Whitaker v Illawarra Shoalhaven Local Health District [2018] NSWCATAD 183 | Case summary

NCAT Administrative and Equal Opportunity|2018-03-21|Before: Health J

incipal judgment Parties: Catherine Whitaker (Applicant) Illawarra Shoalhaven Local Health District (Respondent) Representation: Counsel: Mr D Mahendra (Respondent) Applicant in person

Solicitors: McCullough Robertson (Respondent) File Number(s): 2017/00220521 Publication restriction: Under s 64(1)(b) of the Civil and Administrative Tribunal Act 2013 the Tribunal prohibits disclosure or publication of the names and of and identifying information relating to the witnesses who provided confidential evidence only in these proceedings.

Introduction

On 20 October 2016 Ms Whitaker made an application to the Illawarra Shoalhaven Local Health District (the Agency) for access to information under the Government Information (Public Access) Act 2010 (NSW) (the GIPA Act). In her access application she wrote: I submitted in writing on 20/06/2016 allegations of bullying and harassment in the Surgical Ward. This email was acknowledged on 21/06/2016 by Deb Cameron. I would like a copy of everything pertaining to this case. e.g. Dr's reports/statement of Cassie Morrison's statement (sic)f the 6 people I have made allegations against, the private investigator's report, the psychiatrist (Employers Mutual Limited) and anything that exists.
On 8 December 2016 the Agency made a decision to release the information Ms Whitaker sought, in part. Access to some of the information was refused in full.
Ms Whitaker then sought review of that decision by the Information Commissioner.
The Information Commissioner issued a report dated 27 March 2017 in which she recommended that the Agency reconsider its decision by way of internal review.
The Agency undertook an internal review of the decision which resulted in a new decision dated 19 May 2017. That decision, with some minor variations, essentially confirmed the original decision, although some of the reasoning was different. Attached to the decision was a Table ("the Table") which identified with respect to each piece of information held by the Agency: 1. a description of the record that contained the information; 2. the format of the records; 3. the location of the record in the Agency; 4. whether it was released or withheld, or released with redactions; and, 5. the relevant public interest considerations against disclosure.
On that day Ms Whitaker filed an application with this Tribunal seeking administrative review of the Agency decision dated 19 July 2017.
At a directions hearing held on 22 August 2017 the Tribunal made directions for the filing of materials and submission, and listed the application for hearing on 27 October 2017. The parties subsequently sought, by consent, to dispense with the need for a hearing and have the matter determined on the papers. An order was made to this effect on 19 October 2017.
The matter was then allocated to me to determine on the papers. Having read the papers I formed the view that the matter required a hearing.
On 30 January 2018 the Tribunal held a further directions hearing at which the matter was listed for hearing on 21 March 2018.
On 21 March 2018 the matter was listed before me for both open and confidential hearing. Ms Whitaker participated in the open parts of the hearing by phone. During the closed hearing I heard evidence from a number of persons, in the absence of Ms Whitaker, so as to prevent the disclosure of information (including the names of those witnesses) in which the Agency claimed there is an overriding public interest consideration against disclosure. The Agency was represented by Mr Mahendra of Counsel.
At the conclusion of that hearing I made directions for the filing of final submissions by both parties, and, otherwise reserved my decision. Both parties have now filed final submissions.
In addition, the Agency's solicitors have written to the Registrar on two occasions: 1. on 7 May 2018, noting that in her final submissions Ms Whitaker indicated that she is now in possession of information she had been refused access to and asking, … can the NCAT please indicate whether Ms Whitaker has inadvertently been provided with the confidential documents held by the NCAT registry the subject of the proceedings. 1. on 16 May 2018, alleging that Ms Whitaker "has indicated that she was in possession of the information prior to the hearing" and that, as a consequence, the proceedings were frivolous and vexatious and should be dismissed (with costs to be determined) accordingly.
The Agency has not disclosed on what basis it asserts that Ms Whitaker had the information prior to hearing.
In her final submissions, filed on 2 May 2018, Ms Whitaker acknowledged that she was "now in receipt of" certain documents to which she had sought access and no longer required their release. Which documents Ms Whitaker now has, and what information she still seeks will be discussed in greater details below.
Ms Whitaker also annexed to her final submissions seven attachments, which appear to be copies of single pages from statements given to a workers compensation investigation (the Procare investigation) by various witnesses (whose identity in not necessarily readily apparent) and a consent to interview form signed by one witness. Each of those attachments constitute evidence which was not before the Tribunal at the time of the hearing. The time for Ms Whitaker to submit evidence ended when the hearing closed. The fact that she could make further submissions, allowed her to submit further arguments based on the evidence before the Tribunal and the applicable law: it was not a licence to file fresh evidence. As a consequence, I have not had regard to the attachments to Ms Whitaker's final submission or Ms Whitaker's arguments dealing with what they demonstrate.
A further point that I think it appropriate to make in the light of the questions asked by the Agency is that when I have accessed the Tribunal file relating to this application in order to write this decision, the confidential documents in issue were in an arch lever file, which was tightly secured (and resecured by me after the hearing) in a large, grey plastic envelope which bore the words "CONFIDENTIAL INFORMATION". The plastic envelope appeared undisturbed.

Materials Before the Tribunal

In making this decision I have had regard to the following material relied on by Ms Whitaker: 1. application for administrative review filed on 19 July 2017 with attached: 1. report from the Information Commissioner dated 27 March 2017; 2. new internal review decision of the Agency dated 19 May 2017; 1. statement/submission of Ms Whitaker filed 3 October 2017 with three attachments; 2. letter from Dr Kylie Short filed 22 August 2017; 3. letter from Dr Aroop Roy filed 22 August 2017; 4. letter from Ms Kate Valijaca, Psychologist, filed 22 August 2017; 5. final submissions dated 2 May 2018.
I have also had regard to the following material relied on by the Agency. 1. first confidential statement of Deborah Anne Cameron, Director of Nursing and Midwifery, dated 11 September 2017 with attachments (and open copy of the same statement with redactions); 2. second confidential statement of Deborah Anne Cameron, Director of Nursing and Midwifery, dated 12 October 2017 with attachments (and open copy of the same statement with redactions); 3. four confidential statements, all made on 12 September 2017, from the following persons (and open copy of each statement with redactions): 1. [subject to suppression order]; 2. [subject to suppression order]; 3. [subject to suppression order]; and; 4. [subject to suppression order]; 1. the Agency's confidential submissions filed 13 September 2017 (and open submissions of the same date with redactions); 2. confidential closing submissions from the Agency dated 12 April 2018 (and open closing submissions of the same date with redactions); and, 3. a folder of documents containing copies of all the documents which contain information that the Agency says are responsive to Ms Whitaker's access application, including: 1. information released in full, 2. information containing some redactions; and 3. information not disclosed at all.

