Yamba CAN Inc v Clarence Valley Council

Application for administrative review

1. On 9 October 2023, the Tribunal received the current application for administrative review, which raised the following grounds: Agency has not conducted reasonable searches as per s 53. The Agency has not addressed all of the constituent compoemnemt (sic) of Clauses 1(d), 1(f) and 3(a) of the Table in s 14 of the Act.

Procedural matters

1. On 30 October 2023, Senior Member Perrignon conducted a case conference at which Mr J Ryan appeared for the applicant and Mr C Zoppo appeared for the respondent. He listed the matter for mediation on 21 November 2023 and stated that any person attending the mediation who lives in the Clarence Valley local government area may appear by AVL, noting that the respondent's legal representatives will appear in person in Sydney. Otherwise, he ordered the respondent to file and serve all evidence, documents and submissions by 11 December 2023. He ordered the applicant to file and serve all evidence, documents and submissions by 15 December 2023. He ordered the respondent to file and serve all evidence in reply and a summary of legal arguments by 9 February 2023. He directed the parties to notify each other of any witnesses required for cross-examination by 12 February 2024 and listed the matter for hearing on 28 February 2024.

The hearing

1. The matter came before me for hearing on 28 February 2024. Mr Ryan appeared for the applicant and Members of the Committee of the applicant (Mr C Shepherd, Ms L Cairns and Mr C McNeil) also appeared by way of AVL. Mr Zoppo appeared for the respondent and Ms Moar (a Director of the Respondent) appeared by way of AVL.

Respondent's opening argument

1. Mr Zoppo stated that the dispute is about the reasons that former staff members of the respondent provided in exit interviews. He stated that the respondent's concern is that the information was provided to the respondent in confidence and that disclosure would involve the release of confidential information.
2. Mr Zoppo stated that the respondent relies upon the evidence of Ms Moar and that the respondent relies upon cll 1(d), 1(e) and 1(f) of the table to s 14(2) of the GIPA Act.
3. The Tribunal indicated that a recent decision addressed some of these issues and drew the parties' attention to the decision in Lesslie v Lithgow City Council [2023] NSWCATAD 203.

