O'Brien v Wollongong City Council

Jurisdiction

1. The Tribunal has jurisdiction to review the Decision under s 100 of the GIPA Act (which provides that a person who is aggrieved by a reviewable decision of an agency may apply to the Tribunal for administrative review under the Administrative Decisions Review Act 1997 (NSW) (ADR Act): ADR Act, ss 9 and 63 read together with s 30 of the Civil and Administrative Tribunal Act 2013 (NSW). The Tribunal is required to determine 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). The Tribunal may decide to affirm the decision: ADR Act, s 63(3)(a). The agency has the burden of establishing to the Tribunal that the decision it made is justified: GIPA Act, s 105.

GIPA Act

1. The object of the GIPA Act is to open government information to the public. This object is to be realised by agencies authorising and encouraging proactive public release of government information (s 3(1)(a)), giving members of the public an enforceable right to access to government information (s 3(1)(b)), and restricting access to government information only when there is an overriding public interest against disclosure (s 3(1)(c)). An "agency" includes "local authority", which relevantly means a council within the meaning of the Local Government Act 1993 (NSW): Sch 4, cl 1;
2. There is a presumption in favour of disclosure of government information unless there is an overriding public interest against such disclosure: s 5. A person who makes an application to access government information has a legally enforceable right to be provided with such access unless there is an overriding public interest against disclosure: s 9.
3. There is a general public interest in favour of the disclosure of government information: s 12. The Note to this section contains examples of public interest considerations in favour of disclosure, including: (d) The information is personal information of the person to whom it is to be disclosed. "Personal information" relevantly means an opinion about an individual whose identity is apparent or can reasonably be ascertained from the opinion: s 4(2) and Sch 4, cl 4.
4. There is an overriding public interest against disclosure if and only if there are public interest considerations against disclosure which on balance outweigh the public interest considerations in favour of disclosure: s 13. The public interest considerations against disclosure are set out exhaustively in s 14 in a Table, which relevantly includes: 1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally): … (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, … 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,
5. The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table: s 14(3).
6. A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the principles in s 15 which relevantly include agencies must have regard to any relevant guidelines issued by the Information Commissioner: s 15(b).
7. An agency must take such steps (if any) as are reasonably practicable to consult with a person before providing access to information relating to the person in response to an access application if it appears that the information includes personal information about the person, the person may reasonably be expected to have concerns about the disclosure of the information, and those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information: s 54(1) and (2)(a).
8. In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take into account specified factors, which are defined as the personal factors of the application, and which relevantly include the applicant's identity and relationship with any other person: s 55(1)(a). The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in cll 2 to 5 (but not cl 1, 6 or 7) of the Table in s 14.
9. An agency may decide an access application for government information by deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information: s 58(d). Notice of an agency's decision to refuse to provide access to information because there is an overriding public interest against disclosure of the information must relevantly state the agency's reasons for its decision, and the findings on any material questions of fact underlying those reasons, together with a reference to the sources of information on which those findings are based: s 61(a) and (b).
10. The decision of an agency in respect of an access application to refuse to provide access to information is a reviewable decision: s 80(d).
11. A person aggrieved by a reviewable decision of an agency is entitled to have the decision reviewed by the Information Commissioner: s 89(1). On a review of such a decision, the Information Commissioner may make such recommendations to the agency about the decision as the Information Commissioner thinks appropriate: s 92(1).

Guidelines of the Information Commissioner

1. GIPA Guideline 4: Personal Information as a public interest consideration under the GIPA Act dated 5 November 2018 issued by the Information Commissioner relevantly provides: "Personal information includes opinions 1.3 The definition of personal information specifically includes opinions about individuals. Opinions would be considered "personal information" under the GIPA Act where that opinion is about an individual whose identity is apparent or can "reasonably be ascertained" from that opinion or from other accompanying information. Examples of where an opinion could amount to personal information include: - the report of a referee about an applicant for public sector employment; … 1.4 The definition refers to opinions being "about" individuals. This suggests that the personal information conveyed by the opinion is that of the subject rather than the person who gives the opinion. For example, an opinion given in a referee report, the personal information is that of the person being refereed, rather than of the referee. However, in offering an opinion about someone else, personal information about the giver of the opinion may also be revealed."

The process for deciding whether to grant access to information

1. The process for deciding whether to grant access to information under the GIPA Act is to identify the factors in favour of granting access; then to identify the public interest factors against such disclosure (being only those items set out in the Table in s 14). Then it is necessary to allocate weight to each of the positive and negative factors. This is followed by a process of balancing the positive and negative elements to reach a decision as to whether access should be granted: Miskelly v Secretary, Department of Education [2019] NSWCATAD 48 at [9].

