P v Western NSW Local Health District

Material before the Tribunal

1. The Tribunal has before it the following material: 1. P's application for administrative review of the Agency's decision filed 7 August 2015. 2. The Agency's revised decision of 27 October 2015 with attached schedule of documents. 3. Open statements of Julie Dunn, dated 9 December 2015 and 1 March 2016. 4. Confidential statement of Julie Dunn dated 15 December 2015. 5. A confidential copy of all documents the Agency considers responsive to P's request for access to information, comprising six volumes, three containing information withheld in full, and three containing information released in full and subject to redactions.

Decision on papers

1. This matter has been allocated to me to determine on the papers. Section 50 of the Civil and Administrative Decisions Tribunal Act 2013 (the CAT Act) provides: (1) A hearing is required for proceedings in the Tribunal except: (a) in proceedings for the granting of leave for an external or internal appeal, or (b) in connection with the use of any resolution processes in proceedings, or (c) if the Tribunal makes an order under this section dispensing with a hearing, or (d) in such other circumstances as may be prescribed by the procedural rules. (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules. (5) This section does not prevent the Tribunal from holding a hearing even if it is not required.
2. I am satisfied that at the planning meeting on 9 February 2016 the parties agreed to this matter being determined on the papers and without a hearing. Having reviewed the materials filed by the parties and considered the issues requiring determination I am satisfied that this is a matter that can be adequately determined on the materials provided without a hearing.

Anonymity of P

1. In P v Greater Western Area Health Service [2007] NSWADT 87 the ADT decided that the applicant should be referred to as P in the course of its reasons in order to protect her personal information. The Appeal Panel of the ADT followed that decision, and its orders are still in effect.
2. In the present case, of my own motion, I propose to follow that decision and pursuant to s 64(1)(a) of the CAT Act, until further order, restrict the disclosure of the applicant's full name. This should preserve the protections granted by the ADT decision. I will grant liberty to apply within 14 days if either party wishes to vary that decision.