Applicant's opening argument

1. Mr Ryan stated that the applicant does not seek disclosure of the names of individuals who completed the exit interviews. He argued that the decision in Lesslie can be distinguished from the facts in this matter because in Lesslie, the applicant sought information relating to a particular former councillor, whereas his clients do not seek information that identifies anyone.
2. Mr Ryan stated that the respondent has not provided any evidence in support of the assertions in Ms Moar's evidence and that the Tribunal should treat her evidence as "bare assertions".
3. The Tribunal asked Mr Ryan to explain the basis for that assertion and he responded to the effect that the Tribunal should consider the decision in Tallawoladah Pty Ltd v Department of Planning, Industry and Environment [2021] NSWCATAD 248.
4. The Tribunal noted that the respondent states that Ms Moar is its Senior Officer and that her opinion should be given significant weight. However, Mr Ryan responded that the applicants maintain that her evidence should be treated with caution, effectively on the basis that there is no evidence that staff who completed the exit interviews were surveyed about whether they agreed to their responses being released. He referred to the Information Access Guidelines issued by the IPC in relation to this issue.
5. Mr Ryan argued that confidentiality is not a black and white area and that the applicant's view is that the respondent could "de-personalise" the exit interviews.
6. Mr Ryan referred to the evidence of Ms Cairns, who states that she received emails from a councillor responding to a resident who alleged bullying, harassment and racism from Council staff towards other staff and that the respondent needs to take the Local Government Act into account in making decisions.
7. Mr Ryan asserted that the public interest considerations in favour of disclosure of the disputed information outweigh those against its disclosure and that the issues of confidentiality can be overcome by redaction.
8. The Tribunal asked Mr Ryan to identify the applicant's evidence to the effect that the information provided in the exit interviews was not provided confidentially. He replied to the effect that the Tribunal needs to determine whether the information was provided n a confidential basis.
9. Mr Ryan argued that paragraphs [42] to [52] of the Tribunal's decision in Tallawoladah apply to this matter, as follows: Clause 1(d) of the table to section 14 of the GIPA Act 42. To make out this public interest against disclosure, it is necessary to prove that: (1) the information is "confidential"; (2) a supply of information will be prejudiced; and (3) the information facilitates the effective exercise of the agency's functions. 43. Comments by the Appeal Panel in Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at paragraph [37] suggest that it is incumbent on an agency to identify the matters relied upon to demonstrate each of these matters. Having said that, however, this is a task which is to be undertaken at a "relatively abstract" level of analysis. 44. In Macquarie University v Howell (No 2) [2009] NSWADTAP 19 the Appeal Panel said at paragraph [10]: 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. 45. In Raven v University of Sydney [2015] NSWCATAD 104 at paragraph [62], the Tribunal held that the words "confidential information" do not connote information which may not be disclosed in any circumstances. The term captures information which is not to be disclosed in ordinary circumstances. This could be the case for example, where the information has been supplied under an express or implied pledge of confidentiality. 46. In Luxford v Department of Education and Communities [2016] NSWCATAD 118 at paragraph [70] I dealt with the approach to be taken when determining the question of whether the information in issue is confidential. I found that a number of principles apply: Clause 1 of the table to section 14 also deals with issues relating to confidential information. In determining the question of whether the information in issue is confidential a number of principles apply: see Williams v Department Industry and Investment [2012] NSWADT 192: (i) The confidential quality of communications is a question of fact; ii) To establish its confidential quality, information must have been supplied under an express or implied pledge of confidentiality; (iii) The confidential quality of the information may be inferred from the nature of the relationship between the informer and person informed; (iv) The confidential quality of the information must be determined in the light of all of the circumstances of the particular case. 47. Those principles are applicable to both clause 1(d) and 1(g) of the table to section 14. 48. In Commissioner of Police, NSW Police Force v Camilleri the Appeal Panel stated at paragraph [33]: 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. 49. In a matter where the onus lies with the applicant, reference will also be made to the evidence presented by that applicant. 50. The more that is publicly known about a subject the less likely it may be that confidentiality can be inferred. However, this will be a question of fact and degree. 51. Labelling and treatment of information as confidential are not conclusive of this question. In McKinnon v Blacktown City Council [2012] NSWADT 44 Judicial Member Molony stated at paragraph [55]: While I accept that, in an appropriate case, confidentiality with respect on information communicated in the course of an investigation can be inferred, the factual background must justify the making of such an inference. Here it does not. While the report is labelled confidential and had been treated as confidential, the evidence indicates that this has occurred as a matter of convention, rather than on the basis of a statutory requirement, or in accordance with a policy of the Agency. Indeed a reading of the policy makes it clear it does not establish a regime of confidentiality, with the exception of circumstances to which the Protected Disclosures Act 1994 applies. That is not the case here. 52. Similarly, a failure by an agency to inform the community of the statutory limitations placed on any implied or express confidentiality assurances because of the GIPA Act does not limit the application of those obligations: see Taylor v Destination NSW at paragraph [40].
10. Mr Ryan argued that the disputed information is not highly personal or sensitive information and that the sensitivity level is "low". He stated that the Tribunal must make its decision on the basis that the applicant expressly did not request personal information and that the considerations under cll 3(a), 3(b) and 3(f) of the table to s 14(2) of the GIPA Act can be overcome by redaction of any information that can identify the person - including contextual information.

The evidence

1. The Respondent relied upon statements of Alexandra Moar dated 19 December 2023 and 13 February 2024. Ms Moar was not required for cross-examination and her statements were admitted into evidence and marked as Ex 1 and Ex 2, respectively.
2. The respondent also tendered a bundle of documents. These were marked as MFI-1.
3. The applicant relied upon an affidavit of Lynette Cairns dated 19 January 2024. Ms Cairns was not required for cross-examination and her affidavit was admitted into evidence and marked as Ex A.

