Winn v The Hills Shire Council

NCAT Administrative and Equal Opportunity|2019-07-29|Before: Health J

REASONS FOR DECISION

Ms Robyn Winn has applied to the Tribunal for review of a decision made by The Hills Shire Council (the Council) under the Government Information (Public Access) Act 2009 (the GIPA Act) refusing her access to documents held by the Council.

Background

Ms Winn was employed by the Council from 2003 until she resigned in November 2018. On 23 October 2018 she was notified by the General Manager that a complaint had been received about inappropriate workplace behaviour, and that the Council was in the process of engaging an external investigator. That letter advised that the particulars of the allegations would be provided by the investigator and Ms Winn would have time to review them and to attend an interview. The matter was to be kept confidential, and Ms Winn was stood down on full pay pending the outcome of the investigation.
On 6 November 2018 the Manager - Human Resources & Wellbeing advised her that an investigator from Worklogic had been engaged, and outlined the process for the investigation, including that once the investigator had obtained details of the complaint she would be provided with a Summary of the Issues to be investigated. The letter stated that the investigation was "strictly confidential", and that Ms Winn was required to maintain confidentiality; and that the Council would maintain confidentiality as far as possible.

Access request

On 15 November 2018 Ms Winn requested access to the following information: 1. Her personnel file; 2. All email communications, including email chains, for the period 1 July 2017 to present between Robyn Winn and the General Manager; 3. All email communications including email chains for the period 17 October 2016 to present between Robyn Winn and three named individuals; and 4. All documents contained within Outlook subfolders of Robyn Winn's Council Outlook account.
On 20 November 2018 Ms Winn made a further request for access, to the following information: 1. All email communications including email chains for the period 17 October 2016 to present, between Robyn Winn and six named individuals; 2. The alleged bullying and harassment complaint lodged against Robyn Winn (names to be redacted); 3. The alleged WHS incident logged against Robyn Winn and all associated documents (names to be redacted).
On 10 December 2018 the Council notified Ms Winn that her personnel file would be provided on USB, and requested her to amend the application to restrict the breadth of information required. That email advised Ms Winn of the estimated charge for provision of the information, and that an advanced deposit of $1995 was required.
Ms Winn amended the application made on 19 November 2018 to be a request for access to the alleged bullying and harassment complaint, and the alleged WHS incident.
On 2 January 2019 Ms Winn applied to the Information and Privacy Commissioner (IPC) for an external review. On 7 January 2019 the Manager - Governance & Public Officer sent an email to Ms Winn in which he stated that her request for access to a copy of the alleged bully and harassment complaint and alleged WHS incident lodged was denied "on the basis that any disclosure (even with names redacted) would result in the identity of the person/people involved being disclosed".
The IPC report of the external review dated 30 January 2019 concluded that the Council's decision to impose an advance deposit was justified, and that the decision to refuse access to the WHS report and the associated documents and the bullying and harassment complaint was not justified, and recommended that the Council make a new decision under its internal review powers. The IPC commented that the Council had failed to identify public interest considerations in favour of disclosure or public interest considerations against disclosure by reference to s 14 of the GIPA Act, and had not properly applied the public interest test to determine if there was an overriding public interest against disclosure of the information in issue before deciding to refuse to provide access. The IPC observed that the Council's notices of decision dated 10 December 2018 and 7 January 2019 did not comply with the requirements of the GIPA Act, including advising review rights.
On 12 March 2019 the Council notified Ms Winn of the internal review conducted by Mr David Reynolds, Group Manager Shire Strategy, Transformation and Solutions. The internal review outcome was that the application for access to the bullying and harassment complaint was refused on the basis that there was an overriding public interest against disclosure; and that partial access was granted to the WHS incident information and refused for the balance of the information requested.
The internal review identified as public interest reasons in favour of disclosure that the information could be considered to be the applicant's personal information, and that there is a public interest in ensuring that the Council acts appropriately with respect to the expenditure of public money with regard to caring for and managing its staff in a fair and reasonable way. The personal interests of the applicant were identified as being that she no longer works for the Council, she still works in the local government industry within the Sydney metropolitan area, and she resides in The Hills Shire local government area. The public interests against disclosure were identified as those in cll 1 (d), 1(f), 1(g), 3(a), 3(b) and 3(f) of the Table in s 14 of the GIPA Act, that disclosure could reasonably be expected to have the following effects: 1. prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions (cl 1(d)); 2. prejudice the effective exercise of that agency's functions (cl 1(f)); 3. found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence (cl 1(g)); 4. reveal an individual's personal information (cl 3(a)); 5. 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 (cl 3(b)); or 6. expose a person to risk of harm or serious harassment or serious intimidation (cl 3(f)).
The review concluded that the public interests against disclosure outweighed those in favour for both complaints, and other than the release of an email written by the General Manager dated 18 July 2018, which could be released with redactions to remove personal information of third parties consulted as part of the process, access to the documents was refused.

