The applicant, Richard Smolenski, seeks review of a decision of the respondent, the Commissioner of Police, NSW Police Service, to refuse him access to some information he had sought access to under the Government Information (Public Access) Act 2009 (GIPA).
In December 2010, the applicant applied for employment with the respondent in the advertised position of special constable (security). He was interviewed for the position and was sent an offer of appointment. On 7 June 2011, the respondent wrote to the applicant withdrawing the offer of appointment due to his past history.
In July 2011, the applicant wrote to the respondent Commissioner, Andrew Scipione, requesting access to information provided to the respondent from his previous employer (the Australian Customs Service & Border Protection Service) and a number of other agencies (i.e. Australian Federal police (AFP) and the Australian Security Intelligence Organisation (ASIO)). The applicant was provided some information as a result of his request.
On 7 November 2011, the applicant made a formal request for access under the GIPA Act. He sought access to:
Any letters, documents, emails file notes, file notes of conversations relating to enquiries concerning me, my wife in relation to any application for the NSW Police Force Special Constable (security) position, between the NSW Police Force & Australian Federal Police (AFP) &/or Australian Customs & Border Protection Service Customs. This includes any documents dated 01 & 06 June 2011. Further to this any information, documents, emails, file notes, sent to NSW Police by AFP & Customs relating to my evidence or submissions to the Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity (PJC-ACELI).
The respondent determined that application, on 3 July 2012. In that determination the respondent granted the applicant access to some of the information for which he had sought access and refused the applicant access to the remaining information, on the grounds that there was an overriding public interest against disclosure of this information.
The applicant, being dissatisfied with the decision of the respondent, sought review of the decision by the Office of the Information Commissioner (IOC), as he was entitled to do (see section 89 of the GIPA Act). On 6 November 2013, the IOC recommended the respondent reconsider its decision in regard to the email addresses and the information that can be categorised as selection comments about the applicant.
On 29 November 2013, the applicant lodged his application for review with the Tribunal (see section 100 of the GIPA Act).
The matter came before me, at a hearing, on 30 September 2014. At the hearing the only information that remained in dispute was as follows:
1. (a) Page 95-96 a series of emails dated 1/6/2011 between Ruth Bailey of the respondent and John Chittenden of Customs. Access to the entire information in these emails was refused.
2. Page 97 - a handwritten note of Ruth Bailey of a telephone conversation she had on or about 31/5/2011. Access to the information in this note was refused in part.
3. Page 98 - A pro-forma 'Employment Check - In Strict Confidence' form with handwritten notes on the top section of the form. Access to the entire information in this form was refused.
4. Page 106-120 - 'Interview Performance Appraisal' form in respect of the applicant's performance during interview. Access to the information in this form was refused in part. The information for which access was refused were the handwritten comments of the Interview Panel, the questions asked and the desired responses.
5. Page 121-148 - Print-outs of specific enquiries made on the respondent's COPS System (COPS report), on 14 December 2010. The respondent asserts that the information in these print-outs fall outside the scope of the applicant's access request. However, access has been granted with the exception of some information on Pages 124 and 148.
6. Page 149-154 - COPS report, 'Enquire Person Printouts dated 14/12/10 (do not refer to applicant)'. The respondent also asserts that the information in these print-outs fall outside the scope of the applicant's access request. Access to this information has been refused in full.
7. Page 155-159 - Print-outs of specific location inquiries made on the respondent's COPS System, on 14 December 2010. The respondent also asserts that the information in these print-outs fall outside the scope of the applicant's access request. However, access has been granted with the exception of some information on Page 155.
Leaving aside the issue as to whether the information in the abovementioned pages fall within the terms of the applicant's access request, the grounds on which the respondent has refused access is that the public interest consideration against the disclosure of the information sought, on balance, outweigh the public interest considerations in favour of the disclosure of the information in issue. The public interest considerations against disclosure relied on by the respondent included those set out in clause 1(c), 1(d), 1(f), clause 3(a) and/or clause 7 of the table in subsection 14(2) of the GIPA Act.
The applicant supports the recommendations of the OIC as the information in issue concerns him - that is, it is his personal information.
[2]
The Tribunal's jurisdiction
There is no dispute the Tribunal has jurisdiction to hear and determine the applicant's application. The role of the Tribunal in hearing this application is to decide the correct and preferable decision having regard to the material before it, including relevant factual material and the applicable law: see subsection 63(1) of the Administrative Decisions Review Act 1997.
