Singh v Legal Aid Commission

Consideration

1. The Tribunal's task under section 63 of the Administrative Decisions Review Act 1997 is to determine what the correct and preferable decision is, having regard to the material before it.
2. As will be apparent from what I have set out above, much of the Applicant's case is focussed on the approach taken by the Respondent in dealing with his access application, and in particular the approach adopted by Ms McAtee and Ms Gough. However, these are not relevant consideration to be taken into account by the Tribunal. The Tribunal's task is to investigate the claim de novo. The question for the Tribunal is whether the correct and preferable decision is to refuse to deal with the application on the basis that dealing with the application would require an unreasonable and substantial diversion of the agency's resources. The approach taken by Ms McAtee and Ms Gough will not be relevant to that question. Similarly, the conduct of officers of the Respondent is not relevant to the Tribunal's assessment.
3. The Applicant also referred to the conduct of the Respondent in regard to other proceedings and other internal processes, the cost incurred by the agency in conducting those matters and the Respondent's capacity to absorb those costs. He sought to link those costs to the Respondent's assertion that it is a small agency, which has limited resources available for dealing with applications under the GIPA Act. The Applicant contends that the Respondent's assertion that it is a small agency with limited resources strains credibility when it is able to allocate resources in another context.
4. I do not agree with that aspect of the Applicant's argument.
5. The Applicant has raised issues with respect to the accuracy of the estimates of the resources needed to address that access application. He asserts that the Respondent's estimate that it would take 9 working days to identify the relevant documents and further time in considering each document to identify whether there is an overriding public interest against disclosure, undertaking consultation with third parties, and preparing a determination is not supported by evidence. He says that the contentions are pure conjecture and speculation and strains credibility.
6. I do not agree with the Applicant's argument.
7. As noted, section 105 of the GIPA Act places the burden of justifying the decision on the Respondent. Ms McAtee has provided evidence in support of the Respondent's contention. Ms McAtee's estimate is based on her experience in determining other applications. She explained how the estimate was calculated.
8. While the Applicant sought to discredit that evidence his argument is based on the view that the decision to refuse his request was out of malice. He did not seek to challenge Ms McAtee's evidence through cross-examination and he did not attempt to provide an alternative estimate of the time needed to determine his application.
9. In regard to the issue of whether the Cianfrano factors are relevant to a request under the GIPA Act, I agree with the view expressed by Judicial Member Molony in Colefax v Department of Education and Communities (No 2). While the Cianfrano factors were devised in relation to an application under the FOI Act, it is my view that most of those considerations are equally applicable to a consideration of whether a request under the GIPA Act constitutes an unreasonable and substantial diversion of an agency's resources.
10. After considering the material before me it is my view that the Respondent's estimate is a reasonable one.
11. In deciding whether to deal with an application that would require an unreasonable and substantial diversion of an agency's resources the agency is entitled to consider two or more applications as the one application if the agency determines that the applications are related and are made by the same applicant or by persons who are acting in connection with the applicant. That power is found under section 60 (3) of the GIPA Act. In this regard the Respondent was entitled to take account of other related requests that the Applicant had made.
12. I note the Applicant's contention that he is only a repeat applicant to the Respondent by virtue of his employment. This does not alter the fact of his repeated applications and it does not provide a basis for rejecting the Respondent's "related applications" argument in assessing the resources already devoted to determining the applications.
13. Before refusing to deal with an access application on the basis that it would require an unreasonable and substantial diversion of resources the agency must give the applicant a reasonable opportunity to amend the application. Ms McAtee invited the Applicant to narrow the scope of his application; however he declined to do so.
14. The Applicant contends that the opportunity that Ms McAtee gave him to amend his application was a charade as the Respondent's senior management had already decided to refuse the application. I do not agree with the Applicant's contention on this point. In my view it is clear that Ms McAtee's invitation was genuine.
15. The Respondent contends that dealing with the application within the statutory timeframes would be a particularly onerous task for this small agency, which has limited resources available for dealing with applications under the GIPA Act.
16. I note that the section 60 discretion to refuse to deal with an application is based on an assessment of the resources that would be needed to deal with the application. It relates to the resources that are available to the Respondent and the available resources are solely within the control of the Respondent.
17. The power to refuse to deal with an application is a powerful one and should only be used as a last resort after making every attempt to assist an applicant in narrowing the request. Agencies should not rely on the power of refusal to process simply because their information management systems are poorly organised and documents take an unusually long time to identify and retrieve. It is one of the risks associated with the exercise of the section 60 discretion.
18. In the circumstances of this matter I do not consider that the Respondent has unreasonably restricted the resources available to deal with the Applicant's application.

Decision

1. I am satisfied that the estimate of the time to deal with the Applicant's application was made in good faith. I am also satisfied that the Respondent's determination to refuse to deal with the application was a reasonable one in the circumstances.
2. In my view, the correct and preferable decision is to affirm the Respondent's determination to refuse to deal with the application.

Background

1. The Respondent provided the following background information with respect to the access application: In September 2010, the Respondent's Human Resources section received a Workers Compensation Notification of Injury form for the Applicant. The Claim was forwarded to Allianz Australia Limited ("Allianz"). Allianz was the Claims Manager appointed for the Respondent by the NSW Self Insurance Corporation, who operates the Treasury Managed Fund ("TMF"). In May 2011, QBE Insurance (Australia) Limited ("QBE") was appointed by the TMF as the new Claims Manager for the Respondent. QBE instructed McLeans Lawyers to advise and appear in relation to the Applicant's application to the Workers Compensation Commission ("Commission"). QBE and McLeans Lawyers contacted Ms Lisa Staples, Injury Management Officer, to seek additional information or to seek the Respondent's attitude on a proposed course of action. McLeans Lawyers prepared an advice in relation to the Applicant's application, which was provided to QBE on 3 August 2011. On 5 September 2011, the Applicant's claim was listed for a Conciliation/Arbitration hearing in the Commission and was settled by the parties.4 In June 2012, following an earning capacity assessment in January 2012, payment of wages was declined. Following an independent medical examination in January 2013, in February 2013 the Applicant's claim was declined. In March 2012, the Applicant made a GIPA Act access application seeking information. In summary, the Applicant requested: (a) copies of all documents in relation to his workers compensation claim (b) tax invoices for payments made by the Respondent to medical professionals, Dr Lovric and Dr Gibson, and Medibank Health Solutions ("MHS") who provided reports in relation to the claim (c) copies of all documents in relation to the appeal to the NSW Workers Compensation Commission, including correspondence with the Respondent's lawyers. The Respondent determined the application on 9 May 2012. In summary, the notice of decision: refused access to (a) the personal mobile phone number of Clare Hamilton (the Respondent's Executive Director, Finance) on the basis that it is personal information; (b) the payment details on the invoices on the basis that it would prejudice the legitimate business interests of MBS, Dr Lovric and Dr Gibson, as well as reveal their personal information; and (c) on the basis that the material was privileged. The Applicant sought review of the decision by the Information and Privacy Commission ("IPC"). The IPC determined the review by recommending that the Respondent reconsider its original decision and make a new decision by way of internal review in relation to (a) whether the mobile phone number is Ms Hamilton's "personal information"; (b) whether the payment details are "personal information" of Dr Lovric and Dr Gibson, and whether disclosure could reasonably be expected to prejudice their business, commercial, professional or financial interests; and (c) as to whether the Respondent maintains that there is legal professional privileged attached to the information and whether it will waive privilege, as the proceeding referred to in its decision are now finalised. The IPC's report also recommended that the Respondent conduct another search for additional information within the scope of the Applicant's original application and refund the Applicant's application fee. The report asked that the Respondent advise the IPC and the Applicant by 15 March 2013 of how it intended to act in response to the recommendations. On 28 March 2013, the Respondent wrote to the Applicant informing him that based on the recommendations of the IPC, the Respondent would refund the $30 GIPA application fee, would conduct an additional search and would conduct an internal review of the original decision. On 2 April 2013, the Respondent refunded the $30 application fee to the Applicant. On 5 April 2013, before the Respondent had conducted the internal review, the Respondent received notification of the Applicant's application to the Administrative Decisions Tribunal ("ADT"). The Respondent then advised the Applicant that it would not be conducting an internal review as s. 82(5) of the GIPA Act prohibits an agency from conducting an internal review of a decision that is or has been the subject of review by the ADT.
2. The Respondent subsequently undertook a further search of its records and identified a further 58 documents as falling within the scope of the access application.

Outstanding Issues

1. There is general agreement between the parties in regard to the outstanding issues in this matter. Respondent identified the documents that remain in dispute in the following terms: a. an advice prepared by McLeans Lawyers on instructions from QBE, together with an email enclosing the advice (Document 7), and an email reporting on a Conciliation/Arbitration hearing in the Workers Compensation Commission on 5 September 2011 at which the matter settled (Document 8); b. Clare Hamilton's mobile phone number (Document 9); and c. details of payments made by the Respondent to MHS for two medical assessments prepared by Dr Lovric and Dr Gibson (Document 10). d. 56 emails which are confidential communications prepared for the purpose of seeking legal advice; and 2 emails between staff of the Respondent, disclosure of which would reveal false or unsubstantiated allegations about a person which are defamatory (Supplementary decision documents).

