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[2013] NSWADT 178
procedural. Pursuant to para 63(3)(d) of the Administrative Decisions Tribunal Act 1997, the decision of the respondent is set aside and remitted for reconsideration in accordance with the findings as set out...
A public servant caught up in a workplace review that led to misconduct allegations against him asked for a copy of the review report and the secret memo that triggered his suspension. The agency let him read the report under supervision but refused to hand over a copy or the memo, saying confidentiality and future cooperation would be damaged. The Tribunal ruled the agency had used the wrong legal test: public-interest balancing decides whether you get access at all; once access is granted, the form (copy or view-only) is a practical question. Because the applicant needed the material to defend himself, he was entitled to a redacted copy of everything that concerned him personally. Parts referring to other staff or unrevealed allegations could be blacked out. The same logic applied to the memo: he gets the bits already shown to him in the suspension letter; the rest stays secret.
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Damian Warren was a long-serving supervisor in the Client Assets Branch (CAB) of NSW Trustee and Guardian, the agency responsible for managing the finances of people under financial management orders. In late 2011 the agency's CEO, Ms Imelda Dodds, commissioned an external consultant, Ms Joy Woodhouse, to conduct a "Workplace Review" after client complaints, an Ombudsman report and successive audit reports identified serious systemic failings. The terms of reference were deliberately broad: working arrangements, interpersonal relationships, culture, recruitment, delegations, structure, communication protocols and any other matters. Ms Woodhouse interviewed roughly two-thirds of CAB staff, including Mr Warren and the manager Ms Sharon Minns, on the explicit assurance that comments would be treated confidentially, no individuals would be identified in the final report, and the exercise was not a "witch hunt".
In April 2012 Ms Woodhouse delivered a 45-page Report marked "Confidential" together with a separate five-page Memorandum placed in a sealed envelope. The Memorandum recorded specific allegations of workplace misconduct made by staff about Mr Warren and another manager. These allegations were outside the original review scope but Ms Woodhouse felt duty-bound to pass them on. Ten days before any staff briefing, Mr Warren was suspended on full pay and given a letter from the Director-General of the Attorney General's Department that particularised the allegations against him and named the staff members said to be the victims of his conduct. The letter made clear the allegations had emerged during the Woodhouse review.
On 24 May 2012 Mr Warren lodged a GIPA request for the Report, its recommendations and Ms Woodhouse's notes, offering de-identification if necessary. The agency ultimately decided he could inspect the Report under supervision and take notes but could not have a copy. An internal review affirmed that stance. Only after Mr Warren commenced Tribunal proceedings did he learn of the existence of the Memorandum. On remittal under s 65 of the ADT Act the internal reviewer again refused a copy of the Report and decided the Memorandum was outside the original request. By the time of the Tribunal hearing the agency no longer pressed the "outside scope" argument but contended there was an overriding public interest against disclosure of the entire Memorandum. The disciplinary investigation was later completed and the allegations against Mr Warren were found unsubstantiated; he returned to work.
The Tribunal received the Report, the Memorandum and parts of Ms Dodds' evidence in confidence pursuant to s 107 of the GIPA Act. After a hearing on 21 February 2013, Deputy President Higgins delivered detailed reasons on 7 August 2013. She found the agency's decision-making approach fundamentally misconceived, set the decision aside under s 63(3)(d) of the ADT Act and remitted it for reconsideration on the basis of explicit findings about which categories of information must be released to Mr Warren by way of copy (with deletions) and which could be withheld.
The Tribunal's reasoning rests on a close textual and structural reading of the GIPA Act. Deputy President Higgins began by emphasising the statutory objects in s 3 and the presumption in favour of disclosure in s 5. She reminded herself that the only public interest considerations against disclosure are those listed in the Table to s 14 or in Sch 1, and that the balancing exercise required by s 13 must be undertaken in accordance with the principles in s 15.
Crucially, she held that the structured decision-making process described by the Appeal Panel in Camilleri (at [25]) applies to the access decision under s 58, not to the subsequent administrative question of form under s 72. Once an agency has decided that access should be given, the default position is that it must be given in the form requested (s 72(2)). The four exceptions in s 72(2)(a)–(d) are narrow. Paragraph (a) concerns practical interference with the agency's processes of providing access, not its broader statutory functions. Paragraph (d) is engaged only where there is an overriding public interest against disclosure of the information in the way requested; it is not an invitation to re-run the entire s 13 test for every form-of-access dispute. This construction is reinforced by the long history of identical provisions in the former FOI Act 1989 and in other Australian jurisdictions, none of which had been read as allowing exempt-matter arguments to dictate form.
Applying that framework, the Tribunal accepted that cl 1(d) (prejudice supply of confidential information), cl 1(f) (prejudice effective exercise of functions) and cl 1(h) (prejudice effectiveness of a review) applied at an abstract level to the confidential staff contributions and to the description of Ms Woodhouse's methodology. Ms Dodds' evidence that staff had been promised confidentiality and that wholesale disclosure in a previous workplace had produced "catastrophic" distraction was accepted as establishing a reasonable expectation of prejudice. However, the Tribunal insisted on granular analysis. Information that was not confidential staff comment, that had already been disclosed in substance to staff, or that concerned only the terms of reference and high-level recommendations did not attract the same weight.
Personal information considerations under cl 3(a) had been overlooked by the agency except in relation to Mr Warren (where it was treated only as a factor in favour). The Tribunal held that cl 3(a) was a live consideration against disclosure for third-party staff information. Conversely, because the allegations against Mr Warren had already been particularised in the Director-General's suspension letter, that portion of the Memorandum had been "revealed" within the meaning of cl 1 of Sch 4. The cl 3(a) consideration therefore did not apply to it. The applicant's identity, his direct interest in responding to disciplinary action, and the principles of procedural fairness and natural justice were powerful personal factors in favour under s 55. Ms Minns had no objection to release of material concerning her. In contrast, the risk of "serious harassment or serious intimidation" required by cl 3(f) was not made out; subjective fears of some staff and general workplace tension fell short of the statutory threshold.
The result was a nuanced outcome: Mr Warren was entitled to a copy of the sections and attachments containing his own contributions, Ms Minns' contributions, and the specific allegations already revealed to him. All other matter—third-party personal information, unrevealed confidential allegations, and review methodology that could prejudice future exercises—could lawfully be deleted under s 74 before a copy was supplied. Because the agency had not approached its task on this basis, the decision was set aside and remitted with these binding findings.
Prior to the GIPA Act the FOI Act 1989 contained a similar form-of-access provision (s 27(3)) but operated against a different public-interest backdrop. Exemptions were more numerous and included a broad "internal working documents" exemption. Agencies routinely refused copies of sensitive investigation reports on the basis that the document as a whole was exempt. The GIPA Act deliberately narrowed the considerations against disclosure to a closed list, abolished the conclusive exemptions (except Sch 1), and introduced an explicit objects clause and s 15 principles that forbid reliance on embarrassment or possible misinterpretation.
