Warren v NSW Trustee and Guardian

NCAT Appeal Panel|2014-05-20|Before: Higgins DP

reasons for decision 1This appeal relates to a decision made by the General Division of the Administrative Decisions Tribunal on 7 August 2013 in respect of an application for review of agency decisions made under the Government Information (Public Access) Act 2009 (GIPA Act): see Warren v NSW Trustee and Guardian [2013] NSWADT 178 (7 August 2013). It is governed by the provisions of the Administrative Decisions Tribunal Act 1997 (ADT Act) as the case was commenced in that Tribunal before its abolition: Civil and Administrative Tribunal Act 2013, Sch 1, cll 6,7. 2The review applicant and appellant is Mr Damian Warren. He has worked for several years at the office of the NSW Trustee and Guardian (the agency) in its Client Assets Branch (CAB). In December 2011 the CEO of the agency, Ms Imelda Dodds, commissioned a review of the operation of the Branch. The reviewer, Ms Woodhouse presented her report (the Report) to Ms Dodds in April 2012. Fuller details are given in the Tribunal's reasons. 3On 11 May 2012 Mr Warren received a letter from the Director General of the Attorney General's Department advising him the the department had commenced a disciplinary investigation into allegations made against him of inappropriate workplace conduct arising from the review. He was suspended from duty pending completion of the investigation. The letter set out in detail the specific allegations and the particulars relied upon, and named officers who had made complaints against Mr Warren. 4As Mr Warren explained in his evidence to the Tribunal, he was surprised at this development, as he understood the review to be one that was looking at general operational or issues in the branch and the report was meant to be systemic or thematic, not one designed to record allegations and make recommendations for disciplinary action to the CEO. On 24 May 2012 he applied to the agency under the Government Information (Public Access) Act 2009 for a copy of the Report, its recommendations and notes by Ms Woodhouse. On 4 July 2012 he was granted access to the Report, in the form of a supervised viewing of its contents. He was at liberty to make notes but not to take copies. He found that the Report did not contain any of allegations now raised against him. He was assured that he had been provided with all the documentation. 5On 2 August 2012 he applied to the Tribunal for review of this decision. Following inquiries directed to the department, he was advised by letter from the Director General on 24 August 2012 that the allegations were derived from a 'supplementary report' to the Woodhouse Report. Ms Woodhouse had presented this document separately to the CEO at the meeting where she presented the Report. This event is dealt with more fully in the Tribunal's reasons. 6Mr Warren sought, understandably, to have his access application expanded to cover this document. On 2 October 2012, the Tribunal with the consent of the parties remitted the review application to the agency with a view to it making a decision on Mr Warren's request for access to the Memorandum. As we understand the situation, he was refused access (though we could not find any record of an agency decision to that effect on the Tribunal file). That decision became part of the application for review before the Tribunal. 7None of the disciplinary allegations were found substantiated. Mr Warren returned to duty early in 2013.

Tribunal Decision 8The Tribunal divided its consideration of the issues into three points: (1)the decision of the agency to refuse Mr Warren access to the Report other than under supervised viewing without any right to copy its contents (2)the related question of the form of access (3)the decision made by the agency refusing access to the Memorandum 9The Report. As to issues (1) and (2), the Tribunal found: As to the substance Mr Warren should be provided with - (a) the information in Section 1 and 4.2 of the Report and Attachments 1, 2, 3 and 4 of the Report, and (b) the information within the Report and the Attachments thereto, which is personal information about the applicant, or Ms Minns [Manager, Property, CAB], (c) but not the remaining information (including personal information about other staff members As to the form of access Mr Warren should be provided with a copy of the Report with the information referred to in (c) above deleted. 10The Memorandum. As to issue (3), the Tribunal found: (a) to the extent the Memorandum contains personal information about the applicant which has been revealed (i.e. the allegations contained in his letter of suspension), Mr Warren should be granted access (b) the remaining information in the Memorandum should be refused. 11The Tribunal had regard to the balancing test required by the GIPA Act (see esp ss 12-15, and Commissioner, NSW Police Force v Camilleri [2012] NSWADTAP 19). In relation to the issue of the form of access, it had regard to the applicable provision, s 72 of the Act, and made a number of observations on the interpretation of the criteria set out in s 72(2). It rejected several of the agency's submissions seeking to justify inspection access as adequate in the circumstances. 12In its final order the Tribunal formally set aside the decisions of the agency pursuant to s 63(3)(d) of the Administrative Decisions Tribunal Act 1997 and remitted them for reconsideration in accordance with the findings as set out in its reasons. 13Mr Warren has appealed. In essence he is dissatisfied with the extent to which he has been refused access to material in the Report and the Memorandum. He has consistently stated that he is happy to have the information disclosed in a way that protects the identity of staff members. There is no cross appeal, so the dispute in relation to the form of access to the Report is resolved.