Tribunal proceedings

Ms Winn applied to the Tribunal on 29 March 2019 under s 100 of the GIPA Act for review of the decision to refuse access to the documents. Ms Winn confirmed at the hearing that her access request relates to the documents identified at (2) and (3) of the request made on 20 November 2018, namely the WHS incident report and all associated documents, and the bullying and harassment complaint.
Ms Winn relied on an affidavit affirmed on 17 July 2019 (ex A1), and written submissions.
In her affidavit Ms Winn summarises the background to her access requests, the internal review, and her applications to the IPC and the Tribunal. Ms Winn explains her argument that Mr Reynolds, Mr Spence (Manager of Public Governance & Public Officer), and the Senior Executive Services Officer did not hold a delegation under s 378 of the Local Government Act 1993 to make a reviewable decision in connection with an access application on the relevant dates. Ms Winn denies any perceived harm, risk, aggression, intimidation, threat to personal well-being and safety. She states that since resigning from the Council in November 2018 she does not have interactions, social personal or professional with any current or former members of staff who she reasonably suspects may have lodged a bullying and harassment complaint against her. She attended the Council end of year Christmas function in December 2018 without incident, and has attended a pre-wedding celebration for a current employee, without incident. She has not attended any work-related conference or seminar since resigning from Council where she has seen or been around any current or former employee. Ms Winn relies on the procedural fairness provisions of the Local Government (State) Award 2017, Local Government Industry Guidelines on Workplace Investigations and the Model Code of Conduct.
The Council provided written submissions, and relied on affidavit evidence by David Reynolds, Group Manager of Shire Strategy, Transformations and Solutions (11 June 2019), and Michael Spence, Manager of Governance and Public Officer (17 July 2019). The open versions of those affidavits are respectively exhibits R1 and R3. The full versions provided to the Tribunal on a confidential basis are respectively exhibits R2 and R4. The Council's Incident Reporting and Investigation Procedure is exhibit R5.
In his affidavit Mr Reynolds summarises his approach to the internal review, and the documents he obtained for that purpose. He summarises his consultation with the persons who made the reports or complaints or who were otherwise referred to in the documents. At paragraphs [16]-[30] Mr Reynolds records his conversations with seven staff members. Two of those staff members had made a complaint, one had received complaints and created records, one had made a record about Ms Winn, one was included in an email record of an incident, one had recorded an incident, and one had been mentioned in records of some incidents. Six staff members objected to release of documents, giving their reasons. The seventh staff member expressed concern for other staff regarding Council's ability to carry out its functions and protect confidentiality, however did not object to release of their personal information being their recollection of events. Mr Reynolds then summarises the approach he undertook in identifying public interest considerations for and against disclosure and personal factors.
In his affidavit Mr Spence comments on his observations of Ms Winn's attendance at the Council Christmas party in December 2018, of having observed her at shops and cafes, and of her behaviour in the office.
None of the witnesses were required for cross examination.
A confidential session was held in the absence of the applicant and the public, as provided for in s 107 of the GIPA Act. The confidential session gave the Tribunal an opportunity to examine, and hear submissions concerning, the documents the subject of the access request.
An order was made during the hearing under s 64 of the Civil and Administrative Tribunal Act 2013 that the material filed by the Council on a confidential basis and the record of that part of the proceedings conducted in private are not to be released to either the applicant or to the public. The order also applies to those portions of these reasons identified as [Not for publication].

Relevant legislation

The object of the GIPA Act as set out in s 3 is to open government to the public. This is done by authorising and encouraging the proactive release of information by agencies and by giving members of the public an enforceable right to access government information. Access to government information is to be restricted only when there is an overriding public interest against disclosure.
It was not disputed that the information the subject of this application is government information that is held by an agency: s 4(1) of the GIPA Act.
There is a presumption in favour of the disclosure of government information unless there is an "overriding public interest against disclosure": s 5 of the GIPA Act.
There is a general public interest in favour of disclosure of government information: s 12(1) GIPA Act. Examples of public interest considerations in favour of disclosure, which are not limited, are provided in a Note to s 12: 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.
The term "personal information" is defined in cl 4 of Sch 4 to the GIPA Act in the following terms: 4 Personal information (1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion. (2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics. (3) Personal information does not include any of the following: (a) information about an individual who has been dead for more than 30 years, (b) information about an individual (comprising the individual's name and non-personal contact details, including the individual's position title, public functions and the agency in which the individual works) 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.
Section 13 of the GIPA Act sets out the test that is to be applied in determining whether there is an overriding public interest against disclosure: 13 Public interest test There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
The public interest considerations against disclosure are set out in a Table in s 14 of the GIPA Act. The considerations on which the Council relies in this review are cll 1(d), (f), (g) and 3(a) and (f) of the Table to s 14: 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, (g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence, … 3 Individual rights, judicial processes and natural justice There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects: (a) reveal an individual's personal information, … (f) expose a person to a risk of harm or of serious harassment or serious intimidation, …
A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the principles set out in s 15 of the GIPA Act which provides as follows: 15 Principles that apply to public interest determination A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles: (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
The personal factors of the application, being the applicant's identity and relationship with any other person, their motives for making the access application, and any other factors particular to the applicant, may be taken into account as factors in favour of providing an applicant with access to information (s 55(2)). Personal factors may be taken into account as factors against providing access only if relevant to consideration of whether the disclosure could reasonably be expected to have any of the effects referred to in (relevantly) cl 3 of the Table to s 14: s 55(3).
The onus of establishing that an agency's decision is justified lies on the agency: s 105 GIPA Act.