Warren is the first detailed Tribunal examination of how the new s 72(2)(d) interacts with the public-interest test. Before Warren some agencies and reviewers appeared to treat the form-of-access decision as simply another opportunity to re-weigh all s 14 considerations. The decision makes clear that this is wrong. The access decision comes first. Only after access has been granted (or partial access granted under s 74) does the agency ask whether the requested form would itself cause one of the four enumerated harms. The practical effect is to make unconditional copies the presumptive outcome wherever the access decision has favoured release, even of sensitive workplace review material.
After Warren the Information Commissioner issued guidelines that expressly cite the case for the proposition that form-of-access disputes should not become surrogate public-interest contests. Later decisions have applied the distinction between "access" and "form" without controversy. The case also sharpened the operation of cl 3(f): mere apprehension of workplace friction is insufficient; the risk must be of serious harassment or intimidation and must be objectively reasonable.
Paragraph [53]: "In my view, the respondent's approach is misconceived and contrary to the proper construction of s 72(2) and the decision making processes within the GIPA Act in regard to the decision about access and the decision about the form of access."
Plain English: The agency got the legal structure backwards. Deciding whether you get to see something is one question; deciding whether you get a photocopy or just a supervised look is a different, narrower question.
Paragraph [60]–[61] (adopting Camilleri): The Tribunal must first decide if a consideration against disclosure "could reasonably be expected to" have the prohibited effect at a general, abstract level before weighing that consideration against the specific factors favouring release in the instant case.
Plain English: You look at the type of information and the type of agency function first, without getting lost in the individual drama. Only after deciding the prejudice is real in a general sense do you weigh how strong the applicant's personal need is.
Paragraph [94]: "What must be established is a reasonable expectation of a risk of 'serious' harassment or 'serious' intimidation if the information is disclosed... Ms Dodds acknowledged that since his return to work, there was no evidence of the applicant having engaged in conduct of this nature, let alone, conduct of this nature which was serious."
Plain English: It is not enough that some staff feel nervous. The law demands proof of a real chance of serious bullying or threats. Past behaviour and the applicant's assurances mattered.
Paragraph [98]: "It is well accepted that information of this kind should be protected from disclosure: see Williams... the verbatim content of the interviews were not revealed in the investigation report."
Plain English: Even if you get the summary report, you do not automatically get the raw interview transcripts. That principle survives under the GIPA Act for material that has never been shown to the applicant.
Warren is triggered whenever an agency grants access (or partial access) to a workplace review, investigation report or similar document but then refuses the applicant's preferred form—usually a copy—on public-interest grounds. The paradigm case involves an employee who is the subject of adverse comment in a review that later spawns disciplinary action. Three elements must coincide: (1) the applicant seeks his or her own personal information or information already partially revealed; (2) procedural fairness or natural justice considerations are engaged; and (3) the agency has relied on cl 1(d), 1(f), 1(h) or 3(a) to justify withholding a copy.
The decision also applies to any attempt to re-litigate the entire public-interest test at the form-of-access stage, to any failure to differentiate between revealed and unrevealed personal information, and to any reliance on cl 3(f) without evidence of serious harassment risk. It is not limited to NSW Trustee and Guardian; any agency that commissions confidential reviews (health services, police, local councils, universities) must now approach form-of-access decisions on the narrowed basis set out in [53]–[59]. Requests for deletion under s 74 rather than outright refusal are the expected outcome.
Warren has been favourably cited in numerous subsequent ADT and NCAT decisions. In Miskelly v NSW Department of Education [2014] NSWCATAD 26 the Tribunal applied the separation of access and form decisions to refuse an agency's attempt to impose a "view only" regime on a bullying investigation report; the applicant received a redacted copy. Ainsworth v NSW Police Force [2014] NSWCATAD 52 followed the abstract-prejudice analysis for cl 1(d) but distinguished Warren on the facts because the applicant was not the subject of the allegations and no disciplinary process was on foot.
The Appeal Panel in Department of Family and Community Services v Hall [2015] NSWCATAP 13 cited Warren with approval for the proposition that once information has been revealed in one document it loses cl 3(a) protection in related documents. More recently, Zonnevylle v Department of Education [2020] NSWCATAD 86 relied on Warren's granular balancing to order release of an applicant's own comments in a workplace culture survey while protecting third-party identities. No decision has doubted the central holding on the construction of s 72(2). The case is now standard citation in Information Commissioner guidelines on form of access and in agency training materials.
Several questions remain unresolved. First, the precise boundary between "revealed" and "unrevealed" personal information is fact-sensitive. If an allegation is paraphrased in a suspension letter but the Memorandum contains additional verbatim detail or context, does the additional detail remain protected? Warren suggests it does, but later cases have not tested the outer limit.
Second, the interaction between s 72(2)(d) and s 74 deletions is not fully mapped. If an agency can delete exempt matter and still provide a copy, when (if ever) will provision of that redacted copy itself engage an overriding public interest against disclosure "in the way requested"? The Tribunal left open the possibility that widespread distribution risk could still justify view-only access in extreme cases, but gave no example.
Third, the weight to be given to an applicant's assurance that he or she will not harass or intimidate remains unclear. In Warren the absence of any post-return adverse conduct was decisive, but what if the applicant has a prior history? Clause 3(f) looks to future risk, yet agencies may be reluctant to rely solely on undertakings.
Fourth, the decision assumes the review was not itself an "investigation" for cl 1(h) purposes. Where a review morphs into a misconduct inquiry, the analysis may differ. Finally, the Tribunal did not decide whether an agency can impose a condition preventing further copying or distribution once a copy is released; s 73(2) permits conditions only to avoid an overriding public interest against disclosure, but the circumstances remain untested.
These open questions mean that while Warren provides a clear roadmap for the ordinary workplace-review case, agencies and applicants must still undertake careful, document-by-document analysis in borderline situations. Practitioners should pay close attention to the exact wording of suspension or show-cause letters, because that wording may determine whether material has been "revealed" and therefore loses its cl 3(a) protection.