The Government Information (Public Access) Act 2009

The GIPA Act commenced operation on 1 July 2010. The objects of the Act are set out in s 3(1) - In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
'Government information' is given a wide meaning (s 4) being 'information contained in a record held by an agency.' 'Agency' is also defined in s 4.
The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5). Applicants for access to government information have a legally enforceable right to be provided with access to that information, unless there is an overriding public interest against disclosure (s 9).
Subsection 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. None of the information sought by Ms Whitaker within this category.
With respect to other government information, the Act establishes a principle that there is pubic interest in favour of disclosure (s 12(1)). Section 12(2) says that public interest considerations in favour of disclosure are not limited. It provides - Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. 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
There will only be an overriding public interest against disclosure when the public interest test in s 13 is satisfied. It provides - There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
In considering whether there is an overriding public interest against disclosure s 16 provides that the following principles apply - (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.
The public interest considerations against disclosure are limited to those set out in the Table to s 14. Section 14(2) provides that - The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.
The public interest considerations against disclosure relied on by the Agency in this case are to be found under the following categories in the Table to s 14: 1. "Responsible and effective government", specifically cl 1(d) and (f) and (g) which provide: 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, (g) found an action for breach of confidence/disclose information provided in confidence … 1. "Individual rights, judicial processes and natural justice", specifically cl 3(a), (b) and (f) which provides: 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) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002, … (f) expose a person to a risk of harm or of serious harassment or serious intimidation, (g) prejudice any person's legitimate business, commercial, professional or financial interest.
Before deciding an access application which, among other things, seeks in individual's personal information, s 54 of the Act requires that the agency take such steps as are reasonably practicable to consult with that person before providing access.
Section 55 provides that personal factors relating to an applicant can be taken into account in deciding to grant access. In limited circumstances they may also be taken into account in refusing access. That section provides - (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. (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.
An access application is to be determined in accordance with s 58 - (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) …
In exercising functions under the Act s 3(2) instructs that - 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.
Section 73 requires that access be unconditional.
Section 80 sets out a series of decisions that are reviewable decisions under the Act. It relevantly provides - The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part: … (d) a decision to provide access or to refuse to provide access to information in response to an access application, …
A person aggrieved may seek a review by the Tribunal (s 100). Such applications are to be made within 8 weeks of the decision (s 101(1)) or within 4 weeks of the completion of a review by the Information Commissioner (s 101(2)). The Tribunal has power to extend the time for the making of a review application under s 101(3) when it is of the opinion that the person making the application, "has provided a reasonable excuse for the delay in making the application."
Once a decision is subject to review before the Tribunal it cannot be the subject of a review by the Information Commissioner (s 98).
In any review of a reviewable decision s 105 places the burden of justifying the decision on the Agency concerned. It provides - (1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section. (2) If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review. (3) If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review.
The Tribunal's function on review under s 63 of the Administrative Decisions Review Act 1997 is to make the correct and preferable decisions having regard to the material before it before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.
Section 107 sets out the procedure to be followed by the Tribunal in dealing with public interest considerations. It relevantly provides - (1) In determining an application for NCAT review, the NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. (2) On an NCAT review, the NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of the NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. …
The Tribunal has received the information which the Agency claims is the subject of an overriding public interest consideration against disclosure on a confidential basis. The Agency has also relied on a number of statements it says contains material, including the names of the witnesses concerned, which should not be disclosed. While un-redacted copies of those affidavits have been provided to the Tribunal, copies served on Ms Whitaker have been redacted so as not to disclose that information to her, in order to comply with s 107(2).
In Ms Whitaker's case, because it will be necessary to discuss the nature of some the information that is said to be the subject of an overriding public interest consideration against disclosure (including the names of individuals or material that my enable them to be identified), which s 107 prohibits me disclosing, I will make orders prohibiting the disclosure of those parts of my reasons for decision to Ms Whitaker and to the public. My power to make such orders is found in sections s 62 and 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act) combined with s 107(2) of the GIPA Act. Those suppressed parts of my decision will be available to the Agency and to an Appeal Panel, in the event of an appeal.

Factual background

In order to better understand the issues in this case it is necessary to provide a broad outline of the background facts in order to provide some context as to how the access application arose. It is also necessary to resolve some conflicts in the evidence concerning those circumstances.
Ms Whitaker had recently graduated with a degree in nursing, which degree she undertook as a mature student. In 2016 she commenced employment with the Agency as a graduate nurse in the transition to practice program. Her first placement was on the surgical ward in late February 2016. This was not a position in which she thrived.
After a couple of months' work, on 22 April 2016, she ceased work with a doctor's certificate because of, "Depression and anxiety, workplace bullying." This coincides with the development of documented concerns by those supervising and working with Ms Whitaker regarding her ability to perform her duties.
In mid-June 2016 Ms Whitaker lodged a worker's compensation claim with the agency alleging that she had received a psychological injury at work. She also provided a typed document in which she set out the events at work which she said had led her to sustain that injury, naming fellow workers and attributing certain bullying conduct to some of them. Bullying is denied by the co-workers.
It is not necessary for me to consider those allegations, or to reach conclusions as to the validity of competing claims as to what occurred.
As a result of Ms Whitaker's complaints, the Agency referred the worker's compensation claim to its insurer, Employers Mutual Limited. The usual investigations one would expect to see into such a claim were then commenced. The insurer was the instigator of these. The usual investigations included a factual investigation of the relevant circumstances by investigators from Procare, and the referral of Ms Whitaker's injury for expert medical assessment.
Procare, in correspondence, said it had been appointed by the insurer.
Around the same time, the Director of Nursing and Midwifery at the Agency, Ms Cameron, says she instigated an internal investigation under the Department of Health's Managing Misconduct Policy (PD2014_042). She appointed Ms Nina Kenny, form the Agency's human resources department, to undertake that investigation (the misconduct investigation). There is no clear documentary evidence going to the establishment of this investigation or the appointment of Ms Kenny.
The Procare investigation proceeded without Ms Whitaker returning to work. Various people who worked with Ms Whitaker on the ward were interviewed, as was Ms Whitaker herself. It is not clear on the evidence before me whether separate interviews were conducted for the purpose of the misconduct investigation by Ms Kenny, or to what degree material obtained in the Procare investigation was used in the misconduct investigation, or vice versa. In her first statement Ms Cameron, the Director of Nursing and Midwifery, said that the investigation proceeded separately, but I have been unable to find any information which clearly indicates how the misconduct investigation proceeded. Such information fell within the scope of Ms Whitaker's access application up till 20 October 2016. In her oral evidence Ms Cameron said that the investigations were separate.
In a letter to Ms Whitaker dated 1 July 2016 the Nursing Unit Manager, Ms Morrison, advised that she had received the complaint of 20 June 2016 made to Miss Cameron and that - In the meantime so that the appropriate fact finding investigation can progress, I will be interviewing the staff members named in your complaint. The process will require me to provide them the details of your complaint so procedural fairness is ensured to all parties. It is difficult to see how a fact-finding exercise conducted by Ms Morrison fits Ms Cameron's evidence that she appointed Ms Kenny to conduct the misconduct investigation.
It is to be noted that if Ms Morrison interviewed staff from the surgical ward about the alleged bullying and harassment of one of their number, and not Ms Nina Kenny, who had been appointed to conduct the internal investigation, then issues would arise about whether the Misconduct Investigations Policy was complied with. The fact that Ms Morrison was directly involved in the investigation process is worthy of note, given the clear instruction in the Misconduct Investigations Policy that investigators should have "no direct involvement with or interest in the matter under investigation" - see section 5.2. As nursing unit manager of the surgical ward, Ms Morrison had a clear interest in and a direct involvement as a witness of some of the alleged misconduct.
On 20 October 2016 Ms Whitaker lodged her application for access to information under the GIPA Act. That access application was wide enough in its scope to be construed as seeking information relating to both investigations up to that date. Her access application does not relate to information created, found or relating to events after that date.
It is important to note that as of 20 October 2016: 1. the issue of the Agency's liability for Ms Whitaker's claimed workplace injury was yet to be agreed or determined; and 2. the misconduct investigation was continuing. Exactly how far it had progressed is unclear.
It is agreed that: 1. in November 2016 the Agency admitted liability with respect to Ms Whitaker's WorkCover claim for a psychological injury; and 2. in January 2017 the misconduct investigation concluded that there was "no evidence to sustain" Ms Whitaker's complaints about workplace bullying and harassment.