For the purpose of this application, the applicable law is the GIPA Act.
Subsection 105(1) of that Act provides that the burden of establishing that the decision of the respondent is justified rests on the respondent.
Accordingly, in this application the onus is on the respondent to establish that its decision to refuse the applicant access to the abovementioned information is justified on the grounds set out above.
[3]
The GIPA Act
It is convenient to briefly set out the relevant provisions of the GIPA Act.
The object of the GIPA Act is to give every member of the public an enforceable right to seek access to government information and only restrict access where there is an overriding public interest against disclosure (see sections 3, 5, 9 and 13 of the GIPA Act).
Section 5 of the GIPA Act provides that there is a presumption in favour of disclosure of government information, unless there is an overriding public interest against disclosure.
The test for determining whether there is an overriding public interest against disclosure is set out in section 13 of the GIPA Act. That section provides:
13 Public interest test
There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
Subsection 12(1) of the GIPA Act provides that there is a general public interest in favour of the disclosure of government information. Subsection 12(2) of the Act provides that there is no limit to the public interest considerations in favour of disclosure of government information. The note to that subsection sets out some examples of public interest considerations in favour of disclosure. These include information that is personal information of the person to whom it is to be disclosed.
The public interest considerations against disclosure are limited and these are set out in section 14 of the GIPA Act. Subsection 14(1) provides that there is to be a conclusively presumed overriding public interest against disclosure of any government information described in Schedule 1 of the Act. The respondent has not relied on this subsection. It has relied on a number of the public interest considerations against disclosure set out in the table to subsection 14(2) of the GIPA Act. In particular it has relied on the following:
1 Responsible and effective government
There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally):
(a)
…,
(b)
…,
(c)
prejudice relations with, or the obtaining of confidential information from, another government,
(d)
prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions,
(e)
…,
(f)
prejudice the effective exercise by an agency of the agency's functions,
(g)
…
3 Individual rights, judicial processes and natural justice
There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects:
(a)
reveal an individual's personal information,
(b)
…
7 Exempt documents under interstate Freedom of Information legislation
(1)
There is a public interest consideration against disclosure of information communicated to the Government of New South Wales by the Government of the Commonwealth or of another State if notice has been received from that Government that the information is exempt matter within the meaning of a corresponding law of the Commonwealth or that other State.
(2)
The public interest consideration under this clause extends to consideration of the policy that underlies the exemption.
(3)
In this clause, a reference to a corresponding law is a reference to:
(a)
the Freedom of Information Act 1982 of the Commonwealth, or
(b)
…
Section 54 of the GIPA Act requires an agency to consult a person in certain circumstances, including where the information for which access is sought is personal information of a person other than the applicant and where the information concerns the affairs of a government of the Commonwealth or a State. That section relevantly provides as follows:
54 Consultation on public interest considerations
(1) An agency must take such steps (if any) as are reasonably practicable to consult with a person before providing access to information relating to the person in response to an access application if it appears that:
(a) the information is of a kind that requires consultation under this section, and
(b) the person may reasonably be expected to have concerns about the disclosure of the information, and
(c) those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information.
(2) Information relating to a person is of a kind that requires consultation under this section if the information:
(a) includes personal information about the person, or
(b) …, or
(c) …, or
(d) concerns the affairs of a government of the Commonwealth or another State (and the person is that government).
Note. The requirement to consult extends to consultation with other agencies and other governments. See the definition of person in Schedule 4.
(2A) If the agency considers that information about a person consulted under this section is likely to be included in the agency's disclosure log in relation to the access application, the agency must give a written notice to the person containing the following statements:
(a) that information concerning the application will be included in the agency's disclosure log and that the person can object to this,
(b) that there is a right of review under Part 5 of a decision by the agency to include information in its disclosure log despite the person's objection.
(3) …
(4) The purpose of consultation under this section is to ascertain whether the person has an objection to disclosure of some or all of the information and the reasons for any such objection.
(5) The agency must take any objection to disclosure of information that the agency receives in the course of consultation into account in the course of determining whether there is an overriding public interest against disclosure of government information.
