Noble v University of New South Wales

RELEVANT LEGISLATION

1. The object of the GIPA Act is to "is to open government information to the public" in stated ways "[i]n order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective" (GIPA Act, s 3(1)).
2. The GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (GIPA Act, s 5).
3. A person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information (GIPA Act, s 9(1)).
4. There is a general public interest in favour of the disclosure of government information (GIPA Act, s 12(1)). There is an overriding public interest against disclosure of government information 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 (GIPA Act, s 13).
5. Subsections 14(1) and (2) of the GIPA Act provide: "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."
6. The University contends that there is an overriding public interest against disclosure of the information sought because disclosure of the information could reasonably be expected to have the following effects: 1. prejudice the supply to the University of confidential information that facilitates the effective exercise of the University's functions (GIPA Act, s 14, table, cl 1(d)); 2. prejudice the effective exercise by the University of its functions (GIPA Act, s 14, table, cl 1(f)); 3. result in the disclosure of information provided to the University in confidence (GIPA Act, s 14, table, cl 1(g)); 4. reveal an individual's personal information (GIPA Act, s 14, table, cl 3(a)); and 5. contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (NSW) (GIPA Act, s 14, table, cl 3(b)).
7. Before the hearing, the University had contended that the disclosure of BKDRC's commercially sensitive information could reasonably be expected to reveal commercial-in-confidence provisions of a government contract (GIPA Act, s 14, table, cl 4(b)) and/or prejudice its legitimate professional and business interests (GIPA Act, s 14, table, cl 4(d)). However, in light of the applicant's indication that she was not seeking BKDRC's costs or other commercially sensitive information, these considerations were not pressed.
8. Section 15 of the GIPA Act provides for the principles which apply when determining whether there is an overriding public interest against disclosure, as follows: "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."
9. "GIPA Guideline 4 - Personal information as public interest consideration under the GIPA Act" is a guideline issued by the Information Commissioner within s 15(b) of the GIPA Act. The University officer had regard to this guideline when making a decision concerning access to information.
10. The personal factors of an application may be taken into account in favour of providing an applicant with information, or in determining whether there is an overriding public interest against disclosure of the information, in accordance with s 55 of the GIPA Act. Those personal factors are (s 55(1)): "(a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant."
11. The burden of establishing that its decision to refuse access to information is justified lies on the University: GIPA Act, s 105(1).
12. The applicant is a person aggrieved by the University's decision who is entitled to apply to the Tribunal: GIPA Act, s 100, Administrative Decisions Review Act 1997 (NSW), s 9, Civil and Administrative Tribunal Act 2013 (NSW), s 30(1). The Tribunal's function is to decide what the correct and preferable decision is having regard to the material before it: Administrative Decisions Review Act, s 63(1).

Summonses and Adjournment Application

1. The applicant applied to have summonses issued to two staff members of the University to attend and give evidence at the hearing, pursuant to s 48 of the Civil and Administrative Tribunal Act. I decided that those staff members should not be required to attend and oral reasons for that decision were given at the hearing.
2. The applicant, through her agent Mr Noble, then applied for an adjournment of the hearing for the purposes of appealing the decision concerning the summonses. That application was also refused, for reasons given orally at the hearing.

Public interest considerations in favour of disclosure

1. As indicated above, there is a general public interest in favour of the disclosure of government information (GIPA Act, s 12(1)). The University acknowledged that disclosure of the withheld information could reasonably be expected to: 1. promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance (see GIPA Act, s 12(2), example (a)); 2. inform the public about the operations of the University (see GIPA Act, s 12(2), example (b)); 3. ensure effective oversight of the expenditure of public funds (see GIPA Act, s 12(2), example (c)); and 4. uphold high standards of public administration, governance, professional and personal conduct.
2. I am satisfied that all of these public interest considerations in favour of disclosure apply in the present circumstances. To the extent that the redacted information contains the applicant's personal information, this is also a public interest consideration in favour of disclosure (see GIPA Act, s 12(2), example (d)).

Personal factors of the application

1. The Tribunal is entitled to take into account "personal factors of the application" as factors in favour of providing the applicant with access to the information (GIPA Act, s 55(2)). The "personal factors of the application" are the applicant's identity and relationship with any other person, the applicant's motives for making the access application and any other factors particular to the applicant (GIPA Act, s 55(1) and (2)).
2. The applicant is a member of the team of staff members the subject of the Report. Her identity as such is, in my view, a personal factor in favour of providing her with access to the information in the Report.