What information does Ms Whitaker now require?

In her original submissions Ms Whitaker set out the remaining information she sought access to: they were the information in documents numbered, 18, 22, 35, 36, 37, 38, 65 and the redacted parts of documents 9 and 60 (which are the same). A further description is needed to properly understand what information these documents contain. This involves some information that the Agency claims should not be disclosed.
By number, they were:

9 and 60- this is file note made by Bonnie Chivers, including a note of a conversation with a person whose name and other identifying information have been redacted from the information disclosed;
18 - Factual report from Procare dated 5 August 2016 - this has been withheld in its entirety;
22 - unsigned statement, addressed to no specific person, of [subject to suppression order] prepared for the Procare Investigation, withheld in its entirety;
35 - typed statement/letter signed by Catherine Hall, addressed to no specific person, withheld in its entirety;
36 - typed statement/rebuttal signed by [subject to suppression order] and dated 28 July 2018, addressed to no specific person, withheld in its entirety;
37 - unsigned, undated statement addressed "To whom it may concern" bearing the name [subject to suppression order], withheld in its entirety;
38 - unsigned, undated statement bearing the name [subject to suppression order], withheld in its entirety;
64 - Final Investigation Report dated 14 February 2017 signed by Nina Kenny. It must be pointed out, as the Agency noted, that this document was created after Ms Whitaker made her access application and as consequence is outside its scope.
65- signed statement of [subject to suppression order] dated 4 August 2016 prepared for the Procare Investigation, withheld in its entirety.

In her closing submissions Ms Whitaker wrote: 2.1 I am now in receipt of the following documents and no longer require the release of; a). 4 Factual Reports b). Consent to Interview forms and Witness statements of; [subject to suppression order] [subject to suppression order] [subject to suppression order] Jennifer Good Noela Murphy-Knight [subject to suppression order] [subject to suppression order] [subject to suppression order] [subject to suppression order] 2.2 I have only attached copies of the witness statements of; [subject to suppression order], Attachment A [subject to suppression order], Attachment B [subject to suppression order], Attachment C [subject to suppression order], Attachment D [subject to suppression order], Attachment E [subject to suppression order], Attachment F and 1 Consent to Interview form, Attachment G as evidence of my possession, and will now utilise these documents to substantiate my claim to obtain the remaining unreleased documents. 2.3 Although I am in receipt of the above mentioned documents there are still documents, as part of the Procare investigation, that have not been released. They are the witness Statements made by [subject to suppression order] for the purpose of the Internal Investigation. …
Later in her submissions under the heading "Internal Investigation" Ms Whitaker wrote: 3.1. I am now also in receipt of the Witness statement [subject to suppression order] and the Synopsis of conversations between [subject to suppression order] and Catherine Whitaker RN TPP Nurse and no longer require the release of such. She then went on to make lengthy submissions as to why documents relating to the internal investigation should be released under the GIPA Act, without specifying what documents save for the final investigation report.
It follows from the above that Ms Whitaker no longer seeks access to the information in documents 18, 22, 35, 37 and 65. As document 64 is outside the scope of Ms Whitaker's access request, that means that the Tribunal needs to determine the outstanding issue in respect of documents numbered 9 and 60 (which are the same) and 36 and 38.

Outline of relevant evidence

During the hearing I heard open evidence from Ms Deborah Cameron, and closed evidence, in the absence of Ms Whitaker, from:

[subject to suppression order];
[subject to suppression order];
[subject to suppression order]; and
[subject to suppression order].

