Speer v NSW State Emergency Service

Applicable legislation

1. The task of the Tribunal is to determine the "correct and preferable decision": section 63 of the Administrative Decisions Review Act 1997.
2. The approach to be taken in applications under the GIPA Act has been considered in numerous cases before this Tribunal. For a recent consideration see the discussion by Senior Member Perrignon in Peter Zonnevylle v Department of Education and Communities [2018] NSWCATAD 139.
3. The objects of the Act are set out in section 3(1): In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
4. "Government information" is given a wide meaning under section 4 of the GIPA Act being "information contained in a record held by an agency."
5. Schedule 4 of the GIPA Act defines the term "Personal information" as follows: (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.
6. The Tribunal is to consider whether, on balance, the public interest considerations against disclosure outweigh those in favour of disclosure. Pursuant to section 5 of the GIPA Act there is a presumption in favour of disclosure of the information unless there is an overriding public interest against disclosure. In accordance with section 9(1) of the GIPA Act, Mr Speer has a legally enforceable right to access the information requested, unless there is an overriding public interest against disclosing the information.
7. The general public interest considerations in favour of access to government information set out in section 12 of the GIPA Act mean that the balance is always weighted in favour if disclosure. Mr Speer contends that in addition to the general public interest in favour of disclosure of government information, the factors in favour of release include: 1. the information requested is personal information of the person to whom it is to be disclosed; 2. disclosure of the information could reasonably be expected to enhance government accountability and transparency in relation to how it handles grievances and performance management issues and ensuring that it follows procedural fairness when dealing with all parties; 3. disclosure of the information could reasonably be expected to contribute to positive and informed debate on issues of public importance; and 4. disclosure of the information could reasonably be expected to inform the public about the operations of the Agency.
8. Subject to comments I will make in relation to procedural fairness, I agree that these are considerations in favour of release of the withheld information.
9. Section 13 of the GIPA Act provides - There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
10. Section 13 of the GIPA Act requires decision makers to: 1. identify relevant public interest considerations in favour of disclosure; 2. identify relevant public interest considerations against disclosure; 3. attribute weight to each consideration for and against disclosure; and 4. determine whether the balance of the public interest lies in favour of or against disclosure of the government information.
11. The agency must prove that the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure.
12. Section 15 of the GIPA Act sets out the principles that apply to public interest determination as follows: (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
13. The table to section 14 sets out the relevant public interest considerations against disclosure. As noted, the SES determined that some of the requested information should not be released and it identified a number of public interest considerations against disclosure as relevant.
14. The only factors that can be taken into account are those referred to in section 14 of the GIPA Act. Section 14(2) provides that - The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.
15. Section 105 of the GIPA Act provides that the onus is on the agency to justify its decision. In relation to each of the asserted section 14 table factors the SES must establish that the disclosure of the information could reasonably be expected to have the effect outlined in the table.
16. The public interest considerations against disclosure relied on by the SES in this case are to be found under the following categories in the Table to section 14: 1. Item 1(d): disclosure of the information could reasonably be expected to prejudice the supply of confidential information that facilitates the effective exercise of the SES' functions 2. Item 1(e): disclosure of the information could reasonably be expected to reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of the government or the SES 3. Item 1 (f): disclosure of the information could reasonably be expected to prejudice the effective exercise by the SES of its functions 4. Item 1(g): disclosure of the information could reasonably be expected to result in the disclosure of information provided to the SES in confidence 5. Clause 3(a) - that disclosure of the information could reasonably be expected to reveal an individual's personal information; 6. Clause 3(b) - that disclosure of the information could reasonably be expected to contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 ("the PPIP Act"); and
17. Section 18 of the PPIP Act provides: 18 LIMITS ON DISCLOSURE OF PERSONAL INFORMATION (1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless: (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person. (2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.
18. Before deciding to provide access to personal information about a person in response to an access application, section 54 of the GIPA Act requires that the agency take such steps as are reasonable practicable to consult with that person before providing access. In this case the SES sought the views of individuals to ascertain whether there was any objection to disclosure of some or all of the information that Mr Speer had requested.
19. Section 55 of the GIPA Act provides that personal factors relating to an applicant can be taken into account in deciding to grant access. In limited circumstances they may also be taken into account in refusing access. Section 55 provides: 55 CONSIDERATION OF PERSONAL FACTORS OF APPLICATION (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the "personal factors of the application") into account as provided by this section: (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14. (4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for. (5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to provide proof of his or her identity. (6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person. Note : An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73.
20. As noted, Mr Speer also contends that the SES should hold further information that falls within the scope of his request and expressed concerns as to the adequacy of the search undertaken by the agency. Section 53 of the GIPA Act provides: 53 SEARCHES FOR INFORMATION HELD BY AGENCY (1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. (2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency. (3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically. (4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures. (5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.
21. The question of what constitutes an adequate search has been considered in many decisions under the GIPA Act and similar legislation. In Shepherd and Department of Housing, Local Government and Planning [1994] QICmr 7, (1994) 1 QAR 464, the Queensland Information Commissioner outlined a two-stage approach to the question of what constitutes an adequate search: (1) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency and, if so, (2) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.
22. The decision in Shepherd has been followed in a number of decisions of this Tribunal in matters under the GIPA Act. See, for example, Camilleri v Commissioner of Police, New South Wales Police Force [2012] NSWADT 5, and BNQ v South Eastern Sydney Local Health District [2015] NSWCATAD 156.
23. Section 53(1) limits the agency's obligation to respond to a request for information held by it at the time of the access request. The obligation does not extend to information once held by the agency but which is no longer held in the primary systems of the agency: Robinson v Commissioner of Police [2014] NSWCATAP 73.
24. The Tribunal's task is to determine the correct and preferable decision at the time of the decision. If there are reasonable grounds to believe that the agency holds more information than it has identified, the correct and preferable decision will not be to affirm the agency's decision that it does not hold the information. As Senior Member Lucy noted in Amos v Central Coast Council [2018] NSWCATAD 101, this may be the case even if the agency's searches appear to have been reasonable at the time they were conducted.