Evidence of Ms Moar

1. In Ex 1, Ms Moar stated that she is the Director Corporate and Community of the Respondent and has held this position since 12 December 2022. Prior to then, she was Manager Organisational Development and she acted in her current role from December 2021 until her permanent appointment commenced.
2. Ms Moar stated that she undertook the internal review of the respondent's decision following the recommendation from the IPC. She undertook further searches for the requested documents in order to satisfy herself that all relevant information was captured by her decision. Undertook searches of the Corporate Systems Workforce Management Module and in the Enterprise Contact Management System (ECM). She searched for all staff that were employed by the respondent for the period 12 May 2021 to 12 May 2023 and downloaded the results into an excel spreadsheet. She then searched ECM with the search term "Exit interview" and located 40 separate entries for employees who left the respondent during the relevant period. Ultimately, she decided to provide access to the information sought in the GIPA request with the exception of "the reasons given for resigning in exit interviews".
3. Ms Moar stated that where staff leave their employment with the respondent, the respondent needs to understand the reasons for leaving. Every staff member who leaves is sent an email with a link to the Exit Survey and it is up to the discretion of the officer as to whether they complete it and how they complete it. While staff members may speak to management or other Council staff about the reasons why they are leaving, the only record of the reasons given for leaving the Council is contained within the Exit Survey or the Exit Interview (pre-April 2023).
4. Ms Moar stated that the responses from the survey help the Council identify the reasons why staff are leaving and take appropriate actions to enable it to work to stop the flow of staff leaving by: (a) reviewing workplace and external factors that may be negatively impacting employees; (b) make changes or improvements to its practices; (c) identify and take steps to prevent staff turnover; (d) celebrate succession for staff who are moving forward in their careers at other workplaces/agencies.
5. It is important that the staff members complete the form in a frank and honest manner so that the respondent can rely upon the information that is provided, identify the real factors that are influencing staff to leave and make effective changes to reduce staff turnover as well as to continue to build staff engagement within the organisation. To do this, the respondent makes it clear to the departing staff member that their responses are confidential and will only be used for internal management purposes. The information is received and confidential and is kept as confidential. Once the exit survey is completed and submitted the responses are emailed to a HR email box and saved to ECM in the existing staff member's personal file stored in the HR category. The only staff members who have access to this is the People and Culture Team, Manager Organisational Development, herself and the General Manager. Between May 2021 and April 2024=3m the respondent used a document called Exit Interview that allowed the departing staff member to write reasons in free-form. A copy of the Exit Interview was attached to the respondent's submissions. In April 2023 the process was updated and the Exit Interview name was changed to the Exit Survey (also attached to the respondent's submissions).
6. Part of the Exit Interview and the Exit Survey form includes information that the survey participant provides as their reasons for leaving. Under the heading Reasons for Leaving, there are the same 18 reasons that can be nominated by the officer ticking one of the available options (i.e., higher salary, career path change etc) including an option for 'other reasons'.
7. The Exit Interview and Exit Survey includes other information pertinent to the employment of the departing staff member that falls outside their reasons for leaving. However, the respondent considers all of the circumstances and all of the information set out in the survey. That information is outside the scope of the GIPA request.
8. Ms Moar stated that she decided that the public interest considerations against disclosure of the disputed information outweighed those in favour of its disclosure. She discussed these considerations as follows:

Clauses 1(d), 1(f) and 1(g) of the table to s 14(2) of the GIPA Act

1. Ms Moar expressly referred to the confidentiality notice included in the Exit Survey and stated that if the reports/reasons are made public, the respondent will be breaching its undertaking or obligation of confidence to the staff who completed the survey on the understanding that their responses would be kept confidential. For the information obtained in the exit interviews or surveys to be useful to the respondent, it must be honest and frank. Employees leaving an organisation must be assured that their responses will be heard and remain in confidence to feel comfortable to provide honest information. Exit survey data is a function of workplace management and is used broadly to make positive changes to process and procedures and if employees are not afforded confidentiality, they will not disclose such information, which will impede the respondent's ability to effectively conduct its functions.
2. Ms Moar stated, relevantly: 32. I have recently discussed this issue with the Council's General Manager. If access to this information is available by way of access application, Council would have to consider removing the confidentiality undertaking in the Survey and/or advising the Council officer that the information that they provide would be available to the world at large by way of access application under the GIPA Act. This will result in a smaller number of Exit Surveys being completed and for those that are being completed, the information that is provided would be less reliable as staff may not honestly report on the real reasons for leaving.

Clauses 3(a), 3(b) and 3(f) of the table to s 14(2) of the GIPA Act.

1. In relation to these considerations, Ms Moar stated that the Exit Surveys contain personal information of the departing employees who complete them, including potentially sensitive information provided under the terms that the information would remain confidential or have limited use internally. The comments in the Exit Surveys also reveal personal information about those who may be mentioned in the Surveys, including current employees of the respondent. These comments are unverified personal opinions and some may include false or unsupported claims, which could be considered defamatory. Releasing such personal information and unverified comments publicly may pose psychological risks or safety concerns to both current and former staff due to the potential harm caused by exposing these allegations. This may be addressed by redaction of all information that reveals the personal information under s 74 of the GIPA Act.
2. Ms Moar concluded: 40. The importance of the information to the organisation is critical when considering the current levels of staff turnover. The identification of the real reasons will allow the Council to put in place measures to address the reasons with a view of reducing the turnover of staff that of itself causes instability in he workforce and increases costs incurred in recruitment and retention of staff.
3. In Ex 2, Ms Moar responded to some of the matters raised by the applicant, as follows: 1. The applicant submitted (at para 15) that the document is available to be viewed within the whole of the Council (some 480 FTE) but may be proactively shared with the individuals named as well as the whole People and Culture team. However, she confirmed the information set out in the Internal review decision and Ex 1 and a total of 7 people may have access to the information. 2. While the applicant is entitled to its own opinion about the respondent's performance and staff morale, the data in the Workforce Management Strategy that it referred to demonstrates the high retention of staff in the first year of service (this is at an all-time low of 1% in FY23). She concluded: 7. It is certainly not my experience that there is low morale at Clarence Valley Council. I have worked at Council for four and a half years and found it to be a positive place to work.