In these reasons I do not intend to outline evidence given by witnesses which is no longer relevant, given the fact that Ms Whitaker is no longer seeking access to documents created by or for some of them.
I explained to each of the witnesses heard in closed hearing that as Ms Whitaker was excluded from the hearing, she was deprived of the right to know what they each said and to cross-examine them. I added that in those circumstances I considered it my role to ask them questions to test their evidence.
[subject to suppression order] had filed a statement dated 12 September 2017. In it she said that she participated, "in an investigation being conducted by ISLHD in relation to the applicant" and that she had prepared a statement responding to allegations made against her as part of the investigation. She firmly believed her statement would be treated as confidential, and would not be disclosed to Ms Whitaker. She said that if her statement were released: 1. she would not speak out again; and 2. there was a real risk that Ms Whitaker "will attempt to discredit my position as a professional, my standing in the community and that of my husband, who runs a business in town."
I referred [subject to suppression order] to document 38, which is unsigned, one and half page densely typed document bearing her name. I explained that I understood there were two investigations being conducted into Ms Whitaker's claims: a worker's compensation investigation conducted by Procare and an internal misconduct investigation. I asked for which investigation she had prepared document 38.
[subject to suppression order] said she had written the typed document for the purposes of a worker's compensation investigation being conducted by Procare. She did so in response to a request. She said she had a personal discussion with Don Gaskin form Procare. This was followed by an email, and then an interview. She was then given a formal statement written up by Procare which she read and signed. She did not recall Don Gaskin mentioning confidentiality. Ultimately, she said, there were two statements for the worker's compensation investigation, document 38 and the one prepared "by Procare". She also knew there had been a workplace investigation under way.
I drew [subject to suppression order] attention to the following paragraph which appears in all the formal witness statement prepared by Procare: I understand that a copy of this statement will, in the event of dispute, be provided to the Claimant or their legal representative, in accordance with the relevant statutory requirements.
[subject to suppression order] said she could not recall such a warning about the potential release of her statement to Ms Whitaker in the statement prepared by Procare. [subject to suppression order] said that she was aware that the Code of Conduct assured confidentiality and knew there was a workplace investigation going on under the Misconduct Investigations Policy.
In response to further questions from me [subject to suppression order] said that she had no occasion to be scared or afraid of the applicant. Asked why she was fearful of damage to her reputation she said, "I have no idea what she is capable of." She knew Ms Whitaker had spoken to another person about "what went on". "It's the potential for harm that I am afraid of." She said she would not have given the statement if she knew that it was going to be released.
When asked how this fitted with her professional obligations [subject to suppression order] conceded that she might make a statement in order to protect patient safety.
In re-examination, [subject to suppression order] was asked about what Don Gaskin from Procare said to her about confidentiality. She said, "I just assumed the statements would be confidential. I understood it would go no further." In my view, [subject to suppression order] disclosed no basis for that assumption.
Further, I am satisfied that the formal statement prepared by Procare, which she did sign, did contain a standard acknowledgement that her statement could be released in the event of liability being in issue. As the insurer did not admit liability for Ms Whitaker's worker's compensation claim until November 2016, at the time [subject to suppression order] made her statements the potential for her statement to be disclosed to Ms Whitaker was real.
[subject to suppression order] evidence did not disclose any rational basis for her fear that Ms Whitaker would harm her. There is no evidence of Ms Whitaker abusing, becoming angry with, frightening, harassing or harming [subject to suppression order], or anyone else, in the past.
[subject to suppression order] filed a statement in this proceeding dated 12 September 2017. In it she explained that she had participated in the Procare investigation and had prepared document 36 for it. When asked to prepare that statement she "understood it would be used solely for the purpose of the investigation". She took the statement she had prepared with her to her interview with the Procare investigator. She said that she asked the investigator, when handing over document 36, words to the effect of, "Can you confirm that this statement will not go to Catherine". The investigator replied, "Yes. Your statement will only be used for Catherine's claim."
[subject to suppression order] said in her statement that as a result of this conversation she believed her statements would be kept confidential and only used for the purposes of the investigation. Without that assurance she said she would not have prepared the statement or participated in the investigation. If her statement ends up being disclosed she said, "I would hesitate before participating in a workplace investigation in the future" and would require assurances of confidentiality.
Her statement continued - 14 I have a real concern that the applicant would misuse the information and retaliate against me for providing the information and participating in the Investigation. There are stark differences between the factual accounts described by myself and the applicant and I believe she may try and publicly confront me about my version of events. 15 I am concerned that I may be subject to a form of public harassment by the applicant if she were to have access to information contained within my statement.
In her oral evidence [subject to suppression order] said document 36 was prepared by her for Procare. She said she was initially unsure of the precise purpose for which it was needed, but was later informed it was for worker's compensation purposes. She said, "The investigator did not tell me that it was made for worker's compensation." This does not sit comfortably with her statement that she prepared the document as part of the Procare Investigation.
[subject to suppression order] said that she had handed the typed document over to Don Gaskin and then had a conversation with him. He then prepared a formal statement which she checked and signed. She explained, "It was emailed to me. I checked, printed, signed and scanned; then emailed it back." [subject to suppression order] said that she was told by Don Gaskin that it would not be released.
I pointed out to [subject to suppression order] that her statement contained the following paragraph: I understand that a copy of this statement will, in the event of dispute, be provided to the Claimant or their legal representative, in accordance with the relevant statutory requirements.
Her response was that she understood the document would not be released.
[subject to suppression order] said she had worked with the applicant for a total of 8 hours. She was not scared or afraid of her personally, although she was afraid of the professional consequences of allegations of bullying.
When asked why she was concerned about the personal consequences of release of the information [subject to suppression order] said she did not know the applicant personally, and that if the documents were released "anything could happen." "If released, it could be misused. She could destroy my career, or my reputation and my career. I could be tarnished because my reputation is tarnished, and it might reflect on my teaching, and on my ability to keep teaching."
Having considered [subject to suppression order] evidence I am satisfied that she knew she was preparing her typed statement for the purposes of the Procare investigation as indicated in her statement. I accept that as part of the usual statement preparation process Procare then prepared a formal statement which contained a formal acknowledgement by [subject to suppression order] that the statement could be released if there was a contest over liability. At that time such a contest was on the cards as Ms Whitaker's fellow workers were denying there had been workplace bullying. I find [subject to suppression order] suggestion that the investigator told her that her statement would not go to Ms Whitaker, to be highly improbable and at odds with the vast weight of the evidence. I am satisfied that, as her own statement says, [subject to suppression order] was aware that if there was a dispute about liability for the worker's compensation claim the statement could be provided to Ms Whitaker or her legal advisors.
[subject to suppression order] evidence did not disclose any rational basis for her fear that Ms Whitaker would harm her. There is no evidence of Ms Whitaker abusing, becoming angry with, frightening, harassing or harming [subject to suppression order] in the past. [subject to suppression order] major concern seems to be the potential misuse of her statement in the public arena to harm her professional reputation. She provides no rational basis for these fears.
In their oral evidence neither [subject to suppression order] nor [subject to suppression order] suggested that Ms Whitaker had frightened or scared them. She was not sharp or quick to anger.
Ms Cameron, the Director of Nursing and Midwifery, gave evidence in an open hearing.
In cross-examination she was asked about the interchange of information between the Local Health District (LHD) and Procare. She said that the LHD can provide information to Procare as part of "our internal arrangements for their investigation". Procare, she said, contrary to her own statement, was appointed by LHD. In conducting its investigation Ms Cameron said there is an expectation that Procare would adhere to Agency Policy. Ms Whitaker asked Ms Cameron to point to what documents or policy, justified that expectation. Ms Cameron could not do so.
Ms Cameron agreed that that there were two investigations. She said that the applicant had lodged a worker's compensation claim, and that when it was lodged Procare had been appointed by LHD to investigate. Around the same time, Ms Whitaker had lodged a separate complaint regarding workplace bullying. She then initiated an internal investigation, within a week of receipt.
I pointed out to Ms Cameron that I could not find clearly separate claims and complaints. Following some discussion, she said there had been one complaint which initiated two separate investigations.
She agreed that the insurer had admitted liability for Ms Whitaker's workplace injury and that this had happened in late November 2016.
I then asked whether the Agency was a self-insurer or had an insurance company. She said EML was the insurer and that there was a worker's compensation section within the Agency which handles all claims. I then asked whether the insurer had appointed Procare, or whether it had been an internal appointment. She did not know. "I can't answer a question as to who appointed Procare."
Ms Cameron said she had read Ms Whitaker's entire file when she read the internal report. When asked about whether worker's compensation materials were among the material with the internal investigation, she said they were not. Later, when pressed about one statement and one draft statement prepared by Procare, that are among the materials to which access had been refused, she said, "I haven't reviewed all of the documents that were in the investigation." This causes me to doubt the veracity of her assertion that there were no worker's compensation materials among the internal investigation material.
Ms Cameron said she had met the applicant, on a few occasions prior to these matters arising, and had no reason to be scared or afraid of her. When Ms Whitaker then said they had never met, Ms Cameron said she may be mistaken.