Prejudice the effective exercise by the University of its functions (GIPA Act, s 14, table, cl 1(f))

1. The University submits that disclosure of the redacted parts of the Report could reasonably be expected to prejudice the effective exercise by the University of its functions (GIPA Act, s 14, table, cl 1(f)).
2. The University's functions include "such general and ancillary functions as may be necessary or convenient for enabling or assisting the University to promote the object and interests of the University, or as may complement or be incidental to the promotion of the object and interests of the University" (University of New South Wales Act 1989 (NSW), s 6(3)(c)).
3. The University submits that its general and ancillary functions include programs to develop the performance of academic and professional staff and that the commissioning of the Report is an example of the University performing the function of improving the performance of its staff. I accept that the University has a function of improving staff performance, in accordance with s 6(3)(c) of the University of New South Wales Act, and that the Report was commissioned in the exercise of that function. The applicant did not contend otherwise.
4. The University submits that the reason the effective exercise of the University's function of improving staff performance would be prejudiced by disclosure of the redacted information in the Report is that its inability to guarantee confidentiality to staff members being interviewed would jeopardise future staff contributions in similar situations.
5. The University's case in support of the application of this consideration against disclosure is the same, in substance, as its case that the "confidential information" consideration in cl 1(d) of the table in s 14 of the GIPA Act applies. For reasons that follow in respect of that consideration, I accept that disclosure of the information could reasonably be expected to prejudice the effective exercise of the University's function of improving staff performance and that the consideration in cl 1(f) does apply in the circumstances of this case.

Prejudice the supply of confidential information that facilitates the effective exercise of the University's functions (GIPA Act, s 14, table, cl 1(d))

1. The University contends that disclosure of the redacted parts of the Report could reasonably be expected to prejudice the supply to the University of confidential information that facilitates the effective exercise of its functions (GIPA Act, s 14, table, cl 1(d)).
2. The applicant submits that confidentiality cannot apply because the comments attributed to participants in the making of the report are no more than hearsay as participants were not provided with copies of their comments to confirm whether they were accurate. The applicant also submits that there is no evidence to suggest that the report contains information provided in confidence. The applicant says that, notwithstanding Ms Keys' impressive qualifications, she cannot guarantee confidentiality of information provided to her by participants in interviews or by undertaking workshops. Finally, the applicant, through her agent, asserts that "Mr Young has chosen to use excerpts from the Report as part of an ongoing campaign to discredit the applicant" and any confidentiality which subsisted has thereby been extinguished.
3. The first question to address is whether the redacted information in the Report is confidential information. In Commissioner of Police NSW Police Force v Camilleri [2012] NSWADTAP 19 at [33], the Appeal Panel of the former Administrative Decisions Tribunal outlined the general approach to be adopted in determining whether information is confidential information, as follows: "In our view, the question of whether the information supplied is 'confidential information' must 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."
4. The agency's evidence on this question was given primarily by Ms Bianca Keys. Ms Keys gave evidence that the meetings she had with individual staff members were conducted confidentially and that she told each staff member at the beginning of the meeting that the meeting would be confidential. She said that she told staff members with whom she met that the exception to confidentiality "would be the collation of general themes around team culture and communication" and that she requested consent for including matters in the Report which were not de-identified. Her evidence was that, where an individual agreed to have something attributed to him or her in the Report, this was on the basis that it would be confidential to the Human Resources Department and Mr Young. I accept Ms Keys' evidence, which was not challenged.
5. Douglas Nairn, the Head of Employee Relations at the University, gave evidence that discussions between University staff members and external consultants on staffing issues are generally conducted on the basis that they are confidential. I accept this evidence.
6. It is true that Ms Keys cannot guarantee the confidentiality of information provided to her by participants, as the applicant submits. That information could be provided to others by the University, or disclosed under the GIPA Act, contrary to Ms Keys' wishes. However, this does not mean that the public interest consideration in cl 1(d) does not apply. In particular, it does not follow from Ms Keys' inability to "guarantee" confidentiality that the information provided to her is not confidential information.
7. There is no evidence as to whether the participants were given an opportunity to verify the comments attributed to them in the Report. However, even if I were to accept the applicant's position that they were not given such an opportunity, I am not persuaded that this would detract from the information being confidential information. There is no evidence to suggest that the information in the Report is different from the information provided by staff members to Ms Keys. Ms Keys' evidence is that the Report reflects the information provided to her. As indicated above, her evidence was not challenged.
8. The applicant submits, in effect, that any confidentiality which subsisted has now been waived. The assertion that Mr Young has used parts of the Report to discredit the applicant is made in submissions provided by the applicant's agent; there is no evidence of this. This allegation does not, without more, mean that confidentiality has been "extinguished", even if it were accepted. The applicant has not explained how Mr Young's alleged actions affect the application of this public interest consideration in terms of how any actions of Mr Young affect any prejudice to the supply of confidential information in the future. I do not accept this submission.
9. I find that the redacted information in the Report is confidential information.
10. The next question is whether disclosure of the redacted parts of the Report could reasonably be expected to prejudice the supply to the University of confidential information of a similar kind in the future.
11. Ms Keys gave evidence that confidentiality is sometimes the only reason that an individual will contribute to a consultation process like the one involved in preparing the Report. She also stated that confidentiality means that people feel more comfortable in expressing their concerns and their ideas. Ms Keys is an accredited mediator, a trained and experienced conflict management coach and has twelve years' experience delivering conflict resolution and conflict training services. I accept her evidence on this point.
12. Mr Nairn's evidence was that the release of details of confidential discussions between staff members and an external consultant such as Ms Keys could make it difficult for the University to deal with staff-related issues and manage workplace conflict effectively as this would potentially deter staff from raising such matters in the future. I accept his evidence.
13. The main issue arises in relation to de-identified information contained in the redacted parts of the Report. The redacted parts of the Report contain comments which are not attributed to any particular person but which are clearly comments made by one or more of the thirteen staff members who met with Ms Keys. The question arises as to whether staff members or others would be deterred from providing confidential information to the University in future if de-identified information were disclosed.
14. In my view, the disclosure of a comment which is not attributed to an individual in the Report could reasonably be expected to deter staff members from providing confidential information of a similar kind in the future. Even though a comment is not attributed to a particular individual, it is likely that persons within the small team of staff members would speculate as to who made the comment if they were aware of it. Staff members could reasonably be expected to be reluctant to contribute to such reviews in the future, if they anticipated that their personal comments (or those of others) could be disclosed and then attributed to them by others, whether rightly or wrongly.
15. I find that disclosure of the redacted parts of the Report, which were provided to the University in confidence, could reasonably be expected to prejudice the supply to the University of confidential information of a similar kind in the future. I am also satisfied, for reasons given above, that this kind of information facilitates the effective exercise of the University's functions. Accordingly, I find that the public interest consideration against disclosure in cl 1(d) of the table in s 14 of the GIPA Act, applies in the circumstances of this case.