The Respondent's Case in Matter Number 133096

1. The Respondent relies on evidence provided by Bruce McLean, Clare Hamilton, Lisa Staples, Lydia Frances Thomas and Sally McAtee. Ms Johnson also provided a number of separate outlines of submissions on behalf of the Respondent.
2. The Respondent's position in relation to a number of the documents that have been withheld has changed throughout the course of these proceedings. The changes have largely been in response to discrepancies in the Respondent's case that have been highlighted by the Applicant.
3. The changed position is reflected in Ms Johnson's submissions and consequently the ultimate position is difficult to ascertain. I make no criticism of Ms Johnson in this regard. The difficulty appears to stem from issues within the Respondent.
4. Ms Johnson made detailed submissions in relation to the issue of Legal professional privilege. She submitted that under clause 5 of Schedule 1 to the GIPA Act there is a conclusive presumption of an overriding public interest against disclosure of the information contained in the emails.
5. In relation to the emails between McLeans Lawyers and the Respondent, the Respondent says that QBE was the "client" of McLeans Lawyers and that QBE acted as agent for the Respondent's insurer, the TMF.
6. In relation to the emails between Holding Redlich and the Respondent, and the emails between Lisa Staples and Sally McAtee dated 7 and 14 July 2011, the Respondent accepts that it bears the onus of establishing that:
7. the author of the legal advice is a lawyer and the recipient was its client;
8. the communication is a confidential communication; and
9. the "dominant purpose" of the legal advice was the provision of professional legal services. The lawyer - client relationship
10. The Respondent presented evidence from Frances Thomas of the legal practice Holding Redlich to establish that, at the time of authoring the legal advice, Ms Thomas was a solicitor with an unrestricted practising certificate in NSW and that she had carriage of the matter for Holding Redlich. The Respondent submits that it was Ms Thomas's 'client'. It relies on the definition of 'client' in section 117 of the Evidence Act. Further, it submits that Ms McAtee was an Australian lawyer employed by the Respondent to provide in-house legal services and that Lisa Staples was Ms McAtee's client.
11. In AWB Ltd v Cole (No 5) (2006) 155 FCR 30, Young J summarised the principles relating to communications between government agencies and their salaried legal officers: "Legal professional privilege is capable of attaching to communications between a salaried legal adviser and his or her employer, providing that the legal adviser is consulted in a professional capacity in relation to a professional matter and the communications are made in confidence and arise from the relationship of lawyer and client: Waterford v Commonwealth (1987) 163 CLR 96..."
12. In Re McKinnonn and Secretary, Department of Foreign Affairs and Trade [2004] AATA 1365; (2004) 86 ALD 780, Downes J pointed out at paragraph [51] that the real test is "whether the advice had the necessary quality of being independent advice."
13. In response to the Applicant's submission that Ms McAtee was not able to give independent advice in 2011 because she later went on to determine applications by the Applicant under the GIPA Act, the Respondent submits that it was appropriate for Ms Staples to seek Ms McAtee's legal advice in her corporate counsel role. The fact that Ms McAtee later determined applications under the GIPA Act does not mean that Ms McAtee was not capable of giving independent legal advice to Ms Staples in relation to a separate matter at an earlier time.
14. The Respondent relies on Ms McAtee's statement that: "Apart from the two emails dated 7 July 2011 and 14 July 2011 from Lisa Staples to me, my only involvement in Mr Singh's workers compensation claim or any related matters in my capacity as corporate counsel was the provision of a brief verbal advice to Nohad Ghibely recorded in his email to Vicki Leaver on 3 August 2011".
15. The Respondent submits that there can be no discernible basis for the Applicant's submission that Ms McAtee was conflicted by her prior involvement in his application in the Workers Compensation Commission in such a way as to be unable to determine his applications under the GIPA Act.
16. Further, the Respondent's evidence is that Ms McAtee is an in-house solicitor providing corporate counsel services to the Executive and other staff of the Respondent. She does not provide legal aid to clients of the Respondent. Confidential Communication
17. The Respondent relies on the definition of 'Confidential Communication' in section 17 of the Evidence Act: 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.
18. The Respondent contends that the emails from Ms Thomas were provided under the auspices of confidentiality. Further to the express obligation, Ms Thomas was under an implied obligation of confidentiality in respect of professional communications to the Respondent, by reason of the lawyer-client relationship. A lawyer has a duty to maintain a client's confidences: Baker v Campbell (1983) 153 CLR 52 at 65; r. 2, Revised Professional Conduct and Practice Rules 1995.
19. The Respondent further contends that the Courts have readily inferred the confidentiality of communications between a lawyer and client concerning the subject matter of the lawyer's retainer "without difficulty": Brookfield Multiplex Ltd and Anor v International Litigation Funding Partners Pty Ltd and Ors (No 2) (2009) 256 ALR 416 at 418-419; State of New South Wales v Jackson [2007] NSWCA 279 at paragraph [37].
20. The Respondent relies on the statements of Ms Thomas and Ms McAtee and the emails themselves as evidence that the communications were made in Ms Thomas' and Ms McAtee's professional capacities as the Respondent's lawyer and in-house lawyer, respectively. In addition, the Respondent contends that the circumstance of the Applicant's complaint and the nature and terms of the documents would support the confidential nature of the communication. Dominant Purpose
21. The Respondent contends that the general principles applicable to the 'dominant purpose test' are uncontroversial: (a) a "dominant purpose" is "one that predominates over other purposes: it is the prevailing or paramount purpose"; (b) the dominant purpose test is satisfied if a document is brought into existence for the purpose of a client being provided with professional legal services, notwithstanding that some ancillary or subsidiary use of the document is contemplated at the time; (c) the dominant purpose test is objectively assessed; (d) the evidence of the person creating the communication is highly relevant and often decisive, but not determinative. Waiver
22. The Respondent relies on the decision in Mann v Carnell(1999) 201 CLR 1 at page 13 in regard to the relevant principles of waiver: "Waiver may be expressed or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is 'imputed by operation of law'. This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege ... What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.
23. At page 15 their Honours continued: "Disclosure by a client of confidential legal advice received by the client, which may be for the purpose of explaining or justifying the client's actions, or for some other purpose, will waive privilege if such disclosure is inconsistent with the confidentiality which the privilege serves to protect ... considerations of fairness may be relevant to a determination of whether there is such inconsistency."
24. Clause 5 of Schedule 1 of the GIPA Act directs specific attention to whether the person in whose favour the privilege exists has waived the privilege. The Respondent says that it has considered whether to waive privilege in this case and has decided not to do so. That decision is not a reviewable decision. In the present application, the Respondent submits that there is no evidence of an express waiver.
25. The Respondent rejects the Applicant's submission that privilege over the documents has been lost due to the misconduct of the Respondent and its current insurer QBE, as false and without any basis. The Respondent denies that it engaged in any misconduct or abuse of power.
26. The Respondent relies on the content of the communications between it and McLeans Lawyers and between it and Holding Redlich. The Respondent submits that there is no evidence to support the Applicant's assertions.
27. The Respondent further submits that in the absence of any evidence which would support a finding that the communications were prepared in furtherance of an abuse of power, no waiver can be demonstrated and the conclusive presumption in Clause 5 of Schedule 1 of the GIPA Act continues to apply to the documents.

The Applicant's Case in Matter Number 133096

1. The Applicant relies on his own evidence and he also provided a number of separate detailed outlines of written submissions.
2. The Applicant sought to establish a link between these proceedings and other proceedings between the parties. While I accept that the Applicant's access application is linked by its subject matter to those other proceedings, I do not accept that the Applicant has succeeded in establishing any other link.
3. I found much of the Applicant's material to be irrelevant to these proceedings and much of his legal argument to be misguided.
4. In relation to the documents over which legal privilege is claimed, the Applicant submits that the Respondent's client legal privilege claim is improper. Alternatively, he submits that client legal privilege has been lost due to misconduct or abuse of power of both the Respondent and its insurer QBE. He questions Ms McAtee's independent and asserts bias against him on the part of many senior officers of the Respondent.
5. The Applicant relies on section 125(1) (b) of the Evidence Act 1995 which provides that privilege is lost where a party or parties knew or ought to have known that communication or the contents of a document was made or prepared in furtherance of abuse of power. Section 125(3) states power means power conferred by or under an Australian law.
6. He submits that "abuse of power" includes improper exercise of power or exercising it in bad faith and/or for an ulterior purpose.
7. He alleges that senior managers of the Respondent provided false and misleading allegations in relation to his workers compensation claim. He further alleges that, based on those allegations, his compensation claim was declined. He contends that this was an abuse of power and was borne out by the Respondent's subsequent acceptance of liability.
8. It is his submission that at all material time the managers knew that their allegations against him were false and their conduct was motivated by improper purposes, including their concerted effort to force his resignation. He contends that those officers had acted improperly by making various false allegations regarding his work performance for the purposes of discrediting his grievance complaint against them and his workers compensation claim against the Respondent.
9. The Applicant also provided other examples of conduct by senior managers of the Respondent which he contends constituted abuse of power.

Consideration

1. The material before me in this matter is voluminous, spanning several hundreds of pages of documents. I have read and taken account of the material presented by the parties and the submissions made on their behalf. I have taken it all into account even though I may not refer specifically to all the evidence and material in these reasons.
2. I have been provided with a copy of each of the documents that is in dispute. In relation to much of the material it is apparent from the face of the documents that it concerns the provision of confidential legal advice from a practising solicitor to a client. However, in relation to some of the material the relationship between the author and the recipient is not clear. For this reason, the statements on which the Respondent relies are necessary to establish either that relationship or the circumstances in which the document was prepared.