Evidence of Ms Cairns

1. In Ex A, Ms Cairns stated that she is the Secretary of the applicant. She stated that the applicant has been concerned about the lack of Council enforcement action, very poor performance of Council's complaints handling system and the failure of Council to implement the decisions of the elected councillors. In response to the inclusion of the respondent in the Ombudsman's 2021/2022 Annual Report, the General Manager stated on 28 February 2023, that "Substantiating complaints is the role of the courts and judicial system, not the role of the Ombudsman's office, which is to call out maladministration and ensure that a fair process was followed by the agency dealing with the complaint". She expressed the view that these comments misrepresent the objects and purposes of the Ombudsman Act 1974, and overlook the point that the issue raised is that a significant number of residents made complaints about the respondent's performance. The applicant's opinion is that the respondent is performing poorly and that there is very low morale amongst Council staff.
2. Ms Cairns stated that she was included in an email from a Councillor in September 2021, which responded to a resident who was alleging bullying, harassment and racism from certain Council staff towards other staff. She also said that she is aware of commentary in the community that former staff are taking work at Coffs Harbour Council and other workplaces in the Coffs Harbour area rather than working for the respondent because of its the low morale. Any statements from former staff that they prefer to work in the Coffs Harbour area is a serious concern to those who wish to see the Clarence Valley as a healthy and cohesive community. She also said that she is personally aware of aggrieved former staff members.

Confidential documents

1. The respondent lodged a confidential bundle of the disputed documents, with the Tribunal on a confidential basis and the Tribunal determined that it was appropriate to conduct a confidential hearing in the applicant's absence under s 107 of the GIPA Act.
2. Accordingly, the Tribunal adjourned the open hearing to 2pm and conducted a confidential hearing in the absence of Mr Ryan, Ms Cairns, Mr Shepherd and Mr McNeil.
3. [NOT FOR PUBLICATION]
4. [NOT FOR PUBLICATION]
5. [NOT FOR PUBLICATION]
6. [NOT FOR PUBLICATION]

Scope of the disputed information

1. When the open hearing resumed, the Tribunal asked the parties of there was any agreement regarding the scope of the disputed information, noting that the decision under review was made on the basis that this was restricted to the information under the heading "Reasons for leaving" in the Exit Surveys.
2. Mr Ryan replied that the Tribunal should not consider the scope of the disputed information in an overly-restrictive manner and that other comments contained in the Exit Surveys may also be within scope and that in practice, humans may provide comments in "other places".
3. The Tribunal noted that Ms Moar addressed this issue in para 17 of Ex 1 and that the applicant had not challenged it. I further noted that a decision by an agency regarding the scope of a GIPA request is not a reviewable decision.
4. The Tribunal ruled that the scope of the disputed information is the information under the heading "Reasons for leaving" in the Exit Survey documents.
5. Mr Ryan stated that the applicant disagreed with this ruling.