The documents

The documents which were identified in the internal review as within the scope of the access request were provided to the Tribunal on a confidential basis, as Annexure E to the confidential version of the affidavit of Mr Reynolds (ex R2). The documents are described by him in the open version of his affidavit (ex R1) as "incident reports by way of email and memorandum, and system records made available to me in printed form". Mr Reynolds states that he obtained access to the documents with the consent of the General Manager. He states: 14. I then perused this material and observed that the documents were marked "Confidential" and contained reports and some complaints by Council staff to the HR Manager concerning conduct related to Robyn Winn in the workplace that occurred during her employment.
Mr Reynolds states that he then consulted with the individuals who made the reports or complaints that were contained in the documents or those who had otherwise been referred to during the course of the complaints or incident reports held by the Council. When considering the factors in favour of disclosure and those against disclosure he looked at the two document types, being the WHS incident and the bullying and harassment complaint separately, and decided them separately.
The Schedule of Documents in the internal review report does not number, or list, the documents under consideration, and simply refers to them in two groups: "WHS incident information and all associated documents" and "Bullying and Harassment Complaint". Without disclosing in these open reasons the content of any of those documents, it is necessary in order to understand the discussion that follows to state that Annexure E contains 37 pages which were numbered during the course of the confidential session during the hearing. The documents are referred to in these reasons by reference to those page numbers. The documents at pp 1-3 are the "Bullying and Harassment Complaint"; and the documents at pp 4-6 are the "WHS Incident Report", and pp 7-37 are the associated documents. Pages 13, 17, 19, 21, 23, 27, 29 are blank.
The document to which Ms Winn has had access in a redacted form is at pp 36-37 of Annexure E. It is an email from the General Manager dated 18 July 2018 reporting an incident of the day before, and includes details of the conversations he had with Ms Winn on that day and his perceptions of her behaviour.

Discussion and findings

In accordance with the principles established in Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19, in determining this application the Tribunal is required to: 1. Identify the public interest considerations in favour of disclosure; 2. Consider whether the information in issue, if released, would give rise to a public interest against disclosure on the grounds that release of the information could reasonably be expected to have the effect as contended by the Council; and 3. If so satisfied, consider where the balance lies between the public interest considerations in favour of disclosure and those against disclosure, having attributed weight to each consideration, and taking into account the personal factors identified under s 55.
As recently confirmed by the Appeal Panel in Transport for NSW v Searle [2018] NSWCATAP 93 at [104], while that process requires a broad value judgment to be made, it is not made in a vacuum, but having regard to the objects of the legislation, the general presumption in favour of disclosure of government information, and the principles set out in s 15 of the GIPA Act.
A preliminary issue raised in the hearing is the identification of the procedure that the Council was following in the reporting and investigation of either the bullying and harassment complaint or the WHS incident. Annexure Q to the affidavit of Ms Winn is the NSW Office of Local Government Model Code of Conduct for Local Councils in NSW (2018) (the Code of Conduct), and Annexure R is the Department of Premier & Cabinet Procedures for the Administration of the Model Code of Conduct (the Procedures). Exhibit R5 is the Council's Incident Reporting and Investigation Procedure. Ms Winn submitted that the bullying and harassment complaint should be considered by reference to the Code of Conduct, relying on the provision in that document for disclosure of workplace complaints, and for procedural fairness as a general guiding principle. The Council submitted that the Incident Reporting and Investigation Procedure is relevant for the WHS issue. Neither of the letters of 23 October 2018 or 6 November 2018 identify whether the bullying and harassment complaint was being dealt with under the Code of Conduct. Where relevant, both documents are considered in the discussion below.

Public interest considerations in favour of disclosure

The Council relies on the public interest reasons in favour of disclosure identified in the internal review, that is, that the information could be considered to be the applicant's personal information, and that there is a public interest in ensuring that the Council acts appropriately with respect to the expenditure of public money with regard to caring for and managing its staff in a fair and reasonable way.
Ms Winn submits that other public interest considerations in favour of disclosure are that disclosure could reasonably be expected to: 1. contribute to procedural fairness towards her; 2. contribute to the administration of justice; 3. promote accountability in the Council's decision-making processes; and 4. contribute to openness and transparency in the Council's operations.
The Tribunal accepts that the two matters identified by the Council are relevant public interest considerations in favour of disclosure, and is satisfied that a further public interest in favour of disclosure is that disclosure could facilitate public scrutiny of and promote transparency in the Council's decision-making processes including in respect of its handling and management of complaints against staff members.
The applicant is concerned that she was not, as stated in the letters of 23 October 2018 and 6 November 2018, provided with particulars of the allegations against her, or a summary of issues to be investigated, and thus was denied procedural fairness. The Council submits that the investigation process did not reach that point because Ms Winn resigned before she was asked for her response. In that context, the Tribunal does not consider that Ms Winn's expectation of procedural fairness can be said to be a public interest consideration in favour of disclosure, as it is primarily a reflection of her private interests: the public interest in favour of disclosure is the more general consideration of facilitating scrutiny of and promoting transparency in the Council's decision-making processes including in respect of its handling and management of complaints against staff members.

Personal factors

The Council identifies as relevant personal factors which may be taken into account: 1. Ms Winn no longer works at the Council; 2. Ms Winn still works in the local government industry in the Sydney metropolitan area; and 3. Ms Winn resides in The Hills Shire local government area.
Those matters were not in dispute, and the Tribunal accepts that they are personal factors of the application for the purposes of s 55 of the GIPA Act.

Public interest considerations against disclosure

The public interest considerations against disclosure on which the Council relies are framed in cll 1(d), (f), (g) and 3(a) and (f) in terms of whether disclosure of the information "could reasonably be expected" to have the relevant effect. The principles to be applied in considering that test were summarised in Transport for NSW v Searle [2018] NSWCATAP 93 at [68] in the following terms: 68. There was no dispute between the parties that: (1) The [agency] bore the onus of establishing the existence of one or more of the relevant public interest considerations against disclosure in cl 1 of the Table in s 14 of the GIPA Act: see s 105. (2) The words "could reasonably be expected" are to be given their ordinary meaning. They 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 disclosure would have the relevant effect: Attorney-General's Department v Cockcroft (1986) 10 FCR 180 at 190.5; Raven v The University of Sydney [2015] NSWCATAD 104 at 48. As was made clear by Hayne J in McKinnon v Secretary, Department of Treasury [2006] HCA 45 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." (3) In order to discharge the onus, the appellant needed to show more than a mere possibility, risk or chance of prejudice. It must be based on real and substantial grounds: Australian Vaccination Network v Department of Finance & Services [2013] NSWADT 60 at [22]. (4) It will not be sufficient for the decision-maker to proffer the view. It must be supported in some way: Manly v Ministry of Premier and Cabinet (1995) 14 WAR 550 at 573G; Raven at [53]. (5) "Prejudice" is to be given its ordinary meaning, that is, to cause detriment or disadvantage, or to impede or derogate from: Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60]. (6) The question as to prejudice to future supply was not to be determined by reference to the particulars of the instant situation. It was not necessary to show that it could reasonably be expected to occur on every occasion. It was to be determined at a broader operational level. Hence, the fact that in the instant situation the specific individual(s) supplying the information was unlikely to be inhibited even if there was disclosure was not determinative against the agency: Cammilleri at [21], [22] and [26].
Whether disclosure of the information "could reasonably be expected to" have the stated effect is a question of fact to be established to the relevant standard of proof, on the balance of probabilities: Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42].