Mr Warren's Appeal on Grounds of Law 14An appeal may be made in relation to a question of law, and, may with the leave of the Appeal Panel be extended to the merits: ADT Act, s 113. Mr Warren's notice of appeal filed 26 August 2013 sets out three grounds under the question of law heading. He has also applied for leave to extend the merits. In its notice of reply to the appeal filed 17 September 2013, the agency disputed that the matters raised under the question of law heading constituted errors of law, and opposed any grant of leave to extend to the merits. 15The parties have filed written submissions: appellant, 11 November 2013; respondent, 4 December 2013. In an exchange of correspondence in November 2013, the parties agreed to have the matter determined on the papers, and the Appeal Panel is satisfied that this is an appropriate course: see ADT Act, s 76. (The determination of this matter has been delayed because the presiding member was on leave between January and April 2014, a circumstance of which the parties were made aware. They were given the opportunity to apply for reconstitution, but decided not to apply.) 16Section 12(1) of the GIPA Act declares that 'there is a general public interest in favour of disclosure'. It provides further that the considerations relevant to the general public interest in disclosure are not to be seen as limited in any way by the Act: s 12(2). There is a Note to s 12(2) which sets out examples of public interest considerations. 17Mr Warren submits that the Tribunal erred in law in failing to take account of certain public interest considerations in favour of disclosure (ground 1). In ground 1(a) he refers to the Tribunal's apparent failure to have regard to one of those listed as an example at para (e) of s 12(2), i.e. Note. The following are examples of public interest considerations in favour of disclosure of information: (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. 18In grounds 1(b) and (c) he submits that there have been contraventions of the criminal law in the way his access application was managed by the agency, and refers to two criminal offence provisions (ss 118, 120), i.e.: 118 Offence of improperly influencing decision on access application A person (the offender) who influences the making of a decision by an officer of an agency for the purpose of causing the officer to make a reviewable decision that the offender knows is not the decision permitted or required to be made by this Act is guilty of an offence. Maximum penalty: 100 penalty units. 120 Offence of concealing or destroying government information A person who destroys, conceals or alters any record of government information for the purpose of preventing the disclosure of the information as authorised or required by or under this Act is guilty of an offence. Maximum penalty: 100 penalty units. 19 He also submits (ground 2(a), (b)) that the Tribunal failed to deal with the points that make up ground 1 of his notice of appeal, which he had raised in his submissions to the Tribunal. In addition to s 12(2)(e), he also refers here to another example of a public interest consideration in favour of disclosure, s 12(2)(c), i.e.: Note. The following are examples of public interest considerations in favour of disclosure of information: (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. 20In addition he submits (ground 2(c)) that the Tribunal failed to address his responses to the agency's arguments as they related to two of the public interest considerations against disclosure set out in s 14 on which it relied, i.e.: 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): (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, (f) prejudice the effective exercise by an agency of the agency's functions. 21He elaborates on these points in his written submissions. 22Error of Law and Exercise of Discretions. The Tribunal's task in review proceedings under the GIPA Act is to engage (as substitute decision-maker) in the balancing of considerations in the manner contemplated by ss 12-15. The Tribunal is called upon to make a discretionary judgment addressed to the considerations it considers relevant. There are no mandatory considerations in cases of the present kind. 23Such an exercise of discretion is only vulnerable to attack on error of law grounds if it transgresses the standards set down in the authorities that derive from the decision in House v R [1936] HCA 40; (1936) 55 CLR 499, at 504-505 per Dixon, Evatt and McTiernan JJ. See further the discussion in Lo v Chief Commissioner of State Revenue [2013] NSWCA 180 at [9] per Basten JA; Assadourian v Roads and Maritime Services (GD) [2013] NSWADTAP 46 at [35] ff; and recently, Cain v New South Wales Land and Housing Corporation [2014] NSWCA 28 at [28] ff per Basten JA. 24Error of Law and Adequacy of Reasons. A court or tribunal is not obliged to respond to every submission or argument put before