(6) If consultation establishes that a person objects to the disclosure of information but the agency decides to provide access to the information in response to the application, access is not to be provided until the agency has first given the objector notice of the agency's decision to provide access to the information and notice of the objector's right to have that decision reviewed, and is not to be provided while review rights on the decision are pending.
(7) …
The term 'person' is defined in subsection 4(1) of the GIPA Act to include 'an agency, the government of another jurisdiction (including a jurisdiction outside Australia) and an agency of the government of another jurisdiction'.
Section 55 of the GIPA Act sets out how personal factors about the applicant are to be taken into account in determining where the balance lies between the competing public interests.
Subsection 73(1) of the GIPA Act provides that an agency is not entitled to impose any conditions on the use or further disclosure of information to which access is provided by the agency. However, subsection 73(2) and (3) makes provision for conditions to be imposed as to 'how' access may be exercised. This is not relevant to this application so I have considered it no further.
[4]
The respondent's case
In support of its case the respondent relied on a statement, dated 8 April 2014, made by Inspector Stephen Bruce Hudson, General Manager of Police Recruitment of the respondent. Inspector Hudson also gave oral evidence at the hearing and was cross-examined by the applicant.
In his statement, Inspector Hudson said he had reviewed the information the subject of this application. A copy of that information was provided to the Tribunal, in confidence, pursuant to section 107 of the GIPA Act.
Inspector Hudson said the position of special constable involves the provision of security services at police and government buildings across New South Wales. In providing such services, special constables are armed and may have access to sensitive information that is not available to members of the public. Hence, the respondent always undertakes rigorous security assessments of applicants for these positions. Inspector Hudson gave a brief description of the recruitment assessment processes and how the information in issue was relevant to the various steps in that process.
Attached to Inspector Hudson's statement was an email the respondent received from Alison Smith (Ms Smith), FOI Officer of the Australian Customs and Border Protection Services (ACBPS). The email was in response to the respondent's consultation with ACBPS about the information for which the applicant sought access that had been sent, or communicated by ACBPS to the respondent (i.e. the information on Pages 95 to 98).
Ms Shirm, solicitor for the respondent, also provided detailed written submissions.
[5]
The applicant's case
The applicant also filed detailed written submissions. In those submissions, the applicant explained aspects of his employment history with the ACBPS. He also explained what positions he had applied for since leaving the ACBPS and what the outcome was. He said he was concerned about false and misleading statements having been made by officers of the ACBPS, the AFP and other employers the respondent had contacted. He said he was concerned that these false and misleading statements had undermined his professional standing, character, credibility and honesty, without him being able to refute them.
At the hearing, the applicant said he was also very concerned about the suggestion, arising from the information that has been disclosed, that he was a security risk (i.e. not suitable for national security clearances in a government of law enforcement position).
[6]
Consideration
Before setting out my findings in regard to the information in dispute, it is convenient to briefly set out the relevant applicable legal principles.
As noted above, with the exception of clause 7, the public interest considerations against disclosure in the table to subsection 14(2) of the GIPA Act are predicated with the words 'could reasonably be expected' to have the effect as prescribed in one or more of the clauses in that table.
It is accepted that these words are to be given 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 a disclosure of the information in issue could have the prescribed consequences relied on: see Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [28], McKinnon v Secretary, Department of Treasury [2006] HCA 45, at [61] and Attorney-General's Department v Cockcroft (1986) 10 FCR180, at 190.
In Camilleri (supra), at [29], the Appeal Panel of the former Administrative Decisions Tribunal described the public interest considerations against disclosure in the table to subsection 14(2) as squarely focusing on considerations relating to the conduct of the business of government and require a 'relatively abstract analysis' in determining whether they apply to the information in issue.
In regard to the public interest consideration against disclosure in clause 1(d) of the table to subsection 14(2), in Camilleri (supra), at [33], the Appeal Panel said the question as to whether information was 'confidential information', in the relevant sense, is to be examined primarily by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received.