Clause 1(d) - whether disclosure could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions:

The Council submits that as a council one of its functions involves "administrative functions" as noted in Chapter 5 of the Local Government Act 1993 and that such functions include the employment and management of staff including but not limited to dealing with employee complaints and or reports about employee behaviour in the workplace. The disclosure of such information could discourage future victims and/or complainants in the workplace from approaching the Council with workplace concerns. The complaints about the applicant, and the investigation that followed, were conducted in circumstances amounting to the supply to the Council of confidential information that facilitates the effective exercise of the Council's functions.
Ms Winn submits that the evidence does not establish how the release of the information would or could reasonably prejudice the supply of information that facilitates the exercise of the agency's functions. The information is personal information, that is personal to her, comprising allegations of workplace misconduct. The supply of such information is, according to Council practice and procedure, to be treated in accordance with the Council's adopted policies and procedures, which provide for confidentiality amongst the parties only.
The functions conferred on the Council under the Local Government Act include, under a Note to Chapter 5, "administrative functions", which include employment of staff. Employment of staff includes the ability to deal with complaints and allegations of misbehaviour, bullying or harassment, which accordingly form part of the functions of the Council.
The relevant principles to be applied in considering cl 1(d) were summarised in Ansoul v City of Sydney [2017] NSWCATAD 65 in the following terms: 33. "Prejudice" under the GIPA Act has been held to have the same meaning as under the repealed Freedom of Information Act 1989, which is its ordinary meaning, that is, " to cause detriment or disadvantage " or "to impede or derogate from": Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60]. 34. In Commissioner of Police, New South Wales Police Force v Camilleri [2013] NSWADT 80 the Appeal Panel stated that the question as to whether information is "confidential information" is to "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 inquiry "should focus on the point of receipt, and the administrative standards and community understandings which surround it". 35. In Macquarie University v Howell (No 2) [2009] NSWADTAP 19 at [10] the Appeal Panel said: "In our view, the Tribunal is required to engage in a relatively abstract analysis. The Tribunal needs to characterise the nature of the material sought to be protected on the present occasion; identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; and consider the extent to which guarantees of confidentiality may be necessary. It is then necessary to evaluate the effect on the agency's ability in future to obtain similar information." 36. In determining whether disclosure would reasonably be expected to prejudice the supply of information, the test is whether information of the kind in question facilitates the exercise of the respondent's functions and, whether the disclosure of such information could reasonably be expected to prejudice the supply of such information: Flack v Commissioner of Police, New South Wales Police Force [2011] NSWADT 286 at [52].
In his affidavit Mr Reynolds states that when accessed for the purposes of the internal review the documents were marked "confidential". In relation to the bullying and harassment complaint, the two staff members who made the complaint told Mr Reynolds that they had been told their complaint would be confidential and they would not have made and pursued it if it was not confidential.
In relation to the WHS incident report, the staff members' response was that they would not report or record things in future if they were not maintained confidentially, and that release of the information would undermine the ability to deal with staff complaints and issues.
The Code of Conduct identifies as General Conduct Obligations an obligation not to harass others, defining "harassment"; and an obligation not to engage in bullying behaviour towards others, defining "bullying behaviour". Parts 4 and 5 of the Procedures provide detail of how Code of Conduct complaints are to be managed, including a requirement that a complaint be in writing (cl 4.5), and that information that identifies or tends to identify complainants is not to be disclosed unless the complainant consents; the complainant has voluntarily identified themselves; it is essential having regard to procedural fairness requirements; disclosure is necessary to investigate the matter effectively; or it is otherwise in the public interest to do so (cl 5.29). Part 8 provides the process for investigations, including a requirement for the investigator to provide written notice of the investigation to the subject person, including disclosure of the substance of the allegations (cl 8.4).
The Council Incident Reporting and Investigation Procedure (ex R5) is an internal Council document stated to have been endorsed by the General Manager, and states that its purpose is to enable information to be recorded and where applicable an investigation conducted and action taken for the prevention of incidents and near misses; and that incident investigation is necessary to identify deficiencies in the WHS management system and the work environment so the root cause of an incident can be identified and reoccurrence prevented. The document includes both physical injury and psychological injury. Responsibilities for staff are identified, and the Guidelines specify a reporting procedure, and an investigation procedure. The latter includes the statement that the principles applicable to conducting an investigation include "maintain confidentiality".
The Tribunal accepts, based on Mr Reynolds' evidence as to his consultations, that the staff members who made the complaint of bullying and harassment did so on the understanding that the complaint would be confidential. That is consistent with the requirement of cl 5.29 of the Code of Conduct. The Tribunal accepts, based on Mr Reynolds' evidence as to his consultation with the staff members involved in the WHS incident report, and the terms of the Incident Reporting and Investigation Procedure, that the incident reporting and investigation process was also based on confidentiality.
The Tribunal accepts that managing complaints about the behaviour and actions of staff, and concerns about and for staff more broadly, is a part of dealing with issues that may affect the effective functioning of the Council's administrative functions. As was noted in Ansoul, in the absence of any coercive powers with respect to obtaining information from staff members in relation to such matters, an agency may need to rely on the co-operation of its staff members to come forward with relevant information; and such staff may be reluctant to do so without some assurance of confidentiality. The Tribunal is satisfied that in that context, disclosure of information received in confidence may prejudice the agency from performing its functions effectively and efficiently.
The bullying and harassment complaint is at pp 1, 2 and 3 of Annexure E to Mr Reynolds' affidavit. [NOT FOR PUBLICATION]. Having regard to the nature of the conduct recorded and the reaction to it, and in the context where the relevant persons are recorded as having stated to Mr Reynolds that they would not have made the complaint had they not been assured it would be confidential, the Tribunal is satisfied that if such information supplied in confidence were to be released, it is likely that in future staff would be more reluctant to provide information and participate in an investigation. That would prejudice supply to the Council of confidential information that facilitates the effective exercise of that agency's functions.
In relation to the WHS incident, the documents from pp 4-37 of Annexure E include file notes, emails, and computer records. [NOT FOR PUBLICATION]. The documents name the relevant individuals and provide details of their working relationship with Ms Winn. Having regard to the nature of the information contained in the documents, and the evidence that the individuals would not have reported the incident without the assurance that it would be confidential, the Tribunal is also satisfied that if such information supplied in confidence were to be released, it is likely that in future staff would be more reluctant to provide information and report concerns. That would prejudice supply to the Council of confidential information that facilitates the effective exercise of that agency's functions.