Respondent's submissions

1. In written submissions filed on 21 December 2023, the respondent set out a background to the current dispute and commented on the scope of the current dispute as follows: 1.9 Under the heading Reasons for Leaving, the departing officer identifies the reasons for leaving the Council (see pages 3, 4 and 5). The survey includes other information pertaining to the employment of the officer that is outside the scope of this application as it is not the reasons given by the Officer for leaving the Council.
2. The respondent referred to the public interest test under s 13 of the GIPA Act and referred to the decisions in Flack and Hurst, regarding the manner in which the Tribunal is to apply that test.
3. The respondent identified the following public interest considerations in favour of disclosure: 1. disclosure could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive or informed debate on issues of public importance; and 2. disclosure could reasonably be expected to inform the public about operations of agencies and their policies and practices for dealing with members of the public.
4. The respondent also addressed the public interest considerations against disclosure and stated that the words in the phrase "could reasonably be expected to" should be given their ordinary meaning: Flack v Commissioner of Police [2011] NSWADT 286. This is an objective test and involves a question of fact "Reasonable expectation" means that there is more than a mere possibility, risk or chance and it must be based on real and substantial grounds and not be purely speculative, fanciful, imaginary or contrived: Leech v Sydney Water Corporation [2010] NSWADT 298 at [25].
5. This analysis has been upheld in other decisions, namely: NSW Henry George Foundation v Director General, Department of Attorney General and Justice (NSW) [2013] NSWADT 2 at [37] to [42]; Black v Hunter New England Local Health District (No 2) [2012] NSWADT 235 at [47] to [49].
6. The respondent argued, based on Ms Moar's evidence, that the disputed information is confidential.
7. In relation to its functions, the respondent stated that its function as a local government agency is to provide services that are: (1) Non-regulatory (see Ch 6 of the Local Government Act 1993 (NSW) (LGA); (2) Regulatory (see Ch 7 of the LGA); or (3) Ancillary functions that are those functions that assist the carrying out of council's service and regulatory functions (Ch 8 of the LGA). Part of its mission is to use all available means to implement its functions, which involves the training and use of its staff. Staff turnover causes disruption in the provision of services and significant costs in terms of recruitment and training and re-training of staff. The respondent undertakes a range of measures to remedy the circumstances that may lead to staff leaving.
8. Ms Moar addressed this in her evidence and expressed her opinion that if the disputed information is released to the world at large under the GIPA Act, the respondent would be breaching its undertaking or obligation to the staff who completed the Exit Survey on the understanding that the material would be kept confidential. This could reasonably be expected to prejudice the flow of confidential information.
9. The respondent argued that cll 1(d) and 1(f) should be given substantial weight by the Tribunal.
10. In relation to cl 3(a) of the table to s 14(2) of the GIPA Act, the respondent noted that "personal information" is defined in cl 4 of Sch 1 of the GIPA Act as follows: Personal information means information or an opinion (including information or an opinion forming part of a database or whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can be reasonably ascertained from the information or opinion.
11. The respondent stated that the disputed information captures the name of the people who completed the Exit Interview or Exit Survey as well as the name of other Council staff or the descriptions of roles that would lead someone to be able to identify the person who holds a position who is the subject of complaints. That is personal information that has not been revealed (i.e., publicly disclosed otherwise than by unlawful disclosure) because the respondent takes steps to ensure that it remains confidential.
12. The respondent also made submissions concerning cl 3(e) of the table to s 14(2) of the GIPA Act, with respect to responses that include comments about other staff and how they have carried out their tasks, which has not been publicly revealed.
13. However, in view of my ruling regarding the scope of the current dispute, I do not consider it necessary to address this consideration in any particular detail.
14. In relation to cl 3(b) of the table to s 14(2) of the GIPA Act, the respondent argued that disclosure of the disputed information would breach the IPP set out in s 18 of the PPIPA and that none of the exceptions have been established.
15. The respondent argued that the public interest considerations against disclosure of the disputed information outweigh those in favour of disclosure and it concluded that the correct and preferable decision is to affirm the decision under review.

Applicant's written submissions

1. The applicant filed written submissions on 25 January 2024, which argued that the respondent has not offered any evidence that supports the contention that disclosure of the disputed information amounts to a breach of confidence, a risk of revealing unsubstantiated allegations or creating a risk of serious harm or harassment.
2. The applicant argued that the respondent did not appear to have consulted the former staff who completed exit interviews and surveys and is therefore not in a position to claim how those individuals might view the release of their reasons for leaving, as follows: 11. The Appeal Panel in Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 at [59] said: Based on these authorities when considering the evidence on which it is asserted that disclosure "could reasonably be expected" to have a particular effect, the following principles should be kept in mind: (1) a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient; (2) there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect; (3) prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses. 12. It is submitted that no real or substantial grounds have been presented by the respondent which can demonstrate that the adverse effects could reasonably be expected to occur. The respondent has relied upon mere statements of concerns from the statement of Ms Moar. In our view the Tribunal should consider that as no evidence has been provided it must determine the matter based on information which is available to it.
3. The applicant argued that Ms Cairns' evidence refers to community concerns regarding the respondent's performance and refers directly to the experience of some staff at the Council and allegations made of an unsafe workplace. Further, Ms Moar's evidence underscores the importance of the disputed information and therefore the high degree of public interest in it.
4. In relation to the confidentiality notice in the Exit Survey form, the applicant expressed the opinion that its meaning is that the document can be viewed within the whole of the Council but may be proactively shared with the individuals named as well as the whole People and Culture team. Therefore, the degree of confidentiality offered to staff in relation to their Exit Surveys is low. However, I note that Ms Moar expressly rejected that argument.
5. The applicant asserted that staff members are informed that their responses will be treated with a limited degree of confidentiality before choosing to complete an interview or Exit Survey. They are informed that the responses will be available to a whole section of the Council (the People and Culture Team) and the Manager of Organisational Development and the General Manager. That distribution is not equivalent to a high level of confidentiality. "For example there is no obvious need for the Manager Organisational Development or the General Manager to see confidential records. It would be preferable that they are given a report of the general sentiment and concerns expressed by staff, by the manager of humans (sic) resources at the Council rather than a full sharing of a survey. Confidentiality is served best by a restricted distribution."
6. The applicant also argued that as members of Council staff, they would be aware that an access application can be made under the GIPA Act for information including records relating to staff and that those records can be redacted to a greater or lesser degree.
7. Finally, the applicant argued that the confidentiality applies to the identification of staff members and that it is the relationship of the staff member to the comment that could lead to a potential breach of confidentiality. There can be no loss of confidentiality if the identity of the staff member is completely removed from any association with the reasons for leaving. Similarly, there can be no concern raised about harassment or serious harm if all association between staff identity and the reason for leaving is removed.
8. Further, allegations that may be defamatory or injurious can be redacted if there is sufficient specificity contained in them to allow the subject of the allegation or the accuser to be identified. The applicants emphasised in the GIPA request that names of individuals are not sought.
9. In relation to cl 3(b) of the table to s 14(2) of the GIPA Act, the applicant argued that the respondent's argument regarding s 18 of the PPIPA and that none of the exceptions are made out, is "misconstrued" as it has not considered redacting the personal information from the records. It therefore "cannot be in a position to undertake a balancing of the public interest test based on the appropriate information". It applicant relied upon Information Access Guideline 4 in this regard.
10. The applicant concluded that the correct and preferable decision is to grant access to the disputed information "sans personal information".