The impact of Ms Whitaker's personal factors on her access application

The text of s 55 of the GIPA Act is set out at paragraph 28 above. The personal factors concerned are set out in ss (1) as: (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.
s 55(3) allows the Tribunal, in this case, to take into account those factors in so far as they are relevant to considering whether disclosure could reasonably be expected to have the effect of: 1. revealing a person's personal information (s 14 Table (2)(a)); and 2. contravening an information protection principle under the Privacy and Personal Information Protection Act 1998 (s 14 Table (2)(a))
Section 55(2) says the personal factors can be taken into account in determining whether there is public interest consideration of disclosure.
Ms Whitaker relies on a number of medical reports from those treating her to show that full disclosure of the information she seeks would be beneficial to her mental health. Dr Kyle, in her report, advocated for Ms Whitaker to have "full and uncensored access," but did not indicate what benefit this would have for Ms Whitaker, or how full access would improve her condition.
Dr Aroop Roy C.S. on the other hand said that: …I would appreciate if you could release the information she has requested from NSW health that will assist in her Mental and Physical well-being as she has a hearing coming up … with NCAT. While release would have dispensed with the need for an NCAT hearing, this report provides no evidence of a likely clinical benefit flowing from release of the information to Ms Whitaker. This report does not indicate what health benefit Ms Whitaker would derive from release.
Ms Kate Veljaca in her short report dated 17 August 2017 wrote: Ms. Whitaker has been a client of the service since May 2016, having been referred for psychological support and treatment in the context of alleged workplace bullying and harassment. As a corollary, M Whitaker experienced significant psychological distress, ultimately culminating in her becoming unable to complete her graduate year in Registered Nursing. Over the past year, Ms. Whitaker has been actively engaged in treatment with the impetus of stabilizing her mood, achieving symptom reduction and promoting skill acquisition. A core component of treatment is facilitating Ms. Whitaker's capacity to process the events of the past year. An unfortunate obstacle to this endeavour has been Ms. Whitaker's inability to secure hospital records and personnel files albeit repeated applications. Ms. Whitaker has the right under the Freedom of Information to access this material. The ongoing suppression of this information is now further aggravating her mental and emotional state, leading to further psychological distress, along with now complicating her general medical health and deteriorating broader function. I strongly advocate for Ms. Whitaker to have full and uncensored access to information regarding her employment with the Shoalhaven District Memorial Hospital.
In submissions the Agency correctly pointed out that it is not apparent whether the authors of these letters have considered the impact on Ms Whitaker of material adverse to her. While this possibility has not been directly addressed, I think it fair to assume that an informed doctor or psychologist would take into account the likelihood of the information containing material critical of Ms Whitaker.
I am persuaded by Ms Veljaca's report that release of the information sought may be of benefit to Ms Whitaker's psychological well-being. Without considerably more detailed information and explanation being provided, I am not persuaded that "ongoing suppression" of the information is having or will have an adverse effect on Ms Whitaker's health and well-being.
I do accept that the fact that the information relates to Ms Whitaker, her treatment at work, the frustration of her ambitions, and her desire to understand precisely what happened in two workplace investigations (with contradictory outcomes) are relevant personal factors under s 55. I have borne Ms Whitaker's personal factors in mind when considering the public interest considerations below.

Are there public interest considerations in favour of disclosure?

I agree with the Information Commissioner's report that the following public interests in favour of disclosure should be considered: 1. some of the information in issue is personal information of Ms Whitaker, being opinion and information about her; 2. disclosure of the information could be reasonably expected to contribute to administration of justice; 3. disclosure of the information could be reasonably expected to promote accountability in the agency's decision-making processes; and 4. disclosure of the information could be reasonably expected to openness and transparency in the agency's operations.
Further I am satisfied that disclosure of the information could be reasonably expected to inform the public about the content and operation of the agency's human resource management policies, especially with respect to workplace bullying. There is also, the "general public interest in favour of disclosure" in s 12 of the Act.
In my view each of these public interests deserves real weight. Because there is at least some apparent conflict (if not real) between the conclusions reached following the worker's compensation investigation (i.e. the admission of liability for Ms Whitaker's claimed psychological injury due to workplace bullying) and that reached by the misconduct investigation (allegations of workplace bullying not sustained) the public interest considerations in favour of disclosure numbered (2), (3) and (4) merit additional weight.

Are there public interest considerations against disclosure?

The table to s 14 requires that the decision maker be satisfied that each of the public interest considerations against disclosure set out in the table "could reasonably be expected to occur."
The words "could reasonably be expected to" have been the subject of considerable judicial consideration with respect to their use in the Freedom of Information Act 1989 and the Freedom of Information Act 1982 (Cth). They are to be given their ordinary meaning: Attorney-General's Department v Cockcroft (1986) 10 FCR 180. In that case, Bowen CJ and Beaumont J explained, at 190, that the words - "... require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like."
Hayne J pointed out in McKinnon v Secretary, Department of Treasury [2006] HCA 45 that, at [61] - "… when their Honours said, as they did, that the words required a "judgment 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 certain consequences, they are not to be understood as having used the latter expression as a paraphrase of the former. Rather, they are to be understood, and have since been understood, as doing no more than drawing an emphatic comparison. To do more would have been, as their Honours correctly said, "to place an unwarranted gloss upon the relatively plain words of the Act". And the same approach should be taken to the expression "reasonable grounds" .,."
See also Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252 at [61-67].
In the present case the Agency relies on the seven public interest considerations against disclosure set out in the table to s 14. I will consider them one at a time, with respect to the information in issue.

Prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, - 14(1)(b)

The Agency submits this applies to documents 36 and 38.
In Commissioner of Police NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [33] the Appeal Panel outlined the general approach to be adopted in determining whether or not information is confidential information. In our view, the question of whether the information supplied is 'confidential information' must be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received. 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 the present case the Agency submits that the Managing Misconduct Policy applies to the internal investigation and requires that information disclosed by staff in the context of a misconduct investigation, subject to the requirements of procedural fairness, not be disclosed. In her evidence Ms Cameron also said that Policy is expected to apply to external investigation such as that conducted by Procare. When asked to explain by reference to documents or policy how that is the case, Ms Cameron was unable to do so.
A reading of the Department of Health's Managing Misconduct Policy makes it clear that it is intended that information provided in the course of a misconduct investigation be treated as confidential. Information sheet 3 to the Policy is entitled rights and responsibilities of parties to a misconduct allegation. Among other things, it instructs everyone involved in an investigation to ensure confidentiality of communications (including of documents). With respect to the meaning of confidentiality it says: All parties involved in a misconduct matter must maintain appropriate confidentiality throughout the process. Confidentiality minimises the risk of harm to any of the persons involved. It also helps ensure the integrity of any investigation. Matters related to an allegation of misconduct (including the identity of those involved) must only be discussed with people who have a specific role in relation to the allegation, and such discussion must be restricted to matters relevant to that role. No information is to be provided to third parties, unless this is necessary for the effective management of the issue, or required by other policies or legislation.
There is nothing in the Managing Misconduct Policy or its annexures that suggest that the Policy applies to factual investigations conducted on behalf of Worker's Compensation Insurers into matters that also give rise to misconduct allegations and/or investigations.
As the Agency pointed out in its submissions whether information is supplied on a confidential basis is ultimately a question of fact to be determined in the light of all the circumstances of the particular case: see Luxford v Department of Education and Communities [2016] NSWCATAD 118 per Montgomery SM at [70].
In the present case the information in issue consists of statements from two witnesses whose oral evidence was that the documents they each prepared (36 and 38) were prepared for the purposes of the Worker's Compensation investigation being undertaken by Procare for the insurer, Employers Mutual Limited. [subject to suppression order] written statement clearly states that it was created for the purpose of the Procare investigation. [subject to suppression order] statement is somewhat ambiguous and does not distinguish between the two investigations. Her oral evidence, however, satisfied me that document 38 was prepared for the purposes of the Procare investigation; not the misconduct investigation.
I am satisfied that the Procare investigation was independent of and external to the Agency. The Managing Misconduct Policy did not apply to it.
As I pointed out to the Agency during the hearing, and invited submission on, a factual investigation for worker's compensation purposes has the potential to bring into play procedural entitlements of workers under the Workers Compensation Scheme in NSW. These include the provision of materials relating to an investigation of a worker's compensation claim to the worker concerned as required under relevant law. For example, s 73 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) provides: 73 Insurer to provide copies of reports to worker (cf former s 93E) (1) The regulations may make provision for or with respect to requiring an insurer to provide a worker, a worker's legal representative or any other person with a copy of a specified report, or a report of a specified kind, obtained by the insurer in relation to a claim by the worker. (2) Without limiting subsection (1), the kind of reports to which the regulations under this section can apply include investigators' reports, rehabilitation providers' reports and reports of assessments under section 40A (Assessment of incapacitated worker's ability to earn) of the 1987 Act. (3) If an insurer fails to provide a copy of a report as required by the regulations under this section: (a) the insurer cannot use the report to dispute liability to pay or continue to pay compensation or to reduce the amount of compensation to be paid and cannot use the report for any other purpose prescribed by the regulations for the purposes of this section, and (b) the report is not admissible in proceedings on such a dispute before the Commission, and (c) the report may not be disclosed to an approved medical specialist or an Appeal Panel in connection with the assessment of a medical dispute under Part 7 of Chapter 7
Clause 41 of the Workers Compensation Regulation 2016 (NSW) then provides: 41 Access to certain medical reports and other reports obtained by insurer (1) This clause applies to the following types of reports that an employer or insurer has in the employer's or insurer's possession: (a) medical reports, including medical reports provided pursuant to section 119 (Medical examination of workers at direction of employer) of the 1998 Act, (b) certificates of capacity, (c) clinical notes, (d) investigators' reports, (e) workplace rehabilitation providers' reports, (f) health service providers' reports, (g) reports obtained by or provided to an employer or insurer that contain information relevant to the claim on which a decision to dispute liability is made. (2) This clause applies to the following decisions of an employer or insurer relating to an injured worker: (a) a decision to dispute liability in respect of a claim, or any aspect of a claim (in circumstances requiring the insurer to give the worker a notice and reasons under section 74 of the 1998 Act), (b) a decision to discontinue payment, or to reduce the amount of weekly benefits (in circumstances requiring the insurer to give the worker a notice of intention under section 54 of the 1987 Act), (c) a decision on the review under section 287A of the 1998 Act of a decision described in paragraph (a) or (b) that confirms the original decision. (3) For the purposes of sections 73 (1) and 126 (2) of the 1998 Act, if an employer or insurer makes a decision to which this clause applies, the employer or insurer must provide a copy of any relevant report to which this clause applies to the worker, as an attachment to a notice under section 74 of the 1998 Act, section 54 of the 1987 Act or section 287A of the 1998 Act, as the case may be, except where the report has already been supplied to the worker and that report is identified in a statement under clause 38 (1) (d). (4) The obligation in this clause to provide a copy of a report applies to any report that is relevant to the claim or any aspect of the claim to which the decision relates, whether or not the report supports the reasons for the decision. (5) If the employer or insurer is of the opinion that supplying a worker with a copy of a report would pose a serious threat to the life or health of the worker or any other person, the employer or insurer may instead supply the report: (a) in the case of a medical report, certificate of capacity or clinical notes - to a medical practitioner nominated by the worker for that purpose, or (b) in any other case - to a law practice representing the worker. (6) If, on the application of an employer or insurer, the Authority is satisfied that supplying the worker with a copy of the report would pose a serious threat to the life or health of the worker or any other person and that supplying the report as provided by this clause would not be appropriate, the Authority may: (a) direct that the report be supplied to such other persons as the Authority considers appropriate, or (b) make such other directions as the Authority thinks fit:
Documents such as those numbered 36 and 38 fall within the scope of cl 41(1)(g) because they contain information relevant to the claim.
Provisions such as Clause 41 of the Workers Compensation Regulation explain why formal statements prepared by investigators such as Procare contain a statement to the effect that those statements may be provided to the claimant of their representatives. Procare's investigator included that statement in every witness statement prepared during the course of the investigation into Ms Whitaker's compensation claim.
In the light of all the evidence I am not satisfied that Procare's investigator at any time told either [subject to suppression order] or [subject to suppression order] that the information they provided would be treated confidentially and would not be provided to Ms Whitaker. [subject to suppression order] assertion to the contrary simply does not ring true, in circumstances where every statement prepared by the investigator contained a statement to the effect that the statement might be released to Ms Whitaker. It follows that I am also not satisfied that the information in documents 36 and 38 was supplied on a confidential basis in accordance with the Managing Misconduct Policy. Further the information in those documents was supplied to Procare for the purposes of the worker's compensation investigation, and not to the Agency. It was supplied when liability for Ms Whitaker's compensation claim was a live issue, and when it was certainly on the cards that, if liability were denied by the insurer, information obtained by the Procare investigation would have to be disclosed to Ms Whitaker or her representatives.
I am therefore not satisfied that release of documents 36 and 38 could reasonably be expected to prejudice the supply to the agency of confidential information that facilitates the effective exercise of that agency's functions.