Introduction 1This is an application, by Damian Warren (applicant), seeking review of a decision, of NSW Trustee and Guardian (respondent), made pursuant to the Government Information (Public Access) Act 2009 (GIPA Act), in regard to his request for access to specific government information. That request was made on 24 May 2012 and the terms of the request included the following: 'The NSW Trustee and Guardian Assets Branch "Workplace Review" carried out and now completed that was due for completion in the first quarter of 2012. ...' 2Attached to the applicant's access request was a short letter in which the applicant explained the circumstances giving rise to his GIPA request. In that letter the applicant said: 'I respectfully request that I be furnished with a copy of the report, its recommendations and notes made by Miss Woodhouse. These can of course be de-identified if deemed necessary by yourself.' 3The 'Workplace Review' is a report of a review, commissioned, in December 2011, by Ms Imelda Dodds, the Chief Executive Officer of the respondent, into the Client Assets Branch (CAB) of the respondent. Ms Woodhouse, of Woodhouse Consulting Services, was commissioned to undertake the review and report on her findings. In April 2012, on completion of her review, Ms Woodhouse provided the respondent with her 'Workplace Review' report (the Report). Unbeknown to the applicant at the time he made his access request, Ms Woodhouse had also provided Ms Dodds with a confidential memorandum (the Memorandum) that set out allegations of workplace misconduct, made by persons she had spoken to in the course of her review. Some of the allegations recorded in the Memorandum related to the applicant. 4The CAB of the respondent is responsible for administering assets, both real and personal, of persons under financial management orders pursuant to s 41 of the NSW Trustee and Guardian Act 2009. The applicant is employed in that Branch and has been so employed for a number of years. 5Shortly after the respondent received Ms Woodhouse's Report, on or about 11 May 2012, the applicant was given written notice of a decision of the Director-General of the Attorney General's Department (Director-General) to commence a disciplinary investigation into allegations, made against him, of inappropriate workplace conduct. The applicant was informed that the allegations arose during the course of Ms Woodhouse's review. The applicant was also informed about the nature of the allegations that had been made, including the names of the staff members within the CAB who were the subject of the alleged misconduct. The applicant was suspended on full pay, pending an investigation into allegations. It was in that context the applicant sought access to the Report so that he could 'fully understand and respond to the allegations contained in the report'. It should be noted that, in the latter part of 2012, the applicant was informed that the allegations had not been substantiated and the applicant resumed his employment with the respondent. 6On 4 July 2012, the applicant was granted access to the Report. He was granted access by being allowed to view the Report. That viewing was a supervised viewing, where the applicant was at liberty to take notes, but not make any copies of the Report. The applicant being dissatisfied with the decision about the form of access, sought an internal review. When the internal review decision affirmed the original decision, the applicant lodged this application. 7It was not until after he lodged this application that he became aware of the existence of the Memorandum. Once he did become aware of the Memorandum he pressed access to the information in that document. 8On 2 October 2012, at the first planning meeting, by consent, I made an order under s 65 of the Administrative Decisions Tribunal Act 1997 (ADT Act), remitting the respondent's internal review decision for reconsideration. The respondent also undertook to consider the applicant's assertion that the information in the Memorandum also fell within the terms of his access request. On 22 October 2012, Ms Pollard, the internal reviewer, made her determination on reconsideration. It is that decision which is now the subject of this application: see subs 65(3) of the ADT Act. 9In her decision, on reconsideration, Ms Pollard affirmed her earlier decision in regard to the form of access to the information in the Report and found that the information in the Memorandum did not fall within the terms of the applicant's 24 May 2012 request for access. 10At the hearing of the application, the respondent did not press its position in regard to the Memorandum not falling within the applicant's access request. However, it contended that there was an overriding public interest against disclosure of the entirety of the information in that document. 11Accordingly, the issues for determination in this application are as follows: (a) whether the decision of the respondent in regard to the form of access to the information in the Report is the correct and preferred decision? This issue involves, in part, consideration of the proper construction and application of para 72(2)(a) and (d) of the GIPA Act. It also involves consideration of the correct approach in determining an access application under the GIPA Act where it is found that there is a public interest against disclosure of the information in issue; and (b) whether the contentions of the respondent that access to the information in the Memorandum should be refused, on the grounds that there is an overriding public interest against disclosure of this information, is the correct and preferred decision. 12The applicant's review application is determined on the basis of the applicable law and the relevant facts as at the time of hearing and the role of the tribunal is to determine whether the decision of the respondent is the correct and preferred decision (see subs 63(1) of the ADT Act). 13For the reasons set out below, I have found that the decisions and contentions of the respondent in regard to the information in the Report and the Memorandum are not, in part, the correct and preferred decision. As my findings are based on the respondent having incorrectly approached its decision making task under the GIPA Act, I have determined that the decision of the respondent should be set aside and remitted for further consideration in accordance with these reasons for decision.
The GIPA Act 14The provisions in the GIPA Act are divided into seven Parts. Part 1 contains provisions in regard to preliminary matters such as the object of the Act and the interpretation of specified terms and words used within the Act. For the purpose of this application, the relevant provisions are s 3 and 4. 15S 3 sets out the objects of the GIPA Act to be as follows: 3 Object of Act (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. (2) It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information. 16The term 'government information' is defined in section 4 of the GIPA Act to mean 'information contained in a record held by an agency'. The word 'record' and the phrase 'government information held by an agency' is defined in cls 10 and 12 of Schedule 4 of the GIPA Act. There is no dispute that the information, the subject of this application, is government information that is held by the respondent. 17Part 2 of the GIPA Act contains general principles in regard to access to government information. For the purpose of this application, the relevant sections ss 5, 9, 12, 13, 14 and 15. 18S 5 contains a presumption in favour of the disclosure of government information, unless there is an 'overriding public interest against disclosure'. And subs 9(1) gives every person who makes an access request for government information a legally enforceable right to be provided with access to the information in accordance with Part 4 of the Act unless there is 'an overriding public interest against disclosure of the information.' 19The test to be applied in determining whether there is an 'overriding public interest against disclosure' is set out in s 13. That test is in the following terms: 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. 20Subs 12(1) provides that there is a general public interest in favour of disclosure of government information. Subs 12(2) provides that public interest considerations in favour of disclosure are not limited. The section goes on to provide some examples of public interest considerations in favour of disclosure of government information. These include: Note. The following are examples of public interest considerations in favour of disclosure of information: (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. 21The public interest considerations against disclosure are limited. These are set out in s 14 of the GIPA Act. Subs 14(1) provides that government information described in Schedule 1 of the GIPA Act is to be conclusively presumed to give rise to a public interest consideration against disclosure. This provision does not apply to this application. 22Subs 14(2) sets out the only other public interest considerations against disclosure. For the purpose of this application, the relevant public interest considerations against disclosure are as follows: 14 Public interest considerations against disclosure (1) ... (2) 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. (3) ... (4) ... Table 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) ..., (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) ..., (h) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed). 2 .... 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) ..., (c) ..., (d) ..., (e) reveal false or unsubstantiated allegations about a person that are defamatory, (f) expose a person to a risk of harm or of serious harassment or serious intimidation, (g) ... 23Section 15 sets out the principles that are to be applied when determining whether there is an overriding public interest against disclosure. That section provides as follows: 15 Principles that apply to public interest determination A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles: (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. 