Document 7

1. It is apparent from the face of Document 7 that it is legal advice and that it contains information the dominant purpose of which is the provision of confidential legal advice. The Respondent's evidence establishes that the advice was from a practising solicitor retained by QBE on behalf of the Respondent.
2. I accept that this advice would be privileged from production in legal proceedings on the ground of client legal privilege. As such, there is a conclusive presumption of an overriding public interest against disclosure of the advice pursuant to clause 5 of Schedule 1 to the GIPA Act.
3. However, the Respondent acknowledges that a disclosure to the Applicant had the effect of waiving legal professional privilege over document 7. As a result, the Respondent does not press its decision to refuse access to the legal advice and seeks an order from the Tribunal for it to release the document to the Applicant.
4. As the Respondent has conceded the waiver, there is no conclusive presumption of an overriding public interest against disclosure. In the circumstances the correct and preferable decision is that the document is to be released.

Document 8

1. It is apparent from the face of Document 8 that it is as described by the Respondent i.e. an email dated 5 September 2011 from Lauren McLean to Katy Marasovic (copied to Nohad Ghibely and Lisa Staples. Document 8 sets out legal conclusions and advice as to the appropriate resolution of the Workers Compensation Commission proceedings, given to the Respondent by its legal representatives outside court at the hearing on 5 September 2011.
2. The Respondent submits that there has been no waiver of privilege over Document 8. I agree with that contention. Contrary to the Applicant's argument, it is my view that the waiver in relation to Document 7 does not extend to Document 8. Document 8 is a confidential communication between the client and a lawyer acting for the client and contains information the dominant purpose of which is to provide the client with professional legal services relating to an Australian proceeding in which the client is a party.
3. The Applicant asserts that any privilege in relation to Document 8 has been lost due to misconduct in relation to the Workers Compensation Commission proceedings.
4. The Applicant has provided a significant amount of material in relation to the Respondent's conduct of those proceedings. It is readily apparent from the material that there is significant animosity between the Applicant and several officers of the Respondent. I agree that the material that the Applicant has provided suggests that there were irregularities on the Respondent's part and that the actions of some staff members bring no credit to the Respondent.
5. However, where an allegation is made that privilege has been lost by misconduct, the onus is on the party making the allegation to prove the misconduct. Notwithstanding my comment in relation to irregularities suggested by the material on which the Applicant relies, it is my view that the Applicant has not provided evidence of misconduct or abuse of power on the part of any of the officers of the Respondent or its insurer that would warrant a finding that privilege had been waived.
6. I note that the Respondent has considered whether to waive privilege and has decided not to do so. Contrary to the Applicant's argument, the Tribunal cannot review that decision.
7. It follows therefore that there is a conclusive presumption of an overriding public interest against disclosure of the information contained in the reporting email.

Document 9

1. The Applicant was provided with a copy of Document 9 with Clare Hamilton's mobile phone number redacted. The Respondent contends that the mobile phone number used by Ms Hamilton is Ms Hamilton's personal information. The mobile phone number is used for both work emails and personal phone calls. The Respondent relies on Ms Hamilton's statement as evidence to support this assertion. Ms Hamilton's evidence is that the mobile number is not part of her work contact details. The Respondent pays for the data component only and Ms Hamilton reimburses it for call costs.
2. I agree with the Respondent's submits that there are no public interest considerations in favour of disclosure of the mobile phone number, apart from the general public interest in favour of documents of government information in section 12(1), and disclosure of Ms Hamilton's mobile phone number would reveal her personal information. There is a public interest consideration against disclosure of the mobile phone number pursuant to clause 3(a) of the table to section 14 of the GIPA Act. On balance, it is my view that this consideration outweighs the public interest considerations in favour of disclosure of the mobile phone number.
3. It follows therefore that the decision to refuse access to Ms Hamilton's mobile phone number is the correct and preferable one.

Document 10

1. Document 10 contains the details of payments made by the Respondent to MHS concerning two medical assessments of the Applicant prepared by Dr Lovric and Dr Gibson. The Respondent further contends that, on balance, there is an overriding public interest against disclosure of the payment details on the basis that the information may prejudice their legitimate business, commercial, professional or financial interests.
2. The Respondent initially submitted that disclosure of payment details contained in a tax invoice prepared by MHS would reveal details of the amounts paid to MHS for medical assessments and reports. It argued that pursuant to clause 4(d) of the table to section 14 of the GIPA Act there is a public interest consideration against disclosure of the information because disclosure of the payment details could reasonably be expected to reveal fee structure information of third parties which is of commercial and professional value to those third parties, which is not publicly available information.
3. It is my understanding that the Respondent subsequently decided to provide a copy of Document 10 to the Applicant.
4. If I am wrong in that understanding, it is my view that the Respondent has not made out its case in relation to clause 4(d). No evidence has been provided from MHS, Dr Lovric or Dr Gibson in relation to the assertion. In my view, the age of the document is such that the commercial and professional value of the information would be minimal.
5. In the circumstances the correct and preferable decision is that the document is to be released.

Supplementary decision documents

1. In May 2013 the Respondent conducted additional searches in response to the Applicant's access application. A number of additional documents were located in that search. The Respondent provided the Applicant with access to a further 7 documents and refuse access to 58 documents. The Respondent provided the Applicant with a schedule that identified the additional documents that were located and the basis on which the documents that were not released had been withheld. The Respondent subsequently decided to release 4 further documents in full.
2. The Respondent has provided the Tribunal with a copy of each of the documents that remain in issue, in an unredacted form, on a confidential basis. The Applicant has not been given a copy of this unredacted material.
3. The Respondent submitted that access should be refused to: a. documents 7-54, 56-64 on the basis that they would be privileged from production in legal proceedings on the ground of client legal privilege; and b. document 55 on the basis that disclosure of the information would reveal false or unsubstantiated allegations about a person that are defamatory.
4. In relation to the supplementary decision documents to which access was refused either in whole or in part on the basis of legal professional privilege, the Respondent submits that: a. documents 13, 35, 37-40, 43, 45, 50-53, 59-60, 62 and 64 are, or contain extracts of, communications between a lawyer and client the dominant purpose of which is the provision of confidential legal advice from a practising solicitor to her client ("Category A"). b. document 7 is an email between a client and an in-house lawyer, the dominant purpose of which is the client being provided with professional legal services relating to an Australian proceeding in which the client is a party ("Category B"). c. documents 11-12, 15, 23-24, 29, 34, 41-42, 49 and 63 are emails between a client and another person, the dominant purpose of which is the client being provided with professional legal services relating to an Australian proceeding in which the client is a party ("Category C"). d. documents 8-9, 18, 21-22, 25-28, 30-33, 35, 44, 46-48, 54 and 57-58 are, or contain extracts of, confidential communications between a client and a lawyer acting for the client and contains information the dominant purpose of which is the client being provided with professional legal services relating to an Australian proceeding in which the client is a party ("Category D").
5. As noted above, the Respondent has categorised the supplementary decision documents to which access was refused either in whole or in part on the basis of legal professional privilege as either Category A, B, C or D documents. I will adopt that categorisation for the purposes of this discussion. Category A documents
6. The Respondent contends that the Category A documents are communications between a lawyer and client the dominant purpose of which is the provision of confidential legal advice from a practising solicitor to her client. The emails include communications between the Respondent's staff and Ms Thomas, Lauren McLean or Bruce McLean of McLeans Lawyers, or communications with the Respondent's employees or QBE (the Respondent's insurer) which contain extracts of communications with Ms Thomas, Ms McLean or Mr McLean.
7. The Respondent submits that the dominant purpose test is applied by reference to the content of the communications. It further submits that the emails contain legal conclusions and advice as to the employment of the Applicant and the action to be taken by the Respondent with respect to the Applicant's employment circumstances. The emails also contain legal advice about the drafting of communications and strategy.
8. Accordingly, the Respondent submits that on the basis of their content and the evidence of Ms Staples, Mr McLean and Ms Thomas, documents 13, 35, 37- 40, 43, 45, 50-53, 59-60, 62 and 64 were created for the dominant purpose of the provision of legal advice and on this basis the conclusive presumption in clause 5 of Schedule 1 of the GIPA Act applies to those documents.
9. I have considered each of these documents. I agree with the Respondent's description of their content. I am satisfied that each of these documents attracts legal privilege.
10. I am satisfied that the Respondent has considered whether to waive privilege and has decided not to do so. The Tribunal cannot review that decision.
11. I am not satisfied that the Applicant has made out the allegation that privilege has been lost by misconduct. It is clear from the face of the documents that the Applicant's allegation is not justified. There is no basis for a finding that privilege had been waived.
12. It follows therefore that there is a conclusive presumption of an overriding public interest against disclosure of the information contained in the Category A documents. Category B document
13. The Respondent contends that document 7 is an email between a client and an in-house lawyer, the dominant purpose of which is the provision of professional legal services to the client relating to an Australian proceeding in which the client is a party.
14. The Applicant disputes the Respondent's claim for client legal privilege in relation to document 7 and cites the decision of Molony JM in Battin at paragraphs [37] - [38]. In Battin the Judicial Member stated: 37. It is incumbent on the person asserting the privilege to demonstrate that the dominant purpose for the communication in issue was the provision of legal advice. In the case of the GIPA Act reviews that is consistent with the burden placed on the Agency by s 105(1). 38. In some cases it will be obvious from an examination the written communication itself that the dominant purpose of the communication was the provision of legal advice. That is the case with the documents created after HERC revoked the research approval (documents 40, 42, 43, and 44). It is not however the case with the documents created before the revocation, where the precise nature of the communications, and of any advice sought, is unclear.
15. The Respondent disagrees that Battin has any application in this matter. Battin concerned a privilege claim over documents which were created or received by an in-house legal officer, and in circumstances where the documents did not obviously relate to the provisions of legal advice. No evidence as to the dominant purpose of the communications was given. The Tribunal made the following comments and findings in Battin, at paragraph [40]: The documents created before the revocation of the research approval by HERC (documents 1, 2, 3, 4, 7, 10, 11 ,12 and 15) do not obviously relate to the provisions of legal advice. The Agency has not adduced any evidence concerning the dominant purpose for which the communications were created. While there is a reference to legal advice having been sought in one of those documents, there is no indication of what advice was sought and no evidence that the provision of legal advice was the dominant purpose of the communications. The Agency has not put on any evidence that would justify that conclusion. As a consequence its claim for legal advice privilege with respect to documents 1, 2, 3, 4, 7, 10, 11,12 and 15 fails.
16. However, in this matter the Respondent relies on the content of document 7 and the evidence of Ms McAtee in support of its submission that it has discharged its onus that the conclusive presumption in clause 5 of Schedule 1 of the GIPA Act applies to the document. This is on the basis that document 7 was created for the dominant purpose of Ms Staples obtaining legal professional services from Ms McAtee.
17. I agree with the Respondent.
18. I am satisfied that the Respondent has considered whether to waive privilege and has decided not to do so. The Tribunal cannot review that decision.
19. The evidence establishes that Ms Staples was entitled to seek legal professional services from Ms McAtee. I am not satisfied that Ms McAtee has any conflict that would prevent her from offering impartial advice to Ms Staples. In any event, the advice was never provided. I am not satisfied that the Applicant has made out the allegation that privilege has been lost. It is clear from its face that document 7 was created for the dominant purpose of Ms Staples obtaining legal professional services from Ms McAtee. There is no basis for a finding that privilege had been waived.
20. It follows therefore that there is a conclusive presumption of an overriding public interest against disclosure of the information contained in the Category B document. Category C documents
21. The Category C documents include communications between staff of the Respondent and between the Respondent and QBE.
22. The Respondent contends that these documents are emails between a client and another person, the dominant purpose of which is the client being provided with professional legal services relating to an Australian proceeding in which the client is a party.
23. The Respondent submits that the emails contain information which is communicated for the dominant purpose of staff of the Respondent's People and Organisational Development unit obtaining professional legal services relating to the conduct, settlement, and post settlement obligations of proceedings brought by the Applicant in the Workers Compensation Commission.
24. The Respondent relies on the content of the Category C documents and the evidence of Ms Staples, Mr McLean and Ms Thomas in support of its submission that each of documents 11-12, 15, 23-24, 29, 34, 41-42, 49 and 63 was created for the dominant purpose of the provision of legal advice. It further submits that on this basis the conclusive presumption in clause 5 of Schedule 1 of the GIPA Act applies to those documents.
25. I agree with the Respondent.
26. I am satisfied that the Respondent has considered whether to waive privilege and has decided not to do so. I am also satisfied that there is no basis for a finding that privilege had been waived.
27. It follows therefore that there is a conclusive presumption of an overriding public interest against disclosure of the information contained in the Category C documents. Category D documents
28. The Category D documents include communications include communications between the Respondent's staff and Ms McLean or Mr McLean, or communications with the Respondent's employees; or between the Respondent and QBE where the communications contain extracts of communications with Ms McLean.
29. The Respondent contends that the documents are confidential communications between a client and a lawyer acting for the client and contains information the dominant purpose of which is the client being provided with professional legal services relating to an Australian proceeding in which the client is a party.
30. The Respondent further submits that the emails contain information which was communicated for the dominant purpose of McLean's Lawyers providing professional legal services relating to the conduct, settlement, and post settlement obligations of the Respondent in relation to proceedings brought by the Applicant in the Workers Compensation Commission.
31. The Respondent relies on the content of the Category D documents and the evidence of Ms Staples and Mr McLean in support of its submission that documents 8-9, 18, 21-22, 25-28, 30-33, 35, 44, 46-48, 54 and 57-58 were created for the dominant purpose of the provision of legal advice. It is submitted that the whole of each Category D document falls within the scope of "legal advice".
32. The Respondent further submits that the scope of the term "legal advice" goes beyond discussions of legal doctrines to associated factual reviews and practical advice in a legal context. Further, the Respondent contends that since any factual reviews in the documents are interwoven with and coloured by elements of legal advice, severance is not possible.
33. On this basis the Respondent submits that the conclusive presumption in clause 5 of Schedule 1 of the GIPA Act applies to those documents.
34. I agree with the Respondent.
35. I am satisfied that the Respondent has considered whether to waive privilege and has decided not to do so. I am also satisfied that there is no basis for a finding that privilege had been waived.
36. It follows therefore that there is a conclusive presumption of an overriding public interest against disclosure of the information contained in the Category D documents.