Clause 1(f) - whether disclosure could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions:

The agency function at issue is the effective management of staff, and the consequent need to ensure that issues that may impede the effective functioning of the agency are investigated and addressed. Clause 1(f) does not require that the information be supplied in confidence. The information in the bullying and harassment complaint, and the WHS incident documents, facilitates the effective exercise of the Council's complaint handling and incident investigation functions. The Tribunal is satisfied that release of that information could reasonably be expected to prejudice the exercise of the Council's functions.

Clause 1(g) - whether disclosure could reasonably be expected to found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence:

The Tribunal accepts the evidence of the staff members who made the complaint, as recorded in the affidavit of Mr Reynolds, that they would not have made the complaint, or would have been reluctant to do so, if it were not confidential. The Tribunal is satisfied that the information was provided in confidence, and that release of the bullying and harassment complaint would result in the disclosure of information provided in confidence.
The Incident Reporting and Investigation Procedure (ex R5) states at 4.6 that when conducting an incident investigation, the principles to be applied include "maintain confidentiality". The staff members consulted by Mr Reynolds stated their objections to disclosure of the WHS information and that they had been assured of confidentiality. The Tribunal is satisfied that the information was provided in confidence, and that release of the WHS incident information would result in the disclosure of information provided in confidence.

Clause 3(a) - whether disclosure could reasonably be expected to reveal an individual's personal information:

The bullying and harassment complaint contains the name and other information that would, if disclosed, lead to the identity of an individual being relatively easily ascertainable. The information includes information concerning the interpersonal relationships between those people and other employees including Ms Winn. The document includes personal information relating to Ms Winn, including opinions expressed about her by others; and some of those opinions would, in context, enable the identity of the person holding them to be ascertained.
The WHS incident report and associated documents also identify individuals, including Ms Winn. As was the case in Ansoul, the names and other information about the incident included in those documents, would lead to the identity of an individual being relatively easily ascertainable especially to a reader familiar with the Council operations and personnel; and simply redacting the names would not necessarily be sufficient.
The Tribunal is satisfied that disclosure of the information could be reasonably expected to reveal the personal information of persons other than Ms Winn.

Clause 3(f) - whether disclosure could reasonably be expected to expose a person to a risk of harm or of serious harassment or serious intimidation:

As noted in Ansoul at [51], the GIPA Act does not define harm, or serious harassment, or serious intimidation. The Tribunal has previously held that a decision maker must be satisfied that release of the information could reasonably be expected to expose a person to intimidation or harassment that is heavy, weighty or grave, and not trifling or transient: AEZ v Commissioner of Police [2013] NSWADT 90 at [94]. In AEZ v Commissioner of Police Senior Member Molony distinguished between "harm", which he confined to a real and substantial detrimental effect on a person, and "serious harassment", which concerns whether a person is offended worried, tormented, distressed or harassed by particular conduct, and "serious intimidation" which could include conduct causing another person to fear for their safety.
The Council submits that the context, which is that the applicant is an ex-employee who resigned subsequent to allegations of workplace bullying and harassment and who made the access requests before her resignation, heightens the concern that people who complained about her while she was an employee may be the subject of future harassment or serious intimidation notwithstanding that the applicant no longer works with the Council. The applicant has continued to prosecute her applications for access to information after her resignation, and whatever was the position before her resignation it is now different and there is no ongoing investigation. The applicant and the persons named in the GIPA applications reside in the Council area. The persons consulted have opposed release of their information, and given the nature of the information that has been withheld - being a WHS incident and a bullying and harassment complaint - the release of the information could reasonably be expected to expose a person to intimidation or harassment.
Ms Winn submits that the Council's evidence simply confirms her evidence, that is that she has intentionally avoided and not interacted with persons she reasonably suspects made complaints against her, including Mr Spence, and that it cannot be inferred from that evidence that the release of information could reasonably expose a person to any intimidation or harassment let alone serious intimidation or serious harassment.
The affidavit of Mr Reynolds records that one of the persons consulted by him proffered the opinion that Ms Winn has shown aggressive behaviour in the workplace; another referred to having witnessed her behaviour in the workplace. Another employee stated a concern about the risk of harm and intimidation if Ms Winn were to have access to the information. Another stated a concern if the bullying and harassment complaint were released, because that person did not know what Ms Winn's reaction would be.
[NOT FOR PUBLICATION]
In his affidavit Mr Spence records that Ms Winn attended the staff Christmas party in December 2018. The reactions of those attending included that it was uncomfortable having her there, and it was awkward. Since Ms Winn left the Council he has observed her in the area at shops and cafes and has avoided her seeing him or coming into face to face contact. Mr Spence had observed behaviour he described as aggressive and intimidating.
[NOT FOR PUBLICATION]
As discussed in Transport for NSW v Searle, the words "could reasonably be expected" require that it be established that it is reasonable, as distinct from something irrational, absurd or ridiculous, to expect that disclosure would have the relevant effect. The Tribunal must be satisfied that release of the information could reasonably be expected to expose a person to intimidation or harassment that is heavy, weighty or grave, and not trifling or transient. Having considered the Council's evidence, the Tribunal is of the view that the interactions between Ms Winn and other staff at the Christmas party reflect an awkwardness felt by those staff. The Tribunal is not satisfied that that response, or the specific behaviour identified by Mr Spence as occurring in the office, or the concerns documented by Mr Reynolds, could be described as constituting conduct that might be found threatening or disturbing, or cause a person to fear for their safety, such as to constitute a serious level of harassment or intimidation to those staff members observing it. While Mr Spence refers to avoiding encountering Ms Winn in shops or cafes, he does not explain the nature of the conflict or confrontation he would seek to avoid. There is no indication in the evidence of any threat such as might give rise to a risk of harm in the sense of a real and substantial detrimental effect. The Tribunal takes into account the personal factors relating to the application, which make it not unlikely that there might be future encounters between Ms Winn and her former work colleagues. Even taking those factors into account as permitted by s 55(3) of the GIPA Act, the Tribunal is not satisfied that release of the information relating to the bullying and harassment complaint or the WHS incident could reasonably be expected to expose a person to a risk of harm or serious harassment or serious intimidation as specified in cl 3(f).

Whether the public interest considerations against disclosure, on balance, outweigh the public interest considerations in favour of disclosure

The documents relating to the bullying and harassment complaint are pp 1-3 of Annexure E to Mr Reynold's confidential affidavit. As noted above, the documents were addressed in a confidential session. Having considered those documents, the Tribunal gives significant weight to the public interest against disclosure in cl 1(d) of the Table to s 14, that is, that disclosure could reasonably be expected to prejudice supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, and to the public interests against disclosure in cll 1(f) and (g) of the Table to s 14 of the GIPA Act. The staff members who made the complaint of bullying and harassment did so on the understanding that the complaint would be confidential, and the evidence was that they would not have done so without that assurance. While the applicant was advised that she would be able to review the allegations, and while that would be consistent with the requirements of the Code of Conduct, the investigation did not progress to a stage that would enable that to occur. The Tribunal is satisfied that effectively managing complaints about the behaviour and actions of staff outweighs the public interest in favour of disclosure of promoting transparency in the Council's decision-making processes including in respect of its handling and management of complaints against staff members. Further, while acknowledging that the documents contain personal information of Ms Winn, the documents contain personal information of others, and the Tribunal is satisfied that given the nature of the documents, and the context, redaction of the names of the persons concerned would not be sufficient to avoid the effect identified in cl 3(a), a public interest against disclosure to which the Tribunal gives considerable weight. The Council has satisfied the burden placed on it by s 105 in relation to the bullying and harassment complaint.
The position relating to the WHS incident report and associated documents is more complex. The Tribunal gives considerable weight to the fact that the information contained in those documents is personal information about Ms Winn, including opinions expressed about her, for which there is a public interest in favour of disclosure. However, the documents also contain personal information about other staff members which would not fall within the exclusion in paragraph (3)(b) of the definition of "personal information" in cl 4 of Sch 4 to the GIPA Act. The information was provided in confidence. The Tribunal gives considerable weight to the provision for confidentiality which is part of the incident reporting and investigation procedure stated in the Council's Incident Reporting and Investigation Procedure, and the understanding of the basis on which the staff concerned provided or collated the incident information, and thus to the public interests against disclosure contained in cll 1(d), (f) and (g) of the Table to s 14 of the GIPA Act. The Tribunal concludes that the public interest against disclosure of the information in the documents outweighs the public interest in favour of disclosure, and affirms the decision in relation to those documents.
Some information has been disclosed to Ms Winn, in the form of the redacted version of Mr Edgar's email of 18 July 2018 (which is pp 36 and 37 of Annexure E to the affidavit of Mr Reynolds). In that form the document discloses to Ms Winn personal information about her, while not identifying other staff referred to or providing information that might identify those persons. The Tribunal agrees that disclosure of that document in that form strikes the appropriate balance between the public interests against disclosure and those in favour of disclosure.
The Tribunal notes that in contrast to the situations under consideration in Ansoul, Williams v Department Industry and Investment [2012] NSWADT 192, AMH v Western New South Wales Local Health District [2013] NSWADT 282, and AEF v Northern Sydney Local Health District (No 2) [2012] NSWADT 89, where workplace issues had been investigated and reported on, the processes initiated by the Council commenced, but did not conclude after Ms Winn resigned her employment. The procedures provided in the Code of Conduct and the Procedures, and as referred to in the letters of 23 October 2018 and 6 November 2018, would have required the substance of the allegations to be disclosed to Ms Winn had the investigation continued. For the reasons above the Tribunal is satisfied that the Council has discharged the onus under s 105 of the GIPA Act in relation to the request for access to the documents held by it when it received the application under that Act.
Ms Winn raised an issue as to the validity of the delegations or authorisation under which Mr Reynolds made the internal review decision, and under which the original decisions were made. Ms Winn submits that that issue is relevant to the weight to be placed on the internal review decision, and whether a referral under ss 111 or 112 of the GIPA Act should be made. The IPC report identified shortcomings in the Council's original decision. The task of the Tribunal in this review is to determine, on the evidence before it, what is the correct and preferable decision; and in the review the Council bears the onus of establishing that its decision is justified. The Tribunal is satisfied for the reasons given above that the Council has done so.