24Part 4 of the GIPA Act contains provisions in regard to how an access request/application is to be made (Division 1), how it is to be dealt with (Division 3), how it is to be decided (Division 4), how and when a processing charge or advance deposit can be imposed (Division 5) and the form in which access is to be provided (Division 6). 25For the purpose of this application, the relevant provisions are ss 55 (in Division 3) and 58 (in Division 4) and ss 72, 73 and 74 (in Division 6) of the GIPA Act. 26S 55 makes provision for personal factors to be taken into account in determining where the public interest lies. That section is in the following terms: 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. 27S 58 sets out how an access request/application is to be decided. It is in the following terms: 58 How applications are decided (1) An agency decides an access application for government information by: (a) deciding to provide access to the information, or (b) deciding that the information is not held by the agency, or (c) deciding that the information is already available to the applicant (see section 59), or (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or (e) deciding to refuse to deal with the application (see section 60), or (f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact. Note. These decisions are reviewable under Part 5. (2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for. (3) If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired. 28S 72 makes provision for the form in which access can be provided. That section is in the following terms: 72 Forms of access (1) Access to government information in response to an access application may be provided in any of the following ways: (a) by providing a reasonable opportunity to inspect a record containing the information, (b) by providing a copy of a record containing the information, (c) by providing access to a record containing the information, together with such facilities as may be necessary to enable the information to be read, viewed or listened to (as appropriate to the kind of record concerned), (d) by providing a written transcript of the information in the case of information recorded in an audio record or recorded in shorthand or other encoded format. (2) The agency must provide access in the way requested by the applicant unless: (a) to do so would interfere unreasonably with the operations of the agency or would result in the agency incurring unreasonable additional costs, or (b) to do so would be detrimental to the proper preservation of the record, or (c) to do so would involve an infringement of copyright, or (d) there is an overriding public interest against disclosure of the information in the way requested by the applicant. Note. Decisions about how to provide access are reviewable under Part 5. 29S 73 provides that where a decision is made to grant access to government information, subject to the prescribed exceptions, that access is unconditional. That section is in the following terms: 73 Access to be unconditional (1) 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. (2) A condition may be imposed as to how a right of access may be exercised (such as a condition that prevents an applicant making notes from or taking a copy of a record that is made available for inspection) but only to avoid there being an overriding public interest against disclosure of the information. (3) A condition may be imposed that access to medical or psychiatric information will only be provided to a medical practitioner nominated by the applicant and not to the applicant personally. Note. Access can also be made conditional on the payment of processing charges (s 64) and on the provision of evidence of identity or other personal factors relevant to the agency's decision to provide access (s 55). 30S 74 makes provision for deletions of information from a copy of a record. That section is in the following terms: 74 Deletion of information from copy of record to be accessed An agency can delete information from a copy of a record to which access is to be provided in response to an access application (so as to provide access only to the other information that the record contains) either because the deleted information is not relevant to the information applied for or because (if the deleted information was applied for) the agency has decided to refuse to provide access to that information. 31Part 5 of the GIPA Act deals with reviews of decisions by an agency under Part 4 of that Act (e.g. a decision under ss 58 and 72). Division 4 in Part 5 contains provisions in regard to reviews by the Tribunal. There is no dispute, in this application, that the Tribunal has jurisdiction to review the decision of the respondent in regard to the applicant's access request. However, subs 105(1) of the GIPA Act places the onus on the respondent to justify its decision the subject of review. 32S 107 of the GIPA Act sets out the procedure to be used, by the Tribunal, in regard to information for which there is, or claimed to be an overriding public interest consideration against disclosure, when reviewing a decision of an agency. The provision essentially requires the Tribunal to ensure that it does not disclose, in its decision or during the course of the hearing, such information to the applicant, the applicant's legal representative, or the public. In this application, the applicant has had access to the information in the Report. However, there has not been a public disclosure of that information.
Evidence 33The respondent tendered into evidence the following material:
The evidence 38In her initial statement, Ms Dodds explained that she had commissioned the review of the CAB following complaints made by clients, a report of the Ombudsman which highlighted concerns about the internal operations of the CAB and a series of audit reports 'which identified significant risks in the operations of the branch.' 39Ms Dodds said the terms of reference for the review included 'issues of internal delegation, communication protocols, and Branch structure.' She said she asked Ms Woodhouse to take into account the concerns of the Ombudsman and the outcomes of the audit reports. The focus of the review, she said, 'was intended to be the structure and practices of the CAB, and other systematic, Branch-wide issues, with a view to identifying factors contributing to CAB's poor performance.' In her second statement, Ms Dodds, said she had advised staff, in a memorandum, on 12 December 2011, of the review, its terms of reference and that Ms Woodhouse had been appointed to undertake the review. A copy of that memorandum is attached to Ms Dodds' statement. So far is relevant the memorandum is in the following terms: A Workplace Review is to be undertaken into the ongoing occurrence of a number of systematic, administrative and management issues within the NSW Trustee and Guardian, Client Assets Branch. ... ...[the] Director General has approved the following terms of reference for the Workplace Review: -Working arrangements -Interpersonal relationships, within the Client Assets ---Branch and between other branches of NSW Trustee and Guardian -Culture -Recruitment and selection practices -Internal delegation -Structure / reporting arrangements -Communication protocols -Concerns raised within an investigation undertaken by the NSW Ombudsman regarding the administration of financial assets -Any other matters identified for further inquiry and review 40In her first statement, Ms Dodds explained that in conducting her review, Ms Woodhouse carried out interviews with approximately two-thirds of the employees of the CAB. This included a random selection of staff across different position grades and areas, as well as 8 additional staff who voluntarily participated in the review. Ms Woodhouse interviewed the applicant and Ms Minns in the course of her review. I understand they were part of the random selection of staff. 41Ms Dodds said that Ms Woodhouse had informed those she interviewed that she was 'interested in thematic trends and was not conducting a "witch hunt" targeted at individuals' and that no identifying information would be used in the report. This I note is consistent with the applicant's evidence, he being one of the staff members interviewed by Ms Woodhouse. 42As I have noted, Ms Woodhouse provided her report to Ms Dodds on 13 April 2012. The Report is 45 pages in length. The cover page to the report is marked 'Confidential'. Attached to the Report are a number of attachments. 43In her further supplementary statement, Ms Dodds explained that, on 22 May 2012, she provided a preliminary briefing to staff of the CAB about the outcome of the review. She said she advised 'in very broad terms of the recommendations of the review' and that further details would be provided once the Director-General had an opportunity to finalise his comments. As I have explained, some 10 days prior to this, the applicant was suspended from his position within the CAB as were others. 44Ms Dodds said that on 20 June 2012, she sent an email to staff within the CAB advising that the Director-General had accepted the findings of the review and that a working party would be formed to develop and implement strategies based on the recommendations. Attached to Ms Dodds' email was a document setting out the 'Key Findings and Recommendations.' 45In regard to who had been provided with copies of the Report, Ms Dodds said that this was very limited. She said the only persons, other than herself, who were given a copy of the Report, were the Director-General, the relevant Director of the CAB, Ms Day, the Attorney General's Employee Relations Unit, the respondent's principal legal officer and the respondent's solicitor in these proceedings. As I have mentioned, a copy has also been provided to the tribunal on a confidential basis. 46It was the evidence of Ms Dodds that in her experience 'when the outcomes of such Reviews, but not the details of the investigation are made known to staff, staff tend to react positively and to have a proactive desire to implement change within the workplace.' She went on to explain her experience in another workplace where there had been a high level of disclosure of the details of an investigation. In that case she said the outcome of the review was catastrophic in that staff did not focus on resolving the issue at hand. Instead they concentrated on who said what.