Competitive commercial value of information

1. Documents 10, 11, 12, 19 and 56 are communications between the Respondent and QBE and include discussion of appropriate legal counsel for the Respondent in relation to the Applicant's claim. The information includes the name of a firm that was ultimately not engaged by the Respondent to provide these services, and includes discussion of the comparative strengths of respective legal services providers in order to determine which legal services providers should be engaged to do certain work.
2. The Respondent submits that the Applicant should be refused access to documents 10, 11, 12, 19 and 56 on the basis that disclosure may reasonably be expected to diminish the competitive commercial value of the information to the Respondent, and may place the Respondent at a competitive disadvantage in relation to its use of external legal service providers.
3. Clauses 4(a) and (c) of the table to section 14 of the GIPA Act provide that 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) undermine competitive neutrality in connection with any functions of an agency in respect of which it competes with any person or otherwise place an agency at a competitive advantage or disadvantage in any market, (b) … (c) diminish the competitive commercial value of any information to any person. ...
4. The Tribunal must determine whether disclosure of the documents could reasonably be expected to diminish the competitive commercial value of the information to the Respondent, and place the Respondent at a competitive disadvantage in relation to its use of external legal service providers.
5. The Respondent submits that disclosure of this information could reasonably be expected to place those legal service providers at a competitive advantage, or disadvantage, in tendering for future legal work, and could reasonably be expected to place the Respondent and QBE at a competitive disadvantage in the legal services market as it would provide other legal service providers with inside knowledge concerning the Respondent's and QBE's selection criteria for legal services.
6. The Respondent submits that, on balance, the Tribunal should find that the correct and preferable decision was to refuse access to these documents on the basis that there is an overriding public interest against their disclosure under clauses 4(a) and (c) of the table to section 14 of the GIPA Act.
7. I do not agree with the Respondent's contention. I do not consider that the Respondent has satisfied its onus of establishing the overriding public interest against disclosure of these documents. It has merely made an assertion as to the effect of disclosure without the evidence to establish its contention. Given that the documents are now three years old, it is difficult to see how disclosure of the information could reasonably be expected to have one or more of the effects asserted. That being the case, the overriding public interest in favour of disclosure supports the view that the documents should be released.
8. In the circumstances the correct and preferable decision is that the documents are to be released.

False and unsubstantiated allegations

1. Document 55 is a communication between employees of the Respondent. The Respondent says that it does not have sufficient evidence to substantiate the allegation made in the email and considers that the allegation made is defamatory.
2. The Respondent submits that on the basis of the content of the email, the Tribunal should find that the correct and preferable decision was to refuse access to document 55 on the basis that there is an overriding public interest against its disclosure under clause 3(e) of the table to section 14 of the GIPA Act.
3. Clause 3(e) of the table to section 14 of the GIPA Act provides that 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: … e) reveal false or unsubstantiated allegations about a person that are defamatory ...
4. It is my understanding that the Applicant has been given a redacted copy of document 55. The redacted portion is that which the Respondent says is unsubstantiated and defamatory. It is apparent from the face of the document that this contention is correct.
5. In my view, the information that has been redacted from the document is unsubstantiated and defamatory. It is also my view that and the public interest considerations in favour of disclosure of the redacted information are outweighed by the public interest considerations against disclosure. I agree that it was appropriate for the document to be released to the Applicant in a redacted form.
6. On balance it is my view that there is an overriding public interest against their disclosure under clause 3(e) of the table to section 14 of the GIPA Act. That being the case, the correct and preferable decision is that the redacted portion of document 55 should not be released.

DECISION

1. With the exception of those matters where I have found that the withheld information should be released, the Respondent's determination to refuse to grant access to the information should be affirmed.

Matter Number 133101

1. The Applicant seeks review of the Respondent's decision to refuse to grant him access to the information he sought in his access application. The majority of the information sought pertains to the Applicant's grievance complaint against four of the Respondent's senior staff members.
2. The Applicant relies on his own evidence and written submissions. The Respondent relies on evidence provided by its Executive Director People and Organisational Development, Ms Vicki Leaver and by Ms Jane Pritchard, a Senior Project Officer with the Respondent. Ms Johnson provided written submissions on behalf of the Respondent.
3. As noted above, the Respondent identified a number of files and attachments as falling within the scope of the access application. It determined to provide the Applicant with access to some of the information identified; to provide access to a redacted version of some other material; and that access to some of the information should be refused.
4. On internal review following recommendations by the Information Commissioner, the Respondent decided to release: 1. Records of Interview with 3 staff members (with personal information redacted); 2. IAB Services' interim and final report (with personal information deleted); 3. IAB Services' tax invoices (personal and financial information redacted); and 4. relevant correspondence (with personal information deleted).
5. The Respondent subsequently decided to release IAB's information where it had previously relied upon s. 14, cl. 3(a) as a public interest against disclosure. IAB initially objected to the disclosure but did not exercised its appeal rights in relation to the determination to release IAB's information.
6. The Respondent has identified the documents that remain in issue as: Letter of appointment of IAB Services to investigate complaint dated 20 August 2010 (access refused in part) (Document 1) Copy of tax invoices from IAB Services with fee for investigation and reporting of the complaint (access refused in part) (Documents 4 and 5) IAB Services Records of Interview with 3 Legal Aid staff members (access refused in part), 1 staff member (access refused in full) (Documents 2a to 2d) IAB Services' final report to Legal Aid (access refused in part) (Document 3) Documents relating, touching or incidental to the personal grievance complaint (access refused in part) (Documents 6a to 6g)