Addendum (18 December 2019)

The parties were notified on 30 October 2019 that the decision in this matter would be published on Caselaw on 31 October 2019. The applicant contacted the Tribunal to request that her name be anonymised. The applicant was directed to formalise her anonymization application made under s 64 of the Civil and Administrative Tribunal Act 2013 by 8 November 2019, stating the orders sought and the reasons for the request; the respondent was directed to provide its response by 15 November 2019. The Tribunal advised the parties that the decision would not be published on Caselaw pending consideration of the request and a hard copy would be provided to the parties.
The applicant seeks an order to anonymise her identity in the published version of the decision, in particular to suppress reference to her name and the date of her resignation of employment with the respondent.
Her reasons for requesting such an order are as follows: 1. The decision contains allegations of a serious and personal nature: The circumstance is not one that if her identity is disclosed would cause mere embarrassment. The allegations made against her in the complaints received by the respondent alleging that she had engaged in inappropriate workplace behaviour including bullying and harassment involve allegations of wrong doing of a personal kind that may cause irreparable damage to her career and professional reputation. If the decision is published with the applicant's name unsuppressed there is a real risk that the decision may be used by the complainants to cause reputational or emotional harm to the applicant, to which the applicant is particularly vulnerable. 2. The applicant has not had an opportunity to clear her name: in the absence of an investigation, the allegations against the applicant have never been tested and if made public she would be linked to and reputationally branded a person who has allegedly acted in a manner that is alleged contrary to the NSW Model Code of Conduct. 3. Public interest: there is a real public interest in persons being able to seek review of decisions concerning access to documents that may be embarrassing or damaging to themselves without the risk of exposing themselves to potential embarrassment or reputational damage.
The applicant submits that open justice may be served notwithstanding the proposed orders because the documents and information to which she sought access are entirely personal to her and the Tribunal decision has little effect beyond her, and the reasoning and substance of the decision can be understood notwithstanding the proposed anonymization order.
The respondent opposes the orders sought. It accepts that the Tribunal has a discretion to make the orders, but submits it should not, for the following reasons: 1. The applicant sought to obtain personal information about the complaints through the GIPA Act, which is predicated on the presumption that there is a public interest in disclosure to the public at large of government information. The applicant commenced the proceedings presumably realising that the results thereof would be matters of public record, and did not seek a suppression order at any time during the proceedings despite the Tribunal hearing submissions and making orders of confidentiality in relation to the proceedings. The failure to address the issues in a timely manner offsets any grounds justifying suppression of the reasons based on the nature of the allegations against the applicant. 2. The date of the applicant's resignation has an important bearing on the way in which the case was determined as it shows that there was, by reason of it, no need for the investigation to continue or for the applicant to respond. 3. There is no factual evidence that there is a real risk that the decision may be used by the complainants to cause reputational or emotional harm to the applicant. The case before the Tribunal was about the confidentiality of the disclosures by the complainants and their fears of further engagement with the applicant. The applicant's choice to resign before the investigation reached the point at which the applicant could understand and respond to the case against her and her subsequent election to proceed to the public forum of a GIPA application is crucial, and there is nothing unusual in the circumstances that warrants departure from the presumption of open justice.
Section 64 of the NCAT Act states: 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders: (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), … (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, … (3) The Tribunal may from time to time vary or revoke an order made under subsection (1). (4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
The principles governing the operation of the discretion to make orders under s 64 were considered in DLH v Nationwide News Pty Ltd [2018] NSWCATAD 92. In that decision, the Tribunal cited with approval State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69, in which an Appeal Panel of one of NCAT's predecessors, the Administrative Decisions Tribunal, considered in some detail the principles governing the exercise of the power conferred by s 75(2) of the Administrative Decisions Tribunal Act 1997 (NSW), which is broadly equivalent to s 64 of the NCAT Act.
The Appeal Panel in Dezfouli summarised at [81] the factors relevant to the exercise of the discretion to make a non-disclosure order in the following terms: ... (a) the presumption in favour of open justice; (b) the need for an applicant for a suppression order to establish good grounds for making the order; (c) the comparative breadth of the criterion of 'desirability'; (d) the important differences between the types of suppression order that may be made - between (for instance) an order (as in this case) prohibiting disclosure of the identity of a participant and an order that a hearing occur in closed session, without notice to a party; (e) the undoubted breadth of the range of purposes that may be served ('any other reason'); (f) the possibility that the purposes to be served may be a mixture of private and public interests; and (g) the possibility that, although generally speaking the prospect of damage to reputation or 'embarrassment' affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, there may be unusual circumstances where this is the principal consideration underlying an order.
As Principal Member Britton noted in Frost v TAFE NSW (No 2) [2019] NSWCATAD 129: 11. The "presumption in favour of open justice" referred to by the Appeal Panel is a common law principle. In John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 at 142-143 Kirby P explained (citations deleted): It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms ... 12. Commenting on that principle the Appeal Panel in Dezfouli stated at [61]: [It] is unthinkable that the word 'desirable' in section 75(2) should be interpreted without regard to the basic common law precept of open justice. What is 'desirable' under a statutory provision must be determined in accordance with consistent standards and values, not the particular preferences of the court or tribunal applying the provision. The values that have informed judicial decisions about the issues raised in section 75 have consistently attributed considerable importance to the desirability of hearings being open to the public and fully reportable unless good reasons are advanced for restricting public access and/or full reporting.
