focus is the 'prejudice' to the 'effective exercise' by the agency of its functions: Adams v Commissioner of Police [2022] NSWCATAD 178 at [129].
4. For the reasons canvassed above I am satisfied that the disclosure of the information in documents 3, 6 and 11 could reasonably be expected to prejudice the respondent's complaint handling functions and therefore clause 1(f) is established in relation to that information. Disclosure of the information in those documents would be likely to undermine confidence in the grievance management process, and discourage staff from participating in future investigations, thereby hindering the respondent's ability to effectively exercise its complaint handling function.
5. However, I am not satisfied that clause 1(f) applies to document 14. As explained above, most of the information in document 14 is factual, procedural information about the timeline of Mr Moore's complaint. Much of the information in document 14 has already been disclosed in substance to Mr Moore. To the extent that it hasn't, it is high-level information which is not of a sensitive nature. I am not satisfied that disclosure of the information in document 14 could reasonably be expected to prejudice the respondent's complaint handling function.
6. Similar issues apply to document 9 which is an internal email exchange regarding Mr Moore's first grievance. The first three lines of that email contain limited information regarding confidential communications with a staff member in relation to Mr Moore's first grievance. For the same reasons as expressed in relation to documents 3, 6 and 11, I accept that disclosure of that confidential information could reasonably be expected to prejudice the respondent's complaints handling function. However, the balance of the information in document 9 is factual, procedural information about the response to Mr Moore's complaint. It is not apparent to me, and the respondent has not explained, how the balance of the information in document 9 satisfies cl 1(f).
7. For these reasons I am satisfied that cl 1(f) is established in relation to documents 3, 6 and 11 but only partially established in relation to document 9. I am not satisfied that it applies at all to document 14.
8. I would add that even if I am wrong in this regard, for substantially the same reasons as explained above in relation to cl 1(e), I would have afforded little weight to the public interest considerations against disclosure in cl 1(f) in respect of document 14 and the second part of document 9.

Clause 1(g) - reveal information supplied in confidence

1. It is a public interest consideration against disclosure of information if disclosure could reasonably be expected to reveal information supplied to an agency in confidence.
2. The respondent submits that this public interest consideration applies in respect of documents 3, 6 and 11. For reasons already expressed, I am satisfied that the information in documents 3, 6 and 11 was provided in confidence.
3. Thus I am satisfied that clause 1(g) applies to documents 3, 6 and 11.

Clauses 3(a) and (b) - disclosure would reveal personal information and contravene privacy legislation

1. It is a public interest consideration against disclosure of information where disclosure would reasonably be expected to reveal an individual's personal information. In addition, it is a public interest consideration against disclosure where disclosure would reasonably be expected to contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (NSW) (Privacy Act).
2. The respondent submits that cll 3(a) and 3(b) apply to documents 3 and 11.

Clause 3(a) - personal information

1. 'Personal information' is defined in cl 4 of Sch 4 to the GIPA Act as follows: 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) 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 (comprising the individual's name and non-personal contact details, including the individual's position title, public functions and the agency in which the individual works) that reveals nothing more than the fact that the person was engaged in the exercise of public functions, (c) 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 subclause. 'Reveal' is defined in cl of Sch 4 to mean: reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).
2. In McKinnon v Blacktown City Council [2012] NSWADT 44 the ADT confirmed at [73] that "information and opinion about the conduct of employees or contractors of the Agency in the course of undertaking their duties, whether or authorised or not, is personal information within the meaning of the GIPA Act".
3. Documents 3 and 11 (both of which are internal emails) name a number of individuals. The documents include information supplied by those individuals in the course of the complaints management process, and opinions about that information. It is therefore the personal information of those individuals.
4. It follows that disclosure of those documents would reveal the personal information of the individuals identified in the documents who participated in the investigation process.
5. I accept the respondent's submission that even if the names of the individuals were redacted, their identities would nonetheless be reasonably ascertainable from the other information contained in the emails. De-identifying a document does not change the character of information as 'personal information' in circumstances where the access applicant knows the identity of the person or persons involved: CCB v Department of Education and Communities [2015] NSWCATAD 145 at [98].