In that case, the Appeal Panel found that the respondent's record of callers to the triple zero telephone line was 'confidential information', in the relevant sense, and fell within clause 1(d). Similar findings have been made in regard to information contained in complaints received and investigated by government agencies: see Troskie v NSW Department of Education & Communities [2014] NSWCATAD 155 at [49], Warren v NSW Trustee and Guardian [2013] NSWADT 178 at [66], McInnes v NSW Department of Education and Communities [2013] NSWADT 219 and AMH v Western New South Wales Local Health District [2013] NSWADT 280
In regard to the public interest consideration against disclosure set out in clause 3(a) of the table to subsection 14(2) of the GIPA Act, the term 'personal information' is defined in clause 4 of Schedule 4 of the GIPA Act. That clause is in the following terms:
4 Personal information
(1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.
(2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics.
(3) Personal information does not include any of the following:
(a) information about an individual who has been dead for more than 30 years,
(b) information about an individual (comprising the individual's name and non-personal contact details) that reveals nothing more than the fact that the person was engaged in the exercise of public functions,
(c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause.
[7]
Pages 95-96
The respondent contends that the public interest considerations against disclosure in clause 1(c), 1(d), 1(f) and clause 7 of the table to subsection 14(2) of the GIPA Act apply to the information on these Pages.
Inspector Hudson's evidence was that the email exchanges on Pages 95 to 96 formed part of the respondent's vetting process of the applicant's application for the position of special constable. This process, he said included making contact with external agencies (State and Commonwealth) about an applicant's previous employment record. Inspector Hudson said the respondent is unaware of what information the external organisation holds on an applicant and is unable to compel the external organisation to provide information about an applicant. Instead, the respondent relies on information being provided voluntarily and with candour. As a consequence, the respondent treats information it receives from external organisations as being confidential information for use in assessing the suitability of applicants for positions with the respondent.
Inspector Hudson went on to say that if the respondent could not guarantee to keep the information confidential, the external organisations could be selective about the information they provided, which would make the process of security assessment of applicants more difficult as less sensitive information would be provided.
Inspector Hudson also explained that as the respondent frequently undertakes joint investigative operations with the Australian Federal Police and the ACBPS there is a high level of trust between the organisations. He went on to say, if the respondent could not guarantee confidentiality in regard to the information these organisations provided to the respondent that level of trust would 'significantly' diminish.
In her email, Ms Smith said that a disclosure of the information on these pages 'could adversely affect the continued level of trust and cooperation between the Commonwealth and the State of NSW and would impair or prejudice the future flow of information between Federal and State partners.
Ms Shirm pointed out that the selection and appointment of special constables fell within the respondent Commissioner's statutory functions under the Police Act 1990. These functions include the appointment of persons as constables, non-executive officers and executive officers of the respondent organisation (see sections 36, 64 and 80 and section 103 of the Police (Special Provisions) Act 1901).
While the information on Pages 95 and 97 are not identified as being confidential, on the basis of the overall content of the information on these Pages and the circumstances in which they were created and sent, I am satisfied that the information is confidential information provided to the respondent, by the ACBPS, in the course of its vetting process of the applicant's application for a special constable position.
I am also satisfied that a disclosure of the information on these Pages could reasonably be expected to: (a) prejudice the effective exercise of the respondent's function to select the most suitable candidates for positions within the respondent, (b) prejudice the supply of information of this kind that facilitates the respondent's function to select the most suitable candidates for positions and (c) prejudice the obtaining of confidential information from another government agency. That is, I am satisfied that the respondent has established that the public interest considerations against disclosure in clause 1(c), 1(d) and 1(f) of the table to subsection 14(2) of the GIPA Act apply to the information on Pages 95 and 96
I am also satisfied that the respondent has established that clause 7 applies to information on these Pages.
As noted above, clause 7 applies to information that is:
1. communicated to the Government of New South Wales;
2. by the Government of the Commonwealth, or of another State, and
3. a notice has been received from the Government of the Commonwealth or State that the information is 'exempt matter' within the meaning of a corresponding law of the Commonwealth or that other State.
A provision along these lines was contained in clause 21 of Schedule 1 of the repealed Freedom of Information Act 1989. However, I am unaware of any cases where it has been construed and applied, or where clause 7 of the table to subsection 14(2) of the GIPA Act has been construed or applied.
What is meant by the terms 'Government of New South Wales' and 'Government of the Commonwealth or another State' is not described within the GIPA Act. However, clause 7 of Schedule 4 of that Act provides:
A reference in this Act to the Government includes, where appropriate, a reference to an agency.