"could reasonably be expected to …" in the Table in s 14 The words "could reasonably be expected to" in the Table in s 14 have been held to require "something which is more than a mere risk or chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived". The public interest considerations against disclosure in cll 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: Flack v Commissioner of Police, NSW Police Force [2011] NSWADT 286 at [41]-[42].

"reveal an individual's personal information" in cl 3(a) of the Table in s 14

1. In Applicants v Commissioner of Police [2015] NSWCATAD 22 at [62] the Tribunal said: "… I am satisfied that the expression of the police officers' opinions in the transcripts of interviews and as recorded in the Investigator's Report is their personal information. "Personal information" is defined to include 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)). Information that a police officer expressed a certain opinion falls within this definition, either because it information about the police officer or because it is the police officer's opinion about an individual (see Guideline 4, cl 1.3 and 1.4)."
2. This decision has been cited as a correct statement of the principle: Veall v Department of Planning and Environment [2018] NSWCATAD 47 at [35].

"prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions" in cl 1(d) of the Table in s 14

1. 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: Commissioner of Police, NSW Police Force v Camilleri [2012] NSWADTAP 19 at [33].
2. It is not necessary to show that there is an express obligation or understanding about the information being obtained in confidence as this can be inferred from the circumstances in which the information was obtained. In deciding whether or not information is confidential the informants may have been advised that it would be treated confidentially, or they may have a reasonable expectation of that: Miskelly v Secretary, Department of Education at [37].
3. In Van der Wall v University of Sydney [2008] NSWADT 213 at [45] the Tribunal, in relation to the evidence that fundamental to the effectiveness of the University's recruitment and selection processes is the maintenance of confidentiality in relation to applications, referees' reports and selection reports, for both paid positions and honorary titles, made the following finding: "I am satisfied that the University's recruitment and selection processes would be compromised if confidentiality did not attach to these processes. Those considering applying for a position or the conferral of an honorary title might be more reluctant to do so if the disclosure of documents might result in the fact of a person having made an application becoming known outside those involved in the selection process. Prospective referees could also reasonably be expected to be less willing to act as referees and, when agreeing to act as referees, to be circumspect in their expressions of opinion - to be less frank and candid - if the confidentiality of their reports could not be assured. This would be contrary to the public interest in appointing the most suitable persons to particular positions."
4. In considering whether or not there would be a prejudice to the future supply of confidential information one does not ask whether it would reasonably be expected that a particular person considering disclosure may refuse to supply such information but rather whether the agency's general ability to obtain such information in the future would be likely to be prejudiced: Commissioner of Police, NSW Police Force v Camilleri at [26]-[29].

Procedural history

1. On 8 November 2018, the applicant filed administrative review application 2018/346852 against the respondent.
2. On 21 March 2019, the Tribunal made orders that the application is to be determined "on the papers".

The respondent's evidence

1. The respondent relied upon a Tender Bundle of Documents, which I have marked as "Exhibit R1" and relevantly includes the Decision and the Review, and the Affidavit of Jessica Wade sworn on 5 April 2019.