Respondent's further written submissions

1. The respondent filed further submissions on 23 February 2024.
2. The respondent specifically rejected the applicant's arguments regarding confidentiality and the number of officers who have access to the information provided in Exit Surveys. The respondent stated that if it is assumed that all officers leaving the Council are aware of the GIPA Act, one would also have to assume that they would be aware that the right to access is limited or restricted where there is an overriding public interest against disclosure and it would be reasonable to an officer to expect that the Council would abide by its undertaking of confidentiality and refuse to provide access.
3. The respondent expressly disputed the applicant's assertion that it had not demonstrated any real or substantial grounds that the adverse effects it raised could reasonably be expected to occur. The evidence filed in the matter includes the Exit Survey and demonstrates the undertaking provided to the staff member before they complete the survey. The response is then provided on the basis of the understanding that it is confidential. Ms Moar is the Council's Senior Officer and her evidence on this matter should be afforded significant weight.

Respondent's Oral submissions

1. Mr Zoppo stated that he has read the Tribunal's decision in Lesslie, and while it is limited to "personal information" and considerations under the PPIPA, the Tribunal's approach is consistent with that of the respondent in this matter.
2. There are two statements from Ms Moar regarding the collection of the information and the fact that it was collected in circumstances where it was to remain confidential. The applicant has not filed any evidence to contradict that evidence.
3. In Camilleri, the tribunal held that the public interest considerations against disclosure must be considered at a broad operational level, namely would the release of the disputed information be reasonably expected to prejudice the supply of information that facilitates the agency's functions?
4. In relation to cll 3(a) and 3(b) of the table to s 14(2), it is clear that the Exit Surveys contain personal information and there is no evidence before the Tribunal that any of the exceptions to s 18 of the PPIPA have been established.

Applicant's oral submissions

1. Mr Ryan argued that Ms Cairns' evidence should be preferred to that of Ms Moar as she has given evidence as to her personal knowledge of discussions with members of the public.
2. Mr Ryan referred to the decision of the Tribunal in Flaherty v Upper Hunter Shire Council [2021] NSWCATAD 178. However, he did not refer the Tribunal to any particular parts of the decision or any statement of law or principle.
3. Mr Ryan otherwise argued that the terms of the PPIPA, as referred to in item 3(b) of the table to s 14(2) of the GIPA Act, does not override the respondent's obligations to release information under the terms of the GIPA Act and, in any event, the disputed information is not personal information.