Result in the disclosure of information provided to the University in confidence (GIPA Act, s 14, table, cl 1(g))

1. For reasons given above, I am satisfied that the information in the Report was given to the University in confidence. Although it was given to Ms Keys, and not to the University directly, she was engaged by the University to prepare the Report and the University was the ultimate recipient of the Report.
2. Accordingly, this public interest consideration against disclosure applies in the circumstances of the case.

Reveal an individual's personal information (GIPA Act, s 14, table, cl 3(a))

1. The University relies upon the consideration against disclosure in cl 3(a) of the table to s 14, being that disclosure could reasonably be expected to reveal an individual's personal information. "Personal information" is relevantly defined to mean "information or an opinion … about an individual … whose identity is apparent or can reasonably be ascertained from the information or opinion" (GIPA Act, Sch 4, cl 4(1)).
2. Some of the redacted information in the Report includes individuals' names and information or opinions about individuals whose identity is apparent or can reasonably be ascertained from the information or opinion. Accordingly, it includes personal information.
3. To "reveal" information "means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)" (GIPA Act, Sch 4, cl 1). The applicant says that she is fully aware of those staff members who attended interviews as she was one of them. Even if this is the case, this does not establish that the information has been publicly disclosed. The evidence of Ms Keys and Mr Nairn indicates that it has not.
4. It follows that disclosure of the redacted information could reasonably be expected to reveal individuals' personal information.