it, even if it has been developed in detail. The duty is a duty to give 'adequate' reasons, and what is adequate will vary. As Basten JA noted in Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48]: Not only is the obligation not universal in nature, but it is variable in its content. When an appellate court is invited to find that a trial judge provided inadequate reasons, it is important to understand the nature of the function being invoked. It is not the function of an appellate court to set standards as to the optimal, or even desirable, level of detail required to be revealed in reasons for judgment. Rather it is to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of judicial power. Transparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality. 25Conduct of Agency. We will refer first to this aspect of Mr Warren's appeal. Mr Warren's assertions involve allegations of the most serious kind. The provisions referred to (ss 118, 120) are criminal offence provisions with maximum fines of 100 penalty units. 26We accept, as Mr Warren submits, that there is no discussion by the Tribunal of his broader criticisms of the way the agency dealt with him, in particular the failure of the officers who actioned his application for access to the Report to identify the supplementary document, the Memorandum, and to treat it as governed by his access request. He concluded from the Director General's letter, not unreasonably, that the Report must have been the source of the disciplinary allegations, though that was not squarely said in the letter. He raised, reasonably, the question of what material was the source of the allegations when he found that the Report did not contain the allegations. 27Nonetheless, in our view, it is plain from a fair reading of the Tribunal's decision, and its references to the affidavit material filed by the agency, that it did not reach any threshold level of concern sufficient to have it form a preliminary view that this was a case where it was necessary to examine the possibility of misconduct of the kind to which item (e) refers. 28While a case might arise where the Tribunal forms the view that serious misconduct in the handling of an access application may have occurred, it would be incumbent on the Tribunal to ensure that fairness was accorded to any person against whom such a finding might be made. There would need to be a proper show cause procedure, and the officer(s) affected would have to be given an opportunity to respond. The Tribunal would end up conducting an inquiry within an inquiry. 29Such a course could only, we think, be embarked upon in a case where there is compelling evidence warranting such a step and when the Tribunal is satisfied that there are no other suitable means of addressing the concerns. Allegations of administrative misconduct of the kind that Mr Warren raises would normally be better dealt with other mechanisms such as complaint to the Ombudsman. 30Adequacy of Tribunal's Reasons in relation to Disclosure of the Report. At para [60] of its reasons the Tribunal commenced its consideration of the balancing exercise as it related to the Report. It set out briefly the public interests in favour of disclosure. It referred to the Note and considered relevant item (c) (effective oversight of the expenditure of public funds). It did not list item (e) (possible misconduct or negligent, improper or unlawful conduct). In our view, it can reasonably be inferred from the earlier part of its reasons where it refers to the affidavit evidence that it was not of the view that any threshold had been reached sufficient to justify referring to item (e) as an active consideration at this stage of the reasoning process. 31It then went on to refer to the considerations against disclosure. It is correct that the Tribunal did not refer to Mr Warren's objections to the agency's reliance on these considerations. However, in our view its essential reasons are clear, and the standard set in the leading authorities to which we have referred is met. 32Further the Tribunal rejected the blanket reliance placed on these considerations by the agency. As we understand the dispute, it gave Mr Warren to a large measure the level of access he sought in relation to the Report, with the qualification that it protected from disclosure the personal information of other people mentioned in the Report. Mr Warren has, appropriately, throughout the history of the dispute accepted that it is reasonable to protect the identity of third persons mentioned in the Report. 33As we understand it, he wishes to see what people said. That can be a difficult issue in respect of a report that relates to a relatively small group of people who are colleagues of the access applicant. Their identity may be easily recognised from the information released. It is not obvious how any finding that might have related to misconduct could make a difference to the debate in this part of the case. The third persons would still have a privacy interest to protect, and there is no suggestion in Mr Warren's submissions that these parties were caught up in any misconduct. His objections are directed to the CEO of the agency (Ms Dodds) and other senior officers. 