Decision reserved

1. Following the completion of oral submissions the Tribunal reserved its decision.

Consideration

1. I am satisfied that the reviewable decision is that of the respondent dated 16 October 2023.

Legal principles and relevant legislation

1. The current application is brought before the Tribunal under s 63 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act), which provides that the Tribunal may review certain decisions of a respondent agency, described as a "reviewable decision".
2. On an application made under s 63 of the ADR Act, the Tribunal undertakes an administrative review of a reviewable decision and determines the correct and preferable decision, having regard to any relevant factual material before it. Section 63 of the ADR Act states: 63. Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
3. The time at which the Tribunal is to determine the correct and preferable decision the time that it makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [55].
4. Section 9(1) of the GIPA Act relevantly provides: A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.
5. In an administrative review under s 100 of the GIPA Act, several provisions of the GIPA Act are of particular relevance and these are summarised below.
6. Section 5 of the GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
7. Section 12 of the GIPA Act provides that there "is a general public interest in favour of the disclosure of government information" and the NSW Information Commissioner "can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies".
8. Section 13 sets out a "public interest test" which requires a determination of whether "on balance" there are public interest considerations against disclosure which outweigh the public interest considerations against disclosure.
9. In Flack and Hurst, the Tribunal confirmed that the "public interest test" under s 13 requires agencies to start with the presumption in favour of disclosure of information and: (1) identify the public interest in favour of disclosure (s 12); (2) identify the public interest against disclosure with reference to the items listed in the table in s 14 of the GIPA Act (s 14 Table); and (3) determine whether the balance of the public interest lies in favour of, or against, the disclosure of government information.
10. Unless there is a conclusive presumption that there is an overriding public interest against disclosure, the Tribunal must attribute the appropriate weight to each relevant consideration for or against disclosure but the balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17].
11. If the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure, there is an "overriding public interest against disclosure": s13.
12. Section 14 relevantly provides: 14. Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. (3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section.
13. Clause 1(d) of the Table to s 14(2) provides that there is a public interest consideration against disclosure of information if 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.
14. Clause 1(f) of the Table to s 14(2) provides that there is a public interest consideration against disclosure of information if disclosure could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions.
15. Clause 1(g) of the Table to s 14(2) provides that there is a public interest consideration against disclosure of information if disclosure of the information 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.
16. Clause 3(a) of the Table to s 14(2) provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to reveal an individual's personal information.
17. Clause 3(b) of the Table to s 14(2) provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to contravene an information protection principle under the PPIPA or a Health Privacy Principle under the Health Records and Information Privacy Act 2002 (NSW).
18. Clause 3(e) of the Table to s 14(2) provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to reveal false or unsubstantiated allegations about a person that are defamatory.
19. While a very broad value judgment is required to be made, it is not to be made in a vacuum and a judgment must be made having regard to the objects of the Act, the general presumption in favour of disclosure of government information and the principles set out in s 15 of the GIPA Act: Transport for NSW v Searle [2018] NSWCATAP 93 at [104] (Searle). Subsections 15(a) to (d) operate to promote disclosure of information and promotion of the object of the GIPA Act notwithstanding any embarrassment to Government or potential misinterpretation. Only section 15(e) identifies a principle that mitigates the pro-disclosure aim of the Act.
20. It is only necessary that the considerations in the s 14 Table "could reasonably be expected" to have the effect identified. The onus is on the agency "to demonstrate with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect": McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 46 per Hayne J at [61]. This calls for an objective test to be made from the point of a view of a "reasonable" administrator: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. This is also to be determined as a question of fact based on real and substantial grounds and not just a "mere risk or chance": Flack (at [41]) and Leech at [25].
21. Section 73 of the GIPA Act requires that access is unconditional in the sense that no terms or conditions may be imposed as to the use or the manner in which information is to be disclosed in response to an access application. This has often been described as being disclosure made "to the world".
22. Section 105 of the GIPA Act places the onus on the agency to establish that its decision is justified. The agency is not limited to defending or justifying its decision on the same grounds as the original decision-maker: Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 at [10] (Fisher); Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 at [7] (Meldru).
23. Section 107 of the GIPA Act provides: 107 Procedure for dealing with public interest considerations (1) In determining an application for NCAT administrative review, 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 administrative review, 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 NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. (3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of- (a) the public and the applicant, and (b) the applicant's representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.

Public interest considerations in favour of disclosure

1. I agree with the public interest considerations that the respondent identified in its submissions, namely: 1. disclosure could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive or informed debate on issues of public importance; and 2. disclosure could reasonably be expected to inform the public about operations of agencies and their policies and practices for dealing with members of the public.
2. In my view, these considerations should be given strong weight.