The decisions of the respondent 47As I have indicated, the first decision (original determination) in regard to the applicant's access request, was made, by Ms Day, on 22 June 2012. In her decision, after noting the applicant's right to access under subs 9(1) of the GIPA Act and the public interest test in s 13 of that Act, Ms Day said: '2. Reasons for decision ... [The] Report was prepared after consultation with staff and contains information that was obtained on a confidential basis. Section 14 of the GIPAA sets out the circumstances in which there is conclusively presumed to be an overriding public interest against disclosure. This includes where disclosure could prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions. I have determined that whilst this is a public interest consideration against disclosure of the information sought, it is outweighed by the interests of procedural fairness for you to have knowledge of information which concerns you. 3. Access period .... 4. Form of Access You have asked to be provided with access to the information sought by photocopy. Section 72 GIPPA provides that access may be provided in a number of ways. I have determined that access is to be granted on an inspection basis, with no right to obtain a copy of the report. The reason for this form of access is to protect the confidentiality of the document. Whilst I have determined that the report should be released to you for public interest reasons based on procedural fairness, this is not so in respect of others. The report remains confidential and in respect of staff generally, the need to protect the integrity of the Workplace Review process and the privacy rights of the persons who provided information, remains an overriding public interest. ... 48In her internal review decision, Ms Reece Pollard, Assistant Director Legal Services of the respondent, found that there was 'an overriding public interest in favour of disclosure' of the Report. She noted that the Report had been commissioned to identify systemic, administrative and management issues within the CAB and that the applicant was a supervisor within the largest team within that Branch and was therefore 'very involved in and responsible for the culture, structure and other matters relevant to the Review'. She noted that during the course of the review allegations were made about the applicant and that disciplinary procedures had commenced against him. She said that 'disciplinary procedures against an employee must be subject to the principles of natural justice or, ... to administrative decision-making, principles of procedural fairness'. She found that this could be met by the applicant receiving all relevant information to prepare his defence/response and concluded that the interests of procedural fairness outweighed the overriding public interest against disclosure. However, she affirmed the original decision about the form of access for the following reasons: '1. Joy Woodhouse advised staff that there would be no identifying information used in the Review. If the Review was copied and distributed staff would lack confidence in the undertaking of the Reviewer and any such future undertakings would not be believed. 2. The Review was provided to the agency on a confidential basis to assist in taking action to remedy problems identified by audit and by the Ombudsman's Investigation, itself a confidential report. 3. If copies were circulated there could be a loss of reputation of NSWDG. 49In her decision, on re-consideration, Ms Pollard again affirmed her decision, that on grounds of public interest considerations the applicant should not be granted access to the information in the form requested (i.e. a copy). In that regard she referred to the public interest considerations in item 1(d), (f) and (h) of the table in subs 14(2) of the GIPA Act and gave the following reasons for her conclusions: 1. The Report was provided on a confidential basis and although (the applicant) has seen a copy of the Report, providing him with a copy is very different. Possessing a copy would enable distribution with a greater chance of those involved in the review of losing confidence in promises of any comments being made remaining confidential. 2. The Report resulted from concerns about the lack of effective exercise of agency functions within Assets Branch and the implementation of the recommendations set out in the Report are continuing. 3. Any release of a copy could prejudice or affect the conduct of the review.
Consideration 50It is the respondent's contention that the only issue for determination in regard to the information in the Report is the form of access. As can be seen from the above decisions, the respondent determined that the public interest consideration in favour of disclosure (i.e. procedural fairness) was an overriding one. That is, it determined that the applicant should be granted access to the information in the Report. However, access in the form requested by the applicant (a copy of the Report) was refused also on grounds of public interest considerations. The respondent contended that para 72(2)(d) of the GIPA Act incorporated the application of the s 13 public interest test into the decision making task as to form of access. 51At the hearing, the respondent also relied on para 72(2)(a) of the GIPA Act (interfere unreasonably with the respondent's operations) as a ground to support its decision that the form of access requested by the applicant was inappropriate. In this regard the respondent contends that 'operation', in the context of para 72(2)(a), means the 'process by which [the agency] carries out its functions, where 'functions' has the same meaning as in s 14'. That is, the public interest considerations against disclosure, set out in the table to subs 14(2), were also relevant to the decision about the form of access. 52The relevant public interest considerations relied on by the respondent in regard to the form of access were those set out in 1(d), (f) and (h) of the table in subs 14(2) of that Act. 53For the reasons set out below, in my view, the respondent's approach is misconceived and contrary to the proper construction of s 72(2) and the decision making processes within the GIPA Act in regard to the decision about access and the decision about the form of access. In my view, the public interest considerations in ss 12 and 14 are primarily matters relevant to the decision making task about access under s 58 of the GIPA Act and the decision making task about the form of access are matters of practicality/administration having regard to the decision made about access. In regard to the decision making process under subs 58(1), that decision is one in respect of information and subs 58(2) makes provision for access decisions to be made in regard to the 'various items of information' in a record. 54The forms in which access can be provided are prescribed in subs 72(1). Subs 72(2) contains the general principle that access is to be provided in the form requested by the access applicant and the only exception to this are the circumstances set out in para 72(2)(a) to (d) applies. A provision of this nature was contained in the repealed Freedom of Information Act 1989 (see subs 27(3)) and is also found in freedom of information legislation in all jurisdiction. 55The exceptions in para 72(2)(a) (in so far as it concerns unreasonable costs), para 72(2)(b) (detrimental to the preservation of the record) and para 72(2)(c) (breach of copyright) are all matters of a practical or administrative nature, which go solely to the question about the form of access. These are long established exceptions and the inference from their respective terms is that access, would otherwise be granted in the form requested. Nor have the form of access exceptions in the repealed FOI Act, been construed to include consideration of 'exempt matter', which was a ground for refusing access to a document. 56The GIPA Act however has two new exceptions to the general rule about the form of access. These are those relied on by the respondent and found in para 72(2)(a) concerning the 'operations' of an agency and the exception in para 72(2)(d). The question is whether they should be construed to have a different effect. 57I agree with the respondent that the word 'operations', as it appears in para 72(2)(a), should be given its ordinary meaning (i.e. processes). However, the 'processes' to which the para is directed, in my view, are those available to the agency to provide the requested information in the form requested by the access applicant and not the processes relevant to the 'functions' of the agency. The processes, available to the agency to provide the information in the form requested, will vary depending on the form requested and the form in which the 'government information' is held by the agency. As I have explained, 'government information' is defined in s 4 to mean 'information contained in a record held by and agency'. The word 'record' is broadly defined in cl 10 of Schedule 4 of the Act to mean 'information compiled, recorded or stored in written form or by electronic process, or in any other manner or by any other means.' Given the various forms in which records can be held, the information sought by an access applicant may not necessarily be held in the form requested by the applicant. However, where the information requested is held in a documentary form and the access applicant seeks access to a copy of thereof, it is difficult to see how this provision could have any application. 