In my view, it is appropriate to construe 'Government of New South Wales' to include a government agency of New South Wales. A similar construction should be given to the terms 'Government of the Commonwealth or another State.' The term 'agency' is defined in subsection 4(1) of the GIPA Act. There is no dispute that the respondent is a government agency for the purpose of the GIPA Act.
The term 'agency' is also defined in subsection 4(1) of the Freedom of Information Act 1984 (Cth), which is the relevant corresponding law: see clause 7(3)(a) of the GIPA Act. There is no dispute that the ACBPS is an agency for the purpose of the Freedom of Information Act 1984 (Cth).
In this application, the parties appear to have accepted that the email sent by Ms Smith is a 'notice' falling within clause 7.
It is the contention of the respondent that the Tribunal cannot look behind the notice of Ms Smith and on this basis must find that the clause 7 public interest consideration against disclosure applies to the information in issue. Even if this is correct, the Tribunal is still required to apply the public interest test under section 13 of the GIPA Act. That is, the Tribunal must be satisfied that the respondent has established that this public interest consideration against disclosure together with any other established public interest considerations against disclosure, on balance, outweigh the public interest considerations in favour of disclosure of the information in issue. Hence, it is in this context consideration needs to be given to the conditional exemptions referred to by Ms Smith in her email. For the reasons set out below, in many respects these conditional exemptions are similar to the public interest considerations against disclosure relied on by the respondent, which I have found to have been established.
In her email, Ms Smith states that the information in documents that are Pages 95 and 96 are 'conditionally exempt' under sections 47B(a) and 47E(c) and (d) of the Freedom of Information Act 1984 (Cth)(the Commonwealth Act). That is, these pages contain 'exempt matter' as a disclosure of the information in these pages could reasonably be expected to give rise to the matters prescribed in these sections (see meaning of 'exempt matter' and 'exempt document' in section 4 of the Commonwealth Act and section 31B of that Act).
Sections 47B(a) and 47E(c) and (d) of the Commonwealth Act are in the following terms:
47B(a) Public interest conditional exemptions--Commonwealth-State relations etc.
A document is conditionally exempt if disclosure of the document under this Act:
(a) would, or could reasonably be expected to, cause damage to relations between the Commonwealth and a State; or
(b) ..
47E Public interest conditional exemptions--certain operations of agencies
A document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to, do any of the following:
(a) …;
(b) …;
(c) have a substantial adverse effect on the management or assessment of personnel by the Commonwealth, by Norfolk Island or by an agency;
(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.
Section 11A of the Commonwealth Act provides that access must be given to a conditionally exempt document unless it would be contrary to the public interest. That section relevantly provides:
11A Access to documents on request
Scope
(1) This section applies if:
(a) a request is made by a person, in accordance with subsection 15(2), to an agency or Minister for access to:
(i) a document of the agency; or
(ii) an official document of the Minister; and
(b) any charge that, under the regulations, is required to be paid before access is given has been paid.
(2) This section applies subject to this Act.
Note: …
Mandatory access--general rule
(3) The agency or Minister must give the person access to the document in accordance with this Act, subject to this section.
Exemptions and conditional exemptions
(4) The agency or Minister is not required by this Act to give the person access to the document at a particular time if, at that time, the document is an exempt document.
Note: …
(5) The agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.
Note …
(6) …
Section 11B sets out the factors to be considered in assessing whether access to a conditionally exempt document would, on balance, be contrary to the public interest for the purpose of subsection 11A(5). Subsection 11B(3) sets out matters favouring access which is in similar terms to section 12 of the GIPA Act and includes allowing a person to access his or her personal information. Subsection 11B(4) sets out a number of factors that are not to be taken into account. These are similar in terms to those in section 15 of the GIPA Act.
In regard to the public interest considerations in favour of disclosure, the most significant of these is that the information is personal information about the applicant. This, as I have mentioned, is the basis on which the applicant argues he should be granted access. The question is whether the public interest considerations against disclosure, on balance, outweigh the public interest considerations in favour of disclosure.
In my view, given the circumstances in which the information was sought, collected and held by the respondent, considerable weight should be given to the public interest considerations against disclosure. And with two exceptions, I am satisfied that this public interest consideration against disclosure, on balance, outweighs the public interest considerations in favour of disclosure.