The Government Information (Public Access) Act 2009

1. The GIPA Act commenced operation on 1 July 2010. The objects of the Act are set out in (s 3(1) - In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
2. "Government information' is given a wide meaning (s 4) being 'information contained in a record held by an agency.' 'Agency' is also defined in s 4.
3. The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5). Applicants for access to government information have a legally enforceable right to be provided with access to that information, unless there is an overriding public interest against disclosure (s 9).
4. Subsection 14(1) provides that government information described in Schedule 1 of the GIPA Act is to be conclusively presumed to give rise to a public interest consideration against disclosure. Included in this Schedule is information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege): see clause 5 in Schedule 1, which provides as follows: 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.
5. With respect to other government information, the Act establishes a principle that there is pubic interest in favour of disclosure (s 12(1)). Section 12(2) says that public interest considerations in favour of disclosure are not limited. It provides - Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Note. 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
6. There will only be an overriding public interest against disclosure when the public interest test in s 13 is satisfied. It provides - There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
7. In considering whether there is an overriding public interest against disclosure s 16 provides that the following principles apply - (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.
8. The public interest considerations against disclosure are limited to those set out in the Table to s 14. Section 14(2) provides that - 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.
9. The Information Commissioner may issue guidelines about public interest considerations against disclosure, to assist agencies, but may not add to the list of considerations (s 14(3)). The Office of the Information Commissioner has issued Guideline 4 - Personal information as a public interest consideration under the GIPA Act. Section 15(b) requires that decision makers have regard to guidelines.
10. Personal information is defined in clause 4 of Schedule 4 - (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) 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.
11. The public interest considerations against disclosure relied on by the agency in this case are to be found under the categories of "Responsible and effective government," "Law enforcement and Security" and "Individual rights, judicial processes and natural justice" in the Table to s 14.
12. Before deciding an access application which, among other things, seeks access to information that includes personal information about a person, s 54 requires that the agency take such steps as are reasonable practicable to consult with that person before providing access. Any objection to disclosure must be taken into account in the course of determining whether there is an overriding public interest against disclosure of government information: s 54(5).
13. Section 55 provides that personal factors relating to an applicant can be taken into account in deciding to grant access. In limited circumstances they may also be taken into account in refusing access. That section provides - (1) 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 as provided by this section: (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. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) 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 clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14. (4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for. (5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information. (6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person. Note. An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73.
14. An access application is to be determined in accordance with s 58 - (1) An agency decides an access application for government information by: (a) deciding to provide access to the information, or (b) deciding that the information is not held by the agency, or (c) deciding that the information is already available to the applicant (see section 59), or (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or (e) deciding to refuse to deal with the application (see section 60), or (f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact. Note. These decisions are reviewable under Part 5. (2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for. (3) If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired.
15. In exercising functions under the Act s 3(2) instructs that - It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
16. Section 73 requires that access be unconditional. Section 78 is concerned with the form of access. It provides - (1) Access to government information in response to an access application may be provided in any of the following ways: (a) by providing a reasonable opportunity to inspect a record containing the information, (b) by providing a copy of a record containing the information, (c) by providing access to a record containing the information, together with such facilities as may be necessary to enable the information to be read, viewed or listened to (as appropriate to the kind of record concerned), (d) by providing a written transcript of the information in the case of information recorded in an audio record or recorded in shorthand or other encoded format. (2) The agency must provide access in the way requested by the applicant unless: (a) to do so would interfere unreasonably with the operations of the agency or would result in the agency incurring unreasonable additional costs, or (b) to do so would be detrimental to the proper preservation of the record, or (c) to do so would involve an infringement of copyright, or (d) there is an overriding public interest against disclosure of the information in the way requested by the applicant. Note. Decisions about how to provide access are reviewable under Part 5.
17. Section 80 sets out a series of decisions that are reviewable decisions under the Act. It provides - The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part: (a) a decision that an application is not a valid access application, (b) a decision to transfer an access application to another agency, as an agency-initiated transfer, (c) a decision to refuse to deal with an access application (including such a decision that is deemed to have been made), (d) a decision to provide access or to refuse to provide access to information in response to an access application, (e) a decision that government information is not held by the agency, (f) a decision that information applied for is already available to the applicant, (g) a decision to refuse to confirm or deny that information is held by the agency, (h) a decision to defer the provision of access to information in response to an access application, (i) a decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant), (j) a decision to impose a processing charge or to require an advance deposit, (k) a decision to refuse a reduction in a processing charge, (l) a decision to refuse to deal further with an access application because an applicant has failed to pay an advance deposit within the time required for payment, (m) a decision to include information in a disclosure log despite an objection by the access applicant (or a decision that the access applicant was not entitled to object).
18. A person aggrieved may seek a review by the Tribunal (s 100). Such applications are to be made within 8 weeks of the decision (s 101(1)) or within 4 weeks of the completion of a review by the Information Commissioner (s 101(2)). The Tribunal has power to extend the time for the making of a review application under s 101(3) when it is of the opinion that the person making the application, "has provided a reasonable excuse for the delay in making the application."
19. Once a decision is subject to review before the Tribunal it cannot be the subject of a review by the Information Commissioner (s 98).
20. In any review of a reviewable decision s 105 places the burden of justifying the decision on the agency concerned. It provides - (1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section. (2) If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review. (3) If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review.
21. The Tribunal's function on review under s 63 of the Administrative Decisions Review Act 1997 is to make the correct and preferable decisions having regard to the material before it before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.
22. Section 107 sets out the procedure to be followed by the Tribunal in dealing with public interest considerations. It relevantly provides - (1) In determining an application for NCAT review, the NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. (2) On an NCAT review, the NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of the NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. …

Issues requiring determination

1. The following issues require determination: 1. The adequacy of the searches performed by the Agency in response to P's amended access application. 2. Whether there is a conclusive presumption of an overriding public interest consideration against disclosure of the information claimed by the Agency to be privileged from production in legal proceedings on the ground of client legal privilege or contempt. 3. Whether there is, on balance, an over overriding public interest consideration against disclosure of the information which the Agency claims could reasonably be expected to reveal a person's personal information. 4. Whether the Agency has properly withheld information from P on the grounds it is not relevant.