Principal Member Britton referred to the Tribunal decision in Carroll v Tokdogan [2015] NSWCATAD 200: 23. Section 64 reflects the principle of "open justice" also contained in s 49 of the NCAT Act (proceedings will be held in public) and one of the objects of the NCAT Act (to ensure that the Tribunal is accountable and has processes that are open and transparent: s 3(f)). In Carroll v Tokdogan [2015] NSWCATAD 200, the Tribunal noted at [7]-[8]: [Section 64 of the NCAT Act] establishes the norm that unless orders are made under s 64 of the NCAT Act, the names of persons involved in proceedings will be contained in the Tribunal's written reasons for decision. As a consequence, the Tribunal commonly publishes reasons for decisions that contain facts that the parties may not wish to be published and that may disadvantage them or cause them to suffer embarrassment. The practice of the Administrative and Equal Opportunity Division of NCAT, unless otherwise ordered, is to permit its decisions to be published on Australasian Legal Information Institute and NSW Caselaw, which are freely and readily accessible through the Internet. Given the principle of open justice enshrined in the NCAT Act and the importance of justice being administered openly and in public, in our opinion, the power contained in s 64 should be exercised sparingly.
The practice in the Administrative and Equal Opportunity Division of the Tribunal as to what the Tribunal publishes about proceedings, including hearing lists, and how a party may apply to have a confidentiality order made, is stated in the Division's Guideline "Confidentiality, privacy and publication". An application under the GIPA Act is not included in the list of matters arising under community welfare legislation where the identity of a party is as a matter of course not disclosed. In such matters, the Guideline states that a request for a confidentiality order should be made before the start of the hearing, setting out the reasons and attaching evidence to support the application. In the absence of any earlier request by the applicant for a confidentiality order, the hearing lists published by the Tribunal have already disclosed her name. It is likely therefore that any order under s 64 may not have the effect sought by the applicant. However, the Tribunal notes that in Dezfouli the Appeal Panel noted at [94] that the fact that the name of the relevant person was already in the public domain by reason of publication of earlier reasons, did not make continuation of the anonymization order a futile exercise.
The substance of this application concerns allegations made against the applicant, and those allegations include personal information of the applicant. As acknowledged in the discussion above, the allegations were not fully investigated because the applicant resigned her employment with the respondent. The detail of the complaint and incident is not disclosed, nor need it be for the purposes of the proper balancing of the competing public interest required by s 13 of the GIPA Act. The review application, and that balancing exercise, raises both private and public interests. The applicant acknowledged (see [41] above) that there are public interest considerations at issue, including the promotion of accountability in the decision-making process. The Tribunal accepts that public disclosure of the fact that complaints of inappropriate workplace behaviour including bullying and harassment have been made about the applicant raise the prospect of damage to reputation or embarrassment affecting her. However, the applicant has not identified how there is, or provided evidence to substantiate that there is, a real risk that the decision may be used by the complainants in a way detrimental to her. The applicant has not explained how disclosure of the fact that the allegations were made, in the context where there was no investigation, may cause "irreparable" damage to her career and professional reputation.
The proceedings were commenced by the applicant, and this is not a case such as those in Dezfouli or Z v University of A, Dr D & B (No 4) [2002] NSWADT 14, also cited by the applicant, where the anonymised name was that of a respondent to proceedings or a person who had made the original complaint. As discussed above, the allegations against the applicant were not tested, so as to provide an opportunity for the applicant to clear her name, because she resigned her employment before the foreshadowed investigation process was undertaken.
As discussed in Dezfouli, there must be good grounds to make an order under s 64, and the prospect of damage to reputation or embarrassment affecting a participant in the proceedings will not generally provide sufficient grounds for a suppression order. There may be circumstances where an applicant's private interests may override the public interest in seeing justice done openly, however good reasons are required to do so. The Tribunal is not satisfied that the application reaches the threshold established in Dezfouli. The Tribunal is not satisfied that it is desirable at this stage in the proceedings to make an order anonymising the name of the applicant.
The applicant also sought an order that the date of her resignation of employment not be published. The fact that the applicant resigned is significant, as it brought the investigation process to an end, which meant that the applicant did not have the opportunity to be informed of the substance of the allegations and respond. While the precise date on which that occurred is not central to the reasoning above, the fact that the resignation occurred after the applicant was notified of the investigation and before the office Christmas function is. It is not clear how publication of the date could have the consequence of reputational or emotional harm as submitted by the applicant, and given the importance of the timing for the analysis of the relevant issues, the Tribunal does not consider it desirable to make an order that the date of resignation not be published.
The application by the applicant for an order under s 64 of the NCAT Act is refused. The Registrar is requested not to publish on Caselaw these amended reasons until 28 days after the date of this decision.

Conclusion

The following orders are made: 1. The decision under review is affirmed. 2. The application for an order under s 64 of the Civil and Administrative Tribunal Act 2013 prohibiting the disclosure of the applicant's name and the date on which she resigned her employment with the respondent, is refused.

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: 07 February 2020

Administrative Decisions Tribunal Act 1997(NSW)

At a glance

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Judgment (19 paragraphs)

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Legislation Cited (4)

Cases Cited (10)

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