The Respondent's Case Jane Pritchard

1. The Respondent relies on the evidence of Ms Jane Pritchard, the Manager Review and Strategy in the Respondent's Strategic Policy and Planning Division. Ms Pritchard undertook the internal review. She provided the following reasons for her determination: 3.2 Reasons for decision Under s 9(1) of the GIPA Act, you have a legally enforceable right to be provided with access to the information sought unless there is an overriding public interest against disclosure of the information. In making such a determination, agencies must apply the public interest test under s 13, which provides that there will only be an overriding public interest against disclosure where public interest considerations in favour of disclosure are, on balance, outweighed by those against disclosure. Under s 5 of the GIPA Act, there is a presumption in favour of disclosing government information. 3.2.1 Public Interest considerations in favour of disclosure Disclosure of information is in the public interest where: • it could reasonably be expected to enhance Government accountability - s 12(2)(a) • if could reasonably be expected to ensure effective oversight of the expenditure of public funds - s 12(2)(c) • the information is personal information of the person to whom it is to be disclosed-s12(2)(d) • it could contributing to procedural fairness - s 12(2) • it could reveal the reason for a government decision and background information that informed that decision - s 12(2) In determining your application the above public interest considerations were relevant to the decision whether to disclose. In particular the fact that the majority of the information you are seeking relates to a grievance you raised and a grievance process you participated in. 3.2.2 Public Interest considerations against disclosure This section outlines the public interest considerations against disclosure of the information. In considering whether there are public interest considerations against disclosure I have considered each limb of the clauses in the Table under s14. Reasonably be expected to reveal an individual's personal information - s 14 Table 3(a) The limbs of this clause are: 1. that the disclosure of the information withheld could 'reasonably be expected' to have an effect 2. the effect is to reveal personal information (including opinion) about an individual. In terms of the first limb, the information in the records of interview (attachments 16, 17, 18, 19 and 20), copy of the investigator's final report, additional information provided to the interviewer (attachments 10, 11, 12, 13, 14 and 15), file note (attachment 21), correspondence and emails (attachment 22), documents relating to the grievance and copies of the tax invoices from IAB Services could reasonably be expected to have an effect. This effect is not absurd, far-fetched or ridiculous. In terms of the second limb, 'personal information' is defined in Schedule 4 cl. 4 to mean information or an opinion (including information or an opinion forming part of a database and whether or not recorded in material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion. The information in the records of interview (attachments 16,17,18, 19 and 20), copy of the investigator's final report, additional information provided to the interviewer (attachments 10, 11, 12, 13, 14 and 15), file note (attachment 21), correspondence and emails (attachment 22), documents relating to the grievance and copies of the tax invoices from IAB Services could reasonably be expected to have the effect, namely to reveal or disclose information that is an individual's 'personal information'. Information contained in the records of interview (attachments 16, 17, 18, 19 and 20), copy of the investigator's final report, additional information provided to the interviewer (attachments 11, 12, 13, 14 and 15), file note (attachment 21), correspondence and emails (attachment 22), documents relating to the grievance and copies of the tax invoices from IAB Services satisfy the limbs of s 14 Table 3(a) and therefore constitutes a public interest consideration against disclosure. Consultation in accordance with s 54(2) was undertaken with four individuals and one agency and the objections to the release of the information was made by three individuals and the agency, in relation to disclosing to the applicant their personal information and personal information of third parties. Reasonably be expected to have the effect of prejudicing any person's legitimate business, commercial, professional or financial interests - s 14 Table 4(d) The limbs of this clause are: 1. that the disclosure could 'reasonably be expected' to have an effect. 2. the effect is to prejudice any person's legitimate business, commercial, professional or financial interests. In terms of the first limb, the information in the copies of the tax invoices from IAB Services could reasonably be expected to have an effect. This effect is not absurd, far-fetched or ridiculous. In terms of the second limb, the information in the tax invoices from IAB Services would reveal IAB Services rates, prejudging their business interests. IAB Services is a NSW Government Trading Enterprise that provides a wide range of assurance and consulting services to State, Local and Commonwealth Government bodies. Information contained in the tax invoices satisfy the limbs of s 14 Table 4(d) and therefore constitutes a public interest consideration against disclosure. I have consulted with IAB Services in relation to the information contained in their invoices and they have objected to the inclusion of rates, timesheets and personal information in relation to their consultants being disclosed. Reasonably be expected to have the effect of prejudicing the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions - s 14 Table 1(d) The limbs of this clause are: 1. that the disclosure could 'reasonably be expected' to have an effect. 2. the effect is to prejudice the supply to the agency of confidential information. 3. the confidential information facilitates the effective exercise of the agency's functions. In terms of the first limb, the information in the records of interview (attachments 16, 17, 18, 19 and 20) and the investigator's final report could reasonably be expected to have an effect. This effect is not absurd, far-fetched or ridiculous. In terms of the second limb, the aim of the Legal Aid NSW grievance process is to restore workplace harmony, generate workable solutions and not further problems [Legal Aid NSW Guidelines for Staff members with a Grievance or Dispute: 7]; in effect to enable the agency to exercise its functions effectively. While encouraged, participation in a grievance process is voluntary, as opposed to a disciplinary investigation. The Legal Aid NSW Resolving Grievances and Disputes Policy and Procedure has explicit provisions regarding confidentiality. Under heading 6 'Confidentiality' the Policy states: Allegations when made lodging a grievance may be potentially defamatory, especially if confidentiality is not observed and a person's reputation is unfairly damaged. Discussions, information and records related to complaints will remain factual and confidential... Grievances should only be discussed with the staff member(S) directly involved in the matter. When referring a grievance, information which may be personal should only be discussed on a 'needs to know' basis. The Policy also makes provisions for grievance related documents to be kept in confidential storage. Confidentiality has an important role in obtaining co-operation from the participants in order to find solutions to a workplace grievance and enable an agency to effectively exercise its functions. In the case of Chief Executive, State Rail Authority -v- Woods [GD][2003] NSWADTAP 25, the ADT Appeal Panel acknowledged that there are occasions where a public sector agency obtains information in circumstances of confidentiality from its employees, which is critical to the overall effectiveness of the agency's activities Given the confidentiality of the grievance process (evidence in the Grievance Policy), its voluntary nature and the amount of personal opinion expressed, those who participated in your grievance process have legitimate expectations that the information supplied will be treated in confidence. Further the interviewees was not asked to consider circumstances wherein the agency could not impose any conditions on the use or disclosure of the information they supplied [s73(a)j. In terms of the final limb, the grievance process aims to facilitate a harmonious workplace and therefore the effective exercise of any agency's functions. Information contained in the records of interview and final report satisfies the limbs of s 14 Table 1(d) and therefore constitutes a public interest consideration against disclosure. Reasonably be expected to have the effect of prejudicing the effective exercise of that agency's functions - s 14 Table 1(f) The limbs of this clause are: 1. that the disclosure could 'reasonably be expected' to have an effect. 2. the effect is to prejudice the effective exercise of the agency's functions. In terms of the first limb, the information in the records of interview (attachments 16, 17, 18, 19 and 20) and the investigator's final report could reasonably be expected to have an effect. This effect is not absurd, far-fetched or ridiculous. In terms of the second limb, the aim of the Legal Aid NSW grievance process is to restore workplace harmony, generate workable solutions and not further problems [Legal Aid NSW Guidelines for Staff members with a Grievance or Dispute: 7], as discussed above in relation to 1(d); in effect enable the agency to exercise its functions effectively. The grievance process aims to facilitate a harmonious workplace and therefore the effective exercise of any agency's functions. The effective exercise of agency functions would be 'prejudiced', by the disclosure of information provided confidentially to facilitate to grievance process. Information contained in the records of interview and final report satisfy the limbs of s 14 Table 1(f) and therefore constitutes a public interest consideration against disclosure. Reasonably be expected to have the effect of resulting in the disclosure of information provided to an agency in confidence - s 14 Table 1(g) The limbs of this clause are: 1. that the disclosure could 'reasonably be expected' to have an effect. 