Adequacy of Search

1. Section 53 of the GIPA Act sets out the extent of an agency's obligation to search for the information for which access has been requested - (1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. (2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency. (3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically. (4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures. (5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.
2. In determining whether an agency has conducted an adequate search accepted approach is to determine: 1. whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency; and if so, 2. whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case. See Shepherd and the Department of Housing, Local Government and Planning (1994) QI Cmr 7; 1 QAR 464; Camilleri v Commissioner of Police, New South Wales Police Force [2012] NSWADT 5, Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19, Beer v Commissioner of Police NSW Police Force [2013] NSWADT 243; and Serag v Commissioner of Police, NSW Police Force [2015] NSWCATAD 67,
3. P has not filed with the Tribunal any material or submissions directly addressing what information is missing or the issue of adequacy of search. In an email to the Agency's solicitors dated 12 February 2016 she wrote: I am requesting all documents which may contain information about me. These documents may not be stored electronically. There may have been an investigation subsequent to my resignation in 2007. The people involved in this investigation may have been [7 names]. I was also assessed by a psychiatrist in 2008. I would like all the documents associated with this assessment. These documents may not be stored electronically.
4. This, as the Agency pointed out, significantly expands the scope of P's narrowed request for information to include information relating to persons other than herself. In my view, she is confined to seeking information within the scope of her request as narrowed at the Planning Meeting on 22 September 2015.
5. A consideration of the open statements filed by Julie Dunn, the Rights to Information Officer at the Agency, reveals that the following searches have been performed at the Agency with respect to P's amended access application. In September 2015 searches were made of the Groupwise email system used by the Agency until April 2013, Microsoft Outlook (used since April 2013) and of the Incident Identification Management System. Ms Dunn identified these systems as likely to contain the information sought. The search was made over the date range March 2007 to 22 September 2015 using four variations of P's name and the words "criminal allegations" as search terms.
6. Ms Dunn also sent an internal direction to relevant employees of the Agency on 9 September 2015 requesting they conduct a search for documents specified in P's original request, and supply her with the results of that search. She said that she had reviewed all hardcopy documents returned as a result of those searches on 24 September2015, to determine what was within the scope of the original and amended scope of the request.
7. P has not provided any material that points to information being held by the Agency the existence of which has not been disclosed by the Agency. She has not provided any material that points to the searches conducted by the Agency being insufficient or inadequate.
8. On the material before me I am satisfied that the search conducted by the Agency for information responsive to P's access application, as amended at the planning meeting on 22 September 2015, was sufficient.

The legal professional privilege claim

1. Sections 117, 118 and 119 of the Evidence Act 1995 set out the circumstances in which a document is privileged from production in legal proceedings. If information is contained in a document that is privileged, then s 14(1) and cl 5 of Schedule 1 of the GIPA Act provide that the information is conclusively presumed to give rise to a public interest consideration against disclosure.
2. In this case a lot of the material captured by P's access requests related to communications relating to the provision of information for the purpose of obtaining or discussing legal advice, and between the Agency and its external lawyer John Blackwell, with respect the FOI proceedings before the ADT and the Appeal Panel of the ADT in 2007. It also captured some similar information with respect to communications with the Agency's present lawyer Henry Davis York relating to these proceedings.
3. Section 118 of the Evidence Act 1995 is concerned with legal advice privilege. It 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.
4. A 'dominant purpose' is one that predominates over other purposes; it is the prevailing or paramount purpose: FCT v Pratt Holdings at 279-280 per Kenny J at [30], AWB v Cole [2006] FCA 1234 per Young J at [44]. When applying the dominant purpose test an appropriate starting point is to ask 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 per Finn J v; AWB v Cole [2006] FCA 1234 per Young J at [44].
5. Section 119 of the Evidence Act 1995 deals with litigation privilege. It 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 between the client and another person, or between a lawyer acting for the client and another person, that was made, or (b) the contents of a confidential document (whether delivered or not) that was prepared, for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.
6. Section 117 contains definitions of confidential communication, confidential document, client and lawyer. Relevantly it provides: (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: (a) an Australian lawyer, and (b) an Australian-registered foreign lawyer, and (c) an overseas-registered foreign lawyer or a natural person who, under the law of a foreign country, is permitted to engage in legal practice in that country, and (d) an employee or agent of a lawyer referred to in paragraph (a), (b) or (c).
7. I am satisfied that Mr Blackwell and the relevant members of Henry Davis York are Australian Lawyers.
8. I have read with care all the documents falling within the scope of P's amended access application, whether released or disclosed. I am satisfied that all the documents for which a claim for legal professional privilege is made are the subject of either litigation privilege or client legal privilege. For the avoidance of doubt this finding relates to documents 1, 9, 10, 11, 16, 19, 21, 22, 23, 24, 25, 29, 30, 31, 33, 34, 35, 37, 44, 50, 52, 56, 60, 71, 80, 81, 82, 83, 84, 90, 105, 107, 122, 136, 137, 149, 154, 156, 157, 167, 171, 173, 175, 177, 178, 182, 186, 187, 188, and 190.
9. As such, all of that information is conclusively presumed to be the subject of an overriding public interest against disclosure: see s 14(1).