Public interest considerations against disclosure

1. In view of my ruling regarding the scope of the dispute before the Tribunal, and that it is restricted to information contained under the heading "Reasons for Leaving" in the Exit Survey documents, I do not consider cl 3(e) to be a relevant public interest consideration against disclosure of the disputed information.
2. However, I agree that the relevant public interest considerations against disclosure are those under cll 1(d), 1(f), 1(g), 3(a) and 3(b) of the Table to s 14(2) of the GIPA Act.
3. The applicant argued, based on the decision of Senior Member Montgomery in Tallawoladah, that the Tribunal should treat Ms Moar's evidence with caution, effectively because there is no evidence before the Tribunal that staff who completed the Exit Surveys "were surveyed about whether they agreed to their responses being released".
4. This appears to refer to s 54 of the GIPA Act, which provides, relevantly: 54 Consultation on public interest considerations (1) An agency must take such steps (if any) as are reasonably practicable to consult with a person before providing access to information relating to the person in response to an access application if it appears that - (a) the information is of a kind that requires consultation under this section, and (b) the person may reasonably be expected to have concerns about the disclosure of the information, and (c) those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information. (2) Information relating to a person is of a kind that requires consultation under this section if the information - (a) includes personal information about the person, or (b) concerns the person's business, commercial, professional or financial interests, or (c) concerns research that has been, is being, or is intended to be, carried out by or on behalf of the person, or (d) concerns the affairs of a government of the Commonwealth or another State (and the person is that government). Note - The requirement to consult extends to consultation with other agencies and other governments. See the definition of person in Schedule 4.
5. However, the applicant did not specifically refer to s 54 in its written or oral submissions.
6. In Tallawoladah, the Senior Member stated that for cl 1(d) to apply, the agency must provide that: (1) the information is "confidential"; (2) a supply of information will be prejudiced; and (3) the information facilitates the effective exercise of the agency's functions. The onus is on the agency to identify the matters relied upon to demonstrate each of those matters: Camilleri at [37], but that task is to be undertaken at a "relatively abstract" level of analysis. He expressly cited the decision of the Appeal Panel in Howell (No 2), that the Tribunal must engage in a relatively abstract analysis and that it 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.
7. The Senior Member noted that in Raven, the Tribunal held that the words "confidential information" do not connote information that may not be disclosed in any circumstances. Rather, the term captures information that is not to be disclosed in ordinary circumstances - for example, where the information has been supplied under an express or implied pledge of confidentiality.
8. The Senior Member stated that in Luxford, he dealt with the approach to be taken when determining the question of whether the information in issue is confidential and he found that a number of principles apply, namely: 1. In determining the question of whether the information in issue is confidential a number of principles apply: see Williams v Department Industry and Investment [2012] NSWADT 192: (i) The confidential quality of communications is a question of fact; ii) To establish its confidential quality, information must have been supplied under an express or implied pledge of confidentiality; (iii) The confidential quality of the information may be inferred from the nature of the relationship between the informer and person informed; (iv) The confidential quality of the information must be determined in the light of all of the circumstances of the particular case. 1. Those principles apply to both cll 1(d) and 1(g). 2. In Camilleri the Appeal Panel stated that 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. 3. In a matter where the onus lies with the applicant, reference will also be made to the evidence presented by that applicant. 4. The more that is publicly known about a subject the less likely it may be that confidentiality can be inferred. However, this will be a question of fact and degree. 5. Labelling and treatment of information as confidential are not conclusive. See McKinnon at [55] (supra).
9. The applicant also argued that the disputed information is not highly personal or sensitive information and that the sensitivity level is "low" and that the Tribunal must make its decision on the basis that the applicant expressly did not request personal information and that the considerations under cll 3(a), 3(b) and 3(f) of the table to s 14(2) of the GIPA Act can be overcome by redaction of any information that can identify the person - including contextual information.
10. I reject the applicant's argument that the Tribunal should treat Ms Moar's evidence with caution on the basis that it is in the nature of a bare assertion. I am satisfied that Ms Moar is a Senior Officer of the respondent and that she has provided evidence based on her personal knowledge and experience (and as an officer who has access to the disputed information).
11. While it is accurate to state that the applicant does not have an evidentiary onus in these proceedings, in my view the evidence before me must provide a safe climate for accepting the applicant's argument that Ms Moar's evidence should be treated with caution. In my view, the applicant has not established any sound basis for accepting that argument.
12. In my view, the evidence before me prima facie establishes that the respondent sought the information sought in the Exit Survey based upon an express statement that the information would remain confidential and that only limited nominated officers would have access to it and that it would be used for a defined limited purpose.
13. There is no evidence before me that supports a finding that former staff who completed an Exit Survey would expect that their response would be disclosed to the world at large in response to a request made under the GIPA Act. There is also no evidence that supports a finding that the respondent either waived or breached confidentiality in relation to the disputed information, either expressly or impliedly.
14. In relation to the applicant's purported reliance upon s 54 of the GIPA Act, there is no evidence before me that supports a finding that the respondent considered disclosing the disputed information, such that the duty to consult with the third parties who provided the information to it must be consulted before disclosure. On the contrary, the respondent decided that the disputed information was confidential and that on balance, it should not be disclosed.
15. While the applicant also referred the Tribunal to the decision in Flaherty, I note that the decision essentially related to whether offending information could be redacted, but it does not contain any statement of principle that supports the applicant's case. In any event, I note that this decision was made by another Senior Member and I am not therefore bound by it.
16. For these reasons, I am satisfied that each of the public interest considerations in cll 1(d), 1(f), 1(g), 3(a) and 3(b) of the Table to s 14(2) of the GIPA Act should be given significant weight.

Balancing the public interest

1. I have applied the public interest test to this matter as required by the decision in Leech.
2. Having done so, I am satisfied that the public interest considerations against disclosure of the disputed information outweigh those in favour of its disclosure and that there is an overriding public interest against its disclosure.

Conclusion

1. For these reasons, I am satisfied that the correct and preferable decision is to affirm the decision under review.

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: 11 March 2024