The exceptions are:
1. the information about the applicant contained in the body of Mr Chittenden's email, which purports to have a factual basis and is historical in nature (e.g. the information, other than the last paragraph), and
2. the name of the sender and recipient of the emails, the date on which they were sent and the subject matter of the email exchange.
In regard to (b), this information has already been disclosed to the applicant and hence, the public interest considerations against disclosure should be given little weight.
In regard to (a), on the material before the Tribunal, this is information of a kind the applicant has personal knowledge of.
In making my finding that the public interest considerations against disclosure do not, on balance, outweigh the public interest considerations in favour, I have taken into account the conditional exemptions referred to in Ms Smith's email, the presumption in favour of disclosure in section 5 and the general public interest consideration in favour of disclosure in subsection 12(1) of GIPA Act.
Accordingly, I find:
1. the respondent has failed to establish that its decision to refuse the applicant access to the information, as referred to in paragraph 61 above, is justified. On this basis, I find the decision in this regard is not the correct and preferred decision and should be set aside and in substitution thereof a decision that the applicant be granted access to the information; and
2. in regard to the remaining information on Pages 95 and 96, I am satisfied that the respondent has established that its decision is justified. On this basis, I find the decision of the respondent is otherwise the correct and preferred decision and should be affirmed.
[8]
Page 97
The respondent contends that the public interest considerations against disclosure in clause 1(c), 1(d) and 1(f) and clause 7 of the table to subsection 14(2) of the GIPA Act also apply to the deletions on this page of hand written notes.
Having regard to the content of the deleted information, for the reasons set out above, I am satisfied the respondent has established that the abovementioned public interest considerations against disclosure apply. As I have noted, the deleted handwritten notes of Ms Bailey were made in the course of her enquiries about the applicant in regard to his application for the special constable position. The notes are Ms Bailey's record of her telephone enquiry of an officer of a Commonwealth agency.
Again, other than the general public interest in favour of disclosure (subsection 12(1)), there is the public interest consideration in favour of disclosure in that a disclosure of the information could reasonably be expected to disclose the applicant's personal information.
In determining where the balance lies, in my view, the public interest considerations against disclosure, on balance, outweigh the public interest considerations in favour of the disclosure of the deleted information on this Page.
The deleted information is distinguishable to that referred to in paragraph 61 and 63 above. It is information of the kind referred to by Inspector Hudson and Ms Smith, and for this reason, in my view, the public interest considerations against disclosure should be given considerable weight.
In my view, given the nature of the information, the public interest considerations against disclosure, on balance, outweighs the public interest consideration in favour of disclosure.
Accordingly, I am satisfied that the respondent has established that its decision in regard to the deletions on Page 97 is justified. On this basis I also find that the decision of the respondent is the correct and preferable decision and should be affirmed.
[9]
Page 98
Page 98 is a pro-forma form used by the respondent in the course of enquires it makes about applicant's seeking employment with the respondent. The document states that it contains confidential information and will not be released to the applicant or his agent. In this case, the document also contains a handwritten note.
The respondent contends that the public interest considerations against disclosure in clause 1(d) and 1(f) and clause 7 of the table to subsection 14(2) of the GIPA Act apply to the information in issue and that these public interest considerations against disclosure, on balance, outweigh the public interest considerations in favour of disclosure.
Having regard to the evidence of Inspector Hudson and Ms Smith and the content of the form and the handwritten note, I am satisfied that the respondent has established that the information in issue falls within the public interest consideration against disclosure relied on. I also find that considerable weight should be given to these public interest considerations against disclosure.
The evidence is that the pro-forma form was used by the respondent in the course of its vetting process of applicant's application for the special constable positions. It is a form, stated to be confidential and used for all applications of this nature and it continues to be used for this purpose. The disclosure of the information in the pro-forma form would clearly prejudice the effective exercise, by the respondent, of its recruiting function for candidates suitable for appointment to the position of special constable. Similarly, the handwritten note on this form is a record of information provided in confidence, by a Commonwealth agency, as part of the respondent's vetting process of the applicant's application.
Again there is a general public interest in favour of disclosure. However, given the nature of the information in issue, in my view, the public interest considerations against disclosure, on balance, outweigh the public interest considerations in favour of disclosure.
Accordingly, I am satisfied that the respondent has established that its decision in regard to the deletions on Page 98 is justified. Again, on this basis, I find that the decision of the respondent is the correct and preferable decision and should be affirmed.