Is there an overriding public interest consideration against disclosure of information otherwise withheld by the Agency?

1. The Tribunal's task is to determine whether there is an overriding public interest against disclosure of the information in accordance with the Act, paying due regard to the principles in s 16. This requires that the public interest consideration both in favour and against disclosure be identified, so that the question of whether, on balance, the public interest considerations against disclosure outweigh those in favour of disclosure can be determined. Unless there is an overriding public interest against disclosure the presumption in favour of disclosure applies (s 5).
2. A large amount of information was released to P subject to deletions of personal information relating to others. This did not include the names of employees of the Agency, but did include the names and addresses of individuals who are not employees of the Agency, as well as personal details relating to some employees, such as their private email addresses.

Public interest considerations in favour of disclosure.

1. Public interest considerations in favour of disclosure are set out in section 12. The section makes it clear that those considerations are not limited.
2. In my view the following public interest considerations in favour of disclosure apply when considering the documents in issue -

• The general public interest in favour of disclosure of government information.
• Some of the information is personal information of the person to whom it is to be disclosed.
• Disclosure of the information could reasonably be expected to enhance government accountability in the management of its human resources, and in particular provide transparency and accountability with respect to employee selection procedures.
• Disclosure of the information could reasonably be expected to inform the public about the operations of the Agency, particularly its efficient and fair management of employee discipline, of issues relating to bullying at work, and of interpersonal relations between employees of the Agency that affect the efficiency of tis operations.

1. P made no submissions with respect to the public interest in favour of disclosing information held by the Agency to her.

Public interest considerations against disclosure

1. The public interest considerations against disclosure are limited to those set out in the Table to s 14. Because the agency bears the onus of justifying its decision to refuse P access to the documents, it has the burden of establishing that the public interest considerations against disclosure it relies on apply. It also bears the burden of establishing that, on balance, they outweigh the public interest considerations in favour of disclosure.
2. In its decision the agency identified the public interest considerations against disclosure upon which it relied. It is necessary to consider each of those public interest considerations against disclosure separately and then to consider whether they could reasonably be expected to exist with respect to the information in issue.

Could reasonably be expected

1. Mention must be made of the requirement, common to all the public interest considerations against disclosure in the Table to s 14, that disclosure "could reasonably be expected to" have the nominated effect. The words "could reasonably be expected to" have been the subject of considerable judicial consideration with respect to their use in the Freedom of Information Act 1989 and the Freedom of Information Act 1982 (Cth). They are to be given their ordinary meaning: see Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 28 and Attorney-General's Department v Cockcroft (1986) 10 FCR 180. In that case, Bowen CJ and Beaumont J explained, at 190, that the words - ... require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like.
2. Hayne J pointed out in McKinnon v Secretary, Department of Treasury [2006] HCA 45 that, at [61] - … when their Honours said, as they did, that the words required a "judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous," to expect certain consequences, they are not to be understood as having used the latter expression as a paraphrase of the former. Rather, they are to be understood, and have since been understood, as doing no more than drawing an emphatic comparison. To do more would have been, as their Honours correctly said, "to place an unwarranted gloss upon the relatively plain words of the Act". And the same approach should be taken to the expression "reasonable grounds" when it is used in s 58(5) of the Act. See also XZ v Commissioner of Police, NSW Police Force [2009] NSWADTAP 2.
3. It is necessary for the Agency to demonstrate, with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect.

To reveal an individual's personal information

1. The Agency has redacted personal information from a significant number of documents which it released to the applicant. That personal information can be characterised as relating to:

• The identity of person who are not employees of the Agency - their names and other identifying information has been deleted.
• Certain personal information relating to employees of the Agency whose names have been disclosed, such as their private phone number and email addresses.