The Decision

1. Section 4.1 is headed "Public interest considerations in favour of disclosure" and relevantly provides: "I find the following considerations in favour of disclosure are relevant to your application: The information is personal information of the person to whom it is to be disclosed. Therefore by disclosing the information the applicant will be made aware of any historical or potential future comments made during a referee check when applying for current and future positions. By releasing the information it may also allow the applicant to understand why they were unsuccessful in the recruitment process."
2. Section 4.2 is headed "Personal factors of the application" and relevantly provides: "I can also take into account any personal factors of your application, under section 55 of the GIPA Act. I have considered: To aid the applicant in choosing which referees to seek assistance from when applying for current and future employment positions. The referees are known to the applicant and the applicant could make direct contact with each referee to discuss the responses with them directly."
3. Section 4.3 is headed "Public interest considerations against disclosure" and relevantly provides: "I have identified the following considerations against disclosure as being relevant to your application: There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have ... the following effect ... of ... reveal[ing] an individual's personal information (Section 14(3)(3)(a)). The information held by Council includes the opinions about an individual. The feedback during the referee check is frank, open and honest and was provided by the referees in good faith on a confidential basis to Wollongong City Council. It is imperative that the importance of such information collated during a referee check not be understated when it comes to the possible employment of future staff. There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to ... prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions (Section 14(1)(d)). If a referee is of the understanding that their feedback during a referee check will be released to the applicant there is the potential for pertinent information to be withheld, amended or reduced in their honesty, thereby reducing the importance of seeking referee checks during the employment process."
4. Section 4.4 is headed "Consultation" and relevantly provides: "One of the referees has moved from their last known location and while contact was attempted through the last known place of employment, contact was unsuccessful. Therefore the consultation process with this individual was unable to be undertaken. Contact with the remaining four (4) referees was made in e-mail form on 25 June 2018. Each referee was provided with a standard letter seeking their approval to release their specific comments under the employment referee check process. Two (2) referees replied seeking a copy of their specific comments so they were able to make an informed decision. There were no objections to the release of information from two (2) of the referees and no response received from a further two (2) referees. There was however one (1) objection to the release of their referee comments. … … The individual advised that the information had been provided to Wollongong City Council in good faith with confidentiality."
5. Section 4.5 is headed "Balancing the public interest test" and relevantly provides: "I have considered the relevant public interest considerations in favour of and against disclosure of the information you requested. I have also considered the objection raised by the third party and the personal factors of the application. … With respect to the party who withheld their consent to release I find their argument of the provision of feedback being provided in a confidential manner to hold strong weight against its release. The recruitment process in its very nature is a confidential exercise. Referees should be able to feel comfortable in their honesty and frankness when advising a potential employer of their own personal opinion of a potential employees previous work history that their comments will not be made public. As no comment has been received from one (1) consultation and no contact was able to be made with the other I find that I cannot release their comments without their consent. I therefore attach the same argument for refusal to release as noted above. Having weighed up the considerations, I have decided that there is an overriding public interest against disclosure of some of the information…"

The Review

1. The section headed "Public interest considerations against disclosure" records that the respondent raised the following public interest considerations against disclosure of the information in deciding that its release could reasonably be expected to: 1. reveal an individual's personal information: GIPA Act, s 14, Table, cl 3(a); and 2. prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions: GIPA Act, s 14, Table, cl 1(d).
2. The section headed "Consideration 3(a) - reveal an individual's personal information" relevantly provides: "20. I have reviewed the information over which this consideration has been claimed and I am satisfied that, as discussed in the IPC's Guideline 4, the information is the personal information of not only the person being refereed but also that of the referee. … 22. Based on the above, I am satisfied clause 3(a) is a valid consideration against disclosure of the information."
3. The section headed "Consideration 1(d) - prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency functions" relevantly provides: "24. In its notice of decision the Agency states there is a potential for referees to withhold, amend or reduce the provision of honest information if it were known their feedback would be released to an Applicant. The Agency states that this would reduce the importance of seeking referee checks. … 26. I have reviewed the information in issue and I am satisfied that, due to the nature of the information and the context under which the information was provided, it was provided to the Agency under an inferred if not implied understanding of confidence for the purpose of providing feedback during a referee check. 27. I am further satisfied that the prejudicial effect described by the Agency could reasonably be expected to occur. That is, if it were known the information provided in the course of a reference check could be disclosed, some referees may withhold, filter or fail to provide honest feedback. This in turn could prejudice the Agency's recruitment processes and ability to recruit the most suitable job candidate. 28. Based on the above, I am satisfied clause 1(d) is a valid consideration against disclosure of the information."

The Affidavit of Jessica Wade

1. In her Affidavit sworn on 5 April 2019 Jessica Wade, the Recruitment Specialist at the respondent, provides the following evidence: 1. it is an ordinary part of the recruitment process of the respondent that the respondent will obtain reports from referees who can provide feedback to their experience with, and character and work performance of, an applicant for a position; 2. in her experience, the respondent does not disclose the contents of referee's reports to applicants; 3. at the relevant time, the process for reference checking was that the hiring manager on the recruitment panel was responsible for calling referees provided by the applicant. The hiring manager would call the referees and ask a number of questions about the preferred applicant's work performance and character and take notes of the answers. The referees would not have been told that the information could be made available to the job applicant.

The applicant's evidence

1. The applicant relied upon decisions of agencies, being Wollondilly Shire Council, Newcastle City Council, Sydney City Council, and an unidentified agency, to release referee checks.
2. In the decision of Wollondilly Shire Council, access was provided in circumstances where there was no objection to the release of information.
3. In the decision of Sydney City Council, access was provided in circumstances where there was no reliance on cll 1(d) and 3(a) of the Table to s 14.
4. In the decision of Newcastle City Council, access was provided in circumstances where there was agreement by one referee and the other referee did not return a call in response to a voicemail, but where there was no reliance on cll 1(d) and 3(a) of the Table to s 14.
5. In the decision of the unidentified agency access, was provided in circumstances where there was agreement by both referees.