34Adequacy of Tribunal's Reasons in relation to Disclosure of the Memorandum. Starting at para [84] the Tribunal considered the dispute over access to the Memorandum. As compared to its consideration of the Report, the Tribunal adopted a more limited approach to identifying the public interests in favour of disclosure. It confined them to the public interest in the appellant seeing his personal information. The Tribunal then turned to the agency's case, and rejected it insofar as it relied on cl 3(e) of the s 14 table (disclosure would '(e) reveal false or unsubstantiated allegations about a person that are defamatory'). Nor did it accept on the evidence that disclosure to the applicant would '(f) expose a person to a risk of harm or of serious harassment or serious intimidation'. The Tribunal went on to give weight to the other public interest considerations against disclosure relied upon by the agency, in particular the potential impact on its future ability to receive information confidentially as part of a review process. The Tribunal found that the agency need only disclose those parts of the Memorandum that contained personal information about the applicant. 35It is correct that it did not in dealing with access to the Memorandum refer to the considerations relating to alleged misconduct upon which Mr Warren had relied. In our view it was not obliged to do so, it was already apparent from its consideration of the Report that it did not accord any weight to these concerns. 36Conclusion. In our view no error of law in the Tribunal's approach to the task required of it: (1) to identify relevant considerations from the many considerations to which it might have regard in favour of disclosure (the list is not prescribed) and similarly to identify relevant considerations against disclosure (the list is prescribed); (2) to evaluate them; (3) to weigh the competing evaluations, mindful of s 12(1) ('There is a general public interest in favour of the disclosure of government information). Nor was there a failure to give adequate reasons. 37The grounds of law appeal is dismissed. 38In these circumstances care must be exercised in considering whether to accede to a leave application requesting an extension to the merits.

Application for Extension to the Merits 39The application for extension to the merits refers in the first two grounds to the same matters raised by the grounds of law appeal. The third ground for extension of the case to the merits refers to s 112 of the GIPA Act, which provides: 112 Report on improper conduct If NCAT is of the opinion as a result of an NCAT administrative review that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act, NCAT may bring the matter to the attention of the Minister who appears to NCAT to have responsibility for the agency. 40Mr Warren submits that an extension to the merits would allow such an inquiry to be undertaken and for the CEO to be the subject of a referral under s 112. Finally in ground 4 he refers to an error in the Tribunal's reasons at [97], where the member said the 'suspension letter does not state who made the allegations'. Correctly, Mr Warren notes that the suspension letter did name 3 staff members as having made allegations. 41In our view ground 3 is an extension of the allegations of misconduct that appear in grounds 1 and 2, are also in grounds 1 and 2 of the grounds of law appeal. For the reasons given early embarking an inquiry of the kind that s 112 contemplates would be a grave step reserved for very rare cases. This is not such a case . 42Caution needs to be exercised in extending an appeal to the merits where no mistake of law has been identified. It may be that in justice there should sometimes be an extension to the merits, especially where new evidence becomes available after the first instance decision has been given or there has been a material change in circumstances which means that the decision made at first instance may no longer be able to be safely regarded as the 'correct' or 'preferable' decision (see Administrative Decisions Review Act 1997, s 63). 43In our view this is not such a case. The appellant has a significant degree of success, as compared to the agency decision. The appeal has delayed the agency's reconsideration of its decision in light of the Tribunal's findings. In our view, it is better at this stage that the decision not be reopened, and the agency called on to reveal so much of the contents of the Report and the Memorandum as determined by the Tribunal.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 May 2014

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