1. Personal information is defined in clause 4 of Schedule 4 - (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) 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.
2. The Information Commissioner may issue guidelines about public interest considerations against disclosure, to assist agencies, but may not add to the list of considerations (s 14(3)). The Office of the Information Commissioner has issued Guideline 4 - Personal information as a public interest consideration under the GIPA Act. Section 15(b) requires that decision makers have regard to guidelines.
3. Reveal' is defined in Clause 1 of Schedule 4 - reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).
4. It is important to point out that in a number of documents in issue the Agency has deleted the name of an employee of an investigations company, and the name of that business (see for example documents 39, 47, 48, 54, 86, and 148 - 39 and part of 48 are repetitions). The business name is not personal information. Moreover, the names of both are already in the public domain having been disclosed in the decision of the Appeal Panel in P v Greater Western Area Health Service (GD) [2007] NSWADTAP 57. As such the release of that information would not reveal personal information, and its redaction from documents provided to P is not justified.
5. I am satisfied that significant weight should be given to protection of personal information outlined in paragraph 64 above. In my view the need to protect such information from disclosure outweighs the public interest considerations in favour of disclosure that I have identified. This is the case with most of the documents with respect to which to which the personal information public interest consideration against disclosure has been claimed.
6. There are however a number of exceptions to this general ruling. 1. First, specific mention needs to be made of a number of deletions from documents 39, 48, and 79 specifically pages 279 to 281, 304 to 306, and 595 to 597, which replicate each other. They are copies of an internal brief regarding an alleged complaint from P. They contain a number of deletions made on personal information grounds. In my view the only personal information (other than P's personal information) in that document consist of the names of an employee with whom she was said to have been involved, and that of another employee against whom she made allegations. The redactions made from that document extend well beyond deleting those names. Insofar as they extend beyond the deletion of those names alone, I do not agree that there is an overriding public interest consideration against disclosure of that information. It should be released. I add with respect to that information that, while claiming in the schedule of documents that s 74 and s 60(1)(b) apply to documents 48 and 79, and Clause 4 of Schedule 1 (contempt) applies to document 39, I am not satisfied on the material provided by the Agency that any of those claims are made out. 2. Attention also needs to be directed to document 54, page 352, from which a sentence has been deleted, as I understand it on personal information grounds. The personal information in that sentence relates to P alone. It does not disclose the personal information of any other person. As such I do not agree that that there is an overriding public interest consideration against disclosure of that information. 3. There are a number of documents, such as meeting agenda's or minutes, in which P has been one of many items of discussion. The convention adopted by the Agency in disclosing this information has been to copy the opening page disclosing the nature of the meeting or agenda, and then to only disclose those parts of the document that relate to her in accordance with s 74. I agree that this is a suitable method of disclosure. The Agency, however, did not follow this convention when disclosing the ICU Management Meeting Minutes in document 114. The relevant heading from page 762 should also have been released to provide context to page 766.

To prejudice any person's legitimate business, commercial, professional or financial interests

1. The Agency says that the release of certain information in documents 194 to 196 could be reasonably expected to prejudice any person's legitimate business, commercial, professional or financial interests. In summary the information in issue consists of:

• In document 194 - A quote addressed to P with the redacted information being the quote reference, quantity and price.
• In document 195 - An email referring to the above quote from which the quotation number and conditions of sale have been relevantly redacted.
• In document 196 - An email relating to a training course in which P was to participated from which the session numbers have been redacted.

1. There is no specific evidence filed by the Agency which goes to demonstrate how the release of any of this information could possibly prejudice the legitimate interest of any person. The possibility that it might do so strikes me as fanciful.
2. The Agency bears the burden of persuading me that its decision is the correct and preferable decision. It has not done so in this regard.

Conclusion

1. It can be seen form the above that while I am in substantial agreement with the decision of the Agency, I consider that some additional documents should be released to P.
2. The simplest way for this to be achieved is to set aside the decision under review, and remit it to the Agency for reconsideration in accordance with these reasons, such reconsideration to be completed within 30 days of publication.

Formal orders

1. The Tribunal makes the following orders: 1. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 and of its own motion the Tribunal, until further order, restricts the disclosure of the applicant's name. 2. Set aside the decision under review, and remit it to the Agency for reconsideration in accordance with these reasons, such reconsideration to be completed within 30 days of publication. 3. Liberty to apply with respect to order 1 within 14 days of publication. 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

Amendments 17 August 2016 - Amendment to document/page numbers in paragraphs 68, 70 and 71. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 August 2016