Contravene an information protection principle under the Privacy and Personal Information Protection Act (GIPA Act, s 14, table, cl 3(b))

1. The University submits that disclosure of the redacted information would contravene s 18 of the Privacy and Personal Information Protection Act, which prohibits the disclosure of personal information (as defined under that Act) unless an exception applies. It says that disclosure of the personal information within the redacted information would reveal the identity of the thirteen participants and opinions provided by and about each of the participants.
2. I am satisfied that disclosure of the redacted information could reasonably be expected to contravene s 18 of the Privacy and Personal Information Protection Act. The redacted information contains "personal information" within the definition in s 4 of that Act.
3. The respondent submits that no exception to the prohibition against disclosure of personal information in s 18 of the Privacy and Personal Information Protection Act applies. Under s 18(1)(a), the prohibition does not apply if 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. The applicant says that the respondent's view that the individuals would object is untested and that this is pure supposition.
4. Disclosure to the applicant under the GIPA Act is not, in my view, a disclosure directly related to the purpose for which the information was collected. Even if it were, the agency does have reason to believe that the individuals concerned would object: that reason is that they were told that the information would be kept confidential.
5. Accordingly, I find that the public interest consideration against disclosure in cl 3(b) of the table to s 14 applies.

Balancing of public interest considerations for and against disclosure

1. It is necessary to consider whether, on balance, the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure (GIPA Act, s 13). Determining where the balance lies between the competing interests is "a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation": Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [94]; Salmon v Department of Justice (Corrective Services New South Wales) [2014] NSWCATAD 160 at [46].
2. The public interest considerations in favour of disclosure are set out at paragraphs 24 and 25 above. I take them all into account. The fact that disclosure of the Report in full would promote government transparency is a significant consideration. To the extent that it applies, I also give significant weight to the consideration that the Report contains the applicant's personal information.
3. The personal factors of the application are to be given reasonable weight in favour of disclosure. The circumstance that the applicant was one of the team of staff members the subject of the Report favours the disclosure of the information in that Report as it directly concerns her work environment.
4. The public interest considerations against disclosure which I have found to apply in the circumstances of this case are that disclosure of the withheld information could reasonably be expected to: 1. prejudice the supply to the University of confidential information that facilitates the effective exercise of the University's functions (GIPA Act, s 14, table, cl 1(d)); 2. prejudice the effective exercise by the University of its functions (GIPA Act, s 14, table, cl 1(f)); 3. result in the disclosure of information provided to the University in confidence (GIPA Act, s 14, table, cl 1(g)); 4. reveal an individual's personal information (GIPA Act, s 14, table, cl 3(a)); and 5. contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (NSW) (GIPA Act, s 14, table, cl 3(b)).
5. The first three of these considerations are (in the circumstances of this case) concerned with the disclosure of confidential information, the expected prejudice to the supply of confidential information to the University in the future and the effect that could be expected to have on the exercise of its function of improving staff performance. The last two are concerned with the disclosure of participants' personal information.
6. The reasonably expected prejudice to the supply of confidential information for the purposes of this type of workplace review or investigation is to be given considerable weight. If the University or another government agency is impeded in its functions of conducting processes to improve staff performance, or undertaking staff reviews for management purposes, this is likely to result in greater staff conflict and poorer staff performance. This, in turn, could reasonably be expected to have adverse consequence for the staff members concerned and for the students or members of the public who are affected by their work.
7. The reasonably expected revelation or disclosure of the personal information of staff members is also a significant consideration against disclosure. The fact that the individuals in question are staff members of the University does not, in the circumstances of this case at least, diminish the weight to be given to this consideration. As part of the process conducted by Ms Keys, staff members provided personal opinions about their colleagues in circumstances where they had been assured of confidentiality. The information provided was thus sensitive personal information the disclosure of which could reasonably be expected to adversely affect their relationships with each other and thus the functioning of their team. This would be contrary to the purpose of the Report and the associated services provided by BKDRC which was, according to Ms Keys, "to create a cohesive and open team dynamic."
8. I have reviewed all of the information which has been redacted in the Report. I am satisfied that, with the two exceptions which follow, on balance, the public interest considerations against disclosure, set out above, outweigh the public interest considerations in favour of disclosure of this information.
9. The exceptions are the information constituted by the applicant's name where it appears on the first page of the Report. In this case, the applicant's identity as a staff member and the fact that it is her personal information are relevant factors in favour of disclosure (see GIPA Act, ss 12 and 55(1) and (2)). The respondent has conceded that this information should be provided to her.
10. The second exception is the dates which appear in the second column on page 10 of the Report. The public interest considerations against disclosure of this information raised by the University do not apply to this information. The respondent consented to an order granting the applicant access to that information at the hearing.

Orders

1. For the above reasons, I make the following orders: 1. The respondent is to provide the applicant with access to the following information: her name where it appears on page 1 of the report prepared by Bianca Keys Dispute Resolution Consulting Pty Ltd for the respondent in September 2014, and the information in column 2 on page 10 of that report. 2. The respondent's 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: 04 January 2017