2. the effect is to result in the disclosure of information provided to the agency in confidence. In terms of the first limb, the information in the records of interview (attachments 17, 18, 19 and 20) and the investigator's final report could reasonably be expected to have an effect. This effect is not absurd, far-fetched or ridiculous. In terms of the second limb, the confidential nature of the grievance process as discussed above in relation to 1(d) applies to this limb. Information in the records of interview (attachments 17, 18, 19 and 20) and the investigator's final report were made in confidence, and have not been previously disclosed to the applicant. Information contained in the records of interview and final report satisfy the limbs of s 14 Table 1(g) and therefore constitutes a public interest consideration against disclosure. Reasonably be expected to contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (PPIP) - s 14 Table 3(b). The limbs of this clause are: 1. that the disclosure could 'reasonably be expected' to contravene. 2. the contravention relates to an information protection principle under the Privacy and Personal Information Protection Act 1998 (PPIP). In terms of the first limb, the information in the records of interview (attachments 17, 18, 19 and 20) could reasonably be expected to contravene. The contravention is not absurd, far-fetched or ridiculous. In terms of the second limb, the limbs of the information principle s 18(1) PPIP are that a public agency that holds personal information must not disclose the information to a person (other than an individual to whom the information relates or other body) unless: (a) disclosure is directly related to the purpose for which the information was collected and the agency has no reason to believe that the individual concerned would object to the disclosure (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10 PPIP, that information of that kind is usually disclosed to that other person or body The records of interview (attachment 17, 18, 19 and 20) hold significant amounts of personal information and opinions about third parties. Disclosing this information to someone 'other than to whom the information relates' would contravene the above Information Protection Principle on the basis that: • disclosure is not directly related to the purpose for which the information was collected, namely for the purposes of the investigator making a finding. • the agency has reason to believe that individuals concerned would object to the disclosure. During the third party consultation process, three individuals have objected to third party information being disclosed. Further the individuals concerned were not reasonably likely to have been aware, or had been made aware in accordance with section 10 PPIP, that information of that kind is usually disclosed to that other person or body and particularly in circumstances where the agency cannot impose any conditions on the use or disclosure of information [s 73(a) GIPA]. Grievance related documents are kept confidential, as outlined above in relation to 1(d). Information contained in the records of interview satisfies the limbs of s 14 Table 3(b) and therefore constitutes a public interest consideration against disclosure. 3.3 Public Interest Test To determine if there is an overriding public interest against disclosure of government information for the purposes of the GIPA Act there are considered to be public interest considerations against disclosure only if, on balance, those considerations outweigh the public interest considerations in favour of disclosure (s 13). The public interest considerations in favour of release were: Reasonably be expected to enhance Government accountability - s 12(2)(a) Reasonably be expected to ensure effective oversight of the expenditure of public funds - s 12(2)(c) Information is personal information of the person to whom it is to be disclosed - s 12(2)(d) Contribute to procedural fairness - s 12(2) Reveal the reason for a government decision and background information that informed that decision - s 12(2) The public interest considerations against disclosure were: Reasonably be expected to reveal an individual's personal information - s 14 Table 3(a) Reasonably be expected to have the effect of prejudicing any person's legitimate business, commercial, professional or financial interests - s 14 Table 4(d) Reasonably be expected to have the effect of prejudicing the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions - s 14 Table 1(d) Reasonably be expected to have the effect of prejudicing the effective exercise of that agency's functions - s 14 Table 1(f) Reasonably be expected to have the effect of resulting in the disclosure of information provided to an agency in confidence - s 14 Table 1(g) Reasonably be expected to contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (PPIP) -~s 14 Table 3(b). In applying the public interest test I considered the personal factors outlined in s 55(1) in relation to the third party personal information. I have considered your identity, relationships with other persons (whose third party personal information is contained in the documents) and other factors particular to the applicant. In particular I have considered the implications of disclosing third party personal information about individuals against whom you had a grievance and that have not previously been disclosed to you. I considered the objections of those consulted. I have applied the public interest test and it is the view of this Agency that on balance there is an overriding public interest against disclosure in relation to the information contained in the documents detailed in Part B and Part C of the Schedule of Documents. In relation to the documents detailed in Part B, the information with an overriding public interest against disclosure have been disclosed with deletions from the copy of the record in accordance with s 74. 4. Objection on consultation Under s. 54 of the GIPA Act, agencies are required to consult with third parties where an application covers certain information and the third party is likely to be concerned about the information's release for reasons that are relevant to a public interest consideration against disclosure. In your application, access was sought to documents containing the personal information of third parties and business rates. As this information is of a kind requiring consultation under s 54(2)(a)-(b), third persons were consulted to see whether they objected to the release of their information. Objections were made, which I have taken into account in making my decision. However these objections have been overcome through deletion of information from the copy of the record [s 74].
2. Ms Pritchard provided a statement in these proceedings. She stated that her roles have included preparing responses to applications under the GIPA Act. She said that the Respondent initially consulted with IAB Services but did not consult with its staff members. In undertaking its internal review, the Respondent considered it necessary to consult with all third parties whose personal or business information was included in the documents, where they could reasonably be expected to have concerns about disclosure of information in the documents. In that regard it undertook consultation with four individuals and IAB Services.
3. Ms Pritchard stated that the individuals objected to the disclosure of their personal information. IAB Services objected to the disclosure of its rates, timesheets and the personal information of their consultants. As noted, on internal review the Respondent decided to uphold the objections of the three individuals and IAB Services and redacted rates, timesheets and personal information from this information.
4. As noted above, the Applicant sought a review of the Internal Review decision by the Office of the Information Commissioner. Following recommendations by the Commissioner, the Respondent undertook a further determination. The Respondent decided to release IAB's information where it had previously relied upon clause 3(a) of the table to section 14 as a public interest against disclosure. Vicki Leaver
5. The Respondent also relies on the evidence of its Executive Director People and Organisational Development, Ms Vicki Leaver. Ms Leaver stated that part of her role requires her to provide advice in relation to more serious grievances, including grievances relating to a senior manager. She is aware that the Applicant submitted a grievance and that Ms Stien of IAB Services was retained to investigate and report on matters arising from this grievance. She annexed to her statement a copy of a number of policy documents and guidelines relating to handling of grievances. In relation to the usual procedures she stated: When a staff member of Legal Aid is subject to a workplace grievance, the usual course requires the complaint to be handled by the aggrieved staff member's supervisor. Where the staff member is unable to discuss the matter with their supervisor or manager, the matter is referred to the next level of line manager or to the relevant Director or Deputy CEO, either directly or through the Executive Director People and Organisational Development. When a grievance is referred to the Deputy CEO or the CEO, he or she may personally undertake the investigation or refer the grievance for investigation to another impartial party. The Guidelines provide for all managers and supervisors and staff members with knowledge of a grievance to maintain confidentiality, and for investigations to be kept as confidential as possible. In my experience, some staff members have been reluctant to assist in an investigation without an assurance of confidentiality. The Guidelines provides that the investigator will meet with the aggrieved staff member and the staff member against whom the grievance is made and, if their stories conflict, interview witnesses. Participation in the investigation process is voluntary, and there are no sanctions if a staff member declines to be interviewed. Resolution of Applicant's Grievance
6. Ms Leaver stated that she believes that for the purpose of her investigation Ms Stien was briefed with the Guideline "Resolving Grievances and Disputes Policy and Procedures". She further stated that when external investigators are briefed, the usual practice is that the investigator is expected to comply with the Guideline in force at that time. The Respondent response to the Applicant's misconduct allegations
7. The Respondent submits that the Applicant's main submission in these proceedings is an allegation that the Respondent has engaged in misconduct or an abuse of power and this overrides the public interest considerations against disclosure of the information. The Respondent submits that the Applicant has failed to establish that the Respondent, or its employees, engaged in misconduct or fraud.
8. In conclusion the Respondent submits that the decision to refuse to provide access to the information sought by the Applicant should be affirmed.