[10]
Page 106-120
It was the evidence of Inspector Hudson that the Interview Panel used these Pages when asking the applicant question during his interview for the position of special constable. The applicant has been provided with access to Pages 106, 113 and 120. The latter Pages contain a general typed question at the top of the Page and handwritten notes under the heading 'Comment'.
The information that is in issue is that contained on Pages 107 to 112 and 114 to 119. These Pages contain specific questions and desired responses to the questions. Each Page has a separate question on it. Each Page also contains the desired response to the question on the Page, handwritten notes under the heading 'Comment' and a scale of marks, numbered 1 to 10 at the bottom.
The applicant has been provided with access the scale of marks at the bottom of each Page and refused access to the remaining information on each Page.
The respondent contends that the public interest consideration against disclosure in clause 1(f) of the table to subsection 14(2) of the GIPA Act applies to the deleted information on these Pages.
As I understood the evidence of Inspector Hudson, the Pages to the extent they contain a question, a desired response, followed by a space with a heading 'Comment' and the scale of marks at the bottom of the Page explained that the Interview Panel were a form of pro-forma Pages used by the respondent Interviewing Panel when interviewing applicants for the position of special constable. The space under the heading 'Comment' is where the Interview Panel can record its comments about the interviewee and the scale of marks enables the Interview Panel to circle the number appropriate to the response provided.
Inspector Hudson said the questions and desired responses to each question on these Pages serve a number of purposes, including an assessment of the knowledge of the candidate on subjects relevant to the position of special constable and the candidate's ability to arrive at an appropriate response to the question asked.
As the specific questions and desired responses remain current in the respondent's processes for recruiting suitable candidates for special constable positions, I am satisfied that the respondent has established that the public interest considerations against disclosure in clause 1(f) apply to the deleted information on these Pages. The evidence is that the questions and the desired responses are an integral part of this vetting process and on this basis, I am satisfied considerable weight should be given to this public interest consideration against disclosure.
In my view, other than the general public interest in favour of disclosure, there is the public interest consideration that a disclosure of the information, in part, could reasonably be expected to disclose personal information about the applicant. This information is that contained in the handwritten comments, on each Page.
In my view, the handwritten comments on Pages 107 to 112 and 114 to 119, is personal information about the applicant in that they reflect what he told the Interview Panel about his experience. As the information is his personal information, in my view this public interest consideration in favour of disclosure should be given considerable weight.
Again the question is whether, on balance, the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure.
In my opinion, in regard to the information that consists of the questions and the desired responses to those questions, the public interest consideration against disclosure, on balance, outweighs the public interest consideration in favour of disclosure. I make this finding on the basis of the questions and responses on these Pages continuing to form an integral part of the respondent's processes of vetting suitable candidates for the special constable positions.
In regard to the handwritten information under the heading 'Comments', for the reasons set out above, I find that the public interest considerations against disclosure do not, on balance, outweigh the public interest considerations against disclosure of this information. I make this finding on the basis that the handwritten comments, if disclosed, would not identify the specific questions asked or the desired responses.
Accordingly, I find:
1. the respondent has failed to establish that its decision to refuse the applicant access to the heading 'Comment' and the handwritten information thereunder on Pages 107 to 112 and 114 to 119. On this basis, I find the decision of the respondent in regard to this information is not the correct and preferred decision and should be set aside and in substitution thereof a decision that the applicant be granted access to that information; and
2. in regard to the remaining information on these Pages, I am satisfied that the respondent has established that its decision is justified. On this basis, I also find that the decision of the respondent in regard to the remaining information is the correct and preferred decision and should be affirmed.
[11]
Page 121-148
In my view, it is arguably outside of the Tribunal's review jurisdiction to review the decision of the respondent where it has granted the applicant access to the information sought. Accordingly, I have not considered this issue any further in so far as it relates to the information the respondent has already provided the applicant access to. However, if I am incorrect in not considering this matter further, I would have found that the information fell within the applicant's access application, as the applicant was clearly seeking all information the respondent had obtained in the course of assessing his application for special constable.
Hence the only information is issue are the two small deletions on Pages 124 and 148. The applicant has otherwise been given access to the majority of the information on these pages, including his personal information.