The written submissions of the applicant

1. The applicant in his undated Submissions which were received by the Tribunal on 21 March 2019: 1. disputes that the information could reasonably be expected to reveal an individual's personal information stating: "As the referee was in public office when making the referee comments and as the referee is speaking to another public agency specifically about my work conduct, it is very much public information, liable for disclosure upon a formal GIPA request. As this information is specifically about me, it is personal to me." 1. disputes that the information could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency functions stating: "The general presumption of disclosure under the GIPA Act does not prejudice the supply of confidential information, rather it has introduced a mechanism which encourages increased honesty, consistency and transparency and frankness in what individuals say and do in the public sector. By providing copies of the other two (2) referee transcripts, a precedent has been set to show this consideration is not important and the Agency was comfortable in releasing such information." 1. submits that he has been granted copies of such information through applications made through other NSW local government agencies, including (but not limited to) Ballina Shire Council, Newcastle City Council, Lismore City Council and Shellharbour City Council; 2. submits that "(a) "no response" illustrates either there was no objection, or the matter is not significant enough for comment." 3. submits that "(t)he information refused is not explicitly the personal information of the referee."

The written submissions of the respondent

1. Counsel for the respondent in his undated Submissions which were received by the Tribunal on 1 April 2019, after setting out the relevant provisions of the GIPA Act and the applicable legal principles under the GIPA Act: 1. in relation to cl 3(a) of the Table in s 14, submits that to disclose the information in the presently unreleased references would involve disclosure of personal information in a manner that is contrary to the overriding public interest against disclosure; 2. in relation to cl 1(d) of the Table in s 14, submits that to require the disclosure of information given in confidence would affect the effective exercise of the respondent 's functions; 3. submits that there are no personal circumstances in this matter which could displace the conclusion that there is an overriding public interest against disclosure by reason of the engagement of cll 1(d) and 3(a) of the Table in s 14.

An administrative review of the Decision

1. While the application in its terms seeks an administrative review of the Review, it is clear that the applicant is seeking access to the three referee reports, which the respondent by the Decision denied access. Accordingly, I have treated the application as seeking an administrative review of the Decision.

Public interest considerations in favour of disclosure

1. I find that there are public interest considerations in favour of disclosure of the information as the information is personal information of the applicant as specified in paragraph (d) of the Note in s 12.

Public interest considerations against disclosure

1. I find that there is one public interest consideration against disclosure of the information because its release could reasonably be expected to reveal an individual's personal information (s 14, Table, cl 3(a)), namely personal information of the referees, being their opinions about the applicant. I reject the submission of the applicant that the information refused is not the personal information of the referee. The evidence of Ms Wade discloses that any information in the reports about the applicant's work performance and character has not previously been revealed to the applicant.
2. I am not satisfied that there is one public interest consideration against disclosure of the information because its release could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions ((s 14, Table, cl 1(d)). I accept on the basis of the evidence of Ms Wade that having regard to its nature and the context in which it was obtained, namely during the course of a referee check, was provided to the respondent under an inferred if not implied understanding of confidence for the purpose of providing feedback during a referee check. However, there is no evidence of the respondent that disclosure of the information could have a prejudice effect on the supply to the respondent of confidential information that facilitates the effective exercise of its functions. The evidence of Ms Wade is silent on this issue.

Personal factors of the application

1. I am not satisfied that the personal factors of the application relied by the respondent were relevant considerations against disclosure of the information. The fact that the information might help the applicant in choosing referees or the applicant might make direct contact with the referees were not relevant considerations against disclosure of the information.

Third party consultation

1. I am satisfied that the respondent in compliance with s 54(1) and (2)(a) took such steps as were reasonably practicable to consult with the referees by attempting to contact each of them. I reject the submission of the applicant that the absence of any response illustrates either there was no objection, or the matter is not significant enough for comment.

Balancing the public interest test

1. I am satisfied that the positive factors in favour of granting access should be accorded some weight. However, the negative factors in favour of granting access should be accorded some weight should be accorded far greater weight, and outweigh the positive factors.

The correct and preferable decision

1. I am satisfied that the correct and preferable decision in relation to the Decision is that access to the three referee reports be refused to the applicant.

Decision

1. I affirm the Decision to refuse access to the applicant to three referee reports. 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: 27 May 2019