Clause 3(b) - Information Protection Principles

1. Section 20 of the Privacy Act provides that the information protection principles prescribed in ss 8 to 19 of that Act apply to government agencies and s 21(1) of that Act provides that a public sector agency must not do anything, or engage in a practice, that contravenes an information protection principle.
2. The information protection principles in ss 8 to 19 of the Privacy Act make provision for how a public sector agency is to collect, store, use and disclose personal information. Personal information is defined in s 4 of the Privacy Act and is in similar terms to that contained cl 4 of Sch 4 of the GIPA Act.
3. The respondent contends that disclosure of the personal information in documents 3 and 11 would contravene the information protection principle in s 18(1) of the Privacy Act.
4. Section 18(1) states: (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.
5. I agree with the respondent that disclosure of the personal information in documents 3 and 11 in response to Mr Moore's access application would not fall within any of the exemptions in s 18. In particular, disclosure under the GIPA Act is a purpose unrelated to the purpose for which the information was collected (ie investigation of a complaint) and it cannot be said that the individuals who participated in that investigation are reasonably likely to have been aware, or notified, of the possibility of disclosure under the GIPA Act. Indeed, disclosure would be inconsistent with the policy framework within which the investigation was conducted.
6. Thus I am satisfied that cll 3(a) and 3(b) apply to documents 3 and 11.

Where does the balance lie?

1. Below are my conclusions in relation to documents 3, 6, 9 and 11. In reaching these conclusions I have taken as a starting point the general presumption in favour of disclosure of government information (GIPA Act, s 5). I note the principles that apply to my determination (GIPA Act, s 15) and that conditions cannot be placed on Mr Moore in regard to the further disclosure of any information to which I decide he be granted access (GIPA Act, s 73).
2. Overall I have given little weight to the public interest consideration that disclosure of the information could reasonably be expected to inform the public about the operations of the respondent. Release of the withheld information would provide little or no enhanced understanding of the performance of the respondent's functions beyond that which has already been disclosed to Mr Moore.
3. I have not given significant weight to the public interest in providing Mr Moore with his personal information. The communications provided by the respondent and its lawyers to Mr Moore in relation to his grievances include, at least at a high level, information held about Mr Moore relevant to the investigation of his complaints. In addition, Mr Moore's personal information is mixed with personal information of others in such a way that it would not be possible to disclose that information without also disclosing the personal information of others.
4. For similar reasons I have given moderate weight to the personal factors which apply to the information requested by Mr Moore. Mr Moore's legitimate interest in understanding how his grievances have been managed have been at least partially addressed by the extensive communications which have occurred between Mr Moore and the respondent and its legal advisers.
5. I have given significant weight to the public interest considerations against disclosure in clauses 1(d), 1(e), 1(f) and 1(g). The voluntary disclosures provided by staff when investigating grievances, and the ability of staff to freely participate in, and deliberate on, sensitive matters including workplace grievances, are an essential element of the respondent's complaints handling process, which is a function of the respondent. Disclosure of the information would be likely to undermine confidence in, and impact on the effectiveness of, the grievance management process. It is reasonable to expect that if the respondent is unable to perform this function effectively, there will be consequential impacts on the respondent's core function, which is to provide healthcare.
6. I have also given significant weight to the public interest considerations in clauses 3(a) and (b). While I accept that some of the information is personal information of Mr Moore, I am not satisfied that this information can be separated from that which is the personal information of other persons.

What is the correct and preferable decision?

1. Having weighed up the various public interest considerations, I find that the decision to withhold documents 3, 6 and 11 was the correct and preferable decision.
2. As I am not satisfied that the public interest considerations relied on by the respondent have been established in respect of document 14, I have decided that the decision to withhold document 14 was not the correct and preferable decision.
3. Similarly, I have decided that the decision to withhold the whole of document 9 was not the correct and preferable decision as the public interest consideration relied on by the respondent in respect of document 9 (cl 1(f)) does not apply to the whole of that document. This issue can be overcome by redacting the part of document 9 that satisfies the public interest consideration in cl 1(f).
4. The correct and preferable decision is that Mr Moore be given access to the whole of document 14, and to document 9, with the exception of the first part of the email.

Conclusion and orders

1. For these reasons I am making the following orders: 1. The decision of the respondent to refuse access to information contained in documents 15, 16, 17,18, 20 and 23 is set aside. In substitution for that decision, a decision is made that the applicant be granted access to all of the information in documents 15,16, 17,18, 20 and 23. 2. The decision of the respondent to refuse access to document 9 is set aside. In substitution for that decision a decision is made that the applicant be granted access to all of document 9 with the exception of the second and third lines of the email and the fourth line of the email before the words "As such". 3. The decision of the respondent to refuse access to document 14 is set aside. In substitution for that decision a decision is made that the applicant be granted access to all of document 14. 4. The decision is otherwise 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: 14 March 2024