The Applicant's Case

1. The Applicant relies on his own evidence and also provided written submissions in support of his case.
2. His evidence elaborates on his criticism of Ms Stien's investigation and the manner in which various officers of the Respondent dealt with him in relation to his workers compensation claim and his grievance. His evidence is largely in relation to his view that the Respondent's senior management has engaged in a campaign to remove him from his employment.
3. The Applicant is also critical of the Respondent's failure to provide him with evidence to show how it has implemented Ms Stien's investigation report recommendations.
4. In relation to the Respondent's determination, the Applicant submitted that the Respondent failed to give any consideration to the vital public interest consideration exemplified in s12(2)(e), and that it failed to give any proper weighting to the public interest considerations as recommended by the IPC.
5. He submitted that in addition to the considerations identified by the Respondent, the following public interest considerations favouring disclosure are relevant to the determination: Information may reasonably be expected to reveal the Respondent (or its officials) has engaged in unlawful or improper conduct; Transparency of process (especially investigation of complaints); Proper administration of justice; Promote public's right to know; Promote integrity/purity in public administration; Facilitate making of Public Interest Disclosures Act 1994 complaints against the Respondent and its senior management; Right to defend reputation against false allegations made by Respondent's senior management; Significant workers compensation claims against the Respondent, raising systemic workplace and occupational health issues of its employees; Promote open discussion of public affairs and contribute to positive and informed debate of public importance; Ensure compliance with the provisions of the Public Sector Employment and Management Act 1992 by the senior management of the Respondent.
6. The Applicant also made submissions in relation to the public interest considerations against disclosure that the Respondent has raised. In his submission, none of them are sustainable.
7. He submits that the assertion that disclosure could reasonably be expected to reveal an individual's personal information is doomed for obvious reasons that the assertion is not supported by evidence. He says that Ms Pritchard has simply stated her conclusion that disclosure would reveal personal information. She did not provide evidence to support her view that this effect is not absurd, farfetched or ridiculous.
8. The Applicant relies on the decision in Hill v University of Western Australia [1995] WAICmr 60 in relation to meaning of the phrase "could reasonably be expected to prejudice the future supply of information". In Hill the Western Australian Commissioner referred to the Full Federal Court decision in Attorney-General's Department v Cockcroft and stated: 13. … Bowen C.J. and Beaumont J. said, at 190, that those words were intended to receive their ordinary meaning and require a judgement 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 relevant kind to the Government would decline to do so if the documents in question were disclosed. In my view, that is the correct test to be applied by agencies to the interpretation of the same words ... 14. In Manly v Ministry of Premier and Cabinet (Supreme Court of Western Australia, delivered 15 June 1995), Owen J., at page 43, found the following passage from the judgment of Sheppard J. in Cockcroft to be of particular assistance: "What is required is that the decision-maker act reasonably. For the document to be exempt his conduct must be taken as that of the reasonable man. But then comes the difficulty. So acting, the decision-maker must expect that disclosure of the document could prejudice the future supply of information. In my opinion he will not be justified in claiming the exemption unless, at the time the decision is made, he has real and substantial grounds for thinking that the production of the document could prejudice that supply. But, stringent though that test may be, it does not go so far as to require the decision-maker to be satisfied upon a balance of probabilities that the document will in fact prejudice the future supply of information." 15. It was Owen J.'s opinion, at page 44, that: "...it is not sufficient for the original decision-maker to proffer the view. It must be supported in some way. The support does not have to amount to proof on the balance of probabilities. Nonetheless, it must be persuasive in the sense that it is based on real and substantial grounds and must commend itself as the opinion of a reasonable decision-maker."
9. The Applicant submits that on the basis of these authorities, the Respondent's decision becomes untenable as it adduced no evidence to demonstrate that it has any "real and substantial grounds" that disclosure could reasonably be expected to have an effect as asserted. He submits that the opinion is based on sheer conjecture and speculation.
10. As regards Ms Pritchard's claim that four individuals and one agency objected to the disclosure as part of her consultation process, the Applicant submits that Ms Pritchard has incorrectly accorded significant weight to such objections. He contends that disclosure is not conditional on third party's consent or objections.
11. The Applicant contends that the Respondent reliance on clauses 1(d), (f) and (g) of the table to section 14 strains credibility. He disputes the Respondent's claims that those who participated in the investigation of his grievance complaint have a legitimate expectation that the information supplied will be treated in confidence. He says that he did not agree to any confidentiality and that staff making false and misleading comments against others cannot have any legitimate expectation to keep secret such information. He submits that the rules of natural justice cannot be trumped by confidentiality.
12. Amongst other things, he submits that the Respondent does not actually explain, let alone provide any evidence, as to what actual "prejudice" will result if the information is released and how this could reasonably be expected to have the claimed effect. He says that the claim is based on pure conjecture and mere speculation.
13. He argues that it is in the public interest that he be given full and uncensored versions of all the information pertaining to his grievance complaint.
14. He further contends that, because the cost of the report was paid from public funds, the public have the right to know whether the report was value for the money spent by the Respondent.
15. He further contends that, assuming the Respondent has raised a proper claim for confidentiality, the confidentiality has been lost on the grounds of waiver. He says that by disclosing a partial copy of the report, the Respondent has waived its right to any confidentiality attaching to the report and the statements/interview notes that formed the basis of that document. He also submits that confidentiality cannot be everlasting or continuous. It can be lost with the passage of time. In his submission the Respondent cannot plead confidentiality in the present case because of passage of time.
16. Similarly, he submits that the Respondent's reliance on clause 3(b) of the table to section 14 is spurious and totally untenable. He further submits and any objection raised by a former staff member who has left employment with the Respondent becomes irrelevant.
17. He says that the Respondent's PPIP Act arguments are untenable. The PPIP Act does not take precedence over the GIPA legislation. In any case, section 5 of the PPIP Act provides the Respondent with discretion to release personal information even if the Act is breached.
18. He submits that the withheld information should be released without redactions.
19. In relation to the IAB information, the Applicant submits that there can be no justification for the Respondent's refusal to provide the individual amounts that it paid to IAB for each grievance investigation. He submits that there is a public interest in doing so as it will ensure effective oversight of expenditure of public funds. Because the funds for the services performed by IAB were paid from the public purse the withheld information must be open to public scrutiny.
20. He contends that an agency resisting disclosure on behalf of third parties should provide evidence of prejudice or harm. He submits that the Respondent has not explained how disclosure will prejudice lAB's business interests. It has not demonstrated any purported harm that may result to IAB if the information is disclosed. It thus cannot discharge the burden imposed by section 105(1) of the GIPA Act. He contends that in the absence of any proof of prejudice or harm to IAB, he should be provided with access to the full information.
21. He further submits that this submission has force when viewed against the background that the Respondent failed to obtain tenders from other service providers to ascertain the competiveness of the rates IAB charged the Respondent for workplace grievance investigations. He says that the continuous engagement of IBA by the Respondent's senior management to investigate grievance complaints gives rise to institutional bias or a reasonable apprehension of bias that its investigator might not have brought an impartial mind to the making of the decision.
22. He says that given his claims of serious impropriety about the investigator, it is in the public interest that the Respondent provides details of the amounts it paid for all grievance complaints which may corroborate his claim that the investigation of the complaint was inadequate and seriously flawed.
23. The Applicant submits that the monies were paid from the public purse and hence, the public have a right to know this information.
24. In his submission none of the Respondent's grounds can succeed. Its public interest balancing test is flawed and it has not satisfied the burden imposed by section 105 (1) of the GIPA Act. Accordingly, he submits, the requested information should be released without redaction.

Documents 1, 4 and 5

1. Document 1 is a letter of appointment of IAB Services. Documents 4 and 5 are copies of tax invoices from IAB Services.
2. The Respondent determined that these documents should not be released to the Applicant on the basis of an overriding public interest against their disclosure under clause 4(d) of the table to section 14 of the GIPA Act. That is, disclosure of the information could reasonably be expected to prejudice IAB Services' legitimate business, commercial, professional or financial interests.
3. I have set out above my understanding of the law in relation to clause 4(d). My understanding is that the Respondent has agreed to provide the Applicant with the information that was redacted from these documents. However, if I am wrong in that understanding, it is my view that the information should be provided.
4. I agree with the argument presented by the Applicant in regard to the evidence that would be required to satisfy the Respondent's onus in regard to the redacted information.
5. Ms Pritchard gave evidence that IAB Services was consulted and that IAB had objected to disclosure of its commercial rates. I accept that evidence. However, it does not follow that the disclosure of the hourly rates of investigations staff could reasonably be expected to prejudice IAB's commercial interests. I agree that the disclosure would reveal its hourly rates to its competitors. However, the documents date from between 2008 and 2010. It is highly improbable that the rates would be current. In my view it is also improbable that the disclosure would enable IAB's competitors to obtain a competitive advantage when tendering for investigations work.
6. The Respondent has merely asserted that disclosure of the information could reasonably be expected to prejudice IAB Services' interests. There is no evidence to support that assertion.
7. It is my view that because of the passage of time any such prejudice is unlikely. Given the age of the information it would be necessary for the Respondent to provided cogent evidence to support its assertion. In the absence of that evidence, it has not satisfied the burden imposed by section 105 (1) of the GIPA Act.
8. In the circumstances, for the reasons argued by the Applicant, it is my view that the considerations in favour of the release of this information outweigh those against the release. Accordingly, it is my view that the correct and preferable decision it to release these documents in an unredacted form.