Issues for Determination

1. The parties are in general agreement in regard to the issues for determination. In respect of information that has been withheld these are: 1. What are the public interest considerations in favour of disclosure? 2. What are the public interest considerations against disclosure? 3. Is there an overriding public interest against disclosure? 4. Should the Tribunal affirm, vary or set aside the SES's decision?

The Material before the Tribunal

1. Mr Speer relies on his own evidence and provided both oral and written submissions. The SES relies on the evidence of Ms Sheeley. Ms Sheeley provided both open and confidential statements. The withheld information is contained in annexures to her confidential statement. Mr Thompson, solicitor for the SES, made both oral and written submissions.

Item 1 - The scope of the access application

1. As I have noted, Mr Speer agreed to the scope of the amended access application. The SES acted on that request and the Tribunal is limited to a review of the decision relating to that request.

Item 2 - Letters of complaint

1. These letters expressed concern about the potential impact on SES staff members of Mr Speer returning to his substantive position as Hunter Region, Deputy Region Controller. Those letters have been released in a redacted form. Most of the details contained in them has been withheld as have been the response from the SES to the authors of the letters.
2. The SES contends that the letters were received in confidence and that it disclosed a complete copy of the letters it would be in breach of that confidence. It submits that the applicable SES Internal Grievances Policy and Grievances Procedures those managing grievance must keep confidential the identity of those involved as well as the grievance details. As a result, the authors of the letters were entitled to a belief that the matters they raised could be done confidentially.
3. The SES further contends that the disclosure of this information would prejudice the future supply of such information to the agency and that the disclosure could reasonably be expected to prejudice the ability of the NSW SES to protect persons and property.
4. It is apparent from the face of the documents that they contain personal information of both the authors, Mr Speer and others. Disclosure of the letters could reasonably be expected to reveal that personal information and contravene the information protection principle relating to disclosure: clauses 3(a) and 3(b) in the table to section 14 of the GIPA Act. It is also apparent that the authors intended that the letters be treated in confidence.
5. In contrast, Mr Speer contends that no guarantees of confidentially are possible because the identity of the authors of the letters may be known due to the nature of the material may become know later or may be revealed in order to afford procedural fairness.
6. It is necessary to determine what weight should be given to the considerations against disclosure.
7. The SES attributed a high level of weight to the public interest considerations in favour of disclosure and also attributed a high level of weight to the public interest considerations against disclosure.
8. I agree with that approach. I agree that there is a high level of public interest in the release of the information to Mr Speer in circumstances where the authors have expressed concern about him. However, I also agree that there is a high level of public interest against the disclosure of the personal information of the authors where the circumstances of the provision of that information would have lead the authors to believe that the letters would be treated in confidence.
9. I have considered the contents of the letters and the other information that is available to Mr Speer. Given the extent of the available information, it is my view that the release of the withheld information i.e. the authors' details and specific details of their complaints, would not assist Mr Speer greatly in his quest to achieve procedural fairness. I note that Mr Speer is no longer employed by the SES and there are no ongoing disciplinary matters involving him. In these circumstances greater weight should be given to the public interest considerations against disclosure than those considerations in favour of release. Further, my decision in relation to Item 3 provides a reasonable balance in regard to the information that will be available to him.
10. Accordingly, the decision to refused access to this information should be affirmed.