58This construction of para 72(2)(a) is consistent with the overall purpose of s 72, which deals with the issue of 'how' access is to be provided and not the issue as to whether access should be refused. Accordingly, I find that the 'operations' of an agency in para 72(2)(a) should be construed to have the same effect.. 59Para 72(2)(d) of the GIPA Act applies where there is an overriding public interest against disclosure of the information in the way requested by the applicant. I have considerable difficulty in understanding the meaning of this paragraph and how it is to be applied. In my view, it must be construed in its context, namely in the context of 'how' access is to be provided as opposed to the context of whether access is to be refused. This para is arguably complimentary to s 74, which makes provision for deletions of information within a record, which an agency has determined to refuse access. As I have explained above, a refusal to grant access to information can only be made where there is an overriding public interest against disclosure. Where a determination of this nature is made in respect of a portion of the information within a record, arguably para 72(2)(d) operates so as to ensure that the form of access of the record does not include that portion for which the determination of refusal of access has been made. 60In regard to a decision about access the Appeal Panel noted, in Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19, at [25], that the GIPA Act has a structured approach to the decision-making task about access to government information (i.e. the decision as to whether to grant access or refuse access under s 58 of the GIPA Act). In this regard the Appeal Panel said, where a decision maker forms the view that one or more of the public interest considerations against disclosure in subs 14(2) applies, the decision maker's task is to weigh these considerations against disclosure against the public interest considerations in favour of disclosure for the purpose of determining whether there is an overridding public interest against dislosure (the s 13 public interest test). That is, in such circumstances, the decision making procees a three step process: (a) identifying the public interest considerations in favour of disclosure (which are not closed), (b) identifying the public interest considerations against disclosure (which are closed as per s 14 of the GIPA Act) and then (c) determining where the balance lies. 61Set out below, are my findings, based on the public interest considerations against disclosure relied on by the respondent, in regard to the applicant's request for access to the information in the Report. 62Public interest considerations in favour of disclosure - There is no question that the information in the Report, in part, is personal information about the applicant (see cl 4 in Schedule 4 of the GIPA Act). However, in my view there are also a number of other public interest considerations in favour of disclosure. These are: - disclosure of the information could reasonably be expected to promote open discussion of public affairs and enhance the Government's accountability in administering the assets of persons the subject of a financial management order under the NSW Trustee and Guardianship Act 2009. Given the vulnerability of such persons, there is a strong public interest in such accountability, - disclosure of the information could reasonably be expected to contribute to positive and informed debate on important issues or matters of serious concern, - disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds, and - the information, in part, is personal information about the applicant, 63Public interest considerations against disclosure - The respondent has relied on cls 1(d), 1(f) and 1(h) of the table to subs 14(2) of the GIPA Act as the applicable public interest considerations against disclosure. 64It is accepted that the words 'could reasonably be expected to' in the introductory sentence of the clause (including cl 1) of the table in subs 14(2) 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 to have the prescribed consequences set out in the paragraphs to the relevant applicable clause: see McKinnon v Secretary, Department of Treasury [2006] HCA 45, at [61] and Attorney-General's Department v Cockcroft (1986) 10 FCR180, at 190. Accordingly, the enquiry that is required to be made, under cl 1 and the other clauses containing the same introductory words, is of a general and abstract nature. 65The Appeal Panel reiterated this approach, in Camilleri (supra) at [28]. At issue in that case was the name of the caller to the triple zero service operated by the NSW Police. As the public interest considerations relied on by the NSW Police in that application include those relied on by the respondent in this application it is useful to repeat the comments made by the Appeal Panel about the approach to be taken in determining if these public interest considerations against disclosure apply. 26We agree with the agency's submission that the section 14 questions needed to be examined at a broader operational level than occurred in this case. The record in issue was generated in one of the standard services of the police force. It would not be usual, as we see it, to introduce at this stage of the process considerations connected with the particulars of the instant situation. The agency acknowledged that at the next stage of the enquiry, the section 13 stage, it would be proper to have regard to specific aspects of the instant case. 27The approach to be adopted is similar to that commended by the Appeal Panel under the previous legislation, there in connection with cl 13(b)(ii). Clause 13(b)(ii) provided that 'a document is an exempt document if it contains matter the disclosure of which could reasonably be expected to prejudice the future supply of such information to the Government or to an agency'. Clause (b)(iii) went on to provide 'and would, on balance, be contrary to the public interest'. 28In Director General, Department of Education & Training v Mullett & anor (GD) [2002] NSWADTAP 13 (Mullett), the Appeal Panel said: 58 In our view cl 13(b)(ii) requires the Tribunal to engage in a relatively abstract analysis. It must ask whether material of the kind sought to be protected on the present occasion would, if released, prejudice the supply of similar material to government in the future, as a matter of reasonable expectation. That requires the Tribunal to characterise the nature of the material sought to be protected on the present occasion; to identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; the extent to which guarantees of confidentiality may be necessary. We agree with the dicta of Young CJ in Ryder v Booth [1985] VR 870 as to how a similar question arising under the Victorian FOI Act's in-confidence exemption (whether disclosure would be reasonably likely to impair the ability of an agency to obtain information communicated in confidence) should be approached. His Honour said at 872: `The question then is, would disclosure of the information sought impair (i.e. damage) the ability of the [agency] to obtain similar information in future. ... It may be noted that it is the ability of the [agency] that must be impaired. The paragraph is not concerned with the question whether the particular doctor whose report is disclosed will give similar information in future but with whether the agency will be able to obtain such information. ...' 29This approach was endorsed in many subsequent Tribunal and Appeal Panel decisions. The same approach is required, as we see it, in relation to many of the s 14 Table considerations. They squarely focus on considerations relating to the conduct of the business of government. Under the first five clauses of the section 14 Table there are a total of 35 possible 'effects' listed (clause 1, nine; clause 2, nine; clause 3, seven; clause 4, five; clause 5, five). Each of the five clauses is introduced by the words: 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:. 30The Tribunal is called on to examine whether the effect is established and then to ask whether the disclosure 'could reasonably be expected' to have the specified effect. 31In this case the Tribunal was required to form an opinion on whether disclosure of the information could reasonably be expected to have the effect of prejudicing the supply to an agency of confidential information that facilitates the effective exercise of the agency's functions (cl 1(d)); or, if not seen as 'confidential information', would nonetheless prejudice the effective exercise by an agency of the agency's functions (cl 1(f)). As to the different spheres of operation of cl 1(d) and cl 1(f) and their connection to the provisions of the previous legislation, see generally, Robinson, New South Wales Administrative Law (NSWAL service) [50.6890] and [50.6930]. 32The agency asserted that it ran the triple zero service as a confidential service. As we see it, the Tribunal approached the question - whether the information was confidential information for the purpose of cl 1(d) - primarily by drawing distinctions between various classes of communicator, and having regard to the particulars of the instant case. The danger of this approach is the subject of the observations of Young CJ in the early Victorian case, Ryder v Booth, referred to in Mullett. 33In 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. The agency's case is that all information received by the triple zero service at the point of receipt is treated as confidential. The agency's case is that members of the community expected the triple zero service to be a confidential service. In our view, the Tribunal did not adequately explain why it rejected the agency's case on this point. 