The respondent contends that the public interest consideration against disclosure in clause 3(a) of the table to subsection 14(2) applies to this this information (i.e. personal information) and that, on balance, this public interest consideration outweighs the public interest consideration in favour of disclosure.
I have examined the information in issue and I am satisfied that the information, if disclosed, could reasonably be expected to reveal personal information about a person other than the applicant. That the deleted information is personal information is evident from the information the applicant has been granted access.
On this basis, I am satisfied the public interest against disclosure in clause 3(a) applies to the deleted information.
In my view, other than the general public interest in favour of the disclosure of government information, there is no further public interest in the disclosure of the deleted information on Pages 124 and 148. Nor would the disclosure of this information assist the applicant in understanding why his appointment as a special constable was withdrawn.
Hence, I find that the public interest consideration against disclosure of the deletions on Pages 124 and 148, on balance, outweighs the public interest considerations in favour of disclosure.
Accordingly, I am satisfied the respondent has established that its decision in regard to the deletions on Page 124 and 148 is justified. On this basis, I find that the decision of the respondent in regard to these deletions is the correct and preferable decision and should be affirmed.
[12]
Page 149-154
As I have noted, the respondent identified the information on these pages as being COPS report - 'Enquire Person Printouts dated 14/12/10'. The applicant has been refused access to the entirety of the information on these Pages, on the grounds that the information does not fall within the terms of the applicant's access request as the information would reveal personal information about a person other than the applicant (i.e. clause 3(a) of the table to subsection 14(2) applies).
For the reasons I have given in paragraph 92 above, if relevant to this review application, I find that the information in Pages 149 to 154 does fall within the applicant's access request as it consists of enquiries the respondent made in regard to his application for the special constable position.
I am also satisfied that a disclosure of this information could reasonably be expected to reveal personal information about a person other than the applicant. That is, the public interest consideration against disclosure in clause 3(a) applies to the information on these pages.
In my view, I also find that, other than the general public interest in favour of the disclosure of government information, there is no further public interest in the disclosure of the deleted information on Pages 149 to 154. A disclosure of this information would also not assist the applicant in understanding why his appointment as a special constable was withdrawn.
Accordingly, I am satisfied the respondent has established that its decision in regard to the information on Page 149 to 154 is justified. I also find that this decision of the respondent in regard to the information on these Pages is the correct and preferable decision and should be affirmed.
[13]
Page 155-159
For the reasons I have given in paragraph 92 above, if relevant to this review application, I find that the information in Pages 155 to 159 also falls within the applicant's access request as it consists of enquiries the respondent made in regard to his application for the special constable position.
Hence the only information in issue is a small deletion on Page 155, which the respondent asserts is personal information of a person other than the applicant and a disclosure of that information could reasonably be expected to reveal that person's personal information (clause 3(a) of the table to subsection 14(2) of the GIPA Act applies).
I am satisfied that the deleted information is personal information about a person other than the applicant and for the reasons set out in paragraphs 95 to 97 above, I find that the public interest against disclosure of this information, on balance, outweighs the public interest in favour of disclosure.
On this basis, I am satisfied the respondent has established that its decision in regard to the deletion on Page 155 is justified. And for this reason I find the decision of the respondent to be the correct and preferable decision and should be affirmed.
[14]
Conclusion and Orders
For the reasons set out above, I have found:
1. the decision of the respondent to refuse the applicant access to the following information is not the correct and preferable decision:
1. Pages 95 and 96 - the name of the sender and recipient of the emails, the date on which they were sent, the subject matter of the email exchange and the information in the body of Mr Chittenden's email, other than the last paragraph (see paragraph 61 above).
2. Pages 107 to 112 and 114 to 119 - the heading 'Comment' and the handwritten information thereunder (see paragraph 91 above).
On the basis of my findings I make the following orders:
1. Subject to order (b), the decision of the respondent is affirmed.
2. The decision of the respondent in regard to the following information is set aside and in substitution thereof a decision that the applicant be granted access to this information:
1. the name of the sender and recipient of the emails, the date on which they were sent, the subject matter of the email exchange and the information in the body of Mr Chittenden's email, other than the last paragraph (see paragraph 61 above).
2. Pages 107 to 112 and 114 to 119 - the heading 'Comment' and the handwritten information thereunder.
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
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Decision last updated: 20 February 2015