Item 3 - email attachment about Mr Speer's Performance Management

1. This item refers to an email that was sent from Mark Morrow to Gary Bevan with an attachment about Mr Speer's Performance Management. The attachment, which has not been released, is a document titled Ken Speer Performance Management.
2. Mr Speer notes that he has been told that there are allegations about his poor work performance, actions were taken against him because of those allegations but he has not been told what the allegations are and he has not had an opportunity to respond to them. He contends that this is a denial of procedural fairness.
3. The SES contends that this document was prepared by a witness for the purposes of an investigation and that it was provided in confidence. It submits that investigations are necessary to resolve issues that would prevent it serving its functions and that disclosure of the withheld information could reasonably be expected to prejudice the supply of confidential information that facilitates the effective exercise of those functions: clause 1(d) in the table to section 14 of the GIPA Act.
4. This Tribunal has considered Clause 1(d) of the table to section 14 of the GIPA Act in a number of matters. See for example my discussion of various decisions in which the provision had been considered in Curtin v Lord Howe Island Board [2017] NSWCATAD 86 at paragraphs [68] - [77]. Those decisions suggest that the Tribunal is to engage in a relatively abstract analysis. The Tribunal is to ask whether, as a matter of reasonable expectation, if material of the kind sought to be protected were released, could it prejudice the supply of similar material to government in the future. In this context the word 'prejudice' is to be given its ordinary meaning, namely: 'to cause detriment or disadvantage'. It is not necessary that the decision-maker be satisfied that the release of the information will in fact prejudice the future supply of information.
5. The Tribunal is to consider the nature of the material sought to be protected, the extent to which material of that kind can only reasonably be obtained by confidential communication and the extent to which guarantees of confidentiality may be necessary. That is, would disclosure of the information sought damage the ability of the agency to obtain similar information in future? The agency's evidence is examined in regard to the conditions under which it conducts the service within which the information was received and the extent to which the information in issue facilitates the effective exercise of that agency's functions. The experience of the witnesses who expressed the relevant opinions is a significance factor.
6. The SES attributed a high level of weight to the public interest considerations in favour of disclosure. This was based on the view that Mr Speer is entitled to see why he had not been returned to his position as Deputy Region Controller. The SES also attributed a high level of weight to the public interest considerations against disclosure. This was based on the view that it is important that it ensures future cooperation is maintained so that poor investigations do not lead to dysfunction. If it does not have the cooperation of its staff members, this could impact on its ability to be an effective agency and protect persons and property and be an effective combat agency. The SES decided to refuse access to this document because it was of the view that it would not be possible to redact the document in a way that would hide the identity of the witness.
7. [Not for publication]
8. [Not for publication]
9. [Not for publication]
10. [Not for publication]
11. I accept that release of the withheld information could reasonably be expected to have some impact on the supply of information in the future. However, I do not accept that the prejudice would be so great that the agency would be unable to obtain the evidence that it would require for the investigation.
12. In my view, greater weight should be given to the public interest considerations in favour of disclosure than to those against disclosure. It follows that the SES decision to refuse to release the document titled Ken Speer Performance Management should be set aside. In its place the decision is made that the document is released.

Item 4 - redacted information

1. Mr Speer seeks the information that has been redacted from pages 52 to 86 if it relates to him. The SES position is that the redacted information comprises personal information of others. It including the mobile phone number and signature of a member of the public and the names of witnesses to an investigation. I am satisfied that the mobile phone number and signature is 'personal information' for the purposes of the GIPA Act. I also agree that the disclosure of that information could reasonably be expected to reveal personal information and contravene the information protection principle relating to disclosure: see clauses 3(a) and 3(b) of the table to section 14 of the GIPA Act.
2. Nevertheless, this information does not relate to Mr Speer and therefore is outside the scope of the information that he has requested.
3. The names of witnesses to an investigation may also be 'personal information' for the purposes of the GIPA Act. However, it could also be regraded as relating to Mr Speer if he is the subject of the investigation.
4. The SES position is that the disclosure of the names of witnesses could reasonably be expected to prejudice the supply of confidential information that facilitates the effective exercise of its functions: clause 1(d) of the table to section 14 of the GIPA Act. The SES has refused access to the names of witnesses but provided access to the remainder of the document.
5. I agree with that approach. I accept that there is a pubic interest consideration in favour of release of this information because it would allow Mr Speer to ascertain the identities of those who were prepared to give evidence in relation to him. I have no evidence from any of the witnesses in regard to how they would be affected by the release of this information. However, I accept that if this information were released, it may mean that witnesses would be more reluctant to give evidence in the future. In the circumstances, given that most of the information contained within these documents has been released, it is my view that the public interest consideration against disclosure should be given greater weight than those in favour of release.
6. Accordingly, the decision to refused access to this information should be affirmed.