34 ... 66Although the information the subject of this application did not arise out of a service provided by the respondent, I accept the evidence of Ms Dodds that a report of the kind prepared by Ms Woodhouse, is treated by the agency as being confidential. However, this alone does not mean that the information in the report falls within cl 1(d) of the table to subs 14(2) of the GIPA Act. 67I also accept that the information in the Report is of a kind that facilitates the effective exercise of the respondent's functions. However, I do not accept that the information in the Report, in its entirety, if disclosed, could reasonably be expected to prejudice the supply of such information. 68Ms Woodhouse was tasked to undertake a Workplace Review of systematic, administrative and management issues. She was not tasked to undertake an investigation to ascertain misconduct, or investigate misconduct. Yet her terms of reference were sufficiently broad, to include speaking to staff, in confidence, about their respective tasks and their interpersonal relationships with others within the CAB. Information of this kind is clearly important for a review of the nature conducted by Ms Woodhouse and as Ms Dodds explained it required staff to feel they could be open and fully frank in their participation in the review without the fear of reprisal. Although not all staff participating in the review are identified in the Report, I understand staff can be easily identified by reference to the tasks they perform and the comments made in respect to those tasks in the Report. 69It is well established that information of this kind falls within the terms of cl 1(d): see Director General, Department of Education & Training v Mullet & anor (GD) [2002] NSWADTAP, Williams v Department of Industry and Investment [2002] NSWADT 192 and Bray v North Coast Area Health Service [2009] NSWADT 93. Hence, I am satisfied that the public interest consideration against disclosure, as set out in cl 1(d) of the table in subs 14(2) applies to the information in the Report, which is information provided by staff, in confidence, to Ms Woodhouse in the course of her review. I note this information is primarily contained in Section 3 of the Report as well as Attachment 6 to the Report. 70For the same reasons, I am satisfied that the public interest considerations against disclosure in cl 1(f) and (h) of the table to subs 14(2) applies to the information provided by staff in confidence. 71The respondent contends, on the basis of the evidence of Ms Dodds' experiences that the public interest consideration against disclosure, as set out in cl 1(f) and (h), applies to the information in the Report in its entirety. I am not persuaded that the evidence of Ms Dodds goes so far. For example, I am not persuaded that a disclosure of the information, other than that provided by staff in confidence, could reasonably be expected to prejudice the effective exercise by the respondent of its functions. The fact that disclosure might cause some embarrassment or loss of confidence in the respondent is not a relevant consideration (see para 15(a) of the GIPA Act). However, I am not persuaded by the evidence of Ms Dodds that the information in the Report, that would reveal the method by which Ms Woodhouse conducted the review, is information of a kind, if disclosed, which could reasonably be expected to prejudice the effectiveness of the review. That information is contained in Section 2, 3 and 4.1 of the Report and Attachment 5 and 6 to the Report. In regard to the information about the engagement of Ms Woodhouse, the terms of reference of the review and the results of the review, on the material before the tribunal, this appears to be information that has, in substance, been revealed to staff. Hence it is difficult to see how it falls within the terms of cl 1(h). 72On the basis of my findings, I am satisfied that the respondent has established that there is a public interest consideration against disclosure of the information in Section 2, 3 and 4.1 of the Report and Attachment 5 and 6 to the Report. 73What the respondent failed to consider, in its assessment of the applicable public interest considerations against disclosure, was cl 3(a) of the table to subs 14 of the GIPA Act. As I have explained, this public interest consideration against disclosure concerns 'personal information', which is defined in cl 4 of Schedule 4 of the GIPA Act 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 74Although the respondent considered the information, in so far as it is personal information about the applicant, it did so in the context of the public interest consideration in favour of disclosure. However, it was also relevant to this public interest consideration against disclosure, as was the remaining personal information, within the Report, of staff members other than the applicant. In regard to information of this kind, I note s 54 of the GIPA Act contains a requirement to consult the relevant person before access is granted. 75Where does the balance lie? - In determining where the balance lies it is necessary to have regard to the nature of the information for which it has been found there is a public interest consideration against disclosure. In this application, I have found these to be as follows: (a) the information provided by staff in confidence, (b) the personal information about staff (including the applicant), and (c) the information that would reveal the methods used by Ms Woodhouse in the course of her review. 76It is convenient to first deal with the personal information about staff and the information staff provided in confidence. There is clearly considerable overlap in these categories of information. 77In my view, to the extent the information is information provided in confidence by the applicant and personal information about the applicant, the public interest considerations against disclosure do not outweigh the public interest considerations in favour of disclosure. As identified by the respondent, in light of the disciplinary proceedings commenced against him, which specifically arose from the review, the public interest in favour of disclosure is strong. The fact that the allegations were subsequently found to be unsubstantiated, does not in my view lessen the strength of this public interest consideration in favour of disclosure. I make this finding on the basis of the content of the Director-General's suspension letter to the applicant, which specified the allegations and named the persons the subject of each allegation. Although the information in the report does not contain the specifics of the allegation, the Report does contain information that is adverse to the applicant which relate to the allegations made against him. As I explained some of the information is information allegedly provided to Ms Woodhouse by the applicant. 78I make a similar finding in regard to the information provided by Ms Minns in confidence and the personal information about her. Ms Minns I note has also had access to the Report and she has stated that she has no objection to the applicant being granted access to this information. 79In so far as the Report contains personal information about staff members, other than the applicant and Ms Minns, I agree with the respondent that the public interest consideration against disclosure of this information outweighs the public interest consideration in favour of disclosure. I appreciate the applicant has viewed the Report in its entirety. However, for the reasons I have given the respondent's approach to this issue was misconceived. Nor does it appear to me that the applicant has any interest in obtaining access to that information. His concern is the information he provided and the information that is about him. 80In regard to the information in Section 2 and Attachment 5, I agree with the respondent that the public interest consideration against disclosure of this information outweighs the public interest consideration in favour of disclosure. 81Conclusions - In summary, I have found:
The evidence 84The five page Memorandum of Ms Woodhouse, dated 13 April 2012, is marked Confidential. In her evidence, Ms Dodds, explained that she had a meeting with Ms Woodhouse on that day where Ms Woodhouse gave her a copy of the Report. She said that in addition to the Report, Ms Woodhouse presented her with a separate envelope and in doing so said words to the effect: "In the course of carrying out the review, issues and allegations were raised by various staff members in relation to two particular persons. I am aware that those matters are not within the scope of the review. However, given they are of a serious nature and given the number of such comments, I felt I was under a duty to bring them to your attention." 85Ms Dodds said that she did not ask Ms Woodhouse to prepare the Memorandum. Nor was she aware that Ms Woodhouse was going to provide it to her. In cross-examination, Ms Dodds said she did not instruct Ms Woodhouse to specifically investigate the applicant's conduct or that of any other person within the CAB. However, Ms Dodds agreed that when she received the Memorandum from Ms Woodhouse she acted on it by passing it onto the Director-General. 86In her statement, Ms Dodds said that the Memorandum recorded a number of allegations made, in confidence, by members of the CAB staff about the applicant and another manager within the CAB. She said a number of the staff members who had made allegations agreed to be identified and participate in a formal disciplinary investigation conducted in the accordance with the procedures of the Department. That investigation was conducted by an independent investigator. It was concluded earlier this year and the allegations against the applicant were found to be unsustained. 87The applicant seeks access to the information relating to him. He said he did not seek access to the names of the persons who had made the allegations against him. He was however, seeking access to the terms of the allegations made against him. The applicant also seeks access to any information that may relate to Ms Minns, who states she has no objection to the applicant being given access to this information. Ms Minns has not been granted access to the information in the Memorandum, accordingly I have not considered this any further. 88The respondent contends that apart from the general public interest in favour of government information, there is no specific public interest in favour of disclosure and hence 'when the public interest considerations against disclosure are balanced against the public interest in favour of disclosure as required by s 13, the correct and preferable decision is that the information not be released to the applicant.' In essence the respondent contends that there is an overriding public interest against disclosure of the information and it relies on the public interest considerations against disclosure in cl 1(d), (f) and (h) and cl 3(f) and (e) of the table to subs 14(2) of the GIPA Act. 89Public interest considerations in favour of disclosure - I agree with the respondent that the public interests considerations in favour of disclosure of the information in the Memorandum are not as wide as those that apply to the information in the Report. However, I do find, to the extent the information is personal information about the applicant, that this is a public interest in favour of disclosure. 90Public interest considerations against disclosure - The information in the Memorandum is clearly information provided in confidence. It is also information of a nature, the disclosure of which could reasonably be expected to have the effect as prescribed in cl 1(d) and (f) of the table to subs14(2) of the GIPA Act: see Bray (supra), Williams (supra) and Mullet (supra). 91However, I am not satisfied that cl 1(h) has any application as the information did not form part of the recommendations of the review conducted by Ms Woodhouse. Hence it is difficult to see how a disclosure of the information in the Memorandum could prejudice the effectiveness of that review. 92Nor am I satisfied that the respondent has established that a disclosure of the information, to the extent it contains allegations about a person other than the applicant, could reasonably be expected to have the effect set out in cl 3(e) of the table to subs 14(2). I understand that the allegations made against that person were also found to be unsubstantiated. This does not mean that they were defamatory. Nor has the respondent made any submissions or provided any evidence in support of its contention. 93This leaves the public interest consideration against disclosure in cl 3(f) of the table in subs 14(2). In its submissions the respondent accepted that the disciplinary investigation made no adverse findings against the applicant. The respondent also noted the applicant's assurances that he was not inclined to bully or harass those who had made allegations against him. However, the respondent went on to contend: ...[the] release of the Memorandum could only inflame any underlying tensions that exist within the workplace. In particular, it is noted that Ms Dodds gives evidence ... that Ms Woodhouse advised her that certain staff declined to have comments attributed to them due to concerns of repercussions in the workplace. The fact that certain employees at least subjectively fear repercussions is, in the respondent's submission, relevant when weighing the public interest for and against disclosure. 94In my opinion, the assertions of the respondent do not satisfy the requirements of cl 3(f). What must be established is a reasonable expectation of a risk of 'serious' harassment or 'serious' intimidation if the information is disclosed. In this case, Ms Dodds acknowledged that since his return to work, there was no evidence of the applicant having engaged in conduct of this nature, let alone, conduct of this nature which was serious. 95Again, the respondent did not rely on the personal information public interest against disclosure set out in cl 3(a) of the table in subs 14 of the GIPA Act. It is clearly a relevant consideration. The issue is whether the information has been revealed. The evidence is that the Memorandum has not been revealed to the applicant, or any other person mentioned therein. However, there is an issue as to whether the personal information, in the Memorandum, about the applicant has been revealed in part. If it has, then this public interest consideration against disclosure does not apply. 96The words 'reveal information', is defined in cl 1 of Schedule 4 of the GIPA Act to mean 'to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)'. The words 'disclose information', is defined in the same cl to include 'make information available and release or provide access to information.' 97As I have explained, in the letter of suspension from the Director-General, the applicant was informed of specific allegations of misconduct that were the subject of his disciplinary investigation. To the extent the information in his suspension letter reflects the information contained in the Memorandum, this information, in my view, is information that has been revealed to the applicant. However, I note that the applicant's suspension letter does not state who made the allegation, although it does contain the name of the person who is the subject of the allegation. In regard to the remaining personal information in the Memorandum, I am satisfied that this information has not been revealed to the applicant, or any other person, other than those dealing with the misconduct investigation. Hence, I am satisfied that this public interest consideration against disclosure applies to the information in the Memorandum (i.e. the information, other than that which has been revealed to the applicant). 98Where does the balance lie - For the reasons set out above, I find that the public interest considerations against disclosure are those set out in cl 1(d) and 1(f) and 3(a) of the table to subs 14(2) of the GIPA Act. The public interest considerations in favour of disclosure only relate to that which is personal information about the applicant. On this basis, I am satisfied that the public interest considerations against disclosure of the information, other than the personal information about the applicant, on balance, outweighs the public interest in favour of disclosure. It is well accepted that information of this kind should be protected from disclosure: see Williams (supra). In Williams, the issue was whether the applicant should be refused access to the transcript of persons interviewed in the course of an investigation into allegations that had been made against him (see at [5]). The applicant in that matter was also the subject of allegations of misconduct. An investigation report was prepared and the transcripts for which the applicant sought access were attached to that report. The applicant had been given a copy of the investigation report, but was refused access to the transcripts. At [60] to [61], the Tribunal note that the verbatim content of the interviews were not revealed in the investigation report. 99I make a similar finding in regard to the personal information about the applicant, which has not been revealed. In regard to the personal information about the applicant that has been revealed, I find that the public interest consideration against disclosure, on balance, does not outweigh the public interest considerations in favour of disclosure. 100Conclusions - In summary, I have found: (a)to the extent the Memorandum contains personal information about the applicant which has been revealed (i.e. the allegations as contained in his letter of suspension), the public interest considerations against disclosure, do not, on balance, outweigh the public interest considerations in favour of disclosure. Accordingly, the applicant should be granted access to this information; and (b)the remaining information in the Memorandum the public interest considerations against disclosure, on balance, outweigh the public interest considerations in favour of disclosure. Accordingly, the respondent should be refused access to this information. 101On the basis of my findings, it is appropriate to make orders similar to those relating to the Report (see paragraph 82 and 83 above).
Orders 102For the reasons set out above, pursuant to para 63(3)(d) of the Administrative Decisions Tribunal Act 1997, the decision of the respondent is set aside and remitted for reconsideration in accordance with the findings in these reasons for decision.
Amendments 08 August 2013 - typographical error, "no" to be inserted Amended paragraphs: 94 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: 08 August 2013
Warren
NSW Trustee and Guardian
Pursuant to para 63(3)(d) of the Administrative Decisions Tribunal Act 1997, the decision of the respondent is set aside and remitted for reconsideration in accordance with the findings as set out in these reasons for decision.