Documents 2a to 2d

1. Documents 2a to 2d are IAB Services Records of Interview with staff members of the Respondent. Access to three of the documents has been refused in part. Access to Documents 2d has been refused in full.
2. Notwithstanding that these documents are of a similar nature, it is clear that the information in Documents 2a to 2c has been regarded differently to that in Documents 2d. This is apparently based on the objection raised by the individual who's interview is the subject of Documents 2d. I agree with the Applicant that that objection is not conclusive. In my view, the same approach should be taken to each of Documents 2a to 2d.
3. The Respondent determined that the withheld information should not be released to the Applicant on the basis of an overriding public interest against their disclosure under clauses 1(d), 1(f), 1(g) and 3(a) of the table to section 14 of the GIPA Act.
4. I have been provided with an unredacted copy of each of these documents. It is clear from the face of Documents 2a to 2c that the redacted information is the personal information of the staff member for the purposes of clause 3(a).
5. The Respondent also contends that the information was provided on a confidential basis. Confidentiality always depends on the circumstances of the particular case. As was noted in Re B and Brisbane North Regional Health Authority confidentiality can be inferred from all the circumstances. In Commissioner of Police NSW Police Force v Camilleri (GD) at paragraph [33] the Appeal Panel said with respect to confidential information that: 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
6. I accept that Ms Leaver's experience as a senior member of staff is relevant to the question whether, as a result of various policies and guidelines, there was likely to have been an expectation by staff that such information would be kept confidential. This is the case notwithstanding that Ms Leaver was not involved at the time. Ms Leaver stated: The Guidelines provide for all managers and supervisors and staff members with knowledge of a grievance to maintain confidentiality, and for investigations to be kept as confidential as possible. In my experience, some staff members have been reluctant to assist in an investigation without an assurance of confidentiality.
7. I accept this as "the agency's evidence as to the conditions under which it conducts" a grievance investigation.
8. I note that the Applicant has disputed that Ms Stien was properly briefed with the Respondent's guidelines and policy documents. However, the answer to the question of whether or not Ms Stien was properly briefed on these issues does not alter my conclusions on this issue.
9. In my view the whole of the circumstances of this matter lead to the inference of an expectation by staff that information would be kept be kept as confidential as possible. Contrary to the Applicant's submission, it is my view that each of the staff members would have provided the information with that expectation.
10. The Applicant is in clear disagreement with statements made to IAB Services. It is also clear that he had serious concerns about the manner in which the Respondent handled his grievance. I also accept that Ms McAtee indicated that she felt that there was a basis for those concerns. However, these issues are not relevant to the question of whether the information was provided with an expectation of confidentiality.
11. In my view, this is not the appropriate forum for the resolution of the issues that the Applicant has raised regarding the manner in which the Respondent handled his grievance.
12. As noted above, the Applicant has made allegation that the Respondent has engaged in misconduct or an abuse of power and this overrides the public interest considerations against disclosure of the information. I do not agree with the Applicant in that regard.
13. The Respondent submitted that disclosure of some withheld information could reasonably be expected to prejudice the supply of such information to the agency in the future. I have referred above to a number of decisions in which the Tribunal found that if information is supplied pursuant to a duty of confidentiality, the disclosure of the information is likely to prejudice the operations of the agency from disclosure. It has been generally accepted that agencies' investigative functions depended to a large extent on the cooperation of those who hold relevant information. If information obtained confidentially was released then there is potential for breakdown of the necessary cooperation.
14. I note the Applicant's contention that the information in the transcripts is false and misleading and that it was provided maliciously with a view to harming his interests.
15. I also note his contention that those against whom he had made the complaint were obliged to participate because their interests were adversely affected. However, I do not accept that contention. I am satisfied that the individuals who cooperated with the investigation did so with an expectation of confidentiality. They were not bound to disclose the information and did so on the understanding that the information would be treated in confidence.
16. I am satisfied that information of the kind contained in the Records of Interview facilitates the exercise of the Respondent's functions. I am satisfied that the staff members who provided the information have objected to the release of the redacted information. In my view it can be inferred that if the redacted or withheld information were released then those staff members may be less inclined to cooperate in any future investigation.
17. The Applicant sought to distinguish my decision in Williams v Department of Industry and Investment as of no relevance. I do not agree with that view. Williams concerned an access application under the GIPA Act. As noted above, I affirmed the agency's decision not to disclose transcripts of interview between staff who had been interviewed by Ms Stien of IAB Services. In that regard there is a similarity in the circumstances of Williams and this matter. In Williams I accepted that the disclosure of the transcripts could discourage future victims of workplace bullying or harassment from coming forward. In this matter I accept the Respondent's contention that it would be severely hampered in its efforts to fully investigate workplace issues that arise if confidentiality in workplace grievances could not be maintained.
18. For the same reasons as in Williams, and for the reasons argued by the Respondent, I accept that the supply of information of the kind provided in this matter is necessary for the effective exercise of the Respondent's functions. I also accept that disclosure of the redacted information in Documents 2a to 2c could discourage staff from coming forward in the future.
19. That being the case, I am satisfied that disclosure could reasonably be expected to prejudice the supply of such information to the agency in the future.
20. I have considered the arguments presented by the Applicant which he asserts support the view that the information should be released. I accept that there is a public interest in exposing persons who make false allegations. I also accept that there is public interest in exposing senior managers who maliciously make false and misleading statements against complainants during workplace grievance investigations. However, I do not consider that those interests are determinative of this particular matter.
21. The Applicant's disagreement with the statements, and the fact that he is of the opinion that the statements are false, do not justify the disclosure of this information.
22. I have weighed the various public interests in favour and against release of the information redacted from Documents 2a to 2c. As was the case in Williams, it is my view that the public interest considerations have already been satisfied by the disclosure of the information already released to the Applicant. Disclosure of the redacted information would not further those considerations.
23. Accordingly, it is my view that the correct and preferable decision is to affirm the determination to not release the information redacted from Documents 2a to 2c.
24. As I have indicated above, it is my view that the same approach should be taken to each of Documents 2a to 2d. Document 2d has been withheld in full whereas only some redactions have been made to Documents 2a to 2c. The copy of Document 2d that has been provided to me has identified sections which apparently contain personal information of the interviewee or other individuals. For the same reasons that I have accepted that the information redacted from Documents 2a to 2c should not be released, it is my view that comparable information should be redacted from Document 2d. The remainder of the document should be released to the Applicant.
25. Accordingly, it is my view that the correct and preferable decision is to release Document 2d in a redacted form.

Document 3

1. Document 3 is IAB Services' final report to the Respondent. Parts of the report were withheld on the basis of an overriding public interest against disclosure under clause 1(d) of the table to section 14 of the GIPA Act. That is, that disclosure could reasonably be expected to prejudice the supply of confidential information that facilitates the effective exercise of the Respondent's workplace grievance and complaint handling functions.
2. I have considered the report and the arguments and evidence presented by the parties. It is my view that the same considerations are relevant to the report as were relevant to the Documents 2a to 2d i.e. the Records of Interview with staff.
3. For the same reasons, it is my view that the public interest considerations in favour of disclosure of the redacted information are outweighed by the public interest considerations against disclosure. I agree that it was appropriate for the report to be released to the Applicant with personal information of third parties redacted.
4. Accordingly, it is my view that the correct and preferable decision is to affirm the determination to not release the redacted information.

Documents 6a to 6g

1. The Applicant's access application sought copies of all documents in the Respondent's possession relating, touching or incidental to his personal grievance complaint. Documents 6a to 6g are the documents that the Respondent identified as falling within the scope of that request.
2. As was the case in regard to documents 2a to 2d, the Respondent consulted about the release of the correspondence related to the investigation, and three of the individuals who were consulted objected to disclosure of their personal information in the correspondence. On this basis, the Respondent determined to redact personal information from the documents and to release these documents in a redacted form. It contends that release of the redacted information could reasonably be expected to reveal or disclose information that is an individual's 'personal information'.
3. I have been provided with an unredacted copy of each of these documents and I have considered those documents along with the evidence and arguments presents by the parties. Document 6a
4. Document 6a is a series of emails between staff of the Respondent. For the most part, it is my view that the information that has been redacted from those emails is not an individual's 'personal information' because it reveals nothing more than the fact that the person was engaged in the exercise of public functions. In fact, some of those emails were copied to the Applicant and therefore he would have already been given an unredacted copy.
5. The single exception is the email sent on Wednesday, 18 November 2009 at 5.20 pm with the subject heading "Follow up from SIC, O/M meeting - Finance".
6. In my view, the information that has been redacted from that email contains personal information. It is also my view that and the public interest considerations in favour of disclosure of the redacted information in that email are outweighed by the public interest considerations against disclosure. I agree that it was appropriate for the email to be released to the Applicant with personal information redacted.
7. However, I do not agree that other information should be redacted from the remainder of Document 6a.
8. Accordingly, it is my view that the correct and preferable decision is to affirm the determination to not release the information redacted from the email sent on Wednesday, 18 November 2009 at 5.20 pm with the subject heading "Follow up from SIC, O/M meeting - Finance". The remainder of Document 6a should be released. Document 6b
9. Document 6b is a series of emails between staff of the Respondent. For the most part, I agree that the information that has been redacted from those emails is an individual's 'personal information'. However, in regard to the email sent on Tuesday, 25 May 2010 at 4:17pm with the subject "A/c 20600 Goods Received/Inward" it is my view that the information that has been redacted reveals nothing more than the fact that the person was engaged in the exercise of public functions. That information is not an individual's 'personal information'.
10. In my view, the remainder of the information that has been redacted from Document 6b contains personal information. It is also my view that and the public interest considerations in favour of disclosure of the redacted information are outweighed by the public interest considerations against disclosure. I agree that it was appropriate for the document to be released to the Applicant with personal information redacted.
11. Accordingly, it is my view that the correct and preferable decision is to affirm the determination to not release the information redacted from Document 6b with the exception of the email sent on Tuesday, 25 May 2010 at 4:17pm with the subject "A/c 20600 Goods Received/Inward". The information redacted from that email should be released. Document 6c
12. Document 6c is a series of emails between staff of the Respondent and/or Ms Stein and a letter dated 8 November 2010 from Russell Cox to Clare Hamilton.
13. For the most part, I do not agree that the information that has been redacted from those documents is an individual's 'personal information'. It is my view that the information that has been redacted reveals nothing more than the fact that the person was engaged in the exercise of public functions. That information is not an individual's 'personal information'.
14. However, I agree that the information that has been redacted from the letter from Russell Cox to Clare Hamilton is an individual's 'personal information'. It is also my view that and the public interest considerations in favour of disclosure of the redacted information in that letter are outweighed by the public interest considerations against disclosure.
15. Accordingly, it is my view that the correct and preferable decision is to affirm the determination to not release the information redacted from the letter from Russell Cox to Clare Hamilton. The remainder of the information redacted from Document 6c should be released. Document 6d
16. Document 6d is a series of emails between Jennifer Bulkeley and Ms Stein. I agree that the information that has been redacted from those documents is an individual's 'personal information'.
17. It is also my view that and the public interest considerations in favour of disclosure of the redacted information in those emails are outweighed by the public interest considerations against disclosure.
18. Accordingly, it is my view that the correct and preferable decision is to affirm the determination to not release the information redacted from Document 6d. Document 6e
19. Document 6e comprises a number of file notes and a series of emails between staff of the Respondent. I agree that the information that has been redacted from those documents is an individual's 'personal information'.
20. It is also my view that and the public interest considerations in favour of disclosure of the redacted information in those documents are outweighed by the public interest considerations against disclosure.
21. Accordingly, it is my view that the correct and preferable decision is to affirm the determination to not release the information redacted from Document 6e. Document 6f
22. Document 6f is an email from Clare Hamilton to Ms Stein. I do not agree that the information that has been redacted from the documents is an individual's 'personal information'. It is my view that the information that has been redacted reveals nothing more than the fact that the person was engaged in the exercise of public functions. That information is not an individual's 'personal information'.
23. Accordingly, it is my view that the correct and preferable decision is that the information redacted from that email should be released. Document 6g
24. Document 6g is a file note by Ms Stein of a telephone interview. I agree that the information that has been redacted from the document is an individual's 'personal information'.
25. It is also my view that and the public interest considerations in favour of disclosure of the redacted information are outweighed by the public interest considerations against disclosure.
26. Accordingly, it is my view that the correct and preferable decision is to affirm the determination to not release the information redacted from Document 6g.
27. The Respondent submits that the Applicant has failed to establish, prima facie, that the Respondent engaged in misconduct or fraud and, accordingly, has not sought to file evidence in response to these allegations.

DECISION

1. With the exception of those matters where I have found that the withheld information should be released, the Respondent's determination to refuse to grant access to the information should be affirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 January 2015