Item 7 - documents relating to Mr Speer's performance from Allison Flaxman and Belinda Davies

1. These issues relates to Mr Speer's request for documents relating to the assessment of his abilities and work performance from 16 November 2015 to 6 September 2017. He contends that there should have been other information located by the SES as a result of the searches that were undertaken.
2. In regard to Item 7 he wrote: Ms Allison Flaxman has been my supervisor since October 2015 and I find it difficult to believe that there have been no documents relating to my work performance in that 16 month period. In my amended request (26 September) I requested any documents relating to my performance from Allison Flaxman (point 5) and Belinda Davies (point 6) and this should have also been covered by Ms Campbell's term 1, but nothing was supplied from either of these two people and was not referred to in Notice of Decision as not being released. An email (page 77) from Kaylene Jones to Allison Flaxman dated 24 June 2016, asks Ms Flaxman to "prepare a report on your observations of Ken Speers performance in line with the current performance agreement. You will need to obtain a report from Belinda Davies as well," Neither these documents nor any others from either person have been supplied to me. I seek these documents and others not released.
3. Ms Sheeley gave evidence in regard to the searches that were undertaken. She identified all the documents that were located by the searches in the schedule to the determination. Her evidence is that no further material has been located.
4. In her evidence before the Tribunal Ms Sheeley stated that she had specifically asked Ms Flaxman and Ms Jones for the requested information. Ms Jones provided what was located. Ms Flaxman had undertaken searches of Outlook, Trim, email, desktop and hardcopy files. No further material was located. Ms Sheeley stated that she had been advised that only verbal reports had been provided.
5. Mr Speer has suggested that the failure to keep file notes is not in accordance with good governance practices and which are expected of senior officers. This suggestion does not assist. There must be reasonable grounds to believe that the agency holds more information than it has identified. It is not enough for an applicant merely to assert non-compliance on the basis of general distrust of the agency. Mr Speer has not suggested other searches that could be undertaken to locate this information.
6. In the circumstances I have no basis on which I could conclude that the information that Mr Speer is seeking is held by the agency. That being the case it is my view that searches that have been undertaken are reasonable and the SES does not hold further information that falls within these aspects of the request.

Item 6 - Amanda Williamson emails

1. Mr Speer stated that he has been told that Ms Williamson had sent emails making allegations about his work performance. He noted that these emails have not been released.
2. As noted above, Ms Sheeley gave evidence in regard to the searches that were undertaken. Her evidence is that no further material has been located.
3. Mr Speer has not suggested other searches that could be undertaken to locate this information.
4. In the circumstances I have no basis on which I could conclude that the information that Mr Speer is seeking is held by the agency. That being the case it is my view that the searches that have been undertaken are reasonable and that the SES does not hold further information that falls within this aspect of the request.

Item 8 - documents between Amanda Williamson, Simon Merrick and Jim McArthur.

1. Mr Speer stated that this issue was not addressed at all in the determination and no information was provided. He seeks the release of these documents or confirmation that no such documents exist.
2. As noted above, Ms Sheeley gave evidence in regard to the searches that were undertaken and she identified the documents that were located by the searches. Her evidence is that no further material has been located.
3. Mr Speer has not suggested other searches that could be undertaken to locate this information.
4. In the circumstances I have no basis on which I could conclude that the information that Mr Speer is seeking is held by the agency. That being the case it is my view that the searches that have been undertaken were reasonable and the SES does not hold further information that falls within this aspect of the request.

Item 9 - witness statements

1. Mr Speer stated that no witness statements have been supplied in regards to the two investigations carried out on behalf of the SES. He seeks all the witness statements relevant to himself.
2. In her evidence before the Tribunal Ms Sheeley confirmed that full statements were provided in the report provided by Nemesis Consultancy Group. However, she stated that the SES does not hold those statements.
3. Mr Speer has not suggested other searches that could be undertaken to locate this information.
4. In the circumstances I have no basis on which I could conclude that the information that Mr Speer is seeking is held by the agency. That being the case it is my view that the searches that have been undertaken were reasonable and the SES does not hold further information that falls within this aspect of the request.

Orders

1. The decision by the NSW State Emergency Service to refuse to release the document titled Ken Speer Performance Management should be set aside. In its place the decision is made that the document is released.
2. The matter is remitted to the NSW State Emergency Service to allow it to undertake a review of other information that has been redacted to ascertain whether additional information should also be released as a consequence of Order 1.
3. A decision on the remitted issue is to be completed by 26 October 2018.
4. The matter is to be listed for further case conference on 30 October at 9.30 am.
5. The decision under review is otherwise affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 September 2018