Prejudice the effective exercise by an agency of the agency's functions, - s14 (1)(f)

The Agency submits this applies to documents 36 and 38.
A reading of the Agency submissions demonstrates that its reliance on this public interest consideration against disclosure is based on acceptance that the documents were prepared for the purpose of a confidential misconduct investigation carried out in accordance with the Agency's Managing Misconduct Policy. Release is said to threaten the integrity of those processes and the willingness of Agency staff to participate in misconduct investigations.
I do not accept that the documents were prepared for the purpose of the misconduct investigation.
I am satisfied that the documents were prepared for the purposes of a worker's compensation investigation conducted by an external investigator, appointed by the workers compensation insurer, and that no assurance of confidentiality were offered by the investigator. As a consequence, this public interest consideration against disclosure is not made out.

Found an action for breach of confidence/disclose information provided in confidence - s 14 (1)(g)

Once again, the Agency submits this applies to documents 36 and 38.
Because I do not accept that that the information in documents 36 and 38 was provided to Procare on a confidential basis, this overriding public interest consideration against disclosure is not made out.

Reveal an individual's personal information - s 14(2(a)

The Agency submits this applies to documents 9 and 60 (which are the same), and documents 36 and 38.
Personal information is defined in cl 4 of Sch 4 of the GIPA Act . It provides: (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.
A reading of each of the documents in issue reveals that they contain: 1. the names of the authors and others, including Ms Whitaker; and 2. opinions expressed by the authors and others, including opinions about Ms Whitaker and others.
The documents therefore contain personal information being identifying information and opinions of the authors about Ms Whitaker and others.
I accept that release of redacted information from documents 9 and 38 would reveal personal information of an individual, and that release of documents 36 and 38 would reveal personal information of the authors, and others, including Ms Whitaker. This public interest consideration against disclosure is made out.
In my assessment this is a public interest consideration against disclosure deserving of some weight, insofar as it relates to personal information of and relating to persons other than Ms Whitaker. There is no public interest in preventing Ms Whitaker from seeing information and opinion about herself.

Contravene an information protection principle under the Privacy and Personal Information Protection Act 1998- s 14(2)(b)

The Agency submits this applies to documents 9 and 60 (which are the same), and documents 36 and 38. The Agency relies on s18 of the PIPPA ACT which provides: (1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless: (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person. (2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.
I accept that the information redacted from document 9 and 60 (which are the same) is personal information of an individual within the meaning of s 4 of the PIPPA Act. I also accept that documents 36 and 38 contain information about and opinion about the authors, and others (including Ms Whitaker).
In my assessment there is a public interest consideration against disclosure deserving of some weight of that information, insofar as it relates to personal information of and opinion relating to persons other than Ms Whitaker. There is no public interest in preventing Ms Whitaker from seeing information and opinion about herself. Indeed, s 14 of the PIPPA Act gives her a right to access such information.

Expose a person to a risk of harm or of serious harassment or serious intimidation - s 14(2)(f)

As I understand it the Agency submits this applies to documents 36 and 38.
In AEZ v Commissioner of Police, NSW Police Force [2013] NSWADT 90 I had occasion to consider what was meant by this provision in the Table to s14. I wrote: 83. The GIPA Act does not contain a definition of harm, serious harassment or serious intimidation. It is to be noted that harm is not qualified by the adjective serious. The Macquarie Dictionary online defines harm thus - noun 1. injury; damage; hurt: to do someone bodily harm. 2. moral injury; evil; wrong. -verb (t) 3. to do harm to; injure; damage; hurt. -phrase 4. in harm's way, in danger. 5. out of harm's way, out of danger. [Middle English; Old English hearm] 84 Harm is a concept frequently used by the law. The criminal law prohibits assaults occasioning bodily harm. This has been interpreted in its ordinary meaning to" include any hurt or injury calculated to interfere with the health or comfort of [the injured person]": see R v Donovan [1934] 2KB 498. "Serious harm" is a concept used in criminal defamation, which requires proof of an intent to cause serious harms. Section 40 of the Civil Law (Wrongs) Act 2002 (ACT) on the other hand defines "harm" to be harm of any kind, including personal injury, damage to property and economic loss. Harm is also a concept in child protection: in section 9 of the Child Protection Act 1999 (Qld) it is defined as "as any detrimental effect of a significant nature on the child's physical, psychological or emotional wellbeing." 85 In the context of s 14 of the GIPA Act I am inclined to the view the meaning of harm should be confined to a real and substantial detrimental effect on a person, rather than on their business interests. This is so given the juxtaposition of the word "harm" with the concepts of serious harm and intimidation, and the fact that economic and business interests are the subject of public interest consideration against disclosure in part 4 of the section 14 Table. A detrimental effect may be to a person's physical, psychological or emotional wellbeing. 86. Serious harassment is a separate and distinct concept. The Macquarie Dictionary online defines harass - verb (t) 1. to trouble by repeated attacks, incursions, etc., as in war or hostilities; harry; raid. 2. to disturb persistently; torment. [French harasser, from Old French harer set a dog on] 87. The concept of harassment is one familiar to anti-discrimination law, with sexual harassment being prohibited and subject to remedies. A consideration of those laws reveals that a common element in most jurisdictions is that the person harassed would be offended, humiliated or intimidated by the conduct in the circumstances: see Sex Discrimination Act 1984 (Cth), s 28A(1); Anti-Discrimination Act 1977 (NSW), s 22A; and Equal Opportunity Act 1984 (SA), s 87(9). 88. In Henderson v McKenzie [2009] ACTSC 39 Higgins CJ was considering a charge of stalking with intent to harass contrary to s 35(1)(c) of the Crimes Act 1900 (ACT). His Honour said, at [6-8] - 6. Harassment is not defined in the Crimes Act, nor, indeed, in the Criminal Code 2002 (ACT) (Criminal Code). However, it does seem in context to bear its usual meaning, ie "to trouble by repeated attacks; harry; (1) to worry or unnerve (an enemy) by continuous small attacks; (2) to disturb, worry, torment, distress with annoying labour, care or misfortune" (World Book Dictionary); "Vex by repeated attacks; trouble, worry" (Concise Oxford Dictionary). 89. All of the definitions of harassment require a consideration of how the conduct complained of is experienced by the person alleged to be harassed, and are concerned with whether that person was offended, worried, tormented, distressed or harassed by the conduct. In the context of the GIPA Act where the decision maker has to be satisfied that, if the information is disclosed, it could reasonably be expected that the disclosure would expose a person to serious harassment, the assessment of the impact of the conduct on the individual concerned is an objective one, although particular circumstances and vulnerabilities relating to that individual may be taken into account when making that assessment. 90. The GIPA Act makes specific mention of serious intimidation as another element of the public interest consideration against disclosure in point 3(f) of the Table to s 14, despite the fact that the two concepts of intimidation and harassment are clearly related. 91. Intimidation is defined by The Macquarie Dictionary online as - verb (t) (intimidated, intimidating) 1. to make timid, or inspire with fear; overawe; cow. 2. to force into or deter from some action by inducing fear: to intimidate a voter. [Medieval Latin intimidātus, past participle, made afraid. See TIMID] 92. Intimidation is defined in s 7 of the Crimes, Domestic and Personal Violence Act 2007 (NSW) thus - (1) For the purposes of this Act, intimidation of a person means: (a) conduct amounting to harassment or molestation of the person, or (b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or (c) any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property. 93. In PE V MU [2010] NSWDC 2 William DCJ referred to that definition and said - 15…intimidatory conduct… is conduct amounting to harassment or molestation or contact by one person with another such as would cause the other person to fear for their safety. 16 Harassment is not defined in the Act but in its legal sense refers to ongoing behaviours that are found to be threatening or disturbing. … 94. Importantly the intimidation or harassment referred to in point 4(f) is required to be serious intimidation or serious harassment, requiring that the decision maker be satisfied that release of the information could reasonably expose a person to intimidation or harassment that is heavy, weighty or grave, and not trifling or transient.
See also CJO v NSW Police Force [2016] NSWCATAD 262, Dezfouli v Justice Health & Forensic Mental Health Network [2018] NSWCATAD 11.
None of the witnesses who gave evidence to the Tribunal were scared or afraid of Ms Whitaker in their day-to-day dealings with her. They clearly resented allegations she had made against them, and in a number of cases protested at the harm she might do to their reputations, without being able to point to any rational basis for their fears. One said, "I have no idea what she is capable of." Another was concerned that Ms Whitaker may try to publicly confront her or harass her if her statement was released. That witness did not suggest, indeed no witness suggested, that Ms Whitaker had ever tried to confront or harass them in any manner.
In my view, there is no evidence before the Tribunal that release of document 36 or 38 could be reasonably expected to result in a person being exposed to a risk of harm or of serious harassment or serious intimidation. This public interest consideration against disclosure is not made out.

Prejudice any person's legitimate business, commercial, professional or financial interest. S 14(2)(g)

The Agency submits this applies to documents 36 and 38. It argues that the Agency has a legitimate business interest in ensuring that it has a working environment free of bullying, which includes the investigation of bullying in an environment free of the fear of reprisals to those who provide information. The Agency relied on the statements of a number of witnesses, including Ms Cameron, about the chilling effect on such investigations of releasing information supplied.
The difficulty I have with this argument is that documents 36 and 38 were not created for or provided to a misconduct inquiry investigating bullying. Rather, they were created and used for the purposes of an investigation into Ms Whitaker's claim that she had suffered a workplace injury, which investigation was instigated by the insurer and conducted by investigators external to the agency. This was a normal and common sort of investigation carried out with respect to a worker's compensation claim and all contributors were advised that the information they provided could be disclosed to the applicant.
I am unable to see how release of documents 36 and 38 in those circumstances could prejudice the Agency's legitimate business interests. This public interest consideration against disclosure is not made out.

Weighing the public interests

I have already indicated that the only public interest considerations against disclosure that I accept apply here are: 1. that relating to personal information of individuals, apart from Ms Whitaker, and 2. that relating to the breach of information protection principles. Each deserves significant weight.
On the other hand, there are six competing public interest considerations in favour of disclosure each of which are deserving of weight.
I have come to the conclusion that, with the exception of identifying information relating to the individual employees in the surgical ward (but not Ms Whitaker), and of any identifying information relating to them, the information she seeks access to should be released. There is an overriding public interest consideration in favour of disclosure of the balance of the information.
In reaching that conclusion I bear in mind that release of information under the GIPA Act is unconditional (see s 73) and amounts to release to the world. I do not think that in the present case the public interest extends to requiring the release of identifying personal information of the Agency's employees in the surgical ward other than Ms Whitaker. I think it likely that Ms Whitaker will know who they are in any case.

Summary Dismissal and Costs

The Agency has applied for summary dismissal and costs on the basis that it alleges that Ms Whitaker was in possession of most of the documents in issue before the hearing proceeded, and thereby forced the Agency to incur unnecessary costs. It is not clear to me on what basis the Agency makes that allegation.
Further, it is clear that Ms Whitaker is not in possession of all the documents she initially sought and that, despite ceasing her pursuit of some the documents, there remained some undisclosed information to which she sought access. In those circumstances I do not see how the Agency could reasonably ask for her entire application to be dismissed.
While it is clear that Ms Whitaker is now in possession of additional information including the investigation reports she sought, when she gained access to them relative to the hearing is unclear, and could well be determinative of a costs application.
I will therefore make a series of directions concerning any cost application the Agency wishes to make.

Conclusion

The Tribunal makes the following orders 1. The Tribunal: 1. affirms the Agency's decision with respect to document 9 and 60 (which are the same); and 2. sets aside the Agency's decision with respect to documents 36 and 38, such decision to be redetermined in accordance with these reasons within 30 days of publication of these reasons. 1. Under s 64(1)(b) of the Civil and Administrative Tribunal Act 2013 the Tribunal prohibits disclosure or publication of the names and of and identifying information relating to the witnesses who provided confidential evidence in these proceedings. 2. If the Agency still wishes to pursue its costs application, it should file and serve within 30 days of the publication of these reasons: 1. details of the costs it seeks, including a lump sum amount claimed and how that figure is calculated; 2. any evidence it wishes to rely on in support of its cost application; and 3. submissions as to costs. 1. Within a further 30 days Ms Whitaker should file and serve: 1. any evidence she wishes to rely on; and 2. submissions as to costs. 1. The costs issue is then to be referred to me for determination.

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 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

Amendments 15 August 2018 - [subject to suppression order] inserted in [67] 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: 15 August 2018

Government Information (Public Access) Act 2010(NSW)

Crimes, Domestic and Personal Violence Act 2007(NSW)

Whitaker v Illawarra Shoalhaven Local Health District

At a glance

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Judgment (23 paragraphs)

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Legislation Cited (12)

